The present appeal has been directed against the judgment dated 29.5.2003, passed by the Punjab Labour Court No,
1. Lahore, whereby the grievance petition under Section 25-A of the Industrial Relations Ordinance, 1969, filed by the respondent against his termination was accepted by the Labour Court, and he has been reinstated to his service, with all back benefits from the date of his termination.
2. Briefly stated the facts of the case are that, the respondent, admittedly held the designation of Assistant Vice President in the appellant bank, and was the Internal Auditor of two branches of the bank, at the Mall and Gulberg, Lahore, when his services were terminated, vide order dated 9.3.2003; however, this was done without issuing him any show-cause notice or holding of inquiry against him; the order of termination was challenged by the respondent through the aforementioned grievance petition, mainly on the ground that, the decision is illegal and unlawful and that he has been condemned unheard. The appellants resisted the grievance petition, primarily on the ground of lack of jurisdiction of the Labour Court, asserting that the respondent was never a "workman" within the definition of Section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as he was not performing any clerical or manual job/duties, rather was the Assistant Vice President of the appellant bank and was also Internal Auditor of the two branches, mentioned above; he was drawing the salary of about Rs, 27,000/- per month, and therefore, did not qualify to be the "workman" so as to initiate and sustain an action through the grievance petition under the said law. The finding of the learned Labour Court, about the status of the respondent that, He is an always a willing worker and falls within the definition of workman as per case law discussed above and as per evidence brought on record, is not only against the settled law, but also the evidence on the record.
3. Learned counsel for the appellants further contends that, the impugned judgment is sketchy and does not reflect the proper application of mind to the evidence on the record. It has been emphasized that the respondent was not a workman because he was performing the duty of the Internal Auditor of the two branches of the bank and this duties were not clerical or manual in nature, resultantly, the Labour Court had no jurisdiction to take cognizance of the grievance petition and to pass the impugned judgment. In support of the above, reliance has been placed upon the judgment reported as Pakistan International Airlines Corporation vs. Chairman, Punjab Labour Appellate Tribunal, Lahore and another (PLD 1979 Lahore 415).
4. Mr. Tariq, Kamal Qazi, Advocate, learned counsel for the appellants has further argued that according to the law reported in the case Trustees of the Port of Karachi vs. Muhammad Saleem (1994 SCMR 2213), wherein the question involved was about the termination of an employee, by an employer, and the remedy available to such person; the definition of the "workman" given in the I.R.O. 1969, was held to be inapplicable, rather the matter shall be governed by the definition of Section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. It is thus submitted that according to the definition of the Standing Order, the "workman" is a person, who is either skilled or unskilled and performs manual or clerical job; undoubtedly, the respondent is a skilled person and admittedly is not performing a manual or the clerical job, rather the nature of his job/duties is specifically mentioned in Ex. R.1, the undisputed document; which unequivocally postulates that the job of the respondent was supervisory in nature having no nexus to the routine clerical duties, resultantly, he not being a workman, was not entitled to invoke the jurisdiction of the Labour Court. In elucidating the nature of the duties of an Auditor, reference has been made to the judgment reported as Institute of Chartered Accountants of Pakistan vs. Messrs Hyderali Bhimji & Co. and another (2002 CLD 1207 at page 1222). Moreover; in support of his other contentions, the learned counsel for the appellants has relied upon the following judgments and the dictionary meanings as well: Yusuf Ali Shah vs. Quetta Serena Hotel through General Manager Quetta and 2 others (1997 SCMR 1630). Mustekhum Cement Limited through Managing Director vs. Abdul Rashid and others (1998 SCMR 644). Pak Arab Refinery Limited vs. Muhammad Rashid (1999 SCMR 373). PIA vs. Chairman Punjab Labour Appellate Tribunal (PLD 1979 Lahore 415). LE. Saleh vs. International Laboratories Ltd. etc. (PLD 1975 Karachi 279). Abdul Razzaq vs. Ihsan Sons Ltd. (1992 SCMR 505), and Black's Law Dictionary (Fifth Edition by the publisher's Editorial Staff) Page-120.
5. Confronted with the above, Mr. Muhammad Zaman Qureshi, Advocate, learned counsel for the respondent has conceded that the definition of the workman given in the I.R.O. 1969, is inapplicable and that the respondent shall be governed by the definition of the Standing Orders Ordinance, 1965. However, his argument is, that the respondent, who though is a skilled person in the accounting system/procedures and also is performing the functions as an internal Auditor of the appellant bank, yet his duties and job is clerical in nature. In this behalf, he has read before the Court the statements of the respondent PW-1 and PW-2. Mr. Ashraf an Ex-employee of the appellant bank, and from the collective reading of these two statements, according to him, it stands proved that the respondent was only responsible for the counter checking of the accounts prepared by the others and pointing out any errors, if found. Mr. Qureshi, has also made reference to the statement of RW-1. Anwar Pasha to argue that, the witness in categorical terms has conceded that the respondent was only performing the functions of checking and preparing certain pro-formas and was working under him. On account of all the above, it is submitted that the respondent was simply a "skilled clerk" thus, a "workman", Learned counsel for the respondent has also submitted that, in order to determine, whether a person is a workman or otherwise, his designation, nomenclature or the quantum of salary are not relevant, rather it is the nature of the duties, which are germane for adjudicating his status as the workman. Mr. Muhammad Zaman Qureshi, Advocate, has cited the precedents to argue that, even the Assistant Vice President of the bank and the branch Managers, in certain cases, have been considered to be "workmen" for the purposes of the Standing Orders Ordinance, 1968. In this behalf, he has cited the following judgments: Dos t Muhammad Cotton Mills Ltd. Karachi vs. Muhammad Abdul Ghani and another (PLD 1975 Karachi 342), Dost Muhammad Cotton Mills Ltd. us. Muhammad Abdul Ghani and another (PLJ 1975 SC 358), Allied Bank of Pakistan Ltd. us. Muhammad Humayun Khan and others (1988 SCMR 1664), Habib Bank Ltd. vs. Punjab Labour Appellate Tribunal etc. (NLR 1988 Labour 120). National Bank of Pakistan vs. Punjab Labour Court No, 7, Gujranwala and others (1992 SCMR 1891), Habib Bank Ltd. Zonal Office Lahore vs. Pervez Ahmad (1978 PLC 233), Abdul Razzaq vs, Messrs Ihsan Sons Limited and 2 others (1992 SCMR 505), 1983 SCMR 1313, 2000 PLC 325 and 1996 PLC 697. Besides the above, for the definition of words "Audit, Auditor, Clerk, Clerical, Review and Critical", he has referred to the New International Webster's Dictionary. In nutshell, according to him, on the basis of the above definitions and the evidence on the record, it stands established that the respondent had no supervisory capacity; he had no managerial authority and no power of hire and fire, rather was an employee, who was understanding the task of simply examining the accounts, prepared by the other bank staff and after verification of the accuracy or otherwise, was filing the proformas.
