1. The applicant filed this grievance application under section 25-A of I.R.O. 1969 stating therein that he is a permanent workman in the respondents bank, and was appointed as a Typist on 1-8-1960 and was lastly posted as Officer Grade-II in Foreign Exchange Department on City Branch of the Bank at Karachi, but he was served with a charge-sheet on 16-2-1981 on false allegations to which he replied by a letter dated 25-2-1981 denying the said allegations contained in that charge-sheet.
2. Thereafter, he received a letter dated 10-5-1981 that his reply was not satisfactory and enquiry was to be conducted which was held on 17-5-1981 and he heard nothing about the result of the enquiry till April 1982 when he came to know that his services were terminated by orders passed on 13-4- 1982 by Zonal Head Mr. Muhammad Mustkeem Khan. He stated therein that he was ill-advised to seek redress before the Civil Court and promptly filed the Civil Suit bearing No. 1537/1982 in the Court of XXVIII Civil Judge, Karachi which was dismissed on 8-1-1983, whereby he came to know that he can legally seek redress in the Labour Court. He filed the Bank Appeal dated 11-7-1982 before the President of the Bank and persued it. The Bank authority used to give him assurance that he would be reinstated. Mr. A.H. Farooqui S.V.P. and later on promoted as E.V.P., Mr. S.I. Hussain A.V.P. and Mr. Amanullah Khan A.V.P. of the United Bank head office used to assure that the question of his reinstatement was under active consideration of the review committee of the bank and applicant would surely be reinstated and in case applicant takes the matter to the Labour Court then bank would not reinstate him and his case would be spoiled. The applicant submitted that he wrote reminders and letters to the President of the Bank, dated 30414982, 30-34983, 26-8- 1983 and telegrams dated 21-8-1983, 30-10-1983 and 12-3-1984 but the bank kept silent till then.
3. Lastly he sent telegrams dated 1-5-1984 and letter dated 5-5-1984 and on 20-5-1984 the bank sent the letter to the applicant informing him that the appeal of the applicant was rejected by the President of the bank. Then the applicant served grievance notice under section 25-A of I.R.O. but the bank failed to give any reply.
4. The applicant submitted that he was a workman as he used to perform such duties and he was charge-sheeted wrongly and illegally and the enquiry proceedings were also illegal and he was not given opportunity to defend himself properly and he was not given opportunity to cross- examine. The applicant therefore prayed that he be reinstated with back benefits.
5. The respondents moved an application under Order 1, rule 10, C.P.C. praying therein that name of the respondent No. 2 Mustaqeem Khan be deleted as the said person has acted on behalf of the bank the respondent No. 1 and the order of any reinstatement if issued by the Court has to be carried out by the bank and not by individual person the respondent No. 2. The Court heard the arguments on such application and passed an order dated 6-5-1985 to the effect that the name of respondent No. 2 namely Mustkeem Khan be struck off and thereby the application of the respondent was allowed.
6. Thereafter, the applicant moved an application praying therein that the respondent be directed to produce the enquiry proceedings. Such application of the applicant under Order 11, rule 14, C.P.C. was also allowed by the Court by order dated 31-3-1986 and the respondents were directed to produce the enquiry proceedings. Thereafter, the applicant moved another application under Order 11, rule 12, C.P.C. paying therein that the respondent be directed to disclose on oath all the relevant documents in their possession. The Court heard the arguments on such application and rejected the said application by order dated 31-3-1986.
7. The respondents primarily came up with the legal objection and insisted that their legal objections be decided before proceeding further with the matter. Such legal objections of the respondent were mainly based on two fold grounds, firstly ground of limitation and secondly that the applicant was not a workman and could not seek redress before the Labour Court. This Court heard the arguments and deemed it proper to defer the decision on such till the final arguments of the case.
8. However, the Court allowed the door to be open for both the parties to argue and address the Court on these two material points at the time of the final arguments.
9. The respondents filed the reply statement pleading three points in it. Firstly that the grievance petition filed by the applicant was time-barred, secondly that the applicant was not a workman but he was an officer and therefore could not seek redress under the Labour Laws. Thirdly that the applicant was found to have committed the misconduct, during the domestic enquiry, and therefore, the charges of misconduct were proved against him as he had violated the bank circulars and bank rules. The respondents therefore prayed the grievance petition filed by the applicant be dismissed.
10. I have heard the learned counsel of both the sides and I have perused the record minutely.
11. In this case the Court feels necessity of determining the following three points.
(i) Whether the petition of the applicant is time-barred.
