1990 PLP 280 (PLC)

"Section 25‑A, I.R.O. read with sections 5 and 14 Limitation Act‑‑ Grievance petition‑‑Limitation‑‑Condonation of delay‑‑Bank employee seeking remedy against dismissal from service, filing civil suit under wrong legal advice and on objection regarding jurisdiction withdrawing same‑‑Filing departmental appeal soon after withdrawing civil suit‑‑Departmental appeal not decided‑‑Grievance notice served about 5 months after presenting departmental appeal and grievance petition filed 24 days thereafter‑‑Departmental appeal having not been decided, petitioner in circumstances, held, justified in waiting for decision and serving grievance notice after elapse of sufficient time‑ Labour Court, in circumstances, held, rightly condoned time spent in wrong forum and petition, held, within time." In the fourth case re: National Bank of Pakistan, Karachi v. Idris Ahmed Raja reported at 1985 P L C 468 my Lord Mr. Justice ZA. Channa, Chairman of Labour Appellate Tribunal of Sind was pleased to observe:‑‑ "Section 25‑A of I.R.O.‑‑Grievance notice and petition‑‑Limitation‑‑Bank employee's case‑‑Service Rules providing right of appeal to higher authorities against the dismissal order‑‑Departmental appeal filed after 9 days of date of dismissal order‑‑Appeal fetching no reply Grievance petition filed‑‑Grievance of petitioner, in circumstances held, would be not only against original order of dismissal but also in respect of failure of authority to take decision on appeal‑‑Petitioner, held , in circumstances, entitled to wait for a reasonable time for decision on his appeal before taking further proceeding‑‑Grievance thus arose when petitioner is reasonably deemed to have come to such conclusion after giving sufficient time to bank authorities to decide his appeal‑‑6 months' time, held reasonable." Such view was also held by their Lordships of the Hon'ble Supreme Court in a case re: Rashid Ahmed v The State reported at P L D 1972 Supreme Court 271:‑‑ In another case re‑Inayatullah v National Bank of Pakistan reported as 1983 P L C 392, the Hon'ble Labour Appellate Tribunal was pleased to hold:‑‑ Section 25‑A and section 38, IRO‑‑Grievance notice and petition‑ Limitation to start from date of cause of grievance coming to notice of petitioner‑‑Departmental appeal rejected‑‑Rejection intimation conveyed to petitioner subsequently through his immediate superior‑ Labour Court rejecting grievance petition as time‑barred counting limitation from fate of order of rejecting appeal, and not from date of his communication to petitioner according to which nice and petition were within limitation period‑‑Order of Labour Court, in circumstances, set aside by the Appellate Tribunal and case remanded for decision on merits." In the present case the Bank/Respondent replied and informed the applicant on 20‑5‑1984 that the departmental appeal filed by the applicant was rejected. The applicant sent the grievance notice on 7‑6‑1984 and then filed the case on 23‑7‑1984. Thus, in view of the above quoted law it can be legally said that the grievance petition filed by the applicant is within time and not time‑barred. The applicant has claimed that he is a workman and can seek redress under the Labour Laws. The respondent Bank has pleaded that he is not the workman because when he was terminated, he was designated as Grade‑2 Officer. Such controversy has necessitated the Court to peep inside the evidence minutely and to determine whether the applicant can legally be termed a workman or not. The applicant in his affidavit‑in‑evidence has specifically given the details of his work which he used to do in the days when he was terminated. He has stated those jobs to be as under:‑‑ (1) Postings of L/C. Particulars in the L/C Register. (2) Postings of particulars in PAD/Register. (3) Postings of particulars in PIDBC/Register. (4) Postings of particulars in L/C. Liability/Margin and PAD. Liability/Margin Register. (5) Postings of various particulars and vouchers etc in IJM Register. (6) Postings and opening of L/C. particulars on L/C Files covers. (7) Postings of various particulars on the reverse of the Import Licence and License File Covers. (8) Preparations of various kinds of vouchers, such as LC. Liability, LC Margin, LC. Commission Postages, Cable Charges Vouchers, etc. (9) Negotiations of Import documents, preparation of PAD lodgement and retirement vouchers etc. (10) Preparation of PIDEC. Lodgement and retirement vouchers. (11) Serially arranging LC's and Import Licencses files in filing cabinets. (12) Preparation of Fate Memos at the time of lodgement and retirement of PAD's aid FIDEC's bills etc. (13) Typing of LC's cables. (14) Typing of LC's cable advices and LC's Air mail advises. (15) Typing of telegrams of LC's amendments by cables. (16) Typing of LC's amendment advices both by Cables and Air Mails. (17) Typing of letters relating to LC's, PAD's LIM's and Import Licenses, etc. (18) Preparation of intimatory letters to the Importers at the time of PAD's lodgement of documents and to issue from time to time various reminders to the importers, where necessary. (19) Preparation of various heads office, Zonal office and State Bank of Pakistan fortnightly and monthly returns. (20) Settlement of reimbursement claims of foreign correspondents, reconciliaties of exchange transactions with head office foreign exchange reconciliation department. In cross‑examination the applicant has stated clearly that bank issued power of attorney to him but with no power. He has also stated therein that no clerk worked with him when he was posted at: Talpur Road Branch, Karachi. He denied the question that he did not work as Typist during the days of his posting in Foreign Exchange Branch. In such circumstances it became obligatory on part of the respondent Bank to produce evidence that the applicant exercised the powers under the power of attorney and the applicant never performed the duties of a typist or clerk during the days when he was designated as Grade‑II Officer