1. ' This appeal under section 47(3) read with section 48 of the Industrial Relations Ordinance, 2002, has been filed against the order dated 24th December, 2003, passed by learned Presiding Officer Labour Court No,VI Hyderabad, on an application under section 25-A, I.R.O. 1969, whereby the application has been allowed and the respondent has been directed to be reinstated in service with back-benefits.
2. ' The relevant facts are that the respondent was appointed as Officer Grade-III on 12-3-1989, in Muslim Commercial Bank Ltd. While he was working as Accountant at the Muslim Commercial Bank Kotri Branch, he was charge-sheeted on 18-9-1997 with the allegation of misappropriation of different amounts. The respondent replied the charge-sheet which was not found satisfactory and Enquiry Officer was appointed to hold the enquiry. An enquiry was duly held and the Enquiry Officer held that the charges were proved, hence the respondent was dismissed from service. The respondent preferred an appeal with General Manager of Muslim Commercial Bank and served a grievance notice on the Regional Manager of Muslim Commercial Bank on 18-4-1998. Thereafter, the respondent approached the Labour Court with the application under section 25-A I.R.O.
3. 1969. The appellant raised several objections to the maintainability of the application. It was contended, inter alia, that the respondent was not a workman but was an Officer Grade III and therefore, the application under section 25-A of I.R.O. 1969, was not maintainable.
4. ' The respondent examined himself only in evidence. No other witness was examined by him and no record was called. He then closed his side.
5. ' Appellant Bank examined Muhammad Naeem Abro Enquiry Officer and Assistant Vice President of the appellant Bank filed his affidavit in evidence. Mr. Zafar Alam Baig Senior Vice President and General Manager of the appellant Bank also filed his affidavit in evidence. He produced copy of Muster Roll and Pay Roll showing that the respondent was working as Accountant. He further produced copy of revised scale of pay and allowances to show that respondent was an officer and was working in supervisory capacity and was not a workman. The learned Labour Court framed the following points for consideration:--
1. Whether the petition is not maintainable under the law?
2. Whether the petitioner is entitled to the relief claimed?
3. What should the order be?
6. ' While considering the status of the respondent, the learned Labour Court observed that it is an admitted fact that respondent Muhammad Hussain Larik was Grade III Officer of the Bank, The learned Labour Court further observed as follows:-- 9 Now, it is well settled law that the test of determination of question whether an employee is a workman within the meaning of various statute in the field of labour legislation only the nature of the work done by the employee would be essential and fundamental consideration for determining the question regarding his status as a workman and his designation has no any effect and cannot be treated as conclusion for that purpose. The Hon'ble Supreme Court further held that neither the designation nor the amount of salary was factor for determining the employee to be a workmen or not, but exactly the criteria was the work which the employee is doing at the time of termination of his service. Thus the actual nature of work is a deciding factor to determine the status of employee regardless of designation given by the employer to him. As some time even the designation is a decorative and does not enhance the status of the employee. For the above views the reliance is placed on a case reported as 2000 PLC 585. From the above it is clear that mere the fact that petitioner was Officer Grade-III will not debar him from filing petition, if he was doing the manual or clerical work at the time of termination of his service ' After making the above observation the learned Labour Court examined the factual position and held that there was evidence on record that respondent Muhammad Hussain Larik was not working in any supervisory position but was doing the clerical work and was not having supervisory duty over the staff, therefore, he was a workman. He placed reliance on reserved judgment in which it was held that where an officer in Grade-III in the Bank was performing duties of clerical nature and not of supervisory nature he was a workman. The learned Labour Court further held that the respondent Muhammad Hussain Larik an Officer in Grade-III was performing the clerical duties and some other Managers were holding the charge of the branches, therefore, he was doing clerical nature of work assigned to him by respective Managers and he was a workman. He, therefore, held that the Labour Court had jurisdiction to entertain the petition. The learned Labour Court thereafter discussed the merits and held that the dismissal of the respondent was no sustainable. The order of dismissal was, therefore, set aside and the respondent was ordered to be reinstated in service with all the back-benefits.
7. ' With the consent of learned Advocates for the parties the entire appeal was heard at the Katcha Peshi stage and was finally disposed of.
