1989 PLP 213 (PLC)

Nemo for Respondent No.

1. Muhammad Asghar Malik for Respondent No. 2 Date of hearing: 22nd May, 1988. Muhammad Munshi Khan, respondent No. 2, hereinafter referred to as the respondent, was in the service of National Bank of Pakistan, the petitioner herein, as officer Grade‑III. While employed in the National Bank of Pakistan, Zonal Office, Gujrat, he was served with a charge‑sheet dated 30‑12‑1982 (Annex. A). He was accused of unauthorized adjustments of the overdrafts in connivance with another employee of the said Bank, thus causing huge loss to the petitioner Bank. The lapses alleged against the respondent pertained to the period while he was posted in Mirpur (Azad Kashmir) Main Branch of the petitioner‑Bank. The respondent submitted reply to the charge‑sheet denying the charges. A domestic enquiry thus followed. The Enquiry report is Annex. C, wherein it has been held that the respondent has neither misappropriated the amounts in question nor he is liable for forgery or fraud and that, in fact, the whole case has been made out against him in a haphazard, reckless and slip shod manner. The respondent was removed from service on 12‑4‑1983 (Annex. D).

2. The respondent filed a grievance petition before the Punjab Labour Court No. 7, Gujranwala, on 25‑1‑1984. The petitioner‑Bank resisted the grievance petition. The learned Labour Court after recording the parties' evidence and after hearing them, ordered the reinstatement of the petitioner on 17-10‑1984 with back, benefits. The aforementioned order passed by the learned Labour Court has been assailed through the present writ petition.

3. Originally, it was urged by the petitioner‑Bank that the terms and conditions of the employees of the nationalized Banks and other financial institutions including the matters connected with disciplinary action were governed by the award of the Wage Commission and that such an award by virtue of provisions of section 38‑D of Industrial Relations Ordinance, 1969, hereinafter referred to as the Ordinance, could be enforced by the National Industrial Relations Commission alone and that the Labour Court lacked jurisdiction in the matter. It was further contended that award of the Wage Commission did not fall within the purview of expression "award" as occurring in section 2 of the Ordinance and, wherefore, any right arising out of such an award could not be enforced under section 25‑A of the Ordinance, through a Labour Court. These averments raised on behalf of the petitioner‑Bank found favour with a learned Division Bench of this Court which was then seized of the matter. The said learned Division Bench, therefore, allowed the Writ Petition on 10‑4‑1985. The main judgment was recorded in a connected matter viz. Writ Petition No. 719 of 1982.

4. The respondent, thereafter, preferred an appeal before the learned Supreme Court of Pakistan. The august Supreme Court of Pakistan accepted tile appeal. It has been held by the Honourable Supreme Court that an award of the Wage Commission like any other award is enforceable under section 25‑A of the p, Ordinance and that provisions of the Ordinance govern the dismissed employees of the Banks. The case has, however, been remanded to this Court with the direction to dispose of other issues involved in the case.

5. Regarding other issues, it has been urged that the impugned judgment is nullity in the eye of law as: (a) the respondent at the relevant time was serving as Officer Grade‑III and thus occupied a supervisory capacity; he cannot, therefore, be regarded as a workman entitled to seek redress of his grievance under section 25‑A of the Ordinance; (b) the learned Courts at Gujranwala lacked territorial jurisdiction inasmuch as the misconduct on account of which the removal of the respondent has been ordered pertained to the period when the respondent was employed in the Main Branch, Mirpur (Azad Kashmir); (c) the provisions of Industrial Relations Ordinance, 1969, are not applicable to the facts of the present case; this case is, in fact, governed by the provisions of Azad Jammu and Kashmir Industrial Relations Ordinance, 1974; and (d) the grievance petition of the respondent was hopelessly time‑barred but the learned Labour Court failed to advert to this aspect of the matter.

6. Regarding ground (a), reference has been invited to the statement of RW‑1, Khalid Pervez Ghauri, who stated that duty of the respondent was to check the work of other employees of the Bank; there were 10/12 clerks serving in the Main Branch, Mirpur (Azad Kashmir). This witness conceded that checking of calculations made by the clerks consumed entire working hours of the day. One Muhammad Mushtaq RW 2 was also employed as Grade‑I Officer at the relevant time in the said Branch. He conceded that the respondent also used to do the posting work regarding entries in the relevant ledgers. Khalid Pervez RW 1 further conceded that the respondent also prepared salary bills; there are entries made in the hand of the respondent in Cash Credit ledger, Inland L.C. Register, Godown Register, Pledge Register and certain other registers. This witness further stated that the respondent used to work under the supervision of the Manager; he had no administrative functions to perform; he could neither allow leave to any other employee of the Bank nor he could obtain explanation of any official at fault. The respondent himself stated before the learned Labour Court, while appearing as P.W.1, that he performed clerical duties and his duties were to make entries in many registers; he also prepared general vouchers; he had no power of a supervisor or manager. The learned Labour Court, after appreciating the parties' evidence, has come to the conclusion that the respondent performed clerical duties, therefore, he was a workman entitled to seek redress of the grievance, under section 25‑A of the Ordinance. In the case of Andhra Scientific Co. Ltd. v. A Seshagiri Rao and another, 1962 P L C 216, a case from Indian jurisdiction, it was held by the Supreme Court of India that in determining whether an employee falls within the definition of "workman", the question as to what functions were actually being performed by the employee is one of fact and when the Labour Court has, on a consideration of the evidence, come to a conclusion as regards these functions and has on the basis thereof held that the employee comes within the definition of "workman", the High Court would not interfere in exercise of its Constitutional jurisdiction except in cases where there is clear error on the face of the record. Needless to add that no such error has been pointed out. In Chairman, Brook Bond (Pakistan) Ltd. Karachi v. General Secretary, Union Karkunane Brook Bond (Pakistan) Ltd. Rawalpindi. P L D 1969 Lah. 717, it was held that true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case. In Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 S C M R 304, a Chief Accountant getting monthly salary of Rs.1,050, acting under instructions of Incharge of Accounts Section of the Company and having no supervisory functions to perform was held to be a workman. 7. ' In the light of the above discussion, it is held that in view of the duties being performed by the respondent at the relevant time, the learned Labour Court has justifiably recorded a finding of fact that he performed duties of clerical nature and thus was a workman. This finding of fact recorded by a tribunal of competent jurisdiction is unexceptionable‑and no interference in this behalf in exercise of writ jurisdiction is warranted.

