2007 PLC 388 (PLP)

IJAZ-UL-HASSAN KHAN, J.

This appeal by Messrs Servier Research and Pharmaceuticals, Pakistan (Pvt.) Limited, through its Chief Executive, 65 Main Boulevard Gulberg, Lahore and another, is directed against the judgment and order, dated 27-7-2005, passed by learned Presiding Officer, Labour Court; Peshawar, whereby grievance petition of Aamir Sultan, respondent herein, calling in question his termination order, dated 19-8-2004, was accepted and respondent was reinstated in service with full back benefits and wages.

2. Shortly narrated the facts are, that Aamir Sultan was appointed as Medical Information Officer, vide appointment agreement dated 27-5-1998. After completion of three months probationary period, his services were confirmed vide order, dated 12-8-1998. Subsequently, the services of the respondent were dispensed with by order, dated 19-8-2004. The impugned termination order reads:-- "Pursuant to the decision of the management dated 19-8-2004, it is regretted to inform you that the company no more requires your services as the Medical Information Officer. While invoking Clause (e) of the terms and conditions stipulated in your letter of appointment dated 12-8-1998, your services are hereby terminated with immediate effect. You shall be entitled to receive one month notice pay in lieu of notice, as provided in the clause (ibid)."

3. Aamir Sultan, feeling aggrieved, challenged the action of the Management by filing a grievance petition under section 46 of the Industrial Relations Ordinance, 2002, before learned Presiding Officer, Labour Court, Peshawar, alleging that prior to issuance of impugned order of termination, no proper procedure was adopted nor any inquiry was conducted, neither any show-cause notice was served and, as such, the impugned order cannot be allowed to remain in field. The petition was resisted on all grounds legal as well as factual and it was pleaded that the services of respondent were terminated while exercising powers stipulated in the clause (e) of the Employment Contract dated 12-8-1998, and thus, the respondent had no valid reason to grudge the action of the Management.

4. Mr. Ihsanullah Khan Babar, the then learned Presiding Officer, Labour Court, Peshawar, per the impugned accepted the claim of the respondent and allowed his petition directing the .appellant management to reinstate the respondent in service with full back benefits and wages, as detailed and mentioned above.

5. Appearing on behalf of the appellant Management, Mr. Yahya Afridi, Advocate invited my attention to clause (c) of the appointment agreement of the respondent and attempted to argue that the above said clause clearly stipulated that either party may terminate letter of confirmation by giving one month notice or in lieu, one month's notice pay without assigning any reasons and as such, respondent had no justifiable reason to call in question his termination. Additionally, the learned counsel submitted that the finding of the learned Labour Court in respect of the status of respondent being a `workman' is erroneous and contrary to the definition provided by the Industrial Relations Ordinance, 2002, and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as respondent was a Medical Information Officer/Sales Representative and thus, not a worker or workman, qualifying the criterion of workman in any manner and under any statute. To augment the contentions, reliance was placed Syed Matloob Hassan v. Brooke Bond Pakistan Limited Lahore 1992 SCMR 227, Mustahkum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 644 and Yusuf Ali Shah v. Quetta Serena Hotel through General Manager and 2 others 2001 SCMR 1813.

6. Opposing the prayer for acceptance of the appeal and refuting the arguments of learned counsel for the appellant concerned, it has been argued by Mr. Khurshid Ahmad Shahan, Advocate, representing the respondent that learned Labour Court has thoroughly scanned the material on record adverted to every aspect of the case and had drawn correct conclusion, which are not open to legitimate exception.

7. Upon the examination of the impugned judgment, I find that learned trial Judge on proper consideration of the material on record, delivered a reasoned judgment and the findings recorded by him are not only in accordance with the law on the subject. Admittedly, the services of the respondent have been terminated "as no more required". Before issuance of termination order, no reason, whatsoever, has been communicated to the respondent, nor any show-cause/explanation was served. The Management appears to have acted in a mechanical manner and terminated the services of a permanent employee, without giving him the right of hearing. It needs no reiteration that right of personal hearing is sacrosanct and it has to be provided to the affected persons before passing any order or determining a right.

8. As to the question whether a person is or is not a workman, it is now well-established that the same would depend not upon his designation but on the nature of duties, performed by him. The nature of duties, performed by the respondent reflects in the relevant clause of the appointment letter, which is reproduced below for facility sake:-- "Exclusivity.

You shall devote your full time attention and abilities to your duties. Your duties will be primarily to promote and sell Servier Products anywhere in Pakistan, and will inter alia include, dissemination of the information of Servier products to Trade, Medical Profession, Hospitals, Clinics, Physicians and Government Institutions' in Pakistan. You shall aim at stimulating greater interest and appreciation amongst them for Servier products. You will also coordinate your efforts with Servier's Distributors Messrs Muller and Phipps Pakistan (Private) Limited or any other distributor(s) appointed by Servier, for the promotion/sale/distribution of Servier Products. You shall not directly or indirectly engage or be concerned or interested in any other business, occupation or profession."

9. The respondent did not exercise any power of hire or fire. Such duties, therefore, clearly fell within ambit of "manual" or "clerical" work. No doubt, the respondent was designated as Medical Information Officer, nevertheless the nature of his duties indicates that he belonged to the category of workers defined as "workman" in clause (i) of section 2 of the Standing Orders Ordinance.

10. The definition of "Workman" contained in the Standing Orders Ordinance is a simple definition indicting two categories of persons who may be employee in an industrial or commercial establishment to do either manual or clerical work. The words "skilled" or unskilled" appearing in the said definition further indicate that a person may either be employed to do skilled or unskilled' manual work or skilled or unskilled clerical work, as the case may be.

11. The definition of workman given in the (Standing Orders) Ordinance is any "person employed in any industry or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward". It need not be construed narrowly so as to destroy the purpose of the beneficial legislation. The definition appears to exclude those who do intellectual or managerial work and not other employees.

12. In the instant case, respondent was assigned field work during the probation period. There was no prescribed duty roster for any of the employee. The respondent was a permanent employee having more than six years service to his credit. His services have been dispensed with only on the ground of "no more required". No show-cause notice has been issued to the respondent and no proper inquiry has been conducted. The Management has acted in art unusual manner unwarranted by law and in total disregard to the legal requirements. The learned Presiding Officer had valid reasons to accept the grievance petition and I see no good reason to disagree with him and take contrary view. The case-law cited by learned counsel for the appellant is distinguishable and proceeds on different facts. The appeal is meritless. The same is dismissed, with no order as to costs. H.B.T./91/P Appeal dismissed.