SHEZADA MAZHAR J.-:- Through the present writ petition, the petitioner has challenged the vires of judgment dated 28-11-2013 passed by the Punjab Labour Appellate Tribunal, Lahore whereby the appeal filed by the respondent/bank was accepted and the order dated 8-3-2010 passed by the Punjab Labour Court No.5, Sargodha reinstating the petitioner was set aside.
2. Facts necessary for the disposal of present writ petition are that the petitioner joined the services as Agricultural Field Officer with the respondent/bank on 30-7-1997. The petitioner was issued charge sheet dated 15-7-2007, which was replied and a domestic enquiry was held. Show-cause notice was issued, which too was replied and ultimately the petitioner was dismissed from service vide order dated 2-1-2008 passed by respondent No.3. Against which a departmental appeal was preferred by the petitioner but no response was given against the said appeal. Therefore, the petitioner served a grievance notice dated 21-1-2008, which was also not responded by the respondent/bank. Thereafter, the petitioner moved grievance petition under section 46 of the Industrial Relation Ordinance, 2002 on 6-2-2008 before the Punjab Labour Court No.5, Sargodha seeking his reinstatement into service with all back benefits. The respondent/bank filed written statement, evidence was recorded and after hearing the arguments of learned counsel for the parties, the learned Punjab Labour Court No.5, Sargodha reinstated the petitioner with all back- benefits vide order dated 8-3-2010. Against which the respondent/bank preferred an appeal before the Punjab Labour Appellate Tribunal, Lahore, which was allowed vide impugned judgment- dated 28-11-2013.
3. Learned counsel for the petitioner submits that respondent No.1/ Punjab Labour Appellate Tribunal, Lahore has totally failed to meet the reasoning and findings recorded by the Punjab Labour Court No.5, Sargodha on the status of the petitioner as a workman. Respondent No.1 is erred in law by treating the status of the petitioner at par as a "Salesman" and has non-suited the petitioner by holding him not a worker or workman; Submits that the respondent/bank never pleaded in their written statement before the trial court or in their grounds of appeal that the duties of the petitioner were at par with a "Salesman" or that his duties involved marketing skills as he was a salesman engaged in offering to farmer community finance. Submits that in the written statement and grounds of appeal, the plea of the respondent/bank was that the petitioner being employee as an Officer Grade-I of the respondent/bank, therefore, cannot invoke jurisdiction of Labour Court under the IRO/IRA as it has been held by the Hon'ble Supreme Court of Pakistan that the Supervisory Officer cannot approach the Labour Court. Submits that findings recorded on the basis of the alleged duties of a "salesman" in the absence of any such plea in the pleading of the respondent bank or in their evidence were totally perverse, based on conjectures and surmises. In this regard relied upon Mst. Jannat Bibi v. Sher Muhammad and others (1988 SCMR 1696). Submits that once the petitioner asserted his status as a workman, the onus had shifted to respondent/bank to prove, otherwise, no such evidence was produced by the respondent/bank therefore, the impugned judgment dated 28-11-2013 is liable to be set-aside. In this regard learned counsel for the petitioner has relied upon the order passed by the learned Tribunal in another Appeal No.FD-560/2011 decided on 3-12-2012 as well as the order dated 21-1-2013 passed by this Court in W.P.No.1342 of 2013 whereby the writ petition was dismissed in limine. Learned counsel further submits that in numerous cases, Bank Officers, Grade-I to III, acting as Branch Manager were declared as workmen. Relies upon Muhammad Shakil v. Sakhi Zaman and others (1999 SCMR 32) Submits that the learned Appellate Tribunal has failed to appreciate the duties mentioned in the bank circular letter dated 8-9-2003 which clearly shows that the petitioner is a workman as his duties were mainly of manual and clerical in nature; that the respondent No.1 failed to look into the definition of worker or workman as given in Industrial Relations Act, 2008 or Industrial Relations Ordinance, 2002. The said definitions show that the petitioner falls within the category of workman as under the said definition no other disqualification is mentioned except that he was employed mainly in managerial or administrative capacity. Submits that the petitioner was not working in managerial or administrative capacity, therefore, falls within the definition of workman. Submits that the petitioner's evidence was remained un-rebutted and therefore, in view of the law laid down in Liaqat Ali v. Cafe Momin (2007 PLC 686), the same was to be accepted by the respondent No.l. Submits that respondent No.1 has failed to consider the case from this angle; that the respondent No.1 has not decided all the points involved in the case in hand and has decided the controversy in a slipshod manner by misapplying the law and misconstruing the facts. Relies upon Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21) and A.F. Ferguson & Co. v. The Sindh Labour Court and another (PLD 1985 SC 429); that the dismissal order of the petitioner was passed by the incompetent authority and the same was just an intimation of order of the termination and without disclosing any explicit reasons, hence the same was nullity in the eye of law. Relies upon Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others (2010 SCMR 1495-1505/1506) and Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 Lahore 407); contends that the dismissal order dated 2-1-2008 was otherwise rightly set aside on merits by the learned Punjab Labour Court No.5, Sargodha whose findings have not been distrusted by the learned Appellate Tribunal/respondent No.1; that the impugned judgment dated 28-11-2013 is patently illegal, without jurisdiction, perverse, without lawful authority and of no legal effect and the same is liable to be set-aside.
