The petitioner has filed the instant petition under Section 46(3) of Industrial Relations Act, 2002 with the prayer to declare the impugned order dated 30.12.2006 passed by the Respondents No. 4 & 5 under the defunct UBL Staff Service Rules-1990 pursuant to an allege d findings/inquiry report regarding dismissal (termination) from service as illegal, void ab initio,. without jurisdiction, without lawful authority , capricious, perverse, vindictive and disciplinary consequently be set aside, reinstating the petitioner in service with all back benefits and continuity of service, to direct the respondents to produce R & P of inquiry proceedings alongwith findings /inquiry report allegedly submitted by the inquiry officer and declare the same without jurisdiction, corrum-non-judice and of legal effect and set aside the alleged findings/inquiry report.
2. The brief facts of the case are that the petitioner was initially appointed in the respondent Bank as Assistant on 18-05-1976 against a regular and perma nent post and he was posted as Supervisor at UBL Mattiari Branch. That the petitioner falls within the definition of a workman as defined under Standing Orders Ordinance, 1968 and IRA, 2012 and used to perform his duties with his own hands i.e. issuing cheque books preparing cheque book registered, opening accounts canceling instruments and maintaining security stationary under the management and administrative control of Manager of the Branch, Area Manager , UBL Civic Centre Area Office Hyderabad, Area Operation Manager , UBL, Hub Branch Civic Centre Hyderabad. That the petitioner was not holding the power of hire and fire, sanctioning of leave, issuing of show cause notice, charge-sheet, letter of admonition and letter of reprimand to any co-employee working at UBL, Mattiari. That none of the employee was answerable to the petitioner during his employment. That petitioner proceeded for 14 days leave on account of marriage ceremony of his daughter . That on 30-08-2006 Respo ndent No. 4 called the petitioner and verbally charged him of fraud and embezzlement at UBL Mattiari Branch and forced him to make arrangement of Rs. 2,17,000/- otherwise he will be handed over to FIA even threatened him to bring police force during the occasion of marriage of his daughter . That the petitioner arranged the amount from his friend on 31-08-2006, which was handed over to Mr. Abdul. Ghafoor Brohi, Regional Operation, Head UBL, RHQ, Gul Centre Hyderabad, who prepa red voucher in his own hands writing at said UBL Mattiari Branch'to credit in the sundry deposit account and obtained 'the signature on said voucher by adopting coercive method. That the recovery of the amount from the petitioner was itself illegal and in the gross violation of the rules of law so also principles of natural justice. That the Respondent No. 4 issued time- barred charge sheet dated 26-092006 to the petitioner on the allegation of fraudulent withdrawal of Rs. 50,000/- from Account No: 100/1988-1 on 06-03-2006 and embezzlement of Rs. 2,17,000/- by withdrawing the same from Account No. 100-79272-2 in the connivance of one Mohammad Usman 08 cheques, detail whereof is mentioned in Para-6 of the grievance petition. That the above mentioned charge-sheet was not based on any complaint from any customers/accounts holders or anybody else about the alleged misappropriation/embezzlement but the respondent played dirty and nefarious game with the petitioner who had not only charge sheete d the petitioner but also charge- sheeted Is. Abdul Sattar Memon, the then Manager , Yawar Ali, Assistant and Haji Khaskheli, Cashier , UBL, Mattiari Branch simultaneously leveling identical allegations of fraudulent withdrawal of Rs. 50,000/- from the very account and some different amounts through posting the same cheques. That the petitioner submitted application to Respondent No. 4 requesting him to supply the certified copy of the alleged audit report referred in charge-sheet but his request was not accorded. That the petitioner submitted his reply dated 02-10-2006 to charge-sheet. That thereafter the petitioner submitted request on 07-10-2006 to Respondent No. 4 for his posting at any branch of UBL, which was not responded. Notice of inquiry dated 16-10-2006 was issued to the petitioner by Mr. Sahib Dino Shaikh, VP/AM, Raza Shah Kabir Road , Larkana was Inquiry Officer. That the petitioner appeared before the inquiry officer and raised some legal objection but his objections were not considered and illegal and partial inquiry was conducted against the petitioner wherein he was found guilty of the charges in flagrant violation of law and in sheer disregard of the; principles of the natural justice. That on the basis of said inquiry the petitioner has been dismissed from service vide impugned order dated 30-12-2006, which is illegal and unlawful. That being aggrieved by the impugned dismissal order dated 30-12-2006, the petitioner served grievan ce notice dated 15-01-2007 but his grievance was not redressed. Hence, the instant grievance petition.
