DECISION This is an appeal filed by the appellant against an impugned order, dated 5-2-1983, passed by the Sind Labour Court No. VII, Sukkur, who had dismissed the grievance petition under section 25-A, I.R.O., 1969.
2: Brief facts of the case of the appellant are that he was appointed on 13-4-1970 as a Cashier at Moro and on 1-4-1979 he was promoted as Second Officer and then posted at New Jatoi Branch of the respondent-- Bank. The appellant had worked as Officiating Manager at New Jatoi, Nawabshah upto 1980 and thereafter, he was transferred at Darbelo Branch, Taluka Kandiaro, District Nawabshah, where he was served with a show-cause notice dated 6-4-1981, signed by respondent No.4, namely, Vice-President, Habib Bank Ltd., Zonal Office, Nawabshah. On 12-4-1981, the respondent No.4 sent the appellant another notice that the reply was not satisfactory, therefore, he was put under unlawful suspension for an indefinite period. On 20-4-1981, an enquiry was held against the appellant by the Enquiry Officer, namely, Mr. S. Haider Naqvi, whereafter on 31- 5-1981 the appellant was served with a second show-cause notice. Though the appellant had replied to it but he received termination order, dated 20-2-1982, on 4-3-1982, jointly signed by Senior Vice-President and Regional Controller and Senior Vice-President, Personnel Division, i.e. Respondents Nos. 2 and 3, after a period of more than 10 months from the original proceedings against him. Being aggrieved by this termination order, the appellant had preferred a Departmental appeal to the respondent No.1, i.e. The President, Habib Bank Ltd. Head Office and after receipt of its negative reply, he submitted a grievance petition before the Labour Court under section 25-A, I.R.O., 1969.
3. The respondent-Bank had resisted the petition on the grounds that the appellant was working as regular manager at New Jatoi Branch and was transferred to Darbelo Branch in the same capacity and as there were allegations of serious misconduct against him which were proved in the domestic enquiry, therefore, he was rightly removed from the employment. Further, that as the appellant had failed to serve the grievance notice upon respondents Nos. 2 and 4, namely, Senior Vice-President and Regional Controller, Head Office, Habib Bank Plaza Karachi; and the Vice- President, Habib Bank Ltd., Zonal Office, Nawabshah, therefore, his petition was not maintainable in Law, and liable to be dismissed.
4. Both the parties filed their affidavits-in-evidence and they were duly cross-examined. Thereafter, the learned Labour Court , after framing 3 Issues and deciding them against the appellant, had dismissed the petition, hence, this appeal.
5. I have heard Mr. Hassan Hameedi, the learned Advocate for the appellant and Mr. Shabbir Ahmad Awan, the learned counsel on behalf of the respondent-Bank and have also carefully perused the record and proceedings of the case. It was contended by Mr. Hassan Hameedi, the learned Advocate for the appellant that he was working as second Officer with effect from 1-4-1979 and was working as Manager of the' respondent-Bank at Darbelo, just for name sake, when he was not posted as such, when, according to him the appellant was doing the work of manual and of clerical nature as he had no powers to hire and fire or any other powers which could justify that he was not a 'workman in the eyes of law and could not maintain his grievance petition under section 25-A, I.R.O., 1969, Mr. Hassan Hameedi, the learned Advocate for the appellant has further agreed that only the employee who is responsible for the supervision and control of whole establishment can be termed as employer. In support of this contention, he relied upon the authority reported in PLD 1975 Kar. 342, and the similar view taken by this Tribunal in a case reported in 1982 PLC 132. His further arguments in this behalf are that the Branch of the respondent-Bank, where the appellant was working at the time of commission of alleged offence/ misconduct, was a small one and the appellant, being a Cashier in the said Branch was simply designated as 'manager' just to impress upon their clients and to maintain the decorum and/or status of the respondent-Bank, mainly on papers, while, the facts were that neither the appellant was holding the official position nor he had any managerial or supervisory functions in the said branch or was empowered to hire or fire or to take any administrative or disciplinary actions against the other colleague staff members. Mr. Hassan Hameedi has submitted that nothing has been brought on record by the respondent-Bank to show that the appellant was actually working as fullfledged manager of the Branch with all such powers, though it was the duty of the respondent-Bank to lead cogent and convincing evidence, particularly, when they had challenged the status of the appellant and maintainability of his grievance petition before the learned Labour Court. Mr. Hassan Hameedi further argued that the appellant never given a power of attorney by the respondent-Bank as it did not bear his signature and there is nothing on record to show that the appellant had ever acted upon the same and merely by producing the same by the respondent-Bank, as a surprise to the appellant at a belated stage, does not bring the appellant into the category of a 'manager' barring him from invoking the jurisdiction of the Labour Court under the relevant Laws. He pointed out to me that again there is nothing on record to show that the appellant had granted O.D. To one Sher Ali, on his own, but, according to the appellant it was granted at the instruction of the Zonal Chief and the respondent- Bank was failed to produce any evidence to rebut the same. In view of the facts and evidence on record, I would hold that the appellant was not an employer/ manager, but, he was actually a workman within the meaning of Standing Orders Ordinance, 1968. Industrial Relations Ordinance and also under the Wage Commission Awards, hence, was fully entitled to maintain his grievance petition under section 25-A, I.R.O., 1969 before the learned Labour Court, and I would also set aside the findings of the learned Labour Court on this point.
6. As regards the issue that the appellant had not served his grievance notice on the correct respondent. Admittedly the appellant had submitted his departmental appeal-cum-grievance notice to the President of the respondent-Bank, who in view of the provisions of Industrial Relations Ordinance, 1969, is the actual and correct employer, being final authority of the respondent Establishment. It is not the requirement of the law that an aggrieved workman should serve his grievance notice on each and every authority of the establishment. When, the President of the respondent-Bank was the appellate and final authority, therefore, the appellant was quite correct to serve his grievance notice-cum-appeal, against the orders of his subordinate notice upon the employer, within the prescribed time, and nothing wrong has been done by the appellant. I would, therefore, also set aside the conclusion of the learned Labour Court on this issue.
7. On merits also, the respondent-Bank has nothing on record to establish that the appellant had committed any misconduct during the course of his employment. Admittedly, the appellant had to his credit a long and unblemished service record with the respondent-Bank. The respondent-Bank has miserably failed to produce and examine dependable witnesses to show that the appellant was directly or indirectly involved in the alleged misconduct. Therefore, the stand taken by the appellant in his pleadings and the evidence on record that he purposefully was made to involve in the alleged misconduct under a plan through one Muhammad Abbas, a peon of the bank at the behest of some officers of C the bank to whom the appellant refused to please them, thus he was victimized, goes unrebutted and unchallenged by the respondent-Bank. In view of this factual and legal position, I would hold that the charge of alleged misconduct was not established against the appellant in the improperly held domestic enquiry holding him guilty of the misconduct, so subsequent termination of his services could not be sustained, hence, set aside. The appellant is entitled to be re-instated in service with full back benefits.
8. For the reasons, stated by me above, I would set aside the impugned order and would allow this appeal. The appellant is directed to be re-instated in service with full back benefits forthwith.
M. Y. H./905/Lb.