in the Foreign Exchange Branch during the days when he was terminated. The respondents have pleaded mainly three points that applicant called himself as Officer in the Bank Appeal, secondly did not do any typing work when he was officer and if did so he did it as sundry job and thirdly the applicant held power of attorney of the bank and therefore due to these three reasons the applicant cannot be termed as workman. So far the first point is concerned it is not a material point because an Officer who is designated as an officer would naturally mention himself as an officer while preferring departmental appeal, irrespective of the fact as to what duties he used to perform in those days. It is the duty which the applicant used to perform, that can clothe him legally with the rights of a workman and not the designation. It is the duties performed by the employee which legally clothes him with the rights of a workman. If the Employer employs an Engineer with the designation of an Engineer but obtains the duties of a Mason from such an Engineer then the employee performing such duties cannot be legally deprived of the right of a workman only on the pretext that he is designated by his Employer to be an Engineer or he calls himself an Engineer anywhere. This point is to be determined after taking into consideration the evidence of the respondent also. The respondents/Bank led the evidence of two witnesses namely Amanullah Khan V.P. and Amir Hussain Grade No. l Officer of the respondents Bank. The truth has trickled down right from the horse's mouth, as the witness of respondent Bank namely Amir Hussain has vomitted out facts fairly in his cross‑examination which distinctly depict that the applicant performed manual and clerical work, typed himself and did not exercise power under power of attorney and had no powers of hire and fire. In the cross‑examination this witness of the respondents states that he has not produced any letter written by the applicant to any customer on behalf of the bank, secondly he has not produced any bill of lading which applicant might have executed on behalf of the Bank, thirdly he does not remember whether applicant exercised power to grant leave to any subordinate officer, fourthly that applicant was not empowered to give increments to any employee, fifthly that he has not given names of officers who used to work under applicant, sixthly that applicant was not empowered to terminate services of any employee, seventhly most of the entries used to be daily posted by the applicant, eighthly that he has not produced any letter written by the applicant as authority letter to anybody on behalf of bank, ninthly that it is correct that he has not given name of any typist working under applicant, tenthly that he has not filed any document to corroborate the contents of his affidavit. In the circumstances of the case; in view of the evidence of the applicant it was obligatory on the part of the respondents to establish that the applicant exercised powers under the power of attorney of Bank and the applicant never performed any clerical duty. The above discussion distinctly shows that the respondent have failed to discharge such duties. Rather it can be said that the above said evidence of the respondents witness namely Amir Hussain has corroborated the contention of the applicant to be true. The learned counsel for the respondent has referred me to an authority reported in 1983 P L C 454, but in my humble opinion he cannot solicit the support from the said authority as it rather supports the case of the applicant, instead of supporting the case of respondents. Thus, in view of the evidence on record I deem it proper to hold that the applicant falls within the purview of definition of a workman and is legally clothed with the right of seeking redress under the Labour Laws. Now I attempt to embark upon assessing the third material point in this case which is regarding the domestic enquiry held by the officials of the respondents bank against the applicant whereby allegedly the applicant was found by them to be guilty of the misconduct. This point also cannot be solved without pondering over the peculiar evidence led by the respondents. The respondents have examined Mr. Amanullah Khan as their witness. He is the Enquiry Officer and has stated in the cross‑examination that he completed the enquiry on 17‑5‑1981 against the applicant. The perusal of the enquiry report dated 30‑1‑1982, produced by him shows that he started the enquiry on 17‑5‑1981 at 1‑40 p.m. at Zonal Office and completed the enquiry on same day i.e. 17‑5‑1981 at 6‑45 p.m. and he examined Mr. Muhammad Alam A.V.P. and also the accused (applicant Dildar Ali). This procedure of starting the enquiry against an accused and completing the said enquiry hastily on the same day, within 5 hours on the same afternoon reflects reasonably that the Enquiry Officer cherished prejudice against the applicant accused. A man of common prudence can possibly understand easily that an accused cannot be excepted to have been allowed reasonable opportunity to defend himself or to lead the evidence possibly of any person as defence witness. The other interesting aspect of this enquiry is that this talented Enquiry Officer hurriedly completed the enquiry and conducted it within one afternoon but deemed it proper to submit the report on 30th January, 1982, only seven months after completion of the same enquiry for reasons best known to him which he has failed to explain even in the enquiry report. This also shows that what degree of prejudice such Enquiry Officer could possess against such accused. The third material aspect of this enquiry is that this Enquiry Officer had admitted in the cross‑examination that the State Bank Circulars which were allegedly violated by the applicant were not produced before him in the proceeding. An Enquiry Officer who conducts an enquiry against an accused based on the violation of the circulars committed by the accused had no such circulars before