8. So far as the objections about the territorial jurisdiction of the Labour Court at Gujranwala and the non‑applicability of the Industrial Relations Ordinance, 1969, are concerned, it may be observed that at the time when the charge‑sheet was served on the respondent, he was serving at Gujrat. This fact is borne out from the contents of the charge‑sheet (Annex. A). The order of his removal from service (Annex D) dated 12‑4‑1983 was also made when he was at Gujrat in Railway Road Branch Gujrat of the petitioner‑Bank. Section 35 of the Ordinance provides that the Provincial Government may, by notification in the official Gazette, establish as many Labour Courts as it considers necessary and where it establishes more than one Labour Court, shall specify in the notification the territorial limits within which, for the industry or the classes of cases in respect of which, each one of them shall exercise jurisdiction under this Ordinance. In regard to Punjab Labour Court No. 7, Gujranwala, a notification was duly published in the official Gazette having been made by the Provincial Government and in the said notification it was provided that the territorial jurisdiction of this Court shall extend to the areas comprising of Gujranwala Civil Division Gujrat is admittedly a part of Gujranwala Civil Division. As already observed, charge‑sheet was served on the respondent when he was serving under the petitioner‑Bank at Gujrat. He was removed from service when he was employed at Gujrat. In the circumstances, the cause of action for the grievance petition under section 25‑A of the Ordinance arose to the respondent at Gujrat‑‑a place lying within the territorial limits of Punjab Labour Court No.

7. Precisely for the same reasons, it cannot be said that the Industrial Relations Ordinance, 1969, is' not applicable to the facts of the case or that this case is governed by the Azad Jammu and Kashmir Industrial Relations Ordinance, 1974. In M/s. Rahmania Trading Company v. M/s. Eagle Star Insurance Company Ltd. P L. D 1960 S C (Pak) 202, it was held that in spite of the words `shall be deemed', Explanation (2) in terms defines the words `carries on business' used in clauses (a) and (b) of the section, and means that where the defendant is a Corporation, it is deemed to be carrying on business at its sole or principal office irrespective of whether the cause of action has arisen there, as well as of at the place where it has its subordinate office, provided the cause of action arises there. On behalf of the petitioner‑Bank, Mufti Mushtaq Ahmad v. The Federation of Pakistan P L D 1981 S C 172, Divisional Superintendent of Pakistan Railways, Sukkur and another v. Ehsan Elahi 1983 P L C 444, M/s. Crescent Sugar Mills Ltd. v. Haji Muhammad and another P L D 1976 Lah. 1176 and Hotel Inter‑Continental, Karachi v. Vth Sind Labour Court and another P L D 1976 Kar. 301, have been cited, but suffice it to say that the principles enunciated in these authorities are distinguishable on facts and thus have no bearing on the present case.

9. Regarding the plea of limitation, it has been noticed that after the respondent received the order of his removal from service, he admittedly preferred a departmental appeal which was rejected on 8‑12‑1983 (Annex R 2/4). Thereafter, the respondent sent a grievance notice to the employer on 7‑1‑1984 (Annex R‑2/5) and filed the grievance petition well in time. It is not disputed that Staff Service Rules of the National Bank of Pakistan contained a provision for appeal. In the light of this factual position, the objection raised on behalf of the petitioner regarding limitation is devoid of any substance.

10. It may be pointed out that in addition to the issues which have been discussed earlier, it was canvassed half‑heartedly on behalf of the petitioner‑Bank that after his removal from service, the respondent ceased to be a workman having locus standi to seek redress of his grievance under section 25‑A of the Ordinance, particularly when the provisions of Standing Orders Ordinance, 1968, were not applicable to the of employees of the banks. Apart from the question that if provisions of Standing Orders Ordinance were applicable in the present case or not, it may be observed that the learned Supreme Court Pakistan in its judgment, whereby the present Writ Petition has been remanded to this Court alongwith many other connected matters, has held that the Industrial Relations Ordinance, 1969, applied to the employees of the nationalized banks. The judgment of the Supreme Court has since been reported as Iftikhar Ahmad and others v. President, National Bank of Pakistan and others P L D 1988 S C

53. Moreover, a close and considered analysis of the provisions of clause (xiii) acid (xxvii;) of section 2 of the Ordinance, read in the light of the provisions of section 25‑A(4), leads to an irrebuttable conclusion that dismissed/terminated workmen can seek redress, of the grievance arising out of their dismissal/ removal/termination of service, under section 25‑A of the Ordinance, as if it were an industrial dispute. In this view of the matter, the contention raised by the petitioner that after his termination from service, the respondent cease to be a workman for the purpose of section 25-A of the Ordinance, has no merit.

11. In the fight of the foregoing conclusions, it is held that this writ petition has no merit and thus must fail. It is accordingly dismissed. There shall, however, be no order as to costs. S.Q./N‑154/L Petition dismissed.