' These five appeals Nos, SUK/122 to 125 and 127 of 1983, arise out of a common order, dated 7th March, 1983 whereby the learned Sind Labour Court No, VII, Sukkur, dismissed the grievance applications filed by the appellants under section 25-A, I.R.O. 1969, against the orders of their dismissal from service. They are being disposed of by this common order as they involve common facts and law.
2. The facts leading upto the appeals briefly stated are that the appellants were employees of the respondents. The appellant Ghulam Mustafa Larik was appointed as a Junior Clerk in the Bank on 26th February, 1965 and was promoted as Senior Clerk with effect from 1st March, 1971 as Supervisor from 25th October, 1975 and as an Assistant Accountant from 1st May, 1975. The appellant Riasatullah Khan was appointed as Junior Clerk in the Bank on 22nd August, 1964 and was promoted as Senior Clerk in the year 1972, as Supervisor in the year 1974, and as an Assistant Accountant on 1st March, 1976. Appellant Ghulam Sarwar was appointed in the Bank as Money Tester on 10th September, 1974 and was finally promoted as Senior Head Cashier and posted at Shikarpur National Bank Branch. The appellant Ghulam Qadir was appointed as Money Tester on 12th June, 1957 and was finally promoted as Assistant Accountant, on 17th November, 1976. The appellant Shaukat Ali Arain was appointed as Junior Clerk on 1st May, 1954 and was promoted as Senior Clerk in the year 1971, as Supervisor in 1974, and as Assistant Accountant on 1st May, 1975.
While posted in National Bank Branch at Shikarpur they are alleged to have conspired and participated in the operation of fictitious account in the name of one Nizamuddin by Muhammad Mehrab, the Manager of Shikarpur Branch and are alleged to have committed several irregularities and illegalities. They were served with show-cause notices and were placed under suspension.
They challenged the suspension orders in applications under section 25-A, I.R.O. Before the learned Labour Court and they were allowed. The appeals were filed against those orders in this Tribunal but they were dismissed, resulting in their re-instatement. Thereafter they were served with notices of imposition of penalties and the charge-sheets and the respondents finding the misconduct allegedly committed by them manifestly clear, without holding an enquiry served them with orders of dismissal, dated 18th October, 1981. The appellants preferred departmental appeals which were also rejected. They then served grievance notices on the respondents and their grievances having not been redressed they filed applications under section 25-A,1969, before the learned Labour Court.
3. The respondents in their reply statements mainly contended that the applications under section 25-A, I.R.O. Were not legally maintainable for the reasons ; firstly, that the National Bank of Pakistan was established and carried on under the authority of the Federal Government and had its Statutory Rules of Service Conduct and Discipline, and secondly ; that the appellants were not workmen within the meaning of section 2 (1) of the Standing Orders Ordinance, 1968, and therefore, were not governed by the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. They further contended that since the misconduct allegedly committed by the appellants was manifestly clear in the charges in the charge-sheet served on them, it was not necessary to hold a domestic enquiry.
4. The learned Labour Court recorded the evidence adduced by the parties, the appellant filed their respective affidavits in evidence, whereas the respondent establishment examined Ali Ahmed Khan, Manager Administration in support of their respective contentions. The learned Labour Court examined Syed hassan Mehdi, Vice-President of the National Bank of Pakistan at Sukkur one of the respondents as a Court witness, and thereafter dismissed the applications as not maintainable holding that the appellants were not workmen within the meaning of section 2(i) of the Standing Orders Ordinance, 1968.
