' Syed Nair Abbas Naqvi petitioner is employed as Officer Grade III in the Establishment of Allied Bank of Pakistan. The petitioner appeared for the Banking Diploma Examination conducted in April, 1999 by the Institute of Bankers Pakistan Karachi.
2. It is admitted by the petitioner in para. 4 of the instant petition that in the paper of Higher Accountancy Part II held on 16-4-1999 a third person sat in the examination in place of the petitioner although, he has attempted to justify the same on the ground of exceptional circumstances. Consequently, vide order dated 10-7-1999, the Council of the Institute of Bankers.
Pakistan found him guilty of use of unfair means in the examination, cancelled his result in all the subjects and debarred him from appearing in the Institute's subsequent ten examinations. The employer of the petitioner namely Allied Bank of Pakistan subsequently issued a charge-sheet dated 15-7-1999 (Exh.P.1), wherein, misconduct of using unfair means was alleged against the petitioner within the terms of the Staff Service Rules. The petitioner submitted his reply on 19-7-1999 (Exh. P.2). An inquiry was conducted, wherein, the charge levelled against the petitioner was approved. Subsequently, vide order dated 19-10-1999 (Exh. P.5). The petitioner was dismissed from Bank's Service with immediate effect. The petitioner filed a departmental appeal against the order of dismissal on 11-11-1999 (Exh. P.6). The same was rejected on 24-4-2000 vide Exh. P.7. The petitioner preferred a Service Appeal before the Federal Service Tribunal bearing No,163 (R)-C-E- 2000. The same was however, dismissed on 10-6-2000 on the ground that Messrs Allied Bank of Pakistan Limited is owned by the Federal Government to the extent of 49% share only and that 51% shares thereof stand privatized. It was held that according to section 2-A of the Service Tribunal Act, 1973 it was not established that Federal Government has the controlling shares in the Allied Bank of Pakistan. The petitioner was not found to be a civil servant and his appeal was dismissed.
3. The petitioner thereafter filed a Grievance Petition under section 25-I.R.O. 1969 before the Punjab Labour Court No,6 Rawalpindi.
4. The said petition was contested both on law and facts of the case. It was contended that the mandatory grievance notice was not served upon the respondents; that the petition was barred by time; that the petitioner does not fall within the definition of a workman; that the Standing Orders Ordinance 1968 did not apply to the Branch where the petitioner was employed as the number of workers in that branch was less than 20 and that the petitioner has confessed his guilt and therefore, he was rightly dismissed from the service.
5. In support of his case, the petitioner appeared as his own witness as P.W.1 and also placed on the record documents Exh. P.1 to Exh.P.9. On the other hand, the respondent/hank produced Iftikhar-ul- Haq AVP RW.1 and Nasir Ahmed AVP as RW.2 besides tendering documents Exh. R.1 to Exh. R.24 on the record. The learned Labour Court found trot the departmental appeal Exh. P.6 can lawfully be considered as grievmce notice; that the grievance petition was within time under the circumstances of the case; that the Standing Orders Ordinance, 1968 was applicable to the Establishment of Allied Bank of Pakistan; and that as the petitioner was already punished by the Institute of Bankers by debarring him from appearing in subsequent examination for five years, the order of dismissal passed by the respondent/Bank was in violation of Article 13 of the Constitution of Islamic Republic of Pakistan.
6. Consequently, vide order dated 11-12-2000 the petitioner was reinstated in service although without the grant of back-benefits.
7. The petitioner filed an appeal against the non-grant of back-benefits while the respondent/Bank filed an appeal against the order re-instating the petitioner.
' Both these appeals came up for hearing before the Punjab. Labour Appellate Tribunal Lahore, vide judgment dated 20-2-2002, the appeal filed by the bank was accepted, the order of re- instatement passed by Labour Court was set aside and the grievance petition of the petitioner was dismissed. The connected appeal of the petitioner for grant of back-benefits was consequently dismissed. The learned Appellate Court found that the departmental appeal filed on 11-11-1999 could not be lawfully considered as the grievance notice as mandated by law. Regarding the status of the petitioner as workman it was held that upon the basis of the evidence on the record particularly, in the presence of a power of attorney executed by the Bank in favour of the petitioner, the petitioner did not fall under the definition of a worker either under the Standing Orders Ordinance, 1968 or Industrial Relations Ordinance, 1969. The finding to the contrary arrived at by the Labour Court was held to be without any basis and justification.
