1. ' ZIA PERWEZ,.. J.--- These are two labour appeals arise out of the judgment, (dated 14-6-2006 in Grievance Application No,15 of 2005) of the learned Sindh Labour Court No,VII, Sukkur, whereby the appellant in Labour Appeal No,16 United Bank Ltd. (hereinafter referred to as appellant) was ordered to. Reinstate the respondent Athar Ali Mangi (hereinafter referred as the respondent) in service within 30 days of the impugned order without back-benefits while Labour Appeal No,17 of 2006 was tiled on the ground of non-award of back-benefits to the respondent.
2. ' Brief facts of the case are that the appellant is the employer of the respondent employed as an Assistant posted at United Bank Ltd. Nishtar Road Branch, Sukkur. The appellant served a detailed charge-sheet and statement of allegations on 16-7-2004 wherein the respondent was charged with late coming and absence from duty pertaining to the period of January, 2004 to June, 2004 amounting to misconduct under the conditions of services. Thereafter, enquiry was held by the Enquiry Officer. Enquiry report confirmed that the respondent committed acts of misconduct by unauthorized absence/late coming and not performing his duty, therefore, show-cause notice was issued and after due process the competent authority awarded punishment by way of termination of service of respondent. Respondent submitted departmental appeal which was not disposed of within statutory period, therefore, service appeal was filed which was disposed' of by the impugned judgment, hence these appeals.
3. ' Heard the learned Advocates and perused the record of the case. Learned Advocate for the appellant has challenged the finding of the trial Court that the respondent was a Sales Officer and not a Workman in law as he did not perform the 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 to meet certain targets in competitive field with other procedures and finding and pursuing best available clients. In support of his contention, he relied upon the case of Nasir Jamal Qureshi v.
4. Sindh Labour Appellate Tribunal and another 2005 SCMR 1049, Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and others 2003 PLC 424 and Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal and others 1984 PLC 1353; May and Baker (India) Ltd. And their Workmen (Civil Appeals Nos.319 and 320 of 1960 of Indian jurisdiction), J.&J. Dechane Distributors and State of Kerala and others (O.P. No,3502 of 1970) of High Court of Judicature, Kerala); Burmah Shell Oil Storage and Distribution Company of India Ltd. v. The Burmah Shell Management Staff Association and others (Civil Appeals Nos.1477 and 1478 of 1970 of Indian Supreme Court), Muhammad Shafique v. Messrs Knoll Pharmaceuticals Limited 2003 PLC 226, Naeem Wahid v. Sindh Labour Appellate Tribunal and others 1984 PLC 352 and Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2004 PLC 288, unreported decisions of Honourable Supreme Court in (Dilshad Khan Lodhi v. Allied Bank of Pakistan and others C.P.L.A. No,452-K of 2005 (Talat Faruq v. Messrs Chloride Pakistan Limited and another) Civil Petition No,K-145 of 1976 and (National Bank of Pakistan -v. Punjab Labour Court No,5 and others) Civil Appeal No,206 of 1988.
5. ' Learned counsel for the appellant went on to argue that charge-sheet specifically mentioned that the respondent was absent without leave and the Enquiry Officer rightly found him to be guilty of misconduct. Respondent is guilty of misconduct as he habitually absented himself for the period of about six months. In support of his contentions, he relied upon case of Muhammad Farooq v.
6. Messrs Iqbal Silk Mills Ltd., Karachi 1969 PLC 439, Manager, Planning, Formation and Control, Novertis (Pakistan) Ltd. And another v. Muhammad Arif NLR 2005 Lahore 90; Ahmad All v. Messrs General Tyre & Rubber Company of Pakistan Limited Karachi 1984 PLC 122 and M. Arunagiri v. Bata India Ltd.
7. And others (W.A. No,7574 of 1987 of Indian High Court).
8. ' That the respondent has failed to place any material on record to establish his assertion that he remained jobless and unemployed till his reinstatement, therefore, he would not be entitled to back-benefits as has been held in case of Riaz Ahmad Malik v. Administrator' Municipal Corporation, Bahawalpur and another 2004 TD (Lahore) 442, Pakistan Automobile Corporation Ltd. v. Mansoor-ul-Haque and others 2004 PLC (C.S.) 1151.
9. ' Learned counsel has further contended that the charge-sheet was well within time. The extent and scope of examination of inquiry proceedings has been subject to judicial pronouncement, the consistent view is that it is not open for the Labour court to re-examine and re-appreciate evidence recorded in domestic inquiry to come to a conclusion contrary to that taken by the Inquiry Officer. In this context, reliance is placed on the cases of Bibi Khatoon v. Abdul Jalil PLD 1978 SC 212 and National and Grindlays Bank Ltd. v. Homi F. Behrana PLD 1979 Kar.
10. 692.
11. ' It is further contended that the respondent was not performing any manual or clerical duties but performing the work of Salesman hence by virtue of his work, he was not a workman in terms of S.0.0., 1968. In support of his contentions, learned counsel relied on the case of Shahzar Khan v.
12. Labour Court No,4, Karachi and others 1977 SCMR 106, Messrs Pakistan Herald Ltd. Karachi v. Victor Sunny and another 1996 PLC 66, Pakistan Herald Workers' Union v. Sindh Labour Appellate Tribunal and others 1996 SCMR 1827; Dost Muhammad Cotton Mills v. Muhammad Abdul Hani PLJ 1975 Kar.
