' MUHAMMAD MUNIR PERACHA, J.--- This judgment shall dispose of Labour Appeal No,22 of 2005 filed by Muslim Commercial Bank, employer and Labour Appeal No,13 of 2006 filed by employee Gul Muhammad against an order passed by Labour Court, Islamabad on 19-11-2005. Gul Muhammad, hereinafter called as "employee" was posted as Officer Grade-III in Muslim Commercial Bank Limited, hereinafter called "employer" when he was served with a charge sheet on 21-12-2002. The allegations against him were:- "You have passed/posted and credited an entry of Rs,5,400 into your personal PLS Account No,4080-9 to the debt of branch's unclaimed account on 12-1-22002, with mala fide/deceptive intentions in order to clear your cheque for Rs,5,000 presented in clearing."
2. The employee gave reply to the charge sheet on 23-12-2002. As Inquiry Officer conducted the inquiry, who found the employee, guilty of the charge. On 23-4-2003, the employee was served with an order dated 21-4-2003, whereby he was dismissed from service with immediate effect. The employee, on 6-5-2003, gave an application to the President, Muslim Commercial Bank, Karachi, with the prayer that he be reinstated into service and in case it is not possible, he be retired. Finding no reply, the employee approached Labour Court, Islamabad through a grievance petition under section 46 of the Industrial Relations Ordinance, 2002. The respondent Bank when summoned by the Labour Court, filed reply to the grievance petition. The Labour Court recorded evidence of the parties. Employee Gul Muhammad appeared as P.W.1, Rafaqat Ahmad AVP, of the Employer Bank appeared as A.W.1, whereas Muhammad Kamran AVP-Chief Manager, MCB Jinnah Super Market Branch, Islamabad appeared as A.W.2. After recording evidence of the parties, the Trial Court heard arguments and vide judgment dated 19-11-2005 allowed the grievance petition in the following terms:- "For the aforesaid reasons, the instant application is accepted, the impugned order of dismissal from service dated 21-4-2003 is declared as unwarranted and is set aside. The option made by the petitioner for retirement from service is ordered to be accepted and instead of dismissal, he shall be deemed to have retired from the date of dismissal, i.e, 24-1-2003 and shall be entitled to service benefits, according to law on the subject. No order is made as to costs. File be consigned to the record room, after necessary completion."
3. The employer as well as employee felt aggrieved of the judgment passed by the Labour Court.
Both of them therefore, approached this Court through separate appeals as stated above.
4. I have heard the learned counsel for the employer as well as employee and have gone through the record with their able assistance.
5. Learned counsel for the employer raised the following points:--
(i) The employee is not a worker or workman within the meaning of clause (xxx) of section 2 of the Industrial Relations Ordinance, 2002 and therefore, he could not have invoked the jurisdiction of the Labour Court under section 46 of the Industrial Relations Ordinance, 2002.
(ii) The employee having failed to give grievance notice to the employer in terms of section 46 of the Industrial Relations Ordinance, 2002, his grievance petition before the Labour Court was not competent.
(iii) The Labour Court misread the evidence to hold that it was due to inadvertence that the employee credited an entry of Rs,5,400 into his Account bearing No,4080-9 instead of crediting the same in account No,4180-9.
6. On the other hand, learned counsel for the employee supported the judgment of the Labour Court and submitted that it was rightly held that order of dismissal of the employee is illegal. He however, contended that after holding the order of dismissal to be illegal, the Labour Court could not have ordered his retirement from service.
7. Worker and workman is defined in clause (xxx) of section 2 of Industrial Relation Ordinance, 2002 to mean;-- "Any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity.
8. In the case reported as "Hotel International v. Bashir A. Malik PLD 1986 SC 103, phrase workman was examined by the Honourable Supreme Court and it was declared that:- "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 the 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 feature, the pith and substance of his employment must be manual or clerical before the definition is attracted."
