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Application No. 34 of 1984, decided on 22nd September, 1985.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑

‑‑‑S. 2(i)‑‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A‑ "Workman"‑‑Determination factor‑‑Nature of primary and main duties and not the work which might have to be done incidentally in course of performance of normal duties‑‑Bank Manager holding power‑of‑attorney controlling a number of subordinates though doing some clerical work necessary or expedient for better or efficient performance‑‑Not a workman‑‑Cannot maintain petition against dismissal from service for misconduct before Labour Court.

1985 S C M R 1511 rel.

1984 P L C 1305; 1982 P L C 132 and 1986 P L C 90 held superseded by 1985 S C M R 1511.

S.F.H. Rizvi for Applicant.

Muhammad Bashir Awan for Respondents.

The applicant was employed as Grade‑III Officer and was said to be performing the duties purely of clerical and manual nature. Accordingly, he claims himself to be covered by the provisions of Standing Orders Ordinance, 1968. While he was posted in the Zonal Office at Mirpurkhas, he was served with a charge‑sheet, dated 20‑2‑1982. It was duly replied and then an enquiry was conducted against him. After the enquiry he was served with a letter of warning on 15‑8‑1982 and thus the matter was closed for good. Surprisingly the applicant received a final show‑cause notice, dated 9‑9‑1982 in respect of the already closed subject after the lapse of one year. He was dismissed from service by order, dated 24‑9‑1983. He submitted a departmental appeal and thereafter sent a grievance notice, dated 22‑12‑1983. Neither his appeal was disposed of nor the grievance notice was replied and so he instituted the present petition 9‑2‑1984 for his re‑instatement with back benefits. This petition it' based on the grounds that the charge‑sheet was time‑barred; the charges were without any foundation and only based on certain irregularities which did not constitute any misconduct and that, in any case, the proceedings were terminated after service of warning to the applicant.

2. The Bank in its reply statement questioned the maintainability of this petition as also the jurisdiction of this Court on the plea that the applicant was serving as Manager. On merits it has been pleaded that the impugned action was passed in accordance with law and the same cannot be questioned.

3. Applicant examined himself alone in support of his case, while Messrs Muhammad Umer Memon, Muhammad Abbas and Ramzan Ahmed Khan were tendered in evidence on behalf of the Bank. After evidence I have heard Mr. S.F.H. Rizvi, Advocate for the applicant, and Mr. Muhammad Bashir Awan, counsel for the respondents. I have also examined the factual and legal proposition involved in this case.

4. The first submission made on behalf of the Bank is that the applicant is not a workman and so he cannot maintain the present petition. According to Mr. Bashir, the applicant was admittedly posted as a Branch Manager at the time of the commission of the misconduct and he was also the holder of a power‑of‑attorney which conferred upon him powers of excising discretion and to take important decisions while running the branch under his control. Mr. Rizvi, on the other hand, submits that the applicant has described his duties in the evidence and according to such duties the applicant was performing manual and clerical duties. He used to make correspondence by himself, prepare F.D.R. Invoices etc., used to closing and balancing work of cash and ledger posting work etc. Mr. Rizvi submits that holding of power‑of attorney alone does not mean that the applicant was also exercising the powers conferred upon him under the said power but to determine the status of the applicant the duties which were being actually performed by him have to be considered. He has placed reliance on 1984 P L C 1305 a decision of the Presiding Officer, Punjab Labour Court No. VI, Rawalpindi, 1982 P L C 132, a decision of Sind Labour Appellate Tribunal and another decision of our Sind Labour Appellate Tribunal reported in 1986 P L C 90.

5. No doubt the applicant in his affidavit‑in‑chief detailed some of his duties being performed by him in paras 5, 6 and 7 of the affidavit but in his cross‑examination he has admitted that at the time of the alleged misconduct he was posted as Branch Manager of Dirge Branch of the bank and where he worked for more than 2 years as such he also admits that he was holding the power‑of‑attorney though he submitted that such power‑of‑attorney was conferred on him when he was clerk in Jhudo Branch of the Bank. He also admits that two clerks and two peons were posted in that branch and that he used to carry on the work as Branch Manager. D.W. Muhammad Umar Memon has deposed that this branch where the applicant was posted as Manager 7/8 persons were working under him and he had the authority to call explanation etc. He denied the suggestion that the power‑of‑attorney is also conferred on clerks. The other two witnesses of the Bank also supported Mr. Memon, Muhammad Abbas was actually working as Cashier under the applicant and he very specifically averred that the applicant was performing only managerial and supervisory duties independently and never performed any clerical work. The status of a person who holds power‑of‑attorney in the Bank has been discussed by the Supreme Court in Ganga R. Mandhandi's case reported in 1985 S C M R 1511. The definition of "workman" given in section 2(i) of Standing Orders Ordinance has also been examined. Their Lordships, of the Supreme Court, after referring to the relevant laws and the terms of power‑of attorney granted to an employee of the bank as also the case‑law on the subject, observed that in determining the status of an employee the overall nature of the duties assigned to the person in question has to be considered according to the observations, the main or primary functions that he is required to perform is to be seen and not the work that he might have to do incidentally in the course of performance of his normal duties. According to their Lordships even a person employed at the highest managerial or supervisory level has sometimes to perform functions or do some work which may be termed "manual" or "clerical". Finally it has been held that the holder of power‑of‑attorney is to perform a large number of functions which are clearly of managerial nature besides doing some work of routine nature or which is necessary or expedient for the better or efficient performance. Applying this dictum to the present case it would be clear that the applicant does not come within the category of a workman because he was the holder of power‑of‑attorney and was also working as a Manager of the Branch controlling a number of subordinates. He was thus performing managerial functions though he may have been doing some work of clerical nature but such work would be deemed only ancillary or expedient for the better performance. The reports relied upon by Mr. Rizvi have firstly no bearing on the facts of this case and, secondly, in any case, these decisions have apparently been superseded by the verdict of the Supreme Court referred to above. In view of this factual and legal position, the applicant cannot maintain this petition and so it is liable to be dismissed on this score alone.

6. Since this Court has no jurisdiction in this matter because the applicant is not a workman, this petition is dismissed.

A.E.

Petition dismissed.

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