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Petitioner: ALLIED BANK OF PAKISTAN LIMITED through Attorneys VS Respondent: Syed NASIR ABBAS JUDGMENT
Court Name: Labour Appellate Tribunal Judge(s): Iftikhar Ahmad Cheema Title:ALLIED BANK OF PAKISTAN LIMITED through Attorneys vs Syed NASIR ABBAS
JUDGMENT
Reported As: 2003 PLC 20 Result: Order accordingly Judgment JUDGMENT ' The afore-said appeals which are directed against the judgment dated 11-12-2000 passed by Punjab Labour Court No,6, Rawalpindi whereby the grievance petition filed by Syed Nasir Abbas Naqvi, petitioner was allowed and he was reinstated in service without back benefits and I propose to dispose of both the appeals by a single judgment because these relate to the same case and are directed against the same judgment. 2. Allied Bank of Pakistan Limited (Appellant) is a company incorporated under the provisions of Companies Ordinance, 1984 and is operating as a Banking-Company within the ambit of the Banking Companies Ordinance, 1962, Syed Nasir Abbas Naqvi petitioner who is respondent before me was employed as Officer Grade-III and Attorney at Trunk Bazar Branch, Rawalpindi of the appellant-Bank. During the course of his employment the respondent appeared in the Banking Diploma Examination: Summer, 1999 from Rawalpindi Examination Centre. On scrutiny of his answer book in the subject of Higher Accountancy, his handwriting in the answer book was found different from that of the other three answer books as well as his entry form. The Examination Committee of the Institute, after holding the enquiry found the respondent guilty of using unfair means in the examination. The Institute considered the case of the respondent decided to impose penalty in accordance with the prescribed rules of the Institute. On receipt of complaint from the Institute the appellant Bank issued a charge-sheet dated 15-7-2000 to the respondent. He submitted his reply which was found unsatisfactory. Therefore, an enquiry was ordered. The petitioner/ respondent Syed Nasir Abbas Naqvi participated in the enquiry proceedings and obligedly admitted his guilt. He, however, in an independent enquiry, was adjudged as guilty of alleged misconduct and was
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consequently dismissed from service vide order dated 19-10-1999. Being aggrieved by his dismissal from service, the petitioner/respondent (Syed Nasir Abbas Naqvi) approached Punjab Labour Court No,6, Rawalpindi by filing a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, assailing the order of his dismissal stamping it as mala fide and void. 3. The respondent Banking Company submitted its reply statement taking various objections therein and making factual assertions. It was vehemently contended on behalf of the respondent Bank that no grievance notice was given in this case hence the grievance petition was not competent and maintainable; that the petitioner was not a worker/workman within the definition of Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It was also alleged that the petitioner/respondent had unambiguously and unequivocally confessed his guilt in the presence of witnesses hence there was no need to substantiate the allegation of misconduct by producing oral or documentary evidence of unimpeachable character. 4. Adverting to the first moot point regarding the non-service of grievance notice, the learned trial Judge (Labour Court) observed that since the petitioner had filed a departmental appeal Exh. P-6 on 11-11-1999 which is admitted by the bank, the same can validly be considered as grievance notice and with this observation overruled the objection. 5. As regards the status of the petitioner/respondent Syed Nasir Abbas Naqvi, the learned trial Judge also disposed of this moot point summarily by holding that the petitioner is a workman in the light of judgments reported in 1992 SCM R 1891 and 1999 PLC 302. 6. Taking up the third objection raised by the appellant-bank regarding the non-applicability of Labour Laws i,e, Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968 to the petitioner's case and the incompetency of grievance petition on this score alone, the learned Judge resolved this controversy by observing that Allied Bank of Pakistan Limited which is a huge concern banking concern having more than 900 branches in various parts of Pakistan, as admitted by R.W.1 in his examination-in-chief, the petitioner/respondent (Syed Nasir Abbas Naqvi) cannot be deemed to be an employee of a particular branch only in which he was lastly posted. He was of course an employee of Allied Bank of Pakistan Limited hence the grievance petition was competent by all canons of law. 7. Coming to the merits of the case the learned Judge observed that there was no denying the fact that the petitioner/respondent did appear in the Banking Diploma Examination conducted by the Institute of Bankers Pakistan and he adopted unfair means in the examination and he was disqualified from appearing in such