' MUHAMMAD JEHANGIR ARSHAD, J.---This F.A.O. Is directed against the order, dated 5-10-2005 passed by Presiding Officer Punjab Labour Court-9,'Multan whereby the Grievance Petition filed by the appellant against his dismissal from service at the hands of respondent, was dismissed.
2. The facts in brief are that appellant was Team member in the Sales Department of the respondent since 23-1-2000 vide Appointment Letter, dated 28-2-2000 and letter of Confirmation as Market Development Officer, dated 23-4-2000. On 22-2-2003 when the appellant tried to enter the premises of respondent i,e, Coca Cola Beverages Pakistan Limited, Vehari Road, Multan, the gate of the factory was closed illegally and without justification which prompted the appellant to institute his Grievance Petition under section 46 of the Industrial Relations Ordinance, 2002 on 8-3- 2002, wherein the respondent entered appearance and filed written statement on 19-4-2003 disclosing that services of the appellant stood terminated w,e,f, 4-3-2002. As the said Grievance Petition was against the oral order of termination and without the knowledge that same had in fact been passed on 4-2-2004, therefore, the appellant withdrew his first Grievance Petition, dated 8-3- 2003 and filed second one challenging his order of termination, dated 4-2-2003. The petition, however, was dismissed by the Punjab Labour Court No,9, Multan vide order, dated 30-10-2003 on a technical ground i,e, withdrawal of earlier Grievance Petition without obtaining permission. Against the dismissal of his Grievance Petition, the appellant filed an F.A.O. 5-L/2004 which was allowed by my learned brother Maulvi Anwarul Haq, J. On 16-2-2005 with the following directions:- "This F.A.O. Is accordingly allowed. The impugned judgment, dated 30-10-2003 of learned Punjab Labour Court No,9, Multan is set aside. The result would be that the grievance petition filed by the appellant shall be deemed to be pending before the learned Punjab Labour Court No,9, Multan, who shall requisition the records, summon the parties and proceed to determine all the questions arising in the case on the basis of respective pleadings of the parties, after affording an opportunity to lead the evidence in support of their respective pleadings. No order as to costs."
3. After the receipt of the above mentioned directions of this Court, the Grievance Petition of the appellant was taken up by the learned trial Court i,e, Presiding Officer, Punjab Labour Court No,9, Multan who after holding proper trial dismissed the same through the impugned order, dated 5-10- 2005 holding that the appellant was neither worker nor workman and he could not maintain his Grievance Petition in terms of section 46 of the Industrial Relations Ordinance, 2002, hence, this appeal.
4. Learned counsel for the appellant with reference to the evidence, has argued that it is established that the appellant was performing the duties as workman under the respondents, therefore, his Grievance Petition was fully maintainable and the appellant was entitled to be reinstated, as admittedly before passing the termination order neither any show-cause notice was issued to the appellant nor he was afforded opportunity of hearing which was his fundamental right and thus the impugned order of termination of the appellant, dated 4-2-2003 being void ab initio i,e, in violation of the principles of natural justice is liable to be set aside and findings recorded by the learned Presiding Officer, Punjab Labour Court No,9, Multan declaring the appellant as not the worker are also liable to be set aside being based on misreading and non-reading of evidence and also being against law. It has been strenuously argued by learned counsel for the appellant that since the appellant was assigned basic duties of workman and no person was working under his subordination and further the appellant was not in possession of authority of hire and fire nor he was competent to grant or refuse leave of any employee of the respondent, therefore, he could not be excluded from the definition of worker/Workman merely on the basis of his designation and quantum of salary or the designation assigned to him in his letter of appointment as well as the letter of confirmation. To support his contentions, learned counsel has placed reliance on the judgments Messrs Ihsan Sons Ltd. v. Abdul Razak Habib and 2 others 1987 PLC 390, Pakistan International Airlines v. Sindh Labour Court No,5, and others PLD 1980 SC 323, Shahzar Khan v. Sindh Labour Court No,4., Karachi and 2 others 1977 SCM R 103, unreported judgment of the Honourable Supreme Court of Pakistan in C.P. No,2760 of 2004, dated 23-9-2005, Allied Bank of Pakistan Ltd. v.
Muhammad Hamayun Khan and others 1998 SCMR 1664, Dost Mohammad Cotton Mills Ltd. v.
Muhammad Abdul Ghani and another 1979 SCM R 304 and several other authorities to show that the appellant was fully covered with the definition of worker/workman, therefore, was entitled to the protection of law viz. Commercial Standing Orders Ordinance and the procedure laid down in the said Ordinance before passing the order of his dismissal, which includes show-cause notice and holding of enquiry etc., must have been followed.
5. On the other hand, learned counsel for the respondent Establishment has argued that it is established from the evidence produced by the respondent that the appellant was connected with sales of products and also collection of sale produce and the mere fact that he had no power to appoint or dismiss anyone or could not sanction or refuse leave, would not include him in the definition of workman within the meanings of Industrial Relations Ordinance as well as the Standing Orders Ordinance. Reliance has been placed on Distribution Officer, Hoechst Pharmaceutical Pakistan Ltd., Faisalabad and another v. Punjab Labour Appellate Tribunal,. Lahore and 2 others 1994 PLD 157, Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2005 SCM R 1049, and Syed Matloob Hasan v. Brook Bond Pakistan Limited Lahore 1992 SCM R 227, learned counsel for the respondent has concluded that the appellant was not the workman, his Grievance Petition, therefore, was rightly dismissed by the learned Labour Court and in such an eventuality the relations between the appellant and the respondent being of master and servant and not under any statutory protection, the only remedy available to the appellant was to approach the Civil Court by way of filing a suit for damages.
6. I have considered the arguments of learned counsel for the parties, have gone through the entire record and also thrashed the cited case law.
7. Although the learned Presiding Officer, Punjab Labour Court has put much labour in examining the evidence of the parties before arriving at the conclusion that the appellant was not a worker, yet the said judgment suffers from a material setback, as it failed to weigh and consider the evidence of the parties in the light of the abovementioned judgments of the superior Courts, laying down, various factors to be considered while declaring a person as worker or otherwise. The findings of the learned Labour Court appear to be mainly influenced by the designation assigned to the appellant in his letter of appointment, dated 28-2-2000 (Exh.P-1) and the confirmation letter (Exh.P-2), but it fails to deal with other aspects of the case, especially relating to the nature of performance of his duties, his job including whether he had the power of hire and fire or whether he was performing any supervisory or advisory duty; and in the absence of any expressed findings to this effect' the appellant could not be excluded from the definition of workman, so as to pass the order of his termination without any Show-Cause Notice and fulfilling the procedural, requirement provided under the Standing Order Ordinance.
8. For what has been discussed above, this. F.A.O. Is allowed, the impugned judgment is set aside and the matter is remanded to the Punjab Labour Court No,9, Multan for deciding the same afresh in the light of abovementioned observations, within a period of three months from the receipt of this order. The learned Presiding Officer, Punjab Labour Court No,9., Multan would be free to record additional evidence, if so desired by the parties. There is no order as to costs.