1983 PLP 1086 (PLC(CS))

This appeal arises from the decision dated 26th November, 1980 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby the grievance petition of the appellant for his reinstate ment in service was dismissed on the grounds that he was not a workman and that the enquiry was properly made.

2. The appellant was a salesman on the Mall shop of the respondent. He was transferred to Liberty shop. He did not join there. He applied for leave from 1st August,. 1977 to 8th August, 1977. He sent another application for leave from 9th August, 1977 to 18th August, 1977. He was treated as absent and charge‑sheet was sent to his home address by postal certificate. No reply came. He was then sent enquiry notice by postal certificate but with no response.

3. The finding of the learned lower Court that although the appellant's duties were to take out cloth from the racks, to measure it and to deliver it to the customer after its packing, yet he was not a workman as this manual work was only ancillary to his main duties. The learned lower Court said that the respondent did dot disclose what were his main duties. The duties of a salesman at a cloth shop are those as mentioned above. The salesmen who have to distribute goods outside and work for the increase of the sale by advertisement and canvassing, are not workmen such as salesmen of tea companies. They have a cartman to carry and deliver the goods on the asking of the salesman. But the salesmen at the shops have to do manual work. The learned trial Judge has relied upon the authorities which are distinguishable from the facts of the present case. They are P L D 1961 403, 1978 P L C 196 and P L D 1975 Kar.

279. The employees those cases were not salesmen working at the cloth or shoe shops. I, therefore, hold that the appellant was a workman and could seek remedy from the Labour Courts.

4. The learned trial Judge has wrongly held that charge‑sheet and enquiry notice have been duly served. Service of letters by postal certificates is not safe and no presumption arises that they have been delivered to the addressees. Such letters are not personally delivered but are thrown at the addresses or are put in the private letter boxes, if they are available. They are ordinary letters and the postal certificate is only to the effect that they were posted at the post office. Registered letters on the contrary are delivered to the addressees in person or by agent and relatives and if for some reasons they cannot be delivered, they come back with the report of the postman. There is, therefore; no presumption that the letters containing charge‑sheet and enquiry notice had reached the appellant'. Thus, their service did not stand proved and the enquiry was not legal.

5. As upshot of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, direct the reinstatement of the appellant. As nothing can be said definitely whether in order to avoid the transfer order, the appellant applied for leave or actually his leave applications were genuine. The lower Court has not expressed any opinion about it, nor there is any material on the record to enable to say about it. So the appellant is not entitled to back benefits. A.E.