3. The contention of learned counsel for the petitioner is that the petitioner was initially appointed in the respondent Bank as Assistant on 18-05-1976 and on the basis of seniority . cum fitness he was promoted and he was posted as Manager (Operations) at UBL Mattiari Branch Hyderabad; that the petitioner during the pendency of instant petition has reached the-age of 60 years on 25-12-2012; that the nature of duties, of the petitioner were manual and clerical and he had no power of hire and fire; that the petitioner while posted at Mattari Branch proceeded for 14 days leave on account of marriage ceremony of his daughter w.e.f. 27-08-2006. Learned counsel for the petitioner also contended that the petitioner while was on leave, all of sudden on 30-08-2006 was called for by the Area Manager at about 11:00 p.m. and compelled rather forced the petitioner to make arrangement for Rs. 2,17,000/- and threatened the petitioner that in case of non-deposit of said money , the petitio ner shall be handed over to the FIA and the local police shall be brought at his home on the occasion of marriage of his daughter; that due to force and threats, the petitioner handed over the said amount to Mr. Abdul Ghafoor Brohi, ROH and the said amount was deposited by him under the signature of the petitioner . The learned counsel for the petitioner further contended that on 26-09-2006, the Area Manager issued charge-sheet for fraudulent withdrawal of Rs. 50,000/- on 06-03-2006 and embezzlement of Rs. 2,17,000/- by withdrawing the same from account in connivance with one Mohammad Usman; that the petitioner submitted his reply to the charge-sheet and denied the allegations stating that the charge sheet was issued at belated stage pertaining to March-July , 2006 and is time-barred; that facts finding inquiry was held and upon receipt of inquiry report without providing proper personal hearing, the petitioner was terminated from service on 30-12-2006; that the petitioner served his grievance notice dated 15-11-2007 but his grievance was not redressed to any officer/of ficial of the respondent Bank. Thereafter , the petitioner filed grievance application under Section 46(3) of the IRO, 2002 before the learned Labour Court No. VI, Hyderabad, which was allowed and the petitioner was reinstated in service without back benefits. The learned counsel for the petitioner further contended that the petitioner challenged the order dated 121 1-201 1 passed by the learned Labour Court Hyderabad before the learned SLAT, which was transferred to Full Bench of the Commission and the order was set aside and the case was remanded to this Bench of Commission. In support of his contention, the learned counsel for the petitioner relied upon 197-PLC-34, 2007-PLC-41, 2007-PLC-75, 1988-SCMR-1023, NLR-1992-Labour- 117, 1979-SCMR-304 , 1993-SCMR-488 , 1989-PLC-309, NLR-1992-Labour-1 14.The learned counsel for the petitioner also contended that the dismissal order of the petitioner was passed without holding proper and regular departmental inquiry as such the same is without any justification. In support of his arguments, the learned counsel for the petitioner has relied upon on 2004-PLC-(CS)-371 and 2016-TD-(Labour)-104, 2007-PLC-435, 1995-PLC- 398, 2006-PLC-66, 2003-PLC-(CS)-497 and 2000-PLC-99 . The finally the learned counsel for the petitioner contended that merely giving power of attorney to the petitioner was not sufficient to declare him as Supervisor or Officer as he had no hire and fire powers as the petitioner had been serving as Manager Operations under the control and command of the Manager of the concerned Branch, as such he falls within the definition of a workman and has prayed for allowing the petition. In support of his contention, the learned counsel for the petitioner has relied upon 1985 SCMR 151 1.
