' The applicant Javid Latif Dar has filed an application under section 25-A of the Industrial Relations Ordinance, 1969, for his re-instatement in service with full back benefits.
2. According to the applicant he was a workman being employed by the respondents on 12th November, 1977. It is contended that the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are applicable to the respondents which is a banking company. It is alleged that on 6th August, 1979 the applicant was served with an explanation sheet containing false and baseless allegations. The applicant accordingly submitted his explanation giving therein the bona fide reasons for the issuance of a revised evaluation certificate in the matter referred to by the respondents in the aforesaid explanation sheet but despite that the services of the applicant were terminated on 18th August, 1979 simply for the reason that his services were no longer required by the respondent. It is contended that at the time of delivering/handing over the letter of termination to the applicant he was verbally informed by the Assistant Vice-President of the Bank Talat Farooq that his (applicant's) services were being terminated for the reason that the applicant had accepted bribe before issuing the revised certificate. It is alleged that the termination order, in question, which is passed without affording an opportunity of hearing to the applicant, is illegal and it does not indicate any reason which the respondents were bound to mention and further the applicant was also deprived of the opportunity to defend himself in the proper enquiry. It is further alleged that the order of termination is also inala fide because of the animus and prejudice developed against the applicant by the Head of his Department namely Talat Farooque. Being aggrieved by the order of his termination, the applicant served the respondents with a grievance notice dated 29th September, 1979 which according to the applicant was not replied, hence the present application.
3. The respondents submitted a reply statement contending therein that the application of the applicant is not maintainable as the applicant was not a workman either under the Industrial Relations Ordinance, 1969 or West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. According to the respondents, the applicant was an Officer and was performing the duties of a Site Engineer, which in no case falls under the definition of a workman. It is further contended that the applicant's salary and other emoluments also does not bring him under the definition of a worker or workman inasmuch as he was drawing the monthly salary of more than Rs, 2,000. On merits it pleaded that the applicant was called upon to explain as to why he had falsified the valuation of the property in the certificate dated 30th July, 1979. The rest of the allegations of the applicant made by him in his application against the respondents have been denied. It is further contended that the provisions of Standing Orders Ordinance, 1968 are not applicable to the Nationalized Banking Industries to the extent of the provisions covered by the First and Second Wages Commission Award. It is prayed that the application of the applicant be dismissed.
4. The applicant Javaid Latif Dar filed his affidavit-in-evidence and was cross-examined by the learned representative for the respondents. Talat Farooque the Incharge of Engineering Department and Fazal Bhai the enquiry officer, Credit Investigation Department of the respondents filed their respective affidavits-in-evidence on behalf of the respondents and were cross- examined by the learned counsel for the applicant.
5. I have gone through the entire record including the written arguments submitted on behalf of the parties. The main grievance of the applicant is that his services have been terminated on the false charges and without affording him any opportunity to defend himself in the enquiry. It is further alleged that the Incharge of Engineering Section was prejudiced against the applicant and therefore he was instrumental in bringing about the termination of the applicant from service. As against this, the respondents have attacked the very maintainability of the application on the ground that the applicant was Site Engineer and his duties were supervisory/managerial in nature and besides he was drawing a gross salary of over Rs, 2,200 per month, besides the other benefits as such he did not come within the definition of a workman as defined in the Industrial Relations Ordinance, 1969. In support reliance has been placed on a decision of Honorable Supreme Court of Pakistan given in Appeal No, K-89 of 1975, decided on 12th August, 1975. On merits it is alleged that the applicant had done manipulation in the valuation certificate of a party by giving false value of the property mentioned therein and therefore he was rightly issued a show cause which was not replied by the applicant satisfactorily with the result, his services were terminated. While replying the contention of the learned Representative for the respondents regarding the status of the applicant, the learned counsel for the applicant has submitted that the averments of the applicant made by him in his affidavit to the effect that he is a worker and that his duties are not supervisory in nature, have gone unrebutted and unchallenged inasmuch as he was not cross-examined by or on behalf of the respondent in the said regard. It is next contended that even the respondents did not reply to the grievance notice of the applicant wherein he had claimed him to be a worker within the definition of!. R.
0., 1969 and 1, Standing Orders Ordinance, 1968 and therefore the plea of the respondents to the effect that the applicant is not a worker or workman within the definition of!. R.
0., 1969 or Standing Orders Ordinance, 1968 is an after thought and the respondents be stopped from raising any such plea.
6. From the perusal of the record it is quite obvious that the applicant was appointed as a Site Engineer and was drawing total emoluments of Rs, 2,200 per month. Of course the averments/contention of the applicant in his affidavit in evidence to the effect that whether he is a worker or not within the definition of Industrial Relations Ordinance, 1969 or Standing Orders Ordinance, 1968, have not been specifically challenged by or on behalf of the respondents but on other hand it is obvious from the record that applicant had produced a charter of his duties in his cross-examination as Exh. 3-A, wherein the duties of the applicant have been enumerated and the same have been duly accepted by him. A perusal of Exh. 3-A clearly prove that the applicant did not perform any clerical or manual duties. It appears that in view of the duties mentioned in Exh. 3- A, the applicant in para. (10) of his written arguments, has made an attempt to distinguish the supervisory and control, which he had over the workers of contractor, but the said attempt has remained unsuccessful mainly because it will not change/alter the duties mentioned in the charter of duties available on record as Exh. 3-A. The respondent's witness namely lalat Farooq, who is the Incharge of Engineering Section of the respondents, has enumerated the duties of the applicant and has also stood a test of cross-examination which clearly reveals that the duties of the applicant were neither clerical nor manual. It cannot be expected from a worker to perform such duties which would legally involve his employer financially. Although the said Talat Farooq is the Incharge of Engineering Department but this mere fact will not make the applicant to be a worker simply because it is not necessary that a person/employee who is not head/Incharge of the department would be a workman for the purpose of I. R.
