FAKHRUDDIN H. SHAIKH, J.-By this Constitution Petition the petitioner has challenged the order of learned Sind Labour Appellate Tribunal, Karachi dated 4th February, 1977, whereby the order of the Labour Court was set aside and the petitioner .Vas directed to re-instate respondent No. 1 on the post of Medical Representative.
2. Respondent No. I was appointed as Medical Representative by the petitioner by this letter dated 1st October, 1973. One of the conditions of service as contained in this letter was that he will be confirmed after pro--bationary period of three months and that after confirmation one month's prior notice shall be required for termination of service from either side or one month's salary in lieu thereof. In pursuance of the letter, respon--dent No. I continued to work as Medical Representative of the petitioner until 30th January. 1976 on which date his service was terminated by the petitioner by its letter of the same date on the ground that his services were no longer required. -He was advised to collect his legal dues including one month's pay in lieu of notice, from the office of the petitioner. The above letter was received by respondent No, 1 on 2nd February, 1976,
3. Respondent No. 1 did not turn up to collect the dues from the petitioner's office whereupon the dues including one month's salary in lieu of notice, were remitted to him on 19th February. 1976 which were received by him. However in spite of this, respondent No. 1 served grievance notice to the petitioner and thereafter filed an application under section 25-A of the Industrial Relations Ordinance, 1969 (1. R. O.) in Vth Sind Labour Court, Karachi (respondent No. 3). He had pleaded in his petition before respondent No. 3 that termination of his service by the petitioner was illegal and mala fide. The learned Labour Court dismissed the petition of respondent No. I on the ground that he was not a 'workman' within the meaning of section 2(i) of West Pakistan Industrial and Com-- mercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the said Ordinance).
4. This order was challenged by respondent No. I in appeal before respondent No. 2, the Appellate Tribunal. Before the learned Tribunal it was conceded that although respondent No. 1, in the capacity of medical representative or `salesman' of the petitioner, was not 'workman' as defined by the said Ordinance but he was 'workman' as defined by section 2 (xxviii) of the I. R. O. The learned Tribunal accepted the plea of respondent No. I and held that the definition of 'workman' as laid down in the I. R. O. And not the one as laid down in the said Ordinance was applicable, in the case of the respondent. In taking this view the learned Tribunal relied on a decision of Supreme Court in Civil Appeal No. 19 of 1976 (Shahzad Khan v. Labour Court and others) decided on 30th June, 1976 This case was reported later in 1977 SCMR 103.
5. The questions fall for determination in this case. One, whether in the circumstances of this case the definition of 'workman' as laid down in the 1. R. O. Is to be applied to respondent No. 1 or the definition as laid down in the said Ordinance is to lie applied; and two, in either case whether respondent No. 1 is covered by the definition of workman.
6. Mr. Fazle Ghani Khan learned counsel for the petitioner has argued that the respondent No. 1 had filed the petition before the Labour Court to enforce a right guaranteed to him by S. O. 12 of the said Ordinance and, therefore, the definition of 'workman' as laid down in the said Ordinance shall govern his case. It may be stated that the definition of 'workman' as laid down in the I. R. O. Is materially different and wider than the definition laid down in the said Ordinance. According to section 2 (xxviii) to 1. R. O. The term 'workman' includes every person in an establish--ment or industry other than the employer, where as according to section 2(i) of the said Ordinance 'workman' means any person employed in any in--dustrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. It would, therefore, appear that a person may be 'workman' under the I. R. O. But may not be one under the said Ordinance.
7. Mr. Fazle Ghani Khan has referred to several cases in support of his plea that in the present case the definition laid down in the said Ordi--nance is applied to the petitioner because the latter is seeking enforcement of a right which is guaranteed under the said Ordinance. S. O. 12 of the said Ordinance provides that if a 'workman' is discharged or removed from service in contravention of the provisions of the said Ordinance then he shall be entitled to take action in accordance of provisions of section 25-A of the 1. R. O. The fact that action is taken under section 25-A of the I. R. O., shall not entitle the employee to take benefit of the definition of 'workman' as laid down in the I. R. O.
