' AJMAL MIAN, C.J.--This petition is directed against the orders dated 27-2-1978 and dated 20-8- 1979 passed by respondents Nos. 2 and 3 respectively.
2. The brief facts leading to the filing of the above petition are that the petitioner was employed as "Technical Sales Representative" by M/s. Hoechst Pharmaceutical Company Limited, a sister organization of respondent No, 1, under a letter dated 14-3-1973. The petitioner's services were transferred to respondent No, 1 on the same terms and conditions with minor modification under Transfer Order dated 26-3-1973. It is the case of the petitioner that he was performing his duties diligently, honestly, efficiently and faithfully but Mr. Klein, Manager, Industrial Division developed a personal dislike against the petitioner. He asked him on 13-9-1976 to resign to which the petitioner did not agree. Thereafter, petitioner's services were terminated without assigning any reason on 25-11-1976 and the petitioner was asked to collect his dues including the salary for the notice period. The petitioner being aggrieved by the above order, after serving a notice under section 25- A of the I.R.O. Filed an application under the above section 25-A of the I.R.O., namely, Application No, 21 of 1977 before the Presiding Officer, Vth Labour Court, Karachi, respondent No, 2, which application was resisted by respondent No, 1, inter alia, on the ground that the petitioner was not a workman within the definition of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, (hereinafter referred to as the Standing Orders). In support of the application the petitioner examined himself and one or two witnesses. However, the learned Labour Court after hearing the parties by the impugned order dated 27-2-1978 held that the petitioner was not workman in terms of section 2(i) of the Standing Orders. The petitioner being aggrieved by the above order filed Appeal No, KAR-109 of 1978, which was dismissed by the learned Sind Labour Appellate Tribunal, respondent No, 3 by its order dated 20-8-1979. The petitioner being aggrieved by the above two orders has filed the present petition.
3. In support of the above petition, Mr. SA. Sarwana, learned counsel for the petitioner has urged as follows:
(i) That the two Courts below erred in placing narrow construction on section 2(i) of the Standing Orders as it being a Beneficiary enactment should have been liberally construed as to enlarge its scope;
(ii) That since the petitioner is not covered by the definition of employer given in clause (c) of section 2 of the Standing Orders, he was a workman in terms of clause (i) of section 2 of the Standing Orders;
(iii) That it is not the designation which is the determining factor whether a person is a workman or not a workman but it is the nature of the work/duties involved which arc material and since the petitioner was doing manual, clerical and skilled work he was covered by the definition of workman given in clause (i) of section 2 of the Standing Orders.
' On the other hand Mr. Fatchali W. Vellani assisted by Mr. Badaruddin Vellani has submitted as follows:
(i) That there is a concurrent finding of the two competent forums on the point that the petitioner is not a workman in terms of clause (i) of section 2 of the Standing Orders which is based on evidence on record, this Court cannot in exercise of Constitutional jurisdiction interfere with the above concurrent finding.
(ii) The burden of proof that he was a workman in terms of clause (i) of Section 2 of the Standing Orders was on the petitioner which he failed to discharge.
(iii) That the definition given in Section 2 (xxviii) of the I.R.O. Cannot be pressed into service While deciding the question whether the petitioner falls within the definition of clause (i) of Section 2 of the Standing Orders.
(iv) That the consistent view of the superior Courts has been that a sales representative is not a workman in terms of the definition given in clause (i) of Section 2 of the Standing Orders and the other enactments pari materia with the Standing Orders.
4. Adverting to the first submission of Mr.S.A.Sarwana that the two Courts below erred in placing narrow construction to Section 2(i) of the Standing Orders as it being a beneficiary enactment should have been liberally construed as to enlarge its scope, it may be observed that in furtherance of his above submission he has referred to the following cases:
(i) Marker Employees' Union v. Marker Alkaloids Ltd. And others, 1976 SCM R 82,
(ii) Divisional Superintendent, P.W.R., Karachi and others v. Bashir Ahmad and others, PLD 1973 S.0 589,
(iii) Kohinoor Chemical Co. Ltd. And another v. Sind Employees' Social Security. Institution and another, PLD 1977 S.C. 197, and
(iv) Board of Management of Trim Joint District School and' Kelly, 1914 Appeal Cases 667.
