' This appeal is directed against the decision of the learned Vth Labour Court, given on 29th July, 1981, dismissing the appellant's grievance petition made under section 25-A, I. R. O., against his dismissal from service by the Muslim Commercial Bank Ltd., the respondent herein.
2. The facts which have given rise to this appeal, shortly stated, are that the appellant was taken up in employment by the respondent herein, by the latter's letter, dated 22nd November, 1976, as Class III officer and was posted as a Programmer in the Computor Division. The appellant continued to perform his duties in the Computor Division of the respondent bank till 1979, when he was deputed for training facilities sponsored by the respondent bank through the 1. B. M. On completion of his training, the appellant was posted in the Internal Audit Section of the Computor Division, vide letter, dated 3rd December, 1979, and he was asked to report to Mr. Younus Umer Khanani, Deputy Controller, in the respondent bank. It appears that the latter assigned the appellant the job of completing operating Instructions and Flow Charts of the various programmers of the various systems being run in the Computor Room, but no specific order in writing as to the nature of duties assigned to him has come on record. By his letter, dated 22nd December, 1979, addressed to Mr. Abdul Sattar, Deputy Controller (Operations), with copies to Mr. Younus Umer Khanani and Mr. Abdul Ghaffar A. Sattar, Vice-President, for information, the appellant intimated that he had handed over to Mr. Abdul Sattar the Operating Instructions and Flow Charts of all the system in operation and requested that they may be checked and he be advised if there is any omission.
There appears to have been no reply to the appellant to the above letter. However, on 2nd January, 1980, Mr. Younus Umer Khanani wrote a letter to Mr. S. M. H. Rizvi, Senior Vice-President, complaining that the appellant had been working on the job of documentation of systems and programming, but he has now refused to follow his (Mr. Younus Khanant's) instructions and, therefore, necessary .Action may be taken against him. Mr. Younus Khanani followed up the above letter with another letter, dated 3rd January, 1980 to Mr. Rizvi, complaining that on 2nd January, 1980, the appellant had wilfully disobeyed his orders, and refused to work and walked away in a haughty manner. It may be pointed out that both these letters are written on plain lined paper, without any mark of the bank and bearing no number or indication of the officer from which the letters had been issued. On the basis of these letters, the Senior Vice-President, Mr. Rizvi, wrote to the appellant on 5th January, 1980, drawing his attention to his refusal to follow the instructions o. Mr. Younus Khanani which be termed as a very serious offence, and required him to submit his explanation by the following day as to why disciplinary action should not be taken against him. The appellant submitted his explanation to the above show-cause notice by his letter, dated 6th January, 1980. He also, on 8th January, 1980, addressed a letter to the President of the respondent bank asserting that the Senior Vice-President, Mr. Rizvi, had sent for him and had tried to persuade him to withdraw his explanation, dated 6th January, 1980, but the appellant found himself unable to do so and his refusal had evidently earned him the displeasure of the Senior Vice-President. On the same day, when the appellant wrote the above letter to the President of the respondent bank, the Senior Vice- President, Mr. Rizvi wrote a letter to the appellant attempting to explain to him the working of the Internal Audit in the Computer Division and purporting to clear up the misunderstanding existing in the mind of the appellant about the functions and the working of the Internal Audit Section. The angelant, by his letter, dated 12th January, 1980, made a reply to the said letter of the Senior Vice- President wherein he inter alla took exception to his being addressed without his designation. A copy of this reply was also forwarded by the appellant to the President > of the respondent bank.
On 19th January, 1980, a formal letter of charge was issued to the appellant. The said letter of charge contained two separate charges. The first charge being that on 2nd January,, 1980, he had wilfully disobeyed the orders of his immediate superior, Mr. Younus Umer Khanani and since then he had not been taking any interest in his work, and the second charge being that in his letters, dated 6th January, 1980 and 12th January, 1980, addressed to the Senior Vice-President, Computor Division, and also in his letter, dated 9th January, 1980, addressed to the President of the respondent bank, he had used objectionable language and had made false allegations against the Senior Vice-President, Computor Division. By the said letter, the appellant was placed under suspension. It may be pertinent to note here that this letter of charge was issued by the. Senior Vice-President, Mr. Rizvi. The appellant, by his letter dated 2Qth January, 1980, made a long reply to the aforesaid letter of charge alleging that the allegations against him were unfounded and made with an ulterior motive. He also alleged in his reply that no details of the acts on which the charge was founded had been mentioned or specified in the letter of charge. The respondent bank, by its letter, dated 28[29th January, 1980, under the signature of the Senior Vice-President, Mr. Rizvi, furnished to the appellant details of the acts on which the letter of charge, dated 19th January,.