6. I have heard the learned counsel for the parties. Admittedly, the legal position, which emerges out of the above narrated facts and the law cited is; the definition of the "workman" in the Standing Orders Ordinance, 1968, is only relevant for determining the status of an employee enabling him to initiate and maintain and action through a grievance petition, because his being a "workman" within in the purview of law is the jurisdictional fact, which is essential for the invocation of the jurisdiction of the Labour Court; the designation, the salary etc. are not germane for the above purposes, rather it is the nature of the duties, which an employee was performing to hold him as a "workman'.
7. An attempt has been made in the evidence produced by the respondent to show that, the work done by the respondent was though skilled, but also clerical in nature, as he was only rechecking the accounts and filling certain proformas, etc. The learned counsel for the respondent has also quoted some dictionary meanings to argue that, the job of an Auditor is necessarily clerical in nature. Be that as it may, I feel that, the oral evidence in case, for the adjudication the nature of the duties, which the respondent was performing has been overweighed by the admitted documentary evidence Ex. R.I., which document elucidates and describes the job of an Internal Auditor and to my mind is the key, for resolving the proposition, whether the respondent is a clerk or otherwise. Ex. R-1, provides the 'purpose" "Principal Accountabilities" and the "Key Responsibilities" of the Internal Auditor, having the silent features of the job, to critically review the day to day activities of the Branches, aiming to ensure the compliance of the banking procedure, rules and regulations of accounting, and the State Bank's Rules Regulations, instructions and directives in this behalf; while performing the task, it is the duty of the Internal Auditor to timely report the deviations to the management of the above and for the corrective actions. The careful reading of Ex. R-1, clearly stipulates that the respondent was not simply discharging the ministerial or clerical duties, rather was exercising his supervisory ability as skilled person and was acting as a watchdog on the accounting record of the bank. It embrace not only the examination of accounts and a comparison of work sheets and books with the vouchers, but also had the allowance and discretion of rejecting, disagreeing and correcting the same in accordance with the accounting standard, procedures and the regulations. Resultantly, to caff the respondent as a skilled clerk, would be a misnomer and misunderstanding of the nature of the job and the responsibilities, which an Internal Auditor is supposed to undertake and discharge in the light of Ex. R. 1, and the general concept of Auditorship.
8. In a judgment reported as Institute of Chartered Accountants of Pakistan vs. Messrs Hyderali Bhimji & Co. and another (2002 CLD 1207), the concept and the nature of the job of the auditor has been elucidated as follows:-- "17. As regards the function of an Auditor, it would be advantageous to reproduce the following observations of Lord Denning in the case reported as Fomento Sterling Area Ltd. v. Selsdon Fountain Pen Co. Ltd. (1968) 1 WLR 61:-- "An auditor is not to be confined to the mechanism of checking vouchers and making arithmetical computations. He is not to be written, off as a professional 'adder upper and subtractor'. His vital task is to take care to see that errors are not made, be they errors of computations or errors of omission or, commission or down right untruths. To perform this task properly he must come to it with an enquiring mind not suspicious of dishonesty. but suspecting that someone may have made a mistake somewhere and that a check must be made to ensure that there has been none."
18. It would not be out of place to incorporate hereinbelow the definition of word "auditing' as provided in the book. "Principles and Practice of Auditing" by R.Glynee Williams:-- "Auditing may be defined as the independent examination and investigation of the books, accounts and vouchers of a business with a view to enabling the auditor to report whether the Balance Sheet and Profit and Loss account are properly drawn up so as to show a true and fair view of the state of the affairs and the profit and loss of the business according to the best of the information and explanations obtained by the auditor."
9. This to my mind is the apt and most appropriate definition and the elucidation of the duties performed by an Auditor, thus :applying the above rule to the facts and circumstance of the present case, particularly on the basis of Ex. R-1, which is the only undisputed and admitted document on record, it can be safely held that the respondent though is the skilled person in accounting, but the other essential ingredients of the definition of the "workman" that he is either performing manual or clerical work is not satisfied: the respondent could only maintain his grievance petition, if he squarely falls within the definition, of the workman as defined in the Standing Order, 1968. As this being a jurisdictional fact, imperative to exist, for the Labour Court to exercise its jurisdiction over the dispute between an employer and a workman. But as the most important part of the definition is lacking, resultantly, the Labour Court had no authority to entertain and adjudicate the grievance petition of the respondent and to pass the impugned order, therefore, this appeal is allowed and the impugned order is set aside, with the result that the grievance petition of the respondent is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.