examination for a period of five years. This was an adequate and sufficient punishment for him and if the matter had been referred to the bank by the Institute it was not fair on the part of the appellant-bank to proceed against the appellant visiting him with the extreme penalty of dismissal of service because it amounted to punishing him twice for the same office because the punishment awarded to the petitioner by the appellant-bank is repugnant to the provisions of Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 and is, therefore, a nullity in the eye of law and in view of the above discussion the petitioner/ respondent's grievance petition was allowed vide the impugned judgment dated 11-12-2000 and he was ordered to be reinstated in service. However, his prayer for back benefits was refused for two-fold reasons; first, that the grievance petition was allowed purely on technical ground and secondly, that there was no material on record rendering the petitioner entitled to back benefits. 8. Feeling aggrieved of the order of reinstatement the appellant-bank has come up in appeal and the refusal of back benefits has prompted the petitioner/respondent (Syed. Nasir Abbas Naqvi) to file cross-appeal (No,RI-10/2001) and I propose to dispose of both the appeals by a single judgment because common question of law and facts are involved in them and they are directed against the same judgment.
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9. The learned counsel appearing for Syed Nasir Abbas Naqvi (respondent) has supported the impugned judgment to the extent of the order of reinstatement by alleging that the petitioner is a worker/workman within the definition of labour laws; his departmental appeal can well be considered and legally amounts to grievance notice; the controversy of application of Industrial Relations Ordinance, 1969 and the Standing Orders Ordinance, 1968 in the instant case has been correctly decided by the Court below and deserves the seal of confirmation of this Court. As regards the last question of principle of double jeopardy, the learned counsel supported the finding of the Court below on the grounds elicited in the impugned judgment that the petitioner/respondent who had already been disqualified from appearing in the aforesaid examination by the Institute and this disqualification amounted to a Major penalty could not have been put to peril twice for the same offence, hence the appellant was not justified for visiting the petitioner/respondent with extreme penalty of dismissal which is in contravention and in violation of Article 13 of the Constitution. 10. As regards withholding of back benefits, the learned counsel for the petitioner/respondent assailed it on two-fold grounds; first, that the petitioner's dismissal has been found illegal and void by the Court below. There was, therefore, no ostensible reason for withholding the back benefits and, secondly, that the petitioner/respondent (Syed Nasir Abbas Naqvi) remained jobless from the date of his termination till reinstatement. He had specifically mentioned this fact in his grievance petition and had reiterated the same before the Labour Court hence refusal of back benefits was absolutely illegal and wholly unwarranted. On the other hand, the learned counsel for the appellant-bank has raised the following contentions: (i) That no grievance notice was served upon the employer as contemplated under the Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 hence the grievance petition was incompetent. (ii) That the petitioner was employed as Officer and Attorney of the appellant-bank. He was holder of duly executed power of attorney (a copy of power of attorney was produced as Annexure 'A' with the reply statement and marked as Exh.R-1). Even the petitioner/ respondent frankly admitted in his cross-examination that he was a power of attorney holder. He was also suggested in his cross- examination that he was not doing any manual or clerical work and he stated that his job was of supervisory nature. The petitioner/respondent though alleged in his examination-in-chief that he was doing manual or clerical work. However, he failed to adduce any evidence whatsoever that he was performing any manual of clerical duty. He was, therefore, not a worker/workman within the definition of Labour Laws and was not competent to seek the indulgence of the Labour Court. (iii) The Labour Laws i,e, Industrial Relations Ordinance, 1969 and the Standing Orders Ordinance, .1968 were not applicable to the petitioner/respondent hence his grievance petition was not maintainable because at the time of the commission of misconduct, the petitioner/respondent was employed at Trunk Bazar Branch Rawalpindi and this is what has been frankly admitted by him. The total number of employees at Trunk Bazar Branch Rawalpindi were 14 in those days as is evident from the attendance register of that branch, a copy of which was produced and marked as Exhs.R-2 and R-3. Out of these 14 only 7 or 8 were workmen. Even at Satellite Town Branch where the petitioner was transferred after commission of misconduct the number of workmen were not more than eight. The rest were officers who were not doing any manual or clerical work. The petitioner admitted in his cross-examination as follows: 'It is correct that premises of every branch is separate and that every branch has got its own manager. It is correct that every official works in his own branch. I do not know State Bank gives sanction of every branch'. ' The learned counsel further added that it is a well-settled law that each branch of a bank is a separate establishment. Since the Trunk Bazar establishment, Rawalpindi was manned with less
