1987 PLP 1 (PLC)

(d) Industrial Relations Ordinance (XXIII of 1969)

Ss. 2(xxviii), 25-A & 38(3)--'Workman'--Grievance petition--Appellate jurisdiction, exercise of--Although employee who had been removed from service, would cease to remain a workman, yet appeal having been brought incompetently, no interference could be made with order passed by Labour Court in exercise of appellate jurisdiction. 1985 P L C 1053rel. M.S. Bokhari for Appellants. H.R. Haider for Respondent. Date of hearing: 1st April, 1986. In the titled appeal the decision, dated 2-2-1985 recorded by the learned Presiding Officer, Punjab Labour Court No.l, Lahore has been challenged, whereby the respondent was directed to be re-instated in service without back benefits. The respondent has brought cross objections for claiming back benefits, which are being disposed of alongwith the appeal.

2. The respondent was officer Grade-II and on various charges detailed in charge-sheets Exhs. P.1/1-2 and P.2/1-2, dated 26-10-1981 and 29-11-1981, respectively, he was dismissed from service after holding ex parte enquiry. During arguments none of the counsel for the parties has touched the finding of the Inquiry Officer on merits. The respondents had been re-instated in service on the ground that second show-cause notice was not served upon him and that even though the charges were very serious, he was not afforded proper opportunity to defend himself by refusing adjournment sought by the respondent on the ground of illness. An objection has been raised by the learned counsel for the respondent that the appeal has not been brought by the competent persons. The grievance petition was brought against the President of, the Bank, Head Office, Karachi and two others namely Senior Vice-President Zonal Chief Office and Assistant Vice-President, Zonal Chief Office. The appellants are United Bank Limited through Senior Vice President, Circle Office, Lahore and Assistant Vice-President, Circle A Office, Lahore. The President, Head Office, Karachi is not the appellant. It has been argued by the learned counsel for the appellants that the Board of Directors had authorised appellant No.2 to bring appeal and since the memo. of appeal bears the signatures of the said appellant, there is no force that the appeal is by an incompetent authority. The argument has no force. One of the other objections as taken in para. 7 clause (c) of the grievance petition is that the Assistant Vice-President was not competent to dismiss the respondent from service. Since the respondent impleaded the President, United Bank Limited, Head Office, Karachi, so according to him, only the said authority had jurisdiction to dismiss him from service. Exh. R-2 shows that the decision to dismiss the respondent was taken by the Head Office. Admittedly, the Head Office is at Karachi. There are three signatures, one of Mr. Muhammad Yousaf Shah who is described as Executive Vice-President. Out of the two other officers who signed the dismissal order one is Senior Executive Vice-President (Operations) Head Office, Karachi. It has not been shown if not the President but the Executive Vice-President, Senior Executive Vice-President and another Senior Executive Vice President (Operations) Head Office, Karachi were competent to pass the dismissal order. By rules it could be shown who was competent to dismiss an officer Grade-II. Since the dismissal order was passed on behalf of the Bank, the onus was upon the appellant to show that the authorities who signed the dismissal order were competent. Since not the appellants but Mr. Muhammad Yousaf Shah, Executive Vice-President B and two Senior Executive Vice-Presidents had passed the order, therefore, they were competent to lodge the appeal even if it be said that they were competent to dismiss the respondent and not necessarily the President Head Office, Karachi. No doubt, the documents shown by the learned counsel for the appellants at the bar shows that the Board of Directors had authorised appellant No.2 but since the dismissal order was not passed by the Board of Directors, therefore, only the authorities who had passed the dismissal order could have authorised some other office to bring the appeal. The learned counsel for the appellant has laid much stress upon the point that since appellant No.2 was impleaded as respondent in the grievance petition, therefore, he was competent to bring the appeal. As mentioned above, the respondent challenged the authority of appellant No.2. The Assistant Vice-President was impleaded as party to the grievance petition because the order of dismissal was conveyed to the respondent by the said officer. It was not disclosed to the respondent either in Exh.P.18 or by any other document as to who had actually decided to dismiss him. The objection raised on behalf of the respondent, therefore, is correct.

3. The other point argued is that the respondent is not covered by the definition of workman. The learned counsel for the appellants has made reference to the power of attorney and has argued that the respondent in cross-examination admitted that he was holder of power of attorney at the time action was taken against him. This is true but unless it is shown that the power given to an employee were being exercised by him, the mere execution of power of attorney in his favour is not sufficient to oust him from the definition of workman, if otherwise he is covered by it. A holder of power of attorney becomes agent and an agent comes within the definition of employer and in this manner the holder of power of attorney is not a workman. Only that person can be said to be an agent who is actually acting as such and not that he holds a power of attorney- There is no evidence oral or C documentary on the record to the effect that the respondent was exercising the powers mentioned in the power of attorney. It was not suggested to the respondent in cross-examination that he was exercising these powers at the time action was taken against him. I, therefore, do not find any force in the argument of the learned counsel for the appellants that the respondent is not a workman. The definition of workman given in the Industrial Relations Ordinance, 1969 is very wide and since the respondent was not shown to be covered by the definition of employer, nor was it shown that he had managerial or supervisory powers, he was not ousted from the definition of workman.

4. So far as merits are concerned, admittedly no second show-cause notice was issued to the respondent, which is a mandatory provision of paragraph 258(5) of the First Wage Commission Award.

5. No doubt, the Lahore High Court has held in 1985 P L C 1053 that a bank employee who has been removed from service ceases to remain a workman, but the difficulty is that the appeal was not brought by any competent person, therefore, no interference can be made with the impugned decision of the learned lower Court.

6. As a result, the appeal fails and is dismissed A. A Appeal dismissed