' The appellant, on 26th July, 1980, filed a grievance petition before the learned VIth Labour Court at Hyderabad against the first respondents and the second respondents to the effect that he was employed and working as Sales Representative with the first respondents, Messrs Kohinoor Battery Manufacturers Limited, since 15th April, 1971, but was subsequently transferred and posted with the Central Agencies, Shahi Bazar, Hyderabad, the second respondents herein, who illegally terminated his services by order, dated 31st May, 1980. The appellant in his grievance petition prayed that the orders of his termination of services be set aside and he be re-instated in service with full back benefits. The first respondents resisted the grievance petition of the appellant on the ground that there was no relationship of 'employer and employee' between the appellant and the first respondents and accordingly the Court had no jurisdiction to adjudicate the dispute. The second respondents, while admitting that the appellant was their employee and that they had terminated his services, contended that their establishment was neither a commercial nor industrial establishment for the purposes of the Standing Orders, as it was registered as a shop, and that the grievance petition of the appellant was further not maintainable as against them since no proper grievance notice was served upon them. The learned Labour Court, by its decision, given on 15th February, 1981, has dismissed the appellant's grievance petition as against respondent No, 1, on the ground that the appellant was not the employee of the first respondents but of the second respondents, and as against the respondents, on the ground that the Standing Orders are not applicable to the establishment of the second respondents as the number of employees therein is less than 20. Aggrieved by this decision, the appellant has come up in appeal to this Tribunal.
2. I have heard Mr. Wasiullah Qureshi, the learned counsel for the appellant, Mr. M. Bashir Awan for the first respondents and Mr. Ibrahim Soomro for the second respondents.
3. The main issue which falls to be considered in the instant case is whether the appellant is the employee of the first respondents or the second respondents. In support of his contention that the appellant was the employee of the first respondents and not of the second respondents, Mr. Wasiullah Qureshi relied upon, firstly, the oral testimony of the appellant to the effect that he was the employee of the first respondents and received wages from the first respondents, secondly the 4 vouchers bills which according to him indicated that the wages of the appellant were paid by the first respondents, and thirdly, the objections by Mehboob Khan Ghori, the Managing Partner of the second respondents, made to the Registrar, Trade Unions to the effect that the appellant was not their employee. As regards the oral testimony of the appellant, although he has claimed that he was employed with the first respondents since 15th April, 1971, he has failed to produce his letter of appointment, ticket or order of his transfer to the Central Agencies, Hyderabad. He has tried to explain away the non-production of these documents by stating that his house had collapsed in 1978, and the orders of his appointment and other documents were destroyed and lost in the house collapse. However, there is no evidence apart from the bare word of the appellant to show that his house had collapsed in 1978, and the said documents were lost or destroyed in the said collapse of his house, Furthermore the oral evidence of the appellant in this behalf_is_counter balanced by the strong denial on the part of the first respondents that the appellant was ever their employee as also the admission of the second respondents that he was their employee. The second piece` of evidence relied upon, by Mr. Wasiullah Qureshi on this point are the 4 vouchers, Exhs. A/6 to A/9, appearing at pages 39 to 45 of the record of the learned Labour Court. These vouchers are headed "Payment of Bills" and are in respect of the salary of the appellant for the months of March 1973, February 1980, March 1980 and December 1979, respectively. Although the voucher Exh. A/6 is addressed to the appellant by name, the rest of the 3 vouchers are addressed to the second respondents. Even the voucher Exh. A/6, though it is addressed to the appellant, gives the address of Central Agencies Shahi Bazar, Hyderabad, namely, the second respondents. In order to ascertain the circumstances in which these 4 vouchers were issued and particularly to find out why the first voucher was addressed to the appellant by name, while the other vouchers were sent to the second respondents, the Personnel Manager of the first respondents, S. A. Salem was examined by this Tribunal. It may be mentioned that no objection was raised by any party to the said witness being examined at this stage. The witness has categorically denied that the appellant was ever employed by the first respondents or that he was transferred by them to the second respondents.