(ii) Whether the applicant can legally be termed as workman entitled to seek redress under the Labour Laws;
(iii) Whether the domestic enquiry conducted against the applicant, is in accordance with law.
12. The applicant was terminated on 13-4-1982. He filed the bank appeal on 11-7-1982 before the President of the Bank/Respondents. He issued several reminders and telegrams to the bank. The bank kept silent and informed the applicant by letter dated 20-5-1984 that his bank appeal was rejected. The applicant sent the grievance notice dated 7-6-1984 under section' 25-A of the I.R.O. and the bank did not reply to it. The applicant then filed this case on 23-7-1984. The learned counsel for the respondents plays upon the plea that the applicant should have sent the grievance notice within time in 1982 and there was necessity for him to wait for the reply of the bank with regard to his appeal. Submission of the learned counsel for the respondent does not appeal to reason, because it is an admitted position that there is a provision in the Bank rules and regulations that an employee in such circumstances can file an appeal before the President of the Bank. When there is a provision for such purpose, thereby it is expected that such provision is made essentially to enable a bank employee to avail such provision. And when an employee avails such provision then he cannot be expected to rush to any other forum for seeking remedy until he gets any reply of his appeal. An employee cannot be expected to comit such folly of going to other forum unnecessarily when his appeal is pending before the President of Bank, because the employee can be expected to cherish the view that he would get a fruitful reply from the authority. The learned counsel for the respondent fails to give any reasonable explanation as to what necessitated the Bank authority to keep silent and not to dispose of promptly the appeal filed by the applicant. The silence of the Bank authority for such a long period reasonably reflects mala fide intention on the part of the Bank authorities, so as to keep the applicant away from availing redress before another forum. In such circumstances the respondents who have been instrumental to this delay of filing of the case of the applicant cannot be legally allowed to play upon the plea of the limitation. The learned counsel for the applicant has referred me to a case re-Shakoor ullah Khan v. West Pakistan Railways reported at 1983 PLC 1140 wherein my Lord Justice Mr. Z.A. Channa the Hon'ble Chairman of the Labour Appellate Tribunal Sind was pleased to observe:-- Industrial Relations Ordinance (XXIII of 1969), section 25-A--Grievance notice and petition-- Limitation--Rules of establishment providing remedy by way of appeal--Appeal presented but not replied--Failure of the competent authority in deciding appeal within a reasonable time, held, would give double cause of grievance to a workman, first against original impugned order and second failure of the appellate authority to pass order on appeal--Grievance notice served about five and half months after preferring appeal, held, not belated--Petition filed after little more than one month of service of grievance notice, further held, could not be said as time-barred."
13. In another case re-Allied Bank of Pakistan Ltd. v. Punjab Labour Appellate Tribunal reported at 1980 PLC 42, it was held by my Lord Mr. Justice Shafiur Rehman of Hon'ble High Court of Lahore that:-- "Section 25-A of I.R.0.--Limitation--Employer entertaining delayed appeal--Time spent in such appeal, held, can be ignored--Limitation to start from date of disposal of appeal."
14. In the third case re- United Bank Limited v. Ghias Mohiuddin Butt reported at 1984 PLC 1044, it was held:-- "Section 25-A, I.R.O. read with sections 5 and 14 Limitation Act--Grievance petition--Limitation-- Condonation of delay--Bank employee seeking remedy against dismissal from service, filing civil suit under wrong legal advice and on objection regarding jurisdiction withdrawing same-- Filingdepartmental appeal soon after withdrawing civil suit--Departmental appeal not decided-- Grievance notice served about 5 months after presenting departmental appeal and grievance petition filed 24 days thereafter--Departmental appeal having not been decided, petitioner in circumstances, held, justified in waiting for decision and serving grievance notice after elapse of sufficient time--Labour Court, in circumstances, held, rightly condoned time spent in wrong forum and petition, held, within time."
15. In the fourth case re: National Bank of Pakistan, Karachi v. Idris Ahmed Raja reported at 1985 PLC 468 my Lord Mr. Justice Z.A. Channa, Chairman of Labour Appellate Tribunal of Sind was pleased to observe:-- "Section 25-A of I.R.O.--Grievance notice and petition--Limitation--Bank employee's case--Service Rules providing right of appeal to higher authorities against the dismissal order--Departmental appeal filed after 9 days of date of dismissal order--Appeal fetching no reply--Grievance petition filed--Grievance of petitioner, in circumstances held, would be not only against original order of dismissal but also in respect of failure of authority to take decision on appeal--Petitioner, held, in circumstances, entitled to wait for a reasonable time for decision on his appeal before taking further proceeding--Grievance thus arose when petitioner is reasonably deemed to have come to such conclusion after giving sufficient time to bank authorities to decide his appeal--6 months' time held reasonable."