1980, was founded. The appellant by his letter, dated 30th January, 1980. Again submitted a long explanation in respect of the details of the acts on which the charges against him were founded, but as his explanation was not found satisfactory, a letter of enquiry, dated 3rd February, 1980, was issued by the Senior Vice-President, Mr. Rizvi, through which the appellant was informed that it had been decided to hold an enquiry against him on 6th February, 1980, and that Mr, Kawaja Khalid Ahmed, Deputy Controller, Personnel. Division, had been appointed as.. An Enquiry Officer. The enquiry proceeded on 6th and 7th February, 1980, and on behalf of the bank, the Senior Vice- President, Mr. Rizvi, Mr, Younus Umer Khanani and MC Ramon A. Satter, Grade II Officers, Computor Division. And Mr. Abu Bakar, Deputy Controller, Computor Division, were examined, while no witness in defence was examined by the appellant. The Enquiry Officer by his report, dated I4th February, 1980, held both the charges, namely, of refusing to obey the orders of his superior and of using objectionable language and making false allegations against his superior, Mr. Rizvi, to be established against the appellant. A second show-cause notice was accordingly issued to the appellant to which photostat copies of the enquiry report and the enquiry proceedings were appended. As the explanation of the appellant to the said second show-cause notice was not found satisfactory by the respondent bank, he was dismissed from service, vide letter, dated 27th February, 1980.
3. The appellant challenged the orders of his dismissal through a grievance petition filed before the learned Vth Labour Court. The grievance petition was resisted by the respondent bank on the grounds, firstly, that the grievance petition was not maintainable as the appellant was an officer of the bank and not a workman and hence not entitled to file a grievance petition before a Labour Court, and secondly, that the charges of misconduct against the appellant had been duly established in a domestic enquiry which was fairly and properly conducted and in which full opportunity of defence was given to the appellant. The learned Labour Court repelled the first contention of the respondent bank and held, on a careful examination of the evidence led in this behalf, that the appellant, though designated as an officer was employed to do work of a clerical nature and accordingly came within the definition of 'workman' for the purposes of the Standing Orders and was thus entitled to file and maintain a grievance petition. It, however, agreed with the second contention of the respondent bank and has held that the misconduct of the appellant had been duly established. It has accordingly dismissed the grievance petition of the appellant, who has now come up in appeal to this Tribunal. The respondent bank has also filed cross objections to the finding of the learned Labour Court that the appellant is a workman for the purposes of the Standing Orders.
4. I would first deal with the cross objections of the respondent bank that the appellant is not a workman for the purposes of the Standing Orders and hence, not entitled to file a grievance petition against the termination of his services. It is not disputed that the appellant was appointed as Grade HI Officer in the respondent bank and was posted as a Programmer. He had also undergone training sponsored by the respondent bank through the I. B. M. In ANS Cobol and RPG-2 in 1979. The duties of the Internal Audit Officer/Programmer in the Computor Division have been detailed in the document which is marked Exh. 4-C and which appears at page 389 of the record of the learned Labour Court. The complaint of the appellant, however, all along has been that he was not assigned the duties as given in the above document, but was merely required to collect and staple together Flow Chart and Instructions, which was essentially the work of a Daftary. In this behalf, the letter of 3rd December, 1979, posting the appellant to the Internal Audit Section is material. The said letter requires the appellant to report to Mr. Younus Umer Khanani of the Internal Audit Section for further instructions. It has, therefore, to be seen what was the nature of the assignment which Mr. Younus Umer Khanani gave to the appellant on his posting in the Internal Audit Section. In his evidence before the Enquiry Officer, Mr. Younus Khanani asserted that the appellant was assigned the job of completing Operating Instructions and Flow Charts of the various programmes of the various systems being run in the Computor Division. In his evidence before the Labour