In support of this proposition Mr. F azle Ghani Khan has on a decision of a Division Bench of this Court in the Dentogene Laborato--ries Limited, Karachi v. Sind Labour Appellate Tribunal (1970 PLC 196). In this case service of `salesman' was terminated by the petitioners. The `salesman' claiming to be `workman' took action under section 25-A of the 1. R. O. Before the Labour Court which granted his petition. In appeal the Labour Appellate Tribunal upheld the order whereupon the petitioner challenged the order before this Court. It was held by this Court in the above case that the `salesman' was seeking enforcement of right under the S. O. 15 of the said. Ordinance before the Labour Court and as such the definition of `workman' as 'aid down in the said Ordinance shall be applicable to him and not the definition in the I. R. O. The relevant observations made in the above case about the status of the `salesma n' as a `workman' who was respondent No. 3 in the above case are as under :- "That is, however, not the end of the matter of Mr. Hamid Siddiqui; the learned counsel for the respondent No. 3 contended that the relevant definition to be considered is one under the Industrial Relations Ordinance and not one contained in the Standing Orders Ordinance. The argument is without substance for an application under section 25-A of . Industrial Relations Ordinance is for redress of a grievance arising out of violation of right guaranteed to the workman under a law or an award or a settlement. The right, the violation of which was complained of by the respondent workman was failure to comply with Standing Order No. 15 which was not available to him as he was a salesman and not a workman as defined in the Standing Orders Ordinance. This view finds support in a well-considered decision of this Court reported in PLD 1975 Kar. 279 and in Peshawar decision reported in PLD 1975 Pesh. 240.
8. The same view was taken by a Division Bench of this Court in another case, namely Muhammad Aqil v. Sind Appellate Tribunal (PLD 1978 Kar. 649) in which Fakhruddin G. Ebrahim, J held as under :- "As mentioned above the learned counsel was exclusively relying upon the definition of the expression `employer" and "workman" as appearing in the Industrial Relations Ordinance. 1969 in support of his contention that the petitioner was not an employer but a `workman within the meaning of this Ordinance, It, however, appears to me that the definition of "workman" relevant for our purpose is that contained in the Standing Orders Ordinance for what was sought to be enforced by the petitioner in his application under section 34 of the Industrial Relations Ordinance, was term guaranteed to him under the Standing Orders Ordinance. The definition of the word "workman" in Standing Orders Ordinance is as follows :- "Workman" means any person employed in any industrial or com--mercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
It, will, however, be fair to state that the learned counsel for the petitioner made no attempt to argue that the petitioner case within the aforesaid definition of workman and rightly so for the duties of petitioner enumerated above would clearly excluded him from being a workman for he was not employed to do any skilled or unskilled, manual or manual or clerical work. I have, therefore, no hesitation in holding that the learned Appellate Tribunal rightly came to the conclusion that the petitioner was not a workman as defined in the Standing Orders Ordinance and, therefore, not entitled to its benefits."
Similar view was taken by Lahore High Court in the case of P.
1. A. v. Chairman, Punjab Labour Appellate Tribunal (PLC 1979 Lah. 415). The learned Judge, referring to several decisions on the point in question observed as under :- "The precise question requiring determination is whether it could be inferred in law on the basis of the factual position as given above, that respondent No. 2 was a workman. It is now well established under the authority of the Supreme Court in Brooke Bond (Pakistan) Ltd. v. Conciliator that the definitions of `workers' or `workmen' as given in the Industrial Relations Ordinance and Standing Orders Ordinance are substantially different. The definition of `worker' in the Industrial Relations Ordinance is more comprehensive and it includes all persons other than the employer.
