2018 PLP 20 (PLC N)

MUHAMMAD SHERAZ KAYANI, J.

Through the above captioned appeal, the appellants have challenged the legality and validity of the judgment and order passed by the learned District Judge/Judge Labor Court, Mirpur dated 06.07.2017, whereby, the learned Court below has ordered reinstatement of the respondent, herein.

2. Precise facts forming the background of the instant appeal are that Muhammad Arif Tahir, petitioner/respondent, herein, filed an application under section 30 of the Industrial Relations Ordinance, 1974 (hereinafter to be referred as 'the Ordinance' of 1974), stating therein that the petitioner is an employee of the HBL/defendant and on the basis of selection on merit he has been promoted in officer Grade vide order dated 27.12.1979, and was promoted as officer Grade III on 29.04.1980. It was stated that the defendant/appellants herein, after an inquiry in the allegations of misappropriation and misuse of powers, has dismissed the petitioner/respondent, herein vide order dated 24.10.2007. It was prayed by the petitioner/respondent, herein that by settings aside the above order dated 24.10.2007, he may be reinstated with all service benefits.

3. The application was contested by the respondent/appellants herein by filing objections, wherein, it was alleged that the applicant has misappropriated the money of some account holders during his posting as Manager, HBL Branch Tatta Pani. It was stated that the job of the applicant is of supervisory nature and he does not come in the definition of worker or workman, therefore, the Labor Court has no jurisdiction to try his case. The learned trial Court, after framing issues, recording evidence and hearing the parties, vide judgment and order dated 06.07.2017 accepted the application, set aside the order dated 24.10.2007 and ordered reinstatement of the applicant /respondent with all past benefits, hence, the above titled appeal before this Court.

4. Ch. Aakif ud Din, Advocate, the learned counsel for the appellant-Bank, during the course of arguments, put emphasis on the point that the respondent, herein, being Manager of a Branch, Officer Grade-I does not come within the definition of 'worker or workman' and the learned Court below has wrongly and illegally decided, issue No.5, pertaining to the definition of worker-workman and jurisdiction of the Labor Court. He further submitted that allegations against the respondents were proved and he was rightly dismissed from service by the competent authority. In support of his submissions, the learned counsel referred to and relied upon the following case law and craved for acceptance of appeal:- 1. 2018 PLC 123 [Supreme Court AJK] 2. 2015 SCR 1412 3. 1985 SCMR 1511 4. 2009 PLC 281 [Supreme Court of Pakistan] 5. 2009 PLC 262 [Supreme Court of Pakistan] and 6. 2007 SCMR 198

5. The respondent has already filed detailed written arguments, wherein, the impugned judgment and order has been defended and supported on all four corners and it has been alleged that the non-applicant-appellants, with mala fide intention levelled bogus and frivolous allegations against the applicant/respondent, herein and with mala fide reasons and intention issued the dismissal order, which has rightly been struck down by the Court below and the order the Court below, being strictly in accordance with law, does not warrant any interference by this Court.

6. I have heard the learned counsel for the appellant -Bank, perused the written arguments of the respondent and considered the controversy with due care.

7. The learned counsel for the appellant-Bank has mainly argued on the point that the applicant/respondent, herein does not come within the definition of a worker or workman and the Court below was not competent to hear his application. The term 'worker' and `workman' has been defined in section 2(28) of the IRO, 1974, which is as under:- "(28). 'worker' and 'workmen' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms as of employment be expressed or implied and for the purpose of any proceedings under this Ordinance in relation to an Industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to that dispute but does not include any person -- (a) who is employed mainly in a managerial or administrative capacity; or (b) Who, being employed in a supervisory capacity, draws wage exceeding rupees 600 per month sum or performs, either because of the nature of duties attached to the officer or by reason of the powers vested in him, functions mainly of a managerial nature."