9. The issue was also examined in case reported as Ganga R. Madhani v. Standard Bank Ltd. And others, 1985 SCM R 1511:-- "11. It would, thus, be noticed that in determining the status of any employee, i.e,, deciding as to whether or not he is a `workman', what is to be seen is the overall nature of the duties assigned to the person in question and the main or primary functions that he is required to perform and not the work that he might have to do incidentally in the course of performance of his normal duties, because even a person employed at the highest managerial or supervisory level has, some time, to perform functions or do some work which may be termed as 'manual' or clerical'.
10. It is the nature of the work of the employee that determines whether he is a worker or otherwise.
His designation is not conclusive. The main or primary functions assigned to an employee are to be seen. It is to be examined whether manual or clerical work is incidental to the main work. A person employed in a supervisory capacity also does some clerical work. The real test is whether the main feature, the pith and substance of his employment is clerical or manual to hold the employee as worker or workman. The duty list of the employee Gul Muhammad has been placed on record as Exh.P.4. His duties are as under:--- "Current Saving Incharge, Passing of Vouchers, Cheques within Limit From transaction Posting and ' Standing Instructions ' Stop payment of Cheques ' Maintenance of Account closed register Maintenance of cheque return register Preparation of Summary sheet ' Signing of Utility Bills ' Cash Receipt Stamp (For General Cash, for F.C. Cash, and for Utility Bills)."
11. The duty list of the employee clearly shows that his main work is clerical or manual. Merely because he has been designated as Officer Grader-III, he would not be excluded from definition of the worker or workman. It is therefore, held that the employee was workman within the meaning of Industrial Relations Ordinance, 2002.
12. The second submission of the learned counsel for the employer was that the application given by the employee to the President of the Bank with the prayer that he be reinstated into service or be retired cannot be considered to be a grievance notice in terms of section 46 of the Ordinance.
In this respect, the learned counsel for the employer relied on the judgment Khushal Khan v. Muslim Commercial Bank Ltd. And others 2002 SCM R 943, wherein it was held by the Honourable Supreme Court of Pakistan:- "We have looked into available record as well as the impugned judgment consciously. It is an uncontroverted facts that against the dismissal order dated 22nd May, 1996, no grievance notice as required under section 25-A, I.R.O. Was served by the petitioner upon the employer. There is no gain in saying that the Appellate Authority is always considered to be distinct and different entity from, the original authority competent to make appointment. According to the contents of appointment letter dated 4th May, 1983 petitioner was appointed as Cashier by Regional Manager of MCB being the appointing authority whereas appeal was addressed in the name of the President of the Bank who admittedly was not his appointing authorities. In addition to it, according to the Muslim Commercial Bank Ltd. (Staff) Service Rules, 1981, petitioner being a Cashier was a Category-II officer, therefore, President of MCB could not be his appointing authority meaning thereby that for the purposes of section 25-A, I.R.O. Regional Manager would be the employer of the petitioner. As such we, are inclined to associate ourselves with the contention put forward by the learned counsel for the caveator."
