ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- This appeal challenges the vires of the judgment dated 30- 11-2002 passed by the learned Presiding Officer, Punjab Labour Court No,9 Multan whereby the grievance petition filed by the appellant was allowed and he was ordered to be reinstated without back benefits.
2. The facts relevant for the disposal of this appeal briefly are that the respondent was serving as a Manager in Muslim Commercial Bank Limited, Mailsi Branch of the bank and he was dismissed from service on account of alleged fraud and misappropriation which was detected by the Inspection Circle Office Multan on 3-3-1993. He denied the charges but after due process of enquiry he was dismissed from service vide order dated 16-10-1994.
3. The learned Labour Court after recording evidence and hearing arguments of the parties allowed the grievance petition as indicated above.
4. It was submitted at the very outset by the learned counsel for the appellants that as per his own showing the respondent was serving as a Manager in Mailsi Branch of the bank when he was charge-sheeted for misconduct and the bank after holding a fair, proper and impartial enquiry dismissed him from service vide order dated 16-10-1994. Being an officer of the Executive Cadre he had no locus standi to maintain a grievance petition in the Labour Court. The learned counsel has relied ono Dilsahad Khan Lodhi's case and pointed out that it is now almost settled that a manager may be of small or bigger branch had no mandate in law to seek relief from the Labour Court.
5. Conversely the learned counsel for the respondent however tried his level best to show that notwithstanding his status as a Manager he was in fact a workman; he would do everything with his own hands; had no powers to hire the fire and had a nominal pay as such the court should not go after the nomenclature and high sounding designation as he was at the maximum a glorified clerk. He has been rightly declared as a workman by the learned Labour Court and objection raised by the learned counsel, for the appellant was frivolous and ought to be ignored and the case should be decided on merits.
6. Arguments have been heard and record perused.
7. In para No,4 of the grievance petition the respondent has himself described his status as under:- -- "That the case was pertaining to the period 1-4-1991 to 3-11-1992, while petitioner had been working as Manager without any power of hire and fire at Muslim Commercial Bank Ltd. Mailsi Branch and also petitioner had no knowledge as to how the fraud was committed, therefore, the petitioner requested the Regional Manager, Muslim Commercial bank Ltd., Vehari, respondent No,3 for supply of relevant record so as to rebut the allegations levelled in the charge-sheet, but the record was not supplied."
Now the question is that when the respondent conceded himself to be a Manager, the size of the branch would be immaterial. There is a chain of authorities of the superior courts that one who works as Manager which indeed is supervisory, managerial and directional capacity is not entitled to seek relief from the Labour Court. Reliance may be placed on decision of the Hon'ble Supreme Court of Pakistan in C.P.L.A. No,1069 of 2008 in Javaid Hussain Naqi v. Member Board of Directors MCB and others wherein in almost an identical situation the Hon'ble Supreme Court ruled:--- "The argument of the learned counsel that the branch in which the petitioner was last posted, was a small branch, is altogether out of context. The size of a branch has no nexus with the nature of duties of the Manager, which always remain of managerial and supervisory nature. It would be ridiculous to observe that the Manager of a large branch would not be a "workman" and that of a small branch would be. There being no force in the petition, it is hereby dismissed and leave to appeal refused."
' Even otherwise in view of rule laid down in Dilshad Khan Lodhi v. Allied Bank of Pakistan and others (2008 SCM R 1530) he cannot seek indulgence of the Labour Court. A person who is Manager and works in a supervisory capacity cannot be termed as a workman and does not fall within the category of worker, The Hon'ble Supreme Court ruled:--- "With the assistance of learned counsel for the parties, we have had the privilege of going through the pleadings of the parties, as well as oral evidence led by the parties in support of their respective versions. 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 prirrhily and essentially appeared to be of managerial and supervisory nature, which clearly fall beyond the ambit and purview of the term "workman"."
8.Learned counsel for the respondent has taken lot of pains to establish the maintainability of the grievance petition and so also that the respondent had been reinstated on merits but the judgment of the Hon'ble Supreme Court is binding on all the courts of the country and respectfully following the judgment of the Hon'ble Supreme Court it is held that being an Executive Officer, having directional and supervisory E duties, the respondent was not entitled to maintain the grievance petition.
9.In this view of the matter the appeal is allowed and the impugned order is hereby set aside holding that the respondent was not a workman and not entitled to invoke the jurisdiction of the Labour Court. The parties are left to bear their own costs.
Appeal allowed.
[National Industrial Relations Commission] Before Bashir Ahmed Memon, Member ALAM MIRZA versus Messrs SHAHEEN AIRPORT SERVICE through General Manager and 4 others No,4A(124)/2005-K/24(144)/2005-K, decided on 11th October, 2012.
Industrial.Relations Ordinance (XCI of 2002)- ----S. 49(4)(e)---'Unfair labour practice' by the employee---Employee who was found committing theft, was served with show-cause notice, and after holding (internal) inquiry, and relying upon the findings of Enquiry Officer, he was dismissed from service---Employee had admitted service of notice regarding allegation of theft; admitted that inquiry was conducted against him and that he had signed the minutes of inquiry; admitted that he was served with dismissal letter, and notice regarding petition filed by him before Bench of Commission was issued and same was served upon the employers---When the employee was already removed from service before receipt of notice by the employers, the petition filed by the employee in the present form was not maintainable, and was liable to .Be dismissed. [p. 17] A M.A.K. Azmati for Petitioner. S.M.
