'The appellant, who was admittedly employed by the respondent company, Messrs Brooke Bond Pakistan Ltd., as a travelling salesma n, was dismissed from service, with effect from 8th January 1979, after a domestic enquiry in which his misconduct is said to have been established. The appellant challenged his dismissal orders before the learned Labour Court which has taken the view that the appellant's grievance petition was not maintainable as he was not a workman for the purposes of the Standing Orders. In coming to this decision, the learned Labour Court has relied upon the decision of the Lahore High Court in the case of Brooke Bond Pak. Ltd. v General Secretary Union Karkunane Brooke Bond Ltd. and the decision of the Karachi High Court in the case of Dentogene Laboratories v. Sind Labour Appellate Tribunal.
2. I have heard Mr. S. I. Siddiqi, the learned counsel for the appel lant workman, and Mr. M. A. Khan, who appeared for the respondent-Company. The contention of Mr. Siddiqi was that despite the fact that the appellant was designated as a salesman, he was required to perform manual and clerical duties, which consisted of walking on foot for several miles, a day, doing up the accounts, physical handling of the tea packages and even some times pushing the cart meant for carrying the tea packages. In support of this contention, the learned counsel relied upon the affidavit filed in this Tribunal by the appellant and also the photo copy of a letter written by the Branch Manager of the respondent-Company to their Doctors in respect of their workman, S. Habib Jan, who was said to have been injured in an accident while performing his duties as a salesman. According to that letter, the salesman was not only required to work on foot in area, distance of which was roughly 4 miles a day but also to physically handle the delivery of tea with the assistance of his vanman. Mr.1 2 M. A. Khan, on the other hand, opposed the appeal and strongly disputed the claim of the appellant that he was required to do any physical, manual or clerical work, and pointed out that neither any such claim was made by the appellant in his grievance petition nor have details of any physical, manual or clerical work been given by him in his affidavit filed before the learned Labour Court or in his reply statement to the legal objection raised by the respondent-Company that the appellant being a salesman, was not a workman for the purposes of the Standing Orders Ordinance and hence his grievance petition was not maintainable.
2. Admittedly, no evidence has been led before the learned Labour Court. Ordinarily, it should be the responsibility of the appellant, at the earliest stage, to state the facts on which he claims that he was a workman for the purposes of the Standing Orders Ordinance and his grievance petition was maintainable. Though the appellant has failed to do so, as pointed out by Mr. M. A. Khan, I am of the view that he should not be denied an opportunity of leading evidence on this important point and establishing that he is a workman for the purposes of the Standing Orders, specially in view of the letter of the respondent-Company indicating that some physical and manual duties were required to be performed by a salesman. I, therefore, would set aside the impugned order of the learned Labou Court and remand the case to it for deciding this issue afresh after given an opportunity to both parties to lead evidence in this behalf. I would like to make it clear that nothing in this judgment should be construed as indicating that if a salesman is occasionally required to do any clerical or physical work, he thereby becomes a worker for the purposes of the Standing Orders. PLD 1969 Lah. 717 1978 PLC 196