1989 PLP 328 (PLC)

benefits.

2. Brief facts of the case were that the respondent was employed as System Executive in the appellants establishment and his duties were to keep pre‑sale contact with prospective customers for identifying their computer needs and preparing feasibility reports in respect of their computer requirements, to provide sale guidance and assistance to the customers purchasing computers from the establishment and overall his duties were to do the work of sales promotion i.e., as a 'salesman', getting a monthly salary of Rs.4,874,02, and therefore, he claimed to be a `workman' governed under the provisions of Labour Laws. It was also claimed by the respondent that besides his official duties, he was also taking active part in union's activities, therefore, on 14‑4‑1983, he was also elected as Joint Secretary of the C.BA. Union. It was claimed by the respondent that the appellant management had served him with charge‑sheets in November, 1982 and January, 1983, alleging therein that he had attended his duties late on different dates and had committed misconduct in accordance with the provisions of Labour Laws and though he had submitted a satisfactory reply to the same, but, an unfair, partial, biased and improper enquiry was conducted against him in which he was not afforded full opportunity to defend himself, resulting in his dismissal from service vide letter, dated 2‑8‑1983. The respondent further claimed that besides the above, he was also required to do a lot of manual and skilled work involving, typing, filing, library, maintenance, lifting of articles and materials, operation of computer, printers, take decks/dies/work stations and projectors machines, photocopying, chart making etc., therefore, he was also a `workman' within the meaning of Standing Orders Ordinance and the I.R.O. 1969, and that as he was also a member of the Union, therefore, union fund also used to be deducted from his salary under `check‑off system'. He, therefore, being aggrieved with his dismissal order, claimed to have sent his grievance notice followed by the present grievance petition under section 25‑A, 1.R.0. 1969.

3. The appellants establishment had resisted the petition on the grounds that he was never employed to do skill and manual work, but, he was an officer of the management in his capacity as System Executive, therefore, he was not a workman as defined under the provisions of Labour Laws and further that he was never victimized on account of his trade union activities. It was also claimed by the appellant establishment that the respondent was getting more than Rs.4,874 as monthly salary, therefore, he was not supposed to do any skill or manual work and further that he was habitual late‑comer, therefore, he was properly charge sheeted, followed by a lawful domestic enquiry in which he was found guilty of the misconduct, so, he was dismissed from service, hence, not an aggrieved person to maintain his grievance petition under section 25‑A, I.R.O. 1969, liable to be dismissed.

4. Both the parties have led their respective evidence and they were duly cross‑examined. Thereafter, the learned Labour Court passed the impugned order, hence, the present appeal.

5. I have heard Mr. M.A. Khan, the learned Advocate for the appellants establishment and Mr. M.M. Jeelani, the learned Advocate on behalf of the respondent establishment and have also carefully perused the record and proceedings of the case as well as the written arguments, submitted by both the parties. It has been argued by Mr. M.A. Khan, the learned Advocate for the appellants establishment that as the establishment had been closed down and is no more in existence, therefore, the respondent, if, ordered to be reinstated in service, could not be reinstated in a non‑existing establishment. In this behalf, he has referred to me two cases decided by this Tribunal, reported in 1987 P L C 178 and an Appeal No. KAR‑402 of 1985, page 3, para. 5 (cast 4 lines), and besides this legal position, Mr. Khan has pointed out that the learned Advocate for the respondent, during his arguments before this Tribunal, had himself conceded the fact that the question of reinstatement of the respondent in the service does not arise. As regards to the issue of the status of the respondent as a 'workman' it has been submitted by Mr. MA. Khan, the learned Advocate for the appellants management that the main duties of the respondent were to keep pre‑sale contact with prospective customers for identifying their computer needs and preparing feasibility reports in respect of their computer requirements, besides providing post sale guidance and assistance to the customers purchasing computers from the appellant establishment, therefore, he was a System Executive drawing a total salary of Rs.4.874.02 per month at the relevant time and also in accordance with his own admission by the respondent, he was doing work of sales promotion i.e. a salesman and that by profession, he was an Engineer having been trained in United Kingdom, therefore, he was not a `workman' within the ambit of Labour Laws to do any skill or manual work. Mr. M.A. Khan, the learned Advocate for the appellants management has contended that the respondent, vide para. 26 of dim his own affidavit, has conceded his duties, as under:‑ "That in respect of paras. 25 and 26 of reply statement I have to say that I used to perform out‑door duties as and when I was so directed by my superiors. In the, said outdoor duties I was required to explain the use of machines and to introduce the said machine to prospective customers of the company as to enable them to take a decision for the purchasing of computer machines from the respondent company. I again submit my outdoor duties was in a nature of an outdoor salesman " Mr.A. Khan has further contended that the learned Labour Court in his impugned order has himself summed‑up the duties of the respondent in the following words:‑ "The immediate and substantial part of the work for which he was employed was to visit clients and impress them about the utility of computer system and he also used to demonstrate the manner in which computer was to be used. He conducted classes to demonstrate the working of the system. He also used to attend the problems of the customers." Further, it was argued by Mr. M.A. Khan that during the cross‑examination of the appellant establishment's witness before the learned Labour Court, the learned Advocate for the respondent did not make any suggestion that the respondent s duties were either manual or clerical, in nature. He therefore, contended that in view of this admitted position, the respondent was not a 'workman' as defined under the Standing Orders Ordinance 1908, but, he was performing the duties of a 'salesman', hence he was not entitled to maintain his grievance petition under section 25‑A, I.R.O. 1969. In support of his arguments, Mr. M.A. Khan has placed his reliance on the principle laid down in the authorities, reported in P L D 1961 S C 403, P

