' This appeal arises from the decision, dated 4th November, 1979 passed by the learned Presiding Officer, Punjab Labour Court No, I, Lahore, whereby the grievance petition of the respondent was accepted and be was directed to be re-instated in service with back benefits.
2. The facts are that the respon dent was an officer in the appellant Bank. He was involved in three embezzlement cases and he was released on bail. The Special Judge while allowing bail issued a direction to the Bank that the respondent should not be allowed to handle the record of the bank.
The bank authorities on basis of this order terminated the services of the respondent on 12th March, 1976 on the ground that his services were no longer required. On 29th May, 1976 the respondent went in departmental appeal, which was rejected on 10th June, 1976 and the respondent was informed vide Exh. P-10. He gave grievance notice Exh. P-9 on 16th June, 1976 and its reply is Exh. P- 11, dated 21st June, 1976. The grievance petition was made on 28th June, 1976. The delay in making the grievance petition was condoned but holding that the respondent was not a workman, his petition was dismissed on 16th August, 1977. The appeal was accepted by this Tribunal on 4th June, 1978 and the respondent was ordered to be re-instated. The appellant went in Writ Petition No, 5529 of 1978 which was accepted on 2nd April, 1979 and both the orders i. e. Of the Labour Court and this Tribunal were set aside and the cases remanded to the lower Court for fresh decision. Thereafter, the Labour Court passed the impugned decision, which has been challenged in this appeal.
3. It has been argued by the learned counsel for the appellant that the grievance petition is time- barred, although the learned lower Court has not recorded any finding on the point. The ground for condonation given in the application under section 5 of the Limitation Act was that before giving the grievance notice, a departmental appeal was made, making of which was necessary. The learned counsel for the appellant has said that since there is no provision of appeal, therefore, act of filing of departmental appeal by the respondent did not extend the time. I cannot agree with him. The banks are governed by the Wage Commission Award and in paragraph 258 (11) of the First Wage Commission Award, there is a provision of appeal. In cases where there is provision of appeal and. Actually the appeal is preferred, the cause of grievance accrues on the rejection of appeal. In the present case, the appeal was rejected on 10th June, 1976 and the grievance notice was served on 16th June, 1976 and the petition was made on 21st June, 1976, therefore, the petition was within time. The objection is overruled.
4. The other point raised by the learned counsel is that the petition under section 25-A was not competent before the Labour Court as the respondent stood terminated. He has cited 1979 PLC 543 on the point. No" doubt in the authority cited by the learned counsel it has been observed that Standing Orders Ordinance, 1968 is not applicable to the nationalised banks and, therefore, application under section 25-A is not maintainable, but no reason has been given. This is true that Standing Orders Ordinance, 1968 is not applicable to the nationalised banks, but there appears to be no reason why application under section 25-A is not maintainable, if any right has been guaranteed by the Wage Commission Award. If any right has been guaranteed by any law, for its infringement remedy can be sought by making an application under section 25-A. Wage Commission Award has taken the place of Standing Orders Ordinance, 1968, therefore, in cases where the Wage Commission Award has guaranteed any right, for its infringement remedy can be sought under section 25-A. If some reasons had been given in the authority, it could be considered whether it was applicable or not, but since no reason has been given I cannot agree with the observations made in this authority.
5. The other point raised by the learned counsel is that the respondent was not a workman, inasmuch as the power of attorney has been executed in his favour by the bank and, therefore, he is covered by the definition of employer as defined in section 2 (viii) of the Industrial Relations Ordinance, 1969. The definition goes as under :- "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workman in the establishment under a contract of employment and includes-
(c) In relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof."
' This is true that an agent comes within the definition of employer, but we have to see whether the respondent had become an agent of the bank. The power of attorney is Exh. D-1, but mere execution of power-of-attorney is not sufficient to make such an attorney as an agent, unless there is evidence that the powers given to him under the power of attorney have actually been exercised by such an attorney. Always it is the duties actually performed which are to be seen to find out whether the person concerned comes within the definition of employer or workman. Every officer of the bank as soon as he is appointed as such is given a power of attorney, therefore, it is necessary to show that the powers given to him under the power of attorney were actually exercised by him.
The respondent gave his duties in his oral statement, stating that his duties were to enter the accounts into the registers and that he did not do any other work. He further stated that he was never appointed as a Manager, that he had no authority to transfer any person and had no power of hire and fire. He also stated that he had no power to sanction leave and had no supervisory duties. However, in cross-examination he admitted that he was appointed later on as second officer in Azam Market and there his duty was to act as Manager when the Manager was absent.
He admitted that he was attorney from the Management and was working as agent of the bank.
The respondent has not said that he never performed the duties given in the power-of-attorney but rather on the contrary he stated that he had been working as agent of the bank, meaning that he had been performing all those duties which are mentioned in the power-of-attorney Exh. D-1. He was thus the agent of the bank and since an agent is included in the definition of employer, the respondent was not a workman. The definition of workman given in section 2 (xxviii) excludes an employer. It read as under:- "Worker" and "workman" means any person not falling within the definition of employee... ...... ..."
