1. MUHAMMAD IQBAL KALHORO, J.--- By means of this judgment, the captioned petitions filed against the judgment dated 10.10.2012 of Sindh Labour Appellate Tribunal at Karachi in Appeal No.Suk-502- 2010 (L.A.02 of 2007) are disposed of C.P. No.D-3847/ 2012 has been filed by Allied Bank Limited against the acceptance of the grievance application of respondent No.1 Liaqat Ali Bhutto vide impugned judgment, whereby judgment dated 14.06.2007 of Sindh Labour Court No.VII at Sukkur district the grievance application of respondent No.1 was set-aside, and he was directed to be re- instated in service. Whereas C.P.No.D-4493/2012 has been filed by Liaqat Ali Bhutto against the observation in the impugned judgment to the effect that he was not entitled for back referred to as the petitioner and Liaqat Ali Bhutto as the respondent hereinafter.
2. Brief facts of the case are that on 20.05.2002 while the respondent was posted as Manager, ABL, New Anaj Mandi Branch Larkana, he was served with the charge sheet on account of allegations of misconduct involving lapses due to his weak control and poor monitoring of stocks pledged with the Bank. The respondent submitted reply to the charge sheet but it was not found satisfactory; hence a domestic inquiry was ordered against him. In the inquiry, the respondent was found guilty of charges. It is also stated that when pledged stock was illegally removed by the borrowers, the respondent lodged three FIRs, one at P.S. Waleed District Larkana and two FIRs at FIA Crime Circle-II, Karachi but later on he himself was arrested by the FIA police in the said FIRs and was sent to Central Jail Karachi, wherefrom he was released on bail on 18.04.2005. Meanwhile the competent authority in view of the inquiry report dismissed him vide letter dated 04.01.2003 and sent such dismissal order to his four different addresses including the jail where he was confined through Jail Superintendent. It is also alleged that the respondent after release from Jail on 18.04.2005 sent a departmental appeal against his dismissal on 17.05.2005 which was not replied, therefore, he sent a grievance notice on 26.08.2005 through registered A.D. but to no avail. Finally he filed a grievance application before learned Labour Court No.VII at Sukkur on 18.10.2005. The petitioner contested the matter on merits claiming that the respondent was not a workman and further the grievance application was time-barred. During the proceedings before the Sindh Labour Court, the evidence of the parties was recorded and finally vide judgment dated 14.06.2007, the grievance application of the respondent was dismissed on the ground that he was not a workman. The respondent assailed the said judgment before Sindh Labour Appellate Tribunal at Karachi which passed the impugned judgment setting aside the judgment of learned Labour Court and ordering for reinstatement of the respondent but without back benefits. Both the parties are aggrieved by the said judgment and have filed the petitions in hand as stated above.
2. 3.Mr. Javed Asghar Awan, learned counsel for the Petitioner argued that the impugned judgment is in violation of law and has been passed without appreciation of facts and pleadings of the parties; that the impugned judgment suffers from material irregularities and it is not in accordance with law; that learned Sindh Labour Appellate Tribunal failed to appreciate that the respondent was not a workman but was Manager of the Bank and was holder of the power of attorney, therefore, the grievance application was not maintainable; that learned Sindh Labour Appellate Tribunal materially erred by ignoring the fact that hire and fire power is not a determining Factor for deciding the question whether a person is a workman or not but it is the nature of duties, manual or clerical, which defines an employee to be workman; that learned Sindh Labour Appellate Tribunal failed to note that grievance application of the respondent was barred by time; that section 46 of the Industrial Relations Ordinance, 2002 (2002 IRO) stipulates that within one month of the grievance, the worker shall serve the notice to his employer, but in this case the respondent sent grievance notice much after the stipulated period. Learned counsel while explaining the said point contended that the respondent was dismissed from Bank service on 04.01.2003 and the dismissal order was served upon him not only through Jail Superintendent as he was in jail at that time, but it was also sent to all his remaining address, whereas he sent the grievance notice to the petitioner on 20.08.2005 after he was released from jail on 18.04.2005, which was after about more than 2 and 1/2 years of his dismissal. Learned counsel in support of his arguments has relied upon the judgment of the Honorable Supreme Court in Civil Appeal No.206/1988, 2009 PLC (C.S.) 281, SBLR 2010 Sindh 358 and 1990 PLC 523.
