' JAMAL KHAN MANDOKHAIL, J.---Facts of the case are that the respondent No. 1 was appointed as a Cashier/ Assistant/Typist in Grade-IV by the MCB Ltd. (the petitioner) and later on was promoted as an Officer Grade-III against the post of an Accountant vide order dated 3rd August, 2000 and lastly was posted in MCB, Quetta Cantt. Branch. An inquiry was initiated against him on an allegation of embezzlement of an amount, consequently the Inquiry Officer recommended his dismissal from service, which was agreed by the competent authority, hence he was dismissed from services by means of an order dated 13th July, 2005. The respondent No. 1 preferred a departmental appeal before the competent authority, but without any success, where after he filed a Grievance Petition before the Labour Court, Quetta, which was contested by the petitioner on legal as well as factual grounds. It is mainly contended that the respondent No. 1 after promotion as an Officer Grand-III, is no more a worker/workman, therefore, the Grievance Petition is not maintainable. The Labour Court, after trial, overruled the objection, accepted the petition vide order dated 29th March, 2012 and re-instated the respondent No. 1 in service with all back benefits.
Feeling aggrieved, the petitioner preferred an appeal before the Labour Appellate Tribunal, which was dismissed on 9th August, 2012, hence this petition.
2. Learned counsel for the petitioner stated that after promotion to the post of Officer Grade-III, the respondent No. 1 was performing a supervisory and managerial job, hence he was no more a worker/workman, therefore, his Grievance Petition was not competent, nor the Labour Court had the jurisdiction to entertain the same. He further raised an objection that the respondent No 1 did not issue a grievance notice to the employer, as provided under sub-section (2) of section 46 of the Ordinance before approaching the Labour Court, therefore, the Grievance Petition was not maintainable. The learned counsel stated that these law points were agitated before the Labour Court and the Labour Appellate Tribunal, but the same were not considered by them, therefore, both the lower forums, without jurisdiction, entertained and accepted the Grievance Petition, which amounts to an illegality and irregularity. The learned counsel stated that even otherwise, the charge-sheet was issued against the respondent No. 1 with a specific allegation of embezzlement, on the basis of which, a proper and detailed inquiry was conducted, wherein the respondent No. 1 was found guilty. He stated that sufficient evidence and material was collected by the authorized officer, therefore, he had no option, but to recommend the dismissal of the respondent No. 1, which was rightly agreed to by the competent authority. He stated that no illegality or irregularity has been pointed out by the respondent No. 1 in the inquiry, as well as, in the order of dismissal passed by the competent authority, but the forum below did not consider the material available before them correctly, which amounts to misappropriation and non-appreciation of the evidence, hence committed an illegality and irregularity.
3 Learned counsel for the respondent No. 1 opposed the contention and stated that irrespective of the fact that the respondent No. 1 was an Officer Grade-III, he was still performing his duties manually and was maintaining the accounts and ledgers by hand. He added that the respondent No. 1 had no employee working under him, nor had an administrative, supervisory or managerial authority at the time when he was dismissed from his services, as such, he was still a worker/workman and had no other remedy except to file a Grievance Petition before the Labour Court, which was rightly entertained by it. The learned counsel argued that even otherwise, the allegation levelled against the respondent No. 1 had no support from any evidence and material.
According to him, actually at the relevant time, the Manager of the branch, namely Athar, accepted 'during the inquiry that he alone embezzled the amount, therefore, action was taken against him pursuant to which, he deposited the entire amount. He contended that there was no role of the respondent No. 1 in mis-appropriation or embezzlement of the amount, nor was there any iota of evidence before the Inquiry Committee, proving his nexus with the Branch Manager, therefore, the Inquiry Committee has come to a wrong conclusion, on the basis of which, the order for dismissal of the respondent No. 1 by the authority was illegal. He argued that the forums below, having jurisdiction in the matter, have properly appreciated the material available on the record and have rightly allowed the Grievance Petition of the respondent No.
1. In the end, the learned counsel stated that the concurrent findings of fact arrived at by the forum below cannot be challenged through a Constitutional Petition, therefore, requested to dismiss the petition.
4. We have heard the learned counsel for the parties and have perused the record. Before dilating upon the merits of the case, it would be appropriate to decide the law point raised by the petitioner with regard to the status of the respondent No.
1. Section 46 of the Industrial Relations Ordinance (IRO), 2002 provides a remedy to a worker of an establishment to file his Grievance Petition before a Labour Court. The question for consideration is that whether the respondent No. 1, after becoming, an Officer Grade-III is still a worker/workman. In this behalf, the definition of a "Worker" and "Workman" has been given in sub-clause (xxx) of section 2 of the IRO, 2002, which is re-produced below:- "(xxx) "worker" and "workman" means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance 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 consequence of that dispute 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 a managerial or administrative capacity."
