DECISION ' This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No, VII at Sukkur, dated 29-11-1988, whereby he ordered reinstatement of the respondent with full back benefits.
2. The brief facts of the case are that the respondent was admittedly employed by the Appellant No, 1 as Officer Grade III on 5-8-1975 and at the relevant time was posted as Manager, Garhi Khoro Branch of the National Bank of Pakistan. On 17-8-1983, he was served notice for imposition of penalty for the alleged misconduct, on 20-6-1983 to 17-8-1983. He was suspended vide order dated 18-8-1983 and after domestic enquiry he was removed from service vide order dated 13-5-1985. He preferred appeal but no decision was taken on this appeal therefore he served notice upon the appellants on 18-8-1985 which was replied by the appellants on 31-8-1985 and thereafter respondent filed grievance petition on 14-9-1985.
3. I have heard Mr. Partab Rai, learned Advocate for the appellants and Mr. Bashir Awan, learned Advocate for the respondent and have also gone through the record and proceedings of the case.
4. The main question that requires consideration is whether the respondent was a workman so as to invoke the aid of the Labour Court for the redress of his grievance. Admittedly at the relevant time he was posted as Officer GradeIII/Manager of Gardhi Khoro Branch. It is a small Branch of the Bank and according to Mr. Ali Nawaz, witness of the appellants, he had one Cashier and one Clerk working under him. It is now settled law that it is not designation but the nature of work 'that determines the status of the employee. Reliance is placed on PLD 1988 SC 633 and PLD 1988 SC
180. The respondent in his grievance application has stated in para. 2 that though he was designated Officer Grade-III, he has been predominately performing clerical duties and preparing vouchers, issuing tokens, making entries in the registers and doing balancing of account and other duties of clerical nature and that he had no hiring or firing powers. The appellant have produced two witnesses namely Ali Nawaz and Enquiry Officer, Mr. Saleem Ashraf. Ali Nawaz had not specifically replied that the respondent was performing the duties as alleged by him but states that he was Branch Manager of National Bank of Pakistan and by virtue of that he was Incharge of Bank and he was performing managerial and supervisory duties as a Manager. He has admitted that only one Clerk and one Cashier were working under the respondent. The Banks have normally to maintain lot of account books and also do lot of paper work. Under the circumstances as the respondent had only two other persons under him his contention that he was himself doing clerical work does not look improbable or unbelievable. The appellants being a big institution having their statutory rules was in a better position to prove the duties of the respondent by producing his lob description'. No 'Power of Attorney' has been produced by them so as to show that any 'administrative powers' were conferred upon the respondent. The Books of Account i,e, vouchers etc. Were within the power and possession of the appellants which they have not produced to show that they were not maintained by the respondent. They have also not produced any subordinate of the respondent to show that he was not doing any clerical work. Under the circumstances the contention of the respondent that he was doing clerical work stands un- rebutted.
5. In para. 10 of his grievance application the respondent had averred that the action had been initiated against him and he was dismissed from service under the provisions of National Bank of Pakistan Staff Rules, 1980. This averment is admitted by the appellants in Para. No, 10 of their reply statement. The question as to whether these Staff Rules were Statutory Rules so as to exclude the application of Standing Orders Ordinance was examined by the learned Division Bench of Karachi High Court in the Constitution Petition No,D-684 of 1982 in the case of National Bank of Pakistan Staff Rules, 1973 which were Statutory Rules. It was further held that the proceedings initiated under Staff Rules, 1980 were ab initio void and that the employee if he was a workman could approach the Labour Court under section 25-A for redress of the grievance.
6. Mr. Partab Rai, learned counsel for the appellants has argued that a dismissed servant was not workman as defined in section 2(xxviii) of the I.R.O., 1969. The definition of 'worker' or 'workman' under the Industrial Relations Ordinance is reproduced as under:- `worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or an apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceedings under this Ordinance in relation to an Industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge retrenchment, lay-off, or removal has led to that dispute but does not include any person--
(a) who is employed in a managerial or administrative capacity, or
(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.
