' NASIR-UL-MULK, J.---The respondent, Muhammad Shahid Mumtaz, was employed as Assistant in the Muslim Commercial Bank (Pvt.) Ltd. (MCB) in the year 1974, and after different promotions, was eventually promoted as an Officer Grade-II in 1998. He was posted as Branch Manager, Khiali Gate Branch, MCB, Gujranwala and later posted in the same capacity in Khakwani Cloth Market Branch in the same city. During such posting, audit of the Branch was carried out by Ghulam Abbas Goraya, Assistant Vice-President (Audit Cell), Faisalabad in June, 2000. The Auditors in their report pointed but certain irregularities in the Branch with serious allegations of misappropriations of cash deposited by the customers of the Bank. Accordingly the respondent was issued three charge-sheets successively on 7-6-2000, 19-6-2000 and 10-10-2000 on different allegations of misconduct. The respondent filed reply ,to the first two of the charge-sheets and participated in the inquiry proceedings. He, however, did not respond to the 3rd charge-sheet: The Disciplinary Action Committee constituted to hold the inquiry found the respondent guilty of misconduct with the result that the Regional Head of MCB on 14-12-2000 dismissed the respondent from service with immediate effect.
2. The respondent issued grievance notice against his dismissal whereafter he filed petition under section 25-A of the Industrial Relations Ordinance, 1969 before the Labour Court, Gujranwala. Apart from contesting the respondent's petition on merits, the Bank raised a preliminary objection to the jurisdiction of Labour Court pleading that the respondent being Manager of a Branch at the relevant time held a responsible position and therefore, was not a workman. This, as well as the other contentions of the Bank, did not prevail upon the Labour Court and consequently on 21-11- 2003, the petition of the respondent was allowed; he was reinstated in service and granted all back-benefits. The Bank appealed against this order to the Lahore High Court. The appeal was dismissed on 14-12-2006 and the Bank filed petition for leave to appeal, which was granted in the following terms:- "It is contended that the respondent, Muhammad Shahid Mumtaz while acting as a Branch Manager was duly constituted attorney of the Bank vide power of attorney dated 20th August, 1996 affixed at page 90 of the paper book clause 2 whereof equipped him with a right:- "to engage, employ, control and dismiss Clerks, Servants and A others whether engaged by the said Attorney or by the Bank or otherwise."
' Thus, by no stretch of imagination could he be a workman, rendering the impugned order based upon misreading of evidence.
2. Having heard the petitioner as well as the respondent in person, we are of the view that matter warrants reappraisal of the entire evidence. Consequently, leave is granted. Meanwhile, operation of the impugned judgment is suspended."
3. Since the main controversy between the parties was whether the respondent was a workman within the definition of the statutes relating to the Labour Laws, it will be worthwhile to refer to the findings thereon of the trial Court. Declaring the respondent to be a workman. Notwithstanding that the respondent, at the time of the alleged misconduct, was posted as Branch Manager, the Court held that the relevant time for determining his duties was the date when the charge-sheets were issued, when he was simply a Grade-II Officer with no powers to hire or fire and also not holder of a power of attorney. Even otherwise, the Court held that though a photocopy of the power of attorney, in favour of respondent, was produced in the Court by a witness of the Bank, there was no evidence that the same was actually delivered to the respondent. It was thus, concluded that the handing over of the power of attorney to the respondent had not been established. The Court went on to hold that in the light of the declaration made by the respondent, claiming to be a workman, onus shifted to the Bank to establish otherwise. In appeal, the learned Judge in Chambers of the Lahore High Court, upheld the findings of the trial Court on the issue simply on the ground that it was not the designation but the nature of the work, which determined as to whether a person was a workman or not and that since the Bank had not produced any evidence in rebuttal of the statement of the respondent about his duties, the stand of the respondent stood established.
