' This is an appeal against the decision dated 23-11-1976 of Punjab Labour Court No, 1, Lahore.
2. Pervez Ahmad, respondent was employed by the Habib Bank Limited on 11-2-1969. At the relevant time i. e. In 1)74 he was posted Incharge Bills Department, Habib Bank Ltd., Markaz Branch, The Mall, Lahore. Towards the end of tie year of 1974 an embezzlement to the tune of Rs, 7,00,000 was detected in the aforesaid branch and it concerned Bills Department. A case under sections 439/420/463/467/471/4741475/380109, P. P. C. Was registered against the respondent on 12-12-1974.
As a result of police investigation, the respondent was not found guilty and involved in the fraud. He was consequently discharged by the Magistrate on 24-4-1975. In the meanwhile the Management of the Back decided to take action against the respondent. Consequently, on 13-2-1975 a charge- sheet Exh. P-3 was issued to the respondent vide forwarding letter Exh. P-2, which he received on 18-2.75. It was a lengthy charge-sheet containing many allegations. The respondent submitted his reply Exh. P-4 dated 20-2-75.
3. In paragraph 5 of the reply submitted by the respondent it was mentioned that the memorandum contained various documents having bearing on the allegation and so it was not possible for the respondent to give explanation without consulting the relevant record. The respondent prayed that if at all the explanation was required, he be allowed detailed inspection of the record concerned.
4. In paragraph 6 of the reply it was mentioned that the procedure adopted for issuance of the memorandum and the appointment of the Inquiry Officer was illegal and unlawful.
5. On 20-2-1975 the respondent submitted a letter Exh. P-9 to the Inquiry Officer that the enquiry be postponed till the decision on the points raised in the reply statement &h. P-4.
6. Without sending any reply or holding any enquiry, the respondent was informed vide letter dated 10-5-1975 Exh P-28 that he had been dismissed from service with effect from 3-3-1975.
7. The respondent filed a petition under section 25-.A of Industrial Relations Ordinance, 1969 for his re-instatement with back benefits on 28-6-1975 before the Labour Court, which accepted the same and ordered his re-instatement with back benefits ride decision under appeal.
8. Aggrieved by the above decision, Habib Bank Ltd., through its Senior Vice-President, appellant has preferred this appeal.
9. The learned counsel for the appellant, besides challenging the decision of the Labour Court on merits, raised the following legal objections t-
(1) That the petition under section 25-A of Industrial Relations Ordinance, 1969 filed by the respondent was barred by time.
(2) That the respondent was not a workman and as such could not invoke the jurisdiction of the Labour Court.
' Legal Objection No, 1.-From the perusal of the record I find that the respondent for the first time was informed vide letter dated 10-5-1975 Exb. P-28 that he had been found guilty of serious charges and that he had been dismissed from service with effect from 3-3-1975 vide letter Exh. P- 29 of Senior Vice-President. There is no proof forthcoming on the record to show that the latter Exh.
P-28 was ever received by the respondent. He had come to know only through letter Exh. P-28 dated 10-5.1975 that he had been dismissed from service with effect from 8-3-1975. The petition under section 25-A of Industrial Relations Ordinance, 1969 was filed by the respondent on 28.6-1975, which was within two months of the letter dated 10-5-1975 Exh. P-28 and as such was within time.
10. In view of the above, this legal objection is rejected as being frivolous.
11. Legal Objection No, 2.-Before deciding this legal objection, it has to be determined as to whether the Wage Commission Award dated 12-5-1975, gazetted on 9-6-1975 is applicable. According to paragraph 302 of the Award, it has been made applicable to Banks and Financial Institutions with effect from 1-1-1975.
12. According to section 38-G of Industrial Relations Ordinance, 1969, the decision of the Wage Commission shall be binding on all employers concerned with the decision in relation to their workers and every such worker shall be entitled to be paid wages and governed by the terms and conditions determined by the Wage Commission.
13. According to section 38-D of Industrial Relations Ordinance, 1969, a decision of the Wage Commission published under section 38-C shall be deemed to be an Award of the Full Bench of the Commission and the provisions of this Ordinance applicable to such award, including the provisions of sections 51 and 55, so far as may be and with the necessary modifications shall apply to the decision of the Wage Commission. Thus it is clear that the Wage Commission Award will be applicable.
14. In paragraph 54 of the Award it is mentioned ,- "In a banking industry, the status of an employee as to whether he is a 'worker' or a non-worker' changes with a change in his posting. Changes in postings being of daily occurrence it is likely that an employee who was standing in the line of 'non-workers' yesterday may have today fallen in line of 'workers' and vice versa. The wage Commission has been charged with the task of flair g the rate of wages and determining other terms and conditions of service of 'workers of the nationalised banks and financial institutions. The Commission is to formulate scales of pay and allowances not for few individual categories of 'workers' only but, on the other band, it has to prepare a wage structure for all the numerous categories of such employees. As already brought out, the complexion of employees in the banking industry goes on changing from 'non-worker' to 'worker' and vice versa. It is, therefore, not possible for the Wage Commission to single out such employees of the nationalised banks and financial institutions who fall within the definition of 'worker'. In the circumstances, the Commission could do no better than to ask the banks and financial institutions concerned to furnish to the Commission a list of employees whom they have been treating as 'workers' in settling industrial disputes. The information received by the Commission is contained in Annexure III."
15. In paragraph 55 of the Award it Is mentioned :- "The Wage Commission have neither the time nor the necessary machinery to straighten out the definition of 'worker'. The need for having, in the light of the relevant laws and previous decisions of the Court, as a clear cut definition of the term 'worker' which should be free from all ambiguities and vagueness is, however, very much indicated. It is to be hoped that the Government would take necessary action in this regard. In the meantime, the Wage Commission have no option but to consider the information regarding the categories of workers supplied by the nationalised banks and financial institutions as valid and to proceed with their work accordingly."
