DECISION ' In this appeal which has been filed by M/s Rafhan Best Foods Limited (hereinafter referred as Appellant Company) through its Human Resources Manager and Sales Manager, the order dated 7th September, 2000 of Sindh Labour Court No, 1 . Karachi has been challenged, whereby the application under section 25-A, I.R.O., 1969 of respondent Nasir Jamal Qureshi was accepted with direction of his reinstatement in service and payment of back-benefits to him within a period of 30 days of the order. The respondent's case as stated in his application is that he was employed by the Appellant Company as an Area Sales Representative in Consumer Sales Department at Karachi vide appointment letter, dated 27-9-1992. The job entrusted to him was to sell and 'supply the. Products like chicken cubes, soups. Needles Yakhni, Jams, Ketchup and other miscellaneous products at Karachi level. His employment being of a worker he became a member of Trade Union, taking active part in its activities. He discharged his duties as Sales Representative to the entire satisfaction of his superiors, so much so that he sold different consumer items/products at Karachi level and succeeded in getting orders for the booking to supply various consumer items of Rafhan Products and also introduced new products of the Company. On successful completion of probationary period, he was confirmed in his post on 30-12-1992.
2. In 1997 though the supply area of the respondent was enhanced with corresponding increase of Rs,750 in his pay yet nature of his duties remained unchanged. His case is that he never performed supervisory or managerial duties nor had the power of hire and fire or grant leave to workers.
However, his services were terminated vide letter dated 29th July, 1998 which was received by him on 17-8-1998. He first challenged that order in Civil Court but for want of jurisdiction the said Court dismissed his suit. Thereafter he repeatedly approached the Appellant. Company for his reinstatement but with no result. He then served grievance notice on the Appellant Company on 15-9-1998 which was never replied. Left with no other choice, he filed grievance application on 17- 10-1998.
3. In their Reply Statement the Appellant Company have denied the respondent's status of 'being a workman and as such Standing Orders Ordinance was not applicable to him. Even otherwise in Karachi Office of the Company where the respondent was employed as Territory Representative total number of persons employed never exceeded 10 and as such none of the employees at Karachi Sales Office falls within the definition of workman under the Standing Orders Ordinance, 1968 as all of them are meant for promotion of sales of the Company's products. It is further stated that Company's employees working in Punjab have formed their own trade union and some of those employed in Karachi Establishment where the respondent was working as member of the union at Punjab level. As such the respondent's allegations with regard to trade union are devoid of any truth. It is also denied that services were terminated on account of his trade union activities.
The respondent was initially appointed as Sales Representative whereafter he was promoted to the post of Territory Representative. Since his performance started deteriorating from the month of February 1998 he was time and again warned for improvement in his performance but all in vain and finally his services were terminated vide letter dated 29-7-1998 in accordance with law applicable to Master and Servants i,e, the terms and conditions of the respondent's employment.
The Company's further case is that though the respondent's duties were not of supervisory nature yet being a Territory Representative he could not be regarded as workman within the definition of the term. It is vehemently denied that his services were terminated with mala fide intention. Prior to termination of the services he was even called for personal hearing at Lahore by Deputy Director Human Resources and finally he was given two options namely first to resign from employment and second to accept termination of his services in accordance with clause V of contract of employment. As he refused to opt for resignation his services were terminated strictly in accordance with terms of contract.
4. The respondent has filed his own Affidavit-in-Evidence and the Appellants Company has examined its Deputy Director Nabil Khalid Butt in evidence.
5. The first issue to be decided in this case is whether termination of respondent's services was lawfully made. It is the respondent's own case that he was appointed as an Area Sales Representative in the Consumer Sales Department of Respondent's Company on 27-9-1992. As stated by him in his Affidavit-in-Evidence his duty was to sell and supply products at Karachi level, secure orders for supply of consumer items/products and introduce new products launched by Appellants Company. With the designation of Area Sales Representative doing the job as stated above he considered himself to be a workman though the Appellants Company has disputed his above contention taking a plea that he was not a workman. It may be added here that on completion of probationary period he was confirmed in his job and later promoted to Grade-VII with effect from 1st September, 1997 with increase of Rs,750 in his pay. The learned counsel for the respondent contended that neither the designation nor emoluments are the determining factor for status of a person as a workman. In this connection he has relied upon PLD 1988 Supreme Court 118 wherein it was observed; "----It is the nature of work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive."
' In another case reported as 1998 PLC 172 it was observed; ' "status of person as "workman" would depend not upon his designation but on the nature of duties performed by him----".
' There is no dispute with the proposition enunciated in above two cases that status of a workman is not determined by designation but it is determined rather by the nature of work performed by the person concerned. In the present case as pointed out earlier it is the respondent's own admission that he was appointed as Area Sales Representative doing the job of sale and supply of the Company's products at Karachi level in addition to secure or book orders for supply of consumer items and also introduce new products launched by Appellants Company. The nature of above work done by the respondent was neither manual nor clerical. Sale of the products or securing orders for such products require tact and wisdom. It may be pointed out here that in these days a number of advertising agencies are operating. Their job mainly is to advertise the specified products by different methods with a view to boost their sale or in other words to persuade the customers to buy the advertised products. The same principle is followed by all those who are engaged in sale of the products or secure orders for supply of such products. Thus selling is not an easy job which can be carried out by ordinary workman. It requires imagination, application of mind and know-how of the things offered for sale to the customers who are expected to by the products offered for sale. It may be true that if a single person is engaged in making sale of the products he may in addition to using his intellect and wisdom also undertake some incidental manual work. By doing such small manual work connected with the sale of products his status cannot be changed nor for that reason alone he could be regarded as workman. This is because his main job is to sell the products for which he has to use faculty of his mind and wisdom and not only manual or clerical work. The above idea about the salesman or the person who is engaged: in the job of sale of products is supported by Supreme Court authority reported as PLD 1961 Supreme Court 403 in which it was held that the work of salesman is wholly of different category from manual work or clerical work and salesman does not, therefore, fall within the definition of workman. The above reported case was dealt with by Full Bench of Supreme Court consisting of A.R. Conrnelius, C.J., S.A. Rehrnan, Fazle Akbar, B.Z. Kaikaus and Hamoodur Rehman, JJ.
In another case reported as PLD 1975 Karachi 279 it was observed: "It would thus seem that 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 findings best available markets. Such type of labour cannot be called manual or clerical."
' In the said case the concluding remarks are to this effect: "In such view of the matter I am clear in my mind that a salesman employed in a commercial concern cannot be termed to be a "workman" as to have the protection of Standing Orders contained in the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and on such ground this petition fails and is hereby dismissed."
' In view of above discussion I have come to the conclusion that the learned Labour Court has erred in holding the respondent as a workman entitled to the benefit of Standing Orders Ordinance, 1968.
The very appointment order of the respondent spells out in details the terms and conditions on which his appointment was made. If intention was to induct him as a workman it was not necessary at all to, issue such detailed appointment orders, because in consequence of his appointment as a workman his appointment would be regulated by law namely Standing Orders Ordinance, 1968 but in case of the respondent his appointment was intended to be governed by the terms, and conditions specified in his appointment order. In other words his appointment being of contractual nature of master and servant it was necessary to spell out the details of terms and conditions on basis of which the appointment was made. The perusal of appointment orders shows that there is no provision of notice to be given to the respondent before termination of his services. As such there is nothing illegal with the termination of respondent's services. Accordingly the termination of respondent's services has been lawfully made particularly when he was repeatedly warned that his 'performance was gradually deteriorating and therefore, he was required to make improvement but with no result.
' The appeal is allowed and the order of the Lower Court is set aside.