' NASIR ASLAM ZAHID, J.-Petitioner was taken in service by Khyber Tobacco Company Limited (respondent No, 3) in 1964. Initially he was designated as "marketing supervisor" but later on his designation was changed to "marketing representative". By order, dated 16th December, 1978 of respondent No, 3 company, the petitioner was dismissed from service. The said order of dismissal shows that it was passed under Standing Orders 15 (3) (a) and 15 (3) (h) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It may be observed that prior to the passing of the dismissal order, respondent No, 3 had followed the procedure provided under the Standing Orders Ordinance of 1968. Being aggrieved by the dismissal order, the petitioner served a grievance notice upon respondent No, 3 in terms of section 25-A (i) of the Industrial Relations Ordinance, 1969 but as relief was not granted, the petitioner filed an application under section 25-A (4) of I. R.
0., 1969 before the Labour Court No, VI, Hyderabad. Respondent No, 3 filed a reply statement and amongst various legal objections, one of the objections taken was that the petitioner was employed in a supervisory capacity in relation to the carrying out of sales promotion work pertaining to the products of the company and as such he was not a workman. On the basis of the documents filed by the parties, Labour Court No, VI, Hyderabad (respondent No, 2 herein) by order, dated 21st July, 1979 upheld the preliminary objection raised by the respondent No, 3 company and decided that the petitioner was not a workman. The application under section 25 (4) of the petitioner was accordingly dismissed. The petitioner filed an appeal before the Sind Labour Appellate Tribunal (respondent No, 1 herein), but by order, dated 8th September, 1979, the learned Tribunal upheld the decision of the Labour Court and dismissed the appeal. The orders of the Labour Court and the Labour Appellate Tribunal holding that the petitioner was not a workman have been impugned in the present Constitutional Petition. We have heard Mr. Obaidur Rehman, learned counsel for the petitioner, and Mr. Fazle Ghani Khan, learned counsel for respondent No, 3.
2. Learned counsel for the petitioner raised the following contentions in support of the present Constitutional Petition :-
(a) No oral evidence had been recorded by the Labour Court for the purposes of finding out what were the exact duties and responsibilities of the petitioner as in employee of the respondent No, 3 company and reliance was placed only on documents filed by the parties and in this way the petitioner has been "prejudiced. According to the learned counsel, in the facts and circumstances of the case, for deciding the question whether the petitioner was workman or not, it was necessary for the Labour Court to record oral evidence.
(b) In this case the burden of proof was on respondent No, 3, the employer, to establish that the petitioner was not a workman as proceedings taken by the respondent No, 3 against the petitioner under the provisions of the Standing Orders Ordinance of 1968 which culminated in the dismissal order, dated 16th December, 1978 are clear on the point that respondent No, 3 itself considered and treated the petitioner was a workman. Reliance was also placed by the learned counsel on various documents which shows that the petitioner had been made entitled to old age benefit and benefits under the worker's participation fund, workers education of children fund, Workers Group Insurance Scheme, and to statutory bonus and other facilities which are only available to a workman. According to the learned counsel, throughout his service, right up to his dismissal on 16th December, 1978. The petitioner had been treated as a workman by the respondent No,
3. In these circumstances, it was contended that the initial burden of an applicant employee in an application under section 25 (a) of I. R.
0., 1969 to establish that he is a workman had shifted to respondent No, 3 and this burden on the basis of documents filed before the Labour Court had not been discharged by the respondent No,
3. Was lastly argued that even otherwise, on the documents filed before the Labour Court, it was established that the petitioner was a workman and that it was not proved that the petitioner was working in a supervisory capacity or was discharging managerial or administrative functions.
3. As regards the first contention raised on behalf of the petitioner it is apparent that no request was made before the Labour Court that for purposes of deciding the preliminary objections oral evidence b recorded. This is an admitted position that no application was made on behalf of the petitioner to the Labour Court in this behalf. It follows that both the petitioner as well as respondent No, 3 relied upon pleadings and documents filed by them and left it to the Labour Court t decide the preliminary objection on the basis of pleadings and documents. Further we find that in the memo. Of appeal filed by the petitioner before the learned Labour Appellate Tribunal neither any grievance is made nor any ground has been taken that oral evidence had not been recorded or that the preliminary objection could not have been 'decided without recording oral evidence.
