DECISION ' This appeal is directed against the order, dated 5-9-1988, passed by the learned Presiding Officer, Sind Labour Court No, V at Karachi, whereby he has allowed the grievance petition filed by the respondent.
2. The facts leading to this appeal, in brief, are that the respondent was an employee of the appellants in the Officer Grade No, II, when he was transferred to Faisalabad from Karachi. The respondent did not proceed to Faisalabad but, instead submitted leave application, dated 10-4- 1986, along with Medical Certificate. This leave application was rejected by the appellants vide letter, dated 12-4-1986, but, the respondent again repeated leave application, dated 14-6-1986, which also was rejected. On 10-11-1986, the appellants passed the impugned order holding that the respondent has vacated the appointment in the bank with effect from 20-9-1986 under Rule 15(3) of the National Bank of Pakistan (Staff) Service Rules, 1980. The contention of the respondent was that his transfer to Faisalabad was mala fide due to a tussle with his superior officers, especially with Mr. Mashkoor over issuance of a Character Certificate of one Mr. Jehangir. He further contended that the order terminating his services was mala fide because of the aforesaid dispute.
He filed an appeal against the order passed by the appellants on 8-12-1986, but, he did not receive any reply. He consequently served grievance notice on 3-3-1987 and thereafter filed the grievance petition before the learned Labour Court. The appellants resisted the grievance petition on the ground that the respondent was not a workman but was an officer and, therefore, he Labour Court had no jurisdiction. It was denied that the superiors of the respondent were annoyed with him as alleged by the respondent. Further that the respondent having failed to report for duty on the place of transfer, his services were legally terminated in accordance with the service Rules.
3. I have heard Mr. Noor Muhammad, the learned counsel for the appellants and Mr. M.L. Shahani, the learned Advocate for the respondent.
4. The main contention of the learned counsel for the appellant is that the West Pakistan Industrial and Commercial Employment Standing Orders Ordinance, 1968, hereinafter called Standing Orders Ordinance is not applicable to the case of the respondent. Reliance is placed on the proviso to section 1(4) of the said Ordinance which provides that "nothing in this Ordinance shall apply to Industrial and Commercial establishment carried on by or under the authority of the Federal or Provincial Government where Statutory Rules of Service, conduct or discipline are applicable to the workmen employed therein."
5. It is submitted that the appellants viz. National Bank of Pakistan is a commercial establishment carried on by and under the authority of the Federal Government which had statutory Rules of Service applicable to the workmen employed therein. To appreciate the contention raised by the learned counsel for the appellants, it will be necessary to trace the history of the establishment of National Bank of Pakistan and also the Rules framed governing its employees. The National Bank of Pakistan was established under the Ordinance No, XIX of 1949. It will be pertinent to reproduce relevant provision viz. Section 32 of the National Bank Ordinance, 1949. Section 32 reads as under:-- "32. Power of the Central Board to make by-laws.--
(1) The Central Board may, with the previous approval of the Central Government, make bye-laws not inconsistent with this Ordinance to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Ordinance.
(2) In particular and without prejudice to the generality of the foregoing provisions, such bye-laws may provide for all or any of the following matters, namely-- (xxviii) the recruitment of officers and staff of the Bank including the terms and conditions of their service, and the constitution and management of staff and superannuation fund for the officers and servants of the Bank."
6. In exercise of the powers conferred by section 32 of the said Ordinance, the Central Board of National Bank, with the previous approval of the Central Government framed by-laws. Bye-law 18(a)(iii) and (iv) provided as under:-- "18.(a)--The Central Board shall have power--
(iii) to frame, with the previous approval of the Central Government, rules to which the officers and staff of the Bank shall be subject;
(iv) to make provisions, with the previous approval of the Central Government, to grant salaries, pensions and other emoluments to officers and staff, and to grant gratuities or other financial assistance, either temporary or permanent, to widows, children or other dependents of deceased officers or staff;"
7. In 1974, the Banks Nationalization Act, 1974 was passed by the Parliament. Under section 5 of which the ownership, management and control of all the banks including the National Bank of Pakistan was transferred to and vested in the Federal Government.
8. The plain reading of section 32(2)(xxviii) would show that the Bye-laws framed under section 32 had to provide for the terms and conditions of the service and the constitution and management of staff. However, Bye-law 18 did not provide for the terms and conditions of service of the appointment of the staff, but, merely empowered the Central Board to appoint the officers and to frame rules with the previous approval of the Federal Government to which the officers and staff shall be subject.
