' This appeal is directed against the decision dated 24th January, 1978 delivered by the learned Presiding Officer, Punjab Labour Court No, 9, Multan, whereby the respondent was directed to be reinstated in service with back benefits.
2. The 'respondent was grade III Officer in the appellant Bank and posted at Pakpattan. His services were terminated vide order dated 30th September, 1976 on the allegation that he had committed fraud of Re. 6,000 by withdrawing the said amount from the account of one Fazal Muhammad. The fraud is alleged to have been discovered during the audit inspection. The respondents alleged to have given written admission to the Regional Manager of the Bank begging apology with an assurance that he would not repeat such an act. He is alleged to have deposited the amount of Rs, 6,000 in the account from which it had been embezzled to make good, the shortage. He, however, later, on 6th July, 1976 made an application to the Head Office complaining that his admission had been obtained under duress and that he had never misappropriated any amount and requested for the refund of Rs, 6,000. An affidavit of Fazal Muhammad, account holder, was also attached to the application to the effect that the said account holder had no demand against the branch. The services of the respondent were terminated on the plea that the bank had lost trust and confidence; therefore, it was not possible to retain him in employment. However, neither the respondent was charge-sheeted, nor any enquiry was held.
3. It has been argued by the learned counsel for the appellant that the respondent is not covered by the definition of workman as given in section 3 (xxviii) of the Industrial Relations Ordinance, 1969, like evidence in that he was incharge of Deposit Branch and four persons were under his control and supervision. His duty list is Exh. 2 according to which, his duties were "(I) CD -SB Incharge,
(2) Opening of accounts.
(3) Supervision of cash receipts and payments.
(4) Supervision of Transfer Book, Token Book and Scroll Book.
(5) Checking of CD supplementaries and ceiling.
(6) Custodian of vouchers.
(7) T. V. Licences.
(8) Issuing of CSD and CB cheque books."
' He has admitted his signatures on various documents, such as office order Exh. 3 which are to the effect "Please note that no member of staff will leave the office without balancing his ledger". These are of different dates. Exh. 4 is an application, but it does not show that it was sanctioned by the respondent. It further appears that he had endorsed it to the Manager, who allowed it. Exh. R-6 no doubt bears his signature but certain signatures are for attesting the specimen signatures of the account holder, and one signature was put by him in the capacity of officer. Exh. R-7, R-8, R-9, R-10, R-11 and R-12 bear not only the signatures of the respondent but of some other authority also. It therefore, cannot be said that he put these signatures as a Manager or in the capacity of Supervisor. On Exh. R-13 his signatures are by way of attesting the thumb-impression of Fazai Muhammad, Account Holder. Application Ex. R-14, no doubt, bears his signatures but it is not clear why hesigned it. Exh. R-16 not only bears his signatures but the signatures of some other officer also. It is thus apparent that the documents mentioned above are not sufficient to show that the respondent was acting as a Manager. If he is taken to be discharging the duties of a supervisor, then unless it had been shown that his pay was more than Rs, 800 he could not be excluded from the definition of workman. Clause (b) of section 2 (xxviii) of the Industrial Relations Ordinance, 1969 reads as under : - ""Who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature".
' The respondent stated that his pay was Rs, 408, house rent of Rs, 100, special pay of Rs, 110, medical allowance of Rs, 35 and conveyance allowance of Rs,
25. The total sum comes to Rs, 676 including his pay. The amount being not more than Rs, 800 he falls in the exception and thus was a workman. The learned counsel for the appellants in this respect has cited 1976 PLC 491, PLD 1977 SC 383, PLD 1977 SC 237, PLD 1976 Kar. 342, PLJ 1976 SC 388 (?). In 1976 PLC 491 a salesman of a Tea Company was held to be a workman and not employer. The observations made are :- "To determine whether a person is a workman or not, we have to look at the definition of the employer and not that he is a workman or supervisor. The fact that a person is designated as supervisor would not be sufficient to bring him in the category of employer unless he satisfies the test laid down in the definition of "employer". Employer in relation to an establishment means any person who employs workmen in establishment and includes any person responsible for the management, supervision and control of the establishment and who is employed mainly in a managerial or administrative capacity. The test for the determination whether a person is a workman would be the nature of extent of control and supervision of the employer. In each case it would depend upon the facts and circumstances of the case as to whether a person is or is not responsible for the management, supervision and control of the establishment. The maintenance of discipline and the authority to give decision in respect of disciplinary matter is the responsibility of the employer."
