1. This appeal under Section 47(3) read with Section 18 of the I.R.O. 2002, is directed against the order dated 19th of December 2003, passed by the learned Labour Court No, VI, Hyderabad, in Application No, 181 of 2000, under Section 25-A of Industrial Relation Ordinance, 1968.
2. Mr. Manzoor Ahmed Shaikh, Advocate was present for the respondent on 18.3.2004 and on his request the hearing was adjourned to 27.4.2004. Today the respondent and his advocate are absent without intimation. Mr. Mehmood Abdul Ghani, Advocate for the appellant has been heard.
3. The relevant facts are that the respondent is an Officer Grade-III in the appellant Muslim Commercial Bank Ltd. A Charge Sheet was issued to him on 31.10.1995 for unauthorized absence without permission. Subsequently inquiry was held and the respondent participated in the inquiry.
4. The inquiry Officer found the respondent guilty of the Charge. Before any final order could be passed the respondent filed a case with the National Industrial Relations Commission. The appellant/bank was restrained from taking any final action. The appellant bank preferred appeal before Full Bench of N.I.R.C. The appeal was accepted and the prohibitory order was vacated thereafter the respondent was dismissed vide letter dated 30.7.1997. The respondent filed Case No, 4(17)/1997-K before N.I.R.C. challenging the same Charge Sheet and order of dismissal. This case was filed on 27.10.1997. Subsequently respondent served grievance notice on the appellant/bank followed by Grievance Petition before Sindh Labour Court. No, VIII Larkana Bearing No, 6/1997.
5. Several objections were raised by the appellant including the maintainability of the Grievance Petition for the reason that the respondent was an Officer in Grade-III and was performing supervisory nature of work and was Member of Muslim Commercial Bank , Officers' Union. He was not a workman. Another objection was raised to the effect that the application was entertained by the Presiding Officer Labour Court No, VII Sukkur, who has no jurisdiction. Objections were raised on merits as well. The respondent filed his affidavit-in-evidence and was cross-examined. Affidavits in evidence were also filed on behalf of appellant/bank. In cross examination he admitted that a petition in respect of same subject matter was pending before N.I.R.C. also. He further admitted that Officers in Grade-I, II and III are posted as Managerial Staff.
6. The learned Labour Court after appraisal of evidence observed that, it is admitted fact that respondent Muhammad Khan was Grade-III Officer of the Bank. It was further observed that it is well settled law that for determination of question whether an employee is a workman within the meaning of various Statutes in the field of Labour Legislation, the nature of work done by the employee would be essential and fundamental consideration and his designation has no effect and cannot be treated as conclusive for this purpose. The amount of salary receiving is also not a determining factor. The criteria, is the work which the employee is doing at the time of termination of his service. After making these observations the learned Labour Court further observed that the mere fact that the petitioner was Officer in Grade-III will not debar him from filing the application if he was doing the manual or clerical work at the time of termination of his service. It was further observed that it has come on record through evidence that respondent Muhammad Khan was not working in any supervisory position but was doing the clerical work, and was not having supervisory duty over the staff, therefore, he is a workman. The learned Labour Court ultimately held that the dismissal order of the respondent was liable to be set-aside. After setting-aside the dismissal order, the learned Labour Court No, VI, Hyderabad, ordered for reinstatement of the respondent within one month of the impugned order. He was awarded all the back benefits as well.
7. Mr. Mehmood Abdul Ghani, learned counsel for the appellant assailed the impugned order of learned Labour Court, inter-alia on the ground that the respondent was not a workman. He has drawn my attention to the fact that the observations made by the learned Labour Court in the impugned order pertaining to the status of respondent Muhammad Khan are same word to word as made in the case of another Officer of Muslim Commercial Bank namely Mehmood Hussain Larik. He submitted that the facts and circumstances in present case are similar to the case of Mehmood Hussain Larik which came for consideration before this Court in Appeal I No, 1/2001 (M.C.B. v. Mehmood Hussain Larik). He pointed out that in the case of Mehmood Hussain Larik, no oral or documentary evidence was produced to substantiate the contention that an Officer in Grade-III was performing manual or clerical job. In that case Mr. Manzoor Ahmed Shaikh, the learned counsel for the respondent in this case (absent today) had no option but to concede 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. After examination of facts in decided case and following the law laid down by Supreme Court in the case of Managing Director Shahi Bottlers v. Punjab Labour Appellate Tribunal, 1993 S.C.M.R. 488, it was held that if a plea was taken by an Officer that actually he was performing clerical and manual job, the burden was on the employee to prove that he was workman and was performing purely clerical and manual duties. In the above cited judgment Honourable Supreme Court further held that the burden of proof was not on the employer. In the earlier case the Officer Grade III had not produced any documentary or oral evidence in support of the contention, that, notwithstanding his designation as Officer, he was performing purely clerical and manual job. It was held that the finding of the learned Labour Court was a figment of imagination.
8. Mr. Mehmood Abdul Ghani, has submitted that present case is worst than the case of Mehmood Hussain Larik fore the reason that the respondent has admitted that he is an Officer in Grade-III and normally Officer in Grade-III is appointed in Managerial Staff. He has further admitted in the cross-examination that N.I.R.C. declared the Officers Union of which he was a General Secretary Larkana Land as a non-workman union. He further conceded that Chairman N.I.R.C. cancelled the C.B.A. Certificate of the Officers Union for the reason that it was obtained fraudulently. An appeal was preferred before Full Bench of N.I.R.C. which was rejected. Petition was filed before Lahore High Court Rawalpindi Bench, which was also dismissed. Mr. Mehmood Abdul Ghani has vehemently argued that the finding of learned Labour Court No, VI, Hyderabad, that there was evidence on the record that respondent was doing the clerical work and was not having supervisory duty over the staff is based on mere surmises and conjectures not warranted in law. A perusal of record shows that the contention is correct. The respondent has not alleged any such thing and has not produced any documentary or oral evidence to establish that although he was an Officer in Grade-III but was performing clerical work.
9. In the above circumstances, it is held that the finding of the learned Labour Court No, VI.
10. Hyderabad, on the status of respondent in totally perverse and is based on mere imagination, assumptions and presumptions not warranted in fact and law. There is substance in the contention of learned counsel for the appellant that the finding on the status of respondent has been given by the learned Labour Court with pre-determination for granting the relief. In the absence of any evidence to establish that the respondent was a workman the Grievance Petition was liable to be dismissed. The impugned judgment of learned Labour Court No, VI, Hyderabad is therefore, hereby set-aside and Grievance Petition is dismissed. The appeal is allowed accordingly.