2015 P L C 82
[Balochistan High Court]
Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ
MCB BANK LTD. through Attorney
Versus
MUHAMMAD IMRAN BHATTI and 2 others
Constitutional Petition No.640 of 2012, decided on 18th August, 2014.
(a) Industrial Relations Ordinance (XCI of 2002) ---
----Ss. 2(xxx), 46, 46 (1) & 46(2) ---Constitution of Pakistan, Art.199 ---Constitutional petition ---
Dismissal of employee from service on the charge of corruption and embezzlement ---Employee
filed depar tmental appeal instead of grievance notice ---Effect ---Labour Court accepted the
grievance petition, which decision was upheld by the Labour Appellate Tribunal ---Employee
was reinstated with back benefits ---Concurrent findings of facts of lower forums ---Scope---
Contention of the petitioner was that after his promotion to the post of officer Grade -III, he was
no more a worker/workman, therefore, his grievance petition was not competent, nor the Labour
Court had the jurisdiction to entertain the same ---Validit y---Status of a person depended upon
the work he/she performed in an institution and not upon a grade he/she owned ---Person, who
was discharging his duties mainly in a managerial or in administrative capacity, could not be
termed as a "worker" or "workman" ---"Worker" or "workman" was the one, who was employed
in an institution to do skilled, unskilled or clerical work manually ---Both the manual and clerical
works were more or less the routine works, not requiring any great amount of initiative,
imagination, discretion or supervision in discharging the duty ---Employee, in the present case,
was holding a post, which from its designation appeared to be of a supervisory or managerial in
nature, but the duties performed by him could not be considered as manageria l or administrative,
therefore, irrespective of the fact that the employee was an officer Grade -III, he still was a
"workman", therefore, his grievance petition before the Labour Court was competent and the
forums below had the jurisdiction to entertain th e same ---Under S.46(1) of the Industrial
Relations Ordinance, 2002, the word "may" had been used, which had given discretion to the
"worker/workman" to either approach the employer by way of grievance notice, before
approaching the Labour Court or may dire ctly approach the Labour Court through a grievance
petition, therefore, non -issuance of a grievance notice to the employer was not fatal for filing a
grievance petition before Labour Court ---Mere mentioning of wrong title, i.e. "appeal for re -
instatement i n the bank service" instead of "grievance notice" had not vitiated the proceedings ---
High Court in constitutional jurisdiction could not interfere in the concurrent findings of facts
arrived at by the two competent forums ---Petitioner had failed to point o ut any illegality and
irregularity in the judgments of the lower foras ---Constitutional petition was dismissed in
circumstances.
(b) Words and Phrases ---
----"Worker" and "administration" --- Definition and meaning.
(c) Constitution of Pakistan ---
----Art. 199 ---Constitutional jurisdiction of High Court ---Scope ---Concurrent findings of facts by
lower foras ---Effect --- High Court in a constitutional jurisdiction could not interfere in the
concurrent findings of facts arrived by the two competent foru ms.
Javed Asghar Awan for Petitioner.
Abdul Rasheed Khokhar for Respondent No.1.
Date of hearing: 30th April, 2014.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. -- Facts of the case are that the respondent No.1
was appointed as a Cashier/Assistant/Typist in Grade -IV by the MCB Ltd. (the petitioner) and
later on was promoted as an Officer Grade -III against the post of an Accountant vide order dated
3rd August, 2000 a nd lastly was posted in MCB, Quetta Cantt: Branch. An inquiry was initiated
against him on an allegation of embezzlement of an amount, consequently the Inquiry Officer
recommended his dismissal from service, which was agreed by the competent authority, hen ce
he was dismissed from services by means of an order dated 13th July, 2005. The respondent
No.1 preferred a departmental appeal before the competent authority, but without any success,
where -after he filed a Grievance Petition before the Labour Court, Qu etta, which was contested
by the petitioner on legal as well as factual grounds. It is mainly contended that the respondent
No.1 after promotion as an Officer Grand -III, is no more a worker/workman, therefore, the
Grievance Petition is not maintainable. Th e Labour Court, after trial, overruled the objection,
accepted the petition vide order dated 29th March, 2012 and re -instated the respondent No.1 in
service with all back benefits. Feeling aggrieved, the petitioner preferred an appeal before the
Labour App ellate Tribunal, which was dismissed on 9th August, 2012, hence this petition.
