2013 PLP 102 (PLC)

ABDUL GHIAS NOUSHERWANI (MEMBER).

Through this appeal the appellant assailed the judgment dated 29-3-2012 passed by the learned District and Sessions Judge 1st Labour Court wherein the grievance petition of respondent/applicant was allowed.

2. In the first round of litigation the grievance petition of respondent/applicant was also allowed by the Learned Labour Court by means of order/judgment dated 23-2-2009. On appeal bearing L.A. No.14 of 2009 the case was remanded by this tribunal for rewriting of the judgment through order/judgment dated 8-11-2010 but the then Learned Presiding Officer 1st Labour Court Balochistan has not complied with the remand order and regretted for rewriting of the judgment by means of order/judgment dated 28-2-2011. The respondent/applicant assailed the order dated 28-2-2011 before this Tribunal and under the circumstances of the case the case was again remanded for compliance of order dated 8-11-2010 of this tribunal to the Learned Labour Court whereof after necessary proceedings the grievance application of respondent/applicant was allowed hence this appeal.

3. According to grievance petition of applicant/respondent he was appointed as cashier on 2-1-1993 and served the bank with his best efforts and honesty and promoted the business of the bank. He further stated that lastly he was transferred to Muslim Commercial Bank Cantt. Branch Quetta as accountant but the nature of work has not been changed. It is further stated that on 15-7-2004 he was charge-sheeted on the ground that irregularities committed by the manager of the branch and the applicant/respondent did not inform the higher authorities of the bank which has been followed by supplementary charge dated 23-4-2004 and second supplementary charge dated 15-9-2004. The reply of respondent/applicant was not considered satisfactory therefore a letter of inquiry was issued on 10-11-2004. Thereafter inquiry was conducted which was resulted to the dismissal of respondent dated 13-6-2005 against which a mercy petition/departmental appeal has been filed on 8-7-2005 which was rejected on 8-12-2005 and thereafter grievance petition was filed on 13-2- 2006.

4. The learned counsel for appellant contended that the respondent was accountant and does not fall within the category of worker/workman therefore the judgment of the Learned Labour Court was without jurisdiction. Secondly contended that the respondent/applicant did not serve the grievance notice under the mandatory provisions and the Learned Labour Court wrongly treated the departmental appeal as a grievance notice which is contrary to his judgment in the case of Javed Iqbal where the same has not been accepted as grievance notice. Lastly contended that the inquiry was conducted according to law and inquiry report was submitted before the court by the Inquiry Officer. The learned counsel for respondent on the other hand contended that in the case of respondent/applicant eight other officials/officers of the bank separately also charge-sheeted but neither the copy of their charge-sheets nor final decisions produced by the appellant. The learned counsel further contended that the manager of the branch who was main accused of the case in hand but no document in respect of his inquiry was produced in the proceedings. Next contended that the vouchers which were the main documents produced during inquiry has not been signed by the respondent. Further contended that before and during inquiry the respondent requested for supply of necessary documents and examination of such records several time but nothing was supply to him which is the violation of mandatory rules of inquiry. Lastly submitted that the respondent having no power to appoint, dismiss or grant leave or refuse grant leave and grant loan to any one therefore defiantly he was a worker/workman according to Labour Laws.

5. Before taking into consideration the points agitated by learned counsel of appellant it is un-understandable that along with memo. of appeal a huge number of documents has been filed which contains from pages Nos.19 to 592 but a single document of above mentioned has not been relied upon or referred by the learned counsel of appellant during the course of arguments with connection of any agitated point.

