1. ' This revision application under section 48 (3) of Industrial Relations Ordinance, 2002 has been filed against the order dated 23-6-2001 passed by the learned Presiding Officer of Labour Court No,VIII, Larkana overruling the illegal objections regarding the maintainability of grievance petition filed by the respondent.
2. ' The facts of the matter in brief are that the respondent No,1 was employed as Officer Grade-III in the applicant Bank. He was charge-sheeted for commission of certain misconduct on which the respondent No,1 filed a petition under section 22-A (8) (g) of I.R.O. 1969 in the N.I.R.C. In which the applicant was restrained from passing of final order in the disciplinary action initiated against the respondent. The applicant filed appeal before the Full Bench of N.I.R.C. Who accepted the appeal of the applicant. It is alleged that respondent challenged the decision of the Full Bench of N.I.R.C. By filing a Constitutional Petition in the High Court but did not succeed. On completion of disciplinary proceeding the applicant dismissed the respondent from service vide letter dated 31-7-1997.
3. Against the order of dismissal from service, respondent again filed complaint in the N.I.R.C. Under section 53 read with section 15 of I.R.O. 1969 and regulation 32 (i) of the N.I.R.C. (P&F) Regulations 1973. While such complaint of the respondent was pending before the N.I.R.C. The respondent also filed a grievance petition under section 25-A of I.R.O. 1969 in the Labour Court. The applicant filed legal objections to the maintainability of the grievance petition before the Labour Court. The Labour Court passed an order against which the applicant filed a revision application in the Sindh Lahour Appellate Tribunal (for short the Tribunal) who vide its order dated 18-12-1998 remanded the case back to the Labour Court for deciding the legal objection as a preliminary issue. The learned Labour Court again vide order dated 25-12-1999 overruled the legal objections of the applicant against which the applicant again filed a revision application in the Tribunal. The Tribunal also did not accept the legal objections of the applicant. The applicant then filed a Constitutional Petition No,D- 118/2000 in the High Court, of Sindh at Karachi. In the Constitutional petition a consent order was passed on 8-2-2000 by which the impugned decision of the Tribunal was set aside and the case was remanded to the Tribunal to determine the question of maintainability of the grievance petition. It seems that the Tribunal remanded the matter to the Labour Court for deciding the legal objections on which the impugned order was passed by the Labour Court-VIII, Larkana who over- ruled the legal objections of the applicant-Bank. However it seems that evidence of the parties were also recorded before the Labour Court. Against the impugned order the applicant again filed a revision petition in the Tribunal which was registered as Revision Application No,L-152/2001. The Tribunal vide its order dated 10-8-2001 admitted the revision application and stayed the proceedings before the Labour Court, while the said revision application was pending before the Tribunal, I.R.O. 2002 was promulgated by which repealed the I.R.O. 1969 (for short the late Ordinance). It seems that by I.R.O. 2002 (for short the new Ordinance), the Tribunal was abolished and by section 48 (3) of the new Ordinance, revisional jurisdiction against the orders passed by the Labour Court was conferred on the High Court. The record shows that after coming into force of the new Ordinance, the said revision application of the applicant was transferred to the High Court of Sindh at Karachi which was allotted Misc. Appeal No,48 of 2003 and it also came up for regular hearing on 2-4-2003 before the Judge of the High Court but was adjourned. It is stated by the counsel for the applicant which is not disputed by the counsel for the respondent that the said revision application of the applicant transferred to the High Court of Sindh at Karachi was sent back by an administrative order passed by the Hon'ble Chief Justice with the observation that new Ordinance does not make provision for transferring of the pending revision applications from the Tribunal to the High Court. The applicant therefore filed a fresh revision application which is under consideration.
4. ' At the outset Mr. Abdul Hameed Khan, the learned counsel for the respondent took objection to the maintainability of this revision application on two grounds, one that in the presence of pendency of Revision Application No,L-152/2001 filed before the Tribunal, fresh revision application under the new Ordinance in this Court will not be maintainable and secondly the fresh revision application is barred by lathes. Both the counsel for the applicant as well as the respondent argued the matter at substantial length on the maintainability of this revision application so also on merits.
5. ' It is contended by Mr. Mahmood Abdul Ghani, the learned counsel for the applicant that notwithstanding the abolition of the Tribunal by the new Ordinance, section 80 of the new Ordinance, saves all pending proceedings. He further contended that as the revision application of the applicant was returned from the High Court by the administrative order of the Hon'ble Chief Justice, the possibility of the said revision application being heard and decided in near future was remote and the new Ordinance itself having provided for filing of the revision application in the High Court under section 48 (3) the applicant without wasting much time has approached this Court and that there is no limitation period provided for making of the revision application under the new Ordinance. In support of his submission he has relied upon the cases of Sarfraz v.
