DECISION This is an appeal filed by Messrs Habib Bank Limited, against the impugned order, dated 10-3-1985, passed by Sind Labour Court No. VI at Hyderabad, who had allowed the grievance petition of the respondent, Syed Tafuzzal Hussain Jafri, under section 25-A, I.R.0.1969.
2. The brief facts of the case 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 Certificate from time to time. He was served with a charge-sheet dated 17-2-1982 containing two charges, namely, unauthorized 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 was finally terminated on 5-7-1982. Subsequently, his departmental appeal, dated 5 .8-1982 was also rejected by the appellant-Bank orb 17-8-1982. Thereafter, the respondent approached the Labour Court agitating that he had been ill and that the enquiry was conducted one snidely contrary to the established principles. He, therefore, prayed for his re-instatement 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 and lawfully executed Power of Attorney, issued by the appellant-Bank in his favour, so the Labour Laws were not applicable to him. On 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 1-11-1980 and thereafter, on 11-2-1981, he had resigned and when the appellant-Bank, vide its letter, dated 516-4-1981 directed the respondent to get adjusted the liabilities of the Bank so that acceptance of his resignation could be considered, then, the respondent nether attended his duties nor had adjusted his liabilities. Thereafter, on 17-2-1982, the respondent was issued a charge-sheet and as the reply to this 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 respondents services were terminated, vide letter, dated 5-7-1982 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. Fashat 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 Drafts etc; jointly with other Officer. He further admitted that the said Power of Attorney bears his signatures and he acted upon it, as required 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 has relied upon certain authorities. In a case reported in 1982 PLC 595, it was held by this Tribunal as under:- ---Workman----- Bank Officer having power of attorney authorised to do important administrative and managerial functions, and working as Branch Manager--Not a workman--Nor entitled to file grievance petition against termination of service--Grievance petition--Industrial Relation Ordinance (XXIII of 1969).
1985 SCMR 1511 the Supreme Court of Pakistan has held as under: - ---Workman----- Definition--Bank employee 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 himself or jointly with other attorneys of Bank which could by no means be said to be manual or clerical in nature--Such employee of Bank, held, was not a 'workman' within meaning of section 2(1) 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 also it was admittedly acted upon by the respondent. Thus, it is established that the respondent was not a workman, so, he could not maintain his grievance petition under section 25- A, I.R.O. 1969. Mr. Fashat Hussain Razvi, the learned Advocate on behalf of the) respondent could not prove from the record that the respondent was IA 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 contended by Mr. Khalid Javed, the learned Advocate for the appellant-Bank tendered his resignation on 18-2-1981, 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 unauthorizedly till 17-2-1982, when he was issued a charge-sheet and 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 or record to show that the respondent has ever complained to any other superior authorities in the appellant-Bank about the obtaining of the resignation under coercion, but, it was an attempt by the respondent to save himself from the adjustment of the liabilities of--the appellant-Bank before his resignation could be considered for acceptance. The respondent had himself admitted his signature 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. Fashat Hussain Rizvi the learned counsel for the respondent was unable to refer, anything from the record to establish that the resignation was taken from the respondent under coercion. As regards the domestic enquiry on the l charge of remaining absent unauthorizedly for more than l0 days, it was held quite in accordance with the prescribed procedure and law, so, the charge was fully established and the respondent was rightly terminated from service. Mr. S. Fashat Hussain Rizvi, the learned counsel for the respondent was unable to point out any illegality or B irregularity as regards the domestic enquiry. Thus, the charge of remaining absent unauthorizedly for more than 10 days has been proved and the respondent was correctly found guilty of Further, the respondent has failed to produce in evidence the Doc or, 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 appeal.