16. Such view was also held by their Lordships of the Hon'ble Supreme Court in a case re: Rashid Ahmed v The State reported at PLD 1972 Supreme Court 271:-- In another case re-Inayatullah v National Bank of Pakistan reported as 1983 PLC 392, the Hon'ble Labour Appellate Tribunal was pleased to hold:-- Section 25-A and section 38, IRO--Grievance notice and petition--Limitation to start from date of cause of grievance coming to notice of petitioner--Departmental appeal rejected--Rejection intimation conveyed to petitioner subsequently through his immediate superior--Labour Court rejecting grievance petition as time-barred counting limitation from fate of order of rejecting appeal, and not from date of his communication to petitioner according to which notice and petition were within limitation period--Order of Labour Court, in circumstances, set aside by the Appellate Tribunal and case remanded for decision on merits: In the present case the Bank/Respondent replied and informed the applicant on 20-5-1984 that the departmental appeal filed by the applicant was rejected. The applicant sent the grievance notice on 7-6-1984 and then filed the case on 23-7-1984. Thus, in view of the above quoted law it can be legally said that the grievance petition filed by the applicant is within time and not time-barred.
17. The applicant has claimed that he is a workman and can seek redress under the Labour Laws. The respondent Bank has pleaded that he is not the workman because when he was terminated, he was designated as Grade-2 Officer. Such controversy has necessitated the Court to peep inside the evidence minutely and to determine whether the applicant can legally be termed a workman or not. The applicant in his affidavit-in-evidence has specifically given the details of his work which he used to do in the days when he was terminated. He has stated those jobs to be as under:--
(1) Postings of L/C. Particulars in the L/C Register.
(2) Postings of particulars in PAD/Register.
(3) Postings of particulars in PIDBC/Register.
(4) Postings of particulars in L/C. Liability/Margin and PAD. Liability/Margin Register.
(5) Postings of various particulars and vouchers etc in UM Register.
(6) Postings and opening of L/C. particulars on L/C Files covers.
(7) Postings of various particulars on the reverse of the Import Licence and License File Covers.
(8) Preparations of various kinds of vouchers, such as LC. Liability, LC Margin, LC. Commission Postages, Cable Charges Vouchers, etc.
(9) Negotiations of Import documents, preparation of PAD lodgement and retirement vouchers etc.
(10) Preparation of PIDEC. Lodgement and retirement vouchers.
(11) Serially arranging LC's and Import Licenses files in filing cabinets.
(12) Preparation of Fate Memos at the time of lodgement and retirement of PAD's aid FIDEC's bills etc.
(13) Typing of LC's cables.
(14) Typing of LC's cable advices and LC's Air mail advices.
(15) Typing of telegrams of LC's amendments by cables.
(16) Typing of LC's amendment advices both by Cables and Air Mails.
(17) Typing of letters relating to LC's, PAD's, LIM's and Import Licenses, etc.
(18) Preparation of intimatory letters to the Importers at the time of PAD's lodgement of documents and to issue from time to time various reminders to the importers, where necessary.
(19) Preparation of various heads office, Zonal office and State Bank of Pakistan fortnightly and monthly returns.
(20) Settlement of reimbursement claims of foreign correspondents, reconciliaties of exchange transactions with head office foreign exchange reconciliation department.
18. In cross-examination the applicant has stated clearly that bank issued power of attorney to him but with no power. He has also stated therein that no clerk worked with him when he was posted at Talpur Road Branch, Karachi. He denied the question that he did not work as Typist during the days of his posting in Foreign Exchange Branch. In such circumstances it became obligatory on part of the respondent Bank to produce evidence that the applicant exercised the powers under the power of attorney and the applicant never performed the duties of a typist or clerk during the days when he was designated as Grade-II Officer in the Foreign Exchange Branch during the days when he was terminated. The respondents have pleaded mainly three points that applicant called himself as Officer in the Bank Appeal, secondly did not do any typing work when he was officer and if did so he did it as sundry job and thirdly the applicant held power of attorney of the bank and therefore due to these three reasons the applicant cannot be termed as workman.
