' The facts leading to this appeal briefly stated are that the respondent, Qaiyum Shah was employed with the appellants, Muslim Commercial Bank Ltd., as a Guard and was posted at Jamila Street Branch, Karachi. On 31st January, 1982 the Assistant Security Officer paid a visit to this branch and found him missing from duty from 10.55 p.m. To 11.10 p.m. He reported against him and the Vice-President, Zonal Office, charge-sheeted him on 6th February, 1982 for having found him absent from duty on the above-mentioned date and time. He tendered a reply to the charge- sheet explaining that at the time of the visit of the Assistant Security Officer, he was in the latrine as he was suffering from dysentry and had actually heard the voice of the Assistant Security Officer who did not stay even for 5 minutes, but he could not speak. Mr. Aziz Rehamatullah, controller was appointed as Enquiry Officer. He held enquiry, on 24th February, 1982 wherein he record the statement of the respondent Qaiyum Shah and finding him guilty sent such a report against him Qaiyum Shah was issued a second show cause notice, dated 3rd May, 1982 to which also he submitted the same reply. The appellant dismissed the respondent from service, vide order, dated 18th May, 1982. The respondent made an appeal to the competent authority which was not replied.
He then sent a grievance notice, dated 8th June, 1982, to the appellant which also remained un- replied. Thereafter he filed a grievance petition under section 25-A, I. R.
0., 1969, in the Vth Labour Court, Karachi. The learned Labour Court finding the dismissal order unsustainable in law ordered his re-instatement only without granting him back benefits.
Aggrieved by the order, the appellant have come up in this appeal.
2. I have gone through the relevant evidence on the record and have also heard the learned representatives for the parties Mr. Samiullah Khan for the appellant and Mr. S. P. Lodhi for the respondent. On behalf of the appellants, their learned representative has raised two-fold contentions firstly that the respondent is not a workman within the meaning of section 2 (i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 the provisions of which Ordinance are not applicable to the bank employees and, therefore, the grievance petition was not maintainable in law ; and secondly, that in any case an independent enquiry was held and the respondent having admitted his guilt, the order of his dismissal and his consequent removal from service was just and proper-.
3. As regards the first contention, the learned representative for the appellants relied on the decision of this Tribunal, reported as 1981 PLC 546, contending that chowkidar in a bank is not a workman within the meaning of section 2 (1) of the West Pakistan Standing Orders Ordinance. 1968, and, therefore, would not be entitled to prefer grievance petition against the termination of his services. In that respect, it would be sufficient to invite reference to the unreported decision in the Constitutional Petitions Nos, B-139 and 204 of 1981 of the Division Bench of High Court of Sind, Karachi, wherein the learned High Court after dealing with this issue at great length came to the conclusion that a mere fact that a person is employed by a designation of chowkidar or secutiry guard will not exclude him from the definition of workman given in section 2 (i) of the Ordinance.
The learned Court further observed that if a chowkidar or a security guard performs any duty of the nature referred to in the definition, he would be covered by the designation. In absence of such a view having been reversed, it would prevail and in the circumstances in my view, the reliance of the learned representative for the appellants on the above decision of this Tribunal in support of his contention is obviously misconceived. It was further held in the above-mentioned decision of the High Court that if any employer takes on action under the provisions of the Ordinance against his employee, the burden of proof is shifted on him to prove that the employee concerned does not fall within the definition of workmen given in the Ordinance, though charge-sheet was issued, enquiry was held, service was terminated under the provisions of the Ordinance. It has not been disputed that the action against the respondent was taken under the provisions of the Standing Orders Ordinance, 1968, by issuing a charge-sheet and holding an enquiry and thereby terminating his services by an order of dismissal. By this authoritative view taken in this D. B. Decision of our High Court, therefore.In the circumstances of the instant case, the burden of proof would shift to the appellants to prove that he was not a workman within the meaning of section 2 (i) of the Standing Orders Ordinance, 1968. What I find from the evidence available on the record that the respondent in his grievance petition submitted that apart from the duties of a Guard, he was also performing various other miscellaneous duties while working in the branch of the Bank. In his affidavit filed in evidence, he submitted that in the absence of the peon-messenger, he was taking Dak to the Head Office as well as to the Clearance Office. He has further submitted that he was also dustering tables, chairs and almirars and he was also doing the work of taking out the books from the almirahs and placing the same in the racks and was also doing any other work as ordered by the Bank Manager. Such assertion on his part in his sworn affidavit has not been affectively challenged in his cross-examination on behalf of the appellants. He has been questioned as to whether he was doing Chowkidari work alone to which he replied in the affirmative. No other specific question has been put to him with regard to various other duties as stated above though he specifically asserted to have been performing the same. The appellant remained further satisfied with their only assertion in the affidavit in evidence filed by Mr. Aziz Rehmatullah the Enquiry Officer, saying that the Guards Chowkidars in the organization are strictly directed to be watchful to their and are not required to perform any other functions. He admittedly was not working as a Branch Manager where the respondent was employed. He has further admitted in his cross-examination that he was Manager and Controller of the different branch at Plaza Quarters. He has further admitted that he had no concern with the Jameela Street Branch where the respondent was employed as a Guard/Chowkidar. According to him he has given the affidavit in evidence from the record. His cross-examination clearly discloses that he had no personal knowledge, if at all, the respondent was doing any other duties he has enumerated in his affidavit in evidence in Court, since admittedly he had no concern with the branch where the respondent was employed. Admittedly he had given the affidavit in evidence from the record, obviously not from his personal knowledge.
