' JAWAD HASSAN, Through this constitutional petition, the Petitioner has called in question judgment dated 06.10.2010 and 01.07.2011, whereby his grievance petition and appeal respectively, were dismissed.
2. Brief facts for the disposal of this petition are that the Petitioner was employed -as an Area Sales Incharge, in the office of Tapal Tea (Pvt.) Limited, whose services were terminated vide order dated 7.10.2008. Being aggrieved, he served a grievance notice as required by Section 46 of the Industrial Relations Ordinance, 2008, but the same was rejected vide order dated 04.11.2008. Thereafter, he filed a petition under Section 41 of the Industrial Relations Act, 2008 (the "2008 Act") before the Punjab Labour Court No,1, Lahore, which was dismissed vide judgment dated 6.102010. Being aggrieved by the said judgment, the Petitioner filed appeal before the Punjab Labour Appellate Tribunal, Lahore, which was also dismissed vide judgment dated 01.07.2011. These judgments have been assailed through this constitutional petition.
3. The Counsel for the Petitioner has argued that the Petitioner was employed as an Area Sales Incharge, in the office of Tapal Tea (Private) Limited and the nature of duties being performed by him are purely manual and clerical in nature, such he falls within the definition of 'Workman' under the provisions of 2008 Act and no one was subordinate to the Petitioner and the Petitioner was answerable to the General Manager and others Officers. He further argued that there is nothing on record to show that he duties contained in the job description were ever performed by the Petitioner moreover the majority of the duties captioned even in the job description are that of clerical nature.
4. On the other hand, counsel for the Respondents has argued that learned Labour Court No,1 has passed the judgment dated 6.10.2010 after appreciating the record and available evidence; that during cross-examination the Petitioner has admitted about the nature of his duties and job descriptions and that the duties of Petitioner were to check distributor's stock, to pass orders for stock according to market demands, 'to check distributors record, to check distributors' claim/ complaints, to check Sales Units to provide benefits and guidance to distributors' sales force, to manage distributors' sales of tea, to develop good relationship with market, to develop new and old areas etc. He argued that nature of duties as mentioned in the Exhibit-R/1, are Managerial or Supervisory in its nature, therefore, the Petitioner do not fall within the definition of a "Workman".
Learned counsel has further argued that the Petitioner after dismissal of his case from the Labour Court has assailed the same before the learned Punjab Labour Appellate Tribunal by way of filing appeal, but after hearing both the parties, the learned Appellate Court, observed that duties and responsibilities and entitlement application produced as Ex.R/1 and Ex.R/2 show that pith and substance of the duties of the Petitioner was Supervisory, Managerial and Directional. It was observed that Petitioner was Senior Sales Officer of the Respondent Company and even before joining Tapal he was virtually a Sales Promotion Officer in Pakistan Tobacco Company. He further argued that concurrent findings of facts cannot be interfered and/or reversed unless a question of public importance is raised by the Petitioner. It is settled law that concurrent findings are not interfered by the Superior Judiciary and that too under constitutional jurisdiction. In support of his contentions, he has placed reliance upon Dilshad Khan Lodhi v. Allied Bank of Pakistan and others (2007 PLC 41), A.D. Abu Baker Weaving v. Banaras Khan (2007 PLC 59), Muslim Commercial Bank v.
Shamsul Aulia (2007 PLC 671) and Shaukat and others v. Allied Bank of Pakistan (MLR 2007 (Labour)
86). He relied on Nastr Jamal Qureshi v. Sindh Labour Appellate Tribunal and another (2005 SCM R 1049), wherein it has been held that:- "Petitioner was serving as Sales Representative; selling required imagination, application of mind and know-how of the things offered for sale to the customers who were expected to buy the products offered for sale. While making sale, Sales Representative could also undertake some incidental manual work, but by doing such small manual work connected with sale of product, his status could not be change nor for that reason he could be regarded as workman as his job was to sell the products for which he had to use faculty of his mind and wisdom and not only manual or clerical work. As Appointment order had spelled out in details of the terms and conditions on which appointment of petitioner was made. If intention was to induct petitioner as a workman, it was not necessary at all to issue such detailed appointment order the Appointment of petitioner being of contractual nature of master and servant, it was necessary to spell out the details of terms and conditions on basis of which the appointment was made the Labour Appellate Tribunal and High Court had rightly held that petitioner was not workman and his grievance petition was not competent."
' He further relied on Sahibzada K.A.K. Afridi v. Allied Engineering and Services Ltd. Through Managing Director and others (2014 PLC 178) Syed Matloob Hassan v. Brooke Bond Pakistan Limited Lahore (1992 SCM R 227), Rana Mukhtar Ahmad v. Punjab Labour Appellate Tribunal and 2 others (PLD 1992 SC 118), General Manager, Hotel Intercontinental, Lahore and another (PLD 1986 SC 103), Muhammad Younas v. Punjab Labour Appellate Tribunal, Lahore and 3 others (2014 PLC 260) and Athar Ali v. Punjab Labour Appellate Tribunal through Chairman and others (2014 PLC 4).