Paragraphs 4 to 8 of the memo. Of appeal filed by the petitioner before the Tribunal are relevant in this regard. According to these paragraphs, even the petitioner's position was that a proper hearing had been granted by the Labour Court after giving adequate opportunity to the parties to file their pleadings supported by documents. In these circumstances we find no merit in the contention raised on behalf of the petitioner that oral evidence had not been recorded by the Labour Court. ##TEl##
4. As regards the second contention, it may be observed that on the question as to what were the duties and functions of the petitioner as a marketing representative of respondent No, 3, both Mr. Obaidur Rehman as well as Mr. Fazle Ghani Khan have relied upon Annexure 'C' to the memo. Of the present petition which is a document titled "Job Description Marketing Representatives". There are 27 duties/jobs assigned to the marketing representative, according to this document. In fact this was a document filed by the petitioner and it has been accepted by Mr. Fazle Gbani Khan as a document describing correctly the duties and responsibilities of the petitioner. As the question about the status of the petitioner had to be decided on the basis of this admitted document, in our view the contention about the burden of proof in this case had lost its importance. No doubt by treating the petitioner as a workman throughout his service career by respondent No, 3 right up to the dismissal order, dated 16th February, 1978 with the order of dismissal also purportedly having been taken under the provisions of the Standing Orders Ordinance, 1968, the burden of proof had shifted to the respondent No, 2, the employer, but as all the documents on which reliance was placed by the two parties bad been placed on record before the Labour Court, as observed earlier, the question of burden of proof no longer remained material. On the basis of the documents on record it had to be decided whether the petitioner was a workman or not. Further this enquiry had also been narrowed as both the parties relied upon the same document which gives the job description of the petitioner as a marketing representative of respondent No,
3. If the petitioner was not a workman and not entitled to relief on account of dismissal from the service under the relevant law, the more fact that be had been treated as a workman by the respondent No, 3 could not convert his status of non-workman into a workman. We are accordingly of the view that the decision of this petition depends upon interpretation of the admitted document specifying the duties and responsibilities assigned to the petitioner as marketing representative of the respondent No, 3.
5. On merits, it was argued by the learned counsel for the petitioner that the documents filed before the Labour Court including the document entitled "Job Description/Marketing Representative" had established that the petitioner was a workman. Here we may observe that the definition of "workman" given in section 2 (1) of the Standing Orders Ordinance, 1968 is different from the definition of "workman" given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969.
The definition of "workman" has been extended in the Industrial Relations Ordinance, 1969 to include several other categories of employees who are not covered by the definition in the Standing Orders Ordinance, 1968. On a question from us, the two learned counsel stated that in this petition the definition of workman that would be applicable is the definition given in section 2 (i) of the Standing Orders Ordinance, 1968 and not the definition in section 2(xxviii) of I.R.O., 1969. We accordingly proceed to consider the status of the petitioner, that is, whether he was a workman or not according to the definition contained in section 2 (I) of the Standing Orders Ordinance, 1968.
6. Definition of workman given in section 2(i) of the West Pakistan (Standing Orders) Ordinance, 1968, is as follows : "Workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
' The document on which both the parties rely and which gives the job description of the petitioner reads as follows : "Job description-marketing representative.-(1) To remain out in the field involving in active market work for a minimum of 18 days in a month.
(2) To check Distributor's records, and take action particularly in respect of ordering and remittances.
(3) To maintain close contact with wholesalers and retailers in the market.
(4) To review E.C.D. And revise in accordance with the latest trends in the market.
(5) To submit recommendations for O.C.As./I.C.As. As and when necessary.
(6) To ensure stock condition and rotation at the distributors, wholesalers, and retailers levels.
(7) To check quality of our products and send samples to Mardan as and when faults are brought to your notice.
(8) To ensure proper display of our products at selling points.
(9) To destroy damaged stocks within the sanctioned limits and send D & D report to Mardan.