Beyond this work of Mr. Aziz Rehmatullah on behalf of the appellants, there is no other evidence from the appellant side in support of their version to the effect that the respondent was not doing any other duties in addition to Guard duties in the Branch of the Bank where he was employed. In view of the assertion of the respondent in his grievance petition and his sworn testimony in his affidavit in evidence, which has not been subsequently challenged, in my view the appellants have failed to discharge their burden of proof to the effect that the respondent was not a workman within the meaning of section 2 (i) of the Standing Orders Ordinance, 1968, which burden heavily lay on them in the circumstances of the present case. In this context on behalf of the appellants, the applicability of the provisions of the West Pakistan Standing Orders Ordinance, 1968, has also been challenged, inasmuch as it has been contended that the nationalized banks having been established under the authority of the Federal and the Provincial Governments are excluded from such applicability, in view of section 1, The section (4) of Standing Orders. Reliance in that respect has been placed on the decision of the Labour Appellate Tribunal Punjab, reported as 1983 PLC 206 contending that the employees of the nationalized banks would be governed by the rules framed by the Wage Commission in the Wage Commission Award 1974-75. This view was dissented from the view taken by this Tribunal in the decision reported as 1980 PLC 1118,/ wherein, it was held that the Disciplinary Rules framed by Wage Commission for Banks and Financial Institutions in its report 1974-75, cannot be construed as Statutory Rules as referred to in a second condition of the 1st proviso to section 1, subsection (4) of the Standing Orders Ordinance, 1968, and, therefore, the bank employee was entitled to seek remedy before the Labour Court against his termination of service. The view was confirmed by this Tribunal in the case National Bank of Pakistan Karachi v. Idrees Ahmed Raja . It was held therein that Disciplinary and Efficiency Rules for Banks and Financial Institutions 1975 framed by the Wage Commission are not Statutory Rules but only an award of Commission and that the employees of the banks are not ousted from the ambit of Ordinance and jurisdiction of the Labour Courts. This vie would be further confirmed by simple reference to the terms of reference to the Wage Commission and the recommendations the Wage Commission was obliged to make in its Award. Accordingly, the view adopted by this Tribunal, time and again has enough substance and the reliance placed by the learned representative for the appellants on the above- C mentioned decision of the Labour Appellate Tribunal, Punjab would be of no help to the case of the appellants. The respondent's case, therefore, would not be excluded from the applicability of the provisions of the Standing Orders Ordinance, 1968. For all these reasons, I do not find any substance in the contention raised on behalf of the appellants that the grievance petition filed by the respondent is not maintainable in law.
4. 1 would then come to the second contention raised on behalf of the appellants to the effect that an independent enquiry was held and, therefore, the order of dismissal of the respondent and his consequent termination of service was just and proper. On the admitted facts of the ease of the appellants itself, the Enquiry Officer recorded no statements of the prosecution witnesses. He did not record the statement even of the Assistant Security Officer who allegedly detected the respondent absent 'rom duty. During the course of the arguments, it was asserted by the earned representative appearing on behalf of the appellants that the statement of Bank Manager was recorded during the course of the enquiry, )out I find that even that assertion was incorrect. It is1 more or less admitted that in the enquiry only the statement of the respondent was' recorded.
Confronted with this situation, the learned representative on behalf of the appellants contended that recording of statements for the prosecution was unnecessary in view of the admission of the respondent to the effect that he was absent from duty.
' I do not find any such admission either in his statement before the Enquiry Officer or in his reply statement to the grievance petition or anywhere else. He has not admitted his guilt at all. On the contrary, he has explained that at the time when the Assistant Security Officer came he was inside the Bank's premises in the latrine as he was suffering from stomach. Trouble and that he had heard the voice of the Security Officer but could not speak and that the Security Officer did not wait even for 5 minutes. This is no admission of guilt as contended by the learned representative appearing on behalf of the appellants. This is offering of an explanation and it was the duty of the Enquiry Officer to find by fair and impartial enquiry as to whether it was correct and reasonable or nat. The Enquiry Officer appears to have made no such enquiry as contemplated by subsection (4) of section 15 of the Standing Orders Ordinance. It would, therefore, be clear that no fair and independent enquiry which resulted in the dismissal order against the respondent and his consequent termination of service, was held. This contention raised on behalf of the appellants, accordingly, has no force as well.
5. In the result, the appeal fails and is dismissed. 1983 PI C 468