1988 PLP 941 (PLC)

Malik Nasrullah Nasir respondent No. 3 (hereinafter ‑referred to as the respondent) was employed as Grade III Officer in Habib Bank Limited, the petitioner herein, and was posted in Chuharkana Branch of the petitioner bank at the relevant time.

2. On 1‑3‑1983, the services of the respondent were terminated (Annexure A). The order purported to have been made under rule 15 of the Staff Service Rules.

3. After service of grievance notice, the respondent filed grievance petition before the learned Punjab Labour Court No. 3, 1‑crozewala. Challenging the order of his termination from service. The grievance petition was, of course, resisted the Bank. It was contended on behalf of the Bank that the respondent benign Grade III officer drawing monthly salary of more than Rs. 800 could not he considered as a workman for the purpose of Industrial Relations Ordinance (hereinafter referred to as the Ordinance) and, therefore, had no locus standi the file an application under section 25‑A of the Ordinance. It was also urged that the services of the respondent were dispensed with by way of termination simpliciter in accordance with the provisions of the Staff Service Rules and such termination could not be challenged before the Labour Court. After hearing the parties and after recording their evidence, the learned Labour Court came to the conclusion that in the light of the duties which were being performed by the respondent while in service he could not be regarded as an employer and he was workman for all intents and purposes. Thcrcfore, the grievance petition filed by him under section 25‑A of the Ordinance was maintainable. It was also found that actually this was not a case of termination simplicitor. He was terminated because previously he remained ‑involved in murder case in which he was ultimately acquitted. His brother had failed complaint against an officer of the bank. Consequently vide order dated 17‑11 1983, the learned Labour Court ordered the reinstatement of the respondent with back benefits. The petitioner bank preferred an. appeal before the learned Appellate Tribunal which failed and was dismissed on 16‑6‑1984.

4. The aforementioned orders dated 17‑I1‑1983 and 16‑6‑1984, passed respectively by the learned Labour Court and the learned Appellate Tribunal have been assailed through the under consideration writ petition. It was mainly urged by the petitioner that terms and conditions of service of the bank employees were governed by the award of the Wage Commission which was to be considered as an award of the National Industrial Relations Commission by virtue of provisions of section 38 of the Ordinance and hence such an award could not be enforced through an application under section 25‑A of the Ordinance before the learned Labour Court. Hence the jurisdiction of the Labour Court and the Labour Appellate Tribunal was challenged. The objection regarding lack of jurisdiction on the part of the Labour Court and the learned Labour Appellate Tribunal found favour with a Division Bench of this Court and the said learned Division Bench vide judgment dated 10‑4‑1985, passed in Writ Petition No. 719 of 1982, allowed the present writ petition as also many other writ petitions in which objection regarding jurisdiction of the Labour Courts was raised. The employees whose reinstatement by the Labour Courts and the Labour Appellate Tribunal was thus set aside by the learned Division Bench of this Court went in appeals before the august Supreme Court of Pakistan. The learned Supreme Court after hearing the parties came to the conclusion that the finding of the learned Division Bench of this Court that the award of the Wage Commission could not be enforced through an application under section 25‑A of the Ordinance was not sustainable. It was ruled that even the award by the Wage Commission, though not strictly falling within the ambit of the expression `award' as defined in section 2 of the Ordinance could be enforced under section 25‑A of the Ordinance as the provisions of the said section speak of `any award'. The A Supreme Court thus allowed the appeal of the respondent as also the other employees of the banks and remanded the case to this Court for deciding the I other issues involved in this case.