13. Section 46 of the Industrial Relations Ordinance, 2002 provides that a worker before invoking the jurisdiction of the Labour Court shall bring his grievance to the notice of his employer. The question to be examined is when does the grievance arise to a worker. If an adverse order is passed by an officer of the establishment, which order is challengeable before a higher body of the establishment under the rules applicable to the establishment, whether the workman is to give notice of the grievance as required under section 46(1) of the Ordinance 'within one month of the order passed by the subordinate officer or such notice E is to be given within 30 days of the order passed by the higher authority. The phrase used in section 46(1) is "within one month of the day of which cause of such grievance arise". In the present case, the employee had a right of appeal under rule 42 of the rules governing the service of the employee of the Muslim Commercial Bank Limited. It would not be unnatural for an employee to think that the adverse order passed against him may be set aside by the appellate authority. In case he files the appeal, the grievance will arise to him when the appeal is dismissed by an appellate authority. Such a situation arose and was examined by a Division Bench of the High Court of Sindh in case reported as The Commercial Bank Ltd. v. Sindh Labour Appellate Tribunal and another 1984 PLC 1149. In the precedent case, the employee was dismissed from service vide order dated 21-11-1979. He preferred an appeal to the President of the bank on 17-12-1979. He submitted a reminder on 1-3-1980. He was informed through Bank's letter dated 14-3-1980 that his case was being put up before the Staff Review Committee and the decision would be communicated to him in due course of time. The employee after waiting for a reasonable time for the decision of the departmental appeal preferred grievance petition on 26-5-1980 after serving grievance notice on 13-3-1980. The Labour Court dismissed the appeal, however, it was allowed by the Appellate Labour Tribunal, which order was challenged through a writ petition. The Division Bench observed:-- "(6) Mr. G.H. Malik, learned counsel for the petitioner contended that the Grievance Petition under section 25-A of Industrial Relations Ordinance was barred by time and the finding to the contrary as recorded by the respondent No,1 was not correct. Developing the argument he referred to section 25-A of the Industrial Relations Ordinance which reads as follows:-- "A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop Steward or trade union, within three months of the day on which cause of such grievance arises."
(7) Learned counsel argued that the respondent No,2 was dismissed on 21st January, 1979. The respondent No,2 preferred an appeal to the President of the Petitioner's bank on 17th December, 1979. He submitted a reminder on 1st March, 1980. At that stage he sent a grievance notice on 13th March, 1980 under section 25-A of the Ordinance. He was informed on 15th March, 1980 that the decision would be communicated to him in due course of time. The aforesaid letter dated 15th March, 1980 reads as follows:-- "We write to inform you that your case is being put before the Staff Review Committee and their decision will be communicated to you in due course of time."
(8) On 26th May, 1980 the employee filed a petition in the learned Vth Labour Court. It was argued that it was filed after delay of 25 days from the date of dismissal and was therefore time barred.
This plea has no substance as "grievance notice" has to be sent "within three months" of the day on which cause of such grievance arises. The employee preferred an appeal before the President of the Petitioner which was not rejected till 15th March, 1980. Here it may be stated that in reply to the reminder dated 1st March, 1980 sent by the employee, he was never informed that his appeal was rejected. Rather he was told that the matter was being put before the Staff Review Committee. In the circumstances, the plea regarding any defect in the relevant "grievance notice" on the ground of limitation cannot be accepted.
(9) The learned counsel however relied on a decision of Sindh Labour Appellate Court reported in Muhammad Ozair Qureshi v. Chairman National Construction Co. Ltd., Karachi (1), The case is distinguishable as there is no provision for departmental appeals as in the instant case. Each Bank employee has to prefer a departmental appeal before invoking provisions of section 25-A of the Ordinance."
14. In some of the reported cases, the appeal filed by the employee was treated to be a grievance notice. In case reported as Munawar Ahmed v. Sindh Mercantile Co-operative Bank Ltd. And another 1979 PLC 365", the appeal of the employee before the General Manager of the Bank was treated to be a grievance notice. In case reported as Karachi Shipyard and Engineering Works Ltd., Karachi v. Second Sindh Labour Court and 2 others PLD 1975 Kar. 719, the appeal filed by the employee was treated to be a grievance notice by the Labour Court and High Court refused to interfere with such an order. Similar is the case reported as Mushtaq Masih v. The Punjab Labour Appellate Tribunal and another PLD 1988 Lah.
584.
