ATAULLAH SAJJAD (CHAIRMAN).---This appeal assails the order of Dr. Munir Ahmad Mughal, the then learned Member at Lahore dated 6-2-1993 which was passed in the following terms:-- "The grievance is that the petitioner was charge-sheeted on 20-5-1992 and has been suspended for an indefinite period. To charge-sheet is the right of the employer but suspension cannot be beyond twenty---eight days as such the impugned Order No AA-1200-Y, dated 20-5-1992 is suspended with effect from 16-6-1992. The respondent is directed to pay full wages and allowances to the petitioner with effect from 16-6-1992 and complete the enquiry and submit the final report of the Inquiry Officer under sealed cover to this Commission on 30-4-1993."
2. The facts which emerged out from the perusal of the file of the original case as well as, the record of the appeal and the arguments addressed at the bar, are these. Mr. Mubarik Ali Mehboobi, the respondent in this appeal is an Officer Grade-I of the United Bank Limited with emoluments of Rs.9,000 per month and holds a power of attorney from the bank. He was posted as a Manager in the Branch of Basti Malook of the Bank till 26-3-1992 and was thereafter transferred to Muzaffargarh. He was served with a charge-sheet dated 19-5-1992 which shows that between the period extending from 19-i1-1990 to 27-2-1992 he had on different dates committed acts of defalcation and embezzlement in the account of various account holders to the tune of Rs.3,15,000.
It is also mentioned in the charge-sheet that in order to conceal this misappropriation and embezzlement committed by him, the respondent fabricated a fake entry of Rs.3,15,000 debiting the Head Office Account, Chakwal Branch, resulting in credit to the account holders in relation to whose accounts he had committed the act of embezzlement. On 20-5-1992 he was suspended by the order of the Circle Executive, United Bank Limited dated 2ft-5-1992 on the charges of embezzlement and misappropriation and breach of trust. Earlier an FIR No. 19 of 1992 Annexure C with the record of this appeal, was lodged against him on 11-5-1992 with the FIA, CBC, Multan under sections 409, 420, 467, 468 and 471 of P.P.C. Read with subsection (2) of section 5 of Prevention of Corruption Act for embezzlement of Rs.3,15,000
3. The respondent challenged this order of suspension by way of Writ Petition No. 1695 of 1992 before the Multan Bench of the Lahore High Court which was ultimately dismissed on 17-12-1992.
4. The respondent thereafter approached the Single Bench of this Commission on 6-2-1993 stating that by the nature of his duties he fell within the definition of workman under the provisions of the Industrial Relations Ordinance, 1969 and other Labour Laws. He stated that he was a respectable member of the United Bank Limited Officers Association,, Multan and safeguarded the interest of the workers along-with the President and General Secretary of the UBL Officers Association. It was his case that on 26-3-1992 a special audit of the record of the bank of Basti Malook Branch was conducted for the period from October, 1991 to 25-3-1992 and nothing objectionable came to light.
He further stated that in his absence, his substitute at Basti Malook reported some mishandling to the respondents and without conducting any preliminary enquiry as has been prescribed under rule 39 of the UBL Staff Service Rules, 1981, the Circle Executive United Bank Limited, Circle Office, Multan Cant who is one of the appellants before us and had been impleaded as respondent No. 2 in the original petition, passed the order of his suspension from service on' 20-5-1992, The respondent stated in the petition that his suspension continued till the institution of the petition. He urged that under the Standing Orders Ordinance, 1968 his suspension could not be for more than twenty-eight days and the action of the Bank authorities was absolutely without lawful authority and against equity and natural justice. The respondent further stated in his petition that in their comments to the High Court, the Investigating Agency had submitted a report saying that simple departmental action may be taken in this case and from this the respondent inferred that the guilt as alleged in the FIR had not been substantiated by the complainant party and there was no justification for keeping him under suspension for a long time. He also stated that he attached the affidavits of the witnesses in the case with the petition as Annexures B to B/4 but on a reference to the file no such affidavits could be traced. It was prayed that the petition may be accepted and -- respondents (the appellants before us) may be restrained from committing unfair labour practice and particularly order dated 20-5-1992 may be quashed". It may be stated that the nature of the allegations against the respondent were not disclosed in his petition although copy of the suspension order dated 20-5-1992 Annexure A indicated that he had been "charged with embezzlement and misappropriation amounting to gross-misconduct and breach of trust".
5. It has been submitted before us by the learned counsel for the appellants that the impugned order dated 6-2-1993 was void ab initio because he respondent was a Manager getting Rs.9,000 as his emoluments and by no stretch of imagination could fall within the category of workman as defined in clause (xxviii) of section 2 of the Industrial Relations Ordinance, 1969. He submitted that this clause specifically excludes any person from the category of workman who is employed mainly in the managerial or administrative capacity and who being employed in a supervisory capacity draws wages exceeding Rs.800 per month and the nature of whose duties and functions is mainly of managerial nature. The learned counsel also submitted that the learned "Member practically disposed of the whole petition at the preliminary hearing without issuing notice to the present appellants. It was also submitted that the petitioner had not raised any issue about the enquiry against him and had not asked for any relief in that respect but the learned Member directed that the final report be sent to him under a sealed cover.
