1. Syed Mohammad Saleem Jan, has filed the present .Petition against the Habib Bank Ltd., through its Assistant Vice-President, Zonal Office, Bank Road, Mardan under section 25-A of the Industrial Relations Ordi--nance, 1969, wherein it has been alleged that initially the petitioner had joined Standard Bank ltd., and was Second Officer, in .The .Said Bank in 1964 and was promoted as Manager in 1966 in the same bank. After nationalisation the Standard Bank merged with Habib Bank Ltd.,, with effect from 10th January, 1975. The petitioner was then Manager at Butkhela and' remained as a Manager. Till 1966. During the entire period of his bank service the petitioner was never charge-sheeted, reprimanded or punished in any way but was, instead given promotion due to his hard work, efficiency and contracting business. The petitioner, during his service was doing clerical work and was supervising only a branch of the respondent bank and was drawing Rs. 790 p.m. As Wages.
2. The petitioner was charge-sheeted on 22nd December, 1976 to which charge-sheet the petitioner submitted a reply. One Tehsinullah Butt was appointed as an Enquiry Officer of the respondent in respect of the charge --sheet but no witnesses were examined by him. The petitioner war served with a second show cause notice on 24th February, 1977 to which the petitioner replied though the petitioner was not supplied with copies and proceedings of the enquiry. However the petitioner was dismissed from service vide order, dated 4th April, 1977. The petitioner's grievance notice was rejected. The dismissal order has been challenged on the grounds that the petitioner had committed no misconduct under the West Pakistan Standing Orders Ordinance, 1968, that the findings of the Enquiry Officer, are not based on evidence, that the petitioner was not given a fair opportunity of defence before the order of dismissal was passed, that the respondent did not apply his mind to the case, did not provide the peti--tioner the copies of the record of the enquiry proceedings and that the dismissal of the petitioner is mala fide and is due to victimisation of the officers of the Standard Bank Ltd., just after nationalisation.
3. The written statement was filed on 12th September, 1977. Out of various legal and factual pleas raised in the petition the most vital is that of maintainability. Of the petition under section 25-A of the Industrial Relations Ordinance, on the ground that as the petitioner was a Manager, therefore he does not fall within the scope of the definition of a workman. Who alone can seek redress under section 25-A of the Industrial Relations Ordinance. The next point that has been agitated is that no secured and guaranteed right of the petitioner has been violated. All the allegations and claims made in the petition have been refuted in the written statement.
4. The evidence of the parties has been recorded, record perused and arguments heard.
5. To begin with I would prefer to decide the issue of the maintainability of the petition first. The learned counsel for the petitioner has contended that the respondent is a body corporate under the Companies Act as well as under Banks (Nationalisation) Act XIX of 1974. Then respondent has head office at Karachi. Developing his arguments the learned counsel for the petitioner has put forward the proposition that Standing Order 15 of Standing Orders Ordinance VI of 1968 gives details of misconduct for which a workman is liable for dismissal from service who if dismissed if his secured and guaranteed rights are violated he can, seek redress under section 25-A of the Industrial Relations Ordinance. The learned counsel for the petitioner has put forth the arguments that what the petitioner is required to prove is that he is a workman as defined in the Standing Orders Ordi--nance VI of 1968 and, that he has not to prove .Himself a "Workman" as defined in Industrial Relations Ordinance Proceedings further the learned. Counsel has contended that in different Labour Laws like Industrial Relations Ordinance, Standing Orders Ordinance V1 of 1968, Factories Act terms "Employers" and "Workman" is used and that Standing Orders Ordinance VI of 1968 has been made applicable to Industrial and Commer--cial Establishments. "Commercial Establishment" has been defined in clause (b) of section 2 of Ordinance VI of 1958 and includes "Bank" and Banking Companies. Hence Standing Orders Ordinance VI of 1968 applies to the respondent Bank. Reverting to Standing Orders Ordinance VI of 1968, the learned counsel has submitted that this Ordinance uses only two cate--gories of employees in the establishment falling under it namely "Employer" and "Workman". No third category of employees is used.
6. '.'Employer" is defined in section 2 (c) as under :- `Employer'-- means the owner of an industrial or commercial establish--ment to which this Ordinance for the time being applies.'
