JUDGMENT (Rtd ) Sardar Abdul Ghafoor Khan Lodhi, J.-The two appeals captioned above the challenge decisions, dated 18-3-1986 recorded by the learned Presiding Officer, Punjab Labour Court No. f>, Faislabad, whereby the appellants have been pirected to p$y to the respondents lsQ days' salary besides c5% running allowance in lieu of LPR.
2. Admittedly, the respondents did not avail of LPR and5 applied for the payment of 180 days salary.
It has been argued that the respondent did not opt for the revised leave rules of 1980 It has not been shown either that revised leave rules Were duly notified in Pakistan Railways Gazette dr that they were got noted down by the respondents. ' Rulfcis revised by some competent authority of the appellant, so could conje to the knowledge of the respondents if they had been published tn Pakistan Railways Gazette or were separately brought to the notice of the respondent. Apart from it, it is the duty of the employer to invite options, where giving of the same is necessary according to the rules. No evidence has been pointed ont that it was done by the appellants. So the respondents were not debarred from claiming salary for 180 days in lieu of LPR.
3. The ether point argued is that the grievance notice and the grievance petition of both the rdipondent -were timo barred. The line of argument of the learned counsel for the appellants is that within three months of the passing of retirement orders grievance notice should have been given. The argument is without force. Period of limitation starts from the date of accrual of oause ofigrievanee;* The respondents did not challenge the orders of retirement, so,time did not start from the date of retirement, Time could start fr6m the date of refusal. There is no evidence when the respondents were refused salary for 180 days.
4. The last point argued is that since the respondents were not in seryipe.(at the time when they brought the grievance petitions, the learned Labour Court had no jurisdiction. No doubt it has been so held in < 1985 PLC, 1Q53 but the said .Ruling stands challenged before the Supreme Court and'thus has not yet gained finality. - 5... . As a result, the grievance petitions are ordered to be Fetucaed to respondents with the direction that if the Supreme Court holds that the persons not in service on the date they brought the grievance petitions are covered by the defiaitioas of workman given in section 2 \xxviti) of the Industrial Relations Ordinance, 1969, the appeal would stand dismissed a ad; the impugned decisions passed by the learned lower Court upheld. , .
K.L.1, 1987 Labour and Service Cases 110 I Karachi] Present: (Rtd.) Ali Nawaz Budhant, J.
(M/S) HABIB BANK LTD.
Versus TAFUZZAL HUSSAIN JAFRI Appeal No. 139 of 85, decided on 15th October, 1986.
(a) lidos trial Relatioos Ordinaace (XXIII of 1969) -S. 25-A read with West Pakistan Commercial & Establishment (Standing Orders) Ordinance (VI of 1968) S. 2(i) workman-Definition of- Respondent a Bank Officer and holder of Power of attorney and he duly acted as attorney of the Bank-Held : There is nothing on record to prove that the respondent was a workman performing the duties of manual and clerical, in nature-Admittedly he was a holder of a valid power of attorney and was performing the duties of a Manager-Thus, it is established that the respondent was not a workman, so, he could not maintain bis grievance petition. (Para.5)
1982 PLC 505 add PSC 1915 SC Pak. 1241
(b) Industrial Relations Ordinance (XXIII of 1969)
S. 25-A-Grievance petition-Contention that resignation from the respondent was obtained through co-ereion-Nothing on record to show that the resignation was a result of coersion-Respondeat admitted his signatures on the resignation- Held: the burden to prove coercion in obtaining the resignation was upon the respondent himself who had claimed it, and not upon the appellant Bank, which the respondent had failed to do.-Grievance petition not maintainable. (Para. 6)
For the Appellants : Khalid Javed, Advocate, Far the Respondent I S. Fasahat Hussain, Rizvi, Advocate.
Date of hearing : 15th October, 1986.
DECISION (SM.) Ali Nawaz, Budbaai, J.-This is an appeal filed by Messrs Habib Bask Limited against the impugned order, dated 10-3-1985, passed hy Sind Labour Court No. VI at Hyderabad, who had allowed the grievance petition of the respondeat, Syed Tafuzzal Hussain Jafri, under section 25-A, I.R.O. 1969.
2. The brief facts of the ease are that the respondent was employed with the appellant Bank as Grade III Officer and he was duly issued a Power of Attorney by the appellant Bank. The respondent fell ill on 14-10-1980 and submitted Medical Certificates from time to time. He was served with a charge-sheet dated 17-8-1982 containing two charges, namely, un-authorised absence from duty for more than 10 days, and wilful insubordination because he failed to comply with the instructions regarding adjustment of liabilities of the appellant bank upon him amounting to Rs. 75,162.83. A domestic enquiry was then conducted against him and after service of second show cause notice, he waa finally teiminated on 5-7-1982. Subsequently his departmental appeal, dated 5-8-1952 was also rejected by the appellant Bank on 17-8-19a2.
Thereafter the respondent approached the Labour Court agitating that he had been ill and that the enquiry was|conducted one sidedly contrary to the established principles. He, therefore, prayed for his reinstatement with full back benefits.
