ASAD RAZA (MEMBER).--- Muhammad Iqbal, Officer Grade-III, United Bank Limited, Qaimbharwana Branch, District Jhang, the petitioner (respondent) herein, knocked at the doors of NIRC, Lahore Bench, for redressal of his grievances in the backdrop of the facts, pleading that he performs manual and clerical duties and thus, a workman, who is an active member of United Bank Ltd.
Employees Union registered Faisalabad, also a Secretary of the Union of Hub, District Jhang, who has always been striving for the cause of his fellow workers, ' therefore, the management of the bank (appellant herein), having developed a disliking, rather going against the very existence of the union of the petitioner, they were victimizing the staunch members of the union and in the same course, threats of dire consequences like transfer, removal, dismissal etc. Were being extended to the petitioner, and simply so to force the petitioner to quit his lawful trade union Activities, and in this way, the respondent appellant were committing acts of unfair labour practice by violating the provisions of section 17 of the I.R.A., 2008. It was further expressed that the petitioner has 'a career with neat and clean record of service, no disciplinary proceedings pending against him and despite that, the threats of removal, dismissal, transfer etc. Amounting to acts of unfair labour practice and expecting so against the petitioner, he was constrained to seek a favourable order in terms that the respondent appellant management, of the bank, be directed not to commit any act in the forms above, by causing an injury to his service in any manner, and further, that pending the disposal of the main petition, the management be directed not to dispense with the services of the petitioner by way of removal, termination, dismissal etc., and status quo for the service of the petitioner be maintained.
2. An application for interim injunction was also made, simultaneously with the main case.
3. Written statement, and written reply, to the stay application, were submitted on behalf of the management, and therein, objections both legal and factual, were raised by pleading, inter alia, that the petitioner Muhammad Iqbal as Officer Grade-III is the Branch Manager, District Jhang, he is a non-workman under the I.R.A., 2008, or Industrial and Commercial Employment (Standing Orders Ordinance), 1968, that he was not performing any manual or clerical nature of duties, the entire branch is being controlled and managed by him, that the officers in bank are a distinct category and above to that, the status enjoyed as Branch Manager, therefore, the petition is not maintainable. On the question of the alleged commission of unfair labour practice, it was denied in totality. On facts the management maintained that the present petition had been filed to pre- empt a disciplinary action which is likely to be initiated and the petitioner is in its knowledge, as he is responsible for fraudulent opening of four fictitious accounts and disbursement of unauthorized agricultural finances against bogus passbooks, while proceeding as Branch Manager, Garhmaharaja Branch, District Jhang in the year 2005, therefore, for the prospective disciplinary action, and to avoid the consequence thereof, this petition has been filed to use as a shield and pre-empt the disciplinary process.
' For the claimed misconduct, allegedly committed by the petitioner, the management gave in detail, of the irregularities committed by him, while posted at Garhmaharaja Branch as Manager, and agricultural credit officer, and for a convenience, so indicated in para. No,5 of the written statement, the same is reproduced as below:--- "That as regards para.5, this is elaborated that the petitioner is responsible for fraudulent entries on account of opening of 4 fictitious accounts and disbursement of unauthorized Agricultural Finances against bogus pass books, while posted as Branch Manager at Garh Maharaja Branch, Jhang District, in 2005. Initiation of disciplinary action and approval of RCAD/GM is under process.
He, while in posting at Garh Maharaja Branch as Manager and Agriculture Credit Officer respectively, has committed gross irregularities at the time of sanctioning/disbursement of under mentioned Agriculture Finances:--- Name AccountAmount Date Amount 1Muhammad Kabir5820009-5Rs.4,60,00015-10-2005Rs.5,66,715 2.Allah Ditta 5820015-0Rs.4,00,00030-12-2005Rs.5,16,664 3.Altaf Hussain 5820016-7Rs.4,00,00030-12-2005Rs.5,46,747 4.Munawar Hussain5820018-1Rs.3,50,00030-12-2005Rs.4,77,503 ' The petitioner is responsible for opening of the above mentioned fictitious accounts against tampered CNICs, without, verification from originals ones, preparing/processing of Agri. Loan applications/Limits of the alleged borrowers by accepting .Forged bogus passbooks, verification of their signatures on applications and giving confirmation to' the effect, that mutations have been properly entered in the Revenue-Record.
' Since aforesaid acts committed are in violation of UBL Staff Service Rules, 1999 as well as Disciplinary Action Policy, 2007 as such they are liable for disciplinary action. Accordingly disciplinary action is being initiated against him."
4. 'It was added that for the responsibility of opening of the above mentioned fictitious accounts and disbursement of agricultural loans, without verification of the relevant record required to be done in discharge of his duties as a manager, the legal process and disciplinary action being a vested right of the management, it could not be termed, either a victimization or a commission of an unfair labour practice, therefore, in view of all that, it was proposed for dismissal, of not only the main case, but also the stay application..