him while conducting the said enquiry against the accused. When the circulars were not before the Enquiry Officer then it cannot be understood as to how he evaluated that such circulars were violated by the accused applicant and such violation amounted to the misconduct attracting such penal provision of terminating the services of the applicant. The fourth aspect of his enquiry is that he has rather admitted that the applicant did not commit any folly as the Enquiry Officer has stated in his cross‑examination that the bank witness Muhammad Alam stated in the enquiry before him that applicant accused followed instructions of the Manager. In the routine procedure of the banks usually an Officer is expected to follow the instructions of the Manager and when that Officer carries out the instructions of the Manager, it cannot be said that such officer commits any violation. The responsibility of any deviation from the rules p then devolves on such Manager and not on the officer working under the said Manager. The fifth interesting aspect of this enquiry is that the learned Enquiry Officer examined a material witness the Zonal Head of that Area in this enquiry in absence of the applicant, but he did not feel necessity of examining the Manager under whom the applicant was working and whose instructions the applicant carried out. Mr. Amanullah Khan the learned Enquiry Officer has stated in the cross‑examination that it is correct to suggest that the Manager of the Branch was not examined as witness in the proceedings against this accused official Dildar Ah. In the cross‑examination he has also stated that he examined Zonal Head as witness in the absence of the applicant. This also shows that applicant was deprived of the opportunity of cross‑examining such Zonal Head examined as prosecution witness against him. In a case Pasroor Sugar Mills Ltd. v. Abdul Qadeer reported at 1988 P L C 246 the Hon'ble Labour Appellate Tribunal was pleased to hold:‑ "Domestic enquiry‑‑Cross‑examination of witnesses by employee under enquiry, essential‑‑Witness not allowed to be cross‑examined‑‑Held, amounts to refusal of defence opportunity." The learned counsel for the respondents bank has failed to point out or to produce any proof that any second show‑cause notice was issued to this IF applicant accused before penalising him and terminating his services. In a case reported as 1980 P L C 816, my Lord Mr. Justice ZA. Channa, Chairman of the Hon'ble Sind Labour Appellate Tribunal was pleased to observe:‑‑ "Section 25‑A of I.R.O.‑‑Industrial dispute‑‑Termination for misconduct ‑Domestic enquiry held‑‑Penalty imposed without second show‑cause notice‑‑Order, in circumstances, held , not sustainable for want of second show‑cause notice." In the cross‑examination the learned Enquiry Officer Mr. Amanullah Khan has admitted that it is correct to suggest that he had put some questions to the applicant/accused and he has mentioned those questions on page No. 5 of the enquiry report. This procedure adopted by the Enquiry Officer of putting searching questions to the accused reflects that he was prejudiced against the applicant. In a case re‑Karachi Shipyard Engineering Works Ltd. v. Abdul Ghafoor reported in 1980 P L C 688 my Lord Mr. Justice ZA. Channa the Chairman of the Hon'ble Sind Labour Appellate Tribunal was pleased to observe:‑‑ "Industrial disputes‑‑Domestic enquiry‑‑Searching questions put to accused and accused cross‑examined by Enquiry Officer even prior to production of prosecution evidence‑‑Raises presumption of Enquiry Officer being highly prejudiced against the accused." Thus, it can be legally said that the Enquiry Officer acted arbitrarily and reflecting reasonably that he was highly prejudiced against the accused. The above discussion disclosed distinctly that the enquiry conducted against the accused applicant was not conducted in accordance with law, and such enquiry cannot be deemed sustainable in the eyes of law. The penalty levelled against the applicant on basis of such enquiry also cannot be deemed sustainable in the eyes of law. The enquiry transpires to be illegal and invalid therefore the termination of the services of the applicant based on such illegal enquiry is also illegal and invalid in the eyes of law. In such circumstances I deem it proper and just to order that the applicant be reinstated by the respondents Bank within one month of this order with 70% of back benefits. It is well‑settled law that when it transpires that the termination of the services of a workman is illegal then he stands entitled to the back benefits. In case of Allied Bank of Pakistan Ltd. v. Tariq Mehmood Qamar reported as 1980 P L C 106 the Hon'ble Labour Appellate Tribunal was pleased to hold:‑‑ "(d)‑‑Industrial dispute‑‑Reinstatement‑‑Back benefits‑‑Termination found as illegal‑‑Workman though earned livelihood during part of intervening period, yet, held, entitled to back benefits." Undisputedly the applicant must have engaged himself in earning of his livelihood by some means during the period he remained unemployed, but it cannot be said that he was engaged in an adequate profession earning adequate earnings which could deprive him of claiming the back benefits. A man of common prudence can easily understand that a bank employee awaiting the fate of his case, being unemployed never gets an adequate job but is forced to search for any mean job for keeping himself alive. If a Bank employee forced un employed, during that period engages himself in selling candies on the street or doing any similar job then it cannot be said that he was having an adequate job which could legally deprive him of claiming the back benefits. It is quite true that the award of the back benefits is not to be given to the workman, deeming it as a punishment to the employee, but it is actually true that it has to be awarded. as compensation to a workman who has remained on forced unemployment facing the difficulties of life for such period. A.E./1318/Lb. S Application accepted.