4. Mr. Farooq Zaman Qureshi, learned counsel appearing for the appellant-Bank, submitted that the respondent, no doubt was an Officer of Grade-II, the duties assigned to such officers depended upon their posting. That the respondent was posted as Manager of a Branch of the Bank and was posted for the second time in that capacity. The learned counsel produced the Functional Titles of various officers of the Bank to substantiate his arguments that the nature of the responsibilities of the officers of the Bank was based not on the grades assigned but the functions attached to the post held by the officers. He pointed out that the respondent was issued power of attorney to be exercised on behalf of the Bank and the trial Court as well as the Appellate Court erred in disbelieving its delivery to him. The learned counsel argued that the respondent was in charge and control of the Branch of which he was appointed as Manager. It was argued that the trial Court as well as the Appellate Court had erred in law in shifting the burden to the Bank to prove that the respondent was not a workman. As to the merits, it was maintained that the -respondent took part in the departmental inquiry proceedings and the irregularities alleged against him were duly proved. Referring to the judgment of the trial Court, it was pointed out that the Court did not reverse such findings of irregularities but exonerated the respondent on the ground that the same were rectifiable ands that the Bank had not suffered any financial loss. As regards the award of back- benefits, the learned counsel submitted that simple statement by the respondent that he remained jobless since the date of his dismissal was not sufficient to establish the assertion. For his submission, the learned counsel relied upon ALLIED BANK OF PAKISTAN LTD. V. MUHAMMAD HUMAYUN KHAN AND OTHERS (1988 SCM R 1664), DILKUSHA ENTERPRISES LTD. V. ABDUL RASHID AND OTHERS (1985 SCM R 1882) and NATIONAL BANK OF PAKISTAN V. PUNJAB LABOUR COURT NO.5 FAISALABAD (1993 SCM R 672).
5. Mr. Abdul Rehman Siddiqui, learned counsel appearing for the respondent replying to the above arguments, submitted that the concurrent findings of the two Courts that the respondent was a workman at the relevant time, was not liable to be reopened by this Court in its constitutional jurisdiction. That the relevant time to determine as to whether the employee was a workman or not is the date on which he was charge-sheeted. That the respondent had already been transferred away from the post of Branch Manager when he was charge-sheeted. In addition to the facts taken into account by the two Courts, the learned counsel maintained that since the respondent had no power to hire or fire or to exercise any other administrative control over the staff of the Branch, he remained a workman, notwithstanding his posting as Branch Manager. In support of his contentions, the learned counsel referred to NATIONAL BANK OF PAKISTAN V. MUHAMMAD ASLAM DAR (1999 SCM R 157) and NATIONAL BANK OF PAKISTAN V. PUNJAB LABOUR COURT NO. 7, GUJRANWALA (1992 SCM R 1891). The learned counsel further argued that the disciplinary action against the respondent was motivated by the malice of Ghulam Abbas Goraya, Assistant Vice-President (Audit Cell), who had pointed out the irregularities in question. That the said officer was annoyed with the respondent on account of the later's denial of his request to give insurance business to the Assistant Vice-President's brother-in-law.
6. The workman has been defined in statutes relating to Labour Laws in the Industrial Relations Ordinance (I.R.O.), as well as in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. The definition in the two statutes are different and in the case of MUSTEHKUM CEMENT LIMITED V. ABDUL RASHID (1998 SCM R 644) this Court has held that if termination of a workman does not arise out of an industrial dispute, his remedy is available under the Standing Order 12(3). Since the respondent's dismissal was not the result of an industrial dispute his status as to whether or not he was a workman, is to be determined in the light of definition of the term in Standing Order. The trial Court as well as the High Court also examined the respondent's status under the said definition, which reads as under:- "2(h)(i) Workman means any person employed in any Industrial or Commercial Establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
'The import of the above definition came under discussion in another case before this Court in.
GENERAL MANAGER, HOTEL INTERCONTINENTAL V. BASHIR A. MALIK (PLD 1986 SC 103) and it was held 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 main features, the pith and substance of his employment must be manual or clerical before the definition is attracted".
7. In the light of the above definition, we need to examine as to whether the respondent was a workman or not. Before discussing the factual aspects of the question, we may point out that both the Courts erred in placing burden on the Bank to prove that the respondent was not a workman.