3. 4.On the other hand, learned counsel for the respondent supported the impugned judgment to the extent of re-in statement of the respondent in service. He further argued that nothing was proved against the respondent in the inquiry and he was wrongly dismissed from service. On the point of limitation, learned counsel submitted that the respondent was released from jail on 18.04.2005, he filed the departmental appeal on 17.05.2005 within 30 days but since it was not replied, he sent grievance notice on 20.08.2005 and then within stipulated time, he filed the grievance petition on 18.10.2005, which was not barred by time. Regarding withholding back benefits by the learned Sindh Labour Appellate Tribunal, learned counsel maintained that the said findings were against the material available on record, and no reason was given in support of such findings. He emphasized that after dismissal from service, the respondent was not gainfully employed anywhere and this fact he was able to prove in his evidence; therefore, the findings of not giving him back benefits were not justified liable to be set-aside. In support of his arguments, learned counsel has relied upon 1979 SCM R 304, 1988 SCM R 1664, 1989 SCM R 317, 1992 SCM R 1891, 1997 PLC 34 Peshawar, 2009 PLC 171 Isl., 2007 PLC 472. Kar., 2003 PLC 443 Lahore, 2003 PLC 99, 1993 PLC 841 SLAT, 1983 PLC 498 Pesh., 2008 PLC 40 Sindh.
4. 5.We have considered the submissions of the parties and perused the record including the case law cited at bar. As to the point of limitation, it may be noted that section 46 of 2002, IRO provides for that a worker may bring his grievance to the notice of his employer within one month of the day on which cause of such grievance arises and if a worker brings his grievance to the notice of employer, the employer shall within 15 days of the grievance communicate his decision in writing to the worker. In sub-clause (3) of ibid provision of law, it is provided that if an employer fails to communicate the decision within 15 days or if a worker is dissatisfied with such decision, he may take the matter to the Collective Bargaining Agent or to the Labour Court for a decision provided he shall do so within a period of two months from the date of communication of the employer or, as the case may be, from expiry of the period of 15 days. Record reflects that the respondent on the day of dismissal i.e. 04.01.2003 was in jail, therefore it could be construed in favour of the respondent that he was materially prevented from availing the remedy in terms of above provision of law. But after his release from jail on 18.04.2005 no such impediment was available to him, the record reflects that he filed a departmental appeal against his dismissal from service on 17.05.2005, which is within one month of his release. However, thereafter he sent a grievance notice to the petitioner on 26.08.2005, which is after more than 3 months of his bringing grievance through departmental appeal to the notice of the petitioner/employer. Provisions of section 46 of 2002, IRO, as discussed above, clearly show that if the notice whereby a worker brings his grievance to the knowledge of his employer is not replied within 15 days or if he is not satisfied with the decision made thereon, the workman within two months next shall take the matter to the Labour Court. In the present case from the dates mentioned herein above, it is obvious that the respondent did not take the matter to the Labour Court within two months after waiting for reply for 15 days of his sending grievance notice to the petitioner, therefore, the argument of learned counsel for the petitioner that the grievance application of the respondent was time barred appears to be correct.
5. 6.The next question before us is that whether the respondent, who was working as manager in Grade-III in the bank at the time of his dismissal from service on 04.01.2003, can be defined as a workman so as to maintain his grievance application before the Labour Court. The workman has been defined in section 2(xxx) of 2002, IRO as a person who is not an employer and who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, and does not include any person who is employed mainly in a managerial or administrative capacity. For ready reference, the definition of workman as provided in ibid law is reproduced herein under:-- "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."
