2004 PLP 178 (PLC)

ABDUL HAMEED DOGAR, J.

Leave to appeal against the judgment of a learned Division Bench of the High Court dated 3-3-1996 was granted to consider whether the definition of `workman' as given in section 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as 'the Ordinance, 1968') was applicable in the case of appellant an Office Sales Manager and not the definition of workman as graven in the Industrial Relations Ordinance, 1969 (hereinafter referred to as 'the , I. R.O.').

2. Admittedly, the appellant was employed in the establishment of respondent No.1 as Office Sales Manager for N.-W.F.P. and adjoining Tribal Areas with effect from 1st September, 1981 on monthly remuneration to the tune of Rs.5,000 including house rent, conveyance allowance and entertainment expenses. The appellant proceeded on leave, whereafter respondent No.1 through its Managing Director got registered F.I.R. against him and his services were terminated. As such appellant served a grievance notice under section 25-A of the I.R.O., which was not responded. Hence he filed a grievance petition before the Presiding Officer, Labour Court, Peshawar; which was dismissed vide order dated 10-5-1984 holding that he was not a workman. The appeal before the N.-W.F.P. Labour Appellate Tribunal, Peshawar, (hereinafter referred to as `the Tribunal') was dismissed in limine on 6-6-1984 Thereafter, the appellant filed Writ Petition No.484 of 1984 before the Peshawar High Court, Peshawar, which was accepted and the matter was remanded to the Tribunal for its decision afresh and a Special Labour Appellate Tribunal headed by S. Ibne Ali, J. was constituted by the Provincial Government which accepted the appeal and set aside the order of the Labour Court and remanded the matter back to that Court with the direction for obtaining short signature of the appellant for its comparison and report from Finger Print/Signature Expert and after the needful, the matter be decided afresh in view of the evidence already adduced with fresh evidence of the Expert. After compliance, the dismissed by the Labour Court on 10-1-1995 which was challenged before the Tribunal which also did not bear any fruit, hence the same was challenged in Writ Petition No.185 of 1996, which too failed and dismissed in limine vide impugned Judgment.

3. Sahibzada K.A.K. Afridi appellant who appeared in person vehemently urged that the nature of his duty and functions were of clerical and manual in nature as such was a workman within the definition of section 2(i) of the Ordinance, 1968. Though he was designated as Office Sales Manager yet neither possessed Managerial or Supervisory powers nor enforced any control over the establishment at any time. According to him, the judgments of all the Courts below are not sustainable in law as the same are based on misreading or non-reading of material evidence and were passed without lawful authority. Even the order of termination was not served upon him as required under the Ordinance, 1968, as such, the same was illegal and void.

4. While controverting the above contention, learned counsel for the parties contended that the appellant being a highly qualified person was appointed as Sales Manager and was provided a car also. He was getting conveyance allowance and other allowances, as such was an Officer and not a workman as pleaded by him. The main object of his job was to contact customers of respondent's manufactured products in the market and supply thereof for which he was allowed entertainment According to him, as per version of appellant's own witness, put forth before the Labour Court that one Tajdar Shah was working in his office at Peshawar since few months was a sufficient proof that the appellant had a subordinate employee working under his supervision.

5. We have given our anxious thought to the contentions raised above and have gone through the record and the proceedings of the matter in minute particulars.

6. All the Courts below have considered and appreciated the evidence properly in its true perspective and have rightly arrived at irresistible conclusion that the appellant. is not a workman as defined in section 2(i) of the Ordinance, 1968. On the contrary, it has been established on record that he was appointed as Office Sales Manager for entire N.-W.F.P. and Tribal Areas and was allowed house rent, conveyance allowance and entertainment allowance. He was also provided a car for official use. Even according to his own version and that of his witness Masood Zaidi, one Tajdar Shah used to come to his office and help him like a subordinate which fact was also supported by Tajdar Shah himself in his evidence who candidly admitted that he was employed in respondent No.1's establishment at Peshawar as sales representative. To substantiate more it would be appropriate to reproduce the definition of the word `workman' as defined in section 2(i) of the Ordinance, 1968:-- "Section 2(i) "Workman" means any person employed in any Industrial or Commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward".

7. The designation shows that he was more in supervisory positron than even a salesman. He was provided a car by the Company apparently for marketing the sale. His main job was to contact potential customers of respondent's manufactured products in the market and supply thereof. In this context, this Court in the case of Pakistan Tobacco Company Ltd. v Pakistan Tobacco Company, Employee's Union, Dacca, and 21 others PLD 1961 SC 403, has held that the salesmen are not workmen mainly for the reason that the work of salesmen is in a wholly different, category from manual work or clerical work It has been further observed that salesmen were expected "to display qualities of initiative, intelligence and correct speculation, and for doing that they have been given some independence in their own line of action" and therefore, their duties did not appear "to be of mechanical or routine description as the duties of a clerk are".

8. For these reasons, the appeal being devoid of force is dismissed leaving the parties to bear their own costs. M.H./K-99/S Appeal dismissed