5. I have perused the evidence available on the record and have also heard the learned counsel appearing on behalf of the parties. Mr. M. L, Shahani for the appellants and Mr. Mamoon Qazi for the respondents. The learned counsel for the appellants has contended ; firstly, that the respondents establishment had no Statutory Rules of Service (Conduct and Discipline) of its own applicable to the workmen employed therein, though it may have been established and may be carrying on its business by or under the authority of the Federal Government and secondly, that the appellants of whom, Ghulam Mustafa Larik, Riasatullah Khan, Ghulam Qadir Baloch and Shaukat Ali Arain were working as Assistant Accountants and the appellant Ghulam Sarwar as Head Cashier at the relevant time when the alleged misconduct was committed in the National Bank Branch, Shikarpur, and since the nature of duties they were performing therein, were predominantly clerical and manual they would be covered by the definition of `workman' as defined under section 2(1) of the West Pakistan Standing Orders Ordinance, 1968, and, therefore, their applications under section 25- A, I.R.O. 1969, would be legally maintainable. Mr. Mamoon Qazi, the learned counsel appearing on behalf of the respondents constested both the contentions and in addition also raised the pleas that since the applications were filed against the officers of the Bank and not against the Bank itself or the natural persons, it would not be legally maintainable on that ground as well.
6. As regards the first contention to the effect that the applications under section 25-A, I.R.O., 1969, were not maintainable before the learned Labour Court for the reason that the respondents establishment had no Statutory Rules of Service (Conduct and Discipline) applicable to the workmen employed therein, the learned Labour Court relying on the decisions of this Tribunal that there were no such Statutory Rules of Service (Conduct and Discipline) governing the services of the workmen employed in the respondents' Bank, rightly decided that the applications would legally lie in the learned Labour Court. Mr. Mamoon Qazi, the learned counsel for the respondents contested the issue half-heartedly, but conceded ultimately that the Rules as embodied in the Wage Commission Award would not constitute as Statutory Rules of Service (Conduct and Discipline) applicable to the workmen employed therein and, therefore, the appellants' applications would be legally maintainable as the appellants' service would be governed by the Standing Orders Ordinance. Reference is also invited to the latest decision of this Tribunal in Appeal No, KAR-153 of 1983, in the case of Messrs Muslim Commercial Bank Ltd. v. Qayum Shah, decided on 17th August, 1983 wherein also the same issue was dealt with and it was held that the Disciplinary Rules framed by the Wage Commission for Banks and Financial Institutions cannot be construed as Statutory Rules as referred to in a second condition to the first proviso to section 1, subsection (4) of the Standing Orders Ordinance, 1968, and, therefore, the Bank employees were entitled to seek remedy before the Labour Court against the termination of their services. I would, therefore, hold that the case of present appellants would be governed by the Standing Orders and the contention raised on behalf of the respondents in that respect has no force.
7. As regards the second contention as to whether the appellants were workmen or not within the meaning of section 2(i) of the Standing Orders Ordinance, 1968, the learned counsel for the respondents, Mr. Mamoon Qazi relying on the decision of this Tribunal in the case of Messrs Jhonson and Jhonson (Pak.) Ltd. v. Zubair Ahmed and another has contended that the burden of proof would lie on the appellants to show that they were workmen. It was held in the above decision that it would initially be for a person to show that he is a 'workman' for the purposes of the Standing Orders Ordinance, though if he established that he is an employee of a commercial or industrial establishment, the burden would be a light one. In the instant case, there is no dispute that the appellants were the employees of the respondents' establishment at the relevant time. It was held in the case of Mufti Mushtaq Ahmed v. The Federation of Pakistan that to determine as to whether the employee was a workman or not, the nature of the duties on which he was employed at the time to which the allegations against him relate had to be looked into. It would thus be clear that the nature of the duties to determine as to whether the appellants were workmen or not were to be looked into at the time the allegations against them related and the alleged misconduct committed and at no other time. In the case of all the present appellants, there is no dispute at all that the alleged misconduct was committed in respect of the period they served in the Shikarpur Branch of the respondents' establishment, where they are alleged to have participated in the operation of the fictitious