1. DECISION ' ALI MUHAMMAD BALOCH (MEMBER).--- I proposed to dispose of the above two appeals by this single decision as the parties and points of law are the same. I have heard Mr. Muhammad Sabir learned counsel for the appellant bank and Mr. Lajpat Rai learned counsel for the respondent worker at length and they have also submitted their written synopsis/arguments. I have gone through the record and proceedings, citations and arguments of the learned Counsel.
2. ' In brief the case of the appellant was that the respondent worker was employed as internal Auditor and assigned the duties of audit of various branches. During the said period he was found absent from his duty for more than ten days, as according to the appellant the application for extension of leave was rejected vide letter dated 15-12-2005 and the respondent worker in response to the said letter joined the duties. As leave was not granted, the appellant was issued a charge sheet vide letter dated 14-12-2005 for absence from 2-12-2005. The said charge sheet was replied, but the management of the appellant bank was not satisfied with the reply and had directed for domestic enquiry. Notices were issued to the respondent worker, but the respondent worker had not participated in the domestic enquiry, as according to the respondent that no such notice was served upon him though he was on duty and the address of his duty place was also mentioned in the charge sheet. On the other hand, respondent worker alleged that he was not absent from duty without any information but actually he had applied for leave vide his application dated 2-12-2005 which was duly received in the office of EVP Human Resource Department, but no rejection letter was served upon the respondent worker, so he was under the impression that his request was accepted and he enjoyed the leave. Later on, on 14-12-2005 he again requested for further leave of six days but the same was rejected vide letter dated 15-12-2005 and through the said letter respondent was also directed to report for duty, so he immediately joined his duty.
3. Thereafter, charge sheet was issued on 14-12-2005 which was replied vide reply dated 21-12-2005.
4. As according to the respondent no notice of enquiry was served upon him, as such, he could not participate in the domestic enquiry as he was performing his duties continuously without any break upto the issuance of letter of dismissal dated 6-5-2006. Thereafter, the respondent served a grievance notice and then filed the grievance application before learned Labour Court No,V, Karachi. Appellant bank, after service of the notice contested the grievance application by filing preliminary legal objections and parawise reply statement. The only one legal objection which was raised, was in respect of any consequence of industrial dispute, but further alleged that the respondent worker had opted for resignation in order to enjoy the benefits of retirement. It is pertinent to mention here that despite such contention, appellant bank had not produced any resignation or application for option of retirement of the respondent worker. So this part of the legal objection had automatically become infructuous and for the other part it was the case of the respondent worker that for claiming rights under Standing Orders Ordinance, 1968 there was no need of any industrial dispute.
5. 'Respondent worker filed his affidavit in evidence, he was cross-examined at length by the learned counsel for the appellant bank and on behalf of the appellant bank Abdul Majeed Sholapurwala and Syed Muzaffar Jameel have filed their affidavits in evidence. It is pertinent to mention that there are two affidavits in evidence of Syed Muzaffar Jameel available on record and on both of them separate cross-examination is available. It is also pertinent to mention here that first affidavit in evidence was filed on 16-2-2008 and cross-examination was conducted on 9-4-2008 and thereafter on 18-3-2009 another affidavit in evidence was filed on which cross-examination was conducted on 12-4-2009. Pertinent to note here, the affidavit in evidence filed earlier having only two annexures and whereas other affidavit in evidence bears number of annexures. It is noted with concern by the Tribunal that material irregularity has been committed by the Presiding Officer, Sindh Labour Court No,V, Karachi, as after recording some cross-examination, how the learned Presiding Officer can allow the witness to file affidavit in evidence/additional affidavit in evidence, but luckily the learned Counsel for the worker has not raised any objection to the same, but he received the copy and on the next date of hearing he conducted the cross- examination, which was reserved earlier and also considered the said affidavit-in-evidence. But it is an irregularity so it is observed that the learned Presiding Officer shall, be cautious in future in considering such type of affidavit.
6. ' As the impugned judgment is a common judgment announced in two cases and the facts of the other case though some what different from the present, but because parties are same the learned Labour Court has decided the same by a common judgment. Brief facts of the case are that the respondent worker was working according to the appellant as Auditor in Internal Control Unit (ICU) and had to perform job of Auditor in different branches and assignment given to him for the purpose. Accordingly the respondent was assigned job of Auditor at Khayaban-e-Jami Branch but unauthorizedly found sitting in Zamzama Branch without any official assignment just to collaborate and assist Syed Muhammad Ali Naqvi to defraud the bank. This was reported by some officer and respondent worker was served with charge sheet dated 3-9-2004, reply was submitted but found unsatisfactory, as such, an enquiry was conducted and Enquiry Officer found him guilty, resulted into a minor punishment of reduction in basic pay vide letter of bank dated 18-3-2005.
