DECISION ' This is an appeal against the order, dated 5-3-1990, passed by learned Presiding Officer, Sindh Labour Court No,VI at Hyderabad, whereby grievance petition of the respondent was allowed and he was ordered to be reinstated with full back benefits.
2. I have heard Mr. Hakim All Siddiqui, learned Advocate for the appellants and Mr. Bashir Awan, learned counsel for the respondent and have also gone through the record and proceedings of the case.
3. The respondent was admittedly employee of the appellant when on 21-7-1986 he was charge- sheeted for having committed misappropriation of fee of T.V. Licences amounting to Rs,16,800.
Domestic enquiry was held in which he was found guilty and he was given second show-cause notice on 8-12-1986. He was dismissed by order, dated 7-6-1989. He filed appeal against this order of dismissal on 5-7-1989 but it remained undecided. He, therefore, served grievance notice upon the appellants on 5-11-1989 and then filed grievance petition in the Labour Court on 3-12-1989. The appellants put in appearance in the Labour Court alongwith their counsel Mr. Hakim Ali Siddiqui on 8-11-1990 and sought adjournment for filing Reply Statement. The case was adjourned at the request of appellant to 21-1-1990 and then to 10-2-1990. Because of the absence of the appellants and their Advocate the matter was ordered to proceed ex parte against the appellants. The appellants moved an application for setting aside ex parte order on 14-2-1990 which was dismissed on 4-3-1990. The grievance petition was decided ex parte in favour of the respondent on 5-3-1990.
4. Mr. Hakim All Siddiqui contends that he had shown valid ground for remaining absent and, therefore, the learned Labour Court was wrong in not setting aside ex parte order. The matter was fixed for filing of reply statement. Even if the counsel was busy in some other Court his junior or Officer of the appellants could have filed the reply statement in the Labour Court for which they got about three adjournments. The 'Labour Laws' are 'Welfare Legislation' enacted for the benefit and welfare of the Labour and require speedy decision. Even under section 25-A(4) when the grievance is taken to the Labour Court the Labour Court has to decide it within seven days. The Labour Court had shown enough indulgence to the appellants by giving two-three adjournments and, therefore, cannot be said to have erred in not setting aside ex parte order.
5. I have heard Mr. Hakim Ali Siddiqui on the merits of the case also. His main contention is that the grievance application was not maintainable as the respondent was an officer drawing a salary of about 2,950. It is settled law that it is not the designation of the employee which is determining factor with regard to his status but it is nature of the work that he performs which determines his status as a workman. Reliance in this respect is placed on the decision of Hon'ble Supreme Court in the case of Security Paper Limited v. Sindh Labour Appellate Tribunal and another PLD 1988 Supreme Court 180. Mr. Hakim All Siddiqui has contended that the respondent was holder of `power of attorney' from the Bank. He has produced photostat copy of this power of attorney. Under this power of attorney financial and other powers have been delegated to the respondent but does not contain the 'Job Description' or the 'work' that he had to perform. The respondent himself has given the details of his duties that he used to perform, which show that he was doing a work which involved duties of clerical and manual nature. He would, therefore, be deemed to be a 'workman'.
6. Mr. Hakim Ali Siddiaui has also produced copy of 'reply statement' that he intended to submit alongwith the set of documents. This copy of `written statement' still remains unsigned. I have gone through it in order to appreciate contention of Mr. Hakim Ali Siddiqui with regard to the status of respondent and I find even under this proposed reply statement there are no details of `Job description' or duties the respondent used to perform.
7. Admittedly the respondent was proceeded against under Bank Staff Rules, 1980 framed under the Wage Commission Award of 1975. It has been held by this Tribunal as well as High Court of Sindh that this Wage Commission Award and Rules framed thereunder are not 'statutory rules' and, therefore, would not exclude the application of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The learned Division Bench of Sindh High Court in the case of National Bank of Pakistan v. Sindh Labour Appellate Tribunal and others PLC 1990 page 197 has held that the 'proceedings initiated under these Staff Rules were illegal and without legal authority from the very inception that is from issuance of the charge-sheet.' I also find that the charge-sheet dated 21-7-1986 does not show when the misappropriation came to the knowledge of the appellants and whether it was within the period specified under Standing Order 15(4). Mr. Hakim Ali Siddiqui has produced the letters of T.V. Corporation which are dated 6-2-1985 and 16-12- 1985. If these letters are considered to be basis of the information, the charge-sheet, dated 21-7- 1986 would obviously be time-barred. Two other letters of T.V. Corporation are dated 23-7-1986 and 28-12-1987 viz. After the charge-sheet and are, therefore, of no avail: I also find from the evidence on record that though the respondent was charged for having mis-appropriated certain amount but second show-cause notice, dated 8-12-1986 shows that the Enquiry Officer found him guilty of two charges. Apart from the charge of misappropriation, he also found him guilty of insubordination. In other words the Enquiry Officer has taken extraneous matter into consideration while arriving at the conclusion that the respondent was guilty. I also find that though the second show-cause notice was given on 8-124987 and was also duly replied by the respondent still order of dismissal was passed after 2-1/2 years viz. 7-6-1989 and during all this period the respondent was kept under suspension. There can be no doubt that in passing this order the authority concerned must have taken into consideration the report of the Enquiry Officer which found the respondent guilty of misconduct for which he was not charged. This would naturally have prejudiced the authority who passed the dismissal order after undue long delay.
8. Keeping in view this conduct of the appellants and the merits of the case I do not think it just and proper to set aside the impugned order and to add to the torcher of the respondent by remanding the case for re-trial after setting aside the ex parte order.
9. The appeal is, therefore, dismissed.