9. The National Bank (Staff) Service Rules, 1980, were made by the Executive Board of the National Bank of Pakistan under Bye-law 18(a)(iii)(iv) of the Bye-Laws read with section 11(4) of the Banks Nationalization Act, 1974. Section 11(4) of the Banks Nationalization Act, 1974, mainly provides that "In the exercise of their powers the Executive Board and the President of a Bank incorporated by or under any special law shall not be subject to restrictions which do not apply to the Executive Board of the President of a Bank registered under the Companies Act, 1913."
10. The contention of Mr. M.L. Shahani, the learned Advocate appearing for the respondent is that these Rules framed under the Bye-laws would not be deemed to be the Rules framed under the Statute which established the National Bank of Pakistan and, therefore, are not Statutory Rules.
11. It may be pointed that the National Bank of Pakistan had framed Service Rules of 1973 in exercise of powers under section 32 of the National Bank of Pakistan Ordinance, 1949, but, these Rules were superseded by the Wage Commission Award of 1975, and subsequently by the National Bank of Pakistan Staff Service Rules, 1980. Under the Bank Nationalization Act, 1974, the ownership of the banks vested in the Government of Pakistan and as such it cannot be disputed that the National Bank of Pakistan is an establishment carried on by and under the authority of the Federal Government. However, the question for consideration would still be whether the National Bank of Pakistan Staff Service Rules, 1980, could be considered Statutory Rules so as to exclude the application of the Standing Orders Ordinance, 1968, by virtue of proviso to subsection (4) of section 1 of the said Ordinance. In this context, I have already pointed that these Rules have been made by the Executive Board under Bye-law 18(a)(iii) and (iv) of National Bank of Pakistan Bye-laws read with section 11(4) of the Bank Nationalization Act, 1974. Subsection (4) of section 11 of the Banks Nationalization Act, 1974, has been reproduced above. It does not empower the Executive Board to frame any Rule fixing the terms and conditions of service of the employees or staff of the National Bank of Pakistan. The power still vests in the Central Board under section 32(xxviii) of the National Bank of Pakistan Ordinance, 1949, which is still in force so far it is not inconsistent with the Banks Nationalization Act, 1974. Under this clause of section 32, the Central Board had been authorised to make Bye-laws to provide for the recruitment of officers and staff of the bank including the terms and conditions of their service. However, the Bye-laws framed under this provision, as reproduced above, do not provide for any term and condition of service, but, merely under Bye-law 18(a)(iii) empowered the Central Board to frame, with the previous approval of the Central Government, rules to which the Officers and staff of the bank shall be subject. In exercise of these powers and keeping in view the recommendations of Wage Commission Award, the Executive Board of the bank did make the Staff (Service) Rules, 1980, but, in these Rules neither any reference has been made to section 32 of the National Bank of Pakistan Ordinance, 1949 nor do they show that any approval of the Federal Government was obtained as required under section 32 of the said Ordinance of 1949 as well as under Bye-law 18(a)(iii). Under the circumstances, such Rules cannot be considered Statutory Rules to invoke the aid of proviso to subsection (4) of section 1 of the Standing Orders Ordinance, 1968 so as to exclude the application of the Standing Orders Ordinance, 1968, to the employees employed in the National Bank of Pakistan.
12. Reference may be made to the decision of this Tribunal in the case of National Bank of Pakistan v. Nizamuddin Mehr, reported in 1980 PLC 1118, wherein it was held that the Nationalized Banks were run under and by authority of Federal Government, but, the disciplinary rules, framed by Wage Commission for Banks and Financial Institutions in First Report of Commission for 1974-75, could not be construed as Statutory Rules. In the case of Altaf Ahmed Sheikh v. National Bank of Pakistan reported in 1982 PLC 683, this Tribunal had reiterated earlier view and further held that the Staff (Service) Rules, 1980 framed in pursuance of the Award of Second Wage Commission were not Statutory Rules so as to exclude the employees of the National Bank of Pakistan from operation of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In the case of Iftikhar Ahmed and others v. President, National Bank of Pakistan reported in PLD 1988 SC 53 their Lordships have held that the employees whose terms were governed by an award of the Wage Commission can seek redress of grievance before the Labour Court.