8. The objection that each branch of the Bank should be treated as a separate establishment was upheld and it was found that the Standing Orders Ordinance, 1968 did not apply to the Trunk Bazar Branch of the Bank as it employed less than 20 workmen. The Grievance Petition was found to be not maintainable on this score also.
9. On merits the order of dismissal was not found to contravene the principle of double jeopardy and the fundamental rights as enshrined in the Constitution of Pakistan, 1973.
10. Choudhary Afrasiab Khan, Advocate for petitioner, has challenged the judgment of the Punjab Labour Appellate Tribunal on a number of grounds. He submitted that the petitioner had unblemished record and that throughout he had served the bank to the best of his ability. He contended that as the Institute of Bankers Pakistan had already awarded him punishment by debarring him from appearing in the examination for 5 years, no further action by the department was warranted. He referred to the recommendations made by the Circle Chief Rawalpindi as also the Provincial Chief Punjab Lahore (of the respondent/Bank), wherein, it was proposed that the petitioner may be re-instated in service with stoppage of two grade increments. It was further contended that the petitioner moved the Federal Service Tribunal after the service of departmental appeal, under a bona fide belief that he was a civil servant within the meaning of section 2-A of the Service Tribunal Act, 1973. His appeal was dismissed by the Federal Service Tribunal on the grounds that Allied Bank of Pakistan is owned by the Federal Government to the extent of 49% shares only and thus it cannot be said that the said establishment was under the management or control of the Federal Government. Even while dismissing his appeal, the Federal Service . Tribunal recommended that appeal filed by the petitioners was bona fide and in good faith and that it was dismissed only on a technical ground. From this, the learned counsel for the petitioners urges that departmental appeal could rightly be considered and treated as a grievance notice and that the finding to the contrary made by the Labour Appellate Tribunal is against law. As regards the applicability of Industrial and Commercial (Standing Orders) Ordinance, 1968, it was urged that it was fallacious to hold that, for the purpose of Standing Orders Ordinance, 1968 each branch of the Bank shall be treated as an independent establishment. According to him, if this construction is accepted, it would lead to anomalous and absurd results as in that case, in the same establishment, some branches will be considered to be covered under the Standing Orders Ordinance, 1968 while the others shall stand deprived from such application. This according to him shall be against the principle of consistency and shall give rise to discrimination. Upon the question of status of the petitioner as a workman he strongly contended that upon the evidence on the record, the petitioner had been able to prove that he was a worker/workman as defined under the Standing Orders Ordinance 1968 as well as Industrial Relations Ordinance 1969. According to him neither the designation nor the salary was relevant for the purpose of determination of the status of a person as a workman. The petitioner had been able to prove that he was performing manual and clerical work and that he had no managerial or supervisory powers. The power of attorney placed on the record as Exh. R.1 was not a subsisting document, as it stood specifically cancelled as depicted from Exh. R.1 itself. According to him no reliance whatsoever could be placed upon this document.
11. Conversely, the Mr. Shahid Anwar Bajwa, Advocate on behalf of the respondent/Bank has strongly supported the judgment of the Labour Appellate Tribunal. He has relied upon Abdul Razzaq. v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505, Muhammad Aqil, v. Sindh Labour Appellate Tribunal and another PLD 1978 Karachi 649, Messrs Kashmir Corner v. Sind Employees Social Security. Institution Karachi, PLD 1975 Karachi 36 Muhammad Hanif and others v. Messrs Utility Store Corporation of Pakistan (Pvt.) Ltd. Hyderabad and others 1996 PLC 170 and Messrs Allied Bank of Pakistan Ltd. v. Aleern Haider and another 1997 PLC 219 in support of the contention that each branch of a Bank is a separate establishment. The learned counsel has further made reference to Mustahkum Cement Limited. v. Abdul Rashid and others 1998 PLC 172 and Messrs Wah Industries Limited Wah Cantt, District Rawlapindi v. Punjab Labour Appellate Tribunal Lahore and 2 others 1998 PLC 1 to contend that a dismissed employee does not fall within the definition of worker under the Industrial Relations Ordinance, 1969. He submitted that in such a situation, the petitioner had no right secured or guaranteed to him under the Standing Orders Ordinance, 1968 and that his Grievance Petition was not maintainable. The learned counsel for the respondent also vehemently urged that a holder of a power of attorney is not. a workman because an attorney is always considered to be an agent of the employer and thus an employer himself. He has supported his submission by referring the Ganga R. Madhani. v. Standard Bank Ltd and others 1985 SCMR 1511.
