2012PLC35 (PLP)

ABDUL HAFEEZ CHEEMA (CHAIRMAN).

The appellant has assailed the order dated 31-3-2010 passed by the learned Punjab Labour Court No.6, Rawalpindi whereby his grievance petition was dismissed on the ground that he has failed to prove himself as a workman.

2. The facts of the case briefly are that the appellant joined the A respondent company on 1-1-1998 as Medical Information Officer (MIO) and in due course of time he got promotion to the rank of Zonal Manager Sales. He continued to perform his duties to the best of his ability but unfortunately his services were terminated by means of a verbal order.

3. He served a grievance notice which was followed liy a grievance petition. The respondent seriously resisted the grievance petition. However, in view of the varying versions of the parties the learned Labour Court recorded the evidence of the parties. The appellant appeared as PW-1. He stated that he was purely a temporary workman and the high sounding designation was. merely a deception. He would work with his own hands and neither could he appoint nor dismiss any one. His services were terminated arbitrarily without any show-cause notice or any enquiry etc. ,During the course of cross-examination he however conceded that he was provided with an official car which was being maintained by the company and since his termination he was jobless.

4. The respondent examined Mr. Muhammad Naeem Afzal, as RW-1 who claimed that prior to the termination, the appellant was a Zonal Manager; had a 800 CC car and had all other amenities of a Senior Executive Officer. Two officials were also under him and he would assign duties to them and would watch their performance. The confirmdtion of the officials was made on his recommendations. Likewise he would recommend leaves of the subordinates. He would certify expenditure incurred by his juniors. He would attend the meetings of the Sales Office, at Lahore and would plan his monthly duties: He would dispatch them to the Head Office. He was not verbally terminated but by letter Exh.R-23 was issued in this respect which was duly received by him. He was used to get payment of the maintenance of the car. Exhibit R-1 shows that he received Rs.9500 in this respect. He has shown himself as Zonal Manager Zone-II Rawalpindi .in his correspondence. Likewise Exh.R-2 shows that car maintenance expenditure was paid to him by the company. Exhibit R-3 is recommendation in respect of Mr. Amer Aziz TMIO for his promotion. Exhibit R-4 is appreciation letter in respect of Mr. Waqas Akram and Bilal Nasir TMIO who were recommended for confirmation of their services by the appellant. Exhibit R-6 relates to the performance report of Wagas Akram which shows that he was not found fit for further service and recommendation in the probation period was made. Exhibit R-7 is travelling allowance of his juniors which was recommended by him and was subsequently approved by the .Senior Officers of the company: Exhibits.R-8 to R-16 are also travelling expenses recommended by the appellant Exhibit R-19 is the chart of hierarchy of the officers of the Administration Officers of the company which clearly shows that he was at No.3 in the seniority and below him were the Assistant Zonal Manager, Area Manager, Assistant Area Manager, Senior Medical Information Officer (SMIO), Medical Information Officer and Trainee Medical Information Officers. All these show and show very clearly that he was a Senior Executive in the company.

5. The learned Labour Court after hearing arguments of the parties and examining the record dismissed the grievance petition on the ground that the appellant was a Senior Executive and was not a workman. As such the Labour Court had no jurisdiction to entertain and try the petition.

6. Arguments have been heard and record has been perused.

7. It is submitted by the learned counsel for the appellant that the learned Labour Court appeared to have been impressed by the high sounding designation and the fabulous salary of the appellant Which have no relevance in the determination of his status. According to him it is the nature of the duties which provide the real test for determining his status. He had claimed that he had been 'working with his own hands and the Car facility was which being high lighted time and again was due to his excellent performance and not attached with his post as such the learned Labour Court has failed to appreciate the nature of the duties and has fallen in error in dismissing the grievance petition.

8. On the other hand it is submitted by the learned counsel for the respondent that the record speaks and speaks very loudly that he was not a workman and his main job was supervisory, managerial and executive nature. 8-A. Acid test for the determination as to whether an employee is a workman or not is the nature of the duties performed by him An employee will be workman if the duties performed by him are manual or clerical in nature and not otherwise. This is almost a settled proposition.

9. The appellant was Zonal Manager and such-like employees are C expected to display the quality of initiative and drive, intelligence and correct speculation and for doing that there are given some independence in' their line of action. They are excepted to use their mental faculties to find ne'w avenues of sales promotion. This very proposition came up before the Hon'ble. Supreme Court of Pakistan wherein after a detailed survey of the Labour Laws their Lordships came to the conclusion:

"Persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company are not assimilable either to the group of workers whose manual labour contributes to that product, or those of the clerical establishment who perform the paper work connected with the operation of the Company. The work of salesmen is in a wholly different category from manual work or clerical work. Salesmen do not therefore fall within the definition of "workman". (PLD 1961 Supreme Court 403)

10. In another identical situation their Lordships of the Hon'ble Supreme Court of Pakistan held as under:

"Petitioner was serving as Sales Representative; selling required imagination, application of mind and know-how of the things offered for sale to the customers who were expected to buy the products offered for sale

While making sale, Sales Representative could also undertake some incidentalanual work, but by doing such small manual work connected with sale of product, his status could not be changed nor for that reason he could be regarded as workman as his job was to sell the products for which he had to use faculty of his mind wisdom and not only manual or clerical work-Appointment spelled out in details of the terms and conditions on which appointment of petitioner was made

If intention was to induct petitioner as a workman, it was not necessary at all to issue such detailed appointment order--Appointment of. petitioner being of contractual nature of master and servant, it was necessary to spell out the details of terms and conditions on basis of which the appointment was made-Labour Appellate Tribunal and High Court had rightly held that petitioner was not workman and his grievance petition was not competent

In absence of any legal or factual infirmity, judgment passed by Labour Appellate Tribunal and High Court could not be interfered with by Supreme Court." (2005 SCMR 1049) Further reference was made to the following judgments*which support the arguments of the appellant:-- (1) PLD 1975 Karachi 279, (2) PLC 1994 SC 157, (3) PLC 1996 SC 362,. (4) PLC 1996 Appellate Tribunal 229, (5) 1999 PLC 38 (Tribunal Decisions), (6) 2001 PLC 396, (7) 2003 PLC 226. .

11. Learned counsel for the respondent has failed to produce any authoritative pronouncement of the Hon'ble Supreme Court of Pakistan to refute this proposition.

12. The upshot of, the above discussion obviously is that the appellant was not a workman and as such the Labour Court has rightly dismissed the grievance petition. Consequently, the appeal also fails and is hereby dismissed leaving the parties to bear their own costs. H.B.T.116/PLT??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.