1974 PLP 290 (PLC)

10. The only evidence led by the appellant is his own statement in the form of an affidavit. His affidavit is In 13 paragraph. 1n paragraph 1, of his affidavit Mr. Nasir Mirza stated that he was employed by the respondents and performed duties, which involved skilled, unskilled manual and clerical work. In paragraph 2 of his affidavit, he stated that his main "responsibili ties were selling, demonstrating and delivering of goods, preparation of challan and the bills, correspondence, preparation of reports, and stipulating the work by him daily." In paragraphs 3, 4 and 5, it is stated that the appellant was not concerned with the Management, disciplinary action or any policy matters of the company. In paragraphs 6 and 7, the appellant stated that he was a workman employing the same facilities as allowed to workers. Paragraphs 8, 9, 10 and 11, relate to the increase of Rs. 250.00 in the salary of the appellant and the illegal reduction thereof from his salary. In Para graph 12, the appellant stayed that he was suffering' mental agony at d In paragraph 13, he prayed for the "restoration of Rs. 250.00 In his monthly salary with retrospective effect" and further prayed for compen sation.

11. Mr. Nasir Mirza claimed to be a salesman. It may be mentioned at the very outset that it has been held by the Supreme Court of India in the case of Williamsons (India) Private Limited, 1962 P L C 1401, that salesman cannot be said to a workman as he does not perform any skilled, unskilled, or manual work. The Legislature has, however, now conferred an advantage on workman in the case of persons who are immediately above the lowest level of workers and perform supervisory duties. It is noteworthy that Mr. Nasir Mirza has not said anything in his affidavit from which I can construe that he Is immediately above the lowest level of workers in the establishment. On the other hand, from the admitted documents on the record and the statement of Mr. Nasir Mirza, in his application under section 34 of the Ordinance, it is clear that he was occupying a much higher position than that of a workman immediately above the lowest level of workers In the establishment. I would now proceed to examine the documents on the record, which the appellant admits, In order to construe the position of Mr. Nasir Mirza in the establishment.

12. Mr. Nasir Mirza in paragraph 4, of his application under section 34 of the Ordinance stated as under t‑ "The applicant did all this single handedly as the same was done before by a team of Stenographers and Mr. Nazir Ahmad."

13. In cross‑examination. Mr. Nasir Mirza stated as under: I know Mr. Nazir Ahmad. He was the Unit Manager in the Company. He had four divisions under him. I did not take work of four divisions from Nazir Ahmad. I was not working with the team of the Stenos. I was working In audio‑visual Computers Division after the exit of Nazir Ahmad, his work plus any other work assigned to me."

14. In this connection, reference may also be made to the affidavit of Mr. Nari M. Nargolwala, General Manager and Director of the Company. He stated in his affidavit that after the exist of Mr. Nazir Abroad, Manager for Technical and Service Engineering, Mr. Nasir Mirza took over the entire responsibilities from Mr. Nazir Ahmad and since then he had been in full charge and control. Mr. Nargolwala also stated in Paragraph 8, of his affidavit that "the members of the managerial staff who are Incharge of their respective Divisions submit to the General Manager a monthly statement styled as Statement of Indents Sales and expected commission. The said statements are signed by the incharge of the Division." Mr. Nargolwala produced 49 such statements signed by different Heads of the Dqpar1ments, including 14 statements signed by Nasir Mirza. There is no cross examination on this aspect of the affidavit by the Representative of the appellant.

15. It would follow from the statement of Mr. Nasir Mirza himself and the allegation of Mr. Nargolwala, which remains unchallenged, that. Mr. Nasir Mirza was occupying a substantially high position in the establishment.

16. It would be useful to reproduce the contents of Exh. 4 which Is an important document. It runs as under: "JOB DESCRIPTION. M. N. Mirza. Daily:

1. Attending to customers who come for indent enquiries e. g. unaccompanied baggage, etc.

2. Attending to customers in show‑room in conjunction with Qureshi (whenever necessary).

3. Attending to customers outside for sale of$ look items in collaboration with Qureshi.

4. Calling on customers for procuring indents as per instructions from Mr. Laljee.

5. Accomnying Mr. Laljee on calls whenever necessary (three to four times a week).

6. Vick Enquiries. Weekly:

1. Making calls on various Embassies.

2. Sending out literature to customers.

3. Correspondence with Principals for Literature and advertising material. (M. N. MTRZA) Daily: Job 1, 4 and 6 from the daily job list will be handed over to Quraishi, while job 2 and 3 will be given to Malik. Job 5, Mr. Laljee will decide to take anybody he wants to. Weekly: Job No. 1 will be looked after by Mr. Laljee while Job 2 and 3 will be handed over to Malik. (Sd.) Nasir Mirza."