7. Whereas workman is defined in section 2 (i) of the said Ordinance as under :- "Workman" means any person employed in any industrial or com--mercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward'."
8. As terms and conditions of service are not provided in Industrial Relations Ordinance, and only remedy for violation of these terms and conditions are provided and the terms and conditions are provided in Ordinance VI of 1968 therefore if a person files a petition under section i5-A of the Industrial Relations Ordinance, then the definition of work--man as given in Ordinance VI of 1968 would be attracted and not definition of workman under any other law. Analysing the scheme of the Ordinance VI of 1968, the learned counsel for the petitioner has submitted that Ordi--nance VI of 1968 consists of two parts the first being the sections counting up to section` 10 and second part being the Standing Orders given in the schedule. Standing Order 12, sub-Order (3), provides remedy under section 25-A of the Industrial Relations Ordinance, and it has been held in PLD 1975 Pesh. 240 that a person before coming for redress under section 25-A of Industrial Relations Ordinance, in respect of terms and conditions of services under West Pakistan Ordinance VI of 1968 must prove that his right is secured under the Ordinance. Reverting back ho the definition of "employer" as given in the Ordinance No. VI the learned counsel for the petitioner has contended that "employer" means owner and includes,-
(i) Manager of the factory; (ii)------------------------------------ (i.e) the person responsible to the "owner" for the supervision and the control of such establishment.
9. PLD 1978 Kar. 536 and PLD 1975- Kar. 342, it has been held that if a workman feels aggrieved in respect- of his terms and conditions of service guaranteed under Standing Orders Ordinance (VI of 1968), then he has to establish himself a workman under Ordinance VI of 1968 and not under Industrial Relations Ordinance.
10. The learned counsel further contends that if a person working in the establishment does not fall within the category of the "employers" as defined in section 2 (c), Ordinance VI of 1968, then the person would automatically fall within the scope of the workman irrespective of the fact whether the persons falls within the scope of the definition of workman given in section 2 (i) of Standing Orders Ordinance, 1968.
11. 1979 SCMR 304 in appeal against the cited authority. In PLD 1977 Lah. 71, Lahore High Court, after discussing the definition of employer and workman in the Standing Orders Ordinance VI of 1968 has held that when the responsibility of the petitioner is not directly to the owner but through a chain of officers then the petitioner does not fall within the definition of the employee but is workman. In the referred authority the petitioner was a Chief Ch; mist of the Mills. Similar view has been maintained in PLD 1976 Kar. 73 where nature of work was held to be the deciding factor under Ordinance VI of 1968. PLD 1975 Kar. 342 is also on the same question (I.E. Salih case). In 1973 PLC 318 an employer was held to be a workman which judgment was upheld in the constitutional petition by the Lahore High Court. PLD 1973 Lah. 549. In a Writ Petition No. 365 of 1977 the Punjab High Court Lahore Tribunal (Sic) has held that the Manager is a workman The same view has been held by the Tribunal in Ghulam Yahaya v. National Bank decided by the Labour Appellate Tribunal, Peshawar Further building up his case the learned counsel has submitted that in the definition of workman the word "labour" was substituted through amendment by word "worker" in order to give a wider scope of definition of workman to include even a person attending to clerical work. This definition was inserted by Act XXI11 of 1973 in Standing Orders Ordinance VI of 1968 which Act replaced the Ordinance LI of 1972, dated 14th Novem--ber, 1972. By virtue of section 11 of Banks Nationalisation Act XIX of 1974, the supervision and control of a Nationalised Bank vests . In the Executive Board, Habib Bank Ltd., was a Public Limited Company registered under the Companies Act, 1913. According to Companies Act, 1913 there was a Board of Directors, to supervise and control the work of the establishment. Later vide Act No. XIX of 1974 nationalisation of banks took place and the Board of Directors under the Companies Act, 1913 was replaced by a Nationalised Bank given in the schedule of the Act by an Executive Board. The learned counsel has contended that the Executive Board used above is in fact "Owner" as contemplated in section 2 (c) (i.e) section 11 of Act XIX (Nationalisation Act of 1974) holds Executive Board as "owner".