He admitted that the 4 vouchers Exhs. AKto A/9 were issued by the first respondents, but explained that the arrangement of the first respondents with their Distributors is. That if any staff is employed by the Distributors in connection with the distribution work of the products of the Company, the first respondents reimburse to the Distributors the emoluments or the charges of that staff upon 'bills being submitted by the Distributors and it was in accordance with that practice that the vouchers Exhs. A/6 to A/9 were prepared and seat to the Central Agencies, Hyderabad, the second respondents. The witness further explained that although the first respondents do not deal directly with the employees of the Distributors, though the Distributors are reimbursed by them on account of the emoluments of such employees, the voucher Exhs. A/6, was inadvertently sent by the Accounts Department to the appellant, though on the address of the second respondents, and on the mistake being discovered, it was rectified in the subsequent vouchers which were sent to the second respondents, as the appellant was their employee. The mere fact the first respondents were reimbursing the second respondents for t wages paid to the appellant does not make the appellant an employee of the first respondents, as there is no evidence to show that the first respondents exercise any control or supervise his work or that he was ever employed by them. It was held by a learned single Judge of the Karachi High Court in the case of Pakistan Burmah-Shell Limited v. Sind Labour Court No, IV (1), that the employees of the contractors running on lease the Petrol Pumps of Pakistan Burmah-Shell Limited were not the employees of the Pakistan Burmah Shell Limited though the company was reimbursing the contractor the charges of the contractor which included the wages paid to his employees.
4. The third piece of evidence relied upon by Mr. Wasiullah Qureshi in support of his contention that the appellant was the employee of the first respondents is the admission of the Managing Partner of the second respondents that he had entered into correspondence with the Additional Director, Labour Welfare, Hyderabad, disputing the claim that the appellant was their employee. This circumstance, however, does not improve the case of the appellant in regard to his claim that he was the employee of the first respondents as in his evidence before the learned Labour Court, the said Managing Director of the second respondents has frankly conceded the appellant was their employee and in his evidence has gone back upon the objection which he made to the Additional Director, Labour Welfare.
5. Not only has the appellant failed to establish that he was ever the employee of the first respondents, but further from his own letter to the Additional Director, Labour Welfare, Hyderabad, it appears that the stand of the appellant himself originally was that he was the employee of the second respondents, who had terminated his services. In that letter, complaint has been made only against the second respondents and there is no indication whatsoever to suggest that he was an employee of the first respondents. It may further be mentioned that the appellant is said to be the General Secretary of the Hyderabad Agents Employees' Union. He could not be a member or the General Secretary of the said union unless he was the employee of the Agents and not of the company.
6. For all these reasons, I would uphold and would agree with the view of the learned Labour Court that the appellant has failed to establish that he was the employee of the first respondents.
7. The next issue which falls to be considered is whether the appellant can claim re-instatement against the respondents. Although the appellant has filed his grievance petition both against the first as well as the second respondents, his claim both before the learned Labour Court and before this Tribunal is that he is not an employee of the second respondents. As such, on his own showing, the appellant cannot claim relief against the second respondents. The claim of re-instatement against the second respondents is further not maintainable as it appears that no proper grievance notice was served upon them. The grievance notice was given to the first respondents. It is true that a copy of the said notice was sent to the second respondents but it was sent to them only for the purpose of information and not for the purpose of seeking relief. As such, it cannot be considered to be a proper notice to the second respondents. The grievance petition against the second respondents is further not maintainable as it has not been established that the number of employees in their establishment is not less than 20. It has been held by this Tribunal in case of Johnson & Johnson (Pakistan) Limited v. Zubair Ahmad (I), that except in cases where the termination of services had led to or was in consequence of an industrial dispute, a workman can only file a grievance petition against the termination of his services under clause (3) of Standing Order 12 read with section 25-A, I.R.O., and that necessarily implies that he should be a workman within the definition of the Sind Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. It was perhaps a realization of this fact that has induced the appellant to" falsely claim that he was the employee of the first respondents and not of the second respondents. {{FOOT NOTE}}
(1) 1980 PLC 82 {{FOOT NOTE}}
8. The grievance petition of the appellant is further not maintainable as even in his grievance petition, the appellant has stated that he was appointed and employed as Sales Representative, In the case of Sped Zahid Hussain v. Messrs Hoechst (Pakistan) Limited, Karachi (1), this Tribunal relying upon the decision of their Lordships of the Supreme Court in the case of Pakistan Tobacco Campany Limited v. Employees' Union (2), has held that Sales Representatives are not workmen for the purposes of the Standing Orders and consequently are not entitled to file grievanc petitions against termination of services under clause (3) of Standin Order 12. It was, however, contended by Mr. Wasiullah Qureshi that in his evidence before the learned Labour Court, the appellant had asserted that he was also required to perform clerical duties. Aithoug the appellant in his grievance petition has made no such claim, even if I were to accept the word of the appellant that he was also required to do some clerical work, that clerical work would be incidental to the appel lant's main duties as Sales Representative, and as held in the above-mentioned case of Zahid Hussain, would not make him a workman fo the purposes of the Standing Orders.
9. For the reasons discussed by me above, I see no merit in this appeal and would accordingly concur in the decision of the learned Labour Court and would dismiss the appeal. {{FOOT NOTE}}
(1) 1980 PLC 380 (2) PLD 1961 SC 403 {{FOOT NOTE}}