' This is an application under section 25-A of I.R.O., 1969 for setting aside the order of termination and for awarding benefits, The applicant was recruited as a Clerk in the United Bank Limited, Moti Jheel Branch, Dacca, East Pakistan. He was repatriated to Karachi on 16th January, 1973 and was promoted as Officer Grade-III on 1st January, 1978, The applicant claimed that though he was promoted to Grade-HI, his duties continued to be of clerical nature, as enumerated in para. 3 of the application. On 19th February, 1981 he was served with a charge-sheet Annexure 'A' to the application which read as under : "It has been observed that during your posting in Foreign Exchange Department, Talpur Road Branch, you have committed irregularities of serious nature which amount to breach of trust and are likely to cause financial loss to the bank.
' You are, therefore, called upon to submit your explanation within 48 hours from receipt hereof on the following charges levelled against you and also explain why disciplinary action should not be taken against you
(I) In the L/C Proposal for Rs, 350,000 for the import of Ethionomide on behalf of Messrs Warrior Bros., you have fabricated figures in respect of past import performance of the guarantors, Messrs Aebco Traders and over-estimated credit worthiness of the importers and guarantors.
(2) You did not record L1C liabilities and margin in party-wise L/C liability Register from February, 1980 onwards and as such the L/C Liability and margin remained unbalanced for about eight months.
(3) Despite knowing that unauthorised L/Cs were being established at the branch in various cases, requirements of S.B.P. Marginal restrictions were also not being fulfilled, you prepared and signed the relative vouchers of L/C liabilities and margin and did not inform ZO/HO of the anomalies taking place at the branch. This shows an act of concealment of facts from the bank on your part.
(Sd.)
Vice-President ' The applicant submitted his explanation and pleaded innocence. An Enquiry Officer was appointed and a domestic enquiry. Was held. His services were terminated by an order, Annexure- D, dated 11th April, 1982. The applicant submitted a review petition Annexure-E to the application dated 12th May, 1982. On rejection of the review petition he sent a grievance notice under the I,R.O., Annexure F to the application, dated 2 nd April, 1983, Finally he filed the present application on 22nd May, 198.3.
2. The respondents challenged the maintainability of the application of the main ground that the applicant was not a workman and was an Officer of Grade-II1 and was governed by rules governing Officers of the bank. It was insisted that a regular enquiry was conducted by an Enquiry Officer who gave a finding of guilty on the basis of which the impugned order 9f termination was passed on 11th April, 1982.
3. On the pleadings of the parties the following issues were framed :-
(1) Whether the applicant is a workman as per provisions of Labour laws. If not what is effect on the petition of the applicant ?
(2) Whether application is not maintainable at law ?
(3) Whether no proper enquiry was held against the petitioner ?
(4) Whether the termination of the applicant was illegal and improper ?
(5) Whether the applicant is entitled to the relief claimed for ?
(6) What should the order be ?
4. The applicant examined himself, whereas the respondents examined the Manager of the Bank and the Enquiry Officer.
5. My learned predecessor after hearing both the parties dismissed the application on the ground that the application is time-barred.
6. The applicant therefore filed an appeal before the Hon'ble Sind Labour Appellate Tribunal. The Sind Appellate Tribunal after hearing both the parties passed the order whereby this Court was directed to record further evidence on issue No, 1 and give a finding whether the applicant is a workman. The Appellate Tribunal also directed to decide rest of the issues on merits.
7. The applicant submitted further affidavit-in-evidence and he was cross-examined by the counsel of the respondents-the repondents did not produce any further evidence except that what was produced by them in the earlier round of litigation.
8. I have heard Mr. All Amjad, the learned counsel for the applicant and perused the written arguments which were filed on behalf of the respondents on the earlier occasion.
9. I propose to decide this case, issue-wise. Issue No, 1 : Whether the applicant is workman as per provisions of Labour Laws and under Standing Orders Ordinance in particular. If not what is the effect on the petition of the applicant ?
' The applicant enumerated the nature of his duties in para. 3 of his application and has re- affirmed the same in his affidavit-in-evidence. The applicant also produced the documentary evidence regarding his nature of duties vide Exh. 3/A and explained the same in detail in his further evidence in affidavit. The case of the applicant has not been denied controverted or rebutted by the respondents with regard to para. 3 of the application about the nature of his duties as is found in Exh. 3/A, Looking to the duty list of the applicant it appears that the work entrusted to the applicant is to prepare vouchers, making of fortnightly and monthly statements, posting of margins, balancing the L/C margins, preparation of statement monthly State Bank of Pakistan returns, submission of bills of entry, calculation of interest vouchers. On the face of these clerical duties which can be called as skilled-clerical.
