2008 PLP 319 (PLC)

HAFIZ TARIQ NASIM, J.

Facts leading to this labour appeal are that the appellant being an Officer Grade-I in the U.B.L. was served with show-cause notice on 12-3-1999 containing certain serious allegations which were refuted by the appellant but dissatisfied with his reply he was terminated from service through order, dated 4-8-1999. The appellant filed departmental appeal, which was rejected on 4-10-1999 and he approached Federal Service Tribunal (F.S.T.) in view of section 2-A of the Service Tribunals Act. However, during the pendency of appeal before the F.S.T. law was laid down by the Honourable Supreme Court of Pakistan in the case reported as PLD 2006 SC 602 and the appellant's appeal was abated and he approached the Punjab Labour Court through a grievance petition under section 46 of I.R.O., 2002 against the termination order, dated 4-8-1999. The petition was contested by the bank and ultimately the Labour Court dismissed the same on the ground of being not maintainable, as the appellant did not fall within the category of workman. Aggrieved by the impugned judgment, dated 3-3-2008 passed by the Labour Court, the appellant filed this appeal.

2. Learned counsel for the appellant submits that while dismissing the petition, the Labour Court did not advert to the basic law laid down by the Honourable Supreme Court of Pakistan in the cases reported as Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1975 SCMR 535, Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others 1988 SCMR 1664 and Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505, wherein it was held that for determination of status of workman the rank is not to be seen rather the nature of duties/nature of the work of the aggrieved person is to be taken into consideration. The learned counsel submits that during recording of evidence the appellant appeared before the Labour Court as P.W. and deposed in so many words that his duties during the bank service were of the nature of workman and this very part of his statement was not cross-examined by the respondent-Bank, meaning thereby that the respondent-Bank admitted the contention of the appellant that so far the status is concerned it was within the ambit of Labour Court/Labour Laws. Further adds that in so many judgments it is repeatedly held that when the evidence produced by a party is not cross-examined by the other party, sanctity shall be attached to the examination-in-chief which was not cross-examined. He relied on Muhammad Hassan and another v. Liaqat Ali Khan 2001 CLC 1743, Nazakat Parveen v. Ikhlaq Ahmad 2001 MLD 1169 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700.

3. On the other hand, learned counsel for the respondent-Bank opposed the contentions of the learned counsel for the appellant with vehemence and relied on a judgment reported as Dilshad Khan Lodhi v. Allied Bank of Pakistan through President and 3 others 2005 PLC 230 as well as the definition of auditor available in Black's Law Dictionary, whereby the appellant could be treated as an officer and not a workman. Further submits that the Labour Court practically dismissed the petition in consonance to law and the impugned judgment is liable to be upheld.

4. Arguments heard. Available record perused.

5. As the matter revolves around only a short point of maintainability of petition before the Labour Court, it shall be appropriate to confine to this proposition particularly when there is admission of respondent-Bank in so many words that the appellant deposed before the Labour Court about the nature of his duties of a workman and that part of the evidence of the appellant was not cross-examined.

6. When this ground reality is before a Court of law and if it puts in juxtaposition to the law laid down by the Honourable Supreme Court of Pakistan in respect of determination of the status of aggrieved person on account of nature of his duties, no other conclusion can be drawn except that the appellant was right in invoking the jurisdiction of Labour Court and the Labour Court erred in law while dismissing the petition. Resultantly, the impugned judgment is set aside and the case is remanded to the Punjab Labour Court with a direction to decide the same on merits, preferably within a period of three months being the matter relating to the year 1999.

7. The appeal is accepted in the above terms. M.B.A./R-27/L Case remanded.