1992 PLP 554 (PLC)

MUKHTAR AHMED JUNEJO, J.

Petitioner-bank has invoked Constitutional jurisdiction of this Court against an order dated 23-2-1988 passed by learned Sindh Labour Appellate Tribunal in Appeal No. HYD-365 of 1987. Admittedly respondent No.2 was in service of petitioner-bank when on 3-12-1985 his services were terminated after domestic inquiry. Respondent No.2 filed grievance application No.62/87 in the Labour Court at Hyderabad but the same was dismissed on 14-10-1987. Respondent No.2 took the matter to learned Sindh Labour Appellate Tribunal which under the impugned order set aside order about termination of service and accepted the appeal and ordered respondent No.2 to be reinstated in service with 30% of the back benefits. Hence this Constitution petition. Mr. Abdui Ghani learned counsel for the petitioner argued that the respondent No.2 was an officer as his principal duty was managerial and he was given power of attorney by the petitioner-bank and as such the. Labour Court had no jurisdiction in the matter. Learned counsel for the petitioner next argued that removal of respondent No.2 from service was according to law as, respondent No.2 was absent from his duty since 11-2-1984 and consequently his period of absence was treated as leave without pay and his services were terminated. Commenting on the order of Tribunal, learned counsel for the petitioner argued that treating period of absence from duty, as extraordinary leave was not punishment in terms of Order 15 and that the respondent No.2 could be dismissed due to long absence was treated as leave without pay. In respect of the objection about charge-sheet being time-barred, learned counsel for the petitioner argued that absence from duty gave continuing cause of action to the petitioner and as such issuance of charge-sheet on 9-6-1985 was not time-barred. Learned counsel challenged the grievance application to be time-barred on the ground that it was filed in March, 1987 in respect of termination order passed on 3-12-1985 and served on the respondent No.2 on 5-12-1985. While dismissing grievance application of the respondent No.2 learned Labour Court under the order dated 14-10-198'' held that the respondent No.2 was proved to be absent without any permission or intimation and his services were lawfully terminated under a letter dated 3-12-1985, that the respondent No.2 being holder of power of attorney on which he had acted cannot be covered by the definition of workman and his grievance application was non-maintainable on that score and that respondent No.2 had no case at all. While accepting the appeal, learned appellate Tribunal under the impugned order took the view that the respondent No.2 could not be punished twice for one and the same charge of misconduct and that the respondent No.2 was a workman within the meaning of Labour Laws and his grievance application was maintainable and the order about termination of his services could not be sustained and was liable to be set aside and that grievance application was within time. We find ourselves unable to agree with the view taken by learned' Tribunal that treating of absence, as extraordinary leave, would amount to punishment. The punishments, which could be awarded to workmen, have been specified in Standing Order 15 and treating of absence from duty as extraordinary leave without pay, is not recognized as one of the punishments. Had the period of absence been allowed as leave with pay, the respondent No.2 could have taken the plea that by allowing him full pay for the period of absence, the Management had given him a clean slate and as such he was not liable for the misconduct for having remained away from duty for more than 10 days. In his application as well as his affidavit respondent No.2 gave the nature of his duties. In para.2 of his affidavit it is stated that his main and primary duties were clerical and he had no power and authority to hire and lire and he never performed any managerial or supervisory duty and he never acted as general attorney of the petitioner. In his cross-examination he admitted that he was officer in United Bank Limited and was holder of power of attorney but added that no document was given to him as power of attorney and that he never exercised the power of attorney during the tenure of service. There is evidence in rebuttal to the effect that the respondent No.2 was not a workman and he was full-fledged officer and attorney-holder of the bank and used to perform managerial and supervisory duties, etc. It is a settled position of law that the nature of duties which an employee performs alone can determine whether he is a workman or worker, irrespective of his designation. On the B basis of evidence on record learned Tribunal rightly arrived at the conclusion that the respondent No.2 was a `workman' and as such his grievance application was maintainable. Fact that the respondent No.2 absented himself from duty since 11-2-1984 is born;, out by the record and even learned Tribunal did not hold otherwise. For such absence which amounts to `misconduct' the respondent No.2 could be given the punishment of termination from service, under Standing Order

15. On the point of the grievance application being time-barred we agree with the reasoning given by learned Tribunal. As a result of the entire discussion we accept this petition and declare the impugned order dated 23-2-1980 passed by learned Tribunal to be without lawful authority and of no legal effect. The petitioner bank may withdraw the back benefits deposited by it in pursuance of the impugned order. These are reasons for our short order dated 21-10-1991 passed in identical terms. H.B.T./U-l22/K Petition accepted.