15. Grievance notice is required to be given to the employer. The word "employer" is defined in clause 'x' of section 2 of the Industrial Relations Ordinance, 2002 as:-- "employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in an establishment under a contract of employment and includes:-
(a) an heir, successor or assign, as the case may be, of such person or body as aforesaid;
(b) any person responsible for the direction, administration, management and control of the establishment;
(c) the authority, in relation to an establishment or group of establishments run by -or under the authority of any department of the Federal Government or a Provincial Government appointed in this behalf or, where no authority is appointed, the head of the department;
(d) the office-bearer, in relation to an establishment run by or on behalf of a local authority, appointed in this behalf, or where no officer is so appointed, the chief executive office-bearer of that authority;
(e) the proprietor, in relation to any other establishment, of such establishment and every director, manager, secretary, agent or office-bearer or person concerned with the management of the affairs thereof;
(f) a contractor or an establishment of a contractor who or which undertakes to procure the labour or services of workmen for use by another person or in another establishment for any purpose whatsoever and for payment in any form and on any basis whatsoever; and
(g) office-bearers of a department or Division of the Federal or Provincial or local authority who belong to the managerial, secretarial or directional cadre or categories of supervisors or agents and those who have been notified for this purpose in the official Gazette",
16. A learned single Judge of the High Court of Lahore in case reported as Abdul Qadir Khan v.
Managing Director, Millat Tractors (Pvt.) Ltd. 2005 PLC 438, in Para-11 of the judgment at page 445, observed:-- "I have heard learned counsel for the parties. As regards the question about the service of the grievance notices is concerned, this is a mandatory requirement of law, and non-compliance thereof renders a grievance petition incompetent. However, the real question involved in these matters is not about the non-issuance of the requisite notice, but if it has been addressed/sent to the appropriate person i.e, the "employer". Because according to Mr. Saleem Sehgal, it is only the Factory Manager of Millat Tractor, who had the power of hiring and firing and thus exclusively falls within the terms "employer". I have considered the definition of the work "employer" given in section 2(x) (b) of I.R.O., 2002 which leaves no room for doubt that it includes any person responsible for the directions, administration, management and control of the establishment. Undoubtedly, the Managing Director of a company is the head of institution, who being the Chief Executive, of a juristic person, is the overall In charge of the management and the administration of the company, whereas the factory manager is an Officer subordinate to him, thus if under the law, the purpose of the grievance notice is that a workman instead of rushing to the Court straightway, which may involve expenses and cause botheration to a poor man, should in the first instance, make an attempt to approach the employer for the redressal of his grievance and that may solve his problem, the Chief Executive was the right person, to whom the notice should be sent. And the Chief Executive on account of his superior position, could either himself or through the Board of Directors, take a conclusive decisions, particularly about the policy matter of making the daily wager as permanent or not, or he could conveniently refer or send the matter to the Factory Manager, an officer subordinate to him, for an appropriate action. Therefore, in view of the broad spectrum of definition of "Employer" the purpose of the law behind the issuance of the grievance notice, the same issued to the Chief Executive, can be held to have been issued to an authorized person, and thus on account of a technical reason, the grievance petition could not be dismissed.
Therefore, I am constrained to hold that the grievance notice was duly issued and the reasoning propounded by the learned Labour Court, to non-suit the appellants on this ground, cannot sustain and is hereby set aside.
17, After examining the provisions of Industrial Relations Ordinance, 2002 and the law declared through precedent cases, I have come to the following conclusions:--- ' If an adverse order is passed against the employee and the order is challengeable under the rules framed by the establishment, ' The employee may opt not to challenge the same under the rules framed by the establishment, straight away give a notice of grievance to the employer and then file grievance petition under the provisions of section 46 of the Ordinance.
(ii) He may challenge the adverse order under the rules framed by the establishment, wait for 15 days and if no order is communicated to him, file the grievance petition within next 30 days to the Labour Court. In such a case, the Labour Court shall treat the proceedings filed by the employee in terms of rules of the establishment to be a grievance notice as there is no particular form prescribed for grievance notice and the definition of employer is very wide.
(iii) He can wait for the decision of the Appellate Authority and give a grievance notice within 15 days of the communication of the order of the authority. However, in this situation, he takes a risk because the possibility cannot be ruled out that the appellant or the revisional authority may not pass any order on appeal.
