1978 PLP 196 (PLC)

FAKHRUDDIN G. EBRAHIM, J.‑The facts giving rise to this petition are simple and the law applicable, Quite clear. The contesting respondent No. 3 war at the relevant time Sales Inspector in the petitioner‑Company at Lahore and he was admittedly performing the functions of a salesman. On 16‑6‑1972 he was charge‑sheeted for negligence to which he made a reply, which was said to contain an admission of guilt. He was summoned to Karachi and an enquiry was held, following which, instead of dismissing him, his services were terminated and admittedly the petitioner received full benefits including notice pay as a discharged workman. All the same the respondent No. 3 fled an application under section 25‑A of the Industrial Relations Ordinance, 1969 before the First Sind Labour Court challenging the termination of his services which application was granted on the ground that the enquiry held was not proper and the workman was not given a copy of the enquiry report or an opportunity to show cause against the order of dismissal. The contention that the respondent No. 3 was not a workman as defined in the West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968 was not considered nor was the question that the workman has allegedly admitted his guilt. As to the receipt of full termination /benefits by the workman, all that said was that the workman had admitted that he had received an amount of Re. 472.0) in respect of termination benefits under protest and that he had signed the voucher and this voucher had not been produced by the Management.

2. In appeal, the learned Labour Appellate Court dame to the conclusion firstly, that the respondent No. 3 was not a workman within the meaning of the definition given in the Standing Orders Ordinance but his application under section 25‑A was maintainable as he came within the definition of the expression "workman" as contained in the Industrial Relations Ordinance, 1969 On the question that the workman had admitted his guilt, the Appellate Court observe) that though the workman did not care to explain his reply‑statement, which ‑was said to contain admission of guilt or in his application before the Labour Court, nevertheless the Appellate Court did not six any reason to take a different view which had been taken by the Labour Court. The third contention relating to the receipt of termination benefits, the learned Labour Appellate Court observed that though it was true 11hat by accepting the payment to him in full satisfaction the respondent No. 3 could not be said to have any grievance within the meaning of sec?tion 25‑A of the Industrial Relations Ordinance, 1969, the question whether or not the person bad a grievance war a question of fact and being a subjective matter, the circumstances of the case justified the allegation of the respondent No. 3 that he had been prejudiced.

3. Mr. Khalid Jamil, the learned counsel for the Petitioner rightly pointed out that the Labour Appellate Court had erred in holding that the respondent No. 3 was entitled to make the grievance regarding termination of his service once the conclusion was that he was not a workman within the meaning of expression defined in Standing Orders Ordinance. The learned counsel contended that even If it was assumed that the respondent No. 3 was a workman within the meaning of the Industrial Relations Ordinance and, therefore, entitled to move an application under section 25,A, the further question to be examined would be whether the grievance complained of was in respect of any right guaranteed or secured to the workman by or under any law or any award or settlement for the time being in force. The argument was that the grievance of the respondent No. 3 was that there was no proper enquiry held into the allegation of misconduct on his part, in other words his services were terminated in violation of the Standing Orders contained in the Schedule to the Standing Orders Ordinance and if the workman was not a person who was entitled to benefits under Standing Orders Ordinance it could not be said that be was denied a benefit secured to him under this Ordinance. That the respondent No. 3 was not a workman within the meaning of Standing Orders Ordinance was not seriously disputed before us, and rightly so for the definition of workman in the Standing Orders Ordinance is identical with the definition of workman as contained in the Industrial Disputes Act, 1947 and Industrial Disputes Ordinance, 1968 which has been authoritatively interpreted by the Supreme Court of Pakistan in P L D 1961 S C 403, a Division Bench of the then High Court of West Pakistan in P ,L D 1969 Lab. 717, and by this Court in P L D 197 Kar 279 as not including a salesman. For the same reasons we are o the view, and in fact we are bound by the Supreme Court decision referred to above, that a salesman is not a workman within the meaning and expression defined in the Standing Orders Ordinance.

4. This is, however, not the end of the matter for Mr. Hamid Siddiqui, the learned coups‑1 for the respondent No. 3 contended that the relevant definition to be considered is one under the Industrial Relations Ordinance and not one contained in the Standing Orders Ordinance. The argument is without substance for an application under section 25‑A of Industrial Relations Ordinance is for redress of a grievance arising out of violation of right guaranteed to the workman under a law or an award or a settlement. The right, the violation of which was complained of by the respondent workman was failure to comply with Standing Order No. 15 which was not available to him as he was a salesman and not a workman as defined in the Standing Orders Ordinance. This view finds support in a well‑considered decision of this Court reported in P L D 1975 Kar. 279 and in Peshawar decision reported in P L D 1975 Pesh. 241.

5. Lastly, it was contended by the learned counsel for the respondent No. 3 that the petitioner having proceeded against the respondent No. 3 under the Standing Order Ordinance, as he was charge‑sheeted and an enquiry held against him, it was not open to the petitioner now to allege that he was not governed by the Standing Orders. The short answer to this contention is that there cannot be estoppel against a statute and it' the respondent No. 3 failed to establish that he was in law entitled to the benefits under the Standing Orders Ordinance he cannot be heard to complain about its deprivation. 6 The result is that this petition is allowed, but in the circumstances there will be no order as to cost. ???????????????????????????????????????????????????????????????????????????????????????????????????????? Petition allowed.