Faysal Bank Ltd VS Full Bench NIRC etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.3490 of 2019 Faysal Bank Limited Versus Full Bench National Industrial Relations Commission and others Date of Hearing: 14.11.2023 Petitioner by: Mr. Faisal Mahmood Ghani, Advocate. Respondent by: Mr. Fiaz Hussain, Advocate for respondent No.2

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Faysal Bank Limited, impugns the order dated 23.09.2019 passed by the learned Full Bench, National Industrial Relations Commission (“N.I.R.C.”), Islamabad whereby appeal of respondent No.2, Salma Mushtaq, against the order dated 29.04.2019 passed by the learned Member, N.I.R.C., was allowed. Vide order dated 29.04.2019, the learned Member, N.I.R.C. had returned respondent No.2’s grievance petition on the ground that she was not a “workman” as defined in Section 2(xxxiii) of the Industrial Relations Act, 2012 (“I.R.A.”) and therefore, N.I.R.C. was bereft of jurisdiction in the matter.

2.Learned counsel for the petitioner submitted that the order dated 29.04.2019 passed by the learned Member, N.I.R.C. did not suffer from any jurisdictional infirmity; that the impugned order dated 23.09.2019 passed by the learned Full Bench, N.I.R.C. is unreasoned and not in accordance with the evidence on the record; that since respondent No.2 was seeking the benefit of the provisions of the West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968 (“the 1968 Ordinance”), the burden was on her to prove that she came within the definition of workman as defined in the said Ordinance as well as the I.R.A.; that respondent No.2 was serving as a Locker Custodian which is a position in Officer Group-II (“OG-II”); that respondent No.2 was not performing duties of a clerical nature; that there was a serious allegation of forging a customer’s signature on an affidavit required to make his locker operational; that the mere fact that respondent No.2 came within the meaning of the term “workman” as defined in the I.R.A., would not be sufficient for N.I.R.C. to

exercise jurisdiction in the matter; and that respondent No.2 had not been able to discharge the burden of proving that she fell within the meaning of the term “workman” as defined in the 1968 Ordinance. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

3.On the other hand, learned counsel for respondent No.2 submitted that the impugned order dated 23.09.2019 passed by the learned Full Bench, N.I.R.C. does not suffer from any jurisdictional irregularity so as to warrant interference in the Constitutional jurisdiction of this Court; that it was correctly held that respondent No.2 was a workman and therefore N.I.R.C. had the jurisdiction to adjudicate upon her grievance petition; that respondent No.2’s job description as per the documents filed by the petitioner in the proceedings before the learned Member, N.I.R.C. was such as to bring her within the meaning of the term workman; and that respondent No.2 has been embroiled in wasteful litigation since the past several years. Learned counsel for respondent No.2 prayed for the writ petition to be dismissed.

4.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

5.The record shows that respondent No.2 was appointed in OG-III by the petitioner / bank vide letter dated 22.08.2006. Subsequently, she was promoted to OG-II. While serving as Locker Custodian, respondent No.2 was issued show cause notice dated 19.01.2016. The allegation against respondent No.2 was that she forged a customer’s signature on an affidavit required to make his locker operational. The inquiry proceedings against respondent No.2 culminated in the issuance of letter dated 30.03.2016 whereby her services were terminated.

6.Respondent No.2’s grievance against the proceedings conducted against her was that such proceedings were not conducted in accordance with Standing Order 12(3) in the Schedule to the 1968 Ordinance. Since the appeal submitted by respondent No.2 to the President of the petitioner / bank did not bear any fruit, she filed a grievance petition before N.I.R.C. under

Section 33 of the I.R.A. The said petition was contested by the petitioner / bank by filing a written reply.

7.After the recording of evidence, the learned Member, N.I.R.C., vide order dated 29.04.2019, returned the grievance petition on the sole ground that the evidence on the record showed that respondent No.2 did not come within the meaning of the term “workman.” The appeal preferred by respondent No.2 against the said order was allowed by the learned Full Bench, N.I.R.C. vide order dated 23.09.2019. In the said order, it was held inter alia that the list of respondent No.2’s duties showed that she did not have any supervisory, managerial or administrative powers and was performing her duties under the supervision of the Branch Service Manager and Branch Manager. The matter was remanded to the learned Member, N.I.R.C. for a decision on merits. The said order dated 23.09.2019 was assailed by the petitioner in the instant writ petition and on 11.10.2019, this Court suspended the operation of the said order dated 23.09.2019.

