' ABDUS SATTAR ASGHAR, J.--- Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Islamic Republic of Pakistan, 1973 to impugn the order dated 27-10-2009 passed by learned Punjab Labour Appellate Tribunal Lahore.
2. Succinctly facts leading to this constitutional petition are that petitioner was appointed as Territory Manager Pharmaceutical Business in ICI Pakistan Lahore on 31-5-1999 as member of the management staff on regular basis. Vide letter dated 29-3-2002 issued by the Human Resource Manager, PCA Business ICI Pakistan Ltd. through TCS petitioner was intimated that his resignation has been accepted by the Executive. Being aggrieved of the same after serving a formal grievance notice to respondent No,2, the petitioner filed a grievance petition before the learned Labour Court Lahore asserting that he had never tendered any resignation rather on 28-3-2002 he was summoned by the Business Manager who informed him that his services have been terminated and was required to tender his resignation but he refused and thereafter the impugned letter dated 29-3-2002 was issued on the basis of some forged and fake document of resignation.
Respondent-Company resisted the grievance petition Inter alia contending that petitioner was appointed in the managerial staff and was not a workman; that he had to perform neither manual nor clerical duties rather his job was to promote the sales of pharmaceutical products of the Company; that during employment he has been availing various benefits provided to the managerial staff of the Company including car loan etc. and voluntarily became a member of the Management Staff Provident Fund and had been availing benefits therefrom. On facts it was contended that petitioner resigned at his own accord and freewill on 28-3-2002 which was accepted in due course vide impugned letter dated 29-3-2002. Learned Labour Court Lahore vide order dated 17-3-2003 declared the petitioner as a workman and allowed his grievance petition with full back benefits. Respondent-Company being dissatisfied assailed the said judgment through appeal before the Punjab Labour Appellate Tribunal (PLAT) Lahore. The appeal was accepted and the order of the learned Labour Court dated 17-3-2003 was set aside vide judgment dated 27-10-2009, impugned through this constitutional petition.
3. It is argued by learned counsel for the petitioner that learned.
' PLAT in the impugned judgment erred in law while declaring the petitioner as not 'workman' and for this reason formulating the opinion that learned Labour Court had no jurisdiction to entertain his grievance petition; that the petitioner falls within the definition of 'workman' provided in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; that section 12(3) of the Standing Orders Ordinance provides right to the petitioner to seek redressal of his grievance while having recourse to .the procedure under section 25-A of the Ordinance ibid by invoking jurisdiction of the Labour Court; that the impugned judgment dated 27-10-2009 passed by learned PLAT on wrong premises of law and facts being untenable is liable to set aside; that petitioner has no other remedy except to invoke the constitutional jurisdiction of this Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Places reliance upon Mustehkum Cement Ltd. through Managing Director v. Abdul Rasheed and others (1998 SCM R 644).
4. Arguments heard. Record perused.
5. The term 'workman' has been defined in section 2(xxviii) of the Industrial Relations Ordinance.
1969 which reads as under:--- "Worker" and "workman" mean any person not failing within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person---
(a) who is employed mainly in managerial or administrative capacity; or
(b) who, being employed in a supervisory capacity, draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
6. Bare perusal of the above quoted definition of ' workman' manifests that the terms 'workman' and 'employer' are interlinked. The term 'employer' has been defined in section 2(viii) of the Ordinance ibid which reads below:--- "Employer", in relation to an establishment, means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes---
(a) an heir, successor or assign, as the case may be, of such person or body as aforesaid;
(b) any person responsible for the management, supervision and control of the establishment.
(c) in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is so appointed, the Head of the department;
(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the chief executive officer of that authority,.
Special Provision.-- For the purpose of distinction from the category of "workers" or "workmen", officers and employees of a department of the Federal Government or a Provincial Government or local authority who belong to the superior, managerial, secretarial, directorial; supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of "employers";
(e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof. "
7. Section 25-A of the Ordinance ibid provides that a workman may lodge his grievance in respect of any right guaranteed or secured to him by or under any law to the notice of the employer in writing within the prescribed time. In case the grievance is not redressed by the employer the workman may take his grievance to the Labour Court which shall give a decision as such matter was an industrial dispute.
8. It may be expedient to reproduce the provision of section 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which provides the definition of 'workman' as follows:--- "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
9. Section 12(3) of the Standing Orders Ordinance provides as under:--- "The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which, shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
10. Above quoted two definitions of 'workman' one provided in the Ordinance ibid and the other provided in the Standing Orders Ordinance are distinct to some extent, however as to the question whether a person is or is not a workman, it is well settled by law that the same would depend not upon his designation but on the nature of duties mainly performed by him.
11. In this case petitioner was appointed as Territory Manger in the managerial staff. Admittedly his main job was to promote the sales of pharmaceutical products of the respondent-Company.
During cross-examination petitioner categorically admitted that "it is correct that my duty was to convince the doctors to prescribe medicines of my Company". It is also in the evidence that petitioner had no nexus with direct sale of the pharmaceutical products of the respondent- Company but his job was the ethical promotion of the sales i,e, meetings with doctors and apprising them about merits of the pharmaceutical products. It therefore makes crystal clear that such duties did not fall within the ambit of skilled or unskilled, and manual or clerical therefore he did not belong to the category of workers defined as workman in either of the above quoted two definitions.
12. Employees designated as Managers or Officers entrusted the duties of sales promotion are expected to utilize their mental agilities and abilities with a quality and intelligent initiatives to explore new horizons of sales promotion therefore due to the nature of their duties being altogether distinct and distinguishable from manual or clerical work they do not fall within the definition of 'workman'. The similar proposition has already been dealt with in detail by Hon'ble Supreme Court of Pakistan in the case of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees' Union DACCA and 2 others (PLD 1961 SC 403) and Nisar Jamal Qureshi vs. Sindh Labour Appellate Tribunal and another (2005 SCM R 1049).
13. It - may be expedient to reproduce hereunder relevant extract from the case of Nasir Jamal Qureshi (supra):--- "Admittedly in view of the material on record the petitioner was performing after his promotion from Area Sales Representative to Territory Representative at Karachi managerial duties and the documents referred by the learned counsel for the petitioner did not show that the petitioner was performing duties as a workman."
14.In another case titled I.E.Saleh v. Messrs International Laboratories Ltd., Karachi and 2 others (PLD 1975 Karachi 279) it was observed as under:-- "It would thus seem that a salesman, for the nature of duties he performs, for the independence of action which he obtains and for the initiative and imagination that he exercises, is not doing for the inferior work which is normally called 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, entering in competitive field with other producers and finding best available markets. Such type of labour cannot be called manual or clerical.
"In such view of the matter I am clear in my mind that a salesman employed in a commercial concern cannot be termed to be a 'workman' as to have the protection of standing orders contained in the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and on such ground this petition fails and is hereby dismissed."
15. In view of the above legal position and evidence on record, learned Punjab Labour Appellate Tribunal was justified in accepting the appeal to reverse the findings of learned Labour Court which were neither based on evidence nor tenable. I do not find any jurisdictional error, factual or legal infirmity in the impugned judgment dated 27-10-2009 passed by learned Punjab Labour Appellate Tribunal. Petitioner' has no case to invoke the constitutional jurisdiction of this Court.
16 For the above reasons this writ petition having no merits is dismissed in limine.