' HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against the order, dated 16- 1-2002 in Civil Petition No,D-844 of 2001 (Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another) passed by learned Division Bench of the High Court of Sindh at Karachi, whereby the said petition was disposed of holding the petitioner to be not workman for the purpose of Standing Orders Ordinance, 1968 thereby the judgment passed by respondent No,1 was maintained.
2. Brief facts of the case are that the petitioner was employed with respondent No,2 M/s. Rafan Fast Food Company Ltd. As Area Sales Representative and thereafter he was promoted as Territory Representative at Karachi, however, the petitioner challenged his apprehended termination by filing Civil Suit No,668 of 1998 in the Civil Court when the respondents produced termination letter dated 29-7-1998 in the Court. The petitioner is also said to have approached the respondent No,2 for withdrawal of the termination order but his request was not acceded to hence he served grievance notice and after compliance of section 25-A of Industrial Relations Ordinance, 1969 he filed grievance petition before the 1st Labour Court at Karachi which petition was allowed by the Labour Court vide order, dated 7-9-2000. The respondent No,2 preferred an appeal under section 37(3) of I.R.O., 1969 before respondent No,1 which appeal was allowed as per order, dated 8-2-2001.
Thereafter the petitioner preferred Constitution Petition No,D-844 of 2001 which was dismissed as per impugned judgment on 17-1-2002, hence the present petition for leave to appeal.
3. We have heard learned counsel for the petitioner and perused the record minutely.
4. Contention of learned counsel for the petitioner is that the learned Division Bench of the High Court has erred in holding that the petitioner is not a workman. For that purpose he has referred to pages 31, 38 and 109 of the paper book with regard to letter, dated September 12, 1997 of respondent No,2 contending that the petitioner was to continue to perform similar duties to those of Sales Representative and also details of job description and portion of the judgment of the learned Appellate Court at page 6 of the judgment.
5. We do not find merit and substance in the said contentions.
6. Respondent No,1 learned Appellate Tribunal in the impugned judgment has observed:-- "It may be pointed here that in these days a number of advertising agencies are operating. Their job mainly is to advertise the specified products by different methods with a view to boost their sale or in other words to persuade the customers to buy the advertised products. The same principle is followed by all those who are engaged in sale of the products or secure orders for supply of such products. Thus, selling is not an easy job which can be carried out by the ordinary workman. It requires imagination, application of mind and know-how of the things offered for sale to the customers who are expected to buy the products offered for sale. It may be true that if a single person is engaged in making sale of the products he may in addition to using his intellect and wisdom may also undertake some incidental manual work. By doing such small manual work connected with the sale of products his status cannot be changed nor for that reason alone he could be regarded as workman. This is because his main job is to sell the products for which he has to use faculty of his mind and wisdom and not only manual or clerical work. The above idea about the salesman or the person who is engaged in the job of sale of products is supported by Supreme Court authority reported as PLD 1961 SC 403 in which it has held that the work of salesman is wholly of different category from manual work or clerical work and salesman does not therefore, fall within the definition of workman. The above reported case was dealt with by Full Bench of Supreme Court consisting of A.R. Cornelius, C.J., S.A. Rehman, Fazle Akbar, B.Z. Kaikaus and Hamoodur Rehman, JJ.
In another case reported as PLD 1975 Kar. 279 it was observed:-- "It would thus seem that a salesman, for the nature of duties he performs, for the independence of action which he obtained and for the initiative and imagination that he exercises, is not doing the inferior work which is normally called manual or clerical work. He may be doing some manual or clerical work in order to accomplish his functions but the predominant functions and duties of a salesman are of specialized nature designed to achieve the end of promoting sales, catering in competitive field with other producers and finding best available market. Such type of labour cannot be called manual or clerical."
' In the said case the concluding remarks are to this effect:-- "In such view of the matter I am clear in my mind that a salesman employed in a commercial concern cannot be termed to be a 'workman' as to have the protection of standing orders contained in the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and on such ground this petition fails and is hereby dismissed."
' In view of above discussion I have come to the conclusion that the learned Labour Court has erred in holding the respondent as a workman entitled to the benefit of. Standing Orders Ordinance, 1968.
The very appointment order of the respondent spells out in details the terms and conditions on which his appointment was made. If intention was to induct him as a workman it was not necessary at all to issue such detailed appointment order, because in consequence of his appointment as a workman his appointment would be regulated by law namely Standing Orders Ordinance, 1968 but in case of the respondent his appointment was intended to be governed by the terms and conditions specified in his appointment order. In other words his appointment being of contractual nature of master and servant it was necessary to spell out the details of terms and conditions on basis of which the appointment was made. The perusal of appointment order shows that there is no provision of notice to be given to the respondent before termination of his service.
As such there is nothing illegal with the termination of respondent's services. Accordingly the termination of respondent's services has been lawfully made particularly when he was repeatedly warned that his performance was gradually deteriorating and therefore, he was required to make improvement but with no result."
7. The learned Division Bench of the High Court in the impugned judgment in paras.4 and 5 has observed as under:- "(4) Miss Sana Minhas learned amicus curiae brought to our notice that a large number of pronouncements of the Superior Courts and in particular the judgment of the. Honourable Supreme Court in Matloob Hassan v. Brooke Bond 1992 SCM R 227, wherein it was held that when an employee complained of violation of the provisions of the Standing Orders Ordinance, he was required to show that he was a workman under the aforesaid Ordinance and not under the Industrial Relations Ordinance. The principle laid down in the aforesaid judgment, learned counsel pointed out, have been followed by the Honourable Supreme Court in a recent case of Yousuf Ali v.
Quetta Sareena Hotel 2001 SCM R 1813. The same view also appears to have been taken in Mustehkum Cement v. Abdul Rahim 1998 SCM R 644.
(5) Miss Sana Minhas also pointed out that though the Supreme Court had held salesman to be a workman for the purpose of Industrial Relations Ordinance, it was explicitly held in subsequent case that they were not so in terms of the Standing Orders Ordinance. She further stated at the bar that a different view, to her knowledge, had not been taken by any High Court."
8. We do not find any legal or factual infirmity with the judgments passed by the learned Division Bench and the Labour Appellate Tribunal.
' Admittedly in view of the material on record the petitioner was performing after his promotion from Area Sales Representative to Territory Representative at Karachi managerial duties and the documents referred by the learned counsel for the petitioner did not show that the petitioner was performing duties as a workman. He has also not been able to produce any document showing that other workers of the respondent were assigned the same duties as to the petitioner as Territory Representative. The High Court and the Labour Appellate Tribunal have correctly appreciated the material on record which did not call for our interference. Even otherwise no substantial question of law of public importance is involved in this petition, therefore, leave to appeal is declined and the petition is dismissed.