' In the first three cases the Hon'ble Supreme Court of Pakistan while construing the provisions of the Payment of Wages Act, and the Social Security Ordinance respectively have inter alia observed that the beneficial enactments are to be given liberal construction, whereas in the last case the House of Lords while construing the provisions of Workmen's Compensation Act, 1906 held that a premeditated assault arising out of and in course of the employment of a workman was covered by the term accident by putting liberal construction to the word 'accident'.
In our view, there cannot be any dispute to the above legal proposition propounded by the Humble Supreme Court and the Houses of Lords as it is by now a well-settled principle of interpretation of statutes that the Court is to place liberal construction on beneficial enactments in favour of the persons for whose benefit the enactments have been enacted but it does not mean that if a person is not covered by a definition of a particular beneficial enactment the Court should hold that he is covered. It is only when two views are possible, one in favour of holding that a person is covered by the definition of a particular beneficial statute and the other that he is not covered, the former is to be preferred and not when two views are not susceptible to the facts of a particular case.
5. As regards the second submission of Mr. Sarwana that since the petitioner is not covered by the definition of employer given in clause (c) of section 2 of the Standing Orders, he is covered by the definition of clause (i) of section 2 of the Standing Orders, it may be observed that in furtherance of his above submission he has referred to the definitions of the 'employer' and `workman' given in the above clauses' (c) and (i) of the Standing Orders, which read as follows: "2(c) 'employer' means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes:-
(i) in a factory, any person named under clause (c) of subsection (1) of Section 9 of the Factories Act, 1934 (XXV of 1934), as manager of the factory;
(ii) in any industrial establishment under the control of any department of the Federal or any Provincial Government the authority appointed by such Government in this behalf, or where no such authority is so appointed, the head of the department;
(iii) in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment;"
"2(i) '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."
A perusal of the above clauses indicates that the definition of 'workman' does not provide that a person who is not covered by the definition of employer given in clause (c) will necessarily be a workman under clause (i). The latter clause provides a definition independently without referring to the definition in clause (c) of the 'employer' by providing that 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. If the contention of Mr.Sarwana would have been. Correct, clause (i) would have provided that workman means other than an employer as defined in clause (c) of the Standing Orders, which is not the case. However, Mr. Sarwana has referred to the case of Dost Muhammad 'Cotton Mills Ltd. v. Muhammad Abdul Ghani and First Sind Labour Court, reported in PLD 1975 Kar.25, in which Abdul Hayee Kureshi, J. (as he then was), at page 29 while dealing with clause (i) of Section 2 of Standing Orders, observed as follows: "In distinction it would be of benefit to consider the above provision along with the definition of 'employer' in the Ordinance because in any industrial establishment every person is almost either an 'employer' or a `workman'. 'Employer' has been defined in Section 2(c) of the Ordinance as follows."
' Mr.Sarwana has also invited our attention to the fact that against the above judgment a petition for leave was filed which was declined and that the order declining the petition for leave is reported by the name of Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another, 1979 SCMR 304. It has, therefore, been contended by him that since the above judgment of the learned Single Judge has been confirmed by the Hon'ble Supreme Court, the law is that if a person is not covered by the definition of "employer" given in clause (c) of section 2, he would be covered by the definition of 'workman' given in clause (i) of Section 2. The above contention seems to be devoid of any force as in the above-quoted observations of Abdul Hayee Kureshi, J. The significant words used are "every person is almost either an 'employer' or a 'workman". The use of the words "is almost" indicates that his Lordship was not laying down a general proposition that if a person is not covered by the definition of employer given in clause 2(c) of the Standing Orders, he would be covered by the definition of `workman' given in clause (i) of Section 2. As observed hereinabove, we will have 10 determine the question whether a person is covered by the definition of `workman' with reference to the definition given in clause (i) of section 2.
