DECISION This appeal is preferred against the Order of the Sind Labour Court No. VII, Sukkur who by his order, dated 31st March, 1983 dismissed the grievance petition of the appellant, filed under section 25-A, I.
R. O., 1969.
2, The facts which emerged from the record are that Ashfaq Ali Moryani, on 14th October, 1982 filed a petition under section 25-A, I. R. O., 1969. That he was appointed as clerk by the respondents in the year 1977 and in the month of January, 1981 he was designated as officer and was performing the duties mainly of manual and clerical in nature and had no supervisory and managerial power, when misconduct was committed by the Manager Sarafa Bazar Branch Jacobabad, which was discovered in early 1981. The appellant was served with the charge-sheet, dated 6 January, 1982 wherein he was charged for signing I. B. C. A. Alongwith Aziz Muhammad, without making proper entry in Cash Receipt Register and as such he was charged for gross negligence. The charge-sheet was replied on 14th April. 1982. However, on 27th February, 1982 the appellant was served with another charge-sheet wherein he was again charged for gross negligence on account of signing.
The I. B. C. A. Without advising the Cashier to make entry in the Cash Receipt Register regarding N.
B. P's. Token bearing No. 40 pertaining to 2nd March, 1982. He replied to the said charge-sheet and explained his position that he was not negligent. No proper and legal domestic enquiry was held and he was unlawfully dismissed from service vide, letter, dated 10th August, 1982. He preferred an appeal which was rejected and then, he filed the instant grievance petition.
3. The respondents in their reply statement have stated that appellant was an officer and was performing his duties of supervisory/managerial in nature and was not assigned the clerical/manual work at the time when misconduct was committed, and that he was rightlyth charge-sheeted on 6th January, 1982 and his reply, dated 14th January, 1982 was found unsatisfactory. Similarly the charge-sheet, dated 27th February, 1982 was replied with an unsatisfactory reply. The Bank had suffered heavy loss to the tune of Rs. 6 lakh on account of his negligence. Full opportunity was given to the appellant to defend his case. He was legally dismissed from service. The legal plea taken by the respondents is that he was not a workman according to Standing Orders and the provisions of the Industrial Relations Ordinance were not applicable.
4. Appellant filed an affidavit Exh. 3 in his evidence and the respon--dents have filed affidavit Exh. 4 of S. M. Risalat. I have heard the learned Advocate of both the parties in this appeal.
5. The first contention of the learned Advocate for the respondents, Mr. M. Sadiq Khan, was that Ashfaq Ali Moryani was an officer and as such the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would not apply. Exh. 3 of the appellant admits that he was promoted in the year 1977. The allegations in the charge-sheet Exhs. 1-A and 1-C against the appellant pertained to the dates 31st January, 1981 and 2nd March, 1981 are that the appellant was admittedly working as an officer. However, the appellant in his affidavit has averred that he was performing duties mainly of clerical and manual in nature but he has failed to give details of such duties. A tangible evidence is required to show that by nature of duties he came within the definition of workman under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The criteria is that the clerical and manual work should be direct and immediate and sub--stantial part of work and not sundry duties incidentally performed by an employee. Power of hire and fire does not determine this factor. The decisions as reported in 1982 PLC 294 and 1982 PLC 299 bear on this point that substantially the employee must do work both manual and clerical and the work should not be incidental. The same view is taken in 1983 PLC 237. Although the onus wholly lies on the appellant but his evidence is to be assessed and one has to find out that there should be a tangible evidence in this respect. The Labour Court has fount the assertion of the appellant to be incorrect so far the clerical and manual job he performed. He was not designated as a workman.
6. Advertising to the merits of the case, the appellant being an officer had to check the Cash Receipt Register and the Ledger in those transactions which are I. B. C. A. Of the Tower Branch of Jacobabad to Sarafa Branch, Jacobabad. The plea raised by the appellant was that in practice he had to see that the Ledger Keeper and his immediate officer had signed the voucher and, therefore, he also signed the voucher. Had he been careful to call for the Ledger Book and the Cashier's entries in the proper register, he would have found the mistake and for this carelessness, the Bank ran into loss of Rs. 6 lakh. The reply that the appellant had given to the charge-sheet is quoted in verbatum, as follows :- "That from the very outset I strongly deny the charges of gross negligence and lack of supervision.
On 31st January, 1981 while I was posted at Sarafa Bazar Jacobabad Branch as officer, on this day Mr. Arz Muhammad Tahim was another officer and the Branch Manager was Mr. Inayatullah Narejo.
The I. B. C. A. No. 1012952 of 31st January 1981 was passed on to me by Mr. Arz Muhammad Tahim, the said 1. B. C. A. Was checked and verified by me and I found it correct and in order. The original credit voucher of I. B. C. A. Contained Cashier's seal and his signature. It was already signed by first officer Mr. Tahim and as such I was supposed to sign also as I did not find any irregularity therein. I was not supposed to check/supervise the entry of the cash in Cash Receiving Register as it was already signed by the officer who must have checked and supervised the said entry before signing the I. B.
C. A."
7. On the face of it his plea that he was not supposed to check/ supervise the entry of the cash in the Cash Receiving Register as it was already signed by the officer who must have checked and supervised the said entry before signing the I. B. C. A. This plea taken by the appellant is wholly wrong and incorrect and is avoiding the responsibility. To throw the burden on some other officers he himself says with audacity that he was not supposed to check. In this case had he been careful to check the Cash Receiving Register, the cat would have been out of bag and the Bank would have been saved from much trouble and would have not run in a loss of six lakh rupees.
8. I have adverted to the point No. 1 that he is not a workman and also I have adverted to the merits of the case which make Ashfaq Eli Moryani the appellant amply guilty for negligence. Thus, both on merits and law points, the appeal is dismissed.
A. E.