1989 PLP 1020 (PLC)

SALEEM AKHTAR, J.‑‑The respondent No. 2 was employed as a clerk in the Standard Bank Limited with effect from 22‑6‑1967. After nationalisation of Schedule Banks in the year 1974 Standard Bank Limited was merged with Habib Bank Limited and the respondent No. 2 became the employee of the Habib Bank Limited on terms and conditions of service and Rules and Regulations then applicable to Habib Bank Limited. At the time of merger the respondent No. 2 was a clerk and on 21‑9‑1976 he was promoted as an officer. On 6‑11‑1976 the respondent No. 2 was transferred to Gaji Khuwawar Branch, Larkana and posted as a manager of that Branch. By letter dated 11‑11‑1981 the respondent No. 2 was relieved of his duty and services were terminated under clause 6 of Rule and Regulations of the Bank with immediate effect with salary in lieu of notice. The respondent No. 2 made a representation dated 3‑12‑1981 against the termination of service which was rejected by the petitioner on 14‑12‑1981. The respondent No. 2 then filed a grievance petition under section 25‑A of I.R.O. on 10‑1‑1982. It seems that no reply was sent. On 15‑2‑1982 he filed an application under section 25 of I.R.O. before the Sind Labour Court No. 7 Sukkur. The Labour Court by its order dated 26‑9‑1983 held that being a Manager with the Bank, the respondent No. 3, was not a workmen and therefore the Court has no jurisdiction and the application was dismissed. The respondent No. 2 filed an appeal before the respondent No. 1 which by impugned order dated 16‑1‑1986 set aside the order of the Labour Court and directed the petitioner to reinstate the respondent No.

2. This order has been challenged by the petitioner. From the record it seems that the respondent No. 2 had made an allegation of victimisation by Zonal Office of the Bank and had stated that Zonal Chief of Larkana Zone wanted the respondent No. 2 to make false report against an officer of the Bank and on his refusal he was annoyed. It has been alleged that respondent No. 2 was transferred to Zonal Office on 30‑8‑1981. Mr. A.R. Akhtar, the learned counsel for the petitioner has contended that the respondent No. 1 has passed the impugned order without applying its mind and without determining the judicial fact whether the respondent No. 2 was a worker. It is now well‑settled that it is not the designation of a person but the nature of duties which he performs that should be taken into consideration for determining whether any employee is worker within the meaning of I.R.O. In this regard reference has been made to 1985 S C M R 1511. A perusal of the impugned order will show that the finding of the learned Labour Court that the respondent No. 2 is not a workman has not been fully and properly dealt with and considered by the respondent No.

1. It seems that only certain passing remarks have been made for holding that the respondent No. 2 was a workman. In this regard we would reproduce the following observation of the impugned order:‑‑ "The cancellation of the power of attorney was so summary which shows the mind of the banking high officials. The clerical job that he did upto the date of his termination and after his transfer from Gaji Khahawar Branch ought to be considered. The Standing Orders Ordinance, 1968, has the upper hand over the Rules and Regulations of the bank and the Rule No. 6 of Habib Bank Rules, and Regulations. What agitates the mind of a judicial officer is that the appellant has served as a clerk from 1967 and then promoted and then he was holding an important job that of a manager for full 14 years and he should have been so summarily terminated without hearing or giving him the chance to be heard, against the cannons of natural justice." This is the only relevant observation with regard to the crucial question which required consideration and on which the appeal was to be decided. The observation is contradictory inasmuch as in the opening line it has been observed that clerical job was performed upto the date of termination but while concluding it has been observed that the respondent No. 2 was holding important job of a manager for full 14 years. From the allegations and counter‑allegations the main question for consideration was whether the respondent No. 2 though designated as manager was performing clerical duties at the time his service was terminated. This aspect of the case has completely been over‑looked and ignored by the respondent No.

2. It seems that it has proceeded mainly on equitable and sympathetical considerations. We, therefore, declare that the impugned order has been passed is without lawful authority. We remand the case to the respondent No. 1 for proper and due consideration of the matter and pass a fresh order after hearing the parties. A.A./H‑159/K???????????????????????????????????????????????????????????????????????????????????? Case remanded.