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Form No.

HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT

W.P. No.10958 of 2010.

Habib Bank Ltd. etc. Versus Punjab Labour Appellate Tribunal Lahore etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

05. 12.02.2016. Mr. Junaid Jabbar Khan, Advocate for the


petitioners.
Mr. Muhammad Tariq Ansari, Advocate for the
respondents.
Rana Shamshad Khan, Additional Advocate
General, on Courts call.

Through this petition under Article 199 of the

Constitution of Islamic Republic of Pakistan, 1973,

the petitioners have challenged legality of judgments

dated 02.04.2009 and 05.04.2010 passed by Punjab

Labour Court No.9, Multan (hereinafter to be referred

as the Labour Court), and the Punjab Labour

Appellate Tribunal, Lahore (respondent No.1),

respectively.

2. Pithily, respondent No.2 joined the Habib

Bank Ltd. as Cashier on 01.09.1968 and was later on

promoted as Officer Grade-III in the year 1978 and

then Officer Grade-I in the year 1994. On

22.04.2006, he made a written request for his

retirement which was accepted and he was retired

from service w.e.f. 20.06.2006. As a result all the

pensionary benefits were paid to him. He, being

dissatisfied with the calculation of his pensionary


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S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

benefits and non-encashment of his unveiled earned

leaves, filed a Grievance Petition under section 46 of

the Industrial Relations Ordinance, 2002 (IRO 2002),

for determination of his gratuity according to last

gross pay and encashment of unavailed earned leaves

of 880 days which was partially allowed by the

Labour Court, vide judgment dated 02.04.2009,

whereby he was held entitled for gratuity at the rate

of last gross pay whereas his prayer for leave

encashment was turned down. Aggrieved by

judgment dated 02.04.2009 both the parties filed

independent appeals before respondent No.1 which

were dismissed through consolidated judgment dated

05.04.2010; hence this petition.

3. Learned counsel for the petitioners, while

opening his arguments, submits that since respondent

No.2 had been serving the Bank as Officer Grade-I,

he did not fall within the category of a workman,

thus, his Grievance Petition before Labour Court

was not maintainable; that if for the sake of

arguments it is presumed that respondent No.2 was a

workman, even then, after his retirement he could not

agitate his grievance before the Labour Court; that all

pensionary benefits were paid to respondent No.2 as


WP No.10958 of 2010. Continuous Sheet No.__3___
S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

per policy of the Bank, thus, he had no cause of

action to approach the Labour Court; that according

to section 2(xxxi) of Punjab Industrial Relations Act,

2010 (PIRA 2010), a retired person does not fall

within the definition of a workman; that according to

section 33 of PIRA 2010 a workman can only

approach the Labour Court where any penal action

was taken against him as a result of some industrial

dispute; that respondent No.2 could approach the

Authority under the Payment of Wages Act, 1936

(the Act, 1936) for gratuity while pressing into

service the provisions of section 13 of the Act, 1936,

as according to section 22 of the Act 1936 in the

matters where the Authority has exclusive

jurisdiction proceedings before any other forum are

debarred; that as respondent No.2 was paid Provident

Fund to which the Bank was also a contributory he

was not entitled for grant of pension as a matter of

right in view of the bar contained under section 12(6)

of the Industrial and Commercial Employment

(Standing Orders) Ordinance, 1968 (the Ordinance

1968) and that since respondent No.2 has received

pension in addition to the Provident Fund, he had no

cheeks to agitate the matter before the Labour Court.


WP No.10958 of 2010. Continuous Sheet No.__4___
S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

In support of his contentions, learned counsel has

relied upon the cases reported as Dilshad Khan Lodhi

v. Allied Bank of Pakistan and others (2008 SCMR

1530), Samad Rubber Works (Pvt.) Ltd. through

M.D. V. Authority under Payment of Wages Act, 1936

and 2 others (2014 PLC 308), M/s Coca Cola

Beverage Pakistan Ltd. through Authorized

Officer/Industrial Relations Manager v. Registrar

Trade Unions Sindh and 3 others (2010 PLC 48),

Muhammad Ashraf v. Pakistan Railways and others

(2007 PLC 240), Taj Din v. Pioneer Steel Mills Ltd.

