This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the decision dated 28-7-1988 passed by the Punjab Labour Court No. 4, Faisalabad, hereinafter referred to as the Labour Court, to the extent of its findings given in paragraphs 4 and 5 thereof, and the judgment dated 24-10-1988, passed by the Punjab Labour Appellate Tribunal, Lahore, hereinafter referred to as the Tribunal, whereby it set aside the decision of the Labour Court dismissing the grievance petition of Saeed Akhtar Shah, respondent No. 3, and ordering his reinstatement in service without back benefits.
2. The brief facts are that, while respondent No. 3 was working as Assistant in the Muslim Commercial Bank Limited, Faisalabad, he was charge---sheeted on 17-8-1981 for allegedly conniving/cooperating with the Manager of the said Branch in the commission of fraud to the extent of Rs.40,00,000 committed by the Manager of the petitioner-Bank and other staff of Hajiabad Branch. An Enquiry Officer was appointed, who after holding enquiry, in his report dated 10-12-1981 held respondent No. 3 guilty of the charges. Persuant to the above finding of the Enquiry Officer, issuance of final show-cause notice dated 24-12-1981 and consideration of respondent's reply dated 29-12-1981, the Circle Officer, Faisalabad, advised the Zonal Officer, Faisalabad, to dismiss respondent No. 3 from the service of petitioner-Bank vide letter dated 19-1-1982.
Consequently, respondent No. 3 was dismissed from the service of the petitioner-Bank vide letter dated 19/20-1-1982. After serving notice under section 25-A of the Industrial Relations Ordinance, hereinafter referred to as the Ordinance, respondent No. 3 filed a grievance petition under the aforesaid provisions before the Labour Court, which was resisted by the petitioner inter alia on the ground that the petition was not maintainable and was barred by time. These legal objections were repelled by the Labour Court, but on merits the dismissal order was held to be justified vide decision dated 28-7-1988. On appeal, the Tribunal after thoroughly re-appreciating the evidence, recorded a finding of fact that charges against respondent No. 3 were not proved. Consequently, respondent No. 3'"was ordered to be reinstated in service without back benefits.
3. The first plea raised in the writ petition is that the Tribunal and the Labour Court had failed to appreciate that the very initiation of the proceedings under section 25-A of the Ordinance through counsel/legal practitioner was without jurisdiction, in that, the petition should have been presented in person by respondent No. 3 himself, therefore, the entire proceedings are void ab initio in view of the judgment delivered in the case of Messrs Dandot Cement Company Ltd. v. Punjab Labour Appellate Tribunal and another (1985 PLC 413), wherein it was held that legal practitioner is not authorised to present a petition under section 25-A of the Ordinance before the Labour Court, although a worker is authorised to employ an attorney for taking matter before the Labour Court.
4- The case of M/s. Dandot Cement Company (supra) was, however, overruled by the Full Bench of this Court in the case of Habib-ul-Haq v. The Sargroh Vegetable Ghee and General Mills and others (1991 PLC 899), wherein it was held that presentation of grievance petition by a worker himself is not essential requirement of section 25-A(4) of the ordinance, and there is no express bar to the making of an application by a pleader on behalf of a worker and, therefore, by virtue of Order III, Rule 1, C.P.C., an application on behalf of a worker could be presented by an Advocate. Respectfully following the rule laid down in Habib-ul-Haq (supra), the first objection is hereby turned down.
5. The second plea raised by the learned counsel for the petitioner is that respondent No. 3, being a dismissed person, was no more covered by the definition of worker or workman as given under section 2(xxviii) of the. Ordinance and, therefore, he was not competent to invoke the jurisdiction of the Labour Court and the Tribunal. Viewed from this aspect, it was argued that the entire proceedings before the Labour Court and the Tribunal were coram non judice and nullity in the eye of law.
6. A question also arose in the case of Iftikhar Ahmad and others v, President, National Bank of Pakistan and others (PLD 1988 SC 53), whether the dismissed workers employed in the nationalised banks and financial institutions are not covered by the definition of worker as embodied in section 2(xxviii) of the Ordinance. It was, however, not disputed before the Supreme Court that the Ordinance applied to the Banks and such of the employees as were covered by the definition of "worker" or "workman" as given in section 2(xxviii). Also see Habib Bank Ltd. v. Shamim Hussain etc. (1988 PLC 951), wherein it was held that dismissed worker has a locus standi to seek redress under section 25-A of the Ordinance regarding grievance arising out of his dismissal and that grievance concerning non-employment of a terminated/dismissed workman taken before Labour Court under section 25-A ibid is deemed to be an industrial dispute within the purview of section 2(xiii) of the Ordinance. The second plea raised by the learned counsel for the petitioner, therefore, fails.