account in the name of Nizamuddin operated by Muhammad Mehrab Ojhan, the then Manager of the Bank at Shikarpur. There is also no dispute that at that time the appellants, except Ghulam Sarwar, were working as Assistant Accountants at different times, whereas the appellants Ghulam Sarwar was employed and was working as a Senior Head Cashier. It was held in the case of Chairman. Brooke Bond (Pak.) Ltd. v. General Secretary, Union Karkunane Brooke Bond (Pak.) Ltd. that the true test to determine as to' whether an employee was a workman or not within the meaning of section 2(i) of Standing Orders Ordinance, is to look into the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case. In the case of Don Muhammad Cotton Mills, Karachi v. Muhammad Abdul Ghani and another the Chief Accountant of the Mills was held to be a workman for the same reasons. Keeping in view these principles, it would thus be clear that the true test to determine as to whether an employee is a workman or not is the nature of duties, he was performing at the relevant time the alleged misconduct was committed were predominantly clerical or manual or not. In the cases involved in the present appeals of the appellants, the evidence that has been adduced by the parties as well as that of the Court witness would make it manifestly clear that the nature of the duties the appellants were performing at the1 2 3 4 relevant time predominently were clerical. Reference to the affidavits filed in evidence by the appellants in their individual cases would clearly support that view. In the case of Ghulam Mustafa Larik in paragraph 3 of his affidavit in evidence it has been clearly stated by him that the nature of his duties had all-along been clerical, as was at the relevant time doing the job of preparation of voucher, entry ledgers, calculations and other similar works and that he was a workman within the meaning of the Standing Orders. In the case of Riasatuallah Khan, he has clearly deposed in para. 5 of his affidavit in evidence that he had been continuously working as a clerk and doing duties purely of clerical nature. He has further deposed that he used to do mostly writing-work i,e, posting of cheques in ledger, preparations of vouchers and bills according to the instructions of the parties, writing of day book, maintenance of files, preparation of periodical returns of bank and other miscellaneous clerical work. The appellant Ghulam Sarwar in his affidavit in evidence has stated that at the relevant time, he was working as Head Cashier in the Shikarpur Branch of the respondent establishment and was incharge of Cash Department. His deposition obviously creates an impression that while dealing with the cash he was mainly doing the job clerical and manual as while counting the cash he was doing manual work whereas while making the entries etc. In that respect, his job was clerical. Ghulam Qadir Baloch in his affidavit in evidence has also stated in very clear terms that he was performing duties clerical and manual which included the collection of returns from various branches and after compiling the same used to send it to the Controlling Officer. The appellant, Shaukat Ali Arain in paragraph 5 of his affidavit in evidence has deposed that at the relevant time, the nature of his duties was purely clerical as he used to make postings in ledger, preparation of drafts and letters and do other clerica jobs. He has further stated that he was neither empowered to sign an letter nor he had any authority to take disciplinary action against any em ployee. He had neither the power to appoint anybody in the service o the bank, nor did he have power-of-attorney from the bank. What I find from the evidence on the record that the claim of the appellants in that respect with regard to the nature of the duties they were performing at the relevant time has not been challenged in their cross-examination. Beyond the assertion to the effect that the nature of their duties was supervisory and managerial, nothing has been suggested to them or brought in the evidence to show that all what has been stated by them above would amount to their performing duties of supervisory and managerial in nature and not clerical. Since the evidence adduced by the appellants in that respect has not been substantially challenged in their cross-examination, their assertion to the effect that they were doing mainly a job of a clerical nature would be deemed to have been admitted. What they have deposed as stated above so far as the nature of their duties are concerned, would show nothing beyond that their immediate, direct and substantial job was clerical and not supervisory or managerial. Their grievance applications and grievance notices except that of Ghulam Sarwar Head Cashier clearly disclose that the nature of the duties they were performing were mainly clerical. Annexure 'A' accompanying their notices of penalty including even that of appellant Ghulam Sarwar, served on them would clearly disclose that they were predominently performing duties of clerical nature.