5. So far as the duties are concerned, the respondent stated only this much that his duty was to enter the accounts in the registers and that he did not do any other work, which means that besides acting as an agent, he had been entering the accounts in the registers and had no other clerical duties to perform. The duties given in the power of attorney are numerous, whereas the other work which the respondent was, according to his statement, doing was only to enter the accounts in the registers. Having no power of hire and fire has no adverse affect upon his powers as an agent. Likewise, if he was not performing any supervisory duties, it is immaterial since admittedly he was acting as an agent and as an agent is covered by the definition of employer. It is thus clear that his main duties were those which are mentioned in the power of attorney which he had been performing as an agent and the duty of entering the accounts in the registers was scanty and of casual nature. So, he was covered by the definition of employer and was not a workman. If the respondent had stated that he had been performing many other clerical duties and that his duties as an agent were only of casual nature, it could have been said that even though power of-attorney had been executed in his favour, yet he was a workman. No doubt, the High Court in writ petition set aside the decisions of the Labour Court as well as this Tribunal on this point but I cannot go beyond the material which had been brought on the record. I have to consider only those duties which are enumerated in the power of attorney and the ones deposed by the respondent. I, therefore, hold that the respondent being an agent was ousted from the definition of workman. The learned lower Court has expressed the opinion that some of the duties given in the power of attorney show that the respondent was a non-workman, whereas most of the duties assigned to him were clerical in nature. This is, however, wrong. A perusal of the power of attorney shows that all the functions for the performance of which he was authorised are managerial and none of them was clerical or of routines nature. For discharging the duties enumerated in the power of attorney the respondent had to apply his mind and brain. Without that he could not perform those duties properly. His duties are given in paragraphs 1 to 12 of the power of attorney. They need not be recapitulated in this judgment. Para. 1 deals with the opening and operation of money, account or accounts in the name of the bank. It also authorises to deposit money, borrow it or obtain other facilities with or without security from other banks, firm, person or company. Para. 2 empowers the respondent to draw, accept, execute, endorse, discount, re- discount, retire and negotiate bills, hundis, drafts, cheques, warrants, promissory notes and other negotiable instruments and to certify for or on behalf of or in the name of the bank that the proceeds of any cheques, drafts, telegraphic transfers, dividends warrants, paying slips, interest warrants and vouchers and other negotiable instruments have been or will be credited to the account with the bank, specified in the certificate and to endorse bills of exchange and hundis etc. Para. 3 deals with buying, selling, hypothecating, pledging, mortgaging, endorsing and transferring government securities, Municipal, Port Trust and Improvement Trust Bonds and Shares of Joint Stock Companies and all other securities and executing and countersigning Letters of Guarantee and ether indemnities. Para. 4 deals with receiving deposits, signing receipts and giving effectual discharge in the name of the Bank. Para. 5 authorises the respondent to receive and hold in safe custody any kind of securities or other movable property whatsoever. Para. 6 empowers the respondent to recover, take possession of and manage all lands, houses, buildings and other property mortgaged to or otherwise belonging to the bank and to let or lease or otherwise manage the same and to make sale and dispose of all the above-mentioned properties, goods, merchandise and property of every description whether belonging to the bank absolutely or as security. Para. 7 authorises him to purchase or take on lease any lands, houses or buildings for the purpose of offices or premises suitable for carrying on the business of the bank at any place and to build, alter and furnish any offices, houses and premises. Para. 8 deals with assigning or reassigning policies of insurance standing in the name of the bank or in which the bank is interested in any way.
7. It is clear from the survey of the above-mentioned powers assigned by the bank to the respondent that none of the duties assigned to him are of routine nature or clerical. In the same manner, the duties enumerated in the remaining paragraphs 9 to 12 are not of routine nature. G It is thus apparent that the main duties of the respondent were not clerical or manual. They were more managerial. So, by becoming agent, he came within the definition of employer and thus stood ousted from the definition of workman given in the Industrial Relations Ordinance, 1969. The learned counsel for the respondent has cited 1980 PLC 106, PLD 1973 Lah. 594, PLD 1979 Lah. 415, 1975 PLC 211 and 1979 PLC 156. So far as the first mentioned authority is concerned, it is not helpful, inasmuch as no power-of-attorney had been executed in favour of the employee concerned.
According to the evidence, he was found to be performing manual and clerical duties with no power to hire and fire. The ruling is, therefore, distinguishable. PLD 1973 Lab. 594 is also not applicable, because the definition given in the Standing Orders Ordinance, 1968 was involved in the said ruling, whereas we are concerned in the present case with the definition of workman given in the Industrial Relations Ordinance, 1969. Needless to say that Standing Orders Ordinance, 1968 is not applicable to the banks. It has been observed in PLC 1979 Lab. 415 "It is well-established that in order to determine the status of an employee, his main duties and those which are either incidental to main duties or those which are of minor or insignificance importance are to be taken into consideration. Reference may again be made to the Supreme Court judgment in Brooke Bond's case and other cases cited above."
' This ruling is not helpful to the respondent. The survey of the duties assigned to the respondent by the power of attorney clearly shows that they are the main duties and they are not such so as to bring the respondent within the definition of workman. It has been further observed in the said ruling :- "Therefore, any clerical work that the respondent may be doing must be just incidental to the main work of employing, tact, initiative and drive to recover crores of rupees without losing the business and goodwill. I have, therefore, no doubt that the respondent as he was then placed in the petitioner's establishment could not even for a moment be considered to be doing mainly a manual, clerical, skilled of unskilled, job. He was, therefore, not a workman."
These observations also go against the respondent. The duties enumerated in the power of attorney are such that for their performance and fulfilment the respondent had to apply his mind and brain and that they were not, as mentioned above, of routine nature. I, therefore, hold that the respondent was covered by the definition of employer and was not a workman and thus the learned Labour Court had no jurisdiction.
8. I, accordingly, accept the appeal and setting aside the impugned decision of the learned lower Court, dismiss the grievance petition of the respondent. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.