ABDUL GHIAS NOUSHERWANI (MEMBER).--- The appellant assailed the judgment, dated 13-12-2011 passed by District and Sessions Judge 1st Labour Court Balochistan Quetta in Case No,29 of 2011.
The respondent appointed by the appellant on 15-9-1999 as a cashier. However on 15-4-2011 when his services was terminated it appeared that at that time he was addressed as Assistant Manager -- 1 that in term of Rule No,18 of Habib Bank Limited (Staff Services Rule), the competent authority decided to dispense off his services from bank with immediate effect. Prior to this on 30-3-2011 a letter was issued to respondent under heading (Threat call to Malik Ashraf Awan Chief Manager State Bank S.B.P), wherein allegation levelled that the respondent threatened the Chief Manager of State Bank on telephone because the fine imposed on appellant' bank was order to recover from respondent that letter/order was challenged in National Industrial Relation Commission bench Quetta wherein the operation of above letter was suspended and later on the same was dismissed.
After termination dated 15-4-2011 grievance notice issued by the counsel of respondent on 2-5-2011 and grievance petition was preferred on 2-6-2011. After necessary proceedings the grievance petition accepted on 13-12-2011 hence this appeal.
2. The learned counsel firstly submitted that the respondent does not fall within the category of worker and workman. In support of his contention he referred some documents wherein the respondent has been shown as Assistant Manager and Assistant Manager Operation. Secondly submitted that respondent was terminated simplicitor without any allegation under Rule 18 of Habib Bank Staff Service Rule and in such situation Standing Orders 12 and 15 of Standing Order Ordinance are not applicable. On the other hand the learned counsel for respondent mainly contended that no section has been mentioned in memo of appeal and there is no power of attorney with Allah Noor to file appeal. Next submitted that State Bank has no authority to take action against the respondent. Further submitted that Habib Bank is not authorised to make rules with regard to appointments and dismissal.
3. The learned counsel for appellant highly objected that the respondent does not fall with in the category of worker and workman in this regard he referred leave application of respondent wherein he himself shown him to be Assistant Manager. Another document "particulars of each extra duty performed", letter dated 15-4-2011, 24-10-2009, 25-3-2011, August 2010, 28-1-2011, 15-9- 2010, 24-1-2011, 15-4-2011, power of attorney dated 7-10-2009 in all these documents the respondent has been shown as assistant manager and assistant manager operation.
4. The documents dated 24-10-2009 is a circular with subject "Improvement of management cadre (officer AMs and MA)" and its Para No,1 is as under, "Authority for approving casual leave and mandatory leaves to staff one step below i,e, Officer Band-1 will have the authority to sanction casual leave to clerical staff. However, mandatory leave will be sanctioned under annual plan to be duly signed by the concerned authority branch manager."
In view of this circular assistant manager and manager operation belong to management cadre.
In the light of above mentioned letters/documents the respondent was addressed and mentioned i,e, as Assistant Manager and Manager Operation. Furthermore in above mentioned letter/documents in some place the respondent himself shown him as assistant manager or manager operation. This circular dated 24-10-2009 empowers the said assistant manager and manager operation for sanctioning the casual leaves to the extent below staff from officers Grade-
1. Secondly power of .Attorney dated 7-10-2009 authorised the respondent with the designation of assistant manager and the first Para is very important which is as under, "To open and operate on Current, Overdraft, Loan, Cash Credit or other account or accounts in the name of the bank or deposit any money with or barrow or obtain other accommodation, money or facilities upon or without security from any bank or banks or from the State Bank of Pakistan and its subsidiary named, "SBP Banking Services Corporation (Bank)" or any firm, person or company in Pakistan or any Foreign country."
' In view of this power of attorney the respondent was authorised to do all transactions on behalf of the bank and such power/authority has not to be given to a worker and workman. Perhaps these documents have not been brought in the notice of learned Labour Court.
5. In BIRA 2010 definition of worker given under 2 (DD), 2(DD) "worker" and "workman" mean person not falling within the definition of employer who is employed (including employment as supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through contractor whether ' the terms of employment expressed or implied, and for the purpose of any proceedings under this act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequences of that disputed or whose dismissal, discharge retrenchment lay-off, or removal has led to that dispute but does not include any person, who is employed mainly in managerial or administrative capacity."
The counsel for respondent contended that the respondent was a Grade-3 officer and dealing with cash being a cashier in support of his contention he referred a judgment NLR 1997 Labour 60 of Honorable Supreme Court of Pakistan where, held, "Grade-III officer of bank who was worker under sub-Manager and Manager and was performing duty of supervisory nature would be workman. In case of his dismissal, he would be entitled under Standing Orders 12(3) to move grievance application under section 25-A, IRO. Such right of worker is not affected by fact that he was governed by Bank Staff Service Rule which were not statutory, because under section 25-A, IRO he could invoke jurisdiction of Labour Court in respect of any of his secured or guaranteed rights."