5. Arguments heard and record.
6. The basic and precise question to be determined by this Court is that whether the job description of the Petitioner and duties assigned to him are of manual or clerical in nature and whether the duties performed by him falls within the ambit of "workman". From the perusal of record it reveals that nature of duty of the Petitioner as supervisory and managerial and he does not fall within the definition of "workman". The definition of word "workman" has also been defined in clause (i) of section 2 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 which indicates that person is a workman if he is employed in an industrial or commercial establishment or doing any skilled or unskilled, manual or clerical work for hire or reward. Para-2 of Ex.R-1 describes the description and responsibility of the Petitioner, which have been admitted by the Petitioner during his cross-examination as PW-1. In case the duties of an employee predominantly involved clerical or manual work, he would be regarded as "workman", but from the duties assigned to the Petitioner as per para.2 of Ex.R-1, the same are rather ministerial and administrative in nature and are not predominantly of clerical or manual work in nature. The Court has examined Ex.R-1, which the Petitioner has signed on 16.05.2001. The nature of duty of the Petitioner was to check the distributor's stock, order for the stock through market demands, to check the distributor's record, to check the distributor's claims/complaints, to check the sales unit, to provide benefit and guidance to distributor's sales force, to manage the distributors sale of tea, develop good relationship with the market, to develop new and old areas etc. It is observed that all the duties mentioned in Ex.R.I cannot be said to be clerical or manual rather the same are managerial and supervisory in its nature, therefore, the job mentioned in the Appointment letter of the Petitioner itself speaks that he was appointed as Sales Officer in the Management Cadre so his duties were of supervisory in nature, therefore, he does not fall within the definition of word "workman".
7. Recently, the Hon'ble Supreme Court in case titled National Bank of Pakistan v. Anwar Shah, (2015 SCM R 434) had held that:- "the 'worker' and the 'workman' defined in the Act mean person not falling within the definition of 'employer' who is employed as a supervisor or as an apprentice but does not include a person who is employed mainly in managerial or administrative capacity. On the other hand, the 'employer' as defined in the Act includes a person who is proprietor, director, manager, secretary, agent or officer or person concerned with the management of the affairs of the establishment. The term 'officer' is specifically mentioned in the definition of term 'employer'. However, as has been noted from the case-law cited by the learned counsel for the parties, the Courts have not considered the designation of a person to be a factor determining his status of employment in an establishment to be that of an officer or a workman rather the Court has always considered the nature of duties and functions of a person to be the factor which will determine his status as to whether he is a workman or not."
' Further the Hon'ble Supreme Court of Pakistan in National Bank of Pakistan v. Punjab Labour Court No, 5, Faisalabad (1993 SCM R 672), held:- "that the designation per se is not determinative of a person being a workman rather the nature of duties and function determine his status and the burden is on him to establish that he is a workman. As, the Officer Grade-II failed to discharge his burden, he was held not to be a 'workman' and his grievance petition was dismissed. The ratio of this case and also of the other cases that have been relied upon by the learned counsel for the parties is that the person who approaches a Labour Court-for redressal of his grievance claiming himself to be a workman and such status of workman being denied by the employer, it becomes a bounden duty of a person who approaches the Labour forum to demonstrate through evidence that his nature of duties and functions were that of a workman and not that of a managerial or administrative capacity and that he was not an employer. Unless such categorical evidence is led by him, he will not be considered to be a workman and his grievance petition will not be maintainable before the Labour forum. It, therefore, implies that the officer cannot be assumed to be workmen nor such can be declared on mere asking. The argument that officers Grade-I to III are performing supervisory function in itself means that this has to be established by evidence. In this view of the matter, on a solitary claim of the union no blanket declaration can be given that the Officers Grade-I to III in the establishment of NBP are workmen."
8. The test laid down by the Courts to see whether person is a workman or not, it is not the job designation which is material but the nature of duty that is performed by the person concerned. In this regard reliance is placed on the case titled Sadiq Ali Khan v. Punjab Labour Appellate Tribunal and 2 others (PLD 1994 SC 273) in which it has been held as under:--- "Case-law covering contentions mentioned above, requires that onus is on the workman to show that he is so within the meaning of labour laws and that onus must be discharged by leading sufficient evidence. While evaluating the evidence pith and substance of duties should be considered and not the designation. Even salary is not of much relevance. To answer the contentions much depends on the evidence produced in that case and facts of each case are different from another."
' In the case titled Ganga R. Madhaani v. Standard Bank Limited and others (1985 SCM R 1511) it has been held as follows:--- "It would, thus, be noticed that in determining the status of an employee, i,e,, deciding as to whether or not he is a 'workman', what is to be seen is the overall nature of the duties assigned to the person in question and the main or primary functions that he is required to perform and not the work that he might have to do incidentally in the course of performance of his normal duties because even a person employed at the highest managerial or supervisory level has, sometimes, to perform functions or do some work which may be termed as 'manual' or 'clerical'. "
In view of the evidence and the judgments of the Supreme Court relied above, it is evident that the Petitioner was not a workman because he employed as Area Sales Incharge with the Respondent No,3, he signed his nature of duties (Exh.R-1), which were managerial and supervisory and the Petitioner admitted the same during his cross-examination, hence the Labour Court dismissed his Petition, which was upheld by the Appellate Tribunal by rightly holding the Duties and Responsibilities and Entitlement Application produced as Exs.R-1 and R-2 show that the pith and substance of the duties of the Petitioner was supervisory, managerial and directional. Also as held by the Hon'ble Supreme Court in Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees Union, Dacca and others (PLD 1961 SC 403), that the work of salesman is wholly of different category from manual work or clerical work and salesman does not therefore, fall within the definition of workman. This judgment was relied by the Hon'ble Supreme in the case of Nasir Jamal supra.
9. In view of the above, learned counsel for the Petitioner has failed to point out any illegality and irregularity in the impugned judgments warranting interference by this Court in its constitutional jurisdiction. Writ petition being devoid of merit is hereby dismissed.