' Through this Constitutional petition, the petitioner has challenged the order dated 11-11-1975 passed by Malik Lehrasap Khan, Presiding Officer, Punjab Labour Court No, 1, Lahore whereby while setting aside the order dated 19-4-1975 (passed by the Presiding Officer, Junior Labour Court No, 2, Lahore) he re-instated respondent No, 3 in service with back benefits.
2. The facts giving rise to the filing of the instant petition are that respondent No, 3 entered into an agreement with petitioner's Firm in terms of which, he was to get training. The trainee was to pay Re.1 per month to the Company and the Company was to pay Rs,40 per day to respondent No, 3 for miscellaneous expenses during the term of the training period. It was specifically provided in para. No, 7 of the said agreement that this agreement will not create any employer/employee relations between the Company and the trainee. 'The training was completed on 23-4-1974 and on 26-4- 1974, he was appointed as a probationer Medical Representative with effect from 29-4-1974. In para. No, 5 of the appointment letter, it was provided:-- "During probation your services are liable to termination without notice or any payment in lieu of notice, and after confirmation on one month's notice or one month's pay in lieu thereof."
' Vide order dated 23-7-1974, the services of the respondent were terminated. The order was challenged before the learned Junior Labour Court No, 2, Lahore which vide the judgment referred to above, dismissed the grievance petition on the ground that the petition was not maintainable as respondent No, 3 was not workman within the meaning of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Respondent No, 3 challenged the afore-referred order and the learned Punjab Labour Court No,!, Lahore allowed the appeal holding that respondent No, 3 was a workman and that the termination of his services without assigning any reason is not tenable in law.
3. Learned counsel for the petitioner in support of this petition, made the following submissions:--
(i) that respondent No, 3 was not a workman and therefore had no guaranteed or settled right under section 25-A of the Industrial Relations Ordinance, 1969 to seek enforcement before the learned Labour Court;
(ii) that the order of the Junior Labour Court, Lahore is well reasoned and cannot be interfered with.
4. This writ petition was admitted to regular hearing on 24-11-1975. On 6-5-1980, learned counsel for the respondent appeared for the first time and thereafter on three dates, learned counsel did appear but since 29-9-1992, no one has appeared for the respondents although, the case came up for hearing for seventeen times. On 26-4-1995, despite PC card having been issued, none had appeared on behalf of respondent and he was proceeded ex parte and the case was adjourned for final disposal to 8-5-1995. Again today, none has appeared. Arguments of the learned counsel for the petitioner have been heard and I proceed to decide the matter.
5. I have gone through the evidence, certified copies of which have been appended with the petition. It is in evidence that respondent No, 3 was on probation and that as per nature of his job, he was to promote the sales of medicines to petitioner's company and that he was not doing any manual work. The sales promotion aspect of his job has been admitted by him. Nothing was brought on record to show that respondent No, 3 was a workman for the purpose of Industrial Relations Ordinance, 1969. In Syed Matloob Hassan v. Brooke Bond Pakistan Limited 1992 SCM R 227, it was held as under:-- "(a) Industrial Relations Ordinance, 1969---As per majority--- ----S. 2(1)---Appellant---A salesman---Dismissal from service of---Appeal thereagainst--- Appellant complained off the violation of Standing Orders 12 and 15---It was incumbent upon him to have shown that he falls within the definition of ' workman' given in the clause (i) of section 2 of the Ordinance---The Labour Court, after referring the duties of the appellant concluded that he was not covered by the said definition---The Labour Appellate Court concurred with this finding--- Held: That ratio of the earlier judgment of this Court in the case of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca and others is very much applicable to the present case---Appeal having no merit is dismissed."
' In yet another judgment of the Karachi High Court, i,e,, Saleh v. Messrs International Laboratories Ltd., Karachi and 2 others (PLD 1975 Kar. 279), the nature of job of a Medical Representative was commented upon and it was held that a salesman is not a workman for purposes of Industrial Relations Ordinance, 1969. It was observed as under:--
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--- ----Ss. 2(i) & 3---"Workman" ---Medical representative having in course of his employment to forward daily sales summary report to employer, his salary fixed, with promise of incentive bonus, and daily sales to be carried out in his own discretion---A salesman and not a workman--- Salesman---Not entitled to protection of Standing Orders---Industrial Disputes Act (XLV of 1947), S. 2(5)---Industrial Disputes Ordinance (LVI of 1959), S. 2(n)."
' A salesman, for the nature of duties he performs, for the independence of action which he obtains and for the initiative and imagination 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 specialised nature designed to achieve the end of promoting 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 work.
' For enforcement of rights of workmen guaranteed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, the definition of workman in that statute has to be followed.
' A salesman employed in a commercial concern cannot be treated to be a "workman" so as to have the protection of the Standing Orders contained in the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
The view that a field representative promoting sales is not a workman was confirmed in a Division Bench judgment of Dacca High Court which is reported in M.D. Shamsul Hague and others v.
Managing Director, Pfizer Laboratories Ltd and another (PLD 1969 Dacca 386) wherein it was held as under:- "(a) Industrial Disputes Ordinance (LVI of 1969)--- ----S. 2(n) "Workman" Definition Field representative employed to promote sale of firm---Not a workman as defined in S. 2(n)."
' Again in a Division Bench Judgment of this Court i,e, Chairman, Brooke Bond Pakistan Ltd., Karachi v. General Secretary, Union Karkunane Brook Bond (Pakistan) Ltd., Rawalpindi (PLD 1969 Lah. 717), it was held at page 723 as "The clerical work involved in the discharge of the responsibilities of salesman who is responsible for the sales and distribution of tea in his area, in preparing the cash memos. The small column-wise daily statement of sales and the weekly returns form but a small part of his duties and are altogether consequential in nature, these do not in any way change the complexion of the basic work for which the salesman is employed by the company."
5-A. Even otherwise, respondent No, 3 was on probation and cannot claim retention in service as of right particularly when it was specifically so provided in terms of service and no elaborate reasoning is called for the termination of a probationer. In Punjab Road Transport Board v.
Muhammad Fazil. Hussain and another PLD 1983 Lah. 531, it was held as under:-- "(a) Words and phrases--- - ---"Probationer"---Meaning---Probationer is an employee who remains on trial until within specified period his employer considers him fit to be kept on job during period Of probation his services remain at pleasure of employer and if latter does not feel satisfied with his work his services can be terminated."
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--- - ---S. l3(3)-t-Industrial Relations Ordinance (XXIII of 1969), S.25-A--Probationer---Termination of employment---Mention in termination order that services being terminated during probation period would carry necessary incidents of probation that is that employer was dissatisfied with his work and thus not inclined to keep him. In employment---Reference to probation in termination orders, held, would constitute sufficient reason for termination of his services."
6. For what has been discussed above, the judgment of the learned Punjab Labour Court No, 1, Lahore is not sustainable in law as the same is against the mandatory provisions of relevant law and not in consonance with the law declared by the Hon'ble Supreme Court as also this Court.
Resultantly, this writ petition is allowed and the judgment is set aside with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.