7. Reference may also be made to clause (xxviii) of section 2 of the Ordinance, which gives definitions of the terms ---worker---, and "workman". A reading thereof shows that a "worker" means any person not falling within the definition of employer who is employed in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, but it does not include any person-- (a)who is employed mainly in a managerial or administrative capacity, or (b)who, being employed in a supervisory capacity draws wages exceeding Rs.800 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.
The determination of question whether a person is a workman or not within the ambit of clause (xxviii) of section 2 of the Ordinance, can be determined not on the basis of designation of his post, but on the basis of the duties which he was actually performing at the relevant time. Here the record does not indicate what salary respondent No. 3 was drawing. It is not the case of the petitioner that respondent No. 3 at the relevant time was performing duties in a managerial or supervisory capacity. The only objection raised by the petitioner in its reply to the grievance petition was that the salary drawn by respondent. No. 3 exceeded the lawful salary prescribed for a workman. Apart from this bald allegation, no evidence was led by either parties on this question.
This plea was not taken even in the writ petition or during the course of argument and, therefore, it is not necessary to dilate further on this aspect of the case.
8. The third plea raised by the learned counsel for the petitioner is that the Tribunal has erred in holding that the order of dismissal of respondent No3 ---vas passed by an officer who had no jurisdiction to do so. It was argued that the Tribunal has totally overlooked the power of attorney (Exh.R-11) issued by the petitioner-Bank in favour of the officer who passed/conveyed the dismissal order to respondent No.3. Attention of the Court was drawn to para. 2 of the said power of attorney where a provision existed "To engage, employ, control and dismiss Clerks, Servants and others whether engaged by the said Attorney or by the Bank or otherwise".
9. As regards the third plea, it may be seen that respondent No.3 was admittedly working as an Assistant. He fell in Category-II as per Rule 6 of the Muslim Commercial Bank Ltd. (Staff) Service Rules, 1981. According to Serial No.14, the power to issue charge-sheet up to Category-II was given to Heads of Zones. Here the charge-sheet was issued to respondent No.3 by the Vice-- President and not Head of Zone the letter of enquiry was also issued by the Vice-President of the Regional Office. The order of dismissal was issued by the Vice-President of Zonal Office. A perusal of the power of attorney (Exh. R-II) indicates that the power to dismiss the employees was given to Mr. Islamud Din son of Abdul Majid on 15-1-1979, whereas the Service Rules of the Bank came into force w.e.f. 1-1-1981. It is well-settled that a delegatee cannot further delegate his power and, therefore, no power delegated by the Executive Board could be further delegated through power of attorney to Mr. Islamud Din, whose delegation was also not mentioned in the power of attorney. Even in the dismissal order his name has not been mentioned. The third plea, therefore, also fails.
10. The fourth plea was that the enquiry proceedings conducted by the petitioner-Bank suffered from no infirmity and, therefore, the Tribunal erred in recording a finding contrary to the finding arrived at by the Enquiry Officer.
11 The fourth plea is also devoid of any force. The Labour Court under section 25-A(5) of the Ordinance, has jurisdiction to go behind the dismissal order and see for itself whether on facts and in circumstances of a case dismissal order was or was not justified both on merits as well as on law. Subsection (5) of section 25-A provides another forum for determining the grievance afresh after considering the facts on which impugned dismissal is based. Refer Crescent Jute Products Ltd., Jaranwala v Muhammad Yaqub etc. (PLD 1978 SC 207). The Tribunal as an appellate authority can exercise the same power as vested in the Labour Court. The Tribunal, therefore, has the jurisdiction to go into all the facts of the case for doing full justice and to arrive at its own conclusion regardless of there being no illegality of procedure in the domestic proceedings and the findings recorded by the Labour Court.
12. It was lastly contended that the order of the Tribunal is based on misreading of evidence and misconstruction of documents Exhs. R-10, R-12 and R-13. Learned counsel for the petitioner has, however, not been able to show any material misreading or misconstruction of the aforesaid documents. This question was dealt with at length by the Tribunal vide para. 9 of the judgment. It was observed:-- "It is, therefore, doubtful if at the time the charge-sheet was issued whether the power given to the authority who had issued the charge-sheet existed or had been cancelled before that------------ --------------------------------------------------------- it was not proved that the charge sheet was issued by the competent authority. Same may be said about the appointment of the inquiry officer."
13. Be that as it may, even if it is assumed that the Vice-President, who passed the dismissal order, was competent to do so on the basis of the documents sought to be relied upon by learned counsel for the petitioner, the fact remains that on merits a finding of facts has been recorded by the Tribunal after proper appraisal of evidence on record that the charges against respondent No.3 were not proved. This finding does not suffer from any material misreading warranting interference in the exercise of writ jurisdiction.
Resultantly, the writ petition fails and is hereby dismissed; but there shall be no order as to costs.