While looking at the material brought on the record in the light of the observations made in the authority cited above, it is quite clear that the respondent is not ousted from the definition of workman. In PLD 1977 SC 83 also a salesman of Brook Bond (Pakistan) Ltd., was adjudged to be a workman. In 1980 PLC 106 Junior Class I Officer of Australasia Bank was declared to be a workman, on the ground that he had no power of hire and fire, was performing manual and clerical duties. In the present case, no doubt it does not appear that the respondent was discharging clerical duties, but that kind of evidence is required when the question is whether the definition of workman given in W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 applies or not.
In the present case we are concerned with the definition of work-1 man given in section 2(xxviii) of the Industrial Relations Ordinance, 1969.1 No direct authority has been made available by any of the parties, but in view of the nature of duties and the fact that the main duty of the respondent was not supervisory and his pay, being less than 80D, he is obviously covered by the definition of workman.
4. The learned counsel for the appellants has argued that since no dismissal order was passed and the respondent was only terminated for the reason that on account of the embezzlement of the Bank had lost confidence in him, giving of charge-sheet and making of inquiry was necessary. I cannot agree with him. Since a stigma was laid against the respondent that he was guilty of misconduct having embezzled an amount of Rs, 6,000 even though major penalty of dismissal was not proposed by the employer, giving of charge-sheet, making of enquiry and observe other legal formalities were absolutely necessary. The learned counsel says that the appellant being a nationalized bank, Standing Orders Ordinance, 1968 is not applicable. This is true that according to section 4 of the Banks (Nationalization) Act XIX of 1974, only the Federal Government or a Corporation wholly owned or controlled by the Federal Government had an exclusive right to establish a Bank. This being so, it can be said that the Nationalized Banks are being run, if not by the Federal Government directly, yet for all purposes under the authority of Federal Government. So far as the statutory rules are concerned, the rules framed by the Wage Commission under sections 38-A to I of the Industrial Relations Ordinance, 1969, which have been notified, are statutory rules.
Thus both the conditions given in the first proviso to section 1(4) of the Standing Orders Ordinance, 1968 stand fulfilled and thus the Standing Orders Ordinance is not applicable to the Banks. But the trouble for the appellants does not end here, but rather stands aggravated. According to paragraph 258(4) of the Wage Commission Award; before it is decided to impose any penalty on an employee for and offence of which he has been reported guilty, it is necessary to call upon him by competent authority to render a written explanation of the charges against him and show cause why disciplinary action should not be taken against him.
5. According to sub-para (5) of paragraph 258, the authority has to enquire into the case itself or has to obtain an independent report on the case in writing from an officer or a committee of officers, specially deputed by the authority to investigate the matter. The report together with the employee's statement is to be laid before the authority that has to then consider the matter and impose any penalty as it thinks proper in the circumstances. It is apparent that before imposing any kind of penalties, it is necessary to inform the employee concerned about the charges against him and be given an opportunity to explain the charges and, therefore, an enquiry is to be held.
Under Standing Orders Ordinance, 1968, giving of charge sheet and making of enquiry is necessary only if the punishment of dismissal is to be imposed, but according to sub-paras. (4) And (5) of paragraph 258 of the Wage Commission Award, the observance of legal formalities is necessary irrespective of the fact whether the penalty to be imposed is dismissal or short of it. The learned counsel for the appellants has tried to argue that according to sub-para. (7), making of enquiry were not necessary. I cannot agree with him, because the respondent was not caught red-handed while defrauding the bank and making embezzlement, nor the circumstances pertaining to the wrongful act, were so manifest that compliance with the procedure may be purposeless. If the respondent had been convicted and sentenced by competent criminal Court of course the appellant could have been justified in getting rid of the respondent by terminating his services without giving any charge-sheet or making inquiry, but this is not the cases here. The last submission of the learned counsel for the appellant is that the learned Labour Court was justified in ordering payment of back benefits Since no enquiry was made and no finding was given that the respondent had been found guilty, he is entitled to back benefits, No doubt the contention of the appellant is that the respondent made confession, but soon after that, he informed the authorities that the confession had been obtained from him under duress and he even went on to the extent of making for the refund of Rs, 6,000 recovered from him.
6. As a result of the observations made above, I find that the learned trial Court rightly ordered the reinstatement of the respondent with back benefits. There is no force in the appeal, which is dismissed.