1995 PLP 500 (PLC)

We have heard the learned counsel for petitioners and respondent No.3, who is present in person. Mr. Noor Muhammad, the learned counsel for petitioners has contended that in the present case the respondent No. 3 having been removed from the service cannot be treated as a workman or worker and, therefore, would not be entitled to remedy under section 25‑A of Industrial Relations Ordinance, 1969. As regards the factual aspect the contention of the learned counsel is that the charge has been proved against him. We would first take up the factual aspect of the case. The allegations against respondent No. 3 are that he had embezzled the above amounts as mentioned in the charge‑sheet .which he had received from the Accounts? holder clients' of the petitioners Bank, namely, Nabi Bukhsh, Rehmatullah and Mst. Rehmat Khatoon. It may be observed that none of these account‑holders were examined before the Labour Court nor their statements were recorded by the Enquiry Officer Mr. Haque Nawaz Mehar in the enquiry held by him. The enquiry report has been placed on record of this file by the petitioners which is at pages 35 to

53. First two pages of this enquiry report, it has been stated by the Enquiry Officer that the said account‑holder Nabi Bukhsh had given in writing alleging embezzlement of amounts by the present respondent No. 3 while the other two account‑holders were called but did not appear before the? Enquiry Officer to record their statements. This report also makes a mention of another witness Kaiwal Ram who is also Officer Grade‑III (Manager) in the Bank. None of these witnesses was examined before the Labour Court. The learned counsel for petitioners when asked whether the statements of these witnesses, if any, were recorded by the Enquiry Officer in presence of respondent No. 3 or whether respondent No. 3 was given an opportunity to cross‑examine these witnesses, could not confirm the same. The learned counsel has not been able to show us if the Enquiry Officer had at all recorded the statements of these witnesses. In these circumstances, we are of the view that the allegations against the present respondent No. 3 do not stand to have been proved in law. Mr. Noor Muhammad, Advocate has argued that the contents of the enquiry report go to show that the charges were proved. We are afraid we cannot subscribe to such contention of the learned counsel. However, Mr. Noor Muhammad, Advocate has conceded that the proceedings in enquiry could not be equated with the proceedings in Court and, therefore, the enquiry was not held to prove the same against respondent No. 3 but only to ascertain whether allegations could be leveled against him. This concession by the learned counsel itself goes to show that there was no conclusive proof against the present respondent No.

3. It is settled law that no one can be punished unless the charge or allegation is proved against him and also that in case of doubt the benefit is to go to the person charged. In such circumstances, we are of the view, that on factual aspect the charge could not be proved against the respondent No. 3 and thus the order terminating his service could not have been passed and is bad in law. Coming to the legal aspect to the question, the contention of the learned counsel is that in the present case the services of the present respondent No. 3 have been terminated; and that this is not an industrial dispute and, therefore, his grievance petition under I.R.O., 1969 is not maintainable and should have been dismissed. This is not the plea taken by the petitioners before the Labour Court or the Labour Appellate Tribunal. His case rather is that the grievance petition would not be maintainable for the reason that the grievance of Standing Orders Ordinance, 1968 were not applicable in the case of respondent No.

3. The inference from this would be that the service of the respondent No. 3 would be governed by the petitioners' Bank's Service Rules, 1980 under which the proceedings were initiated by the petitioners. In these circumstances, in the first instance, the petitioners cannot take this plea at this stage. As even in the memo of petition no such plea has been taken. Reliance can be placed on the case of National Bank of Pakistan v. Sindh Labour Appellate Tribunal 1990 PLC 197 wherein a Division Bench of this Court has so held. It may be observed that in the present case the petitioners had not only submitted to the jurisdiction of the Labour Court but had also invoked the jurisdiction of the Labour Appellate Tribunal by filing an appeal. The learned counsel for petitioners has placed reliance on the case o: Trustees of Port of Karachi v. Muhammad Saleem (1994 S; MR 2213) and has argued that Hon'ble Supreme Court in this case has held that an employee who is no more in service cannot be treated to be a worker and, therefore, cannot maintain a grievance petition, with regard to a matter which does not pertain to industrial dispute. We have perused the above referred to judgment of the Hon'ble Supreme Court. In para. 22 of the judgment their Lordships have been pleased to hold as under: "Thus, a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment is not a worker unless his dismissal, discharge etc. had connection with or was in consequence of an industrial dispute or whose dismissal, discharge etc. had led to such a dispute." This shows that a worker who is no more in service can maintain grievance petition if the matter relates to an industrial dispute. The workman has been defined in section 2, clause (xxviii) asunder: "(xxviii) `Worker' and `workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment by express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute but does not include any person‑‑ (a) who is employed mainly in a managerial or administrative capacity; or (b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature." It may be observed that the industrial dispute includes the dispute or difference between employer and workmen which is concerned with the employment or non‑employment of the terms of the employment. Similarly in the case of Trustees of Port of Karachi v. Abdul Ghani (1983 SCMR 769) the Hon'ble Supreme Court held as under "In the application before the Labour Court, the allegation made by the respondent was that he was a permanent worker which was not denied and as to whether the definition clause ousted a dismissed employee from seeking remedy under section 25‑A it was an open question which required examination at all levels. This much, however, is prima facie obvious from section 25‑A that it is available to a workman who has a grievance in respect of any right guaranteed by or `under any law' which would also include the violation of Service Rules incorporating the settled principles of law that the trial of the case and the evidence should remain confined to the pleadings of the parties and no new case be allowed to be set up in evidence:' Also in the case of, National Bank of Pakistan v. Sindh Labour Appellate Tribunal (1990 PLC 197) it has been held by a Division Bench of this Court that Labour Court did have the jurisdiction to adjudicate grievance petition of National Bank employees. Also in the case of National Bank of Pakistan v. Punjab Labour Appellate Tribunal (1983 PLC 1.05) their Lordships have been pleased to hold that the petitioner Banks Rules, 1980 were non‑statutory and the employees were governed by Service Rules,, 1973; and that they were not debarred from seeking their grievance through Labour Court. In the same judgment it was held that the provisions of Industrial Relations Ordinance, 1969 would overreach the scope‑ of statutory rules and cover employer ?employee relationship. From the above discussion, it is obvious that a Bank employee,‑ if falls within the definition of workman or worker can maintain the grievance petition if the same pertains to the industrial dispute. As observed above, the v petitioners' Bank having submitted to the jurisdiction of the forum i.e. Labour Court and the Labour Tribunal now cannot challenge the jurisdiction of the said Courts. It is also an admitted position that the respondent No. 3 being a permanent employee of petitioners' Bank came within the definition of worker or workman when he was in service and, therefore, he would be entitled to maintain the grievance petition if, relating to industrial dispute. As the definition of the word `industrial dispute' is gives in clause (xiii) of section 2 of I.R.O., 1969 the termination of service of respondent No. 3 by the petitioner alleging the charge of embezzlement without having proved the same is obviously a dispute relating to the employment of the petitioner and is thus covered. In view of the above discussion, we dismiss this petition with costs and direct the compliance of the orders passed by the Labour Court. Above are the reasons for the short order announced in Court today. H.B.T./N‑550/K????????????????????????????????????????????????????????????????????? Petition dismissed.