DECISION This is an appeal against the order of Sindh Labour Court No, VII, Sukkur, dated 17-6-1989, whereby the grievance petition filed by the respondent was allowed and he was ordered to be reinstated in service with fifty per cent. back benefits.
2. I have heard Mr. Noor Mohammad, counsel for the appellants, and gone through the record of the case.
3. Admittedly the proceedings were taken against the respondent under National Bank of Pakistan Staff Service Rules, 1980 and order of dismissal was also passed under the provision of said Rules.
This Tribunal in Appeal No, KAR290 of 1988, decided on 7-12-1988 has held that Staff Rules of 1980 were not Statutory Rules. This question also came for consideration before a Division Bench of Sindh High Court at Karachi in Constitution Petition No, D-684 of 1982, National Bank of Pakistan v.
Sindh Labour Appellant Tribunal and others. In this decision their Lordships held that Staff Service Rules of 1980 were not Statutory Rules and that National Bank of Pakistan (Staff) Service Rules, 1973 still hold the field. It was further observed, that because Statutory Rules of 1973 are in operation, therefore the employees of the National Bank of Pakistan cannot get the benefit of Standing Orders, but they can still seek remedy before the learned Labour Court under section 25-A I.R.O., 1969. It was further observed in that case that because the proceedings were initiated under Staff Service Rules of 1980 the action initiated against the employee by the bank from the very inception, that is, the issuance of charge sheet and all subsequent proceedings were without lawful authority. Mr. Noor Mohammad argued that their Lordships did not dismiss the petition on that ground, but because of observations at page 18 of the judgment, that on merits the Labour Court and the Labour Appellate Tribunal had given concurrent findings therefore their Lordships declined to interfere with the same. I am unable to agree with Mr. Noor Mohammad that having declared all the proceedings, including charge sheet and subsequent proceedings without lawful authority, their Lordships would have upheld order of dismissal passed by the bank on such proceedings. Mr. Noor Mohammad has relied upon 1989 CLC 1056 wherein revocation of licence of Government land, no provision of law was mentioned and the learned Single Judge of Karachi High Court held that 'mere omission to mention provision of law under which notice was issued was not fatal nor it would invalidate a notice, 'Which otherwise was valid and complied with requirements of statutory notice.' He has also relied upon the case of Nuzhat Fahmida v. Tariq Ijaz 1 WLR 82 LR. In that case the applicant had made application under 25-A of the West Pakistan Family Courts Act, 1964 for transfer of Civil Suit which could only be made under section 24 of the Civil Procedure Code and it was held by learned Judge of Lahore High Court that such wrong citation was not fatal to the proceedings and application was treated as one under section 24 of Civil Procedure Code and was allowed as such. Obviously these two cases are distinguishable from the instant case. The charge sheet in the instant case has been framed under Staff Service Rules which did not supersede the Rules of 1973 as held by their Lordships of Karachi High Court in the aforementioned case of National Bank of Pakistan and even the punishment was awarded under the said Staff Service Rules. These orders and proceedings, as held in the aforesaid case, were without lawful authority and, therefore cannot be sustained whatever the merits of the case may be.
4. Mr. Noor Mohammad further contended that the respondent was not workman and therefore he had no right to invoke relief under section 25-A, I.R.O. Admittedly respondent was Grade III Officer, but it is settled law that mere designation would not determine the status of the employee, which could be determined from the nature of his duties. In this context it will be relevant to reproduce the relevant para of the observation of the learned trial Court, which is at page 5 of the impugned order and reads as under: "So far as the applicant is a workman is concerned, it is the duty of the respondents to prove that he was not a workman, however it has come on record of this case that at the time of his termination from service applicant was Grade III Officer and was performing purely clerical duties i,e, he was maintaining different bank registers and was also doing correspondence work, he had no hiring and firing powers even he was not authorised to remove any person of the Bank and was not the employer as such the nature of work performed by the applicant would come under the definition of workman. It is not the case of the respondent that applicant was given the power of Attorney by the Bank as such the presumption would be that he was not Manager but was performing skilled and unskilled manual and clerical work used in the sense of Section 2(1) of I.R.O., 1969. The respondent has failed to prove that the nature of work performed by the applicant would not come under the definition of workman."
5. It may be pointed out, that the respondent has sought relief under the I.R.O. and, therefore, definition of workman under I.R.O. would be applicable in this case which provided that' any person not falling within the definition of `employer' was a workman unless he was employed in a supervisory capacity drawing wages exceeding Rupees Eight Hundred per month, and performing functions mainly of managerial nature.' In the case of Allied Bank of Pakistan v. Mohammad Humayoon and others 1988 SCMR 1664, their Lordships considered the question whether Manager of a Branch of Bank can he said to he a workman. Their Lordships in absence of production of Charter of duties and functions of the employee by the bank before the Court to prove nature of duties, accepted the finding of fact of the Courts below and held him to be a workman. In the instant case also admitted position is that Charter of Duties and Functions of the respondent has not been produced by the appellants before the learned Labour Court. There is only word of the respondent against the word of witnesses of appellant with regard to the nature of his duties.
Admittedly no power of attorney was issued in respondent's favour and he did not have the power to hire or fire. At the relevant time, he was not incharge of any branch of the bank of the appellant but was working in Zonal Office. All these circumstances lend support to the contention of the respondent, that he was doing clerical work.
6. In view of the above facts I do not find any ground to disagree with the finding of the learned Labour Court that the respondent was a workman. The main grievance of Mr. Noor Mohammad is that the learned Labour Court has wrongly shifted the burden of proof upon the appellant. Though the burden of proof was not initially upon the appellants, but still after the respondent had led evidence to show that he was a workman, the burden shifted upon the appellants to show that he was working in supervisory capacity. The appellants are a big Organization and they must be having defined Chart of duties of every one of their employees. Under the circumstances it was within their powers to produce the 'job description' or 'Charter of the Duties and Functions' of the respondent under the rules which admittedly they failed to produce. Mr. Noor Mohammad also tried to argue that charges stand proved against the respondent on merits. I need not go into this aspect of the case as after having held entire proceedings to be unlawful and without lawful authority the question whether on merits charge is proved or not proved is of no consequence. The appeal is, accordingly, dismissed in limine.