1989 PLP 236 (PLC)

(c) Industrial Relations Ordinance (XXIII of 1969)

‑‑‑S. 25‑A‑‑Grievance petition‑‑Limitation‑‑Bank employee‑‑Remedy of departmental appeal mandatory before recourse to legal remedy under Labour laws‑‑Limitation is to be computed either on receipt of reply to departmental appeal or on expiry of reasonable time in case of non‑receipt of reply to departmental appeal or grievance notice. Partab Rai for Appellant. Abdul Ghani Khan for Respondents. Date of hearing: 23rd February, 1986. This is an appeal filed by the appellant against an impugned order, dated 14‑10‑1987, passed by the Sind Labour Court No. VI at Hyderabad. who had dismissed the grievance petition of the appellant under section 25‑A, I.R.O. 1969.

2. Briefly stated the facts of the case are that the appellant claimed to have been permanently employed in the respondent Bank as a Cashier on 18‑9‑1972 and was subsequently promoted as Officer Grade III and used to perform the duties of clerical nature viz. making entries in the relevant accounts books,' preparation of accounts statements, maintaining ledgers and that he had no power of hire and fire and that he never performed the functions or powers of the General Attorney on behalf of the respondent Bank. The claim of the appellant further was that on 11‑2‑1984, he applied for three weeks' leave on the ground o ailment of his mother which was granted to him and so he proceeded to Karachi, but in the meanwhile, he too fell ill and had remained confined to bed for a substantial period, therefore, he sent various applications for the grant and extension of leave intimating his corresponding address at Karachi. Further, the claim of the appellant was that the respondent Bank never replied to his leave application, therefore, he did not know whether his leave was granted or not, however, in support of his illness, he submitted two Medical Certificates, one dated 10‑7‑1984 and the other dated 3‑6‑1986. The claim of the appellant was that in the month of June, 1986, he had received as far back as, dated 3‑12‑1985, showing therein that his services had already been terminated, without holding an enquiry, offering an opportunity to defend himself and even without hearing him in person, thus, he was condemned unheard, which action of the respondent bank was mala fide and victimization. The appellant claimed that being aggrieved bank aggrieved he sent his departmental appeal on 17‑9‑1986 which was subsequently rejected on 22‑1‑1987, so, he served his grievance note on 16‑2‑1987 which was also rejected on 2‑3‑1987, hence, present grievance petition.

3. The respondent Bank resisted the petition on the grounds that the appellant was not a workman, but he was an officer performing the duties of managerial and supervisory, in nature, as well as also held a Power of attorney on which he used to act from time to time. Further, it was the case of respondent Bank that the present petition of the appellant was barred b time as well as the appellant remained authorisedly absent from his duties from 11‑2‑1984 and had never sent any intimation for grant of leave, so, on 9‑6-1985 he was issued a charge‑sheet to which he also failed to reply, so an enquiry was ordered against him with a proper intimation, under registered post. Further, that the appellant did not care, even to participate in the said enquiry, so, ex pane proceedings were held against him resulting in the termination of his services as the charge of unauthorized absence from duty was fully established, vide letter, dated 3 12 1985, thus, he was not entitled to maintain his grievance petition which was liable to be dismissed.

4. Both the parties led their respective evidence and they were duly cross -examined. Thereafter, the learned Labour Court has passed the impugned order, hence, the present appeal.

5. I have heard Mr. Partab Rai, the learned Advocate for the appellant and Mr. Abdul Ghani Khan, the learned Counsel on behalf of the respondent Bank and have also carefully perused the record and proceedings of the case. Mr. Partab Rai, the learned Advocate for the appellant has pleaded that the impugned order is based completely upon misreading and misinterpretation of the evidence brought on record and that the learned Labour Court has failed to appreciate that the burden of proof of valid and legal service of communications was upon the respondent Bank which it had failed to discharge. It was further pleaded that in view of the fact that the alleged communications from the respondent remained undelivered would support the claim of the appellant in respect of his absence from Hyderabad and further that the alleged charge‑sheet was itself time‑barred. Mr. Partab Rai, the learned Advocate for the appellant has stressed upon the fact that from evidence brought on record, it has been established, beyond any doubt, that the appellant had neither powers of hire or fire, nor, he ever acted upon the so‑called Power of Attorney. Mr. Partab Rai further submitted that it vas not proper to conclude that an employee having a blotless service record for about a period of 10 years could remain absent from service without any intimation and lose his job particularly in the present hard days and that the appellant was doubly punished for this alleged misconduct, as, it is an admitted positron on record that firstly his alleged absence from duty was treated as an extraordinary leave, and secondly, that his services were terminated, so, he could not be punished for one and same charge of misconduct. It was lastly argued by the learned Advocate for the appellant in view of the evidence brought on record and the various case Laws including a number of decisions of this Tribunal it was not correct for the learned Labour Court to hold that the appellant was not a workman for the purpose of Labour Laws. I see much force in these contentions of Mr. Partab Rai, the learned Advocate for the appellant. It is an admitted position that the appellant, though working as a Grade III Officer did not have power of hire and lire and that he was working under the supervision the Manager of the respondent Bank at the relevant time and that in all other administrative as well as business matters of the respondent Bank, the appellant was not supposed to take decisions on his own and or independently. It is also an admitted position that when the alleged communication was undelivered upon the: appellant then the respondent Bank did not attempt to get proper and reasonable service of any of its communications upon the appellant as required in legal manner. Therefore, in view of these admitted positions, I am of the view that the appellant was workman within the meaning of the Labour Laws and was competent to maintain his grievance petition under section 25‑A, I.R.O. 1969 and even the so‑called termination of his service in view of the above facts on record, could not be sustained and is liable to be set aside. It is also a settled preposition of law that all the bank employees have to submit their departmental appeals before adopting legal recourse under the relevant provisions of Labour Laws and the time of limitation has to be computed either after receiving a reply to such departmental appeal or after expiry of a reasonable time in case of non‑receipt of D a reply to the departmental appeal or the grievance notice. Hence, I would hold that in view of these facts, the petition of the appellant was within time. I would, therefore, hold that the learned Labour Court was not correct in passing the impugned order.

6. For the reasons discussed by roe above, I would set aside the impugned order and would allow the present appeal. The appellant is directed to be reinstated in service with 30% (Thirty per cent) back benefits forthwith. A.E./1269/Lb. S. Appeal allowed.