3. The case of the appellant Bank was that the grievance petition of the respondent was not maintainable because the respondent was employed as an Officer of the Bank with a duly authenticated lawfully executed Power of Attorney, issued by the appellant Bank in his favour, so the Labour Law were not applicable to him Oo merits, it was the case of the appellant Bank that the respondent remained absent from his duties without any intimation to the appellant Bank from r-i 1-1980 and thereafter, on ll-S-1981, he had resigned and when the appellant Bank, vide its letter, dated 5/6-4-1881 directed the respondent to get adjusted the liabilities of the Bank so that acceptance of his resignation c uld be considered, then, the re pondent neither attended his duties nor had adjusted his liabilies Therefore, en 17-2-1982, the respondent was issued a charge-sheet and as the reply to his charge-sheet was not found satisfactory, therefore, an Enquiry Notice, dated 8-3-1982 was issued to the respondent to appear before the Enquiry Officer on 3-4-1982. The respondent participated in the domestic enquiry and full opportunity to defend himself was given to him. As the enquiry Officer found him guilty of the charges, therefore, the respondent's service was terminated, vide letter, dated 5-7-198?, hence, the petition is not maintainable.
4. Both the parties filed their respective affidavits-in-evidence and they were duly cross examined.
Thereafter the learned Labour Court allowed the grievance petition of the respondent, hence this appeal.
5. I have heard Mr. Khalid Javed, the learned Advocate for the appellant Bank and Mr. S. Fasahat Hussain Rizvi, the learned counsel^ on behalf of the respondent and have perused the record and proceedings of the case, At the very outset, it is an admitted position by the respondent that he was issued a Power of Attorney, lawfully executed and duly attested by the Notary Public on 17-9- 1974. There is a confession by the respondent himself in his cross examination that he was a holder of Power of Attorney from the appellant Bank and he used to sign Draft eto ; jointly with other officer. He further admitted that the said Power of Attorney bears his signatures and he acted upon it as requited by the appellant Bank. In view of this position, Mr Khalid Javed, the learned Advocate for the appellant Bank has contended that the respondent is not a workman so, the Labour Laws are not applicable to his case. In support of his arguments, Mr Khalid Javed hs relied upon certain Authorities. In a case reported in 1982 PLC at page. 595, it was held bv this Tribunal as under : "Workman"-Bank officer bavins Power of Attorney authorised to important administrative and managerial functions, and working as Branch Manager-Not a workman-Nor e titled to file grievance petition against termination of service-Grievance petition - Industrial Relation Ordinance (XXIII of 1969) S. 25-A.
In another case, reported in 1985 PSC at page 1241 the Supreme Court of Pakistan has held>as under : "Workman"-Definition-Bank employees appointed as an accountant-Power of Attorney executed in favour of such employee by Bank showing that powers conferred on and functions thereby required to be performed by employee could neither be termed as manual nor clerical work and involved exercise of discretion and taking of important decision-Such employee also given in clear and unambiguous words power to manage some of affairs of Bank with number of power which he could exercise by him elf or jointly with other attorneys of Bank which could by no means be said to be manual or elerical in nature-Such employee of Bank, held, was not a 'workman* within meanin of Section 2(f) of Ordinance."
There is nothing on record to prove that the respondent was a workman performing the duties of manual and clerical, in nature. Admittedly he was a holder of a valid Power of Attorney and was performing the duties of a Manager. Mr. Khalid Javed has further contended that the Court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by, a notary public, or any Court, Judge, Magistrate, Counsel or Vice- Counsel or representative of the Central Government, was so executed and authenticated. In the present case the Power of Attorney in favour of the respondent was executed before a Notary Public so it was admittedly acted upon by the respondent. Thus, it is established that the respondent was not a workman, so be could not maintain his grievance position under section 25- A, I R.O. 1969. Mr. Fasahat Hussain Rizvi, the learned Advocate on behalf of the respondent could not prove from the record that the respondent was doing the work of manual or clerical, in nature or he did not act upon the Power of Attorney There is no oral or documentary evidence on record in rebuttal of what had been contended by the appellant Bank,
6. On merits, it was cpntended by Mr. Khalid Javed, the learned Advocate for the appellant Bmk tendered his resignation on18-2-198l, so he was asked to clear his liabilities before his resignation could be accepted, but the respondent failed to comply with these directions and choose to remain absent unauthorisedly till 17-2-1982, when he was issued a charge-sheet at this stage, he took the plea that he never tendered resignation voluntarily, but it was obtained under coercion. Mr. Khalid Javed has contended that there is nothing on rec ord to show that the respondent has ever complained to any other supeiior authorities in the appellant Bank about the obtaining of the resignation under coerion, but, it was an attempt by the respondent to save himself from the adjustment of the liabilities of the appellant Bank bafore the resign tion could be considered for acceptance. The respondent had himselt admitted his signatures on the resignation. The burden to prove 'coercion in obtaining the resignation' was upon the respondent himself who had claimed it, and not upon the appellant Bank, which the respondent had failed to do. Mr Fasahat Husaain Rizvi, the learned Counsel for the respondent was unable to refer anything from the record to establish that the resignation was taken fro ti the respondeat under coercion. As regards the domestic enquiry on the charge of remaining absent unauthorisedly for more than 10 days, it was held quite in accordance with the prescribed procedure and Law, so, the charge was folly established and the respondeat was rightly terminated from service. Mr. S. Farhat Hussain Rizvi, the learned Counsel for the respondeat was unaole to point out any illegality or irregularity as regards to the domestic enquiry. Thus, the charge of remaining absent unauthorisedly for more than 10 days has been proved and the respondeat was correctly found guilty of it. Further, the respondent has failed to produce in evidence the Doctor, under whose treatment he claimed to remain. Merely, by producing the Medical Certificates, it cannot be believed that he was ill and was unable to attend his duties.
7. For the reasons stated by me above, I would set aside the impugned order and allow his appeal.