(1984 PLC 403) and Abdus Salam Khan v. Pakistan

Railways through Division Superintendent, Lahore

(1984 PLC 572).

4. On the other hand, learned counsel

representing respondent No.2, while defending the

impugned judgments, states that as respondent No.2

was performing duties of manual/clerical nature, he

fell within the definition of a workman, thus,

proceedings before the Labour Court were

competent; that despite his promotion as Officer

Grade-I, respondent No.2 remained posted as Cashier

in HBL Hussain Agahi Branch, Multan, with only

interval of days, therefore, the petitioners cannot


WP No.10958 of 2010. Continuous Sheet No.__5___
S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

claim that respondent No.2 was not performing duties

of manual/clerical nature; that to determine status of

a person as to whether he is a workman or not the

foremost proof is the nature of duties being

performed by him; that no pension is being received

by respondent No.2, therefore, plea of the Bank that

he could not claim gratuity in view of the bar

contained under section 12(6) of the Ordinance,

1968, is worthless and that the judgments of both the

courts below, being in line with the law on the

subject, cannot be interfered with by this Court in

exercise of its Constitutional jurisdiction vested

under Article 199 of the Constitution of Islamic

Republic of Pakistan, 1973.

5. The learned Additional Advocate General has

supported the version taken by the petitioners with

the additional submission that since respondent No.2

does not fall within the definition of a workman

neither provisions of the IRO 2002 nor those of the

Ordinance 1968 were applicable in his case.

6. I have heard learned counsel for the parties at

considerable length and have also gone through the


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S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

documents annexed with this petition as well as the

case law cited at the bar.

7. While scanning the record, I have observed

that respondent No.2 filed Grievance Petition before

the Labour Court claiming Gratuity at the rate of last

30 days gross pay in addition to encashment of

unavailed earned leaves. His claim to the extent of

gratuity was accepted by both the fora below whereas

that to the extent of leave encashment was dismissed.

As respondent No.2 has not agitated the matter

regarding dismissal of his claim for leave

encashment, the controversy in the present petition is

only confined to the rate of gratuity.

8. A cursory glance over the documents attached

with this petition shows that respondent No.2, while

claiming himself to be a workman, filed a Grievance

Petition before the Labour Court, by invoking the

provisions of section 46 of the IRO, 2002. The word

workman has been defined under section 2(xxx) of

IRO 2002 in the following words: -

2. Definitions.- In this Ordinance, unless


there is anything repugnant in the subject or
context,-

(xxx) "worker" and "workman" means any


and all persons not falling within the
WP No.10958 of 2010. Continuous Sheet No.__7___
S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

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
be 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.
(emphasis provided)

A careful look over the afore-quoted provision of law

shows that the persons performing managerial or

administrative duties have specifically been excluded

from the category of workmen. Insofar as the case in

hand is concerned, admittedly, respondent No.2 was

serving as Officer Grade-I and at the time of his

retirement he was posted as Branch Manager. In this

scenario, one thing is clear that at the time of his

retirement respondent No.2 was not performing

duties of manual or clerical nature rather he was

supervising a Branch. The question as to whether a

person serving as an Officer in a Bank falls within

the definition of a workman or not came under

discussion before the apex Court of the country in the

case of Muslim Commercial Bank Ltd. and others v.