5. The only other issue involved in the present case in regard to which the learned counsel for the petitioner‑bank has addressed arguments is that the respondent has been in the service of the petitioner‑bank as Grade III Officer drawing salary exceeding Rs. 800 p.m. and in his favour power of attorney had also been executed by the bank. He could not, therefore, be regarded as a workman having a locus standi to file an application under section 25‑A of the Ordinance. It was thus canvassed that the respondent was an employer and not a workman. In this behalf reference has been invited to the statement of Nawazish Ali Manager R.W. 2 wherein he stated that the respondent was incharge of C.D. Branch and his duties were to pass cheques and to scrutinize the ledger and to initial the receipts and payment book. He further deposed that cashiers and a clerk worked under him. This witness has, however admitted that a second officer, namely, Abdul Majid Butt was also employed in the same branch in which the respondent served as Grade III Officer. He conceded that payment, receipts and balance books used to be counter‑checked and thereafter the respondent affixed his signatures. The respondent himself appearing as P W 1 before the Labour Court testified that his duties were to make entries in the ledger, passing of cheques and preparing of other monthly statements. He disclosed that he could not transfer an employee and he was not performing any managerial or supervisory functions.

6. It has been urged that as an holder of power of attorney, the respondent was employer for all intents and purposes. It has not been denied that power of attorney stood executed in favour of the respondent, but there is nothing on the record to suggest that on any occasion the respondent ever exercised powers as an attorney or agent of the petitioner bank. Cases of Abdur Rehman v Muslin, Commercial Bank Ltd and two others 1980 P L C 597, Ejaz Hussain Malik v. Habib Bank Ltd. 1980 P L C 650 and Muhammad Tariq Saeed Hashmi v Habib Bank Ltd and 3 others 1985 P L C 810 have been cited on behalf of the petitioner‑bank. In these cases it has been held by the Labour Appellate Tribunals that mere fact that an employee had no powers of hire and fire would not take him out of category of officer. In Ghandio‑ Munir Ahmad v. Messers Investment Corporation of Pakistan 1983 P L C 103, it has been held by the Labour Appellate Tribunal Sind that mere designation does not bar a person from claiming to be a workman. It has further been found that Grade III Officers employed in Banks and Financial Institutions are workmen in view of nature of their duties.

7. In the circumstances of the present case, the respondent performed clerical duties. He had no powers of hire and fire. He could not sanction leave to any employee of the bank. In view of nature of his duties, he is to be treated as workman and not an officer merely because he was designated as Grade III Officer. Power of attorney having been executed in his favour will not make any difference either. It may also be pointed out that Wage Commission Award applies to the workmen employed in Nationalized Banks and other financial institutions. The petitioner bank challenged the jurisdiction of the Labour Court e and the Labour Appellate Tribunal on the ground that as the terms and conditions of service of the respondent were governed by the Wage Commission Award, therefore, he could seek remedy before the National Industrial Relations Commission and not before the Labour Court. The petitioner now cannot be permitted to turn round and say that the respondent was not a workman but an officer. In Nasir Muhammad Khan v. Fazal and others P L D 1960 (W.P.) Lah. 434, it was held that if the defendant has once abandoned the issue and conceded that decree be passed in favour of the plaintiff after ascertaining the market value of the property, he could not raise the issue which he has once are adorned. Similarly in Nawab Syed Raunaq Ali etc. v. Chief Sediment commissioner and others P L D 1971 Supreme Court 236, it was ruled that an order in the nature of writ of certiorari or mandamus was a discretionary order. Its object was to foster justice and right a wrong. It was further held that if the order sought to he set aside does not work injustice to any party, then the extraordinary 1urisdiction ought not to be allowed to be invoked. In Dervish Khan v. Muhammad Sher Khan and others 1986 S C M R 352, it was held that respondent aiming himself created a situation (whereby no female vote was cast) could not be allowed to make a grievance of same fact in support of his challenge to election before Election Tribunal. It was further ruled that such fact also disentitled him to equitable remedy in constitutional jurisdiction before Fight Court. 1t was further ruled that a writ in the nature of certiorari in exercise of superintending control over inferior Courts was not a matter of right but one of discretion.

8. In the circumstances of the present case, as already observed, the petitioner bank itself took up the plea that the respondent was governed by the Wage Commission Award which admittedly is applicable to workmen, cannot now be permitted to say that he happened to be an officer and not a workman.

9. No other issue has been pressed during the course of arguments by the learned counsel for the petitioner.

10. In the light of the foregoing discussion, there is no merit in the under consideration constitutional petition which, therefore, must fail and is hereby dismissed, but there shall be no order as to costs. S.Q./H‑77/L Petition dismissed.