This Court has already held in the case of NATIONAL BANK OF PAKISTAN V. PUNJAB LABOUR COURT NO.5 (supra) that a person, who approaches a Court on the basis of averment that he is a workman, the burden of proof lies on him and not on the employer. The respondent was a Manager at the relevant time of the Khakwani Cloth Market Branch of the appellant-Bank. This was his second posting as Manager as he has earlier posted in the same capacity in Khiali Gate Branch, MCB, Gujranwala. The power of attorney was executed by the Bank in his favour on 20th August, 1996, four years prior to the present incident. This power of attorney was given to him on his first posting as Manager. It was duly notarized by a Notary Public and signed by the President of the Bank and attested by two Vice-Presidents of the Bank. There is no reason to doubt its authenticity and we are unable to understand as to how the trial Court had ruled out of consider the power simply on the ground that there was no evidence to show that the same was ever delivered to the respondent. In view of its notarization and execution by the most responsible official of the Bank, in the absence of any convincing evidence to the contrary, it is unbelievable that the same would have been fabricated only to counter the respondent's claim of being the workman. We have also noticed that this aspect was not discussed by the learned Judge in Chambers in the High Court.
8. The powers conferred on the respondent by the power of attorney are material for fixing his status in the context as to whether or not he was a workman. For this purpose, all the powers conferred are relevant but the most significant ones are the following:--- "(2) To engage, employee, control and dismiss Clerks, Servants and others whether engaged by the said Attorney or by the Bank or otherwise.
(4) To settle and adjust all average and other losses and claims under Policies of Insurance of all kinds and all other accounts and reckonings whatsoever and to compromise and compound all debts and claims whatsoever claimable by the Bank and to submit to Arbitration all differences and disputes whatsoever.
(6) To take on lease or other tenancy any land, houses, buildings for the purposes of offices or premises suitable for carrying on the said business or any of them and to build, alter and furnish any office, house or premises.
(8) To make, sign, seal, execute, deliver and endorse all receipts, deeds, redemption of mortgage deeds, conveyance, transfers and instruments.
(12) To draw, accept, endorse, sign and negotiate all Bills of Exchange, Dividend Warrants and any orders for payment of money in which the Bank is or may be interested or concerned and to which its endorsement or signature may be necessary or requisite.
(17) AND GENERALLY to do all such acts, deeds and things not specifically mentioned hereinabove but which are necessary or expedient to carry on and manage the business of the Bank and all such other acts which are incidental to the promotion of Banking business."
9. The above powers, particularly the one of hire and fire in para 2, sufficiently demonstrates the nature of his duties and functions as managerial and supervisory and not clerical in nature, as claimed by him.
10. Interestingly while appearing in the witness-box, the respondent referred to the nature of his work as Officer Grade-II and not that of a Manager. It may be mentioned that it was on account of the inquiry that was to be held against him on the basis of the Auditors report that he was transferred to another Branch not in a managerial capacity. Apparently this was done to facilitate the process of inquiry. It is thus, his capacity as Manager of the Branch, which was relevant for determining the status for the purpose of his standing to approach the Labour Court. We are in no doubt that in view of the aforesaid 'discussion the respondent was not a workman.
11. We are mindful of the fact that there are two concurrent findings in favour of the respondent holding him to be a workman. As pointed out earlier both the Courts have erred in shifting the burden to the Bank to establish that the respondent was not a workman. Perhaps it was on this wrong test applied that the Courts came to their erroneous conclusions. In this view of the matter, we would be legally justified to set aside the concurrent findings of facts.
12. Since we have concluded that the respondent was not a workman at the relevant time, the findings of the two Courts on this question cannot be maintained. The appeal is, therefore, allowed and the judgments of both the Courts are set aside and the grievance petition filed before the Labour Court is dismissed as such Court had no jurisdiction to entertain the petition. This of course is without prejudice to any other remedy that the respondent may have for the redressal of his grievance. There shall be no orders as to costs.