6. Muhammad -Aslam Khan 2001 SCMR 1062, Ranjha v. Mst. Zahrai Begum 2004 SCMR 734, Craies on statute Law, Sixth Edition page 413, Understanding Statutes by SA. Zafar page 114 and Trayner's Latin Maxims, Fourth Edition page 309. In this respect he has also cited the cases of 2003 YLR 1994. On the other hand counsel for the respondent has referred to the cases of PLD 1986 Quetta 3321, PLD 1986 Kar. 407, 1983 PLC (C.S.) 642, PLD 1986 Karachi 437, PLD 1984 Karachi 519, 2001 SCMR 1062, 1990 MLD 563, 1999 SCMR 799 and PLD 1974 Supreme Court 678. Section 80 of the new Ordinance is as follows: "80. Repeal and savings.---(1) The Industrial Relations Ordinance, 1969 (XXIII of 1969), is hereby repealed.
(2) Notwithstanding the repeal of the Industrial Relations Ordinance, 1969 (XXIII of 1969), hereinafter to be called the repealed Ordinance, and without prejudice to the provisions of sections 6 and 24 of the General Clauses Act, 1897 (X of 1897)-
(a) every trade union existing immediately before the commencement of this Ordinance, which was registered under the repealed Ordinance shall be deemed to be registered under this Ordinance and its constitution shall continue in force until altered or rescinded;
(b) anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under the repealed Ordinance shall .Be deemed to have been done, made, issued, appointed, constituted, given commenced or taken, as the case may be, under the corresponding provision of the Ordinance; and
(c) any document referring to the repealed Ordinance relating to industrial relations shall be construed as referring to the corresponding provisions of this Ordinance.
(d) the appeals pending in the e Labour Appellate Tribunals shall stand transferred to the respective High Courts from the date of commencement of this Ordinance and it shall not be necessary for the High Court to recall any witness or to record any evidence that may have been recorded."
7. ' The reading of this provision shows that though the Industrial Relations Ordinance 1969 (XXIII of 1969) has been repealed, but inter alia provides that anything done, rules made, or order issued, officers appointed, Court constituted, notice given, proceedings commenced or other action taken under the repealed Ordinance shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken as the case may be under the corresponding provision of 'this Ordinance. Clause (d) of this section provides that pending in the Labour Appellate Tribunals shall stand transferred to the respective High Court from the date of commencement of the Ordinance and it shall not be necessary to the High Court to recall any witness or to record any evidence that may have been recorded.
8. ' Section 38(3-A) of the late Ordinance conferred revisional jurisdiction to the Tribunal. Section 48(3) of the new Ordinance confers revisional jurisdiction to the High Court. Except for change of forums both provisions of section 38(3-A) of late Ordinance and section 48(3) of new Ordinance are identical. In the case of Ranjha (supra) the Hon'ble Supreme Court of Pakistan at page 736 has made the following observations: "We are unable to agree inasmuch as it is well-settled that if during pendency of proceedings, the law is changed the higher forum can take notice of the changed legal position and decide the rights of the parties. In this case, the relevant provisions of the MLR 115/Land Reforms Act, 1977 were declared against the injunctions of Quran and Sunnah in the year 1990 when the writ petition in this case was pending in the Lahore High Court. The High Court, therefore, was entitled to notice the fresh legal position and to give effect to the same."
9. ' In the case of Sarfraz (supra) the Hon'ble Supreme Court of Pakistan at page 1071 has made the following observations: "Even otherwise it is settled principle of law that action started by a person has to be completed under the new law even if it has been repealed during pendency of the action unless the new law has saved the pending proceedings."
10. ' Section 80(2)(b) of the new Ordinance makes deeming provisions that proceedings commenced under the repealed Ordinance to have commenced under the corresponding provision of this Ordinance and thus saved the proceedings. The word 'proceedings' has not been defined either in the late Ordinance or in the new Ordinance. Such word will have to be given liberal meaning and in my view will include the proceedings commenced under section 38(3-A) of the late Ordinance to be the proceedings under section 48(3) of the new Ordinance. The question in this case is whether the present revision application while earlier revision application is pending could be maintained.