8. The applicant-respondent, herein, admittedly was serving as Manager of a Bank branch, having status of an officer Grade-I and enjoyed the supervisory and managerial powers. The proposition regarding status of the Manager of a Bank Branch came under the consideration of the Apex Court of Pakistan in case titled Javaid Hussain Naqi v. Member Board of Directors, MCB and others [2009 PLC 260] Supreme Court Pakistan has observed as under:-- "The present petitioner also is a Branch Manager of the Muslim Commercial Bank, performing the duties of managerial and supervisory nature. It is not in the last branch alone but, according to pares No.3 of his grievance petition (pp.65), he has all along been working as Branch Manager at different stations since November, 1979. Learned High Court was, therefore, justified in holding, in the light of the above referred judgment of this Court, that the petitioner was not a 'workman' and hence, the Labour Court lacked jurisdiction to entertain his petition under section 25-A of the Industrial Relations Ordinance, 1969."

4. The arguments of the learned counsel that the branch in which the petitioner was last basted, was a small branch, is altogether out of context. The size of a branch has no nexus with the nature of duties of the Manager, which always remain of managerial and supervisory nature. It would be ridiculous to observe that the manager of a large branch would not be 'workman' and that of a small branch would be."

9. It may be stated that the applicant-respondent, herein, being Manager of a Bank Branch, exercising full supervisory powers, representing the appellant-Bank under the Power of attorney, made in his favour as well, his claim to be a worker or workman, can never be accepted in light of the above reproduced definition as well as the dictum of the Hon'ble apex Court of Pakistan, laid down in the case, supra.

10. In another case, titled Nazakat Hussain and 4 others v. United Bank Limited and 4 others, [2018 PLC 123] Supreme Court Azad Jammu and Kashmir, while deciding the same proposition, the Hon'ble apex Court has observed as under:-- "

6. While adverting to the real controversy involved in the matter regarding status of the applicants as to whether they fall within the definition of worker/workmen, it may be observed here that we have given our serious thought to the relevant definition clause of I.R.O which is reproduced by the High Court in the impugned judgment. The said clause unambiguously speaks that the employees who are assigned the managerial or administrative duties are excluded from the definition of worker/workman. It is admitted position that the appellants in the case in hand were serving as Officer of the Bank in Grades II and III. The officers of Grade II were admittedly serving as the Branch Managers in the Bank who explicitly fall within the definition of employees who perform managerial functions, hence, excluded from the definition of worker/ workman. It is evident from the dower of attorney executed in favour of Mr. Nazkat Hussain, appellant No.1 herein being officer Grade-II by the Bank, that he was assigned the managerial functions. The powers assigned by virtue of the power of attorney are material for fixing the status as to whether or not he was a workman."

11. It may also be stated that this Court could have adjudged the case on merits, only if the barrier of jurisdiction of the trial Court would have been crossed, whereas, in the prevailing circumstances, when this Court is of the view that the applicant/respondent, herein did not fall in the definition of a worker or workman, hence, was not competent to file the application under section 30 of the Ordinance of 1974 and accordingly, the trial Court/labor Court had no jurisdiction to try his application and pass the impugned order.

12. In light of the above detailed discussion this Court is constrained to hold that the applicant/respondent, herein did not fall in the definition of worker or workman and likewise, the learned labor Court was not competent to hear, his application under section 30 and the order passed by the Court below, being coram-non-judice is liable to be struck down in the first instance.

13. What emerges from the above discussion is that the above captioned appeal is accepted. The judgment and order passed by the learned Labor Court dated 06.07.2017 is hereby set aside, resultantly, the dismissal order of the applicant/respondent, herein, impugned before the Labor Court stands restored.

14. The case law, referred to and relied upon by the respondent, being not applicable, due to distinguishable facts and circumstances of the case in hand, need not to be discussed in detail.

15. Before parting with the case, it may be observed that in the interest of justice and in view of the bona fide litigation before wrong forum, it is ordered that the applicant respondent, herein, may approach the proper forum and the limitation, if any, shall run from the date of this order. ZC/2/LT(AJ&K) Appeal allowed.