7. Mr. Partab Rai has relied upon the case of Vice-President, National Bank of Pakistan, Gujranwala v. Punjab Labour Appellate Tribunal and others 1985 PLC 1053 wherein the learned Division Bench of Lahore High Court had observed that 'worker' having been dismissed in consequence of Industrial dispute was covered by definition of worker under section 2 of I.R.O., 1969, other categories of dismissed workers were outside the scope of this definition. They should seek remedy through Collective Bargaining Agent or through Civil Court.
8. The definition of "Industrial dispute" as defined under sections 2(xiii) reads as under:- "'Industrial dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance?, or any award or settlement for the time being in force."
9. The definition of 'industrial dispute' as defined under sections 2(xiii), vis- a-vis 25-A and 34 of I.R.O., 1969, was considered at length by a Division Bench of Lahore High Court, in the case of International Laboratories Employees Union v. Sindh Labour Appellate Tribunal 1976 PLC 38. The judgment is delivered by Mr. Justice Muhammad Haleem (as his Lordship then was):- "It was argued that the remedy of re-instatement in service was provided separately by subsection
(6) of section 25-A of the Industrial Relations Ordinance, 1969 and could be redressed as a grievance under that provision but re-instatement as a consequence of dismissal cannot constitute industrial dispute. However, their Lordships held that this argument had no substance, for in the definition of the word 'industrial dispute' wrongful dismissal and re-instatement are included in the concept of the expression 'employment or non-employment'. There is nothing in the language of section 25-A and particularly subsection (6) of that section to hold that by implication the question of reinstatement is impliedly taken away from the concept of the expression 'employment or non-employment'. Two remedies are provided by the statute for reinstatement, one by way of individual grievance under subsection (6) of section 25-A and the other by way of industrial dispute under section 34. The formal remedy was not available earlier as Standing Order No, 18 only provided for the reinstatement of the office-bearers of the Union unless the question was raised as an industrial dispute. It was therefore that the Legislature and its wisdom added subsection (6) and gave this remedy to workers but this did not affect the remedy available earlier in case and industrial dispute was raised".
10. In two other cases namely Abdul Ghafoor Gill v. Senior Staff Officer, Office of the Chief Engineer, Irrigation, Sargodha and another 1987 PLC (C.S.) 125 and Superintending Engineer (H.Q.) Irrigation, Lahore Zone and another v. Punjab Labour Appellate Tribunal and another 1987 PLC 180 a learned Single Judge of Lahore High Court relying upon the decision in the aforesaid case of Vice-President National Bank of Pakistan, v. Punjab Labour Appellate Tribunal held that dismissed employees were not covered by the definition of 'worker' under section 2 of the I.R.O., 1969. However, the aforesaid D.B. Decision of Punjab High Court in the case of Vice-President, National Bank of Pakistan, Gujranwala v. Punjab Labour Appellate Tribunal was challenged in the Supreme Court and judgment of the Hon'blc Supreme Court is reported as PLD 1988 SC 53. The learned Division Bench of Lahore High Court had held that the proceedings in the Labour Court were not maintainable on the ground that the Labour Court had no jurisdiction to entertain, try or adjudicate the grievance of workers employed by Nationalised Banks and that the dismissed workers employed by Nationalised Banks were not covered by definition of section 2(xxviii) of the Ordinance. Their Lordships of the Supreme Court did not agree with the decision of the High Court on the aforesaid report and held that Labour Court had jurisdiction and remanded the case to the High Court to consider other issues.
11. In view of this Supreme Court ruling there can be no dispute that dismissed workers are covered under the definition of 'workman' in the M.O., 1969. Most of the workmen approached the Labour Court for the re-instatement after dismissal and if they arc taken outside the purview of 'workmen' then the purpose and spirit of the Ordinance would stand practically defeated.
12. In view of the above discussion I am of the opinion that the respondent is a workman as defined in I.R.O., 1969. He had right to be proceeded against under 1973 Rules but his that right has apparently been infringed and he has been proceeded against, and removed under Staff Rules of 1980, which were inapplicable and as such the dismissal order passed by the appellants is not sustainable and is nullity in the eye of law and has been rightly set aside by the Labour Court. I find no merits in this appeal which is, accordingly, dismissed.