Muhammad Shahid Mumtaz and another (2011


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S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

SCMR 1475) wherein it has inter-alia been observed

as under: -

Interestingly while appearing in the witness-


box, the respondent referred to the nature of
his work as Officer Grade-II and not that of a
Manager. It may be mentioned that it was on
account of the inquiry that was to be held
against him on the basis of the Auditors
report that he was transferred to another
Branch not in a managerial capacity.
Apparently this was done to facilitate the
process of inquiry. It is thus, his capacity as
Manager of the Branch, which was relevant
for determining the status for the purpose of
his standing to approach the Labour Court.
We are in no doubt that in view of the
aforesaid discussion the respondent was not a
workman.(emphasis provided)

According to the afore-quoted judgment even an

Officer Grade-II posted as Branch Manager was

excluded from the category of workman. Thus, by no

stretch of imagination, it is believable that respondent

No.2, being Officer Grade-I, was serving as workman

at the time of his retirement.

Learned counsel for respondent No.2 has tried

to establish that respondent No.2 fell within the

category of workman by stating that though he was

promoted as Officer Grade-I but he remained posted

as cashier in HBL Hussain Agahi Branch, Multan,

with breaks of short intervals. In this regard, I am of

the view that the application submitted by respondent


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S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

No.2 for his retirement and the emoluments paid to

him show that at the time of his retirement he was

serving as Branch Manager. There is no cavil with

the preposition that mere designation is not sufficient

to determine as to whether a person is workman or

not rather duties being performed by him are the

determining factor, however, there is nothing on

record to show that at the time of his retirement

respondent No.2 was performing duties of manual or

clerical nature to bring him out of purview of

managerial or administrative capacity. In ordinary

course, a Branch Manager is considered to be a

supervisory officer and the duties being performed by

him being of managerial nature cannot be dubbed as

workman as held by the apex Court of the country in

the case of Muslim Commercial Bank Ltd. and others

(Supra) in the following words: -

The import of the above definition came


under discussion in another case before this
Court in GENERAL MANAGER, HOTEL
INTERCONTINENTAL V. BASHIR A. MALIK
(PLD 1986 SC 103) and it was held that "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 the essential and fundamental
consideration for determining the question
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S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

and not his designation which is not


conclusive ..The main features, the pith
and substance of his employment must be
manual or clerical before the definition is
attracted "

9. It is evident from record that the Labour

Court, while accepting the claim of respondent No.2

regarding gratuity has mainly relied upon a judgment

of this Court whereby a workman was held entitled

for gratuity at the rate provided under the provisions

of the Ordinance, 1968. In my humble opinion, the

Labour Court while doing so has brushed aside the

provisions of section 12(6) of the Ordinance, 1968

which for facility of reference are reproduced herein

below: -

12. Termination of employment.


(1)
(2)
(3)
(4)
(5)
(6) Where a workman resigns from service or
his services are terminated by the employer,
for any reason other than misconduct, he
shall, in addition to any other benefit to which
he may be entitled under this Ordinance or in
accordance with the terms of his employment
or any custom, usage or any settlement or an
award of a Labour Court under the [Punjab
Industrial Relations Act 2010 (XIX of 2010)],
be paid gratuity equivalent to thirty days,
wages, calculated on the basis of the wages
admissible to him in the last month of service
if he is a fixed-rated workman or the highest
pay drawn by him during the last twelve
months if he is a piece-rated workman], for
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S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

every completed year of service or any part


thereof in excess of six months:

Provided that, where the employer has


established a provident fund to which the
workman is a contributor and the contribution
of the employer to which is not less than the
contribution made by the workman, no such
gratuity shall be payable for the period during
which such provident fund has been in
existence (emphasis)
A cursory glance over the afore-quoted provision,

especially the proviso thereto, shows that when the

employer is also contributing towards Provident Fund

not less than the contribution of a workman, the

workman is not entitled to gratuity as a right. Learned

counsel for the petitioners, while producing certain

documents, has argued that since respondent No.2

was paid Provident Fund at the time of his retirement,

he had no vested claim for gratuity. Admittedly, at

the time of retirement of respondent No.2 Pension

Rules amended in the year 1998, relating to the

pensionary matters of the employees of the Bank

were in vogue. It is not the case of respondent No.2

that the said rules were not applicable to him. If the

plea raised by the learned counsel for respondent

No.2 that he was entitled for gratuity at the rate of

last gross pay as per the provisions of the Ordinance

1968 is acceded to then section 12(6) of the


WP No.10958 of 2010. Continuous Sheet No.__12___
S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

Ordinance 1968 would impede his way to claim

gratuity after receipt of Provident Fund. On the one

hand, respondent No.2 has received the amount of

gratuity at the rate determined by the Bank

authorities on the basis of aforesaid rules and on the

other he is clamoring for fresh counting of the same

on the basis of provisions of the Ordinance, 1968.

