The appellant challenged the order dated 30/5/2013 in Case No, 3/2012 passed by Learned District & Sessions Judge Presiding Officer 1st Labour Court Balochistan.
2. Brief facts of instant appeal as narrated by the appellant in his grievance notice and grievance application that the applicant/ appellant severed the bank for more than 35 years throughout with satisfactory effect. During the course of his service no charge/allegation has been made against him. However on 5/8/2012 charge sheet was issued on allegation of serious irregularities. After reply enquiry was conducted and ultimately on 15/11/12 he was terminated. It is further stated that after completing the 35 year service he applied for retirement and also applied to another bank and the said bank accepted the offer of appellant. According to appellant the authority of the bank started victimization which ended to his termination due to above reason.
3. Record reveals that before his termination he approached NIRC and a stay order was also issued to refrain the bank authority to terminate/transfer the applicant but that was dismissed for want of jurisdiction. Available record further indicate that instead of filing written statement respondent moved an application for dismissal of grievance petition on the ground that the applicant was an officer of Grade-II and was posted as manager at Mezan Chowk Branch, at Serki road branch than transferred from Quetta to Pishin as Grade-II officer. This application was contested by applicant/appellant but the Learned Labour Court dismissed the grievance application on the ground that the appellant/applicant is not a worker/workman and concluded as under,-- Thus, I do accept the application for dismissal of the case filed by respondent and grievance petition under Section 41 of the BIRA, 2010 is dismissed being not maintainable as the Court has got no jurisdiction to adjudicate upon the matter"
4. The learned counsel for appellant contended that after serving of 35 years the applicant/appellant has the right for his retirement but due to his offer by another bank he was terminated from service. Secondly contended that Grade-II officer of the bank if not holding the power of attorney then he does not fall within the category of officers rather he is a worker/workman. Next contended that without recording evidence and filing written statement the petition was dismissed which is against the Standing Order Ordinance and other Labour laws.
Lastly contended that appeal be accepted and case be remanded for recording evidence to the Learned Labour Court. On the other hand the counsel for respondent contended that the appellant first approached NIRC and this fact has not been mentioned by the appellant therefore on this score petition was not maintainable. Secondly contended that in view of judgments of Honorable Supreme Court of Pakistan i,e, 2009 SCM R 857 and 2011 SCM R 1475 wherein it was held that the bank officers Grade-II does not fall within the category of worker. Therefore rightly the petition was dismissed.
5. The first contention of learned counsel for respondent that the appellant/applicant concealed the real facts wherein he first approached NIRC and after dismissal of his application he approached the Learned Labour Court. Record reveals that when the show-cars notice was issued and an enquiry committee was formed than NIRC was approached to refrain the bank from terminating, dismissing or transferring the petitioner. In this respect the order of Learned NIRC Quetta branch dated 24/9/12 is very clear which is reproduced for ready reference: This petition under Section 31 of IRA, 2012 along with a stay application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 has been filed by the petitioner against the respondent's through Mr. Azam Jan Zarkoon Advocate heard. Admit, notice along with copies of petition, stay application and reason ants are restrained from terminating, dismissing or transferring the petitioner, till the next date of hearing"
Even otherwise the above mentioned order is available on record submitted by appellant/applicant as an annexure-E. Therefore the contention of learned counsel is overruled.
6. After going through the available record and points raised by the learned counsel for the parties in my humble opinion the moot question is this whether the appellant/applicant qualified to be a worker or otherwise.
7. The learned counsel for respondent referred 2011 SCM R 1475 and 2009 SCM R 857. According to him the Honorable Supreme Court of Pakistan declared the officer of the bank grade I, II and III as officer and such officers do not fall within the category of worker/workman. The contention of learned counsel for respondent is not correct for the reason that in both the authorities the status of petitioners were determined in view of evidence produced by the parties before Labour Court.
For instance in 2009 SCM R 857 in Para No, 14 it is held: "It is settled law that the taste to determine whether a person is a workman is the nature of the work done by him and not his Designation or title etc"
Again in this paragraph it is observed,-- "In view of such admissions in cross-examination we are of the opinion that the duties of this appellant Mehmood Hussain Larki were certainly not manual or clerical in nature. He was the accountant of the branch and officer Grade-II and used to supervise a number of workers. Hence, in our opinion this appellant incorrectly approached the Learned Labour Court for relief'
Similarly in 2011 SCM R 1475 at Para No, 6 it is held,-- "The taste 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 conscious of judicial opinion seems to be that it is the nature of 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 main features, the pith and substance of his employment must be manual or clerical before the definition is attracted"
In the light of above authorities it is clear that for determining the status of the person is the nature of his work and not designation, title and etc. Further in the above mentioned authorities the reliance was made on evidence recorded by trial Court which were thoroughly examined by Apex Court and then came to the conclusion that appellant/petitioners were not worker.
8. In case in hand neither written statement was filed nor evidence was recorded by the Learned Labour Court and on an application dismissed the petition for want of jurisdiction.
9. Under the circumstances narrated here in above and dictum laid down by Honorable Supreme Court of Pakistan referred by learned counsel for respondent law requires that the case be remanded for recording evidence and in view of that evidence the status of appellant/applicant be determined but some relevant documents are available on t e record produced by the appellant/applicant himself and on the face such documents it has to be seen whether in such documents has mentioned the nature of his work or otherwise. It is settled principles of law that a person approaches a Court on the basis of averment that he is a Workman, the burden of proof lies on him and not on the employer. The first document is grievance notice in which nothing mentioned about nature of his work rather simply at Para No, 6 it is mentioned that applicant is by nature and duty is worker. He has no power of hire and fire and he was working under the manager.
Hence in this document nothing mentioned about the nature of his duty. Second document is grievance application under Section 41 of BIRA, 2010 this is also silent ab gut the question in discussion only stated that he marked his attendances through hands.
10. Admittedly the appellant/applicant was required to produce evidence in view of contention raised in grievance notice and that of grievance application. The both documents are silent about the nature of his duty. Third document is the application of respondent for dismissal of case at Pa a No, 1 it is alleged that the employee is Grade-II officer and was posted as manager at Mezan Chowk branch and thereafter to Serki road branch and finally transferred to Pishin as Grade-II officer. In reply to that application the above mentioned fact and allegations were not specifically denied. Therefore it is proved that the appellant/applicant is a Grade-II officer having the power of a manager. Therefore he was posted in three branches as branch manager. Furthermore a document filed by applicant/appellant himself at page No, 32 of the record he himself mentioned: "Haji Abdul Zahir Ex-Manager United Bank Limited Branch Serki Road Quetta"
11. Another aspect of the case is that no where it is mentioned that he was member of any Labour union to support of his contention that he was functioning-as worker.
12. In view of above discussion on the light of above mentioned documents it is useless to remand the case for recording of evidence. However the appellant/applicant approached a wrong forum for redress of his grievance. Therefore the impugned order of Learned Labour Court is set-aside.
The original grievance notice and grievance application along with annexures be returned and handed over to appellant/applicant by the Learned Labour Court to approach the proper forum for redress of his grievance. The appeal is disposed of accordingly with no order as to cost.
13. The copy of order along with original record of trail Court be sent to trial Court. Case after completion be consigned to record.