Court, Mr. Younus Umer Khanani, while admitting that no duties were mentioned in the letter posting the appellant to the Internal Audit Section, stated that as the duties of the Programmer are specified in the official manual, there was no necessity of his giving any instructions to the appellant. These duties are specified in the document, Exh. 4-C, to which 1 have already made a reference. Mr. Younus Umer Khanani was further examined by this Tribunal as also Mr. Azhar Sami Khan, the Programme Manager, I. B. M., as their evidence was necessary for the purposes of understanding not only the nature of duties required to be performed by Programmers of Computor Division, but also of clarifying certain technical terms and the system of working of Computors. In his evidence before this Tribunal, Mr. Younus Umer Khanani clarified that by his statement made before the Enquiry Officer that the job assigned to the appellant was to 'complete the Operating Instructions and the Flow Charts of the various programmes of the various systems being run in the Computer Division, he meant that the appellant was required to collect and complete the Instructions and Flow Charts from various sources in the Computer room, and by completing, he did not mean that the appellant had to write any instructions or prepare - them, but he was merely to collect them. Mr. Younus Umer Khanani has thus admitted that the job assigned to the appellant consisted merely of collecting of Flow Charts and Instructions and he has frankly conceded that the appellant was given no problem for which he was required to find a solution, which was the main work of the Programmer. Mr, Younus Umer Khanani further admitted in his evidence before this Tribunal that the work of collecting the instructions of the customers which were assigned to the appellant, was previously being done by another person and that it was not a proper work of a Programmer. His stand, however, was that the appellant was required to perform any duties which he assigned to him. This was also the stand taken by the Senior Vice- President, Mr. Rizvi, in his evidence before the Enquiry Officer. Mr. Azhar Sami Khan, the Programme Manager, I. B. M stated in his evidence before this Tribunal that the basic duties of a Programmer is to find a solution to a problem or number of problems by feeding set of instructions in the Computer language to the Computer. He further testified that though the feeding of instructions to the Computer and the preparation of those instructions would be the duties of a Programmer, but collection of those instructions would not normally be the duties of a Programmer. He further stated that the I. B. M., had suggested in writing the nature of duties which should be performed by Programmers and had seen the document at page 553 of the record of the learned Labour Court, and stated that these were the duties of a Programmer as suggested by the I. B. M. It is quite apparent from the above evidence that the duties which the appellant was required to perform in the internal Audit Section of Computer Division collecting Instructions and Flow Charts, which was essentially a work of clerical/manual nature and hence the appellant would be deemed to be a workman for the purposes of the Standing Orders, as rightly held by the learned Labour Court. The mere fact that the appellant was an officer of Grade III in the respondent bank and was appointed as Programmer in the Computer Division of the bank is not sufficient to take him out of the category of workman, as it is not the designation of an employee which is material for the purpose of determining whether he is a workman for the purposes of the Labour Laws, but the nature of duties for which he is employed and required to perform. Mr. Mahmood A. Ghani, the learned counsel for the respondent bank, however, sought support from the judgment of this Tribunal in the case of Kifyat Hussain v. United Bank Ltd., decided on 9th April, 1981, wherein it has been held that Kifayat Hussain, who was an officer of Grade III in the bank was not a workman for the purposes of the Standing Orders and hence was not entitled to file and maintain a grievance petition. The facts of the said case, however, are materially different from the facts of the instant case. The finding in Kifayat Hussain's case that he was not a workman was founded on the fact that there was no evidence to show that he was employed to do or in fact was performing any duties of manual or clerical nature. In the instant case, as already stated, the duties which the appellant was performing in the Internal Audit. Section was purely of manual/clerical nature.