Advise Marketing Officer of the quality of damaged stocks beyond your sanctioned limits.
(10) To keep a close watch on day-to-day developments in the market and report immediately to Mardan/Marketing Officer particularly in case of new introductions/price/packing changes of competitive brands on prescribed Forms.
(11) To submit report on each market visited and a monthly market report for the Territory to Marketing Officer with a copy to Mardan, on prescribed Forms.
(12) To submit competitive estimates on prescribed Form to Mardan with copy to Marketing Officer.
(13) To prepare agreed sales targets for the Distributors and assist them in achieving them.
(14) To handle and participate in the sales promotion activities during special campaigns/Exhibitions/Melas, new brand launches and in the absence of a member of S.P.V.
(15) To assist Marketing Officer in planning sales promotion in respective territory.
(16) To report to Marketing Officer on the performance of S.P.V./ M.F.U. Teams in their territory and, if necessary, direct their activities in case of changing requirements of the market.
(17) To ensure proper utilization of Sales Promotion Allowance (S.P.A.) and bring instances of irregularities to the notice of Marketing Officer.
(18) To check at random the exhibition of our Cinema commercial and report irregularities, if any, to Marketing Department, Mardan.
(19) To maintain cordial relations with the office-bearers of the Trade Union.
(20) To conduct consumer survey as and when required.
(21) To submit recommendations to Marketing Officer for appointment of new distributors.
(22) To assist when necessary in obtaining permission for the use of Loudspeakers for S.P.V.
Teams/film shows in your territory.
(23) To organise despatches from the godown as and when required.
(24) To maintain upto date records of the following :
(a) Sales/deliveries of our and competitive brands by territory, by markets, by brands and by categories.
(b) Correspondence between you and Marketing Officer and Marketing Department, Mardan.
(25) To assist distributors in organizing equitable distribution of our products during shortages.
(26) To commit and achieve agreed territory forecast/targets.
(27) While Incharge of the M.F.U., to organise Film Shows and usual promotional activities."
' The learned Labour Appellate Tribunal in its decision, dated 8th September, 1979 has observed that the main duty of the petitioner was to promote the sale of the products of respondent No, 3 company and for this purpose he was required to tour in various areas of the Province and to contact the sales agents, distributors and other persons dealing with the respondent-Company and that there was nothing to show that the petitioner was required to perform mainly manual or clerical duties, whether skilled or unskilled. It was further observed by the learned Appellate Tribunal that whatever clerical or manual duties he performed or was required to perform in the course of his duties were incidental to his duties of promoting the sale of the products of the respondent No, 3 company. Referring to the job description of the Marketing Representative filed by the petitioner before the Labour Court it was observed by the Tribunal that this also supported the view taken by the Tribunal and it clearly indicated that the duties of the petitioner were mainly to take mearures for promoting the sales of the products of the respondent No, 3 company and for this purpose to contact the distributors, wholesalers and retailers and that the reports he was required to submit were also in this connection.
7. The view taken by the learned Labour Appellate Tribunal that the main function of the petitioner was to promote the sales of the products of the respondent No, 3 company and that whatever clerical or manual duties he had to preform were incidental to the said main function, is supported by the document giving the job description of the petitioner, which document was filed by the petitioner before the Labour Court and in fact reliance was placed upon the same by him. The contention of learned counsel for the petitioner that this document shows that the main work of the petitioner was clerical or manual cannot be accepted. In our view also the job description or the petitioner indicates that the manual or clerical work that he was required to perform was incidental to his main job of promoting the sales of the products of respondent No, 3 company. It was argued by the learned counsel for the petitioner that it has not been established that any sales agents were working under the petitioner. In our view when the definition of workman under section 2(i) of the Standing Orders Ordinance, 1968, is under consideration the fact that no sales agents were working under the petitioner is not relevant. What is relevant is whether main work that he is required to do is manual or clerical.
8. In our opinion the view taken by the Labour Appellate Tribunal that the appellant was not a workman under the definition contained in section 2(i) of the Standing Orders Ordinance, 1968 is not liable to interference, Constitutional Petition No, D-1759/79 is accordingly dismissed but with no order as to costs.