1. D 1969 I.ah. 717, 1982 P L C 637 and 1984 P L C 1353. It leas further contended that if it is argued that the respondent was a member of the union, then, the membership of the union was not relevant for the purpose of deciding the present case, because the membership of a union is regulated under I.R.O. whereas the appellant's come‑anon was that the respondent was not a workman under the Standing Orders Ordinance, 1968. Mr. M.A. Khan, the learned Advocate has stressed upon the fact that it has been established from c record that the main duties of the respondent were canvassing, teaching, guiding etc, while selling computers and rendering post sales service, therefore, they are neither manual nor clerical, in nature, and in fact any manual or clerical work which he performed incidentally or' ~y way of minor sundry duties did not make him a `workman' under the Standing Orders Ordinance. In support of this argument, Mr. Khan has referred me to an authority, reported in P L D 1986 S C 103 wherein the Supreme Court in the case of an Engineer (like the present respondent) has observed, as under:‑ "It is not disputed that the respondent in this case was employed in a commercial establishment and was skilled worker employed as a shift engineer .The crucial question, therefore, was whether he was employed to do skilled manual 1 ;oul vi hin the meaning of definition of workman as set out above." Further, the Supreme Court at page '93 has observed that "those who may not possess the power of direction and control yet will not be workman if the nature of duties they perform do not involve manual or clerical labour. Further, at page 97. the Supreme Court has observed as under:‑ No doubt that the main substantial part of his duties were those of a skilled engineer, to be performed by application of his expert technical knowledge of the working of sophisticated machinery. Such work can hardly be called manual labour .The real test is as to what constitutes the primary duties assigned to the employee in the course of his duties which in the present case did not involve physical exertion but intellectual capabilities of the respondent as a qualified engineer .." Hence, it was held by the Supreme Court that the said Engineer was not a workman under Standing Orders Ordinance, 1968. On merits of the case, it was argued by Mr. M.A. Khan, the learned Advocate for the appellants establishment that the respondent was a habitual late‑comer and for this he was issued show cause notices in November 1982 for 11 occasions and in January, 1983 for his late attendance on five occasions, and as the respondent did not prefer to reply to these show‑cause notices, therefore, it was decided to hold an enquiry against him on the charges in which admittedly he had fully participated and this fact is borne out from his own admission before the learned Labour Court during his cross -examination, as under:‑ "Full opportunity was given to me in the domestic enquiry." Therefore, in view of these admitted facts, the Enquiry Officer had rightly held the respondent guilty of the misconduct of habitual late attendance. On the other hand, Mr. M.M. Jeelani, the learned Advocate for the respondent supporting the impugned order, has argued that from all the letters on record and from the subsequent actions taken by the appellants management with regard to the respondent, management had itself admitted that the provisions of Standing Orders Ordinance were applicable to him, therefore, the learned Labour Court was quite right to hold the respondent as a `workman'. I see no force in these arguments, particularly, in view of the own admission of the respondent that in fact he was a `salesman' mostly doing the outdoor job. Further, it is also an admitted position that the respondent is a qualified Engineer having full technical knowledge and capabilities, therefore, in view of the observations of the Supreme Court, as quoted above, the respondent is not a workman, entitled to maintain his grievance petition under section 25‑A, I.R.O. 1969. As regards the allegation of improper and insufficient domestic enquiry. I would observe here that the respondent, in his cross‑examination, had himself admitted and/or confessed that `full opportunity was given to me, therefore, it would not be justifiable for Mr M.M. Jeelani, the learned Advocate for the respondent to say that no proper opportunity was given to the respondent. In support of his arguments, Mr. M.M Jeelani the learned Advocate for the respondent has placed reliance on the principle laid down in the cases, reported in 1979 P L C at page 370, 1980 P L C 253 at pages 254 and 255; 1975 P L D 343 at page 344, 1983 P L C 498 and 1985 P L C at page

764. All these authorities are related to the facts of the case of a `workman', but, admittedly, in the present case, the respondent has himself conceded to the effect that his nature of job was of a `salesman' and performance: of outdoor duties and that he was also given full opportunity to defend himself in the domestic enquiry. In view of the matter I would hold that the respondent was not a workman, he was rightly found guilty of the misconduct of habitual late attendance and a fair enquiry was conducted against him in which he was afforded full opportunity to defend himself, therefore, he was correctly dismissed from service, hence, the learned Labour Court has passed an incorrect impugned order, so, I would accordingly set it aside.

6. For the reasons discussed by me above, I would set aside the impugned order and would allow the present appeal. The result would be that i tic grievance petition under section 25‑A, I.R.O. 1969 filed by the respondent stands dismissed. A.E./1372/Lb. S Appeal allowed.