' MAULVI ANWARUL HAQ, J.---On 17-4-2001, the appellant filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter to be referred to as I.R.O. 1969). In the petition it was stated that the appellant has done his B.Sc. And he was appointed as Sales Officer by the respondent No,1 on 18-3-1995. According to him his work was appreciated by his employer and he was issued appreciation certificates. It was specifically mentioned in the petition that a letter of appointment had not been issued. According to him, his duty was to A check the availability of the products package-wise in the market. He was not responsible for the manufacturing process and quality control of the Beverages supplied by the respondents to the retailers from their distributors and similarly the receipt of the cash from the retailers was the duty of Salesman and the cash transactions were not handled by the appellant. According to the petition by means of a verbal order dated 25-2-2001 the service of appellant were terminated. He pleaded that no show-cause notice was issued, no inquiry was conducted and no personal hearing was provided. Then there is a reference to a final settlement dated 27-2-2001 prepared by the respondents. According to him the balance salary to be released was Rs,16115 but the concerned official refused to release the salary in case the appellant was to note his protest. There is a detail of the dues payable by the respondents to the appellant. A grievance notice was served on 3-3-2001 under the registered cover A.D. It has been pleaded that the notice was placed on 9-3-2001 before the respondent No,5 who suggested that the respondents should complete all legal formalities like charge-sheet, inquiry and termination order of the appellant before the matter is taken by him to the Court. The file was put up before respondent No,3 who agreed with the said suggestion and called upon respondent No,5 to co-ordinate with Mr. Shahid Insha and prepare all requisite documents to be placed in the file. These allegations were made in the petition with reference to a document that had been placed on record by the respondents themselves in a Case No,7/2001 filed by the respondents on 28-3-2001 before the learned lower Court. Then there is reference to some subsequent events like publishing of a statement, allegedly false, in a daily newspaper on 16-3- 2001 which was replied by the appellant. There is then a reference to F.I.R. Wherein he is not nominated. With these averments the appellant sought setting aside the said termination order dated 25-2-2001, and to be reinstated with all back-benefits.
2. The respondents in their written statement objected that the petition is not maintainable. It was also stated that the appellant is not a workman as he is an officer. