2009 PLP 75 (PLC)

SH. AZMAT SAEED, J.

This appeal under section 48(3) of the Industrial Relations Ordinance, 2002 is directed against order dated 7-10-2005 passed by the Punjab Labour Court No.VII, Gujranwala, whereby grievance petition of the respondent was accepted.

2. Brief facts leading to the filing of this appeal are that the respondent was employed with the appellant-Bank as an officer Grade-II and had been posted as a Manager of the M.C.B. Kamokey Branch. Pursuant to a comprehensive audit of the said branch, charge-sheet, dated 16-5-2001 was issued to the respondent. Subsequently, another charge-sheet dated 27-6-2001 was issued to him inter alia relating to the processing of fake inward remittance/advance payments. A third charge-sheet dated 17-4-2001 was also issued by the appellant-Bank to the respondent with regard to his alleged absence from duty. An inquiry was conducted against the respondent and in consequence whereof he was dismissed from service vide order dated 11-4-2002. Whereafter the grievance notice was allegedly served upon the appellant by the respondent, which did not bear fruit consequently the respondent filed a grievance petition before the Labour Court-VII, Gujranwala. The appellant contested the said petition. Evidence was recorded, whereafter the Labour Court vide its judgment dated 7-10-2005 accepted the petition and set aside the order of dismissal of the respondent and reinstated him along with all back-benefits.

3. Learned counsel for the parties have' been heard and the record requisitioned from the Labour Court has also been perused.

4. It is contended by learned counsel for the appellant that the Labour Court had no jurisdiction to adjudicate upon the matter as the respondent was not a "workman", a fact which is obvious from the nature of the duties performed by the respondent, at the relevant point of time as, is apparent from the evidence produced by the appellant. It is further contended by the learned counsel that the respondent was a power of attorney holder, on behalf of the appellant-bank, which fact alone was sufficient to establish that the respondent was not a workman. It is further contended that the evidence on the record has been ignored by the trial Court and the impugned judgment suffers from obvious non-reading of evidence. It is also contended that the allegations against the respondent had in fact been admitted and there was no reason for reinstating' the respondent. Adds that no grievance notice was served upon the appellant within the period prescribed; and an appeal in this behalf cannot be treated as a grievance petition. In support of his contention the learned counsel has placed reliance on the cases reported as National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 SCMR 672, Ganga R. Madhani v. Standard Bank Ltd. and other 1985 SCMR 1511 and in the Civil Appeal No.206 of 1988 titled as National Bank of Pakistan, through its Regional Head v. (1) Punjab Labour Court No.5, (2). Safdar Ali Khan.

5. Learned counsel for the-respondent controverted the contentions raised on behalf of the appellant and contended that as the respondent was a workman hence entitled to invoke the jurisdiction of the Labour Court. It is further contended that the nature of duties performed by him were purely clerical in nature and the respondent could not be termed as an employer especially as he had no right to hire and fire. It is further contended that a charge-sheet issued to the responder was time barred and one of such charge-sheets was not even served upon the respondent. In support of his contentions, the learned counsel has placed reliance on the cases reported as Hitachi Ltd. and another v. Rupali Polyester and others 1998 SCMR 1618 at 1664. National Bank of Pakistan v. Punjab Labour Court No.7, Gujranwala and others 1992 SCMR 1891, Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304, Muslim Commercial Bank Ltd. and others v. Mahmood Ahmad Butt and others 1997 SCMR 1261 and Executive Engineer, Highway Division, Thatta v. Muhammad Yamin and 2 others 2000 PLC 32.

6. An over view of the contentions raised by the learned counsel at the Bar on both the sides makes it clear and obvious that pivotal matter that requires adjudication is, whether the respondent was a workman, hence entitled to invoke the jurisdiction of the Labour Court. In order to determine the status of the respondent, it is necessary to identify the nature of duties and authorities entrusted to and exercised by the respondent. Such duties and authorities must necessarily be examined on the touchstone of law laid down on the subject by the superior Courts, more particularly, by the apex Court. The perusal of the record of the Labour Court reveals that in order to prove the respective point of view, both the parties in addition to oral evidence produced a host of documents. The appellant in respect of its case produced documents which are on the record variously as Exhibits and Marks. It appears, however, from the record at the time of the production of the aforesaid documents objections were raised by the counsel for the respondent the factum whereof was duly recorded. However, the adjudication of the said objection was postponed till the final decision. A perusal of the impugned judgment reveals that a few of such objections have been dealt with and decided. In respect of the objection a vast majority of the documents produced by the respondents, neither the objections can be identified from the record nor there is any adjudication thereupon on the file. In fact it is not even possible to discern and identify the nature of the objections. 7-A. With respect to some of such documents it has been observed in the impugned judgment as follows:

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20. The contention of the learned counsel for the respondents that the petitioner has signed the documents being manager Mark-AA Mark "AA/1"; Mark "AA/2", Mark "AA/4", Mark "BB", Mark "I", Mark "J", Mark "K", Mark "L", Mark "M", Mark "N", Mark "0", Mark "P", Mark "Q", Mark "R", Mark "S", Mark "U", Mark "V", and Exh.R-17 which show that the petitioner is not a workman, has no legal force because the respondents could not prove on the record that the petitioner was appointed as a Manager with the independent order by the competent authority."

8. It is clear and obvious that neither the nature of the objection is identified nor the said objection in fact has been adjudicated upon. The most crucial piece of evidence on the record is the alleged power-of attorney executed by the appellant-Bank in favour of the respondent, which has been marked as both Exh.R.27 and Mark "JJ". The same has been ignored primarily on the ground that the appellant had not produced any witness in whose presence the said power of attorney was signed by the respondent. The Labour Court has ignored the fact that the said document did not require any signatures on behalf of the respondent and its existence has been admitted by the respondent during the course of his cross-examination, thus objection to its admissibility again has not adjudicated upon in its true perspective.

9. The objection raised to a larger number of documents by counsel for the respondent, at the time of their production by the witnesses on behalf of the appellant have not been even dealt with by the Labour Court in the impugned judgment.

10. A perusal of the documents produced by the appellant reveals that the same have not been taken into consideration by the Labour Court and adjudication thereof is relevant and vital for the resolution of the controversy before the Labour Court as well as this Court so as to identify the nature of the duties performed by the respondent. In this behalf power of attorney is of vital importance especially in view of the judgment of the apex Court reported as Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511.

11. In view of the above, it is clear and obvious that the legal objection to the admissibility of the documents by the large has not been adjudicated upon by the Labour Court. With reference to a few documents such adjudication has been effected but not in its true perspective keeping in view the statement of the respondent and the law applicable to such documents. The documents in question are of great relevance and ignoring the same would obviously tantamount to non-reading of the evidence on the record. In the above circumstances, the judgment of the Labour Court cannot be sustained hence this appeal is accepted. The impugned judgment is set aside and the case is remanded to the Labour Court for afresh decision after adjudicating upon each and every individual objection to the documents produced by the appellant keeping in view the statement of the respondent and the law applicable. The record requisitioned is returned to the Labour Court. Appeal accepted the case remanded. H.B.T./349/L Appeal accepted.