12. Respondent bank must prove that an officer of the Bank (------) holding power of attorney is a person directly responsible to the owner i.e., Executive Board for the entire establishment i. e., Habib Bank.
13. The learned counsel for the respondent establishment has contended that even if the petitioner is held to be a workman in view of the arguments and authorities cited by the learned counsel for the petitioner even then the petitioner's case is ill-founded and deserves dismissal on its own merits.
14. He has urged that the petitioner has been properly charge-sheeted and has submitted his reply to the charge-sheet and an enquiry was duly conducted in which the petitioner has pleaded guilty to the charges, therefore, the impugned order is not bad in law and the petitioner had ample opportunity to defend himself properly in a proper enquiry without any prejudice to his defence held against him. Moreover the counsel for the respondent has contended that even if the petitioner is held to be a workman even then the provision of Standing Order 15 would not be applicable to his case and according to the Wage Commission Award he would be governed by the terms and conditions spelt out in the Wage Commission Award and there-- fore if at all any deviation from the procedure provided in the Standing Order 15 has been made it is of no legal consequence firstly because no prejudice has been caused to the petitioner and secondly because the provisions of the Wage Commission Award would be applicable to his case according to which the enquiry has been properly held.
15. The learned counsel for the petitioner while meeting these points has submitted that it has been admitted by the respondent establishment in their evidence that the procedure laid down in Standing Order 15 of the Standing Orders Ordinance, 1968 has, not been applied to the case of the petitioner and therefore the petitioner in defence was prejudiced by non-applicability of the procedure given under the Standing Order 15. The learned counsel has contended that misconduct has been defined in Standing Order 15 and that while no charge-sheet has been served under the said Ordinance therefore the petitioner could not visualise the consequence of the admission he was making in his statement amounting to the proof of the guilty of misconduct against him. He should have known that he was being processed under Standing Order 15 and if such declaration had been made to him then he would have known what sort of defence he had to put in to meet the charges. Being aware of the facts that the respondent establishment was not proceeding under Standing Order 15 against him, therefore he made admission prejudicial to his case under the impression that since he was not . Being proceeded against under Standing Order 15, therefore for the admission he was making, the action taken could not be contemplated by him.
16. To quote an example if a man is told that if he kills another man he would not be guilty of murder and would not be given death sentence, he may admit his guilt but if he is told that if he kills a man he will be guilty of murder and that may entail death sentence, he would not make clear bresh of the offence. This had led to the admission by the petitioner because he did not know that the respondent establishment would revert to the applicability of Standing Order 15 to his case.
17. As regards the next point urged by the learned counsel for the respon--dent establishment that the provision of Standing Order 15 are not applicable to the petitioners case because his case is governed by the Wage Commission Award. The learned counsel for the petitioner has contended that with the said Wage Commission Award list of various categories of servants to which the Wage Commission Award is applicable is annexed and the category of the petitioners service is not included in the said Wage Commission Award, The learned counsel for the respondent has argued that the Standing Orders Ordinance provides that the Wage Commission Award shall fix the terms and conditions of all the categories of workers working in the banks.
18. There is' no doubt that the law has laid down that all the categories of servants shall be included in the Wage Commission Award to which the terms and conditions given in the Award shall be applicable but the list annexed to the Award does not include the category of service of the petitioner and as such the Wage Commission Award would not be applicable to the category of the petitioner's service and the award is defective in law. Moreover the Award is of the year, 1975 and the petitioner, on the basis of legal pronouncement mentioned, above is now included in the workman, therefore for that reason too, the provisions of Standing Order 15 would be applicable to his case. In the circumstances I find force in the contention of the petitioner's prayer and allow the petition to the extent that he shall be re-instated from the date of announcement of this order and if the res--pondent establishment so desire they can institute an enquiry according to the provision of section 15 of the Standing Orders Ordinance. I do not allow back wages to the petitioner at this stage but if in case of fresh enquiry he is found not to be guilty of the misconduct alleged against him, he would be entitled to back wages as well with all the back benefits according to the provision of the law whether applied by the respondent establishment itself or sought through agency of this Court.