19. So far the first point is concerned it is not a material point because an Officer who is designated as an officer would naturally mention himself as an officer while preferring departmental appeal, irrespective of the fact as to what duties he used to perform in those days. It is the duty which the applicant used to perform, that can clothe him legally with the rights of a workman and not the designation. It is the duties performed by the employee which legally clothes him with the rights of a workman. If the Employer employs an Engineer with the designation of an Engineer but obtains the duties of a Mason from such an Engineer then the employee performing such duties cannot be legally deprived of the right of a workman only on the pretext that he is designated by his Employer to be an Engineer or he calls himself an Engineer anywhere. This point is to be determined after taking into consideration the evidence of the respondent also. The respondents/Bank led the evidence of two witnesses namely Amanullah Khan V.P. and Amir Hussain Grade No. 1 Officer of the respondents Bank.
20. The truth has trickled down right from the horse's mouth, as the witness of respondent Bank namely Amir Hussain has vomitted out facts fairly in his cross-examination which distinctly depict that the applicant performed manual and clerical work, typed himself and did not exercise power under power of attorney and had no powers of hire and fire. In the cross-examination this witness of the respondents states that he has not produced any letter written by the applicant to any customer on behalf of the bank, secondly he has not produced any bill of lading which applicant might have executed on behalf of the Bank, thirdly he does not remember whether applicant exercised power to grant leave to any subordinate officer, fourthly that applicant was not empowered to give increments to any employee, fifthly that he has not given names of officers who used to work under applicant, sixthly that applicant was not empowered to terminate services of any employee, seventhly most of the entries used to be daily posted by the applicant, eighthly that he has not produced any letter written by the applicant as authority letter to anybody on behalf of bank, ninthly that it is correct that he has not given name of any typist working under applicant, tenthly that he has not filed any document to corroborate the contents of his affidavit.
21. In the circumstances of the case, in view of the evidence of the applicant it was obligatory on the part of the respondents to establish that the applicant exercised powers under the power of attorney of Bank and the applicant never performed any clerical duty. The above discussion distinctly shows that the respondent have failed to discharge such duties. Rather it can be said that the above said evidence of the respondents witness namely Amir Hussain has corroborated the contention of the applicant to be true. The learned counsel for the respondent has referred me to an authority reported in 1983 PLC 454, but in my humble opinion he cannot solicit the support from the said authority as it rather supports the case of the applicant, instead of supporting the case of respondents. Thus, in view of the evidence on record I deem it proper to hold that the applicant falls within the purview of definition of a workman and is legally clothed with the right of seeking redress under the Labour Laws.
22. Now I attempt to embark upon assessing the third material point in this case which is regarding the domestic enquiry held by the officials of the respondents bank against the applicant whereby allegedly the applicant was found by them to be guilty of the misconduct. This point also cannot be solved without pondering over the peculiar evidence led by the respondents. The respondents have examined Mr. Amanullah Khan as their witness. He is the Enquiry Officer and has stated in the cross-examination that he completed the enquiry on 17-5-1981 against the applicant. The perusal of the enquiry report dated 30-1-1982, produced by him shows that he started the enquiry on 17-5- 1981 at 1-40 p.m. at Zonal Office and completed the enquiry on same day i.e. 17-5-1981 at 6-45 p.m. and he examined Mr. Muhammad Alam A.V.P. and also the accused (applicant Dildar Ali). This procedure of starting the enquiry against an accused and completing the said enquiry hastily on the same day, within 5 hours on the same afternoon reflects reasonably that the Enquiry Officer cherished prejudice against the applicant accused. A man of common prudence can possibly understand easily that an accused cannot be excepted to have been allowed reasonable opportunity to defend himself or to lead the evidence possibly of any person as defence witness.
23. The other interesting aspect of this enquiry is that this talented Enquiry Officer hurriedly completed the enquiry and conducted it within one afternoon but deemed it proper to submit the report on 30th January, 1982, only seven months after completion of the same enquiry for reasons best known to him which he has failed to explain even in the enquiry report. This also shows that what degree of prejudice such Enquiry Officer could possess against such accused. The third material aspect of this enquiry is that this Enquiry Officer had admitted in the cross-examination that the State Bank Circulars which were allegedly violated by the applicant were not produced before him in the proceeding. An Enquiry Officer who conducts an enquiry against an accused based on the violation of the circulars committed by the accused had no such circulars before him while conducting the said enquiry against the accused. When the circulars were not before the Enquiry Officer then it cannot be understood as to how he evaluated that such circulars were violated by the accused applicant and such violation amounted to the misconduct attracting such penal provision of terminating the services of the applicant. The fourth aspect of his enquiry is that he has rather admitted that the applicant did not commit any folly as the Enquiry Officer has stated in his cross-examination that the bank witness Muhammad Alam stated in the enquiry before him that applicant accused followed instructions of the Manager. In the routine procedure of the banks usually an Officer is expected to follow the instructions of the Manager and when that Officer carries out the instructions of the Manager, it cannot be said that such officer commits any violation. The responsibility of any deviation from the rules then devolves on such Manager and not on the officer working under the said Manager. The fifth interesting aspect of this enquiry is that the learned Enquiry Officer examined a material witness the Zonal Head of that Area in this enquiry in absence of the applicant, but he did not feel necessity of examining the Manager under whom the applicant was working and whose instructions the applicant carried out. Mr. Amanullah Khan the learned Enquiry Officer has stated in the cross-examination that it is correct to suggest that the Manager of the Branch was not examined as witness in the proceedings against this accused official Dildar Ali. In the cross-examination he has also stated that he examined Zonal Head as witness in the absence of the applicant. This also shows that applicant was deprived of the opportunity of cross-examining such Zonal Head examined as prosecution witness against him.