This effect was brought about by an amending Act in 1973. The change made is so radical that though the Supreme Court approved its previous view and a finding of the High Court that a salesman was not a `workman' under the Standing Orders Ordinance, yet their Lord--ships while comparing the two definitions held that a salesman was a workman under the Industrial Relations Ordinance. The discussion is at page 271 of the Judgment referred to above. In the case in hand respondent No. 2, had applied to the Labour Court in respect of his right under S. O. 12(3) of the Standing Orders Ordinance. It is, therefore, the definition under the Standing Orders Ordinance and not that of the Industrial Relations Ordinance that is to be considered. It has also been held in a very well-considered judgment in the case of I. E. Saleh v. International Laboratories Ltd. That is the definition of `workman' as given in Standing Orders Ordinance that applied to a person who is seeking relief under S. O. 12(3) and not the one given in Industrial Relations Ordinance. It may be noted here that his Lordship considered practically the entire case."
9. The learned Tribunal has referred to the case of Shahzad Khan (1976 S .C M R 103) which. Was decided by Supreme Court on 30th June, 1976 in which it was held that a chokidar who was dismissed from service by his employer should be deemed to be a `workman' according to definition laid down in the I. R. O. In the matter of proceedings before the Labour Court under section 25-A. It' was further held that in such cases the employee is to be governed by the definition of `workman' as laid down in the I. R. O. And not the one laid down in the said Ordinance. A different view was, how--ever, taken by the Supreme Court in a latter decision in the case of Brooke Bond (Pakistan) Ltd. v. Conciliator and 6 others (PLD 1976 SC 237) which was decided on 23rd December, 1976. This case related to enforcement of an Arbitration Award under the I. R. O. Hence it was held that a `salesman' who was affect--ed by the award under I. R. O. Was to be governed by the definition of `workman' as laid down in the 1. R. O. According to this definition the `salesman' shall be covered by the term `workman'. But it was also observed with reference to two earlier decisions that a person whose case did not fall under the I. R. O. But who sought to enforce the right under the Industrial Disputes Ordinance, 1959, shall be governed by, the definition of `workman under the Ordinance of 1959 according to which a `salesman' would not fall within the definition of `workman'. The earlier cases to which reference was made by the Supreme Court, were the cases of Pakistan Tobacco Com--pany Employees' Union, Dacca (PLD 1961 SC 403) and Chairman, Brooke Bond Company v. General Secretary Union Karkunane Brooke Bond (PLD 1969 Lah. 717). In another case Brooke Bond (Pakistan), Limited v. Conciliator and 6 others. Muhammad Akram, J.
Made following observation with respect to the relates of a `sales--man' who was seeking remedy under the Industrial Disputes Act, 1947.
"Similarly in the other case of Chairman Brooke Bond (Pakistan) Ltd. I along with my learned brother Muhammad Afzal Cheema, J. As member of the then Division Bench of the High Court, were of the opinion that salesman in this Company was not a "workman" within the meaning of the term in section 2 (n) of the Industrial Disputes Ordinance, 1959. In the case in conclusion we observed :- "In short a salesman in this Company is responsible for the sales and distribution of the tea in his area. No doubt in the process he has to go round mostly on cycle at the cost of the Company but that is not the end in itself. It is merely an incidental part of those main and primary duties. For the manual work involved in carrying the stocks for distribution all over the area he has the services of the vanman under him and he is not there merely to push the van from shop to shop. The clerical work involved in the discharge of his responsibilities in preparing the cash memos. The small column were daily statement of sales and the weekly returns forms but a small part of his duties and are altogether inconsequential in nature. These do not in any way change the complexion of the basic work for which the salesman is employed by the Company."
The definition of the term `workman' in the Industrial Disputes Act, 1947 as well as in the Industrial Disputes Ordinance, 1959 was sub--stantially the same. Workman means any person employed including an apprentice, in any industry to do any skilled or unskilled manual or clerical work- for hire or reward. It was on the basis of this definition that in the two reported cases discussed above it was held that a salesman was not a workman as from the nature of his duties it appeared that he was not engaged in manual or clerical work. But this definition was not adopted in the Industrial Relations Ordinance, 1969."
