' By this single order recorded in Appeal No,16 of 2001, I also propose to disposes of Appeal No,22 of 2001 as the facts and law point involved in both the appeals are common, besides both the appeals having been directed against the impugned order of the Labour Court dated 30-1-2001.
2. Briefly stated facts of the case leading to the instant appeals are that both the appellants, namely, Shamsul Awlia and Attaullah were appointed as Cashiers in the Muslim Commercial Bank Ltd., way back in the years 1975 and 1974 respectively. With the passage of time, they learned promotion and were posted as Officer Grade-III and Officer Grade-II respectively. On 14-9-1998, both the appellants were dismissed from service on the charges of misappropriation and embezzlement. They moved grievance notices to the respondents which remained unresponded.
Thereafter, they tiled the grievance petitions before the Presiding Officer Labour Court, Swat. The learned Presiding Officer of the Labour Court, vide his order dated 14-5-1999, dismissed both the petitions on the ground of maintainability. In appeal, the case was remanded back to the Labour Court for recording of evidence on the issue as to whether the appellants were workmen or not keeping in mind the nature of work and other related factors of their duties, vide order of my predecessor dated 19-11-1999. After remand, the learned Labour Court recorded evidence on the issue in question and after hearing the arguments of the learned counsel for the parties, again dismissed the petitions on the same point i,e, maintainability, vide order dated 30-1-2001. It is held by the learned Presiding Officer of the Labour Court that since the appellants do not come within the definition of 'Workman', therefore, the Labour Court has got no jurisdiction to entertain their.Petitions and as such the same were dismissed. Now both the appellants have challenged the order of the Labour Court through separate appeals before this Tribunal.
3. The learned counsel for the appellants has contended that the appellants, under section 2(xxviii) of the Industrial Relations Ordinance, are workmen and submitted that it is neither the designation or status nor pay of an employee which is the decisive factor to call someone a "workman" or otherwise, rather it is the nature of the duty which an employee performs. Though both the appellants were Officers but at time it also cannot be denied that they performed their duties as Cashier. He further submitted that the power of attorneys executed by the Bank/respondent in favour of the appellants were never acted upon and in fact the only powers which were delegated to him were of "financial purposes" and no powers of appointments or terminations were given to them. Therefore, mere execution of power of attorney in their favour which has not been acted upon, would not be sufficient to oust them from the definition of "workmen". Placed reliance at 1986 PLC 920 and 1993 PLC 529. He further submitted that it is the nature of work which determines the status of an employee and in this respect, both the appellants were performing their duties as Cashiers. He prayed that the appeals be accepted and the learned Labour Court be directed to decide the petitions on merits. Places reliance at 1991 PLC 419.:
4. On the other hand, learned counsel for the respondents while rebutting the arguments of the learned counsel for the appellants, submitted that the learned Labour Court has rightly decided that the appellants do not come within the definition of 'workman' as being responsible officers of the Bank, were part of the management and especially the power of attorneys executed in their favour gave them powers to terminate or appoint clerks etc. And the evidence produced by the respondents abundantly proved that they were not workers and as such do not fulfil the requirements of section 2(xxviii) of the I.R.O. And as such mere assertion of the appellants that they were working as Cashiers, is not sufficient to consider them as 'workmen'. At the end of his arguments, he requested for dismissal of the appeals.
5. The sole point for determination is that as to whether the appellants are workers are not. My predecesser while remanding the cases back to the trial Court, observed that the question of "workman" be thrashed out after recording of evidence by the trial Court. The record would reveal that the learned Presiding Officer of the Labour Court while deciding the issue heavily relied on the Special Power of Attorney executed by the Bank in favour of the appellants and on the basis of those power of attorneys the trial Court concluded that the appellants do not come within the definition of 'workman' and as such not entitled to invoke section 25-A of the I.R.O. But it is also an admitted fact that the Bank has also failed to produce in evidence the material which could prove that the appellant actually acted or exercised their powers delegated to them through the execution of special power of attorneys. There is nothing on record to show that the powers given to them were exercised by them. Therefore, mere execution of power of attorneys in their favour is not sufficient to oust them from the definition of workman. Held; there been anything on record showing exercise of power pursuant the execution of power of attorneys in their favour, the matter would have been different, and they could be called "agents' of the Bank. The evidence brought on record by the Bank is silent regarding exercise of powers by the appellants mentioned in the power of attorneys. It is also a matter of record that the appellants were appointed as Cashiers and later on promoted as Officers of the Bank and were discharging multifarious duties of the Bank. It is also not denied by the Bank that the appellants were doing clerical works in addition to supervisory and managerial duties. Strangely enough, both the Special Power of Attorneys executed in favour of the appellants contain a common date i,e, 20th August, 1996, it is shrouded in mystery as to whether the execution of two special powers of attorneys on one and the same date can be termed as co- incident or otherwise. It was incumbent upon the Bank Authorities to have proved through documentary evidence that the power of attorneys executed in their favour were actually acted upon but they have miserably failed to do so.
6. The upshot of my above discussion is that both the appeals are accepted and the appellants are declared as "workmen" and the learned Labour Court is directed to record evidence on merits of theirs cases and decide their petitions in accordance with Section 25-A of the I.R.O.