DECISION These are two appeals, one filed by the Management through Mr. Khalid Jamil and the other filed by the worker, through Mr. M.
5. Siddiqi. The appeal by the Management was filed on 22- 10-1973 (KAR-729 of 1973), while that of the worker was filed on 2-11-1973. Mr. Khalid Jamil for the Management has raised three points before me, i.e., that admittedly the respondent being a salesman was not a workman within the meaning of the West Pakistan Industrial and Commmercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). In this connection, Mr. Khalid Jamil relied on a case decided by the Supreme Court of Pakistan and reported in PLD 1961 SC 403. In that case, their Lordships of the Supreme Court while considering a similar definition given under the Industrial Disputes Act of 1947 (hereinafter called the Act of 1947), as in the Standing Orders Ordinance, came to the conclusion that a Salesman cannot be said to be a workman as "he it engaged exclusively in the distribution of the products of the company'* and, therefore, cannot be said to be a person who contributes anything towards the production of the goods." I would hold that the definition under the Standing Orders Ordinance being a pari materia with the definition of workman as it stood in 1947, a salesman is not a workman and, therefore, the provisions of the Standing Orders Ordinance are not attracted, On the other hand, Mr. M. H. Siddiqi for the respondent, contended that! the application being under section 25-A of the Industrial Relations!* Ordinance, 1969 (hereinafter called the Ordinance), it was maintainable as a salesman cannot be said to be covered by the definition of an employee. The definition of workman under the Ordinance is wide enough to include the case of a salesman. The application under section 25-A of the Ordinance, therefore, was maintainable.
2. In the second place, Mr. Khalid Jamil contended that the respondent having accepted the payment without any protest in full and final satisfaction of his claim, he had no grievance within the meaning of section 25-A of the Ordinance. There is not much force in this contention. It is true that by accepting the payment to his full satisfaction, the respondent cannot be said to have any grievance within the meaning of section 25-A of the Ordinance. The fact whether a person has a grievance or not is a question of fact. It depends upon the circumstances of each case. In the present case, I would hold that the respondent had a grievance. His case was that he had been transferred to Karachi only to deprive him of a fair opportunity to be heard; the cause of action and the charge-sheet had all arisen in Rawalpindi. The respondent at the time of the alleged misconduct was working in Rawalpindi. The hurry with which the enquiry was held though at the request of the respondent himself, would in my opinion justify the allegation of the respondent that he was prejudiced. Whether a person has a grievance or not is a subjective matter and not objective.
3. Lastly, Mr. Khalid Jamil contended that the Enquiry Report was filed along with an application on 19th March, 1973. No order was passsd on that application, lt was stated in the application that the Enquiry Report was filed alongwith a counter-affidavit, but through mistake and oversight it was not done so, with the result that it was not available or. the record of the case.
In this connection, Mr. Khalid Jamil also submitted that if the Court had accepted the Enquiry Report no prejudice could have been caused to the respondent as his cross-examination was to take place later on. The question of prejudice is a question of fact. It would depend upon the circumstances of each case. Had the Enquiry Report been filed aloDg with the counter-affidavit and the respondent had the opportunity to go through it, one does not know what would have been his reaction. He may have felt satisfied and may not have pleaded prejudice. I have gone through the Enquiry Report It seems to me that the enquiry was held on the same date at the request of the respondent himself, as he was in a hurry to go. The anxiety of the respondent to have the enquiry expedited is understandable in the light of his admission of his guilt, as would appear from his reply dated 22-7-1972, received by the Management on 23-7-1972. The relevant paragraph reads as under:-- "At the end I once again assure you that you will never have a chance of complaint in future as I promise to be very careful particularly with the distributors and hope that keeping in view my past three years' service you kindly give me a chance "first chance".
4. The respondent has not cared to explain the above either in his statement or in the application he made to the Court. Nevertheless, I see no reason to take different view than what has been taken by the learned Labour Court. No other point was urged by Mr. Khalid Jamil. I see no reason to allow the appeal on the grounds taken by Mr. Khalid JamiL The award of the learned Labour Court is maintained and Appeal . No. KAR-729 of 1973, is dismissed.
5. The appeal of Mr. Siddiqi relates only to back benefits, lt cahnot be said to be a rule that a person is entitled to get benefits in all'cases. It depends upon the circumstances of each case. In this case, the appellant's case being that he was prejudiced because of non-supply of the copy of the Enquiry Report. The learned Labour Court rightly set aside the order of dismissal and ordered the appellant's re-instatement, but without back benefits, which would depend upon the result of the enquiry to be held now. If the appellant is found to be not guilty in the fresh enquiry- to be held, he can be awarded back benefits. 1 Order accordingly.