2021 PLP 144 (PLC)

NOOR ZAMAN, MEMBER.

The appellant has filed the instant appeal under Section 48 of the Industrial Relations Ordinance, 2002, against the impugned order dated 23-01-2017 passed by the learned Presiding Officer, Labour Court Malakand Division, Swat, whereby it accepted the grievance petition and reinstated the respondent without back benefits.

2. Brief facts giving rise to this appeal are that the respondent was appointed as Officer Grade-II on 20-12-2011 in the appellants Bank and posted as Customer Service and Sales Operation Manager in Jowar Branch, Buner of the respondent bank. On 07/06/2012 Mr. Umara Khan and Dawa Khan joint account holders visited the said branch and inquired about the balance of their dormant account bearing No.101-0135. It was disclosed that their account was debited with an amount of Rs.1 Million without their authorization. On probe it transpired that the said amount was transferred through debit entry to one account in the name of M/s. Salarzai Petroleum. Earlier on 1/6/2012 the account of M/s. Salarzai Petroleum was debited with the said amount on the basis of bogus cheque. During departmental enquiry it revealed that in the system of the bank said fraudulent transaction took place by jusing ID and password of the petitioner, hence he was charge sheeted for negligence and after departmental inquiry he was terminated from service on account of misconduct vide impugned order dated 13/12/2012. The respondent sent grievance notice and having no response file a grievance petition in Labour Court Swat. The learned Labour Court accepted the petition and reinstated the respondent in service without back benefits vide judgment dated 23-01-2017.

3. The appellant feeling aggrieved of the order dated 23-01-2017 preferred the instant appeal before the Hon'ble Peshawar High Court, Mingora Bench Swat (Dar-ul-Qaza) appellate authority for setting aside the above said order on the grounds inter-alia that the impugned order is bad in law and facts and the Labour Court had no jurisdiction to entertain the grievance petition because the respondent does not fall within the definition of workman, hence this appeal which was transmitted by Hon'ble Labour Appellate Tribunal/Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat to NIRC, Islamabad vide order dated 09-10-2019 for further proceedings due to lack of jurisdiction after merger of PATA and FATA with Khyber Pakhtunkhwa Province. That thereafter, this Full Bench of Commission has initiated further proceedings.

4. The case was fixed for argument on 30-06-2020. Both parties presented arguments.

5. While arguing the appeal the learned counsel for the appellant contended that the respondent was working as Grade-II officer and as per case law reported in 2015 SCMR 434 Officers Grade-I to Grade-III were not workmen. Learned counsel for the appellant also relied on case law laid down in 2009 PLC 260, 2009 SCMR 857, 2011 SCMR 1475 and 2019 SCMR 946 in support of his contentions. On merit learned counsel for the appellant stated that the respondent was proceeded against under UBL Staff Service Rules, 1999, proper enquiry was held, proper charge sheet was issued and inquiry procedure was adopted. The respondent duly appeared, participated and admitted in his reply to charge sheet that illegal transaction of Rs.1 million was effected through his ID. The fraud was committed on 04-06-2012 in the presence of the respondent through his password and ID which were used for this fraudulent transaction. That the respondent showed gross negligence during his service by not protecting his password and his ID and exposed the appellant bank to fraud. That the respondent committed act of negligence rather recklessness by violating the security policy of the respondent Bank. That the respondent failed to discharge his duty and ensuring safe custody of his records i.e vouchers bunch dated 04-06-2012 which was found missing. That these acts of negligence, in-actions of the respondent were in gross violation of UBK HR Disciplinary Rules, 2010 read with UBL Staff Service Rules, 1999 tantamounting to misconduct and thus made him liable to major penalty. That such a careless person cannot be retained in service of an establishment which deals in fiduciary and financial matters and trust of valuable customers which is asset of bank. Therefore, competent authority has rightly terminated the respondent.

6. Learned Counsel for the respondent contended that actually fraud was committed by on Mr. Tariq Sultan by misusing the ID and Password of the respondent and the amount in question was also recovered from that person; that the respondent was made scapegoat on account of negligence by not protecting his ID and Password; that the respondent was terminated from services without proper inquiry according to rules, that on the day of fraudulent transaction , the respondent was not present in the Bank and was out in the market for the purpose of fetching more deposits to the bank. That the respondent was though named officer of Grade-II but he was not entrusted with any managerial duties and thus covered by meaning of workmen defined by the law, that the respondent through evidence proved this innocence.

7. Arguments of both parties heard and record perused.

8. It is admitted fact that the respondent was not branch manager and was working under the subordination of Branch Manager. Mr. Mubarak Shah then manager of the branch stated on oath that" was Manager of the UBL. Jowar Branch Buner and the petitioner was employee of that Bank". Non of the witnesses except Mr. Minhaj ud Din asserted that the respondent was working in Managerial capacity. Mr. Minhaj stated that OG-II is coming within the definition of managerial staff, but he has not given any job of managerial and supervisory nature performed by the respondent. The duties assigned to the respondent are mentioned in the charge sheet that the respondent posted wrong cheque in the system and that he activated the dormant account of the complainants and the he posted unauthorized transfer entry of Rs. 1.0 million. The appellant has neither provided proof nor argued that respondent was attorney holder for Bank. In appeal state the appellant's counsel failed to produce any material showing that the respondent was performing duties of the nature of supervisory and managerial. The case law in 2015 SCMR 434 relied upon is not relevant as the court has not declared that all OG-I, OG-II and OG-III officers do not fall within definition of workman. The Court held that "In this view of the matter, on a solitary claim of the union no blanket declaration can be given that the Officers Grade-I to III in the establishment of NBP are workmen". The honourable Supreme Court in the said Judgment held that "Designation of a person could not be considered to be a factor determining his status of employment in an establishment to be that of an "officer" or a "workman"

Nature of duties and functions of a person was to be considered to be the factor which would determine whether his status was that of a "workman" or not

Designation per se was not determinative of a person being a "workman" rather the nature of his duties and function determined his status". Therefore, we are of the firm view that the learned Labour Court has rightly declared the respondent as workman under definition given in IRA, 2012. On merit the appellant has not charged the respondent for embezzlement/mis-appropriation of Bank/Customer, funds. He has been charged for negligence in security of card which has been declared as violative of Bank policy/rules. PW-1 Mr. Minhaj ud Din, District Customer Service UBL stated on oath that "the cash (embezzled amount) was brought by one Mubarak Shah which was Rs.1.0 million and the voucher was also prepared by Mubarak Shah. The cash recovery and voucher preparation stated above witnessed by Tariq Sultan, Mubarak Shah, Account holder Dawa Khan and one other person of whom name I do not remember. The case was not recovered from the petitioner Jamil Ahmad).

10. In view of above facts, we do not see any illegality in the impugned order passed by learned Labour Court and upheld the same order. The appeal is dismissed. File be consigned to record after due completion. SA/2/NIRC Appeal dismissed.