5. Ch. Shaukat Nawaz Goraya, learned Member, disposed of the stay application and so after hearing the parties duly represented by the learned Members at Bar. The wisdom of his esteemed order is confined in the proceedings, dated 29-4-2009. In the fitness of the circumstances, the operative part of the order passed, is reproduced, for a convenient understanding of the stance advocated by either side, and the conclusions arrived at, is as mentioned.
"The respondents resisted the main petition and stay application, inter alia, it was contended that the Commission has no jurisdiction to adjudicate upon this matter and the petition was. Not maintainable. It was alleged that petitioner is Officer of Grade-III, a Branch Manager of Qaim Bharwana Branch, Jhang and he performs managerial nature of duties, therefore, he does not come under the ambit of workman. Many other objections were also taken in the written statement.
' The learned counsel for the parties submitted their written arguments. I went through their arguments and examined the relevant record.
' Much stress was laid down by the learned counsel for the respondents that since the petitioner is a Grade-III Officer and performs duties of Branch Manager, therefore, he is not covered under the definition of a workman; hence the petition is not maintainable. Needless to say that designation of an employee is of no significance. It is the nature of his duties which matters to determine the controversy that whether he is a workman or not under labour laws. Therefore, the point in issue that whether the petitioner falls within the ambit of workman or not, cannot be decided summarily.
The controversy can only be determined after recording evidence of the parties. Learned counsel for the respondents also raised an objection that onus to prove was on the petitioner to establish that he is a workman but he utterly failed to do so. I am afraid the objection is absolutely without logic because petitioner could only discharge his onus by adducing evidence in support of his contention and admittedly that stage has not come as yet. It was urged that union of the petitioner was cancelled by the Registrar of Trade Unions Faisalabad vide his order, dated 12-7-2006.
Therefore, the petition has become infructuous and liable to be dismissed. This argument does not fetch support from the record because the examination of record shows that respondents filed an application for cancellation of the union before the Registrar of Trade Unions Faisalabad and he cancelled the union vide said order. Aggrieved by the order of the Registrar of Trade Union of the petitioner filed an appeal before learned Labour Court Punjab No,4 at Faisalabad and the learned Labour Court suspended the order of the Registrar of Trade Unions, Faisalabad. The respondents filed a writ petition before Honourable Lahore High Court Lahore but later on the same was withdrawn. Under the circumstances, the order of the learned Labour Court No,4 Faisalabad hold the field and it cannot be said that petitioner's union stands cancelled. Another objection was raised by the respondents that petitioner has filed a civil suit at Jhang for cancellation of certain documents and he has also moved this Commission for the redressal of his grievance. He cannot invoke the jurisdiction of two forums simultaneously for the redressal of his same grievance; therefore, the petition is not maintainable on this count as well. I am afraid this argument is also without any substance. The petitioner has not invoked the jurisdiction of this Commission for the cancellation of the documents but his prayer is that respondents be restrained from committing unfair labour practice by removing him from service. As far as his civil suit is concerned it was contended by the learned counsel for the petitioner that respondents obtained signatures of the petitioner on plain papers by misrepresentation and the petitioner after having known reality, moved to the Civil Court for the cancellation of those documents. Under the circumstances it cannot be said that the petitioner wants to seek same relief from the Civil Court and this Commission. It was also argued from the respondents side that no injunction could be granted against criminal investigation. In the instant case what to talk of criminal proceedings even inquiry has not been initiated against the petitioner, therefore, the objection is devoid of force. It was further contended by the respondents that NIRC has no jurisdiction to entertain any petition without examining that whether the petitioner has been made victim of unfair labour practice. This plea is also unfounded because under section 17(d) of I.R.A., 2008 an employee can invoke the jurisdiction of NIRC even if he is threatened by employer to dismiss, discharge or remove him from employment.
' In the light of what has been stated it is established that all objections raised by the respondents are premature and baseless as regards the controversy that whether petitioner is a workman or not as defined under the labour laws will be determined after the trial of the case and no verdict on this aspect can be given at this stage. It is an admitted position of law that issue of unfair labour practice can only be agitated and decided by NIRC and not by any other forum. The petitioner has brought this petition on the ground of unfair labour practice. He has chosen competent forum for the redressal of his grievance, therefore, it is held that the petition is maintainable and this Commission has the jurisdiction to adjudicate upon the petition. All the citations which have been referred in the written arguments are not applicable to the merits of this case.