6. In above cited authority he was only officer Grade-III under the supervision of sub-manager and manager but in case in hand he was declared as management cadre officer assistant manager and manager operation vide letter dated 24-10-2009. Furthermore in power of attorney all the function and power of the bank has been delegated to respondent and no where he was authorised subject to the prior approval/sanction of manager or any other officer of the bank and such powers cannot be delegated to a worker of manual and clerical workman. Therefore the respondent is not a worker/workman under the provision of "DD" of BIRA, 2010 and his grievance petition was not maintainable before Learned Labour Court.
7. Another aspect of the case is that the grievance notice was issued by the counsel. The mandatory, provision of section 25-A(1) of IRO, 1969 requires that such grievance notice be issued by workman himself or through shop steward or trade union within 3 months of the day on which cause of such grievance arraised. The record reveals that grievance notice under section 41 of BIRA, 2010 was issued by Nasir Khan Yousafzai advocate on the instruction of his client Mr. Naseebullah Khan. In view of reported Judgment of Honorable Supreme Court of Pakistan reported in PLD 1980 Supreme Court 80 where in it is held, "(1) Words and phrases---Word "himself' in S.25-A(1) Does not involve concept of agency--- Grievance notice served by Advocate on behalf of his client-Held, not in conformity with requirement of law-[ Words and phrases]"
' Further in this Judgment it is observed, "A beneficial interpretation can only be given where the language is not clear and two or more different interpretations can safely be given to it but here, in my opinion, the word `himself' need no other interpretation except 'Workman himself' or 'through his two other agencies' as provided in the section to bring his grievance before the employer and not through an Advocate. Ignorance or illiteracy of the workman in the country is generally well known and it cannot be said that Legislature could remain ignorant of the fact. Hence, this fact in my opinion cannot be a valid ground to give a wider interpretation to the word "himself" . "
No other or recent Judgment with regard to above legal requirement has been referred by the counsel for respondent. In view of above authority the very grievance notice was not according to the requirement of mandatory provision hence the following grievance petition was not maintainable.
8. The learned counsel for respondent mainly contended that no section mentioned in memo. Of appeal therefore the appeal is not competent. In my humble view in principle and that of general practice the omission to mention the section under which appeal has been filed or wrong mentioning of section is not illegality whereof the appeal be dismissed therefore the objection is also not sustainable.
9. Apart from above legal position of the case the evidence produced by the parities required to be examined. The respondent in his statement supported the contents of his grievance application.
CW-1 Habib Ullah states that respondent was cash teller and did not see him to talk on telephone with the persons of State Bank. CW-2 also contended according to CW-1. The representative of bank Allah Noor supported the contentions of written reply and nothing came beneficial to respondent in cross examination. In view of documents available on record and produced before Labour Court the verbal evidence are not useful for respondent.
10. The learned counsel for respondent strongly agitated that Allah Noor was not ecognized to file appeal but on record the same is available. Therefore this objection is not sustainable.
11. The learned counsel for respondent further contended that respondent bank is not ecognized to make its own Rules with regard to termination of the employees. It is very surprising that the respondent was appointed under the rules framed by the Bank and enjoys the benefits of services accordingly and now at this stage he does not ecognized the Rules. The appellant bank is a limited company it has its own Rules with regard to appointments, termination and other procedures of business therefore this objection is also not sustainable.
12. The learned counsel for respondent agitated that the respondent had been terminated without any show cause and inquiry in violation of sections 12 and 15 of Standing Order Ordinance. The learned counsel for appellant contended that termination of service simplicitor without any charge of misconduct does not require holding of inquiry. Further contended that termination order issued in view of Standing Order Ordinance 12(3) i,e, payment of one month salary in lieu of notice and statement of reasons for termination would be unexceptionable. In view of termination order dated 15-4-2011 he was simplicitor terminated by means of dispense off his services without labeling any allegations. It further reveals that he was allowed 3 month pay/salary in lieu of notice. The learned counsel for appellant in this regard referred a unreported Judgment of Honorable High Court of Balochistan in C.P. No 42 of 2011 wherein held, "Admittedly the services of respondent No,1 were not terminated on allegation of any misconduct or any acts or omissions provided in clauses (1), (2) and (3) of Standing Order 15. Rather, in case in hand, there is termination simplicitor. Thus in the circumstances, clause (1) of Standing Order 12 will be the most relevant, and applicable in the matter. As reproduced hereinabove, only one month's notice in writing is mandatory before putting to an end of his services."
In view of above coated authority and discussion the objection of counsel for respondent is not sustainable.
13. In the light of legal as well factual position of the case and authorities referred the appeal is allowed. The impugned order dated 13-12-2011 passed by Learned District and Session Judge 1st Labour Court of Balochistan Quetta in Case No,29 of 2011 is set aside with no order as to cost.
14 The copy of order along with original record of trail court is sent to trial court. Case after completion is consigned to record.