2. Learned counsel for the petitioner stated that after promotion to the post of Officer
Grade -III, the respondent No.1 was performing a supervisory and managerial job, hence he was
no more a worker/ workman, therefore, his Grievance Petition was not competent, nor the
Labour Court had the jurisdiction to entertain the same. He further raised an objection that the
respondent No.1 did not issue a grievance notice to the employe r, as provided under subsection
(2) of section 46 of the Ordinance before approaching the Labour Court, therefore, the Grievance
Petition was not maintainable. The learned counsel stated that these law points were agitated
before the Labour Court and the L abour Appellate Tribunal, but the same were not considered by
them, therefore, both the lower forums, without jurisdiction, entertained and accepted the
Grievance Petition, which amounts to an illegality and irregularity. The learned counsel stated
that ev en otherwise, the charge sheet was issued against the respondent No.1 with a specific
allegation of embezzlement, on the basis of which, a proper and detailed inquiry was conducted,
wherein the respondent No.1 was found guilty. He stated that sufficient ev idence and material
was collected by the authorized officer, therefore, he had no option, but to recommend the
dismissed of the respondent No.1, which was rightly agreed to by the competent authority. He
stated that no illegality or irregularity has been p ointed out by the respondent No.1 in the inquiry,
as well as, in the order of dismissal passed by the competent authority, but the forum below did
not consider the material available before them correctly, which amounts to mis -appreciation and
non-apprecia tion of the evidence, hence committed an illegality and irregularity.
3. Learned counsel for the respondent No.1 opposed the contention and stated that
irrespective of the fact that the respondent No.1 was an Officer Grade -III, he was still performing
his duties manually and was maintaining the accounts and ledgers by hand. He added that the
respondent No.1 had no employee working under him, nor had an administrative, supervisory or
managerial authority at the time when he was dismissed from his services, as such, he was still a
worker/workman and had no other remedy except to file a Grievance Petition before the Labour
Court, which was rightly entertained by it. The learned counsel argued that even otherwise, the
allegation levelled against the respondent No.1 had no support from any evidence and material.
According to him, actually at the relevant time, the Manager of the branch, namely Athar,
accepted during the inquiry that he alone embezzled the amount, therefore, action was taken
against him pursuant to which, he deposited the entire amount. He contended that there was no
role of the respondent No.1 in mis -appropriation or embezzlement of the amount, nor was there
any iota of evidence before the Inquiry Committee, proving his nexus with the Branch Mana ger,
therefore, the Inquiry Committee has come to a wrong conclusion, on the basis of which, the
order for dismissal of the respondent No.1 by the authority was illegal. He argued that the forums
below, having jurisdiction in the matter, have properly appr eciated the material available on the
record and have rightly allowed the Grievance Petition of the respondent No.1. In the end, the
learned counsel stated that the concurrent findings of fact arrived at by the forum below cannot
be challenged through a Co nstitutional Petition, therefore, requested to dismiss the petition.
4. We have heard the learned counsel for the parties and have perused the record. Before
dilating upon the merits of the case, it would be appropriate to decide the law point raised by the
petitioner with regard to the status of the respondent No.1. Section 46 of the Industrial Relation
Ordinance (IRO), 2002 provides a remedy to a worker of an establishment to file his Grievance
Petition before a Labour Court. The question for considerat ion is that whether the respondent
No.1, after becoming, an Officer Grade -III is still a worker/workman. In this behalf, the
definition of a "Worker" and "Workman" has been given in sub -clause XXX of section 2 of the
IRO, 2002, which is re -produced below: ---
"(xxx) "worker" and "workman" means any and all persons not falling within the definition of
employer who is employed in an establishment or industry for remuneration or reward either
directly or through a contractor, whether the terms of employment b e express or implied, and for
the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a
person who has been dismissed, discharged, retrenched, laid off or otherwise removed from
employment in connection with or as a consequence of that dispute or whose dismissal,
discharge, retrenchment, lay -off or removal has led to that dispute but does not include any
person who is employed mainly in a managerial or administrative capacity."
