JUSTICE (R) SAGHEER AHMED QADRI (CHAIRMAN).---The respondent Farooq Ahmed Zuberi (late) filed grievance petition under section 25-A of IRO, 1969 read with Section 12(3) or Standing Orders, Ordinance, 1968 mentioning the facts that he was appointed vide order' dated 02.08.1999 on permanent post as Area Sales Manager and his service was confirmed w.e.f, 02.11.1999; that according to nature of his service he falls within the category of worker/workman under the labour.Laws. He further asserted that on 09.04.2000 he applied for leave on medical grpund but his services were terminated vide order dated 04.04.2000 which was conveyed to him on 13.04.2000.
He challenged his termination being illegal without any lawful justification with a prayer that he be reinstated with back benefits.
2. This grievance petition was replied by the appellant-department raising five preliminary objections on the ground that it was filed with mala fide on false and frivolous grounds; that the respondent had no cause of action. He was appointed as Area Sales Manager. He does not fall within the definition of worker/ workman as provided under Section XXVIII (2) of IRO, 1969 read with Section 2(i) of Standing Orders, Ordinance, 1968. On factual side all the assertions made by the resporkdent were refuted and prayed that grievance petition be dismissed.
3. Learned trial court recorded the statement of the respondent Farooq Ahmed Zuberi as PW-1 wherein he got exhibited documents Ex.P.1 to Ex.P.10. He was cross-examined by the learned counsel for the appellant-company.
4. The appellant-company were afforded opportunities to lead their evidence but no evidence was lead and vide order dated 14.02.2002 their evidence was closed and it was fixed for arguments.
5. Learned trial court vide impugned judgment dated 22.03.2003 allowed the grievance petition.
Feeling aggrieved the appellant-company has preferred this appeal.
6. The respondent Farooq Ahmed Zuberi expired, his legal heirs were arrayed and initially his son Abdullah Zuberi one of the legal heirs had been appearing but ultimately none appeared and this Court after proclamation in newspaper proceeded ex parte against the respondent vide order dated 12.02.2016.
7. The ex parte arguments are heard on behalf of learned counsel for the appellant who submitted that the respondent (deceased) has submitted appointment letter Ex.P.1 showing him as Area Sales .Manager; that respondent did not fall within the definition of workman; that as -according to the appointment letter, he was Area Sales Manager and this fact was admitted by him in his cross- examination; that learned counsel referred Ex.P.1 according to which the services of the respondent could have been terminated with one month notice; that learned labour court had no jurisdiction as head quarter of the company was situated at Rawalpindi and appointment of the respondent was also made there and no office whatsoever exists here., hence learned trial court had no jurisdiction to entertain and try the grievance petition. While relying on PLD 1986 SC 103 titled General Manager, Hotel International, Lahore and another v. Bashir A. Malik and others, 1981 SCM R 494 titled Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1996 PLC 446 titled Shaft Muhammad v. Presiding Officer, Labour Court No, VI at Hyderabad and 2 others and 1989 PLC 239 titled 1989 PLC 239 Managing Director Universal Oil and Vegetable Ghee Mills Limited, Sheikhupura v. Muhammad Khan and 1986 PLC 1133 titled Pakistan Manufactures Ltd. Polyester Works) Sheikhupura v. Muhammad Iftikhar Ahmad, prayed that this appeal be allowed.
8. I have heard ex parte arguments advanced by the learned counsel for the appellant and perused the records minutely.
9. The basic question which was raised before the learned trial 'court about the maintainability of the grievance petition whether the respondent Farooq Ahmad Zuberi falls within the category of worker! Workman. Point No,1 was formulated by the learned trial court to determine this question:
10. The Ex.P.1, the appointment letter issued in favour of the respondent by the appellant- company is hereby reproduced: ' Mr. Farooq Ahmed Zuberi H. No,32, Bock-C; Satellite Town, Bahawalpui.
' Dear Mr. Farooq.
' With reference to your application and interview with us, we are pleased to appoint you w.e.f, 02nd August, 1999 under the following terms and conditions.
1. You will be designated as Area Sales Manager.
2. You are presently based at Bahawalpur but may be transferred to anywhere in Pakistan.
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14. Your employment only be terminated by one month's notice in writing either by us or by you, or by one month's salary in lieu of notice. However, no notice shall be required to be given and no salary in lieu of notice can be claimed in.The event of the termination of your service arising from misconduct, or noncompliance of Company Policy of which we shall be the sole judge.
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(16)................................................................................................................................... for shaigan pharamaceuticals (pvt.) Ltd.
Maharokh Waheed, Executive Director
11. Tofurther clarified the status of the respondent, his own statement while appearing as Pw-1 if seen he during cross examination stated: {{URDU TEXT}}
11. If the above mentioned statement of the respondent is seen, he admitted that his basic job was to manage the sales of the appellant-company. He was not obliged to conduct any manual job which is basic constituent of worker/ workman as defined under Para 2(xxxiii) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968: "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled manual of clerical work for hire or reward.
12. It has been held in judgment cited by the learned counsel for the appellant i.e, PLD 1986 SC 103 titled General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others in Para 11 of the judgment at page 111: "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted".
' Further this view has been followed in the judgments i.e, 1989 PLC 239 titled Managing Director Universal Oil and Vegetables Ghee Mills Limited, Sheikhupura v. Muhammad Khan, 1975 PLC 556 titled Sultan Masud Tiwana v. General Manager, Dawood Hercules Chemicals Ltd., Lahore and 1986 PLC 1133 titled I.C.I. Pakistan Manufacturers Ltd., (Polyester Works), Sheikhupura v. Muhammad lftikhar Ahmad.
13. Keeping in view of the circumstances, the findings of the learned trial court in respect the status of the respondent are not sustainable in the eyes of law, hence these are hereby reversed. .Resultantly, as the learned trial court had no jurisdiction to entertain and try the grievance petition, the findings of the learned trial court are hereby set-aside while allowing this appeal. File be consigned to the records room after its due completion. The trial court's records be sent back immediately.