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than 20 workmen, the provisions of Industrial Relations Ordinance and Standing Orders Ordinance were not applicable to the aforesaid branch." 11. It is now well-settled that a dismissed workman whose dismissal has not led to an industrial dispute or has not been in consequence of an industrial dispute is not a workman for the purpose of any proceedings under the Industrial Relations Ordinance, 1969. However, where the Standing Orders Ordinance, 1968 is applicable, a dismissed workman can maintain a grievance petition in respect of his dismissal in view of specific provision contained in Standing Order 12. The petitioner/respondent was employed at an establishment where Standing Orders Ordinance was not applicable, the petitioner/respondent being a dismissed person and being no longer a workman was not entitled to maintain his grievance petition. Reliance was placed on 1980 PLC 514, 1980 PLC 655, 1988 PLC 573, 1987 PLC 846 and 1998 PLC 172. Last but not the least point raised with an exuberant skill was that the grievance petition was time-barred and the learned counsel proved it with methematical calculation that the petitioner/respondent who was dismissed on 19-10-1999 filed his girevance petition on 30-6-2000. He was required to come before the Labour Court on 27- 1-2000. However, taking a lenient and charitable view, as the Courts do, in cases like the instant one, if the petitioner/respondent appeal to the Bank Authorities is considered as a reply to a presumed notice then he was required to approach the Labour Court on or before 24-6-2000. His petition was thus time-barred. It is significant to note that the learned counsel for the appellant- bank did not press the application of section 2-A of Service Tribunal Act, 1973 and the dismissal of the grievance petition on this score also. 12. Having given my careful consideration to the aforesaid arguments propounded by the learned counsel for the parties I propose to dispose of all the moot points in seriatim, 13. Coming to the first moot point regarding the service of grievance notice before invoking the jurisdiction of Labour Court through grievance petition. The petitioner/respondent has alleged in para. 6 of his girevance petition as under:-- "Feeling aggreived by the said order of dismissal (Annexure 'F') the petitioner submitted grievance notice in the shape of appeal before the respondent No,1 on 11-11-1999. Copy of which is attached as Annexure 'G'. The said grievance notice/appeal was not accepted and its reply was given to the petitioner by the respondent No,2.' ' The title and contents of this so-called grievance notice (which in fact was an appeal) deserves special mention which is reproduced as under: "Subject: Appeal against the order of dismissal" ' Prayer: In view of the above it is, therefore, respectfully requested that this appeal may kindly be accepted and I may be reinstated to service with full back benefits." ' The appellant-bank categorically denied the service of any grievance notice before filling the grievance petition and Mr. Iftikhar-ul-Haq Qureshi who appeared as R.W.1 on behalf of the appellant-bank asserted that no grievance notice was received by the bank. No question was put to this witness. Even the petitioner/respondent simply said in his statement that he filed departmental appeal/grievance notice to the respondent. It is thus clear from the statement of the aforesaid P.W. And the relevant material referred to above that no grievance notice was served upon the bank. In all probability when the petitioner realised this defect, he in order to cover up this loophole, started calling his departmental appeal dated 11-11-1999 Exh.P-6 as grievance notice as well. 14. Service of grievance notice by the employee upon the employer before filing grievance petition is a sine qua non and its non-service is fatal for the grievance petition as held in various celebrated judgments of the superior Courts including this Tribunal and I quote 1999 PLC 466. In this case this Tribunal termed the grievance notice as vital and condition precedent for filing of grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 and the grievance petition