12. Challenging the grievance notice, the learned counsel has relied upon Khushal Khan v. Muslim Commercial Bank Ltd. And others 2002 SCMR 943. He contended that a grievance notice to the Appointing Authority or an Authority Higher than the Appointing Authority was not lawful.
13. It was contended that the departmental proceedings and proceedings before the outside agencies do not operate as double jeopardy nor does it violate the rights guaranteed under Article 13 of the Constitution of Pakistan, 1973. It was lastly contended that the grievance petition was barred by time as the petitioner was dismissed from service on 19-10-1999 while he filed the Grievance Petition under section 25-A on 30-6-2000.
14. Arguments have been heard and record perused.
15. The petitioner appeared as P.W.I. He stated that "I was doing manual work during my service. I used to prepare vouchers and statement. My job was not of supervisory nature." In cross- examination he denied the suggestion that his job was of supervisory nature. On the other hand, R.W.1 merely stated that the petitioner performed supervisory duty, he did not produce any document which prescribed the job discription of the petitioner. The mere oral assertion of RW.1 that the petitioner was performing supervisory duty is not sufficient to prove that the petitioner was in fact performing such functions. I have examined Exh. R.1 which is a copy of power of attorney issued in the name of the petitioner. It is dated 11-4-1998. This power of attorney has however, been cancelled as per seals of cancellation present on this document itself which has been produced by the respondents. Nothing is forthcoming on the record through the evidence of the respondent as to when this power of attorney was cancelled. No reliance can thus be placed upon this power of attorney and the reliance placed upon this document by the learned Punjab Labour Appellate Tribunal is wholly misplaced.
16. It is also noticed that the learned Appellate Tribunal has placed reliance upon the so called admission of the petitioner made in cross-examination that "It is correct that I was officer and attorney holder in the Bank". While interpretating this statement, the Tribunal clearly overlooked, the fact that even if at some time the power of attorney was executed in favour of the petitioner, it clearly stood cancelled as is depicted by Exh. R.1 itself. The learned Tribunal also misread the evidence of the petitioner when it held that the petitioner stated that "my job was of supervisory nature." In fact what he stated was as under:-- "It is incorrect to suggest that my job was of supervisory nature."
17. In this view of the matter, the findings of the learned Appellate Tribunal that the petitioner was not a workman cannot be sustained. Although, the learned Labour Court did not elaborate the reasons for holding the petitioner to be a workman yet it felt satisfied that the dicta recorded in Emirates Bank International and another v. Rana Zahid Iqbal and 2 others 1999 PLC 302 supported the case of the petitioner to be a workman.
It is by now an established principle of law that neither designation nor salary is relevant in determining the status of an employee as a workman. It is the essential nature of work that a person performs which shall include him within the pale of the terms workman.
18. The next finding of the learned Appellate Tribunal that the petitioner was employed at the Trunk Bazar Branch of ABL where only 7 or 8 persons were employed as workman and thus the said branch was not covered under the Standing Orders Ordinance, 1968 is also erroneous. While holing that the Trunk Bazar Branch was an independent establishment, reliance has been placed on Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505, and the cases of Muhammad Aqil PLD 1978 Karachi 649, Messrs Kashmir Corner PLD 1975 Karachi 36, Messrs Utility Stores Corporation 1996 PLC 170 and Messrs Allied Bank of Pakistan 1997 PLC 219 supra.
19. The rule of law laid down in Abdul Razzaq. v. Messrs Ihsan Sons Limited supra is based upon facts which are distinguishable from the case in hand. The question involved in that case was whether the office of Messrs Ihsan Sons Limited and the factory constituted two separate establishments. It was in that context held that the office or the clerical department of a factory has been included in the definition of the term "Commercial Establishment" while the factory belonging to the same ownership and management was held to be an "Industrial Establishment "as defined in the Standing Orders Ordinance, 1968. It was in this view of the matter that it was held that a commercial establishment and an Industrial Establishment shall be dealt with as separate establishments and as only seven persons were found to be working in the office, it was held that the provisions of Standing Orders Ordinance were not applicable to the office establishment of the employer.