10. In view of the above authorities it is clear that the learned Appellate Tribunal on the appeal filed by the respondent No. I, had not correctly applied the latest law applicable to an employee in respect of his status as a `workman' and reliance on the decision of Shahzad Khan's case was misplaced. We are of the view that the case of respondent No. I shall be determined with reference to the definition of `workman' as given in the said Ordinance and not on the one as laid down in the I. R. O. It may be observed here that the definition of the `workman' as laid down in the Industrial Disputes Ordinance, 1959 is almost identical with the definition of `workman as laid down in section 2 (i) of the said- Ordinance. Hence the law laid down by the Supreme Court .In the case of Pakistan Tobaco Company shall be applicable to the case of respondent No. 1 who as Medical Representative or the `salesman' of the petitioner company shall not fall within the definition of `workman' under the said Ordinance.
11. The question whether Medical Representative shall be deemed to be `workman' under the said Ordinance was also considered by this Court in the case of I. E. Saleh v. M/s. International Laboratories Ltd. Karachi (PLD 1975 Kar. 270). In the above case Abdul Hayee Kuraishi, J. (as he then was) observed as under :- "A salesman, for the nature of duties he performs, for the indepen--dence of action which he obtains and for the initiative and imagi--nation that he exercises, is not doing 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 a specialized nature designed to achieve the end of promotion sales. Entering in competitive field with other producers and finding best available markets. Such type of labour cannot be called manual or clerical.
The common thread underlying definition of `workman' in labour statutes is that he should be a person who should be engaged in doing skilled or unskilled, manual or clerical work.
For enforcement of rights of workmen guaranteed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, the definition of workman in the statute has to be followed.
A salesman employed in a commercial concern cannot be termed to be a `workman' so as to have the protection of the Standing Orders Contained in the schedule to the West Pakistan Industrial and Com--mercial Employment (Standing Orders) Ordinance, 1968." ---I am fortified in this view by the number of authorities. In the case of Pakistan Tobacco Co. Ltd. v.
Employees' Union their Lordships of the Supreme Court held that a `salesman' was not `workman'. In that case it was observed by Cornelius, C. J. As follows :- "I consider that it admits of no doubt, that persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company, are not admissible either to the group of workers whose manual labour contributes to that products or those of the clerical establishment who perform the proper work connected with the operations of the company. The work of salesman is in a wholly different category from manual work or clerical work, and I feel no hesitation in agreeing with the decision of the Tribunal upon the point namely, that salesmen do not fall within the definition of 'workman'."
12. All these cases in which status of a `salesman' with reference to definition of `workman' was considered, were the cases in which the employees bad sought remedy under the said Ordinance and not under any provision of the I. .. O. Section 25-A of the I. R. O. Only provide remedy for an employee whose rights under the said Ordinance have been B contravened. He shall be liable to be governed of the definition of `workman' under the law under which his right is guaranteed and which right is sought to be enforced through a Labour Court.
13. In the present case respondent Muhammad Moinul Islam was removed from the service in terms of S. O. 12 (3). 'His case was that this action was male fide and in contravention of S. O. 12 (3).
It was, therefore, a right conferred upon him. By S. O. 12 which he wanted to enforce through the Labour Court. The burden was upon him to. Prove that he was a workman under that law, that is, the said Ordinance. It has been held in several cases referred to above that a `salesman' or for that matter a Medical Representative is neither skilled nor unskilled worker. His job is Not clerical either.
No manual or clerical work is part of his main duty. If he might by doing some manual' or clerical work by way of keeping account etc., it would only be of an incidental nature and would not form part of his main business as held in the various decisions preferred to above.
14. In view of this legal position of the order of the Appellate Tribunal (respondent No. 2) cannot be maintained as it is contrary to the law laid down by the higher Courts.
15. However, as we have held that the respondent No. 1 was seeking remedy for contravention of a right under S. O. 12 of the said Ordinance and that as under said Ordinance he was not covered by definition of `workman', hence the Appellate Tribunal was wrong in accepting the grievance petition and ordering his re-instatement. Consequently we allow this writ petition with no order as to cost and set aside the order of the Labour Court.