5. It next falls to be considered whether the charges against the appellant had been duly established in a domestic enquiry. Before examining this issue, it would be appropriate to dispose of the contention of Mr. S. P. Lodhi that the enquiry proceedings suffer from a serious infirmity inasmuch as, Mr. Rizvi, Senior Vice-President, not only issued the charge-sheet against the appellant, directed his suspension, ordered the holding of an enquiry against him and appointed the Enquiry Officer, but also gave evidence against the appellant, not only in respect of the charge of failure to carry out the instructions of his superior by the appellant, but also on the charge that the appellant had used objectionable language towards and levelled false allegations against him, and further acted as prosecutor in the domestic enquiry against the appellant. The contention of Mr. S P. Lodhi, however, is without substance as it was explained by Mr. Rizvi in his evidence before the Enquiry Officer that after the appellant had submitted his explanation, dated 6th January, 1980, to the first show-cause notice, dated 5th January, 1980; he had reported the matter to 'the Personnel Division of the respondent bank and had thereafter acted strictly in accordance with the instructions, of the Personnel Division, contained in its memorandum, dated 7th January, 1980. It would thus appear that the formal charge-sheet, dated 19th January, 1980, as well as the letter, dated 28/29th January, 1980, giving details of the acts on which the charges against the appellant were based, as also the letter of enquiry, dated 3rd February, 1980, regarding the holding of the enquiry, the appointment of the Enquiry Officer and the placing of the appellant under suspension were signed by Mr. Rizvi under instructions from the Personnel Division. Since Mr. Rizvi has merely carried out the instructions of the Personnel Division, which in fact had taken the decision of formally charge-sheeting the appellant holding an enquiry against him, appointing the Enquiry Officer and suspending the appellant, the mere fact that the letters issued to the appellant in this behalf were signed by Mr. Rizvi, would not serve to invalidate the domestic enquiry.
6. Two separate charges were levelled against the appellant, the first, that he had wilfully disobeyed on 2nd January, 1980, the orders of his immediate superior, Mr. Younus Umer Khanani and since then had not been taking any interest in the work, and second, he had used objectionable language and made false allegations against the Senior Vice-President, Computer Division in his letters, dated 6th January, 1980, 9th January, 1980 and 12th January, 1980. The first charge is based primarily on the evidence given in the domestic enquiry and before the learned Labour Court by witness Mr. Younus Umer Khanani, to which support is said to have been given by the evidence of Mr. Rizvi, Mr. Haroon A. Sattar and Mr. Abu Bakar H. Ahmed. In his two complaints, dated 2nd January, 1980 and 3rd January, 1980, addressed to the Senior Vice-President, Mr. Younus Umer Khanani has merely complained in general terms that the appellant was not following his instructions but has not specified the nature of the instructions or instructions which he had given to the appellant and which he was not following. Furthermore, as already stated both these letters are on plain lined paper and not on the letter-heads of the bank. Moreover, they do not bear any number, which would suggest the office of origin or they being issued in the normal course. It is pertinent to note that other letters issued by officers of the respondent bank which have come on record of the case, all are on the letter-heads of the respondent bank and bear numbers. These circumstances thus create doubts about the genuineness of the said written complaints. It may further be mentioned that not only the two complaints made by Mr. Younus Umer Khanani to the Senior Vice-President do not specify the nature of the instructions which the appellant was given and which he is said to have refused to follow/obey, but even in the first show-cause notice, dated 5th January, 1980, it is again generally stated that the appellant had refused to follow instructions given to him from time to time without specifying as to what was the nature of those instructions.
Even in the formal charge-sheet, it has merely been mentioned that on 2nd January, 1980, the appellant had wilfully disobeyed the orders of his immediate superior and since then was not taking interest in his work, without specifying what those instructions were. Moreover, the names of the persons in whose presence he is said to have refused to carry out those instructions have not been mentioned in that charge-sheet. The letter, dated 28/29th January, 1980, giving details of the acts on which the charge-sheet, dated 19th January, 1980, is based, no doubt mentions the names of Mr. Abu Bakar H. Ahmed and Haroon A. Sattar, but it also fails to mention the nature of the instructions which were given to the appellant by Mr. Younus timer Khanani, and which he is said to have failed to follow or disobeyed. It was for the first time in the domestic enquiry that Mr. Younus Umer Khanani came out with the story that he had asked the appellant to collect and compile the instructions of the jobs of customers. This allegation must be considered not only in the background of the fact that upto the time of given evidence, Mr. Younus Umer Khanani did not specify or clarify what instructions the appellant had failed to obey, but also in the light of 2 others circumstances, the first being the evidence of Mr. Younus Umer Khanani that the collecting of instructions of the jobs of customers though it was being done in the Computer Division, was not the work of Programmer but was being done by another person who was not Programmer. The second circumstances is that though as far back as on 22nd December, 1979, the appellant had submitted a report to Mr. Abdul Sattar, Deputy Controller (Operations) with copies to Mr. Younus Umer Khanani and Abdul Gaffar A. Sattar that'he had handed over to him operating instructions and flow charts of all the systems in operation which may be checked and advised if there is any omission, there was no response to his said letter till 5th January, 1980, when he was issued the first charge-sheet containing the allegation that he had failed to carry out the instructions of Mr. Younus Umer Khanani. Finally, it may be mentioned that Mr. Younus Umer Khanani himself admitted in his evidence before this Tribunal that he had made note on the completion report, dated 22nd December, 1979, of the appellant that it was incomplete or it was useless or some other work had also to be done. All these circumstances, to my mind, create a very reasonable doubt as to the genuineness of the allegations levelled by witness Younus timer Khanani against the appellant. There remains, however, the evidence of Mr. Rizvi, Mr. Abu Bakar and Mr. Haroon A. Sattar.