In the present case all the various branches of the Allied Bank of Pakistan, regardless of where they are located all are commercial in nature and shall not be treated as separate establishments from one another.
' It is on the record that there are almost 900 Branches of the Allied Bank of Pakistan operating throughout the country. It would indeed be anomalous to consider any of such branches to be an establishment different or apart from the Corporate commercial body which is incorporated as the Allied Bank of Pakistan Limited for the purposes of the Industrial and Commercial Standing Orders Ordinance, 1968.
20. The reliance placed upon the other cases cited in this respect is also misplaced. The case of Muhammad Aqil supra is distinguishable as it was dealing with the provisions of Industrial Relations Ordinance only. In the case of Messrs Kashmir Corner supra the provisions of West Pakistan Employees Social Security Ordinance of 1965 was the subject-matter of interpretation and did not relate to a case under the Industrial and Commercial Standing Orders Ordinance, 1968. The case of Muhammad Hanif supra is based primarily on the decision of Sindh High Court in the case of Messrs Ihsan Sons Limited v. Abdul Razzaq 1987 PLC 390. This judgment was assailed before the Hon'ble Supreme Court, wherein the judgment reported as Messrs Ihsan Sons Limited v. Abdul Razzaq 1987 PLC 390. This judgment was assailed before the Hon'ble Supreme Court, wherein the judgment reported as Abdul Razzaq v. Messrs Ihsan Sons Limited 1992 SCMR 505 was rendered. It has already been discussed how the case in hand is distinguishable from the facts of the case of Abdul Razzaq supra. Similarly, no reliance can be placed upon the case of Messrs Allied Bank of Pakistan v. Aleem Haider supra as the judgment rendered by the Labour Appellate Tribunal Sindh is non-speaking and merely refers to some case decided on the basis of the decision of the Supreme Court. The learned counsel for the respondent has not been able to specify if the judgment of the Supreme Court mentioned in the case of Messrs Allied Bank supra was some other than the one recorded in the case of Abdul Razzaq v. Messes Ihsan Sons Limited 1992 SCMR 505.
21. For the foregoing reasons, it is held that the provisions of Standing Orders Ordinance, 1968 are applicable to the branches of the Allied Bank of Pakistan which are all performing the same commercial activity. While construing the applicability of the Industrial and Commercial Standing Orders Ordinance, 1968 to the various branches of the same commercial organization it would not be advisable to look to the definition of term establishment used in the context and for the purpose of Industrial Relations Ordinance, 1969 or for the purpose and object of any statute other than the Standing Orders Ordinance, 1968. Important individual rights are secured and guaranteed under the Standing Orders Ordinance, 1968. Relevant for the present purpose are standing Order 12(3) and Standing Order 15(4)(5) which are reproduced as under:- ' 12(3) The Service of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of -is services or removal, retrenchment, discharge or dismissal, he may (take action in accordance with the provisions of) section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance.
' 15(4). No order of dismissal shall be made unless the workman concerned is in formed in writing of the alleged misconduct (within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer) and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and (the employer shall) institute independent inquiries before dealing with charges against a workman.
' 15(5). Where, for the purposes of conducting an inquiry into the alleged misconduct of a workman, the employer considers it necessary he may suspend the workman concerned for a period not exceeding four days at a time (so however that the total period of such suspension shall not exceed four weeks except where the matter is pending before an Arbitrator, a Labour Court, Tribunal or Conciliator for the grant of permission under section 47 of the Industrial Relations Ordinance, 1969 (XXIII of 1969). The order of suspension shall be in writing and may take effect immediately on delivery to the workman. During the period of suspension, the workman concerned shall be paid by the employer subsistence allowance of not less than fifty per centum of the wages.
If the workman is found not guilty he shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been suspended.
22. "Commercial Establishment" as per section 2(b) of the Ordinance, 1968 means an establishment in which the business of advertisement commission or forwarding is conducted or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking. The office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock exchange, a club, a hotel, a restaurant or an eating house, a cinema or threatre and such other establishments or class thereof, as Government may by notification in the official Gazette, declare to be a commercial establishment for the purposes of this Ordinance.