16. Thus from the above it is clear that the Wage Commission have not determined as to who is a 'worker'. They have merely relied on the list of 'workers' supplied to them by the banks and financial institutions. In other words, the decision as to whether a person is a 'worker' or 'non worker' has been left entirely to the banks and financial institutions. In view of the above, recourse has to be made to the Labour Laws in order to decide whether an employee of a bank or financial institution is a 'worker' or 'non-worker'.
17. In the case of Chairman, Brooke Bond (Pakistan) Ltd , Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi it was observed :- "A workman is employed in an industry to do skilled or unskilled work which is 'manual or clerical'.
Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same. The true nature of the duties performed by the employer is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and axiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not the sundry duties incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case."
18. In view of the above, it has to be seen as to what were the main and primary duties of the respondent.
19. According to the evidence on the record, at the relevant time the respondent was posted in the Bills Department of Habib Bank Limited Markaz Branch, The Mall, Lahore. Mr. Mubarak Ahmad Khokhar, Manager was in charge of the Branch. In all there were three officers, four clerks, four cashiers and three peons. All of them were subordinate to the Manager of the Branch.
20. According to the respondent, his duties were to maintain the Security Stationary Register.
Cheque Book Issue Register, Inward Bills for Collection Register, the Parcel Register, Collection Register and Outward Telegraphs Transfer Register, that he maintained these registers in his own hands and had no power or authority to employ or terminate the services of any employee of the Bank, that he had no power to give, leave to any employee, that he himself submitted leave applications to the Branch Manager, that in the month of December 1974 he developed trouble on account of anal abscess and got himself admitted in Mansab Clinic, Fane Road, Lahore, that on 4- 12-74 he was operated upon in the said Clinic and was discharged from the Hospital on 15-12-1974, that thereafter he was advised complete rest for about one and half months, that during the period1 of' his ailment he had been sending his leave applications to the Branch Manager with a copy to the Controller of the Branches, that in the second week of February, 1975 he was not allowed to resume duty, that he was not afforded any opportunity of personal hearing and that he was suspended on the charge of absence from duty, but he was dismissed on the charge of embezzlement. He also added that no enquiry was held against him.
21. In rebuttal Mr. Mubarak Ahmad Khokhar, Officer, Zonal Office who appeared as RW-1, stated that when he was posted as Manager Markaz Branch, Habib Bank Ltd., The Mall, Lahore, the respondent was then incharge of Bills Department and that he also was a holder of power-of-attorney as Officer Incharge of the Bills Department and had subordinate staff working under him. He admitted that the respondent used to personally maintain Security Stationary Register and Loose Cheques Issue Register and that he (the witness) was incharge of the respondent.
22. Neither any duty roster nor any other document was produced by the appellant-Bank to prove that the respondent was not a workman. The onus was on the appellant to prove that the respondent was not a workman, which he failed to discharge. The only evidence regarding the true nature of the respondent's duties is the oral evidence of Mr. Mubarak Ahmad Khokhar, which is not enough to establish that the respondent was not a workman. Since the appellant failed to discharge the onus place upon him, the presumption would arise in favour of the respondent. I am fortified in this view by the judgment of the Sind Labour Appellate Tribunal in the case of Jasmine Cotton and Silk MIII,, Karachi v. Shujaaat Ali.
23. In any case from the evidence available on the record I find that the respondent personally maintained several registers in the Bills Department of the Branch and made entries in these registers himself. He performed manual and clerical duties himself and had no power to hire and fire. He was answerable to the Branch Manager and various other functionaries.
' His wages were less than Rs, 800. The mere fact that his status was of an officer of the Bills Department is of no consequence. The test is as to what were his main and primary duties. I am fortified in this view by the all judgment in the case of Dost Mohammad Cotton Mills Ltd., Karachi v.
Mohammad Abdul Ghani and another.
24. In the result I hold that the respondent was a workman and as such the legal objection is rejected.
25. Now coming to the merits of the case I find that the appellant has no leg to stand. In the forwarding letter Exh. P-2 dated 13-2-1975 which was sent alongwith the charge-sheet, it was mentioned that the enquiry officer had been appointed to hold the enquiry on 20.2-1975 at 3-00 p. m. This, in my view, amounted to putting a cart before a horse, because under Standing Order 15(4) of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it is incumbent upon the employer to scrutinize the reply to the charge-sheet and then decide as to whether the enquiry has to be held or not. In the present case, the appellant had already decided that the enquiry would be held, irrespective of the fact as to what the reply to the charge-sheet would be.
Thus the charge-sheet was in clear violation of law.
26. Further I find that there is no indication whatever on the record to show that any enquiry was held against the respondent before the order of termination of his services was passed, which is also in contravention of the Labour Laws.
27. The learned counsel for the appellant lastly contended that in case the legal objections raised by him do not find favour with the Tribunal, the respondent, if he is re-instated, be not allowed back benefits, because the employer has an inherent right to hold an enquiry afresh against him.
28. Before an enquiry is held, a charge-sheet has to be issued within one month of the date of the alleged misconduct as provided under Standing Order 15(4) of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In the present case the charge-sheet was defective and as such no new charge-sheet can now be issued in view of the limitation imposed2 3 upon the employer under Standing Order 15(4). Therefore, no enquiry can now be held against the respondent on the same charges.
29. In view of the above, I uphold the decision of the Labour Court and dismissed the appeal. PLD 1969 Lab. 717 1974 PLC Note 28 at p. 17 PLD 1975 Kar. 342