Iqbal for Respondents.
' BASHIR AHMED MEMON (MEMBER).--- The present petition was brought by the petitioner on 3-12- 2005 under section 49(4) (e) of the Industrial Relations Ordinance, 2002 and the same was dismissed in limine vide order dated 6-12-2005 passed by this Bench of Commission as having no jurisdiction to this Commission.
2 On appeal Full Bench of this Commission vide its order dated 12-6-2006 set aside the order dated 6-12-2005 passed by this Bench of Commission and declared that this Bench of Commission was fully competent having the jurisdiction to entertain the petition and remanded the case to this Bench of Commission,
3. Accordingly this case was received by this Bench of Commission on 22-6-2006 and notice was sent to the parties. On 29-7- 2006 ' Mr. S.M. Iqbal, Advocate tiled his power on behalf of respondents and also filed comments with preliminary legal objections on main petition and counter affidavit on stay application and vide order dated 7-4- 2007 this Bench of Commission directed to decide the matter on merits and directed the petitioner to file his affidavit-in-evidence. Accordingly the same was filed by the petitioner on 12-9-2007 and the petitioner was cross-examined on 14-01- 2009 and thereafter the respondents were directed to file their affidavit-in-evidence and on behalf of respondents one Sqn. Ldr. (R) Abdul Majeed filed his affidavit-in-evidence and the matter was adjourned for his cross-examination but the same could not be made on one or other pretext and finally the respondents' counsel submitted an application on 19-9-2012 for expedite disposal of the case without their affidavit-in-evidence and thereafter the parties were directed to submit their arguments.
4. On 24-9-2012 the arguments of Mr. S.M, Iqbal, learned' counsel for the respondents were heard and the matter was fixed for orders and the learned counsel for the petitioner was directed to submit his arguments before the date of order.
5. It is the case of petitioner that he was apprehending an act of unfair labour practice on the part of respondents due to his trade union activities and apprehending such act of unfair labour practice he has filed present petition and in his affidavit-in-evidence he has fully corroborated the facts of case which he has already mentioned in his petition and has denied the averments made by the respondents in their written statement as well as counter affidavit. It has been stated that during the inquiry which was conducted against the petitioner the management has fully ignored the information given by the petitioner regarding institution of present petition and had created the reason for his dismissal. It has been further stated that the petitioner was not given full chance to face his inquiry and the Enquiry Officer without applying his judicial mind has recommended for his termination.
6. Learned counsel for' the respondents while arguing the matter submitted that admittedly the petitioner was dismissed from service on 11-3-2006 and no stay was under operation but no any application for amending the petition was filed. This Bench of Commission is only vested with the jurisdiction in cases of apprehended acts of unfair labour practice and when any action is taken right or wrong this Bench of Commission is not vested with any jurisdiction.
7. I have considered the arguments and have gone through the pleadings of the parties and material placed on record.
8. In his cross-examination the petitioner has admitted that:---"It is correct that Shaheen Foundation is a charitable Trust of Air Force and the Shaheen Airport ' Services is one of the Unit of Shaheen Foundation."
' He further admitted that: "A case bearing No,12(22)/2003 was filed by Shaheen Airport Services Hard Workers Union and it was dismissed by the Full Bench on 23-10-2003, then a writ petition was filed before the Honourable Lahore High Court, which too was dismissed and such orders have been placed before this Bench of Commission at Pages-F/1 and F/2."
' The petitioner further admitted that: "One Naveed lqbal, Electrical Mechanic had also filed a case before this Court and the same was also dismissed. Such order is also available on record as Annex.G."
9. Petitioner admits service of notice dated 3-10-2005 regarding allegation of theft. He also admits conducting inquiry against him and to have signed the minutes of inquiry. The petitioner further admits that he was served with dismissal letter dated 11-3-2006 and notice regarding petition filed by him before this Bench of Commission was issued on 13-3-2006 and the same was served upon the respondents on 15-3-2006. He admits that no any worker or office-bearer has right to commit theft. He admits that "It was correct that he was removed from service on the allegation of theft but voluntary stated that it was a planted case."
10.' It is a case of respondents that since the petitioner had committed theft and was searched by Security Guard and on such information he was served with show-cause notice and after holding domestic inquiry and relying upon the findings of Enquiry Office the petitioner was dismissed from service, The petitioner also admits that he was dismissed from service vide order dated 11-3-2006 and notice regarding institution of present petition was issued by this Bench of Commission and the same was received by the 'respondents on 15-3-2006, when the petitioner was already removed from service before receipt of notice by the respondents the petition in the present form is not maintainable and is liable to be dismissed.
' In view of above discussed facts and circumstances I am of the considered opinion that at the time of filing of present petition the petitioner was not in the employment of respondents, as such the petition in the present form is not maintainable and the same stands dismissed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.