24. In a case Pasroor Sugar Mills Ltd. v. Abdul Qadeer reported at 1988 PLC 246 the Hon'ble Labour Appellate Tribunal was pleased to hold:- "Domestic enquiry--Cross-examination of witnesses by employee under enquiry, essential-- Witness not allowed to be cross-examined--Held, amounts to refusal of defence opportunity."
25. The learned counsel for the respondents bank has failed to point out or to produce any proof that any second show-cause notice was issued to this IF applicant accused before penalising him and terminating his services.
26. In a case reported as 1980 PLC 816, my Lord Mr. Justice ZA. Channa, Chairman of the Hon'ble Sind Labour Appellate Tribunal was pleased to observe:-- "Section 25-A of I.R.O.--Industrial dispute--Termination for misconduct--Domestic enquiry held-- Penalty imposed without second show-cause notice--Order, in circumstances, <u>held,</u> not sustainable for want of second show-cause notice." In the cross-examination the learned Enquiry Officer Mr. Amanullah Khan has admitted that it is correct to suggest that he had put some questions to the applicant/accused and he has mentioned those questions on page No. 5 of the enquiry report. This procedure adopted by the Enquiry Officer of putting G searching questions to the accused reflects that he was prejudiced against the applicant.
27. In a case re-Karachi Shipyard Engineering Works Ltd. v. Abdul Ghafoor reported in 1980 PLC 688 my Lord Mr. Justice ZA. Channa the Chairman of the Hon'ble Sind Labour Appellate Tribunal was pleased to observe:-- "Industrial disputes--Domestic enquiry--Searching questions put to accused and accused cross- examined by Enquiry Officer even prior to production of prosecution evidence--Raises presumption of Enquiry Officer being highly prejudiced against the accused."
28. Thus, it can be legally said that the Enquiry Officer acted arbitrarily and reflecting reasonably that he was highly prejudiced against the accused. The above discussion disclosed distinctly that the enquiry conducted against the accused applicant was not conducted in accordance with law, and such enquiry cannot be deemed sustainable in the eyes of law. The penalty levelled against the applicant on basis of such enquiry also cannot be deemed sustainable in the eyes of law. The enquiry transpires to be illegal and invalid therefore the termination of the services of the applicant based on such illegal enquiry is also illegal and invalid in the eyes of law.
29. In such circumstances I deem it proper and just to order that the applicant be reinstated by the respondents Bank within one month of this order with 70% of back benefits.
30. It is well-settled law that when it transpires that the termination of the services of a workman is illegal then he stands entitled to the back benefits.
31. In case of Allied Bank of Pakistan Ltd. v. Tariq Mehmood Qamar reported as 1980 PLC 106 the Hon'ble Labour Appellate Tribunal was pleased to hold:-- "(d)--Industrial dispute--Reinstatement--Back benefits--Termination found as illegal--Workman though earned livelihood during part of intervening period, yet, held, entitled to back benefits."
32. Undisputedly the applicant must have engaged himself in earning of his livelihood by some means during the period he remained unemployed, but it cannot be said that he was engaged in an adequate profession earning adequate earnings which could deprive him of claiming the back benefits. A man of common prudence can easily understand that a bank employee awaiting the fate of his case, being unemployed never gets an adequate job but is forced to search for any mean job for keeping himself alive. If a Bank employee forced unemployed, during that period engages himself in selling candies on the street or doing any similar job then it cannot be said that he was having an adequate job which could legally deprive him of claiming the back benefits. It is quite true that the award of the back benefits is not to be given to the workman, deeming it as a punishment to the employee, but it is actually true that it has to he awarded as compensation to a workman who has remained on forced unemployment facing the difficulties of life for such period.