Habib Bank Limited, the petitioner, by invoking the jurisdiction of this Court under Article 199 of the Constitution has called in question the judgment of the Punjab Labour Appellate Tribunal, Lahore dated 23.12.2010 and the judgment of the Presiding Officer, Punjab Labour Court No. 8, Bahawalpur dated 9.3.2010 whereby Niaz Hussain ex-Cashier, Habib Bank Limited Galla Mandi Branch, Bahawalnagar/ Respondent No. 3 has been reinstated in service.
2. Brief facts leading to this petition are that services of Respondent No. 3 were terminated vide order dated 23.4.2007, which was impugned by filing a grievance petition under Section 25-A of the Industrial Relations- Ordinance, 1969 before the Punjab Labour Court No. 8, Bahawalpur with the contentions that he was a permanent worker under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that the order of termination of his services was unlawful on the grounds that no proper inquiry was conducted; that no complaint was ever received against him from any customer; that neither any witness was ever produced against him nor he was provided an opportunity to produce his defence; that no loss to the Bank or to any party was ever reported; that no charge of embezzlement was ever levelled or proved against him; that so-called inquiry as well as the impugned order of termination of his services is without lawful authority, ex-parte, violative to the principles of natural justice, arbitrary, without application of judicious mind passed by the non-judice and liable to set aside in the interest of justice.
3. The present petitioner controverted the contentions raised by the employee with preliminary objections that the Labour Court lacks jurisdiction to entertain the grievance petition; that Niaz Hussain respondent while posted as Cashier (dealing in Finances) at Ghallah Mandi Branch, Bahawalnagar has committed misappropriation/ irregularities and while receiving payments worth Rs. 2,96,791/- and 2,91,015/- of two cheques of the parties signed on the reverse of the cheques as payee and deposited the said amounts in his personal Account; No. 58282-01 at Ghallah Mandi Branch, Bahawalnagar; that during investigation he admitted in his written statement dated 16.6.2006 that he utilized credits of Rs. 12,87,000/- to maintain the balance in his account to have a car from M/s. Bank Alfalah Limited on lease; that in result of the inquiry allegations of fraud, misrepresentation, dishonesty, breach of rules and regulations of the Bank were established and consequently his services were terminated vide order dated 23.4.2007.
4. Learned Punjab Labour Court No. 8, Bahawalpur (hereinafter to be called Labour Court) after providing an opportunity of hearing to the parties allowed the grievance petition in favour of Niaz Hussain Bhatti while making the observation that the petitioner falls within the definition of worker/workman under the labour laws and the Labour Court has jurisdiction to adjudicate upon the matter. Learned Labour Court also accepted the respondent's plea that the written statement was obtained by the inquiry officer/Bank Authorities from him under coercion. Learned Labour Court also noted that no evidence was produced during the inquiry proceedings to prove the allegations of misrepresentation, fraud, dishonesty, breach of rules and regulations of the Bank against the respondent and that no proper opportunity was given to the him for producing his evidence in rebuttal. Learned Labour Court reaching to the conclusion that the impugned order of termination of services of the respondent dated 23.4.2007 is not maintainable in the eye of law set- aside the same and the respondent was reinstated in service with all back benefits.
5. Present petitioner Habib Bank Limited assailed the order of the Labour Court before the Punjab Labour Appellate Tribunal, Lahore (hereinafter to be referred as Tribunal). The learned Tribunal of served that the alleged fraud and misrepresentation came to notice of the Bank through audit report on 16.6.2006 but the show-cause notice Exh.R-1 was issued to the respondent on 18.8.2006 which was clearly barred in view of the provisions of the Standing Order 15(4) of the Standing Orders Ordinance, 1968 which envisaged that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct came to the notice of the employer.
6. The petitioners' contentions before the learned Tribunal that the respondent was found involved in parallel banking and banking within the bank was also repelled by the learned Tribunal as in the Banking System one cannot act singe handedly as against the internal control and audit system besides involvement of other employees in routine business. Learned Tribunal categorically observed that no valid inquiry was conducted by the Bank rather it was a dogmatic exercise in the shape of questions and answers which appear to be a dialogue between the prosecutor and the official. Besides neither any evidence was produced to prove the charges nor an opportunity of defence was given to the respondent. The learned Tribunal also observed that the Bank was of the mind-set that the respondent was to prove his innocence rather the prosecution establishing the charges.
7. With the above observations the learned Tribunal found that the learned Labour Court has properly appreciated the facts of the case, rightly scanned the evidence to reach a correct conclusion. Finding no infirmity in the impugned order of the Labour Court the same was upheld by the learned Tribunal.
8. I have given patient hearing to the counsel for the petitioner as well as the counsel for Respondent No. 3 and have carefully gone through the record with their able assistance.
9. Learned counsel for the petitioner vehemently argued that the impugned orders passed by the Labour Court and the Tribunal are against the law and facts based on misreading and non- reading of the evidence and liable to set aside. He has taken reliance upon Ishtiaq Ahmad Sheikh and others vs. Messrs United Bank Limited and others (PLD 2006 SC 94), Akhtar Muneer vs.. General Tyre and Rubber Co. of Pakistan Ltd. through Senior Manager Industrial Relations and Notified Manager (2007 PLC 360-Karachi), .Izzat Baig Awan vs. Habib Bank Limited (2004 SCM R 98) and Muhammad Nawaz Bhatti vs. President, Muslim commercial Bank Limited, Karachi and others (2008 PLC 355).