11. In this regard the observation made in the case of Ranjha by the Hon'ble Supreme Court of Pakistan is relevant and it lays down that when the law is changed higher forum can take notice to the changed legal position and decide the right of the parties. Obviously the High Court is the higher forum and is the forum who will have jurisdiction to decide the rights of the parties in view of the changed legal position. By filing this revision application, the applicant has brought the matter to the right forum. It is not stated by the respondent counsel that the applicant has made out some new case. So far the question of delay is concerned, it may be noted that earlier revision application was fixed before a Judge of High Court of Sindh at Karachi on 2-4-2003 whereafter through an administrative order of the Hon'ble Chief Justice it was returned back. This revision application was filed on 12,-6-2003 which is within 90 days which is generally taken to the period of limitation in civil cases for invoking the revisional jurisdiction. Such period has been reckoned not from the date of the impugned order because there was no dispute that the earlier revision application was in time. Further this revision application has to be considered as continuation of the applicant's earlier revision application. In view of the above discussion, I find that the present revision application is maintainable.
12. ' The counsel for the applicant while arguing legal objections to the maintainability of the grievance petition has urged that the grievance notice served by the respondent was not in accordance with law as the same was not addressed to his appointing authority and in this connection has relied upon the case of Khushhal Khan v. Muslim Commercial Bank Limited (2002 SCMR 943). On the other hand learned counsel for the respondent has contended that no objection was taken by the applicants in their reply to the grievance petition, that the grievance notice was not served on the appointing authority. He has stated that grievance notice was in accordance with the. Law. It may be noted that after the respondent was dismissed from employment vide order dated 31-7-1997, the respondent filed a departmental appeal dated 22-8- 1997 addressed to the President of the Bank. This appeal was dismissed vide letter dated 22-9-1997.
13. The respondent then submitted grievance notice under section 25-A(1) of the late Ordinance which was addressed to the President and Senior Executive Vice-President of the Bank. This grievance notice was replied vide letter dated 29-10-1997 whereby the respondent was informed that Disciplinary Action Committee of Senior Executive of the Bank has approved the order of dismissal and such order was in accordance with law and relief claimed in the grievance notice was denied.
14. It may be noted that the letter of the Bank dated 29-10-1997 has advised the respondent that the dismissal order has been passed by the Senior Executive of the Bank. The respondent has addressed grievance notice to the President as well as Senior Executive Vice-President of the Bank.
15. No objection in the written reply was taken that the grievance notice was not addressed to the employer of the respondent. No objection was also taken that grievance notice addressed to the President as well as to the Senior Executive Vice-President was not received by them respectively. It is not stated in the reply of the applicant that the President or Senior Executive Vice-President were not employer of the respondent. The cited case related to the Cashier and it was found that the employee has filed departmental appeal to the President of the Bank and that the departmental appeal so filed by the employee was not considered as a grievance notice. In the present case the respondent has given grievance notice and therefore, cited case is of no help to the applicant.
16. ' The second contention on merit of the learned counsel for the applicant is that the grievance petition of the respondent was not maintainable as he was not a workman. He has stated that the respondent was an officer Grade-III and was drawing salary of Rs,8,000 per month G and that no evidence is produced by the respondent to prove the fact that he was performing work of manual and clerical nature. In support of his submission he has relied upon an unreported judgment in Appeal No,1 of 2004 (Muslim Commercial Bank Ltd. v. Mahmood Husain Larik) passed by Hon'ble Muhammad Mujeebullah Siddiqui, J sitting at Hyderabad Circuit of this Court and the case of National Bank of Pakistan v. Punjab Labour Court No,V (1993 SCMR 672). On the other hand learned counsel for the respondent vehemently contested this objection of the applicants counsel and has contended that the respondent was a workman. In this respect, he has relied upon SBLR 2003 Sindh 1842; 1988 SCMR 1664; PLD 1975 Kar. 342; PLD 1976 Kar. 73; PLD. 1986 SC 103 and 1992 SCMR 1891.
17. ' The record shows that the applicant from the very beginning has taken objection that the respondent being officer Grade-III was not a workman. Such objection was taken in reply to the grievance notice and so also in the objections filed to the grievance petition. Learned Labour Court relied on the evidence of Regional Manager at Larkana of the applicant and concluded that as there was a Manager of the Branch in which the respondent was employed who was assigning duties to the - respondent, the respondent was not performing any independent supervisory' duties but was doing clerical work assigned by the Manager. To prove the fact that he was workman, the respondent in para. 10 of his affidavit-in-evidence at page 6 has made the following allegation: '
18. "It is further submitted that though Hon'ble. Supreme Court in its judgment in various Civil Appeals which were decided on 10-4-1997 has held that the Officer Grade-II and Grade III of Muslim Commercial Bank are workman but the respondents deliberately disrespecting, the judgment of Hon'ble Supreme Court has disputed my status, of their such act also amount to contempt of Court."
