1984 PLP 1305 (PLC)

1975 P L C 749 rel. M.G. Saadullah Mumtaz for Petitioner. Ataur Rehman Sheikh for Respondent. It has been alleged by the petitioner that he was employed as an officer Grade-1I with the respondent Bank about 15 years prior to the institution of the petition. His services have been terminated after his blotless record of 15 years. According to him his main duties were of clerical nature and at the time of his dismissal from service he was not having administrative powers, hence he was a workman within the meaning of definition given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The petitioner was working as a Manager of Sohawar branch of respondent Bank, when he was issued a charge-sheet, dated 1st October, 1980 by the Vice-President of the respondent. He sub mitted his reply on 2nd October, 1980. The competent authority was fully satisfied with the explanation as such the Vice-President recommended only calling for the explanation of the petitioner for negligence and carelessness and issuance of a strict letter of warning and shifting him from Sohawar branch. Thereafter Ch. Muhammad Anwar was appointed Inquiry Officer who conducted inquiry on 10th December, 1980. The petitioner was not allowed to cross-examine. Even the Inquiry Officer who conducted inquiry held that the charge relating to misappropriation has not been proved against him however he held him guilty of charge No. 3 on admission of the petitioner, yet he remarked that both ledgers stood balanced on the date of inspection. The petitioner was issued the final show-cause notice on 3rd of January, 1982. Before issuing final show-cause notice, the petitioner was transferred from Sohawar to Dina. The Vice-President dismissed the peti tioner vide his letter, dated 4th February, 1982 on the assumption that all the charges framed against the petitioner stood proved. Thereafter the petitioner addressed an appeal to the President of the respondent bank on 25th February, 1982. Reminder was also issued on 25th April, 1982 how ever, no decision has been taken so far. The petitioner also served a grievance notice on the respondent through registered post on 15th Septem ber, 1982. The petitioner fell ill. His relatives instituted the writ petition before the Honourable High Court which was dismissed in limine on 10th April, 1983 with the remarks that the petitioner, if so legally advised should move the civil Court for such relief. It has been further alleged that the petitioner was pursuing wrong remedy with bona fide mistake and it was done during the ailment of the petitioner. The right of departmental appeal was invoked but no decision has been taken so far, as such, the appeal of the petitioner is deemed to be still pending. The co-accused Sultan Maqsood Kiyani Cashier also invoked the jurisdiction of this Court and he was reinstated with back benefits. The petitioner has challenged his dis missal on the following grounds :- (i) That the charges framed against the petitioner do not constitute misconduct, at the most, the petitioner could be held guilty of negligence or violation of rules, which did not warrant the major penalty of dismissal. (ii) That Vice-President of the bank even did not consider proper to charge-sheet the petitioner and he was of the view that a strict letter of warning be issued to him for his negligence and careless ness. The Vice-President was compelled by the higher authorities to charge-sheet him, as such the employer of the petitioner was not allowed to use his independent mind. (iii) The inquiry against the petitioner was conducted without affording him opportunity of cross-examining the prosecuting witnesses and to produce his defence, so it was in violation of principles of natural justice. (iv) The Inquiry Officer did not hold the petitioner guilty of the main charge of misappropriation, whereas the dismissal order was issued on the assumption that all the three charges stood proved. Before awarding punishment of dismissal, the petitioner was transferred from the post of Branch Manager to the rank of Sub-Manager at Dina as a measure of punishment, as such the action of the res pondent under which the petitioner was dismissed falls within the mischief of double jeopardy." (v) No willful damage or loss to the respondent was caused by any action of the petitioner, therefore, awarding of extreme punishment of dismissal is not warranted by law. (vi) The petitioner had preferred an appeal to the President of the bank. No decision has been intimated to him so far. The appeal is, therefore, deemed to be still pending.

2. The petition was resisted by the respondent inter alia it was urged that the petitioner was working as a Manager and performing purely managerial and administrative nature. By dint of the duties and salary drawn, the petitioner falls outside the scope of definition of workman as laid down in the Industrial Relations Ordinance, as such the petition falls outside the jurisdiction of this Court and that the petition is hopelessly time barred. The remaining allegations were denied. The parties led their evidence. The petitioner himself appeared as P.W.

1. According to him he had served the respondent Bank for fifteen years in different capacities such as Cashier, Officer Grades II and III. At the time of dismissal he was serving as Grade-II officer in Dina Branch. He was given charge-sheet and inquiry was also conducted against him. He also produced Medical Certificates Exhs. P. 21 to P.

23. It was during his ailment that his relatives filed a writ petition in the High Court, which was dismissed. As against it the respondent examined Muhammad Anwar as R.W. I, who had conducted inquiry Exh. R. I. He stated that the petitioner was allowed to cross examine on each allegation, but he submitted his replies and filed some documents. Shabir Ahmad appeared as R. W.

2. He was working as a Manager of Dina branch. The petitioner was transferred to his branch from Sohawa. Sohawa branch is a smaller branch comprising of a Cashier, Manager and one Guard, While Dina branch is bigger comprising of 4 Cashiers, one Assistant, three Officers, three Guards and one Manager. He also stated that the nature of the duties of the petitioner was clerical. He also admitted that no designation of Sub-Manager existed in his branch but the petitioner was posted as Sub-Manager. He also conceded that the entire typing work was being done by the petitioner in the branch and he used to draft and type all the correspondence, and used to sign the same.