4. On the other hand, learned counsel for the respondent/bank submits that the petitioner's counsel has tried to deviate from the legal issue in hand by raising frivolous issues. Submits that the question of jurisdiction goes to the very root of the case and it is to be decided first. The impugned judgment passed by respondent No.1 is strictly in accordance with law. The petitioner was dismissed from service after holding a detailed inquiry and proper opportunity of personal hearing was afforded to the petitioner and no lacuna/objection was raised with regard to the inquiry proceedings. The dismissal order dated 2-1-2008 was passed by the competent authority.
Petitioner is not a workman from the nature of his job; petitioner was performing duties of supervisory nature, which is evident from the circular letter dated 8-9-2003, which itself shows that the same was issued to ensure smooth functioning of Supervised Agricultural Credit Scheme.
Learned counsel also referred to the contents of the said letter to show that the petitioner was performing the duties of supervisory/managerial nature and the impugned order has been passed on the basis of evidence placed on record by the parties. Learned counsel for the respondent/bank has relied upon (Brooke Bond Pakistan Ltd. v. Conciliator appointed by Government of Sindh and others( (PLD 1977 SC 237), ( Syed Matloob Hassan v. Brooke Bond Pakistan Limited Lahore (1992 SCMR 227) (Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal( (PLD 2005 SC 1049) to substantiate that the petitioner is not a workman. Learned counsel further relied upon and (Mahmood Hussain Larik and others v. Muslim Commercial Bank Limited (2009 SCMR 857) to support his contentions.
5. 1 have heard the arguments of learned counsel for the parties and perused the record.
6. The moot point in this case is that whether the petitioner is a workman or not?
7. Both the counsel for the parties have relied upon the Circular letter dated 8-9-2003. Perusal of the said circular letter dated 8-9-2003 reflects that same was issued to ensure the smooth functioning of the staff. The said letter contains duties and responsibilities of field functionaries of Supervised Agricultural Credit Scheme of the bank. In Para No.2 of the said letter, it is mentioned that:--- "In order to ensure smooth functioning of Supervised Agricultural Credit Scheme and to promote quality financing we have been repeatedly emphasizing upon effective monitoring at each level.
For the purpose clear guidelines have been provided and responsibilities have been defined at each level of line management and in the field offices."
8. From the above para it is clear that the duties mentioned in the said letter dated 8-9-2003 relates to the person who are performing functions at each level of line management.Petitioner being Agricultural Field Officer is part of the said line management. As in the said letter duties and responsibilities of the Agricultural Field Officer are also mentioned.
9. However it is well-settled law that status of an employee as a workman or otherwise has to be determined by reference to the actual duties performed by him rather than his designation. In case the duties of an employee predominantly involve clerical or manual work, he would be regarded as a workman in terms of section 2(1) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The respondent No.1 while considering the evidence available on record reached to the conclusion that the duties of the petitioner were not predominantly of clerical or manual work.. In this regard, respondent No.1 has analyze the evidence available on record and by relaying upon the appreciation letters issued to the petitioner reached to, the conclusion that said letters shows that the agricultural loans including those for tractors were sanctioned by the respondent/bank on the recommendations of the petitioner. The said letters also show that it was the duty of the petitioner to achieve disbursement targets which he would manage by persuading the farmers to apply for the agricultural loans in respect of which he would prepare feasibility reports and recommended sanction of loans to his superiors. On the basis of said evidence/appreciation letter it was concluded by respondent No.1 that the petitioner was in fact performing the services as a salesman, who used to sell loan to the framers on behalf of the respondent/Bank.
10. The above finding of the respondent No.1 are also in line with the duties mentioned in the Circular letter dated 8-9-2003 -which states dudes of the petitioner in the following words;--- Agricultural Field Officers (AFOs)
(i) Would be stationed at a centrally located Branch keeping in view the Branches he has to cover.
(ii) To ensure that all applications received in the branches are promptly scrutinized and checked and submitted to concerned branch along with verification report to ensure timely disposal.
(iii) Feasibility report for Development Finances is prepared invariably.
(iv) To keep themselves mobile all the time for the verification of the applications directly received at the branches, to mobilize fresh borrowers and simultaneously ensure follow-up for timely recover of finances including stuck up finances.
(v) The filed difficulties encountered are immediately reported to their respective ACM/RAGM (Agri. Credit) for overcoming the constraints.
(vi) To ensure timely filed investigation of any kind relating to agricultural finances as and when required.
11. It was in the duty of the petitioner to visit the spot, inter-act ID with the potential customers, collect necessary data, make an assessment about the suitability of the proposed borrowing farmer by means of a feasibility report including the recommendation that loan be sanctioned to the applying farmer and if in doing so the petitioner was performing some manual/clerical work that will not make him a workman.
12. A salesman is not a workman as the selling requires application of mind as well as know-how of the product. In this regard, I rely upon E Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another (2005 SCMR 1049) wherein it was held that:-- "Thus, selling is not an easy job which can be carried out by the ordinary workman. It requires imagination, application of mind and know-how of the things offered for sale to the customers who are expected to buy the products offered for sale. It may be true that if a single person is engaged in making sale of the products he may in addition to using his intellect and wisdom may also undertake some incidental manual work. By doing such small manual work connected with the sale of products his status cannot be changed nor for that reason alone he could be regarded as workman. This is because his main job is to sell the products for which he has to use faculty of his mind and wisdom and not only manual or clerical work."
13. The order passed by respondent No.1 is in accordance with the law and facts of the matter and does not require interference by this Court.
14. For what has been discussed above, the instant petition stands dismissed.