The applicant also stated on oath to have been doing all these responsibilities which involved some methematical calculation of converting to the current exchange rate of Pakistani Currency into Foreign Currency and vice versa, would not take away from the nature of duties being purely clerical in nature. According to the applicant, he has specifically stated that he has no power of Attorney to Act on behalf of the Bank according to para. 15 of the affidavit.
The respondents have contended that his work was of "responsible" nature and his failure to do work correctly involved the. Bank into huge losses. Every duty whether clerical, manual, skilled is a par responsible duty, the failure to perform the same may involve the employer in huge losses. In the instant case the perusal of evidence oral as well as documentary, clearly shows the nature of duties of the applicant. The burden to establish was upon the applicant and he has discharged the burden initially. Now if the contention of the applicant with regard to the nature of his duties is incorrect according to law it the duty of the respondents to rebut and challenge it in cross- examination or produce documents in their possession to show that the applicant was not doing clerical work and was either supervising the work of other or was responsible for the Management and control of the Branch or even of any section of the branch. There is no iota of evidence contrary to what the applicant stated about his duties. In the Reply Statement respondents have not denied that the applicant was carrying out the duties enumerated by him in para.
3. The perusal of para. 3 of the affidavit-in-evidence clearly shows that the applicant stated that at the relevant time there was no other workman/clerk to carry out the clerical duty in the department which was being performed by the applicant. It was suggested to the applicant in the cross-examination that he was not covered by the Banking Wage Commission Award but by the Pay Commission. The Pay Commission report was not brought on record. It has been held in Habib Bank Limited v. Pervaiz Ahmad that "In a banking industry, the status of an employee as to whether he is a worker or non-worker, changes with a change on his posting." Reliance is also placed on 1982 PLC 903, 1983 PLC 498 in which the employee was designated as Grade-HI Officer but was held to be workman by virtue of the nature of his duties.
In view of these discussions I have arrived at the conclusion that the applicant is a workman as per provisions of labour laws. Issue No, 1 is replied to the fact that the applicant is a workman.
' Issue No, 2 Whether application is not maintainable in law ?
' In view of my discussion on issue No, 1 I have held that the applicant is a workman and therefore Labour Court is competent to determine the' controversy between the Employer and the employee.
In the present case the applicant has given grievance notice as required by law. The applicant F approached this Court under section 25-A of the I.R.O., 1969. This application is therefore maintainable. Issue stands decided as above.
' Issue No, 3 : Whether no proper enquiry was held against the applicant/petitioner ?
' Mr. Ali Amjad counsel for the applicant contended that the Enquiry Officer has not conducted the enquiry strictly in accordance with law, According to the learned counsel the Enquiry Officer has not conducted the enquiry in the manner in which he could arrive at just and proper conclusions.
' On the other hand it is submitted that the original enquiry report has been produced in Court. Mr. Amanullah Khan Assistant Vice-President who was Enquiry Officer was also examined who has stated that he had provided full opportunity to the petitioner to defend himself. According to the counsel for the respondents the enquiry was conducted strictly in accordance with law.
' I have carefully considered the contentions advanced before me and I have gone through the enquiry proceedings produced in Court. Mr. Amanullah Khan the Enquiry Officer stated that he1 provided full opportunity to the applicant to defend himself, The perusal of evidence of the Enquiry Officer shows that he was extensively cross-examined but his findings have not been disturbed in the cross-examination. Various questions which were even not relevant were put to the Enquiry Officer. A question was put to the Enquiry Officer that why he did not examine the Zonal Head in the enquiry. The point is that it is not for the Enquiry .Officer to choose the witnesses but it is for the Management to produce the witnesses before the Enquiry Officer. The paramount question for consideration is this whether any prejudice was caused to the applicant in the enquiry proceedings. The enquiry was conducted in presence of the applicant. The applicant cross- examined the Management witnesses. The applicant was examined and he was allowed to examine any person in defence. The charges were read over to the applicant before start of the enquiry. The enquiry was conducted in accordance with law. Merely because some documents were not produced would not in itself show that any prejudice was caused. The Enquiry Officer admitted that he saw the L/C register, the photo copy of register which is Annexure 'C'. It is a settled principle of law that where documentary evidence is adduced no oral evidence will prevail. The enquiry was proper and no prejudice was caused to the applicant. I therefore hold that properly enquiry was held against the applicant. Issue No, 3 replied above.
Issue No, 4 : Whether the termination of the applicant was illegal and improper ?