In the above, definition, the only c riteria which excludes a person from the definition of
"worker" and "workman" is that he/she must be employed mainly in a managerial or
administrative capacity. According to the Black's Law Dictionary, "a person in an organization,
who is vested with certa in amount of discretion and independent judgment in managing,
administering and supervising the affairs of business, office or other organization" is called a
Manager, hence is performing his/her duties in a managerial capacity. Similarly, the word
"Admini stration" means "the management or performance of the executive duties of a
government, institution or business". The executive duties include "(a) the responsibility of
effecting, implementing and enforcing laws, rules, procedures and activities, which ar e subjected
to a judicial review; (b) the responsibility of validating a written instrument by fulfilling the
necessary requirements; and (c) the power of judicial enforcement of money judgment by seizing
and selling the judgment debtor's property". So a p erson, performing the stated executive duties,
is called an "Administrator". What we have gathered from the discussion is that status of a
person depends upon a work he/she performs in an institution and not upon a grade he/she owns.
Thus, any person, who is discharging his duties mainly in a managerial or in administrative
capacity, cannot be termed as a "worker" or "workman". To the contrary, a "worker" or
"workman" is the one, who is employed in an institution to do skilled unskilled or clerical work
manually. Both the manual and clerical works are more or less the routine works, not requiring
any great amount of initiative, imagination, discretion or supervision in discharging the duty.
5. To consider whether the respondent No.1 was a "worker" or "work man", the burden of
proof was upon him. In this behalf, he in his Grievance Petition has specifically stated that he is
performing a manual clerical job, maintaining ledgers and accounts by hand and had no
managerial or administrative power. It is further contended that there was no employee under his
subordination, had no power to grant leave to any of the employees of the branch, nor the power
to transfer someone. In support of his contention, he produced two witnesses and made his
statement on oath. The contention of the respondent No.1 was not rebutted by the petitioner
through evidence either oral or documentary. His job description was not explained before the
forum below to prove that the respondent No.1 was mainly employed in a managerial or
administ rative capacity. The ground available to the petitioner is that the respondent No.1 is a
Grade -III officer, hence is not a worker. Though the respondent No.1 was holding a post, which
from its designation appear to be of a supervisory or managerial in natu re, but the duties
performed by him cannot be considered as managerial or administrative. Thus, irrespective of the
fact that the respondent No.1 was an officer Grade -III, he still was a workman, therefore, his
Grievance Petition before the Labour Court wa s competent and the forums below had the
jurisdiction to entertain the same.
6. As far as, the second objection of the learned counsel for the petitioner with regard to
non-issuance of the grievance notice is concerned, in subsection (1) of section 46 of the
Ordinance, the word "may" has been used, which gives discretion to the "worker/workman" to
either approach the employer by way of grievance notice, before approaching the Labour Court
or may directly approach the Labour Court through a Grievance Petit ion, therefore, non -issuance
of a grievance notice to the employer is not fatal for filing a Grievance Petition before a Labour
Court. Even otherwise, in this case, the respondent No.1 has filed an appeal for his re -
instatement to the President of the Bank . Since no departmental appeal is provided by the law,
therefore, the appeal could be considered as a grievance notice on behalf of the respondent No.1.
Merely mentioning of wrong title, i.e. "appeal for re -instatement in the bank service" instead of
"grie vance notice" does not vitiate the proceedings, consequently the objections so raised by the
petitioner in this behalf is overruled.
7. On merits, facts of the case are that the ex -Manager of the Bank was charged with
corruption and embezzlement, who acc epted his guilt before the Inquiry Officer and deposited
the entire embezzled amount. The respondent No.1 at that time was posted as Cashier in the
Cantt. Branch of the Bank. The allegation against him is that he is also involved in the act of
corruption a nd corrupt practices along with the ex -Manager. On the basis of the allegations, a
charge was framed by the Inquiry Officer against the respondent No.1, wherein it has been
emphasized that he did not inform the higher authorities about the embezzlement/ co rruption of
the Manager, hence facilitated him. Be that as it may, the petitioner did not produce any rule or
procedure, showing that the respondent No.1 was bound to inform the higher authorities about an
illegality or corruption of his superior. Even oth erwise, it has not been established that the
respondent No.1 was aware about the corruption of the then Manager, therefore, he cannot be
held responsible for not informing the authorities, nor can be held accountable for the act of his
superior. The Tribun al and the Labour Court have thoroughly considered the evidence and the
material available before them. Both the lower forums concurrently came to a conclusion that the
allegation levelled against the respondent No.1 has not been proved. This Court in a
constitutional jurisdiction, cannot interfere in the concurrent findings of facts arrived by the two
competent forums. The learned counsel for the petitioner has failed to point out any illegality and
irregularity in the judgments impugned of the forums belo w.
Thus, in view of what has been stated and discussed hereinabove, the petition is
dismissed.
SA/63/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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