1984 PLP 521 (PLC)

M. S. Bokhari for Appellant Muhammad Amin Shad for Respondent. Date of hearing : 17th January, 1984. The appeal captioned above arises from the decision, dated 21st October, 1982 passed by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad whereby the respondent was directed to be re‑instated in service with back benefits but the appellant was allowed to hold fresh enquiry.

2. The allegation against the respondent was that he had interpola ted his medical bill of urine test No. 16974 pertaining to book No. 170, dated 3rd March, 1980 changing the amount from Rs. 6 to Rs.

600. The respondent has been re‑instated by the learned lower Court on the ground that the respondent was charge‑sheeted by an incompetent authority i: e. Branch Manager, whereas according to Appendix‑I clause 14 of 1981 Rules, the competent authority was Senior Executive Vice‑President,

3. It has been argued by the learned counsel for the appellant that since the charge‑sheet was given before the Rules of 1981 were enforced, the charge‑sheet was legal and effective. If the Rules are applicable then only the decided cases were saved by section I and not pending cases As the matter was still pending when the rule of 1981 were enforced and according to Appendix‑I clause 14, Senior Executive Vice‑President had to give charge‑sheet, new charge‑sheet should have been given by the competent authority. But the correct legal position is that the rules not being statutory rules, Wage Commission Award would apply. According to para. 258 (4), competent authority has to give the charge -sheet. Competent authority has not been defined in the Wage Com‑" mission Award, so it means that the authority who is competent to appoint and dismiss. Since the authority who charge‑sheeted the respondent i. e. the Branch Manager was not competent to appoint or dismiss the respondent, the charge‑sheet was not legal. The direction to re‑instate the respondent, therefore, does not suffer from any legal infirmity,

4. The other point argued by the learned counsel for the appellant is that the respondent failed to prove that he is a workman. Reference has been made to the statement of the respondent, wherein he has stated that his duty was to check the work of the clerks working under him and that he used to prepare drafts statements with his own hands. The main duty, according to the learned counsel, was checking of work of the clerks, so it was supervisory duty. The arguments is misconceived. Since Standing Orders Ordinance, 1968 is not applicable to the nationalised banks, so the definition of workman given in section 2 (i) of the Standing Order Ordinance, 1968 is not relevant. It is to be seen if the respondent is covered by the definition of workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969. Since the respondent does not come within the definition of `employer', he is workman. Now it is to be seen if he' comes within the exceptions (a) or (b). His duties not being managerial exception (a) is not applicable. So far as exception (b) is concerned. there are two requirements. One is that main duty should be supervisory and the other is that wages should be more than Rs. 800 per mensem. Even if it be said that his duty was supervisory, the monthly pay of the respondent, as stated by him, being Rs. 785, exception (b) is also not applicable. Application of exceptions was to be proved by the appellant but no evidence with regard to the monthly wages of the respondent was produced. So the respondent is a workman.

5. The next point argued by the learned counsel for the appellant is that since the departmental appeal was not addressed to the appellate authority but to the dismissing authority, the grievance notice that was given beyond the period of three months from the date of dismissal, was time barred. This argument is too not tenable. Para. 258 (11) directs that appeal shall be submitted through proper channel. So the appeal through proper channel could be sent to the dismissing authority and not direct to the appellate authority. It was the duty of the dismissing authority to forward the appeal to the appellate authority. Para. 258 (12) provides that the dismissing authority can withhold the appeal. Unless the appeal is sent to the said authority, he will not be in a position to withhold it. Para. 258 (12) (b) gives one of the grounds for which the appeal can be withheld and that is that the appeal is addressed to an authority to whom, the appeal does not lie. Sub‑para. (13) says that the appellant should be informed about the fact of withholding the appeal. The dismissing authority did not comply with this provision. Since the appeal was not forwarded, it meant that it was withheld, so the respondent should have been informed giving reasons for withholding the appeal. If the provision of sub‑para. (13) had been complied with, the respondent may have removed the defect of addressing the appeal to the dismissing authority. Since the appeal was not decided before or c after the grievance notice was given, the said notice was not time‑barred.

6. The dismissal order was passed by the incompetent authority i. e. the Vice‑President, Zonal Office, Faisalabad, whereas the respondent could be dismissed by the appointing authority who, according to Appen dix‑I clause (14), was the President upto Class‑1 Officer.

7. However, the argument of the learned counsel for the respondent is without force that the charge‑sheet ways time‑barred. Standing Orders Ordinance, 1968 not being applicable, no question of charge‑sheet being time‑barred arises.

8. As a result, the appeal being without force, is dismissed. A. E. Appeal dismissed.