This appeal is directed against the order dated 5-10-2002, passed by Presiding Officer Labour Court No,VI, Hyderabad, in the matter of an application under section 25-A of I.R.O. 1969, whereby the grievance petition filed by the applicant against his dismissal from service was dismissed for want of jurisdiction.
2. Briefly stated that facts relevant for the purpose of disposal of this appeal are that at the relevant time the applicant was serving with the respondent/Allied Bank of Pakistan and was posted as Incharge Foreign Exchange Department Station Road Branch Hyderabad. It appears that irregularities were detected to have been committed by the petitioner hence he was issued a letter of explanation on 29th September, 1999. It seems that the explanation offered by the respondent was not found satisfactory and, therefore, an inquiry was initiated against him. Eventually the applicant was dismissed from service vide letter dated 7th February, 2000.
3. After serving the grievance notice upon the respondent/Bank the petitioner filed a grievance petition before the Labour Court.
4. Upon service the respondents filed their written statement. The respondents challenged the status of the petitioner to invoke the jurisdiction of Labour Court stating that at the relevant time the applicant was posted as Incharge Foreign Exchange Section and was holding a duly executed power of attorney and was IBS signatory as such he was not a workman. Respondents denied that the petitioner was doing any manual or clerical work claiming that the applicant/Appellant was employed in a fiduciary and managerial capacity hence the petition was not maintainable.
5. The Labour Court framed the following issues out of the pleadings of the parties.
1. Whether the applicant was a workman?
2. Whether the applicant is entitled to maintain this grievance petition?
3. Whether the grievance notice served by the Applicant upon respondent?
4. Whether the establishment where the applicant was employed at material time, the number of workman were less than 20?
5. Whether the application is time-barred?
6. Whether a proper enquiry was held before dismissing the applicant from his service?
7. Whether the order of dismissal was passed by the competent authority appointed by respondent?
8. What should the order be?
6. Evidence was led by the parties. The petitioner appeared as his witness and reasserted the facts as given in the petition and the grievance notice. One Nafees Noor Incharge Foreign Exchange Saddar Branch Hyderabad and Hafiz Muzaffar Ali adduced evidence on behalf of respondent/Bank.
7. After hearing the arguments and going through the pleadings and the evidence learned Labour Court came to the conclusion that the applicant was not a workman and, therefore, the Labour Court had no jurisdiction to entertain the grievance petition. It was accordingly dismissed. Hence this appeal.
8. Mr. Abdul Ghani Khan, Advocate argued the case on behalf of the Appellant while Mr. Shahid Anwar Bajwa, Advocate represented the respondents.
9. It was contended on behalf of the Appellant that the judgment passed by the Labour Court was against the evidence as the Appellant has placed on record Cashier's Daily Memo. Book pertaining to 25th May, 1999, which was in the hand of the petitioner which was enough proof to show that the petitioner was doing clerical duties. It was next contended that in para-6 of the affidavit in evidence filed by the petitioner it was asserted that the applicant was not engaged in hire and fire powers and his duties were manifestly of clerical nature and that the said assertion was not challenged in the cross-examination by the respondents. Consequently it will be deemed to have been accepted. It was further contended that the respondents have not placed on record any document to show that the applicant was not a workman or that he was not performing manual or clerical work.
10. Conversely it was contended on behalf of the respondent that the applicant was holder of a power of attorney and was Incharge of Foreign Exchange Section. He was performing duties of managerial and supervisory nature and therefore, the applicant was not a workman, thus the Labour Court had no jurisdiction to entertain his petition. Both the learned counsel cited certain case-law in support of their contentions.
11. The arguments put forward by respective Advocates have been considered, relevant case-law has been perused and the evidence adduced on the record has been examined.
12. It is the case of the Appellant that he was a workman and, therefore, was governed by the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In order to claim the protection provided under the said Statute the applicant has to prove by leading positive evidence that he was doing some manual or clerical work. In his cross- examination the applicant/Appellant himself admitted that he was working as-'Head of Foreign Exchange Department in the Station Road Branch. He admitted that a power of attorney was executed by the Bank in his favour. He admitted in the cross-examination that there are 5 other employees in the Foreign Exchange Department of the Branch, some of them were doing the clerical and manual work. Last but not the least he admitted in the cross-examination that he was not doing the manual and clerical work and was only signing the cheques and statement slips.
13. The perusal of above evidence would abundantly show that the applicant himself admitted that he was holder of a power of attorney, 5 other employees who were doing clerical and manual work were under him as he was the Head of Foreign Exchange Department in the Branch. It is well- settled that the real test for determining the status of an employee is as to what constitutes the primary duties assigned to the employee in the course of his duties. An employee can only be declared to be a workman, if the main duties performed by him are of clerical nature and not otherwise. It is a matter of common sense that every employee, even those occupying higher position have to do work of clerical nature on certain casual occasions. It does not mean that those officers will also be treated as workmen. The result would be that the clerical or manual duties must be of primary nature and not of an occasional nature. Merely by producing one document would not be sufficient to hold that the applicant/Appellant was employed on the job of clerical nature.
14. The respondents have brought in evidence sufficient material to show that the applicant/Appellant was occupying a responsible position and his primary duties did not constitute manual work.
15 It is also well-settled law that merely because an employee has no powers of hire and fire would not bring him within the ambit of a workman to invoke the jurisdiction of Labour Court.
16. It was rightly observed by learned Labour Court that the applicant had not been able to establish that the was performing clerical duties, as while working as Incharge of the Foreign Exchange Section and even holding a power of attorney by the Bank, burden was upon him to lead evidence to bring him within the term 'workman' as contemplated under the law.
17. In the light of above discussion I am of the considered view that the order passed by learned Labour Court is quite legal and valid. The order is based on evidence and has been passed in accordance with settled principles of law. Since there is no merit in the appeal the same is dismissed.