6. The respondent placed written arguments on the record and stressed that the impugned order was not a decision being an interim order and no appeal lay against it. It has also been stressed in the written arguments that the petitioner was a worker and in any case evidence should have been recorded to how the nature of his duties. I do not find any substance in the contention raised by the respondent in this regard. The matter in this case has been practically finally decided by the learned Member by quashing impugned order .a the preliminary hearing without notice to the other party and it amounts to a complete disposal of the case. As to the question whether the respondent is workman or not the indications on the record specially from his petition, were, hat he had been the manager of the Basti Malook Branch of the United Bank invited, was Grade-I Officer and was a member of the United Bank Officers Association. These facts prima facie indicated that the respondent was employed on the managerial side and was an officer and not a worker. It was for him to show that spite of being an officer he fell within the definition of worker as contained in the Industrial Relations Ordinance, 1969 and other Labour Laws.
7. In a petition under clause (g) of subsection (8) of section 22-A by a worker it is necessary that the petitioner should show that he is a worker and further that he has reasonable grounds to entertain an apprehension of victimisation through unfair labour practice on the part of the employer. In this case the respondent had not even alleged that he was a member of any Workers Trade Union. On the other hand lie had specifically stated that he was a member of the United Bank Limited Officers Association, Multan and safeguarded the interest of workers along-with President and General Secretary of the United Bank Limited Officers Association. There is no mention at all of any trade union of workers or even of any sort of liaison of the petitioner with' the trade union of the workers.
8. The petitioner had not disclosed the full facts of his case in the petition but it was apparent from the copy of the suspension order that he had placed on record, that he had been suspended for embezzlement and misappropriation. There is mention of the charge-sheet dated 19-5-1992 in this suspension order which gives the details of the charges against the respondent. The respondent conveniently did not place the charge-sheet dated 19-5-1992 on record which had been issued one day earlier than the suspension order. It would have been in the fitness of things in such a case of serious charges the learned Member should have issued a short notice to the appellants so that the full facts could have been placed before him and the management of the bank should have been saved from an ex parte adverse order. The learned Member in his order did not make reference to the law under which the period of suspension was curtailed to twenty-eight days but obviously the order was passed under clause 5 of Standing Order No. 15 of the Standing Orders Ordinance, 1968. A reference to clause 5 of the Standing Order No. 15 under which the learned Member curtailed the period of suspension to twenty-eight days, would disclose that .The provision deals with the punishment of workers and is specifically applicable to a worker. The respondent could not be termed as a worker either by nature of his functions or on the basis of the amount of his emoluments. On the other hand he was responsible to the higher officers for the supervision and control of the establishment employed in the Branch of the Bank at Basti Malook. The matter is concluded by the pronouncement of Supreme Court dated 9-1-1991 in Appeal No. 206 of 1988 entitled National Bank of Pakistan v. Punjab Labour Court No. 5, Faisalabad and Safdar Ali Khan. In this case the respondent Safdar Ali Khan was an Officer Grade-III in the National Bank of Pakistan and at the relevant time was the Manager Incharge of Khushab Branch when an inspection of the Branch took place in December, 1978 or near about and various irregularities were detected and a charge-sheet was framed against the respondent. The Supreme Court repelled the contention that the respondent was a workman. After analysing the definition of an employer in clause (viii) of section 2 and the definition of the worker and workman as contained in clause (xxviii) of section 2 of the industrial Relations Ordinance' 1969 the Court observed in para. 8 of the precedent case as under:-- As the Manager of a Branch of the Bank, he was the sole individual representing the employer, supervising and controlling that Branch of the Bank which is an `establishment' by itself. On that account the respondent clearly fell within the definition of an `Employer' and stood excluded from the definition of a `Worker' or a `Workman'.
9. The judgment concluded:-- "It is clear, therefore, that the respondent did not fall within the definition of a `workman' being incharge, Manager of a Branch of the Bank, in which capacity he was departmentally proceeded against and dealt with."
10. Respectfully following the above dictum of the Supreme Court, I find that the jurisdiction in this case was assumed in disregard of the facts of this case and the law applicable to it. I also agree with the learned counsel for the appellants that the learned Member in ordering that the final enquiry report should be sent to him under registered cover traveled beyond the prayer made in this case and of his own accord assumed the jurisdiction which in the circumstances was not his.
To proceed departmentally is an exclusive domain of the employer and unless there is a streak of unjustified and unfair labour practice, the Commission would have no jurisdiction to go into the regularity as otherwise of the enquiry.
11. In view of what as has been said above, I find that the impugned order dated 6-2-1993 in this case was passed without jurisdiction and against the principles of safe dispensation of justice. I would, therefore, accept this appeal and set aside the order dated 6-2-1993 of the learned Single Bench.