7. Respondent worker served grievance notice and then filed grievance application before learned Labour Court No,V, Karachi. Respondent worker contended that on particular date he was directed on mobile phone by AVP/Chief Manager to reach at Zamzama Branch and to handle the situation as Manager Operation of Khayaban-e-Tanzim Branch left for Zamzama Branch for collection of rupees four million and in this respect he has produced annexure "A/1", the statement/undertaking of the Chief Manager about the directions given to the respondent worker. Charge sheet was replied and enquiry was conducted, but nothing has come on record against the respondent worker, but it is the case of the appellant bank that respondent was found sitting in Zamzama Branch without any official assignment and was involved in making attempt to commit fraud with the bank as the then Manager Syed Muhammad Ali Naqvi, Khayaban-e-Tanzim Branch was trying to transfer huge amount on the day when the same could not be possible in his personal account.
8. When the respondent worker was questioned for his involvement about the same he allegedly misbehaved with the said person. After domestic enquiry respondent worker was punished for minor punishment of reduction in pay scale. Before learned Labour Court respondent worker filed his affidavit in evidence and he was cross-examined by the learned counsel for the appellant bank and on behalf of the appellant bank Kamal Ishaq and Nuzhat K. Sherwani have filed their affidavits in evidence and appeared in witness box and they were cross-examined by the learned counsel for the respondent worker. Learned Labour Court has given its findings by way of a common A judgment vide judgment dated 29-9-2010 which is impugned in this appeal.
9. Learned Counsel Mr. Muhammad Sabir for the appellant bank vehemently argued that the respondent worker is not a "workman" as being employed as an "Auditor". Before going to the case- law or the relevant law, I have to examine the contentions of both parties as respondent worker in para-1 of his grievance application has specifically pleaded that he was a "workman" under the relevant law i,e, Standing Orders Ordinance, 1968 and whereas the contents of the said para though the contents of para-1 was denied but it is a formal denial and such denial cannot shift the burden, especially in view of the admission of the appellant management in reply to para-2 of the grievance application. Even otherwise, the job of "Auditor" cannot be considered as job of a person other than a "workman", as because respondent worker was initially appointed as "Assistant" and if I considered the job of "Auditor" which ultimately the job of clerical in nature, as because in earlier judgments of the Hon'ble Supreme Court of Pakistan held that the "designation and salary of an employee cannot be a touchstone for determination of his status of workman and it is the nature of duties which may decide his status" and it is an admitted position that no job description has been filed before the learned Labour Court and no question has been put to the respondent worker regarding his nature of job/duties. On the point of "workman", Mr. Muhammad Sabir learned counsel for the appellant bank has relied upon the case-laws as reported in 2001 PLC 428, 2007 CLC 400, 1993 PLC 595, PLD 1986 SC 103, 1985 SCM R 1511. Mr. Lajpat Rai learned counsel for the respondent worker has also cited case-laws 2006 PLC 24, 2007 PLC 472, 2008 PLC 40 and 2009 PLC 171.
10. ' The evidence on record is limited to the three affidavits i,e, one of the respondent worker along with his additional affidavit in which he has adopted the contents of his grievance application, so the contents of para-1 of grievance application has to be considered as part of the evidence, so also the para-1 of the affidavit in evidence is in respect of the status of "workman". For ready reference i,e, relevant paras i,e, para-1 of grievance application, para-2 of affidavit in evidence and para-1 of the additional affidavit in evidence are reproduced hereunder:--- "Grievance application.--- 1. That the applicant was a permanent worker/workman as prescribed in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as well as defined in the Industrial Relations Ordinance, 2002 and was working in the capacity of Office Grade-III having Staff No,12417.
11. Affidavit in evidence:- 2. That I say that I was permanent worker/workman as prescribed under the relevant labour laws and was working with the respondent/bank it1 the capacity of Officer Grade-III having staff No,12417.
12. Additional affidavit in evidence.--- 1. That I am applicant in the above matter, hence I am fully conversant with the facts of the case. The memo. Of main application and the affidavit of evidence along with its annexures may be treated as an integral part of this affidavit for the sake of brevity."
13. The perusal of the cross-examination of the respondent worker reveals that no question has been put to the respondent worker during the course of his cross-examination regarding his nature of job. The evidence of the appellant bank was silent about the status of the C respondent worker except the reproduction/adoption of the legal objection as well as contents of written statement in the affidavits in evidence. The cross-examination of the witness of the appellant bank Syed Muzaffar Jameel reveals that the respondent worker used to audit the branches on weekly basis and the said witness further admitted in the following words:--- "It is correct to suggest that I have not filed the job assignment of the applicant with my affidavit in evidence. It is correct to suggest that when the applicant was working in H.R. Department of the respondent there was no work with him as he was in surplus pool of the respondent prior to 8-9- 2006. The applicant was posted in November. 2005 in Korangi Industrial Area Branch of the respondent wherefrom he was surrendered by the Branch Manager. It is correct to suggest that I have not filed the surrender letter but I am ready to produce it. It is correct to suggest that the applicant was declared surplus by posting him at H.R. Department. No letter was given to the applicant declaring him surplus as there is no provision in the respondent establishment in this regard. It is correct to suggest that applicant was transferred to Group Head Quarter South from H.R. Department vide letter dated 8-3-2006. .... It is correct to suggest that neither any work was given to the applicant nor he remained there three weeks in the Group Head Quarter South Office after his transfer order dated 8-3-2006 as he was not allowed to join the duty there. It is correct to suggest that I have not specifically mentioned in the written statement and in my affidavit in evidence about this fact."
14. The above clear cut evidence as come on record reflects that the respondent worker was a "workman" and his application before the learned Labour Court was very much maintainable. The case-laws as cited by the learned Counsel for the appellant can easily be differentiated as because the job description of "Auditor" has not been produced nor at the time of issuance of dismissal letter, the respondent worker was working as an "Auditor" and malafidely appellant has not allowed any work to the respondent worker just in order to kick him out from the definition of "workman".
15. ' The next is the enquiry proceedings and the allegations in both cases. The enquiry as conducted is very objectionable, as because the respondent worker was on duty and management deliberately transferring him from one place to another place and during the said period no notice of enquiry was served directly upon him or through proper channel. Once a workman is in employment of any establishment it is the duty of the employer to serve the notice directly upon him and there is no question of sending such letters/notices to some other places as evident from the enquiry notice and charge sheet though the same, were issued and also posted through registered post. The question is very clear when the appellant management is paying salary, so why not the enquiry notice has been got delivered to him through proper channel. Here it is worth mentioned that the enquiry notice was not sent on last residential address as admitted by the appellant witness in cross-examination, which is reproduced as under:--- "It is correct to suggest that the enquiry notice and final enquiry notice were not sent on the last residential address mentioned in the dismissal letter dated 6-5-2006."
16. In view of the above admission, the ex parte enquiry resulting into major punishment is nullity in the eye of law and is liable to be discarded.
17. ' The enquiry in other charge-sheet is also objectionable, as because the complainant has only produced the charge sheet in his statement, so rightly accused respondent worker has put no question, as because the production of charge-sheet does not constitute for the purpose of cross- examination and the other two persons who were present in the enquiry have not offered their statements, so their presence is of no consequence, but would support the case of the respondent worker as he along with his statement had produced statement of Mrs. Shagufta Rizwan regarding the admission for directions given to the respondent worker to reach the Zamzama Branch On that particular date, therefore, the said statement should be confronted to the signatory of the same who was present in the domestic enquiry, but the Enquiry Officer has not chosen the right way but closed the enquiry, as such the said enquiry report cannot be used against the worker.
18. In appeal bearing No,KAR-1687 of 2010 the charge-sheet dated 14-12-2005 was considered and in the same matter, there some mishandling of the matter at the management level, as the application for the leave for nine days was received by someone in Human Resource Department as bears the rubber stamp of the department, but the application which does not bear any rubber stamp of the management was replied and department failed to examine any person from the Human Resource Department who may clarify the position, whether the said request was not delivered in the department and on the other hand respondent worker has not mentioned the reason of no signature of the recipient as no signature was available, but it is the responsibility of the management to produce evidence to the said effect, as the incumbent was on duty on the particular date can authoritatively say whether it was received by him or not. In absence of such evidence both parties are at default, therefore, in view of the presence of leaves in the credit of the said worker/respondent, he is entitled for the grant of such leave(s) until the same expired, therefore, the order of the learned Labour Court to the extent of reinstatement is maintained in both appeals and the punishment in appeal bearing No KAR-1688 of 2010 is hereby recalled and set aside and respondent worker is restored to its original position. However, regarding back benefits it is modified to the extent of 50%, as back benefits are not a punishment for the action taken by the department, but as a compensation for unemployment and if worker having some fault the question of back-benefits should be considered on the grounds. With this observation both appeals are hereby disposed of accordingly with modification observed above in the impugned order and the appellants are directed to comply with the order of the learned Labour Court within 30 days from the date of this decision.