1988 PLP 1664 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This appeal by leave is directed against the judgment of Peshawar High Court dated 11‑4‑1979 by which a Constitutional Petition filed by appellant‑Bank was dismissed. By that Petition appellant sought to challenge the order of the Labour Court dated 13‑9‑1976 and that of the Chairman, Labour Appellate Tribunal dated 10‑3‑1977 whereby Muhammad Humayun Khan, first respondent herein, was held to be a workman entitled to file a grievance application under section 25‑A of the Industrial Relations Ordinance, 1969 and was ordered to be re‑instated in service of the appellant Bank. Facts briefly stated are that the first respondent was an Officer of Sarhad Bank Limited which was merged into the new organization known as the. Allied Bank Limited and while he was posted as Manager, Batkhela Branch Bank, he was charge‑sheeted for misconduct and after a departmental inquiry was held guilty and dismissed from service by the order dated 30‑10‑1975. Against this order, respondent filed a grievance application under section 25‑A of the Ordinance which was allowed by the Labour Court by the order dated 13‑9‑1976 as stated earlier. In defence, appellant inter alia pleaded that respondent being a '.Manager of a Branch Bank was not entitled to seek relief under the provisions of section 25‑A of the Ordinance, but this plea was rejected by the Labour Court for the following reasons:‑ "The next point to be determined is that whether the petitioner (respondent herein) was a 'worker' or not. The petitioner stated that as a Manager he had no power to either appoint or dismiss any employee, that neither he could issue a charge‑sheet nor he could grant leave, that he had no powers to spend any money. It may further be mentioned that according to the para. No.13 of the petition the petitioner's pay including the all other allowances was Rs.609 at the time of his dismissal i.e. less than Rs.800 per mensum as envisaged by law. According to the I.R.O., any person who does not fall within the definition of employer is a worker. In the present case by no stretch of imagination it can be held that the petitioner was an employer. The very fact that the enquiry has been conducted by the respondent in the manner in which enquiry is conducted against a worker by itself suggests that the respondent by implication considered the petitioner a worker. The question that whether an employee is a workman or not is to a great extent a question of fact and has to be decided according to the merits of each case. Being a question ,of fact the admission of the employer himself will go a long way to determine it. Hence I hold that the petitioner is a workman." The aforesaid plea was again considered by the Chairman, Labour Appellate Tribunal who also confirmed the view of the Labour Court in these words: "It cannot be disputed that to become an employer under the Standing Orders, it will be sufficient for the invocation of the term if the person is responsible to the owner for the supervision and control of a Commercial Establishment but it will not necessarily follow that a Branch Manager of a Bank is responsible for the supervision and control of the establishment. 'Establishment', has been interpreted to be entire establishment in P L D 1975 Kar.342 and in another judgment of the same Court reported in P L D 1976 Kar.73. It may be mentioned that leave to appeal against the Karachi authority of 1975 was turned down as it will appear from P L D 1975 S C

358. I am in respectful agreement with my learned brothers of the Sind‑ Baluchistan High Court, for any other view of the matter will mean that a person incharge of an insignificant branch or section of an establishment will have to be conceded the status of an employer. The Standing Orders were enacted with a view to grant protection to workman against arbitrary exercise of powers by the employers and that purpose will stand obviously frustrated if a host of employees charged with supervisory or controlling duties are to be treated as employers. It is true that the respondent holds a Power of Attorney but this power of attorney is a delegation for the purposes of the financial transactions within the purview of the Banking Charter. There is no administrative delegation by this power of attorney. On the view of the matter that I take, I hold that the respondent was a 'worker' within the definition of Standing Orders and as such section 15 of the Standing Orders gave him certain guarantees. Since the case of the respondent is that the rights secured to him by the Standing Orders have been violated, it is, therefore, clear that an application by him under section 25‑A of the I. R.O. was maintainable." Learned Judge in the High Court who dealt with the Constitutional Petition filed by the appellant also dealt with the aforesaid aspect of the case and upheld the orders of the two Tribunals below in these words:‑

"Learned counsel for the petitioner contended that respondent No.1 being the Manager, incharge of the branch of Bank, was exercising control and supervision of the other staff and was also invested with powers through a power of attorney which was executed in his favour by the Bank. Thus, the argument is that respondent No.1 was not a 'workman' as his duties entailed the responsibility, initiative as he was entrusted with the duties of managing the petitioner's branch at Batkhela. In support of his contention the learned counsel placed on record a judgment of the Supreme Court 'Civil Petition for Special Leave to Appeal No.K‑89 of 1975' Salahuddin Masood v. Pakistan and 3 others decided on 12th August, 1975. The learned counsel also cited Muhammad Moinul Islam v. Opal Laboratories 1979 PLC 131 in which it was held that the first ground which was relied by the Labour Court was that the appellant was a salesman, and therefore, not a workman, with the result that the application was not maintainable. This view was based on the definition of the term 'workman' provided by the West Pakistan (Standing Orders) Ordinance. It was held further that until recently this view prevailed but it was altered and must be deemed to have been set at rest by the unreported decision of the Supreme Court in Civil Appeal No. Kar. 19 of 1976, Shahzad Khan v. Sind Labour Court and others, in which it was clearly laid down that the definition as provided by Standing Orders Ordinance could not be taken under consideration but any person who was a workman as defined by Industrial Relations Ordinance could have recourse to the provisions of section 25‑A, I.R.O." Leave to appeal was, however, granted by this Court to examine precisely the same plea mentioned above whether the respondent "who was the Manager of the Branch Bank of the appellant at the relevant time can be said to be a workman". Mian Saeed‑ur‑Rehaman Farrukh, learned counsel for the appellant submitted that the High Court as well as the Tribunals below have wrongly held that the respondent was a workman within the meaning of the Ordinance and thus entitled to seek relief under section 25‑A of the Ordinance. We find that on the basis of evidence produced by the parties, the Labour Court, the Appellate Tribunal as well as the High Court have held as a finding of fact that the respondent was a workman within the meaning of the Ordinance. Since this concurrent finding of fact is routed in evidence, there is hardly any scope for this Court to interfere in this Constitutional appeal. We called upon the learned counsel for the appellant whether the Charter of duties an functions of the respondent in order to prove the nature of duties at the time the impugned action was taken against him was produced in evidence but the learned counsel frankly stated that no evidence to that effect was produced at any stage of the case. Since the challenge in this appeal is with regard to a finding of fact and we, on the other hand, notice that the said finding of fact is established in evidence, it would not be legitimate for this Court to interfere. The appeal is, therefore, dismissed. The parties are however left to bear their own costs. M.I. /A‑268/S Appeal dismissed.