1. ' KAMAL MANSUR ALAM, J.-This Constitutional petition filed by the petitioner seeks to challenge the order dated 17-4-1988 passed by the learned 7th Sindh Labour Court at Sukkur and the decision dated 30-8-1988 passed by the learned Sindh Labour Appellant Tribunal in Appeal No,SUK-182/88 and SUK-187/88.
2. The facts of the case briefly stated are that the respondent No,3 was appointed by the petitioner Bank as Assistant Cashier on 22-6-1972 and worked in various branches of the petitioner. In December 1982 while he was posted at Khanpur Mehar Branch as an Officer Grade-III he was served with a Letter of Charge dated 30-12-1982 alleging "misconduct said to have been committed by the said respondent in August, 1981. The said Letter of Charge was duly replied by the respondent No,3. It appears that thereafter the employer decided to hold an enquiry into the matter and appointed an Enquiry Officer of which intimation was given to the respondent No,3 requiring him to appear before the Enquiry Officer on 8-2-1983 when the enquiry was held. This followed by the Letter of Dismissal of 28-8-1983 whereby the said respondent was dismissed from the service of the Bank. Against this dismissal order an appeal was submitted to the petitioner- Bank which appears to have been rejected whereupon a grievance notice under section 25-A, I.R.O.
3. 1969 was served by the respondent on the petitioner and finally a grievance petition being Application No, 152 of 1984 under section 25-A, I.R.O., 1%9, was filed by the respondent No,3 before the VIIth Sindh Labour Court at Sukkur. The petition was allowed by the impugned order dated 17-4- 1988 and the respondent No,3 was directed to be reinstated in service with back benefits for six months. Against the said order appeal was filed by the petitioner as well as the respondent No,3 being Appeals Nos,SUK-182/88 and SUK-187/88 respectively. Both these appeals were disposed of by the impugned order dated 30-8-1988 passed by the learned Appellate Tribunal which while dismissing the appeal filed by the petitioner allowed the appeal of the respondent No,3 with the result that he became entitled to full back benefits.
4. ' Mr. Obaidur Rahman, learned counsel for the petitioner, has attacked the impugned orders on three grounds. His contention was firstly that as the respondent No,3 was not a workman his grievance petition was not maintainable secondly, that the respondents No,1 and 2_ erred in holding that the charge-sheet was barred by time, and thirdly, that in any case the said respondent had admitted the charges.
5. ' For the first contention the learned counsel's submission was that the respondent No,3 was working as a Manager at the time alleged misconduct was committed by him. The counsel referred to para. 3 of the written statement filed by the petitioner before the respondent No,2 wherein it is stated: "That at the relevant time to which the allegations pertain the applicant was working as Manager at Kot Lal Bux Mahesar Branch and was drawing more than Rs,1,000 p.m. As wages and being incharge of the Branch was performing Supervisory duties and as such is not a Worker or Workman for the purposes of I.R.O. And is not entitled to invoke the jurisdiction of this Hon'ble Court."
6. ' He then referred to the cross-examination of the respondent No,3 before the respondent No,2 where the respondent No,3 stated "In 1981 I was posted in Kot Lal Bux Mahesar Branch and in that branch I was Manager. It is incorrect to sugge:t that my total salary as Manager at Kot Lal Bux Mahesar was Rs,1,537. The Manager is supposed to control the entire branch." The contention of the learned counsel for the petitioner was that the petitioner had right from the beginning taken the position that the respondent No,3 was not a workman within the meaning of I.R.O. And Standing Orders Ordinance and therefore his petition under section 25-A of the I.R.O. Before the respondent No,2 was not maintainable. This plea of the petitioner, he stated, stood established by the admission of the respondent No,3 in cross-examination which has been reproduced above. When pointed out that no specific duty of managerial or supervisory nature, which the respondent No,3 was allegedly performing, while he was said to be working as A Manager, has been disclosed by the petitioner, the learned counsel stated that the aforesaid admission of the respondent No,3 showed that the Manager is supposed to control the entire branch and, therefore, since the respondent No,3 was controlling the branch he was supposed to be performing the duties of managerial and supervisory nature.
7. ' In support of his second objection the learned counsel drew our attention to the evidence of Muhammad Iqbal Aziz before the Enquiry Officer where he stated that when the Zonal Officer, Larkana came to know of the alleged misappropriation by the respondent No,3, it communicated this to the Circle Officer and the Zonal Office, Sukkur, by letter dated 1-12-1982 and it was then that the misconduct came to the knowledge of the appropriate authority and accordingly, he submitted, that, by virtue of clause (4) of Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 the period of one month would commence from 1st December 1982 when the alleged misconduct came to the knowledge of the employer. It may.