8.Indeed it is a settled principle of law that a person who approaches N.I.R.C. for the redressal of his grievance claiming himself to be a workman and such status is denied by the employer, it becomes the bounding duty of the person who approaches N.I.R.C. to demonstrate through evidence that the nature of his duties and functions were that of a workman and not of a managerial or administrative nature. Reference in this regard may be made to the law laid down in the cases of National Bank of Pakistan Vs. Punjab Labour Court No.V, Faisalabad (1993 SCMR 672) and National Bank of Pakistan Vs. Anwar Shah (2015 SCMR 434). Respondent No.2, in her grievance petition, had pleaded that she was a workman within the meaning of Section 2(xxxiii) of the I.R.A. but it is my view that she could not be non-suited simply on the fact that she had not pleaded that she also came within the meaning of workman as defined in the 1968 Ordinance. It is also my view that omission on the part of a person filing a grievance petition before N.I.R.C. to plead that he / she is a workman or worker is not fatal since the mere fact that he / she had filed a petition under Section 33 of the I.R.A., which right is available only

to a worker, he / she had impliedly asserted his / her rights as a worker. Additionally, I am also of the view that since the 1968 Ordinance as well as the I.R.A. are beneficial legislation for the benefit of the downtrodden workers, they ought not to be expected to draft their petitions in a scholarly manner or through a counsel well-versed and having expertise in labour laws.

9.In the case at hand, respondent No.2 in her affidavit in evidence had clearly deposed that her day-to-day responsibilities / duties were of a clerical nature which entailed working with her hands. She had also deposed that there was no person subordinate to her and nor could she approve the leave of any employee. Although in her cross-examination she had deposed that she had read her grievance petition in which it had not been deposed that her job was of a clerical nature. This cross- examination, in my view, would not negate her testimony in which she had amply demonstrated that her duties were such as to bring her within the meaning of a workman.

10.More importantly the petitioner / bank’s witness, Aamina Ahtesham, in her affidavit in evidence, had given an exhaustive list of respondent No.2’s duties as a Locker Custodian. This list is set out in Schedule-A hereto. Perusal of this list would lead to inescapable conclusion that respondent No.2 had not performed duties of a supervisory, managerial or administrative nature. The nature of these duties is such as would bring respondent No.2 within the meaning of the term “workman” as defined in the 1968 Ordinance as well as in the I.R.A.

11.In view of the above, I do not find any merit in this petition which is accordingly dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON 21.11.2023.

(JUDGE)

Sultan*

SCHEDULE-A

 Ensure that the highest level of customer service is provided at all times and customer’s banking needs are fully met in a professional and competent manner;

 Custodian of necessary customer safe deposit vault / locker keys;  Ensure that locker premises maintain highest standards of hygiene, cleanliness and comfort;

 Maintain records of outstanding rental on lockers and assist Branch Services Manager on recovery of the same;  Make all possible efforts o recovery any outstanding chargers from the customers;

 Responsible to block locker operation in case of default;  Checking of locker room after every individual customer’s visit and immediate reporting of lost / found items to the branch management;

 Coordinate and arrange locker breaking as per customer’s request in consultation with General Service Operations, Vendor and the customer;

 Maintain files and record of daily visit logs;  Responsible for balancing of lockers and locker keys;  Responsible to verify the signatures of customers before allowing access to the lockers;

 Responsible to send reminder letter / legal notices to the default customers and arrange publication on notices through the Operations Support Department. Further, respond to all legal matters related to locker operations in consultation with Branch Service Manger;

 Arrange replacement of locks of surrendered lockers;  Any other Banking activity assigned by the BSM / BM;  Back up of Service Ambassador; and  Any other Banking activity assigned by the Supervisor.