19. ' Beside this respondent has alleged that he was President of Officers Union of Muslim Commercial Bank which was registered with N.I.R.C. And was also determined as CBA of OG-II and 00-III. In the case of National Bank of Pakistan (Supra) the Hon'ble Supreme Court has made the following observation: "It is a well-settled proposition of law that a person who approaches a Court on the basis of averment that he is a workman within the definition of clause (xxviii) of section 2 of the I.R.O., the burden of proof lies on him and not on the employer."
20. "11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the field, of Labour legislation, is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the' employee that would be essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."
21. ' In the unreported judgment in Labour Appeal No,1/2004 re. Muslim Commercial Bank v. Mahrnood Hussain Larik which was also the case relating to Officer Grade III of Muslim Commercial Bank, the learned Judge has made following observation:-- "I have carefully considered the facts obtaining on record and the contentions raised by the learned Advocates for the parties. It is admitted position that the respondent was appointed as Officer in Grade III and he was working as Accountant. Thus in these circumstances, the burden was on the respondent to prove that notwithstanding the fact that his designation was of Officer Grade-III and he was drawing a salary of Rs,15,000 p.m. But actually he was performing duties which were clerical and manual in nature and were not supervisory, as held by the Hon'ble Supreme Court in the judgment referred to above. Admittedly the respondent has failed to discharge the burden and I am constrained to observe that the observations of learned Labour Court that it has come on record through evidence that respondent Muhammad Hussain Larik was not working in any supervisory position but was doing the clerical work and was not having supervisory duty over the staff is figment of imagination and is not based on the evidence on record. The learned counsel for the respondent has frankly conceded that no documentary or oral evidence was produced by the respondent in support of his contention and there was sole word of the respondent on the record.
22. ' I am fully satisfied that the finding of the learned Labour Court that the respondent was a workman is not substantiated with evidence on record consequently the application under section 25-A of the I.R.O. 1969 was liable to be dismissed. The impugned judgment of the learned Labour Court No,VI, Hyderabad is hereby set aside. The appeal is allowed accordingly."
23. ' In the present case I find that respondent in his evidence has not uttered a' single word as to the nature of his duties which he was performing as Officer Grade III and has merely relied upon judgment of the Hon'ble Supreme Court where Officers Grade-II & III have been held to be workman. It may be noted that in the first place judgment referred by the applicant in his evidence has not been produced. Secondly as is established law that the status whether the person is workman or not is not determined on the basis of designation but on nature of duties. As laid down by the Hon'ble Supreme Court of Pakistan in the cited case of National Bank of Pakistan that initial burden of proof to prove the fact that the employee is a workman rests upon him and after he has discharged his burden by leading evidence to this effect then the burden shifts on the employer. In the present case not a iota of evidence has been produced by the respondent to show as to what nature of duties he has been performing as an Officer Grade-III. The applicants H in their evidence have stated that respondent as Officer Grade III was performing duties primarily of supervision and control and not of manual or clerical nature. Learned counsel for respondent has argued that the evidence cannot be appreciated at the revisional stage. It may be noted that once the Court is seized of the matter, it has to decide it in accordance with the record available before it and more particularly when specific question is raised which is based on record has to be decided in accordance with law. Learned counsel for the respondent has not been able to show from the record as to what duties were being performed by the respondent as Officer Grade-III. The finding of the Labour Court in this regard is merely based on assumption for which there is no evidence on record which is liable to be corrected under the provision of section 48(3) of the I new Ordinance.
24. ' On the basis of above discussion, I am of the considered view that on the record available which also includes the evidence of the parties, the respondent has failed to make out a case that he was a workman performing manual or clerical duties and in terms of the judgment of the Hon'ble Supreme Court of Pakistan in the case of National Bank of Pakistan referred to above has failed to discharge his burden. The grievance petition could have been filed only by a workman. Respondent has failed to establish fact that he was a workman and, therefore, his grievance petition was not maintainable. Having come to this conclusion, there is no need to discuss any further points as matter rests on the issue of determination of the question as to whether respondent was a workman or not which has been found in the negative. Consequently the revision application is allowed and the grievance petition of the respondent is dismissed.
THE END