ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- Ather Ali petitioner was originally appointed as Sales Officer in ICI on 15-9-1992. He continued to serve the department faithfully, honestly and diligently. It was however on 29-5-1999 that all the staff members were required to submit their resignations to the employer and after giving a gap of one day almost all the staff members including the petitioner were reappointed. This time he was given a new designation as "Territory Manager" and was posted in the Regional Office at 63-Mozang Road, Lahore. His appointment was on regular basis and no period of probation was fixed in his case as he happened to be an experienced hand. The petitioner continued to perform his duties with the best of his abilities and earned a few awards and was also given cash amount in recognition of his excellent services. The, nature of his job was purely of a workman. He had no powers of hire and fire. None was subordinate to him and no helper was provided to him. Due to his best performance and appreciation by the employer there was an atmosphere of grudge and jealousy among his other colleagues and the situation conducive to work was not available to him in the set up. In this state of affairs, he was summoned by the Business Manager, Dr. Amer Jaffery who informed him that his services have been terminated vide order dated 28-3-2002. At same time he was required to tender his resignation from service and on his refusal to do so he was sent a letter dated 29-3-2002 issued by the Human Resource Manager, PCA Business ICI Limited through TCS on 9-4-2002 intimating him that his resignation has been accepted by the Executive which was shocking for him, as he had never tendered any resignation. The resignation, if any, was forged and a fake document.
2. After serving grievance notice he filed a grievance petition before the learned Labour Court. The respondent controverted the assertions made in the grievance petition claiming inter alia, that as he had been appointed in the managerial staff he was not a workman; he had to perform neither manual nor clerical duties and his job was to promote the Sales of pharmaceutical products of the company; that during employment he had been admittedly availing various benefits provided to the managerial staff of the company including car loan; that he voluntarily became a member of the management staff Provident Fund and availed benefits therefrom; the petitioner resigned on his own accord and under his own hand on 28-3-2002 and his resignation was duly accepted in the normal course Of business vide letter dated 29-3-2002 of the respondent company. The learned Labour. Court after hearing the learned counsel for the parties declared him as a workman and accepted his grievance netition with full back-benefits vide order dated 17-3-2003.
3. The appellant has challenged this judgment chiefly on the ground that he was not at all a workman as he was appointed as an Officer in the managerial staff and his job was of a Territory Manager in the Life Sciences Business of the appellant company. His main job was to promote the sales of pharmaceutical products of the appellant company and this fact has been clearly and unambiguously admitted by the respondent himself in the very first response during his cross examination to the effect that "it is correct that my duty was to convince the doctors to prescribe medicines of my company". It is equally in evidence of R.W.1 that the job performed by the respondent did not fulfill direct sale of the appellant company but ethical promotion of the sales which inter alia included holding of meetings with doctors and informing them about the merits of the products, of the medicines of the appellant company. This clearly shows that his job involved merely the use of mental faculties and not physical labour. If there was any physical labour that was incidental or ancillary work like handing over the medical literature to the doctors or placing any written promotional material on their tables in their clinics; that the learned trial court has failed to give any finding qua his resignation submitted by the respondent which he is alleged to have submitted under duress and which stood rebutted by the statement of R.W.I.
4. Arguments have been heard and the record has been carefully gone through.
5. Acid test for the determination as to whether an employee is a workman or not is the nature of the duties performed by him. An employee will be workman if the duties performed by him are manual or clerical in nature and not otherwise. This is almost a settled proposition.
6. Sales Promotion Officers/employees are expected to display the quality of initiative and drive, intelligence and correct speculation and for doing that they are given some independence in their line of action. They are excepted to use their mental faculties to find new avenues of sales promotion. This very proposition came up before the honourable Supreme Court of Pakistan wherein after a detailed survey of the Labour Laws their Lordships came to the conclusion:-- "Persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company are not assimilable either to the group of workers whose manual labour contributes to that product, or those of the clerical establishment who perform the paper work connected with the operation of the Company. The work of salesmen is in a wholly different category from manual work or clerical work. Salesmen do not therefore fall within the definition of "workman". (PLD 1961 SC 403)
7. In another identical situation their Lordships of the honourable Supreme Court of Pakistan held as under:-- "Petitioner was serving as Sales Representative; selling required imagination, application of mind and know-how of the things offered for sale to the customers who were expected to buy the products offered for sale---While making sale, Sales Representative could also undertake some incidental manual work, but by doing such small manual work connected with sale of product, his status could not be changed nor for that reason he could be regarded as workman as his job was to sell the products for which he had to use faculty of his mind and wisdom and not only manual or clerical work-Appointment order had spelled out in details of the terms and conditions on which appointment of petitioner was made---If intention was to induct petitioner as a workman, it was not necessary at all to issue such detailed appointment order---Appointment of petitioner 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-Labour Appellate Tribunal and High Court had rightly held that petitioner was not workman and his grievance petition was not competent-In absence of any legal or factual infirmity, judgment passed by Labour Appellate Tribunal and High Court could not be interfered with by Supreme Court." (2005 SCM R 1049)
' Further reference was made to the following judgments which support the arguments of the appellant:--
(1) PLD 1975 Kar. 279, (2) PLC 1994 SC 157, (3) PLC(?) 1996 SC 362, (4) 1996 PLC Appellate Tribunal 229,
(5) 1999 PLC 38 (Tribunal Decisions), (6) 2001 PLC 396, (7) 2003 PLC 226.
8. Learned counsel for the respondent has failed to produce any E authoritative pronouncement of the honourble Supreme Court of Pakistan to refute this proposition.
9. After examining the record of the case it appeared that a company of the global repute like ICI has taken recourse to the unfair practice of requiring their employees to tender resignations and then after an artificial break of a day or more to re-appoint them. This practice has never been appreciated by the superior courts of the country. In 2005 SCM R 100 this device has been held to be a fraud on the statute.
10. The upshot of the above discussion obviously is that the appellant was not a workman and as such the Labour Court had no jurisdiction to entertain and try the grievance petition. The appeal is accepted and the impugned order is hereby set aside leaving the parties to bear their own costs.