' Admittedly the petitioner is active member of UBL Employees Union registered at Faisalabad and also Secretary of the Union Hub, Jhang. Being an active member and office-bearer of a trade union if he apprehends on threatened of his dismissal, discharge, removal from employment, he can invoke the jurisdiction of this Commission under section 17(d) of I.R.A., 2008. Therefore, he has made out a prima facie case in his favour. If the petition is refused and petitioner is removed from service but at the later stage his petition is proved in that event he will face lot of inconvenience and suffer beyond repair. Therefore, all the ingredients for grant of temporary injunction lean in his favour.
' The upshot of the discussion is that respondents are directed not to transfer or pass any adverse final order regarding service of the petitioner till the final adjudication of the main petition.
However, they can initiate/continue with the inquiry proceedings if they so desire. With these observations the stay application is disposed of."
6. The legal validity of this order passed, has been called into question by the management of the respondent bank (now the appellant) and so is on the usual grounds already based while defending the case and expressed precisely, with reference to the written statement and the written reply. Maintaining that the impugned order is an outcome of non-appreciation of the real facts of the case, and the law applicable thereto, therefore, it was not in any manner, legally, sustainable.
7. We have gone through the record available at this end, and also heard the learned counsel for the parties, to their satisfaction and after evaluating all that has been expressed at Bar, with the lines below the appeal in hand is being disposed of, but, with respect to the learned Member, with a view contrary.
8. At the very outset, it could not be denied categorically by the learned counsel for the respondent, Muhammad Iqbal, that he is not only designated as OG-III but also working as a Branch Manager, at Qaimbharwana Branch, Tehsil Shorkot District Jhang. He was also not in a position to deny that his client enjoys the status of full-fledged Branch Manager previously at Garhmahraja Branch, District Jhang. The learned Member had himself noted in his order that the point "in issue whether petitioner falls within the ambit of workmen or not cannot be decided summarily, and this controversy can be determined after recording evidence, of the parties" is itself reflective of the very situation that academically, the status of Muhammad Iqbal respondent as a workman could not be declared conveniently and it required a declaration but through evidence, to our unanimous view in the given situation, prima facie and as such, the man could not be termed as a workman. The Honourable Supreme Court of Pakistan had laid its legal wisdom, in Dilshad Khan Lodhi v. Allied Bank of Pakistan 2007 PLC 41 and held that, "employee of a bank holding a Branch and performing a supervisory work although having no power of hire and fire, but nature of duties performed by such employees appearing to be of managerial and supervisory nature, such employee would fall beyond the ambit and purview of the term workman".
9. In obedience, thereto when the case of the appellant management, placed on judicial touchstone, it leads every judicial mind to lime light and with clarity, that the present respondent also being a Branch Manager, not only in the present one at Qaimbharwana Branch, District Jhang, he has also been working as Branch Manager at other station as well, irrespective of the size of the office or the branch, which has no relevancy to the duties performed by him with their nature both managerial and supervisory, therefore, we conclude that the respondent cannot be defined and does not fall in the category of a workman.
10. The learned counsel for the petitioner stated categorically at Bar, that the respondent while posted earlier at Garhmaraja Branch, as Manager and Agricultural Credit Officer respectively, had been found guilty of committing gross irregularities at the time of sanctioning/disbursement of agricultural finances to four persons, whereof the synopsis and details were given in para.5 of the written statement and also indicated in para.3 of this order with an embezzlement/misappropriation of Rs,21,07,629 and so in discharge of his duties as a Bank Manager, and this was neither denied at Bar, nor through pleading in any manner, or even by a counter-affidavit, negating that the issue was not the subject of a departmental inquiry initiated against Muhammad Iqbal respondent, and disciplinary action likely in the way to follow the defaulter. Simply in the course of arguments, it was stated at Bar, but evasively, that the respondent was not in the knowledge of any such disciplinary action against him. Be that as it may so a careful perusal of the contents of the petition itself smacks out the same. Needless to say that academically, and there is much settled law on the subject that an injunction whether permanent or temporary cannot he issued against proceedings related to internal management of an organization. Therefore, if an inquiry as claimed by the learned counsel for the appellant, related to an irregular disbursement of agricultural finances, is pending or has been made with the consequences thereunder , against the respondent Bank Manager, by means of an interim injunction, legally we cannot extend a helping hand to the alleged defaulter, as of this respondent.
11. As the respondent has not been found to be qualified as a workman, rather noted to be an officer of the appellant bank and branch Manager, supervising the whole business as such, he is not possessed with the qualification to act as a trade unionist and seek permission to enjoy the benefits therefrom, under the cover of the claimed trade union D activities, for, the law of the land and rules of business, go against him.
12. For what has been said and done above, the net result is that the impugned order, legally not sustainable, we proceed to set aside the same. The appeal stands accepted with costs of all the proceedings throughout.