8. However, be stated that the said letter dated 1-12-1982 by which the employer is claimed to have been informed of the alleged misconduct was neither produced in the enquiry nor before the Labour Court.
9. ' In so far as the third contention is concerned, the learned counsel made a reference to the explanation of the respondent No,3 where the said respondent is alleged to have admitted the misconduct.
10. Mr. Nooruddin Sarki, learned counsel for respondent No,3 has in reply disputed the contentions of the learned counsel for the petitioner. With regard to the first point he submitted that the respondent was neither promoted to the grade of Manager nor he was working as such at Kot Lal Bux Mahesar branch of the petitioner at the time of the alleged misconduct. He referred to the cross-examination of petitioner's witness Rehmatullah before the respondent No,2 . The witness stated that: ' The applicant was performing the duties of Manager being incharge officer. I do not know if there was any order in writing given to the applicant for performing duties of Manager. The applicant used to maintain the Register of Cash, Ledger."
11. ' It was contended, and rightly, that it was inconceivable that the respondent No,3 could be promoted to the position of manager or could perform the duties of the manager without written orders of a competent authority, It was further pointed out that maintenance of register of cash and ledger were purely clerical duties and these were the duties that the respondent No,3 was admittedly performing. It may be mentioned here that in his affidavitin-evidence before the respondent No,2, although the respondent No,3 specifically stated in para 4 that, "I used to perform the duties of a cashier mainly that is entering in cash registers and account books, correspondence, preparation of vouchers etc. I also used to do the accounts work of the bank", yet .Neither this statement was challenged in his cross-examination nor even expressly denied in the evidence of the petitioner. On the contrary, petitioner's witness, in his cross-examination reproduced above admitted the assertion of the respondent No,3 with regard to the duties being performed by him.
12. It is well-settled that the question as to whether or not an employee falls in the category of 'workman' as defined under the Standing Orders Ordinance or the Industrial Relations Ordinance, depends on the nature of work done by him and not on his designation. In the present case there is nothing to show that the respondent No,3 was performing any managerial or supervisory work at the relevant time. A mere assertion that the respondent No,3 was doing managerial or supervisory work without specifying such work would be of little consequence in the circumstances of this case, where the initial employment of the respondent No,3 was in a clerical position and the admitted duties that he was performing was clearly clerical in nature. We are, therefore, unable to accept that the respondent No,3, on the record of the case, can be said to be performing managerial or supervisory work or that he was not a workman under the aforesaid Ordinances.
13. ' The second contention of the learned counsel for the petitioner is also without force. There is no dispute that the charge-sheet was issued to the respondent No,3 more than one year after the alleged misconduct, but it was sought to be argued by the petitioner's counsel that the same was within time as it was issued within one month of the date on which the alleged misconduct came to the notice of the employer, as prescribed under clause (4) of Standing Order 15 of Industrial and Commercial Employment (Standing Orders) Ordinance. The relevant portion of the said clause (4) reads as follows: "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer ' In support of his submission the counsel referred to the statement of petitioner's witness Muhammad Iqbal Aziz recorded during the enquiry proceedings, where he stated, that, on receiving this report (regarding the alleged misconduct) the Zonal Office, Larkana, conveyed the incident to the Circle Office and Zonal Office, Sukkur, by letter dated 1-12-1982. It was through this letter, the learned counsel stated, that the misconduct came to the notice of the employer and consequently the charge-sheet issued on 30-12-1982 was within time. Except for this passing reference to the letter dated 1-12-1982, there is nothing on record to suggest that the alleged misconduct came to the notice of the employer for the first time through the aforesaid letter.
14. Needless to say that the burden was entirely on the petitioner to show that the alleged misconduct came to the notice of the competent authority within a month preceding the charge-sheet, yet the very document namely, the said letter dated 1-12-1982 on which the petitioner placed reliance for establishing the assertion was not even brought on record for the examination of the Court.
15. Without such examination, we are afraid, it is not possible to accept that it was through this letter that the alleged misconduct for the first time came to the notice of employer, all the more when there is an unexplained inordinate delay of over a year in writing the letter. In these circumstances no fault can be found with the finding of the respondent No,2 that the charge-sheet was time- barred.
16. In view of our conclusion on the first two points raised by the petitioner's counsel, we do not find it necessary to go into the third objection of the learned counsel which even otherwise is purely a question of fact and does not seem to have been taken up by the petitioner before respondents Nos,1 and 2.
17. ' The upshot of the above discussion is that we find no merit in the petition and dismiss the same.
18. The parties are, however, left to bear their own costs.