4. Conversely , the learned counsel for the respondents while raising legal objection regarding maintainability of the petition contended that the petition is not maintainable in law as the petitioner at the relevant time was working as Officer Grade-II, at UBL, Mattiari Branch, Hyderabad, therefore, he does not fall within the definition of a workman and the instant petition filed by him is not maintainable. In support of his argume nts, the learned counsel for the petitioner has relied upon 1993-SCMR-672 , 1983-SCMR-488, 2004-PLC-371 and 2004-PLC-400 . The learned counsel for the respondents also contended that the petitioner himself has claimed that he was posted as Supervisor , which is number two after Branch Manager and he was performing supervisory nature of duties; that the petitioner has not produced any document to establish that he was working purely in clerical work; that hire and fire is not determining factor nor the sanctioning of leave, issuance of show cause/intimation of disciplinary process which is the function of Regional Head Quarters finally Human Resources Department. The learned counsel for the respondents further contended that the petitioner has not claimed that his services were terminated in connection with any industrial dispute or that it has led to any industrial dispute and being a non-workman, no right guaranteed or secured to him under any law, award or settlement has been infringed which call for enforcement, therefore, the petition is not maintainable on this ground also. The learned counsel for the respo ndents also contended that the petitioner was also holding of Power of Attorney; that he was issued charge-sheet dated 26-09-2006 on the charges of embezzlement/misappropriation; that reply was submitted by the petitioner , which was not satisfactory; that the notice of inquiry dated 16-10-2006 was issued; that the petitioner participated in the inquiry and also admitted that his service was terminated and he served grievance notice and thereafter filed grievance petition in the Labour Court. The learned counsel for 'the respondents on merits contended that the allegations leveled by the petitioner have been denied by the respondents by filing their reply , detail whereof is given in Para-4 of the reply statement. The learned counsel for the respondents also submitted that report dated 15.9.2006 was submitted by the Audit Team & CID, Special Audit Division, H.Q. regarding fraud committed by the petitioner on which he was charge-sheeted; in the inquiry the charg es against the petitioner were establishe d therefore, he was terminated from service. The learned counsel for the respondents also advanced his lengthy arguments on merits of the case and denied the allegations and prayed for dismissal of the petition on maintainability . In support of his contention that the petitioner does not fall within the definition of a workman, the learned counsel for the respondents has relied upon 2008-SCMR-488 , 1985- SCMR-1 151, 1993-SCMR-1282, PLD-SC-633, PLD-1985-Karachi-760 , 1989- PLC-309, PLD-1982-Karachi-913 , 2009-PLC-177, 2009-TD-Labour-91, 2009-TD-Labour 192 and PLD-1992-SC- 118.
5. Arguments heard, record perused, which transpires that the petitioner at the time of dismissal from service was serving as OG-II, UBL, Mattiari Branch, Hyderabad. Being OG-II, the petitioner was employed in a managerial and fiduciary capacities and does not fall within the definition of a workman and as such the petitioner is not entitled to file the instant grievance petition. It is also admitted position that at the time of his last posting, the petitioner was performing supervisory nature of duties which is second in command to Branch Manager performing operational managerial nature of duties at Mattiari Branch of the Bank hence he was not performing any manual and clerical job. The record further reveals that the petitioner has not filed any document to establish his claim that he was working purely in clerical job and not supervisory . That the petitioner was served with charge-sheet dated 26.9.2006 alleging fraudulent withdrawal of Rs. 50,000/- on 6.3.2006 and embezzlement of Rs. 2,17,000/- The petitioner submitted his reply dated 2.10.2006, which was found unsatisfactory . Inquiry was held wherein the petitioner appeared and conducted his defense. I have perused the inquiry report submitted by Mr. Sahib Dino Shaikh, VP/Inquiry Officer, UBL CB-Raza Shah Kabir Road, Larkana dated 22.11.2006, which shows that all the charges except Charge No. 2 were proved against the petitioner . However , the charge No. 2 regarding fraudulent withdrawal for an aggregate amount of Rs. 2,17000/- which were made from A/c No. 100-7927-2 was not proved for want of solid proof/evidence. Accordi ng to finding of the inquiry officer, the petitioner was found guilty of the charges, consequently , he was rightly dismissed from service vide letter dated 30-12-2006. Regarding the contention of petitioner that the charge-sheet was time-barred, the respondents have specifically stated that as soon as the irregularity came to their knowledge for the first time by Audit Report dated 31.8.2006 followed by 01- 09-2006, they issued charge-sheet, therefore, the charge-sheet is not time-barred. The contention of respondents carries weight because there is nothing on record to show that the incident was in the knowledge of respondents from. the date as it was occurred. Admittedly , the petitioner has participated in the inquiry proceedings and he was given full and fair opportunity during the inquiry proceedings.
6. For the foregoing reasons discussed in para-5, I hold that the petitioner does not fall within the definition of a workman and the instant petition being filed by a non-workman is not maintainable, consequently the same is hereby dismissed accordingly . There is no order as to costs.
File be consigned to record room.