ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- This appeal assails the judgment dated 27-1-2010 passed the learned Labour Court No,7 Gujranwala whereby the grievance petition filed by the appellant was dismissed on the sole ground that he was not a workman as envisaged in the Standing Orders Ordinance, 1968 and therefore was not entitled to invoke jurisdiction of the learned Labour Court.
2. The facts of the case briefly are that the appellant employed as Supplier in the respondent establishment ,in December, 2007. He was ousted from service on 30-8-2009 by verbal order.
3. After serving the grievance notice he filed a grievance petition on the ground that he being a workman under the employment of the respondent firm was removed from service without any show-cause notice and without holding any inquiry as such he was entitled to reinstatement with back benefits. It was added that there were about more than 20 employees and he was getting monthly salary Rs,4600/-.
4. The respondent refuted the assertions in the grievance petition and defended his verbal order.
The learned Labour Court after recording the evidence and hearing the arguments dismissed the grievance petition holding that he was a Salesman as such the Court had no jurisdiction to entertain his grievance petition.
5.It is submitted by the learned counsel for the appellant that he was indeed a salesman but as an employee he would take the goods of the firm on a tricycle and would sell the goods to the shop keepers on the prices fixed by the company as such there was no element of sales promotion in the total exercise. Had the learned Labour Court provided the chance of evidence to the parties the matter would have become clearer. Neither glorifying designation nor higher salary is the conclusive factor for determining that an employee was a workman or not as such the learned Labour Court has erred in holding that he was not a workman without inviting the parties to lead their evidence. In these circumstances the case merits to be remanded to the learned Labour Court for a fresh decision after recording of evidence.
6. The learned counsel for the respondent on the other hand submitted that the salesman has to apply mental faculties to convince the customer to buy his products and as such the element of sales promotion is available as such the learned Labour Court has rightly concluded that he was not a workman being a Salesman.
7. Arguments have been heard and record has been perused.
8. There is a marked difference between ordinary salesman who hands over the goods to the customers on the prices fixed by the employer and the one who is expected to display the quality of initiative and drive, intelligence and correct speculation and for doing that he is given some independence in the line of action. He is expected to use his mental faculties to find new avenues of sales promotion. All these elements can be found only after recording of the evidence whether he was a salesman simplicitor or sales promotion employee.
9. In this view of the matter, recording of evidence was indeed a sine qua non. Since the evidence has not been recorded the appeal is accepted and the case is remanded to the learned Labour Court with a direction to record the evidence and then decide the matter afresh. Parties are directed to appear there on 17-5-2012.