6. Industrial and Commercial Employment (Standing Orders Ordinance, 1968) defines workman as "Any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward". It is manifest from the above definitions that the workman is the one who, inter alia, is not the employer and who does any skilled or unskilled, manual or clerical work for hire and reward in an establishment etc. The employer in relation to an establishment defined in section 2(ix) of 2002, IRO means any person or body of person, whether incorporated or not, who or which employs workmen in an establishment under a contract of employment and includes, inter alia, the proprietor of the establishment, director, manager, secretary, agent or office bearer or any person responsible for or concerned with the management and control of the establishment and/or its of affairs. Whereas in the Standing Orders Ordinance, 1968, the employer means an owner of an industrial or commercial establishment and includes Manger of factory; Controlling Authority or Head of Department; and/or Supervisor/Controller of an industrial or commercial establishment. However, it merits mentioning that it is not a mere designation of a person as provided in law which would define him a workman or otherwise, but it is mainly the nature of duties and functions which he performs in an establishment that determines his position therein. And in case of any dispute if the claim of a person to be workman with reference to the nature of his duties and functions is contested by the employer, it would definitely entail a situation calling for an enquiry to determine such fact. Therefore, necessarily in such like situation the burden to establish that a person is a workman in an establishment shall be on the one who with the said claim comes to the Court pleading some grievance against his employer. In the present case, it is the respondent who filed the grievance application claiming himself to be workman, and in support of such claim, in Para No.16 of his affidavit-in-evidence he has stated that he had no power to hire and fire the employees or even to charge-sheet or suspend them, and he was performing manual duties like maintenance of registers, cash accounts and other clerical duties. It bears repetition that it is not the power of hiring and firing or charge- sheeting, or suspending the employees, which D only determines the status of person to be employer, but, additionally, it would be the nature of duties and functions that he performs in an establishment, which would play an important role in deciding whether or not a person is a workman. Normally, as provided in law any person who does not fall within the definition of employer and is employed in an establishment and is not performing managerial or administrative duties would be considered as a worker or workman. However, it would still be open for a person who by designation is employer as defined in law to establish that the nature of his duty and function is not of managerial or supervisory but of a worker so as to maintain his grievance application before the Labour Court against his employer. The respondent was Grade-III officer and posted as Manager of the bank, therefore, it was on him to establish that despite his designation of employer, he was a workman. The record does not reflect that he has brought any reliable substance on record, except his own word, to depict that regardless of his above- mentioned position, the nature of his duty and function was not managerial or supervisory and he had no control over the staff posted in the bank and he was performing clerical duty. On the contrary, his cross-examination shows his admission to the effect that at the time of his arrest, he was Manager and even prior to that he holding the said post; and that he was getting salary of about more than Rs.15000/- The record also shows that a power of attorney, produced in evidence by the attorney of the petitioner, was executed in favour of the respondent by the Bank Officials concerned on 11.04.1994, which is much before his dismissal, and he in the capacity of the attorney of the Bank had been acting and recommending finance facilities to the parties and on his recommendation the financial facility was extended to the various Rice Mills including those whose pledged stock was found missing during inspection resulting into an inquiry against him which led to his dismissal from service. Para 13 of the said power of attorney indicates that the respondent as a Manager/Officer of the Branch had administrative control over the staff working in and posted in the branch/department. And his function and power include recommending leave applications, loan applications and other applications to the Admin. and Human Resources Division; issuing warning letters to the staff working under his control and supervision; forwarding any complaint received from any Authority or Employee to the Admin. and Human Resources Division for issuance of charge sheet/ inquiry, letter etc. It is also provided in the said Para that he would be in an administrative cadre and make no claim as a workman under the provisions of IRO, 1969 or under Standing Orders, 1968; that he would perform all administrative and managerial functions and distribute work to the employees working under his control and supervision; and he would exercise all powers of the employer under the Industrial Relations Ordinance, 1969, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the West Pakistan Shop and Establishment Ordinance, 1969. The respondent in his cross-examination has stated that he does not remember, if any power of attorney was issued in his favour, but this assertion, in our estimation, would not amount to an altogether denial of the execution of said power of attorney in his favour, nor could it be construed to have nullified or created doubt over the veracity of said power or attorney. These powers and functions, which the respondent was performing in the capacity of attorney of the Bank, sufficiently demonstrate the nature of his duty as administrative and supervisory; and that he was not acting like cleric as claimed by him.
7. 7.Learned Labour Court while examining the evidence and other relevant material has properly dealt with the said aspect or the case and has concluded vide its judgment dated 14.06.2007 that respondent Liaqat Ali Bhutto was performing supervisory duties and his job as the Manager of the Bank was administrative and managerial, therefore, his grievance application was not maintainable. The findings of the Sindh Labour Appellate Tribunal holding the respondent to be a workman do not seem to be based on any material supporting such claim of respondent and are therefore not sustainable.
8. 8.In the light of above discussion the judgment dated 10.10.2012 of Sindh Labour Appellate Tribunal at Karachi in Appeal No.SUK-502-2010 (L.A.02 of 2007) is hereby set aside with the result C.F. No.D- 3847/2012 filed by Allied Bank Limited is allowed and C.P.No.D-4493/2012 filed by respondent Liaqat Ali Bhutto is dismissed with no order as to costs.