2000 PLP 564 (PLC)

3. The respondent feeling aggrieved of the aforesaid order of dismissal, filed a departmental appeal before the Chairman, Disciplinary Review Committee of the Bank (Exh.P W.1/8) but the same was rejected on 21‑11‑1994 vide Exh.P W.1/9. The respondent served a grievance notice or the employer as required under section 25‑A (1) of the Industrial Relations Ordinance. 1969 (to be called the Ordinance hereinafter) vide Exh.P.W.l/4 which also bore no fruitful result vide Exh.P.W.I/11 and thereafter he filed grievance petition before the Labour Court, Mardan under section 25‑A of the Ordinance and prayed that the dismissal order of the appellant be set aside being illegal and without lawful authority and he be reinstated in service with full back wages arid benefits.

4. The Bank contested the petition both on the legal and factual premises. The learned Labour Court, after trial, partially accepted the grievance petition, set aside the dismissal order and reinstated the respondent in service with back., wages and benefits. However, the learned Court substituted the punishment with minor penalty of withholding three Annual Increments from 1‑1‑1994 vide the impugned order, dated 24‑6‑1998.

5. Both the parties being aggrieved by the aforesaid order of the learned Labour Court have preferred separate appeals in this Tribunal wherein the appellant bank has prayed for setting aside the impugned order while the respondent has sought for the restoration of the three Annual Increments.

6. Learned counsel for the parties were heard in support of their respective view‑points and record was also perused in the light of their submissions.

7. It was argued by the learned counsel for the appellant bank that the respondent was working as an Officer of Grade‑III at the time of his dismissal from service and was drawing salary of Rs.5,010 per month, besides other allowances and was dismissed on account of misconduct which did not constitute an industrial dispute, therefore, he could not approach the Labour Court through a grievance petition under section 25‑A of the Ordinance for the redressal of his grievance. Learned counsel further submitted that the only remedy which was available to him against the dismissal order was to approach the Labour Court under the provisions of Standing Order 12(3) of the Standing Orders Ordinance, 1968 but he has failed to do so, therefore, his grievance petition was not legally maintainable. Reliance wag placed on 1998 SCMR 644 and 1999 SCMR

373. It was next argued that fair arid impartial enquiry was constituted against the respondent and the charge of misconduct was duly proved against him in the said enquiry, therefore, he was rightly dismissed from service by the appellant bank.

8. On the other hand learned counsel for the respondent vehemently opposed the plea of the learned counsel for the appellant bank and submitted that the respondent was doing manual and clerical works. He had no power to hire and fire nor he was supervising the work of other employees of the Bank, therefore he was a workman and his grievance petition was rightly accepted by the Labour Court to this extent. It was next argued that the entries in the register were made inadvertently on account of clerical mistake and no loss has occurred either to the Bank or to the account holder, therefore,, imposition of major penalty of dismissing the respondent service was riot justified. He further submitted that domestic enquiry was constituted to enquire into the allegation levelled against the respondent but the charge of misconduct was not proved against him beyond reasonable doubt, despite it he was dismissed from service by an incompetent authority who had no power under the rules to do so. Therefore, the impugned order of dismissal was rightly, set aside 'by the learned trial Court. Learned counsel further argued that the respondent was an active member of the workers' Union a registered C.B.A. of the appellant Bank and he was victimized on account of his lawful trade union activities.

9. It is evident from the record that the respondent was dismissed from service on account of misconduct and not in connection with or in consequence of industrial dispute, and his dismissal from service is otherwise than in connection with or in consequence of industrial dispute, therefore, he could not seek redress under section 25‑A of Ordinance but under Standing Order 12(3) provided he proved to be a workman within the meaning of 'workman' as given in the Sanding Orders Ordinance. Reference can be made to 1999 SCMR 373.

10. It would be appropriate to reproduce herein the definition of workman as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968: 'Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical (work) for hire or reward." The bare reading of above definition of a workman implies that only those persons who are employed in any industrial or commercial establishment for doing skilled or unskilled, manual or clerical work for hire or reward would be workman. At the trial, respondent produced three witnesses including himself in support of his stance but none of them has started even a single word with regard to the nature of work done by the respondent at the relevant time. It is well‑settled law that when a person approaches the Court that he is a workman, the burden of proof lies on him and not on the employer. On the other hand, the appellant Bank examined only one witness namely Mr. Abdur Raqeeb, Officer Grade‑I as R.W.1, who stated that respondent at the time of his dismissal was serving as an officer and in abscence of Manager, he used to perform his duties of administration. He placed on file the copy of the key register whereby he exercised the powers of Manager. However, nothing was brought on record that respondent was mainly performing the duties in Managerial or Administrative capacity or in a supervisory capacity. Hence the evidence on the point is so meagre and scanty and on the basis of such evidence the status of a person as a workman cannot be properly determined. In view of the above petition, it would he just and proper to remand the case to the learned Labour Court for the determination of the maintainability and competency of the grievance petition filed under sect ion 25‑A of the Ordinance in the light of the law laid down by the apex Court of the country reported in 1999 SCMR 373 and in case the Court holds the petition to be maintainable, then it should decide it afresh after allowing the parties to adduce additional evidence on the point formulated above and determining the status of the respondent as a workman. Consequently, the appeal of the appellant Bank is allowed, the impugned judgment/order of the learned Labour Court, dated 24‑6‑1998, is set aside and the case is remanded to the Labour Court for decision afresh in the light of aforesaid observations. The respondent's appeal is accordingly disposed of. No order as to costs. H.B.T./233/Lab.(N.‑W.F.P.) Order accordingly.