23. It follows from the above that a Banking Company or a bank is a commercial establishment notwithstanding its location or strength of its employees in a particular branch. The use of the phrase "a unit of a joint stock company" shall not ipso facto imply that a branch of an Insurance Company a Banking Company or a Bank etc. Shall also be considered as a unit of the commercial establishment and thus be considered as a separate establishment.
' It would indeed be discriminatory to hold that a branch of banking company if it employs less than 20 persons shall not be covered by the provisions of Ordinance of 1968. It would certainly lead to anomalous results if two or more branches of the same commercial establishment located in the same city or locality are differently treated on the solitary ground of the strength of employees in a particular branch. The ultimate management and-control including financial matters vest in the Board of Management (by whatever name it might be called) of the Corporate Commercial Body. For this reason and other cognate factors, it is held that a branch of a banking company is not a separate establishment. Standing Orders Ordinance, 1968 is applicable in the case of the petitioner and petition before Labour Court was competent. The next contention of the learned counsel for the respondent that the departmental appeal filed by the appellant before an authority higher than the Appointing Authority does not constitute a valid grievance notice is devoid of force.
The reliance placed upon the case of Khushal Khan. v. Muslim Commercial Bank Limited 2002 SCMR 943 is not apt. There is nothing on the record to suggest as to who in the case of the petitioner was the competent or the Appellate Authority. In any event the grievance notice as contemplated in section 25-A I.R.O. 1969 implies that the worker may bring his grievance to the notice of the employer in the manner specified therein. The expression "employer" is defined in section 2 (viii) and means any person or body of persons whether incorporated or not who or which employees workman in the establishment under the contract of employment and includes any person responsible for the management, supervision and control of the establishment.
24. The concept of an "Authorised Officer" or "Authority" or the "Departmental Appellate Authority" is completely alien to the identity of the employer as contemplated in section 25-A I.R.O.
1969.
25. This being so the requirement of the service of a grievance notice is fulfilled, if such a representation or notice is communicated to a person who is responsible for the management control or supervision of the Establishment whether or not such a person is higher than the Appointing Authority of the concerned worker.
26. There is force in the contention made by the learned counsel for the petitioner that the nature of offence was such as was directly concerned with the Institute of Bankers in Pakistan and that the petitioner has been inflicted with suitable and commensurate penalty by the said institute by debarring the petitioner from taking part in ten subsequent examinations held by the Institute. He has also referred to the recommendations made by the Circle Chief Rawalpindi as also the Provincial Chief Punjab Lahore of the respondent/Bank, wherein it was proposed that the petitioner may be reinstated in service with stoppage of two grade increments. While passing the impugned order of dismissal from service, the respondents have not mentioned why the aforesaid recommendations were not worthy of consideration. Even otherwise in view of the imposition of the punishment by the Institute of Bankers Pakistan the extreme punishment of dismissal from service appears to be harsh and not commensurate with the offence alleged against the petitioner even if proved.
27. As regards the contention that the Grievance Petition was not within time, suffice it to say that even the Labour Appellate Tribunal had decided to condone the delay in view of the fact that the petitioner had earlier approached the Federal Service Tribunal which while dismissing his appeal nevertheless held that the said appeal was filed by the petitioner in a bona fide manner and was dismissed on a technical ground only. The respondent did not agitate the condonation of delay by the Labour Appellate Tribunal through any independent proceedings and the respondent cannot be allowed to plead limitation in these proceedings. The relevant portion of the judgment of the Tribunal is an under:-- "As regards the last point regarding limitation, the learned counsel for the petitioner/respondent has frankly conceded that the petition was time-barred by a few days and taking a lenient view I condone this delay which is not fatal for the petition at all."
28. The upshot of the above discussion is that the petition is allowed and the judgment dated 20- 2-2002 of the Learned Punjab Labour Appellate Tribunal Lahore is set aside. The petitioner stands re-instated in service. The re-instatement shall, however, be subject to stoppage of two grade increments as recommended by the Circle Chief as well as the Provincial Chief Punjab Lahore of the respondent/Bank. The re-instatement shall also be without the grant of back-benefits.