' In the above definition, the only criteria which excludes a person from the definition of "worker" and "workman" is that he/she must be employed mainly in a managerial or administrative capacity.
According to the Black's Law Dictionary, "a person in an organization, who is vested with certain amount of discretion and independent judgment in managing, administering and supervising the affairs of business, office or other organization" is called a Manager, hence is performing his/her duties in a managerial capacity. Similarly, the word "Administration" means "the management or performance of the executive duties of a government, institution or business". The executive duties include "(a) the responsibility of effecting, implementing and enforcing laws, rules, procedures and activities, which are subjected to a judicial review; (b) the responsibility of validating a written instrument by fulfilling the necessary requirements; and (c) the power of judicial enforcement of money judgment by seizing and selling the judgment-debtor's property". So a person, performing the stated executive duties, is called an "Administrator". What we have gathered from the discussion is that status of a person depends upon a work he/she performs in an institution and not upon a grade he/she owns. Thus, any person, who is discharging his duties mainly in a managerial or in administrative capacity, cannot be termed as a "worker" or "workman". To the contrary, a "worker" or "workman" is the one, who is employed in an institution to do skilled, unskilled.
Or clerical work manually. Both the manual and clerical works are more or less the routine works, not requiring any great amount of initiative, imagination, discretion or supervision in discharging the duty.
5. To consider whether the respondent No. 1 was a "worker" or "workman", the burden of proof was upon him. In this behalf, he in his Grievance Petition has specifically stated that he is performing a manual/clerical job, maintaining ledgers and accounts by hand and had no managerial or administrative power. It is further contended that there was no employee under his subordination, had no power to grant leave to any of the employees of the branch, nor the power to transfer someone. In support of his contention, he produced two witnesses and made his statement on oath. The contention of the respondent No. 1 was not rebutted by the petitioner through evidence either oral or documentary. His job description was not explained before the forum below to prove that the respondent No. 1 was mainly employed in a managerial or administrative capacity. The ground available to the petitioner is that the respondent No. 1 is a Grade-III officer, hence is not a worker. Though the respondent No. 1 was holding a post, which from its designation appear to be of a supervisory or managerial in nature, but the duties performed by him cannot be considered as managerial or administrative. Thus, irrespective of the fact that the respondent No. 1 was an officer Grade-III, he still was a workman, therefore, his Grievance Petition before the Labour Court was competent and the forums below had the jurisdiction to entertain the same.
6. As far as, the second objection of the learned counsel for the petitioner with regard to non- issuance of the grievance notice is concerned, in sub-section (1) of section 46 of the Ordinance, the word "may" has been used, which gives discretion to the "worker/workman" to either approach the employer by way of grievance notice, before approaching the Labour Court or may directly approach the Labour Court through a Grievance Petition, therefore, non-issuance of a grievance notice to the employer is not fatal for filing a Grievance Petition before a Labour Court. Even otherwise, in this case, the respondent No. 1 has filed an appeal for his reinstatement to the President of the Bank. Since no departmental appeal is provided by the law, therefore, the appeal could be considered as a grievance notice on behalf of the respondent No.
1. Merely mentioning of wrong title, i.e. "appeal for re-instatement in the bank service" instead of "grievance notice" does not vitiate the proceedings, consequently the objections so raised by the petitioner in this behalf is overruled.
7. On merits, facts of the case are that the ex-Manager of the Bank was charged with corruption and embezzlement, who accepted his guilt before the Enquiry Officer and deposited the entire embezzled amount. The respondent No. 1 at that time was posted as Cashier in the Cantt. Branch of the Bank. The allegation against him is that he is also involved in the act of corruption and corrupt practices alongwith the ex-Manager. On the basis of the allegations a charge was framed by the Inquiry Officer against the respondent No. 1, wherein it has been emphasized that he did not inform the higher authorities about the embezzlement/corruption of the Manager, hence facilitated him.
Be that as it may, the petitioner did not produce any rule or procedure, showing that the respondent No. 1 was bound to inform the higher authorities about an illegality or corruption of his superior. Even otherwise, it has not been established that the respondent No. 1 was aware about the corruption of the then Manager, therefore, he cannot be held responsible for not informing the authorities, nor can be held accountable for the act of his superior. The Tribunal and the Labour Court have thoroughly considered the evidence and the material available before them. Both the lower forums concurrently came to a conclusion that the allegation levelled against the respondent No. 1 has not been proved. This Court in a Constitutional jurisdiction, cannot interfere in the concurrent findings of facts arrived by the two competent forums. The learned counsel for the petitioner has failed to point out any illegality and irregularity in the judgments impugned of the forums below.
' Thus, in view of what has been stated and discussed hereinabove, the petition is dismissed.
' Re-instatement Upheld.