6. The main ground of appeal agitated by the learned counsel for appellant that the respondent being an accountant does not fall within the category of workman/worker. It reveals that the respondent was appointed on 30-12-1992 as cashier with pay Rs.995 per month with effect from 2-1-1993 on pay scale No IV. However the learned counsel for appellant contended that later on he was promoted as accountant but no such documents neither produced by the appellant nor available on record. Verbally it came on record that the respondent on his last posting was working as accountant. The learned counsel in support of his contention referred a reported judgment 1985 SCMR 1516 wherein the facts of the case were quite different to one in the hand for the reason that in reported judgment employee was appointed as an accountant holding power of attorney executed in favour of such employee by bank showing that powers conferred on and functions thereby required to be perform by employee could neither be termed as manual nor clerical work and involved exercise of discretion and taking of important decisions. In case in hand though the respondent on his last posting was working as accountant but initially he was appointed as cashier with pay Rs.995 per month and this pay did not seem to be the pay of an officer. Secondly no power of attorney executed in his favour for showing that he was empowered to exercise of discretion and taking of important decisions. However the learned counsel for appellant stressed that the respondent was inter branch signatories. From perusal of this document i.e. list of inter branch signatories no power conferred upon the signatories rather it is an information and acknowledgment to the bank officials that such persons were working in the bank/branch with such signature. The next judgment referred by the learned counsel for appellant referred in 2010 TD (Lahore) 2017 wherein held that the nature of work can be determine through evidence produced by the parities.

7. The learned counsel for appellant contended that the Learned Labour Court declared the respondent as worker on the principle "no power of hire and fire" which is not correct under the relevant laws. In support of his contention he referred a judgment reported in SBLR 2007 Sindh 800 wherein the employee as Officer Grade II has been heading a department of respondent establishment independently and supervising the work of at least five persons having no power of hire and fire and according to power of attorney executed in his favour tends to show that he was not primarily employed as a workman doing manual or clerical skilled or unskilled work but in case in hand the respondent in the establishment of bank neither heading a department and supervising the work of at least of five persons nor power of attorney executed in his favour by the bank. In this regard another un successful attempt made by learned counsel for appellant by referring a reported judgment in NLR 2007 (Labour) 141 where it is held that no doubt employee did not have the power of hire and fire in nature of job as performed by him and evident from the record including the power of attorney in his favour this is also not useful like above mentioned authorities to appellant for the reason that no power of attorney executed in favour of respondent tend to show that he was not primarily employed as a workman doing manual or clerical skilled or unskilled work. However as it is held in this judgment that the nature of work can be determined by the evidence produced by the parities. Now the same will be discussed.

8. Respondent/applicant in his affidavit narrated the story of grievance petition i.e. the facts of his service, show cause, inquiry letter and proceedings of inquiry letter of his dismissal including departmental appeal. In cross-examination he admitted that all vouchers and cheques of the bank has to be signed by him and manager and duplicate keys of strong room was also in his custody. He admitted that he marked his initial in attendance register.

9. The representative of the bank Mr. Muhammad Umar Magsi appeared and in his affidavit supported the claim of bank. In cross examination he admitted that after relive of respondent from Cantt branch this case came in picture and Miss Nazish took the charge of accountant and thereafter general manager Javed Bhatti married to her. To reply a question he stated, To another question he replied, Further stated that, From perusal of above mentioned statements and cross-examination of representative of bank it is crystal clear that the respondent was not heading an establishment of the bank independently and supervising at least five persons and holding any power of attorney showing that the respondent is empowered for important decisions of the matter of the bank. Therefore the Learned Labour Court rightly declared the respondent as worker.