13. Mr. Noor Muhammad, the learned Advocate for the appellants had relied upon the case of National Bank of Pakistan v. Shafiq Ahmed, reported in 1983 PLC 1215. In that case, a Division Bench of Peshawar High Court had held that Standing Orders Ordinance does not apply to National Bank employees who are governed by National Bank of Pakistan (Staff) Service Rules. It appears that the question as to whether the Staff Rules were Statutory Rules did not appear to have been considered in detail by their Lordships as there is no such discussion in detail. The above observations appear to have been based on assumption that these Rules were framed under the Statute. As discussed above, these Rules are not framed under any Statute. But, under some Bye- laws on the basis of recommendations of Wage Commission Award. They are also framed without approval of the Federal Government as required under the relevant Statute as well as under the Bye-laws. In view of ibis legal position, I am inclined to agree with the earlier decision of this Tribunal referred to above and hold that though the National Bank of Pakistan is an establishment run by or under. The authority of the Federal Government still because the Staff Service Rules are not framed in accordance with the Statutory requirements such rules are not Statutory Rules. As such, the workers employed by the National Bank of Pakistan are governed by the Standing Orders Ordinance, 1968. Reliance is also placed on a case of United Bank Ltd. v. Munir Ahmed and 2 others, reported in 1984 PLC 276, wherein a Division Bench of Karachi High Court had held that "the Rules framed by Wage Commission cannot be treated at par with statutory rules framed by an authority provided under statute. They were not Statutory Rules in terms of section 1(4)(c) of the Ordinance, 1968."
14. The next contention of the learned counsel of the appellants is that the respondent is not a workman as defined in section 2(xxviii) of the Industrial Relations Ordinance, 1969, as he is an officer and even otherwise he is excluded from the definition of the workman under sub-clause (b) to the clause (xxviii) of section 2 which provides that the workman does not include any person-- "(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
15. Admittedly at the time when the respondent was removed from service, he was posted as an officer Grade-11 and was drawing total salary of Rs,3,000 per month. Exh. 3/B shows the pay scale of officer of Grade-11 to start from Rs,900 to Rs,1,750. Thus, the basic pay of the respondent would also be more than Rs,800. It is also admitted by the respondent that the Wage Commission Award was not applicable to the officers. The witness of the respondent, Mr. Salimullah Khan has stated that the respondent received benefits under the Pay Commission Report and not under the Wage Commission Award which statement is not challenged in the cross-examination.
16. However, the respondent in his grievance notice as well as in his grievance petition has stated that the nature of his work was clerical though he was designated as officer Grade-11. The grievance notice was not replied to by the appellants. In his affidavit-in-evidence the respondent has stated that the nature of his duties was purely and exclusively clerical and that he had no powers or any authority and that there was no one working under him and that he was not holding the post of any responsibility of managerial, supervisory or administrative nature. In the cross- examination, however, he had admitted that in the attendance register his name is shown at serial No, 1 and at serial No, 2, is the name of Ataur Rehman who was his stenographer. He had further admitted that the remaining 5 persons in the attendance register were working with him but he had denied that these 5 persons were working under him or that he was the Incharge of these persons. He had, however, asserted that Mr. Ahmed Hussain was the Incharge of the aforesaid 5 persons including himself and he used to sit in the adjacent room. Mr. Salimullah Khan, Assistant Vice-President, Personnel Wing, has, however, stated that the respondent was performing duties supervisory in nature and that any clerical work done by him was incidental and ancillary to his main work of supervision and control and that he used to supervise indent stationery from Stores Department and to supply them in the Personnel Wing. In the cross-examination, however, he had admitted that he had not produced any Chart of the duties of the respondent and that the respondent was not empowered to grant casual leave etc., to any subordinate and that he had no powers to issue or sign show-cause notice, charge-sheet or to grant T.A. & DA., and that no power of attorney was issued to the respondent. He had admitted that the respondent was never appointed as In charge of any branch of the Bank and during his service period, he mostly remained at the Head Office where he had no power to grant leave. He has also admitted that no job description was given in writing to the respondent as to what duties he had to perform while attached to he Vice-President. He had also admitted that the respondent had never worked under him. He has also admitted that the respondent used to arrange and distribute the stationery himself, but, contended that he was doing the job in the capacity of supervisor, but, he did not remember if any Indent slip signed by the respondent as a supervisor has been produced in the case. He had also admitted that he did not know if the respondent used to give dictation to the Stenographer.