17. Exh. 4, reproduced above, establishes the status and position of Mr. Nasir Mirza in the establishment. He could distribute daily work and also weekly work to other officers in the department. 18. 1t would appear from Exh. 5, dated 10‑1‑1968, an application by Mr. Nasir Mirza for increase of his Travelling Allowance from Rs. 100.00 to Rs. 200.00, that he was looking after the manufacture of chairs, including the purchases required for It. He did not perform merely the work of supervision, but also the important work of purchase of material for the manufacture of chairs. It is also noteworthy that he had made the application for increase in Travelling Allowance through Mr. Nazir Ahmad from whom he took over charge later on. Mr. Nazir Ahmad recommended that his allowance may be Increased which was increased to Rs. 200.00.

19. Exh. 7, is a letter of resignation dated 1‑7‑1967, by Mr. Habib Ahmad to the Executive Administration, Zelin Limited. The endorsement on the application by Mr. Nasir Mirza is as under: "May be released."

20. There is yet another letter of resignation by Mr. Habib Ahmad dated 5‑1‑1968, which had also been accepted by Mr. Nasir Mirza. It would appear from Bib. 9, a certificate issued by Mr. Nasir Mirza that Mr. Habib Ahmad Was Foreman in the Workshop.

21. Mr. Nasir Mirza in his letter dated 26‑1‑1971, Exh. 10, written to Mr. Pierro Satamian (Lebanon), informed him that Mr. Nazir Ahmad lead left the Company In January 1971 and all mail relating to Computer and Video Tapes should be addressed to Dim with a copy to Mr. Nargolwals. Exhibit 12, is a document signed by Mr. Nasir Mirza for the Company ordering goods from Lebanon worth Its. 12,892.00. Exh. 13, is an order to some employee of the Company by Mr. Nasir Mirza to prepare some file.

22. From a perusal of the documents mentioned above which have been admitted by Mr. Nasir Mime, it is very clear that he was occupying the such higher position than that of a worker immediately above the lowest level of workmen in the establishment. He could accept resignation from a Foreman. In this connection, one cannot ignore the Conveyance Allowance of Rs. 200.60, which he was getting and which shoes the status of Mr. Nasir Mirza in the Company. I would hold that he was not a workman within the meaning of the definition of "workman".

23. There is no force in the contention that the increased salary was withdrawn because of the Union activities of Mr. Nasir Mirza. Mere allegation of victimization, however strongly expressed cannot take the place of proof. There is mere word of the appellant to support this allegation. He has not stated anything definite which may have annoyed the Company; there is no cross‑examination of Mr. Nargolwala on this point. Mr. Nargolwala should have been put the facts, which annoyed the Company in his cross‑examinations I would hold that the increased salary was with drawn not because of his Union activities, but because he was not able to achieve the target.

24. Having held that the appellant is not a workman, he is not entitled to any relief under section 34 of the Ordinance. The interest of Industrial peace and justice, however, demands that I must briefly deal with the question of the salary that the appellant is entitled to receive. It is true, the increase of Rs. 250.00 in the salary of the appellant was dependent on his performance. On the other hand, it was open to the Company even if the appellant did not achieve the target not to withdraw the increased pay considering the effort and interest that the appellant had taken In the per formance of his duty. The intention of the Company is amply demonstrated by the fact that the Company continued to pay the increased salary for 13 months. This generosity on the part of the Company raised a belief in the mind of the appellant that this was his salary, more so as there was nothing in writing during this long period to show that the Company was paying the increased salary as a grace. Moreover, the issue is determined by the admission made by Mr. Nagolwala in his cross‑examination. He stated without any reservation as under: " Salary of Nasir Mirza is Rs. 975.00 in all." I have come‑ to the conclusion, considering the circumstances of the present case and the admission of Mr. Nargolwala without any reservation of qualification, that the salary of Mr. Nasir Mirza is Rs. 975.00 per month in all. I would hold that the Company had increased the consolidated salary of Mr. Nasir Mirza to Rs. 975.00 per month. It was too late to enforce the term of the agreement by withdrawing the salary on the ground that he had not achieved the target. It would not be legally right to direct the Company to pay Rs. 975.00 per month as salary to Mr. i‑Nasir Mirza as he 1s not a workman, but I would express my wish that the Company in order to main. Lain industrial peace and harmonious relationship between all sections of its employees, will resume to pay the same together with the arrears of salary at its earliest convenience.

26. While, disposing of the appeal, I would like to express that I WO approve of any one, irrespective of the regard and respect I may have for him, to speak about any pending matter. A talk though it may not be directly to favour a party is against the best traditions of judiciary. To heat is to feel embarrassed. Workers and employers are both entitled to patient hearing, more so a workman. The Labour Judiciary with its ideal fir industrial peace is nevertheless bound to apply the law, though it may go against the la lour. With these observations, I would dismiss the appeal.