1989 PLP 788 (PLC)

Shabbir Ahmed Awan for Appellants. Manzar Alam for Respondent. Date of hearing: 21st December, 1988. This revision application under section 38(3‑a) of I.R.O., 1969 is directed (Ahmed Ali U. Qureshi, Appellate Tribunal) against the order of learned Presiding Officer, Labour Court No. VII, dated 22‑12‑1987. Heard Mr. Shabbir Ahmed Awan, the learned Advocate for the applicants and Mr. Manzar Alam, the learned Advocate for the respondent.

3. The respondent who was a salesman of the applicants filed grievance Petition No. 25 of 1986 before the learned Labour Court under section 25‑A, I.R.O. 1969, challenging the order of his dismissal from service on the ground that the order was in violation of the Standing Orders Ordinance, 1968. Preliminary objections were raised before the learned Labour Court that the appellant was not a workman as defined in Standing Orders Ordinance and as such he could not claim any protection under Standing Orders and that the grievance petition was thereafter not maintainable. The learned Presiding Officer of Labour Court, after hearing the parties, came to the conclusion that the question as to whether the respondent was a workman or not was a mixed question of fact and law which could be decided only after evidence was recorded. He, therefore, deferred his decision on the legal objection raised by the applicants. Dissatisfied by the said order, the applicants filed this revision application.

4. Both the parties cited certain case law before the learned Labour Court as well as before this Tribunal. That case law pertains to the cases where evidence of the parties was recorded and thereafter a decision was taken as to whether the salesman concerned were workmen or not as defined under Standing Orders Ordinance, 1968, or under the Industrial Relations Ordinance, 1969.

5. It is well‑settled law that the question whether a person is a workman or not depends upon the nature of his duties and not upon his designation. Admittedly, no evidence has been recorded in this case. Mr. Shabbir Awan, the learned counsel for the applicants has relied upon a chart of duties of salesman submitted by him before the learned Labour Court. However, this nature of duties has to be proved by examining some officer of the applicants to prove the duties of the salesman. On the other hand, Mr. Manzar Alam, the learned Advocate for the respondent has referred to para. 3 of the grievance petition of the respondent where he alleged that his work involved physical, manual and clerical work. Even, in a suit where plaint is sought to be rejected, the settled law is that only contents of the plaints are to be seen and not the pleadings of the other party. According to the averments made in the grievance petition, the nature of work of the respondent involved manual and clerical work. Therefore, it could not be held that he was not a workman unless evidence to the contrary comes on record. The learned Labour Court has correctly held that the question at issue was a mixed question of fact and law and it could be decided only after B evidence is recorded. In revision application, this Tribunal has only to examine the legality of the order. There is nothing illegal in the order to call for any interference by this Tribunal in revision application. Under the circumstances, 1 need not discuss the case law cited by the parties, but; leave it open too the learned Labour Court to consider the question as to whether the respondent was a workman or not in the light of the evidence which comes on record and the law laid down by the superior Courts. This application is accordingly dismissed. A.E./1366/Lb. S Revision dismissed.