6. Reverting to Mr.Sarwana's contention that it is not the designation which is the determining factor, whether a person is a workman or not a workman but it is the nature of the works/duties involved which are material and since the petitioner was doing manual and skilled work, he was covered by the definition of workman given in clause (i) of section 2 of the Standing Orders, it may be observed that there cannot be any controversy to the proposition that whether an employee falls within the definition of workman in terms of clause (i) of section 2 of the Standing Orders will have to be determined on the basis of the factum, whether he performs skilled or unskilled, manual or clerical work and not with reference to his designation alone. This leads us to the question whether the petitioner was not a workman within the above clause of the Standing Orders as has been held by the two Courts below or he was a workman. Mr.Sarwana has taken us to the averments made in paras. 4, 5, 7 and 8 of the application and para. 6 of the affidavit in evidence filed by the petitioner and has vehemently urged that since the petitioner was not holding any supervisory or managerial post and as he was performing skilled, manual and clerical work, inasmuch as he was driving the car of respondent No,1 for promoting the sale of the products and was carrying with him bottles of samples sometimes weighing five kilos and more and that he was making out cash memos. And submitting daily reports. In furtherance of his above submission he has referred to the following cases:
(i) Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sind and 6 others, PLD 1977 Supreme Court 237, in which the Hon'ble Supreme Court while construing Section 2 (xxviii) of the I.R.O. Held that a Salesman in the appellant company is a workman in terms of the definition given in the above provision of the I.R.O. In this behalf, it may be pertinent to reproduce the following observations of the above judgment at page 272.
" It is clear that in enacting section 2(xxviii) of this Ordinance the Legislature did not adhere to the old definition of the term 'worker' given in the earlier enactments and has in fact altered the entire scheme behind it. The scope of this definition is more comprehensive. It includes all persons employed in an establishment or industry, other than the employer. But it does not include any person who is employed mainly in a managerial or administrative capacity or who, being employed in a supervisory capacity, draws wages exceeding eight hundred rupees per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
(ii) Brooke Bond (Pakistan) Ltd. v. Labour Appellate Tribunal, N.-W.F.P., Peshawar and 2 others, PLD 1977 SC 383. The Hon'ble Supreme Court again with reference to Section 2(xxviii) of the I.R.O. Held that a salesman is a workman in terms of the definition given in the aforesaid clause (xxviii) of section 2 of the I.R.O. Incidently we may point out that in both the above cases the appellants were M/s. Brooke Bond (Pakistan) Ltd.
(iii) Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and First Sind Labour Court, PLD 1975 Kar. 25, equivalent to PLD 1975 Kar.
342.
(iv) Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another, 1979 SCMR 304.
' In the above Karachi case, . Which has already been referred to hereinabove, Abdul Hayee Kureshi, J. Maintained the order of the Chairman, First Sind Labour Court holding that the Chief Accountant of the petitioner company was a workman in terms of clause (i) of Section 2 of the Standing Orders, which judgment was upheld by the Hon'ble Supreme Court while declining petition for leave. The above ordcr is reported in the aforesaid 1979 SCM R 304.
It may be observed that the definition of 'workman' given in section 2(xxviii) of the I.R.O. Is wider in its scope as compared to the definition of workman given in clause (i) of section 2 of the Standing Orders and, therefore, for the purposes of determining whether an employee falls within the definition of a workman given in clause (i) of the Standing Orders we cannot have recourse to the definition of a workman given in clause (xxviii) of Section 2 of the I.R.O. We have cited hereinabove the observations from the Hon'ble Supreme Court's case reported in PLD 1977 SC 237 wherein the Hon'ble Supreme Court has pointed out that the amendment brought about in the definition of I.R.O. Has extended the scope of the definition. Reference may also be made to the following cases relied upon by Mr.Fatehali Vellani:
(i) L.E. Saleh v. Messrs International Laboratories Ltd. Karachi and 2 others PLD 1975 Karachi 279 at 287 C.
