IJAZ ANWAR, J. This writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:- "Keeping in view what has been stated above, it is humbly prayed that the impugned order dated 24.11.2021 passed by the NIRC Full Bench, Islamabad may kindly be set-aside by restoring the order dated 11.03.2021 vide which the petitioner was reinstated with all back benefits passed by NIRC Bench Office, Peshawar.
Any other relief to whom the petitioner found entitled May also be granted".
2. In essence, petitioner was initially appointed by the respondent-Bank vide Offer of Appointment dated 13.03.2013 against the post of Manager (Band-I) with his functional title as Branch Manager and served the respondent-Bank for almost six years when he, while posted as Assistant Manager- II/Relationship Manager Retail, was terminated from service vide letter dated 05.03.2019. Being aggrieved, he filed a writ petition before the Bannu Bench of this Court, however, the same was treated as representation of the petitioner and sent to the respondent No.2 for decision according to law. Since no response was received, as such, petitioner filed a Grievance Petition before the National Industrial Relations Commission, Peshawar (hereinafter to be referred as "NIRC") for his reinstatement in service, which was allowed vide order dated 11.03.2021. The said order was then challenged by the respondent-Bank by filing appeal before the Full Bench of the NIRC, Islamabad which was allowed vide order dated 24.11.2021 and the order of the Single Bench of the NIRC was set-aside. Hence, this writ petition.
3. This Court called the comments from respondents who furnished the same, wherein, they opposed the issuance of desired writ asked for by the petitioner.
4. Learned counsel for the petitioner argued that petitioner was terminated from service in terms of Rule 18(b) of the Staff Service Rules (hereinafter to be referred as "the Rules") which provides only for the termination of the employees of clerical cadre and as such, he was himself considered by the respondent/Bank as workman, therefore, the learned Single Bench of the NIRC has rightly allowed reinstatement to the petitioner and that the interference therewith by the Full Bench of the NIRC is legally not tenable. He placed reliance on the cases titled "Messrs Habib Bank Limited through President and others v. Azizullah Laghari (2012 PLC 401f, National Bank of Pakistan and another v. Anwar Shah and others (2015 SCMR 434), United Bank Limited through President v.
Jamil Ahmad (2021 PLC 144), Habib Bank Limited v. Punjab Labour Appellate Tribunal and others (1988 PLC 941), Shamsul Awlia and another v. Muslim Commercial Bank Limited (2003 PLC 99), President Meezan Bank Ltd., and others v. Nasir Jabal Awan and others (2016 PLC 279), National Bank of Pakistan v. Muhammad Aslam Dar and another (1999 SCMR 157), Allied Bank of Pakistan Limited v. Muhammad Hamayun Khan. (1988 SCMR 1664), Qaiser and others v. Muhammad Safaqat Sharif (2012 SCMR 743), Muhammad Rafi and another v. Federation of Pakistan and others (2016 SCMR 2146), Khalid Mehmood v. State Life Insurance Corporation of Pakistan and others (2018 PLC 182) and The Chairman Agriculture Policy Institute, Ministry of National Food Security and Research Government of Pakistan, Islamabad and another v. Zulqarnain Ali and- another 2022 SCMR 636".
5. As against this, learned counsel for the respondent-Bank argued that it is by now well settled that the initial burden as to whether an employee was a workman or otherwise is upon the person approaching the Labour fora, according to him, petitioner has failed to discharge his onus of proof; similarly, according to him, he was designated as Manager, performing duties. of supervisory nature and power of attorney holder on behalf of the Bank, as such, was rightly held not a workman: He further argued that the mere fact that he was entitled to his termination on payment of three months' notice pay in lieu of notice can, at best, be claimed at an appropriate forum. He, thus, maintained that the Full Bench of the NIRC has rightly interfered with a non-speaking order of the Single Bench of the NIRC. He placed reliance on the cases titled "Managing Director Shahi Bottlers Private Limited v. The Punjab Labour Appellate Tribunal, Lahore and others (1993 SCMR 488), Javaid Hussain Naqi v. Member Board of Directors, MCB and others (2009 PLC 260), Msr.
Rani v. Pakistan International Airline Corporation and another (SBLR 2016 Sindh 564), Sui Southern Gas Company Limited and others v. Saeed Ahmad Khoso and others (2022 SCMR 1256), Mst. Zeba Mumtaz v. First Women Bank Limited and others (PLD 1999 SC 1106) and Anwar Hussain v. Agriculture Development Bank of Pakistan and others (PLD 1984 SC 194)".
6. Arguments heard and record perused.
7. The record reveals that the initial appointment of the petitioner is Manager (Band-I) with functional title as Branch Manager. Similarly, in terms of the Rules, Rule-7 provides for the "Classification of Staff". It, being relevant, is reproduced as under:-
7. Classification of Staff a) The staff of the Bank shall be classified under the following categories: MANAGEMENT CADRE i. Group Executives. ii. General Managers iii. Deputy General Managers iv. Senior Managers v. Managers vi. Assistant Managers vii. Officers CLERICAL CADRE i. Cashiers/Head Cashier ii. Date Entry Operator/Computer Operator iii. Assistants/Typist/Steno Typist iv. Telephone Operator The Board of Directors shall have the power to determine classifications of any new posts that may be created, if they do not fall under any of the classifications in Management cadre. In the case of hiring of other positions, classification of such posts will be determined by the President".
