DECISION ' This appeal filed by Messrs Taj Bakery, hereinafter referred to as appellant Bakery, arose from the Order, dated 7th March, 2000 of Sindh Labour Court No, V, Karachi whereby the grievance petition of the respondent, Muhammad Aslam Khan was allowed with full back benefits. The respondent's case as disclosed in his application under section 25-A of I.R.O., 1969 was that he was employed as workman in the Appellant Bakery in the year 1971 and due to his good conduct, devotion to his duties and overall performance, he was promoted as salesman. He always performed his duties to the satisfaction of his superiors, giving them no cause of complaint. Somehow the appellant Bakery started giving him threats of termination of his permanent employment and also withheld his wages for January and February of 1998. This fact was communicated to the appellant Bakery through his advocate. Instead of redressing his genuine grievance, the appellant Bakery sent reply containing concocted false story of misappropriation against him. Again on 24-2-1998 the respondent submitted application to the appellant Bakery requesting therein for release of his withheld wages and for conciliation through Jirgah which somehow annoyed the appellant Bakery who on 25-2-1998 terminated his permanent employment verbally. Thereafter on 11-3-1998 grievance notice was sent to the appellant Bakery by Registered Post but the same was returned bearing Postal remarks. Since his grievance remained unredressed he was left with no alternative but to file grievance petition in the Labour Court having jurisdiction.
2. In reply the appellant Taj Bakery had denied the factual allegations inasmuch as that the appellant took over the Bakery in year 1984 and the respondent remained in their service for 3 years up to 1987 whereafter on account of mis-appropriation of about Rs,2, 00,000 (Rupees Two Lacs) he was reprimanded and the Bakery was handed over to Messrs Hassan and Raza on contract. This arrangement continued up to 1997 when the appellant resumed the role of absolute proprietor of Bakery in the month of January, 1998. Consequently the appellant Bakery has no knowledge about the terms and conditions of service on which the respondent did his duty during the period when the Bakery was with Hassan and Raza.
3. Apart from the above the appellant Bakery has taken Legal Objections, namely, first that no grievance notice was serves on the appellant and second that the respondent was rather a salesman and not a workman and therefore, Standing Orders Ordinance under which he has filed grievance petition was not applicable to him and lastly that appellant Bakery was neither industry having 20 or more workers nor an Establishment having 20 or more workers and as such the respondent could not invoke the jurisdiction of the Labour Court. It was prayed by the appellant that the application being false and not maintainable in law be dismissed with special costs.
4. The respondent has filed his Affidavit-in-Evidence and was cross-examined. Similarly Mr. Azizullah the sole proprietor of Taj Bakery has filed his own Affidavit-in-Evidence and was cross- examined. I heard the arguments addressed at the bar and have also gone through carefully the written material which was brought on record by both the parties. The learned lower Court framed Five Issues and recorded its findings thereon.
5. Issue No,1 is about the maintainability of the grievance petition. It is an admitted position that grievance petition was filed under section 25-A, I.R.O., 1969. Inter alia the important requirement of the said section to be satisfied before filing of the grievance petition is to bring the grievance of the worker in writing to the notice of his employer within three months of the day on which such grievance had arisen. The parties are at variance with regard to service of such notice. According to the respondent as has been elaborated by his advocate in course of his arguments that such notice was sent to the appellant Bakery by Registered Post, and the concerned Postman had repeatedly taken the notice to the address of the appellant Bakery for service but each time he returned without serving it because the proprietor of the Bakery was not available. As such the notice was never served on the appellant Bakery. As stated in the grievance petition (para. 6), copy of grievance notice, dated 11-3-1998 and Postal Envelope are respectively marked as Annexures A/3 and A/4. The appellant's representative cited authority reported as 1980 PLC 746 in support of his arguments. In the above reported case the service of grievance notice was denied by the employer. Evidence/document produced by workman, not proving service of notice. In the circumstances the petition was held as rightly not entertainable by the Labour Court. The present case is on all fours with the reported case. In this case too appellant Bakery has categorically denied the service of notice on them and the documents namely the grievance notice and Postal Envelope produced by the respondent is an attempt to prove his assertion that grievance notice was served, have failed to furnish such proof. Consequently the grievance petition could not be entertained and was liable to be dismissed. But the Labour Court has allowed the grievance petition for reasons which are far from convincing. According to respondent's advocate it was enough compliance of section 25-A, I.R.O., as soon as the notice required to be given under that section was sent to the employer. I am sorry, I am unable to agree with his view. The wording of the above section is very clear that the grievance has got to be brought to the notice of the employer in writing. The words "to the notice" are significant which only mean that employer must personally know what the grievance was about. I am therefore, of the view that requirement of A section 25-A, I.R.O. In respect of service of notice on the employer has not been complied with. Therefore the petition was liable to be dismissed on this ground alone.
6. The other defect pointed out by the Representative of the appellant Bakery was that at the time of termination of the respondent's services he was working as 'salesman' and not a 'workman' and therefore, Standing Orders Ordinance was not applicable to him. The learned Advocate of the Respondent however opposed this contention. In this connection reference may be made to para. 1 of the respondent's own grievance petition. Inter alia it is stated and thereafter due to his good conduct, devotion, to his duties and overall performance promoted as 'salesman' and as such till illegal termination remained in the same job". Thus it is his own admission that at the time of termination of his services he was 'salesman'. His learned counsel however contended that even though he worked as 'salesman' the nature of his job was manual as he was doing at the Bakery's Counter for sale. The sale of the Bakery's products obviously involved only manual labour. In reply to this argument the Representative of the appellant Bakery has relied upon certain authorities in order to show that 'salesman' has never been treated as 'workman' and therefore, once it was proved that the respondent was 'salesman' he could not be held to be workman. As pointed out above it is respondent's own admission that from the position of workman he was subsequently promoted as salesman. His job was to sell obviously the products of Bakery as he was admittedly made to sit at the counter for that purpose. On the point whether the salesman was a workman reliance was made on my own judgment, dated 23-11-2000 that I had delivered in Appeal No,95 of 1999 (Qaiser Mirza v. APK Industries). In the said case I had placed reliance on the Supreme Court authority reported as 1992 SCM R 227 wherein it was held "and I feel no hesitation in agreeing with the decision of the Tribunal upon this point, namely that salesman does not fall within the definition of workmen". Relying on the above view of the Supreme Court I held: "this is additional reason for non-application of the Standing Orders Ordinance, 1968. Since this was not applicable the grievance petition was not maintainable".
' In view of above findings I need not discuss further legal point raised in the case that if the Bakery was Establishment 20 or more workmen were employed or in the alternative it was industry 50 or more persons were employed, and with what consequences. This is because the grievance petition is liable to be dismissed even on above two points.
' The upshot of above discussion is that I am unable to endorse the views of the learned Labour Court and as such its judgment is set aside and Appeal filed against the judgment is allowed.