18. In the present case, order of dismissal was passed on 21-4-2003 and the employee gave application to the President of Muslim Commercial Bank Limited on 6-5-2003. In a case reported as Forbes Campbell and Co. Ltd., Karachi and 3 others v. Habibur Rehman and 2 others 1982 SCM R 651, it was ruled out by the Honourable Supreme Court of Pakistan:-- "This question has been considered at great length by the Labour Court and the Punjab Labour Appellate Tribunal who have held that the Managing Director was not the employer of the respondent in the relevant regard and that the Branch Manager, who had actually passed the order of termination, was, in fact, the employer and the respondent had duly been served with the grievance notice on 27-3-1979 and a reply thereto was received on 10-4-1979 and the application was filed to the Labour Court within two months after the receipt of the said reply.
' The High Court, however, while deciding the writ petition, held in its impugned order that though it was possible to regard the Managing Director to be also the employer of the respondent, within the meaning of section 2(8) of the Industrial Relations Ordinance (hereinafter called the I.R.O.) in addition to the Branch Manager but it was to be wed that even after the aforesaid reply sent by the Managing Director on 20-2-1979 he had in a subsequent telegram sent to the respondent (on 21-3- 1979 in response to his telegram dated 15-3-1979) advised him to contact Mr. Sartaz Hussain, Manager, Lahore "who is only competent to deal with your case" and he further stated that his petition had been forwarded to him for necessary action. It was after the receipt of this telegram that the respondent moved a formal grievance notice before the Branch Manager at Lahore on 27- 3-1979 and that the said notice along was the proper grievance notice contemplated under section 25-A of the Industrial Relations Ordinance and the earlier telegram sent by the respondent on 18-2-1979 and the reply received thereto on 20-2-1979 could not be regarded as the formal grievance notice, within the meaning of the provisions of the I.R.O. Kh. Habib Ullah, learned counsel for the petitioner, in support of this petition, has drawn our attention to the terms of the telegram dated 20-2-1979 sent by the Managing Director at page 77 of the record and has argued that its terms left no doubt that the service of the respondent had been terminated in accordance with law and no review of that decision was warranted. The grievance of the respondents had been attended to and rejected and thereafter he should have moved the Labour Court within two months.
' We are, however, inclined to agree with the High Court that the telegram sent by the respondent on 18-2-1979 to the officer higher than the Branch Manager, who terminated his services, was in the nature of a request for intervention to the higher authorities to save him and was not the formal grievance notice, as contemplated by section 25-A of the I.R.O. We consider that the provisions of Labour laws should be construed liberally and as they have been enacted to benefit workers, they should be construed in a sense favourable to the interests of the employees and not used as a trap. Therefore, we are inclined to agree with the High Court that it was only the formal grievance notice sent by the respondent to the Branch Manager, who had terminated his services, which should, in the circumstances of this case, be regarded as the formal grievance notice envisaged by the relevant law."
19. The grievance petition cannot be dismissed on a hyper-technical ground that the application given to the President of the Bank is not a grievance notice within the meaning of Section 46 of the Ordinance.
20. Coming to the merits of the case, it can be gathered from the evidence that the employee was maintaining a Bank Account bearing No,4080-9. Instead of crediting an entry amounting to Rs,5,400 in Account No,4180-9, he credited the entry in his own account. There is a difference of only one digit. The possibility that he might have done it due to inadvertence cannot be ruled out.
Realizing the mistake, the employee rectified the same on the following day. A finding of fact has been recorded by the Labour Court that it was due to inadvertence. The finding being in consonance with the evidence cannot be interfered with. The appeal filed by the employer is therefore, liable to be dismissed.
21. In application given by the employee to the President of the _Bank, the employee himself suggested that in case reinstatement is not considered proper by the Bank, he may be retired from service. In this situation, Labour Court thought it proper to order that he be treated to have retired from service. The relationship of the account-holder and the r Bank is very delicate and is one of trust. Therefore, I am not inclined to interfere with the order of the Labour Court, the appeal filed by the employee is therefore, also dismissed. Parties are left to bear their own costs.