NOOR ZAMAN, MEMBER .---The appellant was working as 0G-II Officer in the respondent Bank when he was terminated from service vide letter dated 21-04-2015. He got/received the termination letter on 14-01-2016 and served grievance notice on respondent on 18-01-2016 and having no response filed grievance petition in the Peshawar Bench of NIRC. The learned member Peshawar Bench declared that the appellant did not fall within the ambit of workman, therefore, the NIRC got no jurisdiction to entertain the grievance petition and returned the petition to the appellant for presenting before appropriate forum. The appellant has impugned the order of Single Member Bench, hence, this appeal.
2. The appeal was fixed for arguments on 01-07-2020, but no one from respondent side appeared, therefore, respondent was proceeded against ex-parte and case was fixed for ex-parte arguments on 08-07-2020.
3. Learned counsel for the appellant contended that the Learned Single Member has not appreciated admission of the responded witness in his cross-examination that "job description of the appellant was to open accounts, clearance of cheques, remittances, making of demand draft and pay orders and not dealing of cash. He further admitted that it is correct to suggest that there is no subordinate of the appellant in the bank and the appellant was working under Manager Operation and that bank has not authorized any power to the appellant for hiring and firing and transfer of any employee of the bank " Learned counsel reiterated that the appellant was cashier and Supreme Court has held in various judgments that Cashier of a bank performs manual and clerical jobs. He relied on judgment of Peshawar High Court in Writ Petition No.634/2015 titled President Meezan Bank v. Nasir Jalil and others . In this judgment the Hon'ble High Court held, that Area Service Quality Manager in Meezan Bank was workman. Learned counsel for appellant contended that the learned Single Member erred in deciding status of the appellant on the basis of his designation i.e. Officer Grade-II and did not examine his job description. Therefore, the impugned order liable to be set aside and appellant be reinstated in service.
3(sic) Arguments of the learned counsel for the appellant heard and record perused.
4. Admittedly the appellant was not Branch. Manager in the respondent Bank. He asserted in memo of petition before Single Bench that he was workman as defined under Clause (XXXIII) of Section 2 of IRA, 2012 read with definition of workman given under Standing Order Ordinance, 1968. The respondent witness in cross-examination admitted that job descriptions of the appellant were to open accounts, clearance of cheques, remittances, making demand draft and pay orders. He also stated that there is no subordinate under the appellant and he was working under the Supervision of Manger Operation. The Bank witness also admitted that no power of attorney was executed in favour of the appellant regarding hiring and firing and transfer of any employee. The respondents have not brought on record any specific function of the appellant which are of Manager ial and Supervisory nature. The respondent has contended that he is employed in officer category and not in clerical category . The Superior Courts time and again held that the question whether a person is worker or not would depend not upon his designation but on the nature of duties mainly performed by such person. The Hon'ble Sindh High Court in reported judgment 1992 PLC (Kar.) 1023 in case MCB v. Chairman Sindh Labour Appellate Tribunal held that "question whether or not an employee fall in the category of "workman" depend on nature of work done by employee and not on his designation... mere assertion that employee was doing managerial or supervisory work without specifying such work, would be of little consequence. Employee in circumstances, proved to be workman". The Hon'ble Supreme Court in reported judgment 2008 SCMR 1530 titled; Dilshad Khan Lodhi v. ABL and others, held that "we are firmly of the opinion that mere designation of a person, the amount of emoluments drawn by him or even holding a power of attorney by itself are not the sole criteria for determining the status". The Hon'ble Supreme Court in case titled; NBP v. Sindh Labour Appellate Tribunal 1992 PLC (C. S.) 94 held " Bank had mainly relied on the designation of the employee as Senior Head Cashier although it was also averred that he was performing duties of supervisory , administrative and manageri al nature. However , the evidence on record had shown that the essential duties of the employee were not supervisory and managerial in nature he was workman"
5. In the instant case the designation of officer Grade-II has been mainly considered as determining factor for status of appellant. However , ratio of the above mentioned judgments of the Superior Courts would reveal that deciding status of a person on the basis of this factor is erroneous. The responde nt witness in cross-examination comprehensively described job description of the appellant that he was opening accounts, cleared cheques, making demand drafts; pay order , that there was no subordinate to him, and he was working under Manager Operation he had no power of hiring and firing and transfer of any employee of the bank. The respondent witness also admitted that the bank has 'not executed power of attorney in favour of the appellant.
6. In view of above facts we are firmly of the opinion that the learned Single Member has taken mistake to consider only designation of the appellant as determining factor for status as workman or otherwise. On merit the record shows that the appellant has not been properly proceeded against and has been condemned unheard. The respondent witness stated in cross-examination that " it is correct that we have not given any notice to the petitioner (Appellant) in the newspaper regarding his absence from duty. It is correct that no proper enquiry was conducted by the respondent Bank after serving the charge sheet to the petitioner according to the relevant rules.
That the salary of the petitioner was stopp ed on direction of HR Finance Division of the Bank illegally . It is admitted fact that dispensation letter/termination letter was issued without holding of enquiry which is mandatory under Standing Order Ordinance, 1968 for termination/dismissal of a workman under allegation of misconduct.
7. In view of above finding we are of the opinion that the appellant was workman under IRA, 2012 and Standing Order Ordinance, 1968 and that he has been terminated illegally in violation of Standing Order Ordinance, 1968.
The impugned order passed by learned Member Bench and dispensation letter dated 21-04-2015 are set aside.
The appellant is reinstated in service with back benefits. There are no orders as to cost. File be consigned to Record Room after due completion.