MAULVI ANWARUL HAQ, J.- Services of the respondent No.2 while in the employment of the appellant as a Grade-I Officer were terminated vide order dated 11.4.2003 (Ex. P.l). Against this order, a departmental appeal was filed which was dismissed by the appellant vide order dated S.9.2003 (Ex. P.3) conveyed to the respondent under registered cover A.D. On 9.10.2003 (envelop Ex. P.4). On 31.10.2003 the respondent served the appellant with a grievance notice. On 24.11.2003 the respondent filed a grievance petition under Section 46 of the IRO, 2002. After stating the said facts, prayer was made for setting aside of the said order on the ground that no reasons have been stated for terminating his services and that no proceedings whatsoever have been undertaken in .Accordance with the Staff Service Rules for terminating of services. The appellant while admitting the tenor of the termination order which contained no reasons for termination of his services defended the grievance petition with the plea that the respondent is not a worker or a workman within the meaning of the said law and further that the grievance petition is barred by time as the grievance notice was not served within the time prescribed by law. The learned Punjab Labour Court, Rawalpindi, recorded, evidence of the parties, and allowed the said application vide judgment dated 10.3.2005.
2.. Learned counsel for the appellant contends that the time spent during the pendency of the appeal filed against the termination order cannot be excluded and according to him the grievance notice ought to have been served within the time limit of 30 days from the date of termination order, He relies on the case of Khushal Khan Ms. Muslim Commercial Bank Ltd. And others (2002 SCM R 943). Further contends that the respondent being designated as an officer is not a workman.
Relies on the cases of Sahibzada K.A.K. Afridi Vs. Allied Engineering & Services Ltd. Through Managing Director and 2 others (2004 SCM R 523) and Ganga R. Madhani Vs. Standard Bank Ltd.
And others (1985 SCM R 1511). Learned counsel for the respondent, on the other hand, contends that the appeal having been competently filed and dismissed by the appellant, the said grievance notice having been served within one month after the receipt of the appellate order, the grievance petition is within time. He relies on the cases of Muslim Commercial Bank Ltd., Karachi Ms. Shah Nawaz Solangi and 2 others (1993 PLC 651) and F.A. Khan Sis. The Government of Pakistan (PLD 1964 SC 520). While replying the second contention of the learned counsel for the appellant, he relies on the case of Mustekhum Cement Limited through Managing Director Vs. Abdul Rashid and others (1998 SCM R 644) as also judgment dated 23.9.2005 of the Hon'ble Supreme Court in C.P.No.2760/04 (Muslim Commercial Bank Ltd. Vs. Rana Najma-ul-Haq and another).
3. I have gone through the records of the learned Labour Court, with the assistance of the learned counsellor the parties. The termination order dated 11.4.2003 narrates simply that services of the respondent are being terminated with immediate effect and he may call upon the office to collect his dues. An appeal was filed on 30.4.2003 against the said order. The prayer made was that the termination letter be withdrawn or it may be converted into forced retirement under recent Golden Hand Shake Scheme. The decision was conveyed to the respondent vide Ex. P.3 which is dated 9.9.2003. I have examined the envelop (Ex. P.4) wherein the said decision was sent under registered cover and I do agree with the learned counsel that the letter was posted on 9.10.2003. The grievance notice (Ex. P.5) is dated 31.10.2003 and there is no denial that it was not received.
4. I have examined the said judgment in the case of Khushal Khan being relied upon by the learned counsel for the appellant. According to the facts narrated by their lordships in para-2 of the judgment, the sad Khushal Khan petitioner was proceeded against and services were terminated on 12.5.1996. Appeal filed by him was dismissed on 30.9.1996. Thereafter, he filed the grievance petition under Section 25-A of the IRO before the Labour Court, It was concluded that a grievance notice was not served at all and the appeal not being addressed to the Appointing Authority could not have treated as a grievance notice. The further finding recorded by the learned Labour Appellate Tribunal was that the appeal itself was not filed within the period of time prescribed for service of a grievance notice.
5, Before me, it is not the case of the appellant that the appeal was not filed within the time prescribed. The order in appeal ultimately reached the respondent on 9.10.2003 and the grievance notice was served on 31.10.2003 i.e. Very much within the time prescribed by law. Judgments being cited by the learned counsel for the respondents are fully attracted to the case of the respondent. I, therefore, do uphold the findings recorded by the learned Labour Court that the grievance notice was filed within time and consequently the grievance petition was not time barred.
6. So far as the said second contention of the learned counsel for the appellant is concerned, in the said case of Ganga R. Madhani. It was. Found as a fact that the functions being performed by the said employee could not be termed as manual or clerical arid involved exercise of discretion and taking of important decision, It was also found that the employee was given power to manage affairs of the Bank and was further vested with other powers to be exercised singly or jointly alongwith other attorney of the Bank, In the present case, no proof is available on record that the respondent enjoyed or was vested with any such power as contemplated in the said judgment. So far as the said case of Sahibzada K.A.K. Afridi is concerned, their lordships found that he was appointed as an officer as well as Manager for the entire NWFP Province and the Tribal Areas At least, one employee was found to be his subordinate, It was, thus, found that the said person was acting in a supervisory position while holding the said post. In the present case, the respondent stated that he was serving under a Credit Manager who in his turn was subject to a Branch Manager and then the Chief Manager. Nobody was subordinate to him. He had no power-of hire and fire. He could not grant or refuse leave or authorized, to take a penal action. He used to sit with the clerical staff in a big hall. He was not provided with a telephone or car. His main duty was to issue RTCs in his own hand and he also used to maintain the relevant registers, It was not even suggested to him that he was acting in any supervisory position. Needless to state that no evidence was led by the appellant to demonstrate that the respondent is a worker or a workman, In the light of the said evidence on the record, the learned Labour Court has rightly held him to be a worker or a workman and the finding is supported by the said judgment of the Hon'ble Supreme Court of Pakistan being relied upon by the learned counsel for the respondent. No other point has been urged. The Labour Appeal accordingly is dismissed. No orders as to costs.
7. The records of the learned Labour Court be remitted back immediately.