17. In the case of General Manager, Hotel Intercontinental, Lahore and others v. Bashir A. Malik and others, reported in PLD 1986 SC 103, their Lordships of the Supreme Court have observed as under:-- "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of Labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features the pith and substance of his employment must be manual or clerical before the definition is attracted."
18. Applying the standard laid down by their Lordships, it will be seen that at the relevant time, the respondent was working as Assistant to the Vice-President with no powers as admitted by the witness for the appellants. The mere fact that he had a stenographer would not necessarily mean that he did no clerical work. His immediate superior, Mr. Ahmed Hussain, Senior Vice-President has not been examined to show the nature of the duties of the respondent. Admittedly neither any Chart of duties has been produced before the Labour Court nor was the respondent informed. In writing, as to what duties he had to perform. It is also admitted that he used to arrange and distribute the stationery himself. It is submitted by Mr. M.L. Shahani, the learned Advocate for the respondent that even this work which was admittedly done by the respondent involved manual Labour. This contention finds support from the fact that no indent slip signed by the respondent has been produced before the Labour Court to show that under his supervision, somebody was doing the manual work of arranging or distributing the stationery. Admittedly, he had never been appointed as Manager even of small and insignificant branch of the bank. In the case of Allied Bank of Pak. Ltd. v. Muhammad Humayun Khan and others, reported in 1988 SCMR 1664; the Bank Manager drawing salary less than Rs,800 per month having no power to appoint, dismiss, charge- sheet or grant leave to any employee was held to be a `workman'. No doubt, in the instant case the respondent was drawing salary more than Rs,800 per month, but, that alone would not be sufficient to exclude him from the definition of workman unless it is shown that he was employed in supervisory capacity.
19. In the case of Dost Muhammad Cotton Mills v. Abdul Ghani and others PLD 1975 Karachi 342; it was held "that neither the designation nor the salary is a factor for determination of the status of the 'employee'. The criterion is the work that an employee has to do and the answerability for the performance." It was further held "that 'employee not supervising or controlling entire establishment but only a branch or department of establishment was not covered by definition of 'employer' under section 2(c)(iii) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968". In that case, the question before the High Court was as to whether Chief Accountant, appointed on a salary of Rs,1,050 per month could be considered as a 'workman' as defined in the said Ordinance and the Chief Accountant was held to be a 'workman'.
This decision came in appeal before the Supreme Court 1979 SCMR 304. Their Lordships upheld the decision of the High Court and observed that the Chief Accountant getting monthly salary of Rs,1,050 acting under instructions of Incharge of Accounts Section of Company and having no supervisory functions to perform, was a workman within the definition of section 2 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordiannce, 1968.
20. The distinction between the definition of a 'workman' as defined under section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; and as defined under section 2 (xxviii) of the Industrial Relations Ordinance, 1969 was discussed by their Lordships of Division Bench of Karachi High Court in the case Rehmat Ali v. The Security Papers Ltd.
And another PLD 1982 Kar.
913. Their Lordships observed that "we are inclined to hold that the words "any manual" and "work" employed in section 2(i) of the Ordinance are susceptible to a very wide connotation, and, therefore, they will cover a person, who performs any manual work while discharging his duties irrespective of the quantum of such manual work, provided he belongs to a labour class. It was further held that the question whether a person predominately performs a manual work or that manual work is incidental to his main work will be relevant when the question for consideration is, as to whether the person concerned falls within the category of worker or in a category which is excluded from being worker like in section 2(xxviii) of the I.R.O. The managerial staff or the person who supervises that work of others and draws monthly salary of Rs,800 are excluded from the ambit of the definition of worker and workman given in the above provision. In the above reported case, the Security Guard, though he was not performing any manual work, was held to be a 'workman'.