10. The learned counsel for appellant contended that the respondent/applicant did not serve the grievance notice properly and the Learned Labour Court wrongly considered the departmental appeal as grievance notice. In support of his contention he referred a judgment reported in 2002 SCMR 943 wherein the grievance notice has been served by the employee to the President of the bank who was not his appointing authority meaning thereby that grievance notice should be served to the appointing authority. In case in hand departmental appeal has been filled by the respondent/applicant which was considered by the Learned Labour Court as grievance notice against which this point agitated by the learned counsel for appellant. From perusal of record it appears that the respondent/applicant initially appointed on 2-1-1993 by general manager Muslim Commercial Bank and his departmental appeal addressed to the president Muslim Commercial Bank through general manager Muslim Commercial Bank. Now the question arise that whether the departmental appeal in question was a valid information of grievance of the employee to the notice of his employer? The total theme behind the grievance notice is that the employee before approaching the court should bring his grievance in the notice of his employer by himself or shop steward or Collective bargaining agent. Though in departmental appeal the president was addressed but through general manager being the appointing authority. Naturally such appeal came in process through the general manager who automatically received the information grievance notice of employee. Therefore the aim and theme behind the grievance notice became completed when the departmental appeal received by the appointing authority of the employee i.e. general manager. The other point in the argument of learned counsel for appellant that the departmental appeal cannot be treated as grievance notice. The Honorable High Court of Balochistan in a recent judgment dated 2-2-2012 in C.P. No.54 of 2011 held, "The departmental appeal of the respondent No.1 can be treated as grievance notice in view of principle laid down in the case of Nadeem Ahmed Qureshi v. Habib Bank Limited 2009 PLC 160." In view of above citation the departmental appeal can be treated as grievance notice. Therefore this contention is not sustainable in the eye of law.

11. The last and important point of argument of the learned counsel for appellant was about the inquiry conducted according to him in the light of law. The charge sheet dated 15-7-2004 is related to the period from 21-4-2002 to 15-9-2003. Apparently irregularities committed in the bank from serial Nos.2(I) to (XI) did not pertain to the period mentioned above rather these irregularities were happened before the taken over the charge/arrival of the respondent in the bank. The inquiry officer namely Mr. Muhammad Anjum in cross-examination admitted that referred 27 different vouchers and cheques were not signed by the respondent. Further in cross-examination admitted that Similarly the representative of bank Mr. Muhammad Umar Magsi in cross-examination admitted, In reply to another question he admitted, Furthermore record reveals that on 17-7-2004, 25-8-2004 and 20-9-2004 the respondent applied for the relevant documents but nothing had been supplied to him meaning thereby that the charge and inquiry was conducted on their own and mandatory provisions of law of inquiry has been violated by not providing the relevant documents to the respondent which has been admitted by the inquiry officer as well as the representative of the bank in their cross-examination before the Learned trial court.

12. The entire charge has been labeled against the respondent on the following ground:

"All the above fraudulent activities of Mr. Athar were committed in conivance with you as such you concealed the facts and did not inform the higher authorities." It is not known that how the inquiry was conducted against such allegations against the manager wherein the manager has been terminated. Though no record is available but it comes verbally on record that the all loss of the bank has been deposited by that manager. So far as the allegation against the respondent that he has not informed the higher authorities about the illegal activities committed by the manager is concerned no such rules or law or any direction produced by the appellant that the accountant had any power under any direction to convey the illegal activities of the manager (who was his immediate boss) to the higher authorities. However the representative of the bank Mr. Muhammad Umar Magsi in cross-examination stated that, Though this answer is one of a routine but if the witness denied that such orders has not been seen by him than in addition or voluntary he has to explain such terms and conditions or law. Furthermore it is against the common sense that a subordinate having such power/authority to report the illegal activities of his immediate boss to the higher authority. The allegations mentioned in charge-sheets, manner of conducting inquiry and admission of inquiry officer that 27 vouchers bears no signatures of respondent. Further as pointed out earlier that in charge-sheet dated 15-7-2004 at serial Nos.2(I) to (XI) the allegation has been committed before the transfer/arrival of the respondent particularly the bank suffered no financial lose, therefore with utmost efforts, I could not find myself in agreement with such points agitated by the learned counsel for appellant meaning thereby that I am least impressed by the points agitated before this Tribunal in appeal. Consequently the judgment / order dated 29-3-2012 passed by Learned District and Session Judge 1st Labour Court Quetta in Case No 2 of 2012 is up held and appeal is dismissed with no order as to cost.

13. The copy of order along with original record of trail court be sent to trial court. Case after completion be consigned to record. HBT/20/BLT Appeal dismissed.