8. The Larger Bench of the Hon'ble Supreme Court of Pakistan in the case titled "Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore (1992 SCMR 227)" held that where a workman claimed violation of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 (hereinafter to be referred as the Ordinance"), in such case, he/she has to prove himself/herself workman within the meaning of Section 2(i) of the Ordinance.
9. Section 2(i) of the Ordinance provides the following definition:-
(i) "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or electrical work for hire or reward".
10. Similarly, the Hon'ble Supreme Court of Pakistan has also settled this question repeatedly in numerous judgments. Reference can be made to the case titled "National Bank of Pakistan v.
Punjab Labour Court No.5, Faisalabad and others (1993 SCMR 672)", wherein, it is held that "person who approaches the Court on the basis of averment that he is a workman within the definition of law, the burden of proof lies on him and not on the employer". Similarly, it was further held in that judgment that "the question whether a person is a workman within the purview of Section 2 (xxviii) of the IRO can be determined not on the basis of the designation of his post, but on the basis of duties which he was performing". We have examined the initial grievance notice served by the petitioner upon the respondent-Bank/employer. After service of the grievance notice dated 14.03.2019, he has approached the Bannu Bench of this Court under some mistaken advice which was dismissed vide order dated 29.04.2019 by a Division Bench of this Court; thereafter, he approached the NIRC by submitting a Grievance Petition. In the Grievance Petition, except in ground "h" where he claims to be fallen within the definition of workman throughout posing himself to be Manager (Band-I)/Branch Manager. He, however, in his statement admitted that he never remained office bearer or member of any Trade Union in the Bank; besides, attorney holder of the Bank. Apparently, while going through the evidence brought on the record, petitioner remained unable to prove himself a workman in terms of Section 2(i) of the Ordinance as he was not performing any manual or clerical duties. Similarly, Rule-7 of the Rules also ousts him from the clerical cadre and instead has placed him in the management cadre coupled with the fact that he is holding power of attorney on behalf of the Bank. In the cases "Ganga R. Madhani v. Standard Bank Limited and others (1985 SCMR 1511), Muhammad Nawaz Bhatti v. President, Muslim Commercial Bank Limited , Karachi and others (2008 PLC 260), Muslim Commercial Bank Limited and others v. Muhammad Shahid Mumtaz and another (2011 SCMR 1475) and Habib Bank Limited v. Gulzar Khan and others (2019 SCMR 946)", the Hon'ble Supreme Court of Pakistan held that Manager of the Bank or the officers of the Management Cadres and also power of attorney holders cannot maintain their grievance petitions before the Labour Courts/NIRC. The consistent view, however, remained the same that the initial burden to proof himself a workman is upon the person approaching the Labour Court/NIRC claiming himself to be a workman, which the petitioner miserably failed.
11. Interestingly, the Single Bench of the NIRC has passed a very non-speaking order merely holding the petitioner to be non-workman on the ground that his termination in terms of Clause 5 of the Offer of Appointment and the Rules relate to the termination of an employee of clerical cadre and that his termination was without non-observance of the Ordinance.
12. The petitioner, in order to have wriggled out of the objection pertaining to his status as Manager, should have given the details about the nature of his job particularly of his last posting; similarly, also to have explained the effect of power of attorney and also about the detailed powers mentioned in the power of attorney but he failed to discharge the onus of proof. Today, even before this Court, his main emphasis is on the termination letter that he was treated as an employee of the clerical cadre and thus, this fact alone is proof of his being a workman. We are afraid, it is no ground on the basis of which an employee can be held as a workman, because, this fact alone goes against him as in view of his status as Manager (Band-0, his terms and conditions are to be governed under the Offer of Appointment which's Clause 5 specifically provides as below: "5. After confirmation, during your period of employment your services may be terminated at any time by the Bank without assigning a reason by giving either I month notice or on payment of I month salary in lieu thereof. The decision of the Bank shall be final and binding in this regard. In case, you wish to resign froth service you would be required to serve I month notice period or make payment of 1 month salary at the sole option of the Bank".
13. Thus, in terms of the above Clause 5 of the Offer of Appointment where petitioner failed to prove himself to be workman within the meaning of Ordinance; as such, his terms and conditions would be governed under the appointment contract and in case, any violation of the appointment contract is made, his claim, at the most, can be either to claim salary for the unexpired contract or for recovery/damages before the competent forums. Reference can be made to the cases "Raja IVIZ Mehmood and another v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others (2018 SCMR 162), Muhammad Umar Malik v. The Muslim Commercial Bank and through its President, Karachi and 02 others (1995 SCMR 453) and Nadeem Ahmad v. Pakistan State Oil Company Limited and another (2005 PLC (C. S.) 1447)".
14. For what has been discussed above, this writ petition, being bereft of any merit, stands dismissed.