1990 PLP 209 (PLC)

Khurshid Ahmad Mian for Petitioner. Nemo for Respondents Nos. 1 and

2. Muhammad Asghar Malik for Respondent No.

3. Date of hearing: 19th March, 1989. Nisar Ahmad Khan respondent No.3, hereinafter referred to as the respondent was serving as Senior Head Cashier/Officer Grade‑III in Civil Lines Branch, Gujranwala of National Bank of Pakistan, the petitioner herein, in the year 1977. He was issued a memo (charge‑sheet) Annex. `C' on 25‑4‑1977 containing charges of misconduct. The respondent denied the charges through reply (Annex. `D') to the charge‑sheet. A domestic enquiry followed. The Enquiry Officer recorded a finding of guilty vide enquiry report (Annex. `F'). Consequently the respondent was dismissed from service through order‑dated 17‑8‑1978 (Annex. `G'). The respondent was relieved from duty on 30‑9‑

78. He filed a departmental appeal on 28‑10‑

78. He sent reminders on 27‑12‑1978 and 3‑1‑1980 for communication of result of appeal to him but without any response. The respondent thereafter served a grievance notice (Annex. `H') dated 1‑3‑1980. Reply (Annex. `J') to the grievance notice rejecting the notice was conveyed to the respondent. He then filed grievance petition (Annex. `K') under section 25‑A of the Industrial Relations Ordinance, 1969 hereinafter referred to as the Ordinance before the learned Punjab Labour Court No. 3 at Ferozewala. Alongwith the grievance petition, the respondent moved an application seeking condonation of delay. The grievance petition as also the application for condonation of delay were contested by the petitioner Bank. The learned Labour Court after recording parties' evidence and after hearing them allowed the grievance petition as also the application for condonation of delay. Resultantly the respondent was ordered to be reinstated in service with back benefits. The order in this behalf was made on 29‑9‑1981 (Annex. `N').

2. Feeling aggrieved, the petitioner‑Bank preferred an appeal (Annex. `O') before the learned Punjab Labour Appellate Tribunal. The learned Tribunal dismissed the appeal and upheld the judgment of the Labour Court vide Tribunal's judgment dated 27‑2‑1983.

3. The aforementioned judgments dated 29‑9‑1981 and 27‑2‑1983 passed respectively by the learned Labour Court No.3 Lahore 'at Ferozewala and the learned Punjab Labour Appellate Tribunal have been assailed through the present writ petition.

4. It has been contended on behalf of the petitioner‑Bank that the respondent in his capacity as Head Cashier and Officer Grade‑III performed supervisory duties and therefore he was not a workman within the meaning of section 2 (xxviii) of the Ordinance and hence he had no locus standi to file an application under section 25‑A of the Ordinance. It has next been urged that the grievance notice served by the respondent on the Bank was hopelessly time barred and so was the grievance petition as there was no justification to condone such a long inordinate delay. It has also been averred that the respondent could not avail of the plea that the departmental appeal filed by him was not decided because no appeal was in fact filed by the respondent challenging his order of dismissal before the competent Appellate authority. In this behalf it has been pleaded that the orders of dismissal of the respondent were made by the President of the petitioner‑Bank. The appeal could, therefore be filed before the Executive Board of Directors but the respondent actually filed appeal before the President who had ordered his dismissal. '

5. The contentions raised on behalf of the petitioner have been thoroughly considered and fully analysed. The learned Labour Court as also the learned Labour Appellate Tribunal have concluded as a result of parties' evidence that the respondent performed clerical duties and that there was nothing on the record to show that his monthly salary exceeded Rs.

800. The learned Labour Appellate Tribunal has referred to the roster of duties of employees of the Bank posted at the Civil Lines Branch, Gurjranwala. As per contents of that roster, the duties of the respondent were clerical in nature and not of supervisory nature. It is always a question of fact that if an employee is a workman or otherwise, such factual position is to be ascertained on the basis of evidence to be adduced by the parties. A high sounding designation has little relevancy in this behalf. In the case of Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others (1988 S C M R 1664) a Bank Manager drawing salary less than Rs.800, having no power to appoint, dismiss, charge‑sheet or grant leave to any employee nor authorised to spend money was held to be a workman within the meaning of the Ordinance. In the light of the evidence led by the parties before the learned Labour Court, no exception can be taken to the conclusion arrived at by the Tribunals below that in view of the nature of duties performed by the respondent, he happened to be a workman having locus standi to seek redress of his grievance under section 25‑A of the Ordinance.

6. Regarding the question of limitation it may be observed that the National Bank of Pakistan Staff Service Rules, 1973 contain a provision regarding departmental appeal. It is a common ground between the parties that the respondent within one month of his having been relieved of his duties pursuant to the order of his dismissal filed a departmental appeal challenging his dismissal. It has also been noticed that in the order of dismissal dated 6‑8‑78 (Annex. `G') it has not been indicated that the President of National Bank of Pakistan ordered the dismissal of the respondent. It has been indicated in this order that the competent authority of the Head Office of the Bank has in view of the gravity of misconduct ordered the dismissal of the respondent. The letter containing this order has been sent by the Vice‑President (Admn.) to the respondent and other concerned. The respondent in the circumstances was justified to prefer appeal against his dismissal before the President of the Bank. If the President was not competent to hear the appeal he should have returned the appeal to the respondent within reasonable time .for being presented before the competent Appellate authority. As already stated, the respondent sent two reminders to know about the fate of his appeal but without any response. Soon after his second reminder he served grievance notice on the employer and thereafter he filed a grievance petition.

7. In the circumstances detailed above, it cannot be said that the respondent is liable for unexplained inordinate delay in filing the grievance petition. In this view of the matter the orders passed by the learned Labour Court and the learned Appellate Tribunal condoning the delay, if any, in favour of the respondent are unexceptionable.

8. On merits too, the petitioner has no case. It has been found by the learned Labour Court as also the learned Appellate Tribunal that no case of misconduct was made out against the respondent and the witnesses examined during the enquiry by the Bank did not implicate the respondent. Concurrent finding on question of fact recorded by Tribunal of competent jurisdiction cannot and should not be interfered with by the High Court in exercise of writ jurisdiction in the absence of any inherent short‑coming such as misreading or non‑reading of evidence or disregard of established principles pronounced by the superior Courts. No such short‑coming has been urged in the present case.

9. For foregoing reasons, there is no merit in the present petition which is, therefore, dismissed leaving the parties to bear their own costs. H.B.T./N/278/ L Petition dismissed.