0., 1969 or Standing Orders Ordinance, 1968 but the true tests for determining the status of an employee is the nature of his duties. In the instant case the nature of duties of the applicant does not bring him within the ambit of a worker as defined either in the I. R.
0., 1969 or Standing Orders Ordinance, 1968. In cross examination It has come on record that whenever the applicant was needed, he was provided with an Assistant. The applicant has attempted to convert his termination into dismissal but again he could not succeed in his attempt.
Reference in this respect be made to 1980 F L C 353 at page 355, Where in the learned Sind Labour Appellate has observed as under :- "It was contended by Mr. Mirza Muhammad Kazim, the learned counsel for the applicant, that in fact the applicant's Services Were terminated on account of his alleged unsatistactory work, and he sought to reply, in support of his contention, on the admission made in cross-examination by the Labour Officer of the respondents. The Labour Officer no doubt, has stated that the services of the applicant were terminated by reason of his irregular attendeuce and that his work was unsatisfactory, but it is the formal order of the termination of services, which is important, and since this order stated that the services of the applicant, were being terminated as no longer required, this would be a case of termination of service simplicitor and not for reason of misconduct. As such the procedure prescribed for dismissal, by reasons of misconduct, under Standing Order 15 was not required to be followed."
' In the other case of above-said authority (1980 PLC 344), the learned Sind Labour Appellate Tribunal has held that an Assistant Executive Engineer employed in grade "17" with emoluments of Rs, 1,490 being entitled to facilities and privileges of Officers like provision of Van and House Rent, would not fall under the definition of workman. In the instant case, the applicant was admittedly appointed on a basic salary of Rs, 1,210 plus 60% House Rent plus Rs, 150 Conveyance plus 10% of the basic salary as Karachi Compensatory Allowance which comes to more than Rs, 2,200. It is quite obvious from the record that the applicant was a qualified engineer and it is not expected that a qualified engineer having a lot of experience would take up employment as workman in any concern. In this connection, I would further refer the authorities reported in 1980 PLC 622 and 344 and an unreported case of Supreme Court of Pakistan in Civil Appeal No, 218 of 1974 declaring one Zahoor Hussain Shah, Officer Grade III of the respondent's Bank as not workman and C. A. K. 89/75, and C. P. K. 145/76 of the Hon'ble Supreme Court of Pakistan. The authority cited on behalf of the applicant is not applicable to the instant case mainly because in the referred authority the Chief Accountant had to work under the instructions of the Incharge of Accounts Section, whereas the applicant's nature of duties are altogether different and he needed no instructions in connection with his work/job.
The above-referred authority was fully considered and distinguished by the learned Sind Labour Appellate Tribunal in case of Johnsons & Johnsons (Pakistan) Ltd. Hence the applicant did not fall within the definition of worker or workman as defined either in the Industrial Relations Ordinance, 1969 or Standing Orders Ordinance, 1968 and therefore the application filed by him is not maintainable.
' Although the applicant claims him to be a worker under the definition of I. R.
0., 1969 or Standing Orders Ordinance, 1968 and states that his duties were of clerical and manual in nature but he has belied his own statement by making contradictory statement inasmuch as in affidavit-in evidence, he has stated that he was performing the duties of a Draftsman but in the cross examination he has admitted that one Ghost was doing the work of Architectural and Structural Designing of the Bank. The admission of the applicant regarding the issuance of 13 valuation certificates during the course of cross-examination clearly establishes that the applicant was doing responsible job which bound down the Bank in granting the loans to various parties who applied for loans on their immovable properties which under no circumstances would be the duty of workman as a workman is supposed to do the clerical work which does not involve discretion and does not bind his employer in its business. The applicant has further admitted in cross- examination that he has raised he valuation of a premises mentioned in Exh. 3/0 from Rs, 2,50,000 to Rs, 4,00,000. According to him he increased the valuation on the complaint of a party which clearly proves that the applicant was not a workman but was a person having discretion, supervision and responsibility in increasing the valuation and the Bank was bound down by the said valuation while granting the loan to the party.
' Since the respondents did not consider the applicant to be a worker or workman, they were not legally bound to reply his grievance notice which could only be served by a worker or workman and hence the arguments of learned counsel for the applicant to the effect that the grievance notice of the applicant was not replied by the respondents, become irrelevant and immaterial.
' As it is held that the applicant was not a worker or workman either for the purpose of I. R.
0., 1969 or Standing Orders Ordinance, 1968, is needless to go into the merits of the case. The application of the applicant is accordingly dismissed, as it is not maintainable.