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was dismissed simply on the ground that there was no proof of service of grievance notice. Even otherwise it is a well-settled law that departmental appeal to the authority cannot be treated as grievance notice. Reliance is placed on 1982 PLC 389, 1982 PLC 616 and 1982 CLC 920. 15. Adverting to the most pivotal and controversial point which needs a thorough probe and serious consideration is the status of the petitioner/respondent. As per his contention he is a workman within the definition of Labour Laws. His stand and status is seriously disputed by the appellant- bank and it has been vehemently contended that the petitioner/respondent was employed as an officer and attoreny of the bank. He was holder of a duly executed power of attorney. A copy of power of attorney was produced as Annexure A with the reply statement and marked as Exh. R-1. In his cross-examination the petitioner admitted that he was a power of attorney holder. A suggestion was put to him in his cross-examination that he was not doing any manual or clerical work, the petitioner stated that "my job was of supervisory nature". The petitioner although in his examination-in-chief stated that he was doing manual or clerical work. However, he failed to adduce any evidence whatsoever that he was performing any manual or clerical duty. 16. Having given my careful consideration to the aforesaid argument I see sufficient weight in it. It has been repeatedly held by the superior Courts of this country that an officer of a Batik who is a power of attorney holder is not a workman. In this regard I cannot help borrowing a very wise observation of the Hon'ble Supreme Court of Pakistan reported in 1985 SCM R 1511 at page 1514 and I quote the relevant portion: "It would thus be noticed that in determining the status of an employee i,e, deciding as to whether or not he is a ' workman' what is to be seen is the overall nature of the duties assigned to the person in question and the main or primary functions that he is required to perform and not the work that he might have to do incidentally in the course of performance of his normal duties, because even a person employed at the highest managerial or supervisory level has some times to perform functions or do some work which may be termed as manual or clerical. No doubt, in the present case some of the duties assigned to the appellant were of a rowine nature and he was required to maintain fixed and short term deposit registers and was also required to prepare balance sheets, salary vouchers and bills etc. But it is pertinent to note that he had also been given a power of attorney by the respondent-bank authorising him to perform, jointly with an other attorney of the bank, a large number of functions which are clearly of managerial nature. The power of attorney is available at page 102 of the Paper Book and it would be useful to reproduce some of the paragraphs thereof to show the nature of the functions entrusted to him thereby:--" ' In the above judgment the Hon'ble Supreme Court numerated various functions entrusted to Grade III Officer who was holding a power of attorney of the bank. In paragraphs Nos.3 to 9 and 11 the Honourable apex Court reproduced the duties and functions of the said Bank Officer which are quite identical with the functions assigned to the petitioner/respondent (Syed Nasir Abbas Naqvi) as spelt out from the contents of his power of attorney. There is nothing on the file which may tend to show that the petitioner/respondent was decorated/burdened with any function which can legitimately be called as manual or clerical in nature. I am, therefore, of the confirmed opinion that Syed Nasir Abbas Naqvi, petitioner/respondent was not a workman within the meaning of clause (i) of section 2 of the Standing Order Ordinance, 1948. 17. Similar view was reiterated by a Division Bench of the Sindh High Court in reported case 1985 PLC 403 where it was held that a Manager of booth holding a power of attorney is not a workman. The material observation of the Hon'ble Bench appearing at page 408 is reproduced as under:-- "It is not disputed that the petitioner at the time of termination of his services was working as Manager of the PIA Branch or booth of the respondent-bank and further a power of attorney had been given to him by the bank as far back as 1965. The said power of attorney entitled the