8. ' Mr. Mchmood Abdul Ghani, learned consel for the appellant has submitted that there can be no cavil to the proposition contained in the observation of learned Labour Court that the test of determination of question whether an employee or a workman is the nature of work done by the employee and a mere designation is not the determining factor. He has however, vehemently argued that the learned Labour Court has conveniently ignored the suggestions made by the respondent in the cross examination of the respondent. He has taken me through the cross examination of the respondent in which he has admitted that his duty was to maintain Ledger Book, Pay Order and Cheque Book. He has further conceded that the Accounts section comes under the charge of Accountant. The respondent has further conceded in the cross examination that in the Branches of Muslim Commercial Bank Managerial and supervisory work is being done by the Manager of Officer Grade-I, II and III. Mr. Mehmood Abdul Ghani has submitted that in view of admitted fact that the respondent was appointed as Officer in Grade-III and was working as Accountant the burden was on respondent to establish by documentary or oral evidence that he was not performing supervisory duties and was in fact performing the clerical and manual duties.
9. Respondent has neither called any record in this behalf nor has produced any oral evidence and, therefore, has failed to. Discharge the burden. In support of his contention Mr. Mehmood Abdul Ghani has placed reliance on the judgment of Honourable Supreme Court in the case of National Bank of Pakistan v. Punjab Labour Court No,V (1993 SCM R 672) wherein after referring the earlier decisions of the Supreme Court it was held as follows:-- "11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be essential and fundamental consideration for determining the question and not his designation, which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted.
10. ' In this judgment Honourable Supreme Court has held that the employee was an Officer in Grade-II and it is well-settled proposition of law that a person who approaches a Court on the basis of averment that he is a workman within the definition of clause (xxviii) of section 2 of I.R.O., the burden of proof lies on him and not on the employee. It was further held by the Honourable Supreme Court that the employee failed to discharge the burden of proof that he was workman and therefore, his petition under section 25-A of the I.R.O. Was liable to be dismissed. Same view was taken by another Bench of Honourable Supreme Court in the case Managing Director Sahi Bottlers v. Punjab Labour Appellate Tribunal (1993 SCM R 488). In this case the Honourable Supreme Court has held that the burden was on employee to prove that he was workman and performed purely clerical and manual duties as was claimed by him. The Honourable Supreme Court further observed that it was incumbent upon the employee to have produced documentary or oral evidence in support of his contention that he was workman and performed duties of clerical and manual nature. He could have produced witnesses in support of his contention. The Honourable Supreme Court held that the employee failed to discharge the burden and consequently the application under section 25-A was dismissed for the reason that the employee was not a workman.
11. ' On the other hand Mr. Manzoor Ahmed Shaikh, learned counsel for respondent submitted that admittedly the respondent was working as an Accountant and it has been held by the Honourable Supreme Court that even a Chief Accountant having no supervisory functions to perform, was a workman. He placed reliance on the case of Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani (1979 SCM R 304). The learned counsel was asked whether any documentary or oral evidence was produced by the respondent in support of his contention that although he was appointed as Officer in Grade-III but he was not performing the supervisory duties and was performing the duties which were clerical and manual in nature. The learned counsel has candidly stated that the respondent examined himself only and produced no other documentary or oral evidence.
12. ' Exercising the right of rebuttal Mr. Mehmood Abdul Ghani has submitted that the Honourable Supreme Court in the case of National Bank of Pakistan v. Punjab Labour Court No,V (supra) considered its judgment in the case of Dost Muhammad Cotton Mills delivered in the year 1975, and held that the status of an employee was to be determined on the basis of his actual duties performed and the burden was on the workman to prove this question of fact. In the absence of any evidence it was not for the employer to disprove the fact.
13. ' I have carefully considered the facts obtaining on record and the contentions raised by the learned advocates for the parties. It is admitted position that the respondent was appointed as Officer in Grade-III and he was working as Accountant. Thus in these circumstances, the burden was on the respondent to prove that notwithstanding the fact that his designation was of Officer Grade-III and he was drawing a salary of Rs,15,000 p.m. But actually he was performing duties which were clerical and manual in nature and were not supervisory, as held by the Honourable Supreme Court in the judgments referred to above. Admittedly the respondent has failed to discharge the burden and I am constrained to observe that the observation of learned Labour Court that it has come on record through evidence that respondent Muhammad Hussain Larik was not working in any supervisory position, but was doing the clerical work and was not having supervisory duty over the staff, is a figment of imagination and is not based on the evidence on record. The learned counsel for the respondent has frankly conceded that no documentary or oral evidence was produced by the respondent in support of his contention and there was sole word of the respondent on the record.
14. ' I am fully satisfied that the finding of the learned Labour Court that the respondent was a workman is not substantiated with the evidence on record consequently the application under section 25-A of the I.R.O., 1969 was liable to be dismissed. The impugned judgment of the learned Labour Court No,VI Hyderabad is hereby set aside. The appeal is allowed accordingly.
15. ' After hearing learned Advocates for the parties on 30-3-2004, the appeal was allowed by a short order. These are the detailed reasons in support thereof.