1994 PLP 397 (PLC)

(3) In his capacity as partner of a private firm he maintained and operated accounts with UBL Shahi Bazar and Minar Road, Sukkur Branches with A/c No. 83, 468 and 473 respectively. (4) He had been visiting Karachi for the booking of movie films with the distributors and stayed at Pak Hotel and/or Jagirdar Hotels at Karachi as evident from their records and bills." He is therefore called upon to submit his explanation to Mr. Maqbool Butt, Officer Gr‑I, Principal Office, Karachi who has been appointed enquiry officer in this case within 15 days of the receipt hereof failing ex parte action would be taken against him. (Sd.) (Muhammad Saeed Butt ), Member, Executive Board. (Administration).

2. He had submitted his reply which was found to be unsatisfactory and an enquiry was ordered. Maqbool Butt had made enquiries from a few persons and submitted his report. His finding was that in the absence of any evidence from a handwriting expert the guilt has not been driven home against the employee. However notwithstanding this report the petitioner was compulsorily retired on 13‑6‑1985. He had preferred an appeal before the President. There was also a Grievance Notice on 7‑9‑1985 and as there was no reply within time he filed the petition.

3. It was admitted in the written statement that the "case against the petitioner was temporarily closed due to non‑pursuance of the complaint but subsequently it was re‑opened on fresh complaint/reminder by Mr. Wasiullah". As regards the allegation that even the copy of the complaint had not been supplied to the petitioner it was stated that the same was not required to be given to him. The other allegations came to be denied.

4. The petitioner was his own witness and Amjad Ali Shaikh and Nawab Wasiullah were tendered for cross‑examination.

5. The Labour Court dismissed the petition on 4‑1‑1990 and this resulted in an appeal before the Tribunal. The matter was remanded for a clear finding about the status of the petitioner after giving opportunity to the parties to produce further evidence. The respondent took advantage of this opportunity and examined the Enquiry Officer.

6. The Labour Court for the reasons given by it allowed the petition with full back benefits.

7. This appeal had remained pending before this Tribunal since 1991 and the matter was being adjourned all along on the request of one party or the other, mostly both. On the last hearing, there were again requests for adjournment. I had declined, but had kept it for orders and the parties were given option to give written arguments if they so wanted, and that has been done.

8. The respondent as a Head Cashier will be a Grade‑III Officer, but it is a trite proposition of law that it is not the designation, but the actual work which is being done by a petitioner that will determine whether he is a worker or belongs to the supervisory class. The respondent had clearly mentioned that he was doing clerical work. The only question in cross‑examination was about his designation. His job description also is not forthcoming. He will therefore be a workman. (See 1986 PLC 28 National Bank of Pakistan v. Muhammad Usman). The decision was affirmed by the High Court and is reported in 1992 PLC 94, There are also judgments holding a head cashier to be a workman' (See 1987 PLC 28).

9. It has also been urged that the respondent had been retied and taken all the benefits available to him and therefore the petition would not lie as he was no more a workman. There is no evidence or averment that he had taken all the dues that he was entitled to. No such plea was taken in the written reply either. Being a question of fact it is too late in the day. Otherwise clause 12(3) of the Standing Orders' Ordinance too includes the word compulsory retirement. (See 1976 PLC 901 M/s. Sethi Straw Board Mills Ltd. v. Punjab Labour Court No. 3 and others and 1992 SCMR 2169. General Manager, National Radio Tele‑communication Corporation v. Muhammad Aslam and 2 others).

10. It has also been urged on behalf of the appellant that there was nothing to show that the enquiry had been conducted under the Staff Service Rules, 1988. It seems to be nothing more than a ritual. One has only to look to the notice for penalty to repel the contention. It is true that Rules framed in 1973 were statutory Rules. But these rules were altered and the Rules of 1980 were made by the Executive Board under bye‑laws (a) (iii) and (iv) of the National Bank of Pakistan Bye laws read with section 11, subsection (4) of tile Banks (Nationalization.) Act, 1974 being in conformity with the Wage Award.

11. It is not necessary to dilate on this aspect of the matter. It will be sufficient to say that as held in the case of National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and others 1993 SCMR 105, the respondent having been arraigned under the 1980 Service Rules which undoubtedly are not statutory, provisions of Standing Orders Ordinance will he attracted.

12. There is no gainsaying the fact that the complaint against the respondent had been filed some 4 years earlier. Some sort of an enquiry had been instituted and had been closed, as per letter of the Assistant Vice President dated 21‑12‑1981. It was some 4 years thereafter that the notice of imposition of penalty was given. That will be in violation of Standing Order 15, clause 4 of the Standing Orders Ordinance, according to which the charge -sheet has to be served within a month of the date of such misconduct or the knowledge thereof. That will vitiate the entire enquiry and order of, retirement.

13. Any way the investigation against the respondent had been set ill motion on the complaint of one Nawab Wasiullah and he had filed a heap of documents with all sorts of allegations. However none of the documents have been proved and nobody had been examined from the Imperial Cinema of Regent Cinema to establish that he had worked therein in the capacity as Assistant Manager or Manager. The second charge was that he was carrying on private business/trade of screening movie films at Sukkur under several trade names and styles viz. `AB Films' and `Prince Traders'. There is no evidence from that quarter either. The third allegation is that he was visiting Karachi for the booking of movie films with the film distributors etc. There is no iota of evidence from any quarter that way also.

14. To cap it all, Wasiullah had admitted in his cross‑examination that there are civil cases pending between him and the respondent and that there is some dispute also over money. The record amply bears out, that he was bristling with. venom, against the respondent. This was all the material that was available before the authorities, and it could not form the basis of his compulsory retirement which is a sort of punishment. The appellants were ill‑advised not to pay proper heed to the warning given by the inquiry Officer. I am therefore of the opinion that no interference is called for, and will therefore dismiss the appeal. H.B.T./2272/Lb.S Appeal dismissed.