Respondent No.2 cannot be allowed to invoke the

provisions of the Ordinance 1968 which are

beneficial to him and to bypass the others which run

contrary to his claim. If for the sake of arguments it

is presumed that pensionary benefits of all the

persons serving in various Banks of the country are to

be reckoned according to provisions of the

Ordinance, 1968 perhaps there would be no end to

litigation by unscrupulous persons. Moreover, when

respondent No.2 did not fall within the category of

workman the provisions of the Ordinance 1968 were

not applicable to him.

10. Though a specific objection qua locus standi

of respondent No.2 to agitate the matter after his

retirement before Labour Court was raised by the

petitioners before the fora below but the same was

not appreciated in its true perspective. In number of


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S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

cases the apex Court of the country has held that

prior to entering into arena of factual controversy or

dilating upon merits of the case the forum concerned

should decide the question of its jurisdiction first but

the verdicts of the fora below being violative of the

law laid down by the apex Court of the country

cannot be blessed with stamp of authenticity rather

deserve to be deprecated. Further the contents of the

judgment rendered by the Labour Court shows that

the same does not qualify the test of a speaking order.

The Labour Court instead of stating facts in a

sequence and then to discuss the respective pleas of

the parties opted to decide the matter in an entirely

technical manner which being against the spirit of the

principles laid down for a judicial verdict cannot be

approved rather deserves to be nipped in the bud.

Moreover, respondent No.1 instead of applying its

independent mind has toed the line of the Labour

Court and upheld findings of the forum below

without discussing law on the subject.

11. Generally this Court does not interfere in the

concurrent findings of the facts arrived at by the fora

below, however, the jurisdiction of this Court to take

care of orders passed by administrative tribunals/


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S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

courts cannot be abridged in the cases where a Court,

forum or tribunal assumed jurisdiction in a matter

which otherwise does not fall within its purview.

Dealing with a similar question, the apex Court of the

country, in the case of Muhammad Iqbal and others

v. E.D.O. (Revenue) Lodhran and another (2007

SCMR 682) has inter-alia observed as under: -

7. There may be no cavil with the


preposition that the question of promotion
rests within the jurisdiction of competent
authority, which would not be ordinarily
interfered with by a Court of law but where
the authority competent to award promotion
or to appoint to a particular post acts in
violation of law, in excess of jurisdiction,
without jurisdiction or in colourable exercise
of powers conferred on him, extraordinary
jurisdiction of the High Court in terms of
Article 199 of the Constitution can always be
invoked for redressing the wrong. We are,
therefore, not inclined to agree with the
learned counsel that this was not a fit case for
interference by the High Court in the exercise
of constitutional jurisdiction. Admittedly High
Court has not substituted its own decision for
the act of the respondent, therefore, the
submission is preposterous and not relevant.

12. For what has been discussed above, I have no

hesitation to hold that at the time of filing of

Grievance Petition before Labour Court, respondent

No.2 did not fall within the category of a workman

thus his Grievance Petition before the Labour Court

was not competent. Consequently, instant petition is


WP No.10958 of 2010. Continuous Sheet No.__15___
S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding proceeding parties or counsel, where necessary

accepted and the impugned judgments of both the

fora below are set aside. As a result the Grievance

Petition filed by respondent No.2 before the Labour

Court shall stand dismissed. There shall be no order

as to cost.

(Shujaat Ali Khan)


Judge

Announced in Open Court on 01.03.2016.

Approved for Reporting.

Judge

G.R.*

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