13. 25, Public Works Department Government of Punjab, Lahore v. National Industries Relations Commission and another 2004 SCMR 27, Shaheen Air Port Services v. Haider Abbas Rizvi 2006 PLC 169; Ch. Masood Ahmed v. Messrs Pakistan Machine Tool Factory and others 2004 PLC 343, Dilkhusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1982 and unreported case of Honourable Supreme Court in Messrs Nichimen Corporation Karachi v. Chairman, Sindh Labour Appellate Tribunal and others Civil Petition No,413 of 1992.
14. ' Learned counsel for the respondent has contended that the alleged misconduct does not fall within the scope of definition of S.O.15(3)(e) of Ordinance, 1968. The respondent was appointed in the year 1987. There was no charge-sheet/allegations of habitual late coming or absence, right from 1987 to 2002 but the Manager of Nishtar Road Branch, Sukkur became jealous and inimical due to personal, he got issued a belated and time-barred charge-sheet to the respondent. The respondent has neither remained absent nor late. Thus, the action of the appellant was mala fide, illegal and against natural justice. The respondent, therefore, prayed for back-benefits and dismissal of appeal against reinstatement filed by the appellant.
15. ' The only point involved in this petition is whether the finding of the learned trial court holding that the respondent was a workman was legally sustainable. There is no cavil that mere designation of an employee may not be the determining factor as to his status and the nature of job and duty is to be kept in view. The respondent was employed as Assistant in the Bank and was assigned the duty of Salesman. The respondent by doing such small manual work connected with the sales his status cannot be changed nor for that reason alone he could be regarded as Workman. This is because his main job is in sales for which he has to use faculty of his mind and wisdom and not only manual or clerical work.
16. ' The activity of sales can be divided into two categories. First the common category is sales either wholesale or retail of tangible goods or commodities as shoes, soaps, etc. Sold either at the shop or bazaars or door to door through salesmen. Transaction conducted by the salesmen involves receipt money against sale of the goods or commodity involved and results in passing of goods in exchange of price paid or recoverable.
17. ' The second class involves sales in the service sector. Service sector does not offer exchange of tangible goods against money as mentioned in the first category. In case of services, the client is facilitated by affording of services. Example of such services can be case of any providing maintenance services for air conditioning plants installed at the premises of the client and other services of like nature such as by the promotional field staff appointed for attracting clients for establishments such as Accountants, advertising services etc. To mention a few are also salesmen.
18. ' In such cases, the client does not receive any tangible product against the amount he pays. The insurance and banking industry also fall within this class of business. To keep the abreast with the pace of development in a competitive and dynamic society aggressive promotion of business activities are undertaken by such establishments. Staff appointed for (sic) out these activities though not providing any tangible goods in exchange of money but only engaged for procuring clients for their employers also fall under the category and definition of "Salesmen".
19. ' Banks regularly pursue promotional activities for which staff is specially employed to attract new clients with a view to keep up their growth and profitability.
20. ' This sphere of sales activity is ancillary to the Banking business of the establishment. Promotional staff appointed for this purpose do not deliver any commodity or goods but can rightly be termed as Sales staff. The case of the appellant employed for seeking clients for the bank falls under the second category.
21. ' The above view about the salesman or the person who is engaged in the job of products is supported by the Honourable Supreme Court in case of Pakistan Tobacco Company Ltd v Pakistan Tobacco Company Employees Union Dacca and others PLD 1961 SC 403 and Nasir Jamal Qureshi's case (supra). It may be observed that section 25-A of IRO enables a workman to approach a Labour Court for enforcement of a right conferred by a law settlement or award. The Honourable Supreme Court in Matloob Hassan v. Brook Bond 1992 SCMR 227 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 S.R.O. The principle laid down in the aforesaid judgment, learned counsel pointed out, have been followed by the Honourable Supreme Court in case of Mustehkam Cement v. Abdul Rahirn 1998 SCMR 644. Thus, it is clear that the grievance petition filed by the respondent being a Salesman under section 25-A, IRO, against his termination as he is not workman within meaning of section 2(I) Standing Orders Ordinance, 1968 is not maintainable as has been held in case of Nasir Jamal Qureshi (supra).
22. ' The charge-sheet issued in time when the objection was brought to the notice of management by the auditors was not time-barred as has been held in case of Manager, Planning Formation and Control, Novertis (Pakistan) Ltd. And another (supra) that after service of charge-sheet on workmen after one month of commission of misconduct but within one month of receipt of report of preliminary inquiry, conduct by employer in which workman had also joined would not be time- barred charge-sheet. The charge-sheet specifically mentioned that the respondent was absent without leave for the period of six months. In case of Muhammad Farooq (supra) it has been held that if workman habitually absents himself without leave for more than 10 days can be said to be guilty of misconduct. Although the Labour Court has jurisdiction to examine the cases well as enquiry proceedings both on merits as well as to legality of the same but such examination would not amount to substitute the findings of Enquiry Officer on his own findings without any tangible material as has been held in case of Mukarram Shah v. Sindh Labour Appellate Tribunal and others 2005 PLC 14.
23. 'For the foregoing reasons, as discussed above, the respondent falls within the definition of Saleman, no ground for interfering with the findings of Enquiry Officer followed by letters of termination, therefore, made out. Thus, Appeal No,S-16 of 2006 is allowed as a result whereof the judgment of Sindh Labour Court VII, Sukkur dated 14-6-2006 is set aside while Appeal No,17 of 2006 is dismissed. The parties are left to bear their own costs.