1999 PLP 38 (PLC)

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑Workman‑‑‑Grievance petition ‑‑‑Maintainability‑‑ Employee who initially was employed as a clerk, in due course of time was upgraded and he became a Checking Assistant and an Officer designated as O.I.C. a job carrying Grade‑VI‑‑‑Employee earned promotion to the Management Staff as Officer Incharge, drawing salary of Rs.16,933 per month at the time of cessation of his service‑‑‑Designation alone, no doubt, would not be determinating factor but nature of duties of employee coupled with question of emoluments would certainly have final "say" in the matter‑‑ Even if employee was doing some work with his own hands and same could be called clerical, the main or substantial part of his functioning, undoubtedly, was administrative or managerial or supervisory‑‑‑Employee being an officer at time he was ousted from his service, question whether or not act of employer in dispensing with his services was sustainable in law, could not be brought under challenge in a Labour Court‑‑‑Labour Court, in circumstances, had fallen in gross error on factual or legal plane in entertaining and accepting grievance petition filed by said employee against his termination. Muhammad Humayun for Appellants Respondent in person. Masud Pervaiz had successfully assailed the order dated 30‑5‑1995 of his removal from service, on having approached the learned Labour Court at Rawalpindi, by way of a grievance petition, filed under section 25‑A of the Industrial Relations Ordinance, 1969. The Authorities of the ANZ Bank have preferred the present appeal.

2. Basic question that would primarily invite the attention of this Court for the purpose of decision of the instant appeal is whether or not Masud Pervaiz was a workman, entitled to invoke the aid of the Labour Laws in his favour, by having recourse to a Labour Court. My reply plainly would be in the negative Initially, of course, Masud Pervaiz was employed as a clerk on 14‑6‑1963, but in due course of time he was upgraded, so that he became a Checking Assistant on 1‑6‑1992, and an officer designated as O.I.C., a job carrying Grade‑VI, on 23‑12‑1993. By all means he had earned promotion to the management staff, as Officer Incharge, drawing huge salary in the amount of Rs.16,933 per month, at the time of cessation of his service. True, designation alone will not be the determining factor, but the nature of the duties, coupled with the quantum of the emoluments would certainly have final 'say' in the matter. It is not indeed understandable, how could a Bank Official, who has been designated as an Officer and is also drawing handsome salary to the tune of Rs.16,933 p.m. claim to be still a workman, performing clerical or manual duties. Even if he was doing some work with his own hands and the same could be called clerical, the main or substantial part of his functioning was, undoubtedly, administrative or managerial or supervisory. Beyond any manner of doubt, he had taken up the plea of being a worker, with a view to invoke the jurisdiction of the labour forum, although manifestly, and by all means, he belonged to the Banking Officers Class and the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and those of the Industrial Relations Ordinance, 1969, were not attracted. His services were terminated simpliciter, in accordance with clause No.6 of the contract of his employment, dated 23‑12‑1993.

3. Actually he was not a member of the union of workers, at the relevant time, and only officials of Grades Nos.l to 3 could legitimately claim the status of a workman, as has been conceded by Masud himself in his cross‑examination as P.W.

1. Mr. Muhammad Zaheer, Operation Manager of the Bank, as R.W.1 had deposed in all the more clear and categorical terms in that regard. Although the respondent as grievance‑petitioner had tendered in evidence in the lower Court certain 'commendation' letters and other documents, Exits. P‑115 to 183, the respondents before the Labour Court, the Authorities of the Bank had also brought on record a number of documents, as Exhs. R‑5 to R‑18, bearing testimony to his misbehaviour, insubordination and misconduct of gross character. He had been administered warnings, time and again, and asked to improve his conduct and performance, but he seemed to have turned a deaf ear to the whole counselling, emanating from his superiors; and it appeared that they had been fed up with his constant attitude of insubordination, indiscipline, irresponsibility and moral delinquency. On 30‑5‑1995 lie was served with a notice intimating him that his services were no longer required and were being dispensed with. He refused to acknowledge the letter, intimating him accordingly as Exhs.P‑172 and P‑

173. In response to his grievance notice, Exh.P‑174, the management addressed to him its reply Exh. P‑175, telling him that under the teems and conditions of the contract of employment, his services could straightaway be dispensed with. As he was wielding powers of supervision, direction and control, in his sphere of working, requiring independent application of mind, he could in no manner claim to be a workman and have access to a Labour Court. Validity/propriety/legality of his action was, therefore, questioned in all seriousness. Without going deep into the other aspects and the merits of the case, I have no doubt in my mind that Mr. Masud Pervaiz was an officer, when he was ousted from service, and whether or not the act of the management in dispensing with his services was sustainable in law, the same could not be brought under challenge in a Labour Court. The impugned decision, whereby the Labour Court, Rawalpindi had ventured to take cognizance of the matter, could not be permitted to hold the field. The learned lower Court has fallen in gross error, on factual and legal plane, in entertaining and accepting the grievance petition of Masud Pervaiz.

4. I would set aside the decision dated 19‑12‑1995, and would allow the appeal of the Bank. There shall, however, be no order as to costs, as success of the management of the bank and the employee, in the two forums, has been 'divided'. H.B.T./934/Lb.P Appeal allowed.