' This is a very important issue. I have already arrived at the proper enquiry was held. The findings of the Enquiry Officer have been brought on record. It is power of the Labour Court to enter even into the question of facts and arrive at his own conclusion, regardless of no illegality of I procedure in the domestic inquiry. This view finds favour in' The first allegation against the applicant is this that he fabricated figures in respect of past Import performance of the Guarantor Messrs Aebco Traders and overestimated credit worthiness of the Importers and Guarantors. The Enquiry Officer was examined according to law. The applicant had stated before him that in respect of past import performance of Messrs Aebco Traders, he had only copied out Annexure 'D' on the advise of his superior officer Mr. Jamaluddin. According to Mr. Ali Amjad, the Enquiry Officer did not compare the document prepared by the applicant with Annexure 'D' of the enquiry proceedings and further more according to the Enquiry Officer he did not bring fabricated documents on record. Therefore Mr. Ali Amjad contended that the management failed to establish the charge No, I against the applicant. The perusal of the enquiry proceedings show that the Enquiry Officer gave ample opportunity to the applicant to cross-examine the management witnesses and the only ground that fabricated documents was not brought on record will not in any way prove that charge No, I is not proved. Secondly the question that the Enquiry Officer did not compare the documents prepared by the applicant with Annexure `D' of the enquiry proceedings is also not a material illegality to show that charge No, 1 is not proved against the applicant. I therefore do not agree with the submission of Mr. Ali Amjad that the findings of the Enquiry Officer are perverse.
' The second charge against the applicant is that he failed to record L/C Liabilities and margin in the relevant register for 8 months. The Enquiry Officer claims to have examined the register but according to Mr. Ali Amjad the enquiry proceedings show that he had only informed the applicant that this register was available on Talpur Road Branch of the Bank and may be summoned if wished by the applicant. Mr. All Amjad contended that the Enquiry Officer admitted that the register of L/C liabilities was not brought on record of the Enquiry proceedings but that he saw and inspected it. According to the Enquiry Officer the register of L/C liability and margin was the same Annexure 'C.
' The contention of the learned counsel that the Enquiry Officer inspected and saw the register but he did not bring the register on record is an illegality which is not curable. The said register according to Enquiry Officer was kept on Talpur Road Branch of the Bank and could be summoned if desired by (the applicant. The perusal of the enquiry report shows that the applicant had not made any application to summon the register. The case of the applicant is this that due to heavy pressure of work he was unable to keep the register uptodate. The non-production of the register is not an illegality to vitiate the proceedings. The domestic enquiry is quasi-judicial proceedings wherein ample opportunity is to be given to the accused to participate in the proceedings. The applicant had not made any application for summoning the register and therefore Enquiry Officer did not consider it necessary to bring the register on record but he inspected it. According to the applicant due to heavy pressure of work such as preparation of L/C vouchers, retirement of P. A. Ds., L. I. M. Voucher, interest vouchers, preparing returns etc. He is sorry that balancing of L/C liability and margin could not be balanced in time but afterwards the Books were balanced by him. This is explanation of the applicant and he has admitted that he has shown the margin party-wise L/C liability register afterwards. The applicant denied that he has not placed true facts in respect of L/Cs opened in respect of Messrs Warrior Bros, to the tune of Rs, 3 (1/2) lacks.
' The perusal of the evidence of the parties clearly show that the applicant had intentionally failed to make entries within time. The explanation given by him was found unsatisfactory by the Enquiry Officer. I have carefully gone through the record and I find myself in agreement with the findings of the Enquiry Officer and the Charge No, 2 is therefore proved against the applicant.
' Charge No, 3 against the applicant is that the applicant had knowledge of unauthorised L/Cs being established and the fact that he failed to inform the Zonal Office or Head Office. The Enquiry Officer supported this charge in his evidence. According to the applicant the L/Cs were being passed and all entries including liability and margin were being made by Dildar Ali, the Officer Incharge after the transfer of Mr. Jamaluddin. According to him it was not his responsibility to do so.
The perusal of the evidence show that there is no allegation that the applicant has any hand in sanctioning or opening of L/Cs as according to the evidence of Mr. Amir Hassan, the L/Cs were also signed by the Bank Manager and Senior Officer of the Bank. It is proved by the management that the applicant prepared and signed the said vouchers of L/C liabilities and margin and did not inform the Zonal Office or Head Office. The evidence shows that applicant is also equally liable alongwith Senior officers for having knowledge that unauthorized L/Cs were being established at the branch. Therefore it can be safely said that no unauthorised L/Cs can be opened without the knowledge of all persons working in the Section of Branch. This charge stands proved. Issue No, 4 replied as above.
In view of my discussions in Issues Nos, 1 to 4 I have arrived at the conclusion that the applicant is not entitled to the relief claimed by him. The application under section 25-A of I. R.
0., 1969 is hereby dismissed. 1978 PLC 233