(ii) Medical Educational Uplift Fund Association of Seventh Day Adventists in Pakistan v. Vth Sind Labour Court, Karachi and 2 others, PLD 1978 Kar. 536 at 540.
' The above Karachi case of Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and First Sind Labour Court PLD 1975 Kar. 25 is a case on clause (i) of Section 2 of the Standing Orders.
Against the above decision. Mr.Fatchali Vellani learned counsel for respondent No,1 has referred to the following cases:
(i) Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees' Union, Dacca and others reported in PLD 1961 SC 403. The Humble Supreme Court while construing clause (s) of Section 2 of the Industrial Disputes Act, 1947, held that a salesman was not a workman within the definition given in the above clause of the said Act and observed as follows: "The Union by their concise statement do not appear to challenge the finding of the Tribunal that salesmen are not workmen within the meaning of the Act, and the point has not been raised or pressed before us. 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 Comapny, are not assailable either to the group of workers whose manual labour contributes to that product, or those of the clerical establishment who perform the paper work connected with the operations of the Company. The work of salesmen 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 this point, namely, that salesmen do not fall within the definition of `workmen'."
(ii) Chairman, Brooke Bond (Pakistan) Ltd., Karachi v. General Secretary.. Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi, 1969 PLC 616. In the above case the Humble Supreme Court while construing clause (n) of Section 2 of the Industrial Disputes Ordinance, 1959 held that a salesman was not a workman and observed as follows: ' According to this definition a 'workman' is employed in an industry to do skilled or unskilled work which is 'manual or clerical'. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, In the sense these terms are used here, connote that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same.
The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an auxilliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him.
(iii) L.E. Saleh v. Messrs International Laboratories Ltd., Karachi and 2 others PLD 1975 Karachi 279, in which Abdul Hayee Kureshi, J. As he then was, while construing provisions' of clause (i) of Section 2 of the Standing Orders Ordinance held that a saleman working in a pharmaceutical company is not a workman in terms of the above Definition given in the above clause. Reliance was placed on the above Supreme Court case of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union and 2 others PLD 1961 SC 403 and also on an Indian Supreme Court case, namely, May & Baker (India) Ltd. v. Their Workmen (1961 PLC 1127). The above case of the Indian Supreme Court also related to a pharmaceutical company.
' We may point out that the above Supreme Court cases of Pakistan Tobacco Company Ltd. v.
Pakistan Tobacco Company Employees' Union Dacca and others and Chairman, and Brooke Bond (Pakistan) Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi, related to the interpretation of Section 2(s) of the Industrial Disputes Act, 1947 and Section 2(n) of the Industrial Disputes Ordinance, 1959 respectively which provisions are pari materia with the provision contained in clause (i) of Section 2 of the Standing Orders and, therefore, the above two jud8ments have direct bearing on the interpretation of clause (i) of Section 2 of the Standing Orders.
7. As we have already Observed hereinabove that it is not the designation of an employee, which is the determining factor, whether he is covered by the definition of workman given in clause (i) of Section 2 of the Standing Orders but the nature of duties which he is to perform as an employee is the deciding factor. While deciding the above question one will have to also consider the question whether the employee concerned falls under the category of workmen class or in the category of executives and what are his pre-dominent works. In this regard reference may be made to the case of Rehmat Ali v. The Security Papers Limited and another, reported in PLD 1982 Kar. 913, which has been referred to by Mr.Sarwana and wherein a Division Bench of this Court to which one of us (Ajmal Mian, C.J.) was a party observed as follows:- "It may be observed that when a Court is to determine whether a person falls within the category of a managerial staff or within the category of worker and workman, in that event this question is to be determined with reference to the factum as to whether the person concerned predominantly performs manual work or predominantly performs managerial work. Similarly if a person falls in the class of Executives like a General Manager or an Executive in a Company in the Ad event the mere fact that such a person uses his hands, which takes a fraction of the time of his working hours, will not make him a worker or workman within the ambit of either Section 2(i) of the Ordinance or 2(xxviii) of the I.R.O. However, where a person admittedly belongs to the labour class, in our view he cannot be excluded from the definition of the workman given in section 2(i) of the Ordinance on the ground that the performance of duties by him involves insignificant use of hands or that manual work takes a fraction of time as compared to the hours of duties."