10.Bare reading of the afore-cited cases transpires that the facts of the above cited cases are altogether different and distinguishable from the facts of the instant case. Learned counsel for the, petitioner taking much reliance on the case of Muhammad Nawaz Bhatti has laid emphasis on the point that the matter was related to an 'individual dispute' of Respondent No. 3 not concerning industrial dispute therefore he could not be termed as a workman for the purposes of Section 25-A of the IRO to seek remedy before the Labour Court. I am afraid learned counsel for the petitioner is misconceived. The dispute regarding allegation of fraud and misrepresentation relates to the business and trade of the Bank which cannot be processed single handedly by Respondent No. 3 therefore it cannot be termed as an individual dispute. Besides it is pertinent to mention that the plea of individual dispute is neither raised before the Labour Court nor before the Tribunal. Rather petitioner's main allegation against Respondent No. 3 was of misconduct and misappropriation.
The term 'misconduct' is explained under Section 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as under:-- "15(3). The following acts and omissions shall be treated as misconduct:--
(a) willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior;
(b) theft, fraud, or dishonesty in connection with the employer's business or property;
(c) willful damage to or loss of employer's goods or property;,
(d) taking or giving bribes or any illegal gratification;
(e) habitual absence without leave or absence without leave for more than ten days;
(f) habitual late attendance;
(g) habitual breach of any law applicable to the establishment;
(h) riotous to disorderly behaviour during working hours at the establishment or any act subversive of discipline;
(i) habitual negligence or neglect of work;
(j) frequent repetition of any act or omission referred to in clause (i);
(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;
(1) got slow."
Besides the acts and omissions enumerated under Section 15(3) of the Ordinance ibid any other act prejudicial to the good discipline also falls within the ambit of misconduct. There is no cavil to the proposition that to prove an allegation of misconduct it is incumbent upon the employer to conduct a proper inquiry into the allegations in accordance with law, which is not duly conducted in the instant case. Therefore the dictums laid down in the above cited cases cannot be siphoned unto the facts of this case.
11. On the other hand, learned counsel for Respondent No. 3 has taken reliance upon General Manager, Hotel Intercontinental, Lahore and another vs. Bashir A Malik and others (PLD 1986 SC 103,) and National Bank of Pakistan vs. Sindh Labour Appellate Tribunal Karachi and 2 others (1992 PLC 94) for better understanding of the term `workman'.
An extract from the case of General Manager Hotel International is reproduced hereunder:-- "11. 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 question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."
The relevant extract from the case of National Bank of Pakistan vs. Sindh Labour Appellate Tribunal, Karachi and 2 others (1992 PLC 94) reads below:-- "On the question whether the employee was-a workman or not, we find that the evidence adduced before the Labour Court supports the finding of the learned Sindh Labour Appellate Tribunal that the employee was a 'workman'. The Bank had mainly relied on the designation of the employee as Senibr Head Cashier although it was also averred that he was performing duties of supervisory administrative and managerial nature. However, the evidence on record had shown that the essential duties of the employee were not supervisory and managerial in nature. In his evidence, the employee had stated that he was preparing vouchers, bills, making entries in the ledger and countersigning on other documents, preparing Bank statements and also doing other miscellaneous clerical work ---- No case has been made to disturb the finding of the Labour Appellate Tribunal that the employee's duties being primary of clerical nature, he was a "workman" and, therefore, his application under Section 25-A of I.R.O. was maintainable."
12.In the light of above dictums, argument of the learned counsel for the petitioner that Respondent No. 3 while performing duties as Cashier do not fall within the definition of 'workman' is devoid of any force and thus repelled.
13.It is also pertinent to mention that concurrent finding of facts arrived at by the Labour Court and the Punjab Labour Appellate Tribunal in exercise of their exclusive jurisdiction that the alleged inquiry was not conducted in accordance with law and was violative to the principles of natural justice, cannot be dislodged in exercise of the Constitutional jurisdiction. It is also note-worthy that the learned counsel for the petitioner has not been able to point out any error or omission on the part of the Labour Court or the Labour Appellate Tribunal in reaching the impugned conclusion. It is settled law that the High Court while exercising powers of review would not act as Appellate authority of a statutory judicial tribunal. Resolution of disputed question A of fact falls within the exclusive jurisdiction of Labour Court and the Punjab Labour Appellate Tribunal. The controversy regarding the charge of misconduct being a pure question of fact requires examination of evidence within the exclusive domains of Labour Court and the Punjab Labour Appellate Tribunal and cannot be resolved in exercise of Constitutional jurisdiction of this Court. Reliance be made upon AR. Fargosan us. Sindh Labour Court (PLD 1985 SC 429). In the above state of affairs, both the impugned orders do not suffer from any illegality or unlawful exercise of jurisdiction.
14. For the foregoing discussion and reasons, this writ petition has no merit and is dismissed leaving the parties to bear their costs.