Annexure 'A' accompanying appellant Ghulam Sarwar's notice of penalty served on him would clearly show an admission on the part of the respondent that he was preparing cheques, vouchers, as well as posting them and also issuing token for payment of cheques which duties are of clerical nature. Similar is the version in Annexure 'A' accompanying notices of penalty served on the other appellants. The version of the appellants, therefore, received independent corroboration from this documentary evidence available on the record as well. On the other hand the evidence of Ahmed Ali Khan, Manager Administration and Syed Hassan Mehdi, Vice-President of the Bank examined as a Court witness would show nothing beyond a solitary assertion that the appellants were Grade-III Officers doing the job of supervisory and managerial in nature and not clerical. They seem to rely on the notices of imposition of penalties served on the appellants wherein they have been addressed as Grade-III Officers. Throughout the evidence on the record except this document wherein they have been addressed as Grade-III Officers I find nothing substantial in support of that assertion. Assuming that they were designated as Grade-III Officers, they would not be assumed doing a supervisory and managerial job in absence of positive evidence in that respect on the record. The evidence of Ahmed Ali Khan and Syed Hassan Mehdi fails to disclose that appellants at the relevant time were performing duties managerial and supervisory in nature even incidentally.
The learned Labour Court also relying on the sole assertion in that respect has assumed that their duties were managerial and supervisory in nature. The decisions of this Tribunal relied on by the learned Labour Court are clearly distinguish able as in those decisions also this Tribunal has clearly held that the nature of the duties substantially performed would determine as to whether the employee was a workman or not and that his designation as an officer or the quantum of the salary he was drawing was immaterial. It would, therefore, be clear that a Bank employee merely designated as Grades III, II or I Officer, irrespective of the nature of duties he was performing would not be considered an Officer doing managerial and supervisory job and would, therefore, not be a workman.
8. In a number of cases, Bank employees designated as Grades III, II and I and even Manager of the branch of the Bank were held to be workmen for the reason that the substantial, immediate and direct nature of the duties they were performing were either clerical or manual. Reference is invited in that respect to the cases Allied Bank Ltd. v. Humayun Khan and others , United Bank Ltd. v. Lqbal Raza , Pakistan Steel Fabricating Company' Ltd. v. Ziauddin , Manazirul Haqe v. Muslim Commercial Bank Ltd. and United Bank Ltd., Karachi v. Muhammad Ali . It would thus be clear that mere designation as an Officer would not determine the status of an employee as a workman. It would be the nature of the duties he would be mainly performing which would be material factor to determine such a status. I would, therefore, find from the evidence available on the record that in view of the nature of duties appellants were predominently performing they are clearly workmen within the meaning of section 2 (i) of the Standing Orders Ordinance, 1969, and the contention of the learned counsel appearing on behalf of the respondents even in that respect has no substance.
9. I would now revert to the contention raised on behalf of the respondents' learned counsel, Mr. Mamoon Qazi to the effect that since the applications under section 25-A, I.R.O. Were not brought against the National Bank of Pakistan which is the employer and even against natural persons and have been filed against its officers, the applications would not be legally maintainable. What I find that section 25-A, I.R.O. Contemplates the applications to be filed against the employer and the President of the National Bank of Pakistan who is the Chief Executive of the Bank and is authorised to preside at the meetings of the Executive Board and direct, manage and control the affairs of the bank within the meaning of section 11 (3) of the Banks Nationalization Act, 1974, would clearly mean to be the employer within the meaning of section 2 (c) (iii) of the West Pakistan Standing Orders Ordinance, 1968 and no exception possibly can legally be taken against filing of the applications against him and the other officers who are the Vice-Presidents of the Bank. Moreover, this contention appears to have been raised for the first time at the belated stage of these appeals.
The applications were contested throughout before the learned Labour Court without raising such an issue. It has also not been shown as to whether a prejudice has at all been caused to the case of the respondents' establishment on account of the applications having been filed in that form.
Accordingly, I do not find any force in this contention raised on behalf of the respondents as well.
10. The result is that the impugned order passed by the learned Labour Court is set aside and the appeals filed by the five appellants are allowed. Their cases are sent back to the learned Labour Court for decision on merits as far as possible within a period of three months. 1980 PLC 6225 6 7 8 9 1 PLD 1981 SC 172 PLD 1969 Lah. 717 PLD 1975 Kar. 342 1983 PLC 498 1983 PLC 345 1982 PLC 132 1982 PLC 903 1982 PLC 1050