21. The definition of 'workman' under section 2(xxviii) of the Industrial Relations Ordinance, 1969, is wide and covers all the employees of an establishment who do not fall within the definition of 'employer'. It is not case of the appellants that the respondent comes within the definition of an 'employer'. However, there are 2 exceptions to this general definition of workman which are contained in sub-clauses (e) and (b) of clause (xxviii). Sub-clause (b) on which reliance is placed by the appellants has been reproduced above. The appellants claim benefits under an exception to the general definition of the workman under the Industrial Relations Ordinance, 1969. It is a settled law that whenever a party claims a benefit under an exception to the general law or Rule, the burden lies upon that party to prove that the case falls within that exception. The initial F burden, therefore, was upon the appellants to prove that the respondent was employed in supervisory capacity or that he was performing functions mainly of managerial nature. This burden of proof was further enhanced by evidence on oath of the respondent that in spite of his designation as officer, Grade-11, his duties were manual and clerical. Though the respondent had admitted that he had a Stenographer, but, neither any question has been put to him as to whether the clerical work was done by him by giving dictation to the Stenographer, nor the Stenographer was examined to prove the contention of the appellants. Similarly the 5 other persons whose names transpire in the attendance register have not been examined to rebut the statement of the respondent that they were not working under him. Even his immediate superior Ahmed Hussain to whom he was attached as Assistant, had not been examined to rebut his statement on oath that he was doing clerical and manual job. It is also a settled Law that if a party on whom the burden of proof lies does not discharge the burden of proof, the inference has to be drawn against such a party. In view of the above discussion, I am inclined to hold that the respondent was a 'workman' as defined under the Industrial Relations Ordinance, 1969. As pointed the evidence on record shows that he was admittedly doing at least manual work of arranging and distributing stationery. As held in the aforesaid case of Rehmat Ali, the provision of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which defines a workman are wide enough to cover persons who perform any manual work while discharging duties irrespective of quantum of manual work. The respondent is, therefore, also a 'workman' under the said Ordinance.
22. It may be pointed that one Chart of duties which the respondent was purported to perform, has been produced by the appellants through the respondent as Exh. 3/E. However, the respondent has denied that he was performing any such duties. This Chart is not signed by any authority nor any authority who purportedly issued this Chart had been examined to prove this Chart of duties. As pointed above, the witness of the appellants has rather admitted in cross-examination that he had not produced any Chart of duties of the respondent and further that the job description was not given, in writing, to the respondent as to what duties he had to perform while attached to the Vice- President. In view of the above, it cannot be said that the respondent was performing duties as mentioned in this typed and unsigned document Exh. 3/E, which has been produced by the appellants at a late stage at the time of trial. Even, this piece of evidence which in fact is not evidence at all, does not prove that the respondent was working in supervisory capacity and, therefore, he was not a 'workman'.
23. The next contention of the learned counsel for the appellants is that the grievance notice was time-barred. The order removing the respondent from service was passed on 10-11-1986. He filed a departmental appeal against the said order on 8-12-1986. It is not contended that there was no provision of departmental appeal or that the appeal was time-barred. Admittedly no decision was taken on this appeal, therefore, the respondent gave grievance notice on 3-3-1987, which was also admittedly not replied. He consequently filed the grievance petition on 30-3-1987. In the case of Muslim Commercial Bank Ltd. v. Sind Labour Appellate Tribunal and another reported in 1984 PLC 1149 (D.B.), the Divisional Bench of Karachi High Court has held that plea regarding any defect in the relevant grievance notice on ground of limitation was not to be accepted where appeal had not been decided by the bank. In the reported case the employee was dismissed on 21-11-1979. He preferred departmental appeal on 17-12-1979 which was not decided and, therefore, he save grievance notice on 13-3-1980. The facts of the reported case are similar to the instant case. Under the circumstances, the plea of limitation with regard to the grievance notice and the petition is not acceptable.
24. I need not discuss the merits of the allegations and counter-allegations of the parties with respect to reasons of the removal of the respondent from service. The order of removal suffers from patent infirmity. It was passed without giving notice to the respondent as required under Standing Order 15(4). Even under Rule 4 of the Disciplinary Rules under the Wage Commission Award 1974-75, before it is decided to impose any penalty on an employee for an offence of which he is reported to be guilty, he shall be called upon by the competent authority to render written explanation of the charges against him and show why disciplinary action should not be taken against him. It is a settled Law that no order affecting the rights of the party can be passed without giving him an opportunity to be heard. The Staff Rules No, 15(3) under which the respondent has been removed from service on the assumption that he would be deemed to have vacated the post is against the principle of natural justice as enunciated and laid down by the superior Courts from time to time against the Wage Commission Award and against the Standing Orders Ordinance, 1968. Even, in this provision, it is not specifically laid down that no show-cause notice would be issued to the incumbent before removing him from service. It is also a settled law that where the law or rule does not specifically dispense with issuance of such notice, the notice has to be issued.
The impugned order passed by the appellants, therefore, is illegal and void and of no legal effect.
25. Considering all the facts and law discussed above, I find no merit in this appeal which is dismissed.