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petitioner to perform a number of managerial and administrative acts and generally to act on behalf of the respondent-bank. Some of these acts were authorised to be done by the petitioner jointly with another attorney, and others by him individually. Looking to the wide powers conferred upon him by the aforesaid power of attorney it is clear that the petitioner was empowered to do important administrative and managerial functions which are wholly outside the ambit of a workman employed to do manual or clerical functions. In our view, the concurrent finding of the Labour Court and the Labour Appellate Tribunal is based on evidence. We see no reason to interfere with such concurrent finding in this Constitutional petition." 18. A careful perusal of the record shows that the petitioner/respondent (Syed Nasir Abbas Naqvi) was not only a power of attorney holder but at the material time was acting as fiduciary and managerial capacity as such he was not working in any manual or clerical capacity. The definition of terms worker or workman, as contained in the Industrial Relations Ordinance, 1969 indicates that persons, mainly employed in managerial or administrative capacity or persons employed in supervisory capacity and drawing wages exceeding rupees eight hundred per mensum or persons performing functions mainly of managerial nature have been excluded from the said definition. A question was also put to the petitioner/respondent regarding his salary. He stated as "my monthly salary was about 11,000/12,000 Rupees per month including allowances. "Hence he is not a workman to maintain a petition before the Labour Court. In the light of the above celebrated judgment I am convinced that the petitioner/respondent was not a workman to maintain his petition before the Labour Court and his grievance petition was liable to be dismissed on this score alone. 19. Coming to the next moot point regarding the application of Standing Orders Ordinance, 1968 in the instant case, it is significant to note that at the relevant time, the petitioner/respondent was employed at Trunk Bazar. Rawalpindi and the total number of employees at that branch who were 14 out of which only 7 or 8 were workmen. This fact is fully borne out from the copies of the attendance sheets taken from the attendance register of Trunk Bazar, Rawalpindi (Exh.R-2). Even its Satellite Town Branch where the petitioner was transferred after the commission of misconduct the number of workmen were not more than eight. The rest were Officers who were not doing any manual or clerical work and this is borne out from the copy of the attendantce sheet of the said branch (Exh. R-3). The contents of these copies were admitted by the petitioner/respondent in his reply statement. The petitioner also admitted in his cross-examination as follows: "It is correct that premises of every branch is separate and that every branch has got its own manager. It is correct that every official works in his own branch. I do not know State Bank gives sanction of every branch." It is a settled law that each branch of, a bank is a separate establishment. That is so because each branch has the following attributes: (i) It has separate premises; (ii) It has a separate Manager; (iii) It has separate account holders and account holder of one branch cannot operate the same account at another branch: (iv) It has separate cheque books; (v) An employee posted at one branch is only required to work there unless transferred. (vi) Each branch requires a separate permission from the State Bank of Pakistan under section 28(i) of the Banking Companies Ordinance, 1962 read with rule 11 of the Banking Companies Rules, 1963. (vii) Each branch is a separate place of business. 20. It has been repeatedly held by the superior Courts that an employer may have more than one establishment and an establishment may have more than one employers. This view was upheld in
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1982 PLC 20. It has been held by the High Court in a well-reasoned judgment reported in 1980 PLC 800 that each branch of the bank is a separate establishment. In the aforesaid cases three branches of Grindlays Bank, Lahore were considered as one unit and a single entity for the formation of CBA. Subsequently the employees of one of three branches of the said bank formed a separate union. The registration of such union was challenged before the Lahore High Court, Lahore. The Hon'ble Court adverting to the meaning of word "establishment" held as follows:-- "The word 'establishment' as defined in the Ordinance when interpreted keeping the above principle in view is open to only one conclusion that in the same industry there can be more than one establishment. The phrase ' any office, firm, industrial, unit, undertaking, shop or premises in which workmen are employed for the purposes of carrying on any industry' etc., does not suffer from any ambiguity. One cannot add to the phrase so as to get the meaning that an establishment means establishment of one particular employer. I have gone through the reasoning of the Chairman of the Commission in the judgment cited by the respondents and I feel the same suffers from the germs of its own defect. If the reasoning of the Chairman is adopted, what will happen to a multinational concern with its head office outside Pakistan but branches within. As, on the above interpretation, there cannot be any registered trade union except for the establishment, will not the workers of the branches in Pakistan be denied the benefits of the labour laws. Taking the case of a domestic concern, say…
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