3. I have heard the learned counsel for the parties and have also gone through the record placed on the file. The learned counsel for the respondent has mainly resisted the petition on the following two points :-- (i) That the petitioner does not come within the definition o workman. (ii) That the petition is hopelessly time-barred. It has been argued by the learned counsel for the petitioner that the petitioner was an Officer Grade-II and was posted to work as Branch Manager This was a small branch and was having one Cashier and one Guard only He had no administrative powers and could not grant even leave to the staff It is well-settled principle of law that the amount of emoluments and designation are not the material factors. The determining factor is "the nature of duties" of an employee. The onus to prove that an employee is not a workman is always on the employer as held in 1983 P L C 1018. In 1983 P L C 862 it was held that the designation at the time of dismissal is relevant and in view of this 2nd Officer of the National Bank of Pakistan was held as a workman. The respondent's own witness Shabir Ahmad R. W. 2 has stated in cross-examination that the nature of duties of the petitioner was clerical. He also admitted that the entire typing work was done by the petitioner. He used to draft and type all the correspondence. The duty lists Exhs. P. 1 and P. 2 also show that the nature of work of the petitioner was mainly clerical and he was not having any administrative powers. The learned counsel for the petitioner has drawn my attention to the decision of his Lordship Mr. Justice (Rtd.) Sardar Abdul Ghafoor Khan Lodhi in case reported as 1983 P L C 1107, wherein the learned Tribunal has held the Branch Manager of the same bank as a workman. As against it the learned counsel for the respondent has relied upon a case decided by the Supreme Court Slah-ud Din Maqsood v. Pakistan and 3 others, dated 12th August, 1975 but the facts of that case were different. It is established from the evidence that the petitioner was holding, the clerical job at the time of his dismissal, so he comes within the definition of a workman. Hence the objection raised by the learned counsel for the respondent stands repelled.

4. The other serious objection of the respondent is that the petition is hopelessly barred by time. The petitioner was dismissed from service on 4th February, 1982 vide order Exh. P.

12. He filed a departmental appeal on 23rd February, 1982 vide Exh. P.

13. He reminded the Appellate Authority vide application, dated 24th April, 1982 Exh. P.

16. It has been held in 1970 P L C 291 that dismissed worker making departmental appeal and the several reminders, thereafter filing petition before Court after over two years of dismissal, explanation of delay, in circumstances, held, satisfactory. In 1983 P L C 882 it was held that cause of action arises on rejection of departmental appeal if provided and availed of. It has C also been held in N L R 1983 TD 284 that the time spent in waiting for the decision of-appeal should be excluded. In P L J 1975 Tr. C (Lab.) 199 it was held that the time spend by workman in the representations with management with no decision does not run against him. In the instant case the petitioner served the grievance notice on 15th September, 1982 and after service of this notice he was entitled to file .the petition within 21 months up to 30th November, 1982 but he fell sick on 28th November, 1982 and remained under treatment up to 31st May, 1983. The petition has been filed immediately after recovering from illness. He has also placed on record Medical certificates Exhs. P. 21 to P, 23, Moreover, the departmental appeal filed by the petitioner has not been decided so far and no intimation has been communicated to him hence it shall be deemed to be pending. It has been repeatedly held in labour matters that the question of limitation is p not applicable in cases of void impugned order, the reliance has been placed upon 1978 P L C 175 and 1978 P L C 164.

5. So, the main question to be seen is as to whether the impugned order of awarding the major penalty of dismissal to the petitioner is sustainable in the eye of law. The record shows that the procedure adopted. by the respondent and the Inquiry Officer for dismissal of the petitioner _ is not warranted by law. Exh. P. 3 is a letter on behalf of the Vice-President, dated 3rd September, 1980. In this letter the Vice-President not only exonerated the petitioner from charge of misappropriation but lauded his efforts whereby he succeeded in increasing the deposits of the bank and enhancing their reputation. It was recommend ed by him that only a strict letter of warning be issued against the petitioner. The charge-sheet Exh. P. 4 shows that the first charge was of misappropria tion. The second charge was about the fictitious entry and the third charge was about the ledger that it remained unbalanced from 31st May, 1980 to 26th August, 1980. The Inquiry Officer came to the conclusion vide his report Exh. P. 7 on charge No. 1 that the charge of misappropriation was not proved. On charge No. 2 he came to the conclusion that the peti tioner had only committed a mistake to accommodate a customer. On charge No. 3 it was held that both the ledgers stood balanced. The final show-cause notice Exh. P. 10 is misconceived. According to this notice the charges levelled against the petitioner were established which is quite con tradictory to the inquiry report which does not positively speak that the charges have been established. Exh. P. 12 is the letter of dismissal. It shows that the charges have been proved so the petitioner was liable to be dismissed. The procedure in which 'the inquiry was conducted shows that the Inquiry Officer was ignorant of the manner of inquiry. The statements of the witnesses were not allowed to be cross-examined. They were not recorded properly. The inquiry report was not against the petitioner on the main allegation. It has been held in 1975 P L C 749 that if the domestic inquiry is held without giving the accused opportunity of cross-examination, it is not a fair inquiry. The co-accused Sultan Maqsood Kiyani was dismissed but E he has been reinstated vide judgment Exh. P.

24. It also shows that the allegations were not established.

6. For the foregoing reasons the petition is accepted and the peti tioner is reinstated in service with all back benefits. A. E. Petition accepted.