DECISION These two appeals call in question a common order of the Labour Court at Hyderabad whereby the petitions under section 25-A were allowed with back benefits. These have arisen in the following circumstances.
The appellants herein are a Private Limited Company doing business at Karachi, Hyderabad, Sukkur and Peshawar. It had two branches at Hyderabad, which are separately registered under the Shops & Establishment Ordinance, 1969. The branch situated at 430 Haji Shah Chowk Saddar was dealing in consumer and pharmaceutical division of the company, and the petitioners were employed there. According to them they were working as salesman and deliverymen while the respondent- company has it that they were only salesman. It was alleged by the petitioners that they had formed a union on 10-5-1988 which was duly registered, and later on recognized as the CBA. On 22- 1-1989 they had submitted a Charter of Demands and there was a Strike Notice on the 13th of February 1989. As they were the Secretary and the Joint Secretary, the wrath of the respondent had fallen on them, and they were dismissed verbally. According to the petitioners it was on the 21st of February, 1989 after the respondents had received a Notice from the Conciliator. The respondents however put it on the 14th. Be that as it may the petitioners had served the grievance notices which were replied to and as no satisfaction was accorded to them they had preferred petitions before the Labour Court.
2. The petitions were resisted. It was contended that the same did not lie as the number of employees with them never crossed 19 men at a time. It was further alleged that the Notice from the Conciliator had been received on 16-2-1989 and the services had been terminated two days prior to that. It went on to say that it was not necessary to terminate the services in writing as it was not the requirement of law under the Shops & Establishment Ordinance.
3. The petitioners were their own witnesses and the respondents had examined N.R. Jafri, Senior Branch Manager. Muhammad Rafiq Khan and Islamuddin.
4. The learned Presiding Officer found that the petitioners were workmen and their removal from service was illegal. He therefore allowed the petition with back benefits culminating in these appeals. .
5. As for the number of employees there was a fight in the rear of the respondents' camp, as two of their witnesses Muhammad Rafiq and Islamuddin put their strength above 20; the latter putting it between 30 to 35. Even N.R. Jaffri, the Senior Branch Manager speaks of other 5/6 persons working on daily wages and it is in unqualified terms. Under the circumstances Mr. S.M. Yaqoob learned counsel for the appellant very properly did not press this point. His argument was confined only to 3 points; firstly in regard to the status of the petitioners; secondly that the back benefits could not be awarded as the respondents had nowhere mentioned in the entire proceedings that they were jobless and thirdly that as the branch in question had been wound up during the pendency of the appeal, there should be no order for re--instatement. Instead, in case of their success they could be granted suitable compensations.
6. The letters of appointment have not been brought on the record. Nor is there any sort of job description forthcoming. The respondents however have provided their job description. It has been said by Jaffer Ali in the grievance notice as follows:--
2. "That I was performing the assignments/duties in the nature of clerical and manual, which includes preparation of sale daily Reports, and Cash Memos consolidate statements, collection of sale proceeds, and deposit with the Company's Accountant, delivery of the items to obtain supply orders Receiving stocks for supply in van loading and unloading and supply in city and rural market areas carrying consignments from the company office/godowns to Bus stand and supply to the customers in rural areas. Preparation of Bank DD, maintenance of stationery records. Work in office for preparation of invoices, carrying out the items from shop to shop for delivery." and the same was repeated in the petition. The same thing is to be found in the case of Iqbal Javed, They have also produced some challans and 'other documents to show that they had delivered goods and stocks to various customers. It is true that N.R. Jaffri denied the suggestion that the respondents were doing the jobs of maintaining daily sales in register, supplying the articles to the customers, doing loading and unloading work, preparing Demand Draft and Stationery record, But he did admit that both the respondents used to make deliveries also in the town. He was confronted with the photo copies of the challans and other documents by the petitioners. All that he had to say was that he could not identify the signatures thereon because they were in the photostat. However he had to admit that the Stationery belonged to the appellants and they had the originals. Even their witness Muhammad Rafiq Khan conceded in cross- examination that they used to supply medicines at the Medical Stores. That is also what Islamuddin had to say. Islamuddin further says that he did not know the contents of the affidavit filed by him because all that he had done was to put his signature thereon.
7. Mr. S.M. Yaqoob learned counsel for the appellant contended that the respondents were salesmen and as such they would not be workmen. He had referred to a number of authorities and mention may be made to the cases of Abdul Baqi v. Muhammad Farooq Ahmed 1988 PLC page 88.
And Syed Matloob Hassan v. Brooke Bond (Private) Pakistan Limited, PLD 1961 Supreme Court 403.
8. There can be no quarrel with that proposition but the question is whether they were merely employed as salesmen? Looking to the tenor of the evidence, which is supported by documents, that they were doing jobs other than that of salesmen, as deliverymen and even loaders, apart from attending to the maintenance of registers and record, I do not see any reason to differ from the findings of the learned Presiding Officer that they were not employed only as salesmen. The other duties they were performing were certainly not incidental to their duties as salesmen either.
The appellants have also refrained from producing them appointment letters.
9. Admittedly the respondents had nowhere stated, from their grievance notice up to their statements before the Labour Court that they had been jobless as a result of the termination of their services. Mr. S.P. Lodhi learned representative for the respondent referred to a decision of the High Court of Sindh at Karachi in Petition No. 1350 of 1988 namely Khadim Hussain v. National Bank of Pakistan and others, where the matter had been remanded to the Labour Court. It is not necessary to advert to the same in view of the pronouncement of the Supreme Court in Muhammad Bashir v. Punjab Labour Appellate Tribunal and another 1991 Supreme Court Monthly Review page 2087.
10. As for the third ground admittedly there is no evidence on the record to substantiate it. It is stated to have come about during the pendency of the appeal. The other branch at Hyderabad deals in cigarettes and other stores. We have not been told that it also has been wound up. At any rate the appellants have business in other cities also. Mr. S.M. Yaqoob, learned counsel for the appellant has referred me to the cases of Glaxo Laboratories (Pakistan) Ltd. v. Pakistan and others PLD 1962 Supreme Court page 60 and Abbasi Textile Mills Ltd. v. Industrial Court West Pakistan and others 1966 PLC 552 in support of his contention, but these are decisions dealing with Industrial Disputes Ordinance wherein there was provision for compensation. The same is not to be found under the scheme of the Industrial Relations Ordinance. The contention therefore stands repelled.
In the result the impugned order stands modified to the extent that the respondents will be re- instated in service but will not be entitled to any back benefits. The appeal is, therefore, partly allowed in these terms.