' Mr.Vellani in this regard has also referred to the following cases:
(i) Ganga R.Madhani v. Standard Bank Ltd. And others, 1985 SCMR 1511 at page 1514, paras 10 and 11.
(ii) General Manager, Hotel Intercontinental, Lahore and another v. Bashir A.Malik and others, PLD 1986 SC 103 at page 111 para. 11.
(iii) Rab Nawaz v. Sind Labour Appellate Tribunal and 2 others PLD 1987 Kar.175 at 179 para. 7 and
(iv) Brooke Bond (Pakistan) Ltd. v. Conciliator Appointed by the Government of Sind and 6 others, PLD 1977 SC 237 relevant at page 272 M.
' The above cases are in line with above Karachi case of 1982.
8. We may also observe that it was also urged by Mr.Sarwana that since respondent No,1 Lad not produced any evidence, the petitioner's evidence remained unrebutted and, therefore, the two Courts below should have held that factually the petitioner was a workman. In this regard, we may take up the contention of Mr.Fatehali Vellani that a person who approaches the Court is to prove that he is a workman in terms of the definition given in the relevant statute, of which breach is complained of, it may be observed that Mr.Vellani has referred to the following cases.
(i) Messrs Opal S Laboratories Ltd. v. Muhammad Moinul Islam, 1983 PLC 509 at 516.
(ii) Zubair Ahmad v. Sind Labour Appellate Tribunal, Karachi and another PLD 1985 Kar. 760 at 763.
We are also inclined to hold that the burden of proof was on the petitioner to show that he was a workman in terms of clause (i) of Section 2 of the Standing Orders and not on respondent No,1. If the petitioner would have discharged the above burden, the burden would have been shifted to the respondent No,1. The petitioner in his cross-examination admitted the following facts:
(a) that he had purchased a private car in the year 1974 and was drawing Rs,17.50 per day on account of using his own car up to February, 1975 when respondent No,1 provided a car to the petitioner:
(b) that he used to take the car to his house;
(c) that respondent No,1 was maintaining car and was bearing the cost of petrol;
(d) that petitioner's job was to sell the products of the Company and to provide technical assistance;
(e) That the petitioner never signed the attendance register;
(f) that he was entitled to Rs,500 leave fare assistance for the year 1976;
(g) the petitioner never claimed any over-time;
(h) he was drawing a salary of Rs,1,225 in January, 1976;
(i) the petitioner's privileges, entitlement and leave fare were regulated by respondent No,1's letter dated 28-12-1974.
9. It is true that the petitioner has also stated that he used to work in the field daily about six to eight hours and used to drive the company's car for promoting the sale and factually used to sell as well. In our view, the two Courts below, which were Courts of competent jurisdiction, on the basis of the petitioner's own above admissions could have concluded that the petitioner. Was not a workman in terms of clause (i) of Section 2 of the Standing Orders and, therefore, it cannot be said that the impugned orders are in violation of any provision of law or in excess of jurisdiction or suffer from any other jurisdictional infirmity. We may also observe that the mere fact that we might have taken a different view on the basis of the above evidence would not warrant interference by this Court with a concurrent finding of the two competent forums, in exercise of Constitutional jurisdiction. The above Karachi judgment of Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and First Sind Labour Court PLD 1975 Kar. 25 relied upon by Mr.Sarwana is even otherwise distinguishable on account of the fact that in the above case the order of the Chairman of the Labour Court was maintained by the learned Single Judge in exercise of Constitutional jurisdiction, whereas in the present case there are two concurrent orders of the two competent Courts and, therefore, the present case is distinguishable.
10. For the aforesaid reasons the petition has no merits and it is dismissed with no order as to costs.