So far as Mr. Rizvi is concerned, he has merely stated that he had received the two complaints, dated tad January, 1980 and 3rd January, 1980, respectively, from Mr. Younus Umer Khanani and the oral complaint which the latter had made co him. Since the evidence given by Mr. Rizvi is based upon the information supplied to him by Mr. Younus Umer Khanani, the evidence of Mr. Rizvi does not add anything to the evidence of Mr. Younus timer Khanani. As regards the evidence of the 2 witnesses, Mr. Abu Bakar H. Ahmed and Haroon A. Sattar, it makes interesting reading. The material part of the evidence of Haroon A. Sattar which was given in Urdu reads as follows :- {{URDU TEXT}} ' The witness was asked to state the date on which the incident is said to have occurred, the place where it had occurred and the nature of the work or, instructions which the appellant was required to do, but he was not able to say anything in regard to these important factors.
7. The evidence of Mr. Abu Bakar H. Ahmed is equally unhelpful. According to his testimony before the Enquiry Officer, Mr. Younus Umer Khanani told the appellant that he had "to do that work and other work also where upon Mr. Manazir replied that {{URDU TEXT}} Like, Mr. Haroon A. Sattar, Mr. Abu Bakar H. Ahmed was unable to re-collect the date on which the above incident is said to have occurred. He was also unable to state the nature of the instructions or the work which the appellant was required to do by Mr. Younus Umer Khanani. Moreover, whereas according to Mr. Younus Umer Khanani the incident is said to have occurred in the Processing Section, according to witness Abu Bakar H. Ahmed, it took place in the Punch Room. The cumulative effect of all these circumstances is that it cannot be said that the charge of wilful disobedience of orders of his superior or to follow any specified reasonable instructions has been established against the appellant. It has been held by this Tribunal, in the case of Niaz Ahmed v. Asbestoes Cement Industries Ltd. (1), that where an order of dismissal of a workman is based on more than one charges, but one !Of those charges either has not been established or does not amount to misconduct, the dismissal orders cannot be sustained, as on the one hand, it cannot be said that the employer would have dismissed the workman on the remaining charges established against him nor is the possibility excluded that the decision of the employer was influenced by the charge which was not established against him. In such cases, however, opportunity must be given to the employer to initiate proceedings from the stage at which the infirmity occurred if he chooses fit as was done by the Supreme Court in the case of Islamabad Club v. Punjab Labour Appellate Tribunal (2).
8. The upshot of the above discussion is that I would set aside the orders of dismissal of the appellant, dated 27th February, 1980, and direct the respondent Bank to re-instate him in service. It will, however, be open to the respondent bank to consider the case of the appellant only in respect of the second charge, namely using objectionable language and leveling baseless allegations against Mr. Rizvi, in his letters, dated 6th, 9th and 12th January, 1980 and after affording him an {{FOOT NOTE}}
(1) N LR 1981 T D 157 (2)PI,D1980SC307 {{FOOT NOTE}} ' opportunity of hearing in this behalf, to pass orders on the enquiry proceedings in accordance with law. The award of back benefits will depend upon the result of such further proceedings.