DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, IV at Karachi, dated 11-5-1989 whereby the grievance petition of the appellant was dismissed.
2. The facts leading to this appeal are that the appellant was admittedly working as Manager of the Branch of the Bank of the respondents at Shikarpur from 17-11-1981. On 24-6-1982 he was charge-sheeted in respect of certain alleged acts of embezzlement and misappropriation of bank money and after domestic enquiry he was dismissed from service vide letter, dated 11-1-1983. He preferred appeal against the said order which was dismissed on 5-1-1984. After service of grievance notice upon the respondent he filed grievance petition before the learned Labour Court which was resisted by the respondents on the ground that the appellant was not workman and that no grievance notice was served upon them and charges were proved against the appellant in domestic enquiry.
3. I have heard Ch. Abdul Lateef Saghar, learned Advocate for the appellant and Mr. Farooq Abdul Ghani, learned representative for the respondents and have also gone through the record and proceedings of the case.
4. The grievance petition was dismissed by the learned Labour Court only on the ground that the grievance notice has not been served upon the respondents. Copy:of grievance notice has been produced by the appellant in his affidavit-in-evidence Exh. A/26. It is addressed to M/s. Allied Bank of Pakistan through its President, Central Office, Karachi alongwith Postal Receipt dated 22-1-1984.
The appellant has stated on oath that he had sent the grievance notice to the respondents. This evidence leaves no room for doubt that grievance notice was sent by Registered Post to the respondents by the appellant on 22-1-1984. On the Registration Receipt words `A/D' are written which would show, that it was sent by Registered. Post Acknowledgment Due. A/D slip has not been produced which is not unnatural looking to the well-known inefficiency of the Postal Department.
However this notice sent on the correct address of the respondents by Registered Post would be presumed to have been received by them unless otherwise proved. This presumption is warranted under section 26 of the Sindh General Clauses Act and under section 114 of repealed Evidence Act equivalent to Article 129 of the `Qanoon-e-Shahadar, 1984. This legal presumption has to be rebutted by the respondent. No doubt the respondent had in the reply statement denied to have received the grievance notice, but neither the reply statement is verified on oath, nor the person who signed it has been examined. As such the averment in the written statement cannot be considered as evidence to rebut the evidence of the appellant. Reliance in this respect is placed on PLD 1972 SC 25. It is not alleged, that the address of respondent shown in the grievance notice is wrong. However one Mr. Raeesuddin has been examined by the respondents who states, that the respondent failed to submit any grievance notice to respondents bank and grievance notice mentioned by the applicant in Annexure A/26 was not received by the bank. It may be pointed out that the appellant sent notice to the address of the respondent at Karachi whereas Mr. Raeesuddin is working as Branch Manager of Bank at Sukkur. His evidence that the notice was not received by the respondent at Karachi would not be sufficient to rebut the evidence of the appellant supported by legal presumption under the law that the grievance notice was received by the respondents. Mr. Raeesuddin has not even stated that he had verified from the Head Office whether notice had been received or not. In the cross-examination of the appellant no question had been put to him suggesting that he did not send the grievance notice. Under the circumstances of this case, keeping in juxtaposition the evidence produced by both the parties and the legal presumption, in my opinion, it cannot be said that no proper grievance notice was served by the appellant upon the respondent. The grievance petition cannot be dismissed on that ground, specially in absence of any evidence of any employee of the respondents from the Head Office at Karachi to which address the 'notice was sent.
5. The next objection of the respondents to the maintainability of the grievance application is that the appellant was not a workman but an officer and therefore had no right to seek any relief under section 25-A. It is settled law that it is not the designation of the employee which determines the status of the workman but it is nature of the work actually done by him which 'determines his status as a workman. This issue was decided by the learned Labour Court against the respondents.
Cross-objections raising this issue have been filed in this appeal by the respondents. The learned Labour Court came to the conclusion that the appellant was a workman on the basis of his evidence on oath, in which he has asserted that he used to do clerical work of receipt, despatch, clearing balancing, maintaining accounts and passing of cheques, typing, making proposals, counting notes, preparing monthly, quarterly and half-yearly statements, opening and closing Strong Room, balancing of ledger and maintenance of Registers, whereas the respondent had not produced any evidence to show the nature of duties of the appellant but their witness has made a vague statement that the appellant used to control and supervise entire branch of the Bank. The main contention of the respondent is that the appellant was holding 'Power of Attorney' and as such he was not a workman. The mere fact hat the appellant was holding Power of Attorney would not ipso facto take him out of the definition of workman unless under the Power of Attorney he has been authorised to do certain functions of administrative and supervisory nature. It may be pointed out that the respondents have not produced any 'job description' showing the nature of duties and work that the appellant had to perform. The Power of Attorney has been produced as Exh. A/2. It does not appear to be signed by the appellant, but the powers conferred upon the appellant, under this Power of Attorney, are of Financial nature and not of 'Administrative or Supervisory nature'. The question as to whether the holding of Power of Attorney would exclude the holder from category of workman was considered by the Honourable Supreme Court in the case of Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others 1988 SCMR 1664. The learned Labour Appellate Tribunal in that case had held `it is true that the respondent holds a Power of Attorney but this power of a attorney is a delegation for the purposes of the financial transactions within the purview of the Banking Charter. There was no administrative delegation by this power of attorney.' The Manager of the Bank was therefore held to be a workman. Constitution Petition filed against that decision in the Peshawar High Court was dismissed and appeal filed in the Hon'ble Supreme Court was also dismissed and the order of the learned Appellate Tribunal was upheld.
6. In the case of Muhammad Sadiq v. Punjab Labour Court and another PLD 1988,SC 633 it was observed by their Lordships that the real test for determining whether a person falls within the ambit of the definition of workman depends on the nature of the duties performed by him. In the instant case, considering evidence on record and law discussed, I am in agreement with the learned Labour Court that appellant is a workman and uphold the decision of learned Labour Court on this point.
7. Neither the charge-sheet nor the order of dismissal shows as to under what Rules and laws the appellant was charge-sheeted or dismissed. I have dealt with number of cases of Banks and in all the cases the action usually initiated and dismissal orders were passed under Banks Employees Staff Rules, 1980 which are framed under the recommendation of the Wage .Commission Award for the Banks. The legal implication of these rules has been considered in number of cases by this Tribunal, by High Court as well as the Supreme Court and it is settled law that these Banks Employees Staff Rules are not Statutory Rules and would, therefore, not exclude the application of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in the case of such employees who are held to be workmen. The latest decision in this context is of the Division Bench of the Sindh High Court in Constitution Petition No, D-684 of 1982 in the case of National Bank of Pakistan v." Sindh Labour Appellate Tribunal decided on 1-1-1989.
8. The learned Labour Court has not given any decision on merits though this Tribunal by its order, dated 6-11-1988 in Appeal No,,KAR-101 of-1987 had remanded the case back to the learned Labour Court for decision on merits, but has only dismissed the grievance petition on technical ground that grievance notice was not served. I have set aside that finding of the learned Labour Court and, therefore, remand the case back to the learned Labour Court for deciding the case on merits on other issues, after hearing the arguments of the parties as the evidence has already been recorded. The Labour Court is directed to dispose of the matter as early as possible.