' ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- This appeal assails the decision dated 9-3-2006 passed by the learned Presiding Officer, Punjab Labour Court No,1, Lahore whereby the grievance petition filed by the respondent was allowed with back benefits and the order of his dismissal was set aside.
2. The facts of the case, as alleged, briefly are that the respondent was employed as Officer Grade- I by the appellant bank. He was IBS Signatory and was Manager Foreign Exchange Department of Khadim Ali Road Branch of the bank at Sialkot. During his tenure as Manager Foreign Exchange Department at the said branch he was accused of misconduct in connivance with the Manager of the Branch as he had allowed financial accommodation to M/s. MB & SS Sons company for an aggregate amount of Rs,178.343 million without completing the requisite formalities which exposed the bank to potential loss and the bank actually suffered the loss. Consequently for this and other acts of misconduct he was charge sheeted on 16-10-1997. The charge sheet was followed by an enquiry and after conducting enquiry, the enquiry officer submitted his report in which the respondent was found guilty and ultimately he was dismissed from service on 22-8-1998.
3. Being aggrieved of his dismissal the respondent challenged the order before the Federal Service Tribunal by means of an Appeal No,12-L of 1999. In this appeal the respondent filed an application seeking withdrawal of the same and the Tribunal in pursuance of the request of the respondent allowed withdrawal of the appeal and the same was dismissed as having been withdrawn without any permission to institute fresh petition. Thereafter the respondent served a grievance notice on 10-7-1999 which was followed by a grievance petition. The learned. Labour Court recorded evidence of the parties and after hearing arguments allowed the grievance petition as indicated above.
4. The appellant bank has challenged the order of the learned Labour Court on the grounds, inter alia, that the impugned order was passed without jurisdiction; the learned Labour Court failed to appreciate that aggrieved by his dismissal the appellant had filed an appeal before the FST which was unconditionally withdrawn as such he had no mandate in law to file fresh petition in the Labour Court seeking the same relief. It was also asserted that the grievance petition was barred by time in terms of Standing Order 12(3) as the cause of action arose to the respondent on the dismissal of the respondent and not with anything done subsequently. The respondent's employment was terminated on 22-8-1998 whereas the grievance petition was filed a year after which was hopelessly time-barred; that the respondent was Manager Foreign Exchange Department as such he cannot be classified as a workman and consequently was not entitled to invoke the jurisdiction of the Labour Court. The learned Labour Court has completely ignored this aspect of the case although increasing stress was laid by the bank that he did not fall within the category of "workman". There is an ample proof on the record of his misconduct which entailed into colossal loss to the bank despite upsetting their reputation but the learned Labour Court completely closed its eyes to this aspect of the case as well.
5. Learned counsel for the respondent however stoutly resisted the claim of the appellant and argued that though the respondent was known as an Officer nevertheless his nature of job was merely clerical and manual and he would do all his work with his own hands; he had no power to hire or fire any of the officials; no loss whatsoever has been occurred to the bank and they have unnecessarily created a hype to harass the respondent.
6. Arguments have been heard and record has been perused.
7. Learned counsel for the appellant laid increasing emphasis on the following points:--
(1) That :he respondent was not a workman and as such was not entitled to seek remedy from the Labour Court;
(2) That when he himself had withdrawn his appeal before the FST unconditionally, law does not permit him to seek relief on the same cause of action from another forum after a period of one year of his dismissal.
8. Elaborating his points it was argued that the respondent as per his own showing claimed himself as Finance Manager in Khadim Ali Road Branch of the bank at Sialkot. Entries in the attendance register (copies of which are available at pages Ncs.201-203 of the labour court's file) show that he has been designated as Finance Manager of Foreign Exchange. In reply to the charge sheet in para No,2, the respondent himself says that " Being Manager Foreign Exchange he exercised all care and due procedure"; While appearing in the Labour Court as PW-1 he supported the contents of his grievance petition and conceded that he was Incharge of the Allied Bank Sumberial Branch. PW-2 Mr. Abdullah supported his version and stated that he was Incharge of Sumberial Branch of the Bank and besides him there was one officer,-one cashier and one Naib Qasid in-the hank. - Respondent himself admitted before the court that besides Sumberial Branch of the Bank he had been Manager of Shahabpura Branch Sialkot City as well. Explaining his position he affirmed that he was working as Manager in Foreign Currency Department. Again explaining the nature of his duties he stated at page No,328 of the Labour Court's file that he was working in the Foreign Currency Department and was known as Manager Foreign Currency Department. He further elaborated his functioning at page No,328 by saying that he would first understand the nature of the work then employ his mental and intellectual faculties. He would do correspondence in English.
He claimed that he was M.A. Economics and Inter Branch Authorization Signatory( (IBS) Holder.
9. On the point of workmanship after inviting the attention of the court to the above aspect it was emphatically argued by the learned counsel for the appellant that he was not only a Manager of the Foreign Exchange Branch but also as per his own admission he had been Manager of two other branches at Sumberial as well as Shahabpura Branch of the Sialkot City.
10. On the other hand learned counsel for the respondent invited my attention to the evidence led by the respondent wherein it was clearly claimed that his job was purely of clerical and manual nature; he would prepare the vouchers and other papers by hi; own hands because computer system had not been introduced in those days. It was added by the learned counsel that although he has been described as Manager Foreign Exchange Department nevertheless all the important cheques, and vouchers were signed by him and then by the Manager. Thereafter the same could have been encashed. He had no powers to hire or fire the employees working under him. This would clearly show that the nature of his duties, was clerical and manual and mere high sounding name and designation and huge pay will not bring him out of the pale of the workmanship.
11. It was vehemently asserted by the learned counsel for the bank that the respondent was Head of the Foreign Exchange Department when he was involved in the alleged misconduct being an officer holding an Inter Branch Authorization Signatory (IBS) Holder. As such he was not a workman.
It was denied that the respondent was doing any manual or clerical work as Manager of the Foreign Exchange Branch. He was indeed employed in the fiduciary and managerial capacity, therefore, he had no right whatsoever to maintain a petition in the Labour Court. In an identical case where the appellant was a Manager of the Foreign Exchange Department in Station Road, Hyderabad Branch when certain irregularities were detected to have been committed by him and after following due procedure he was dismissed from service. It was ruled by the Hon'ble Supreme Court of Pakistan:--- "On a careful and conscious scanning of the record and appraisal of the evidence, we are firmly of the opinion that mere designation of a person, the amount of emoluments drawn by him or even holding a power of attorney by itself are not the sole criteria for determining his status. The fact remains that undoubtedly the petitioner in his capacity as Officer grade-II has been heading a 'department of the respondent establishment independently and supervising the work of at least five persons. No doubt, he did not have the power of hire and fire, the nature of job as performed by him and evident from the record including the power of attorney executed in his favour tends to show that he was not primarily employed as a workman doing manual or clerical, skilled or unskilled work. The nature and duties performed by him primarily and essentially appeared to be of managerial and supervisory nature, which clearly fall beyond the ambit and purview of the term "workman". (2007 PLC 41)
12. In the cited case it appears that he had been given a power of attorney by the bank and in this case even if there was no power of attorney it stands established that the nature of his duties were neither manual nor clerical. The main job performed by him involved mental faculties. Officers heading the Foreign Exchange Department are expected to display the qualities of initiative and drive, independence and correct speculation and for doing so they are given some independence in their line of action. They are thus expected to use mental faculties to find new avenues of promotion of banking business. As such he cannot be said in any way to have been appointed as Foreign Exchange Manager to do manual or clerical work.
13. As for the arguments of the learned counsel for the appellant that he had withdrawn his appeal from the FST and this was done on the assurance of the bank that he would be accommodated as such no adverse influence can be drawn from his withdrawal of the appeal from the FST, there is nothing on the record to show that any assurance or undertaking was ever extended to the respondent by the bank authorities. The consequences of such a withdrawal without the leave of the court have been discussed in PLD 2010 SC 913 (at page No,928) wherein it was ruled:-- " The plaintiff thus enjoys the choice of the time and stage of withdrawal as well. A plaintiff is also vested with the right to partly withdraw his claim or wholly as against all or any of the defendants.
Sub-Rule(3), however, exposes him to two consequences (i) liability to pay costs if awarded and
(ii) bar/preclusion to bring a fresh suit on the same cause of action/subject-matter".
14. In this case the respondent had withdrawn his appeal without permission of the court and he has failed to establish that this was done by him on the basis of any understanding or a compromise between the bank and. Himself. As such, he cannot avoid consequences of such an unreserved right and without permission of the court. The obvious result of this would be that he was precluded from bringing any claim on the basis of same cause of action.
15. The appellant has clearly established that he was an Officer. He was holding a managerial and supervisory post in the Bank at Khadim Ali Road Bench. Besides that he had been Manager in Sumberial as well in Shahabpura Branches at Sialkot.
16. In this view of the matter, it clearly stands established that he was not a workman and as such was not entitled to maintain the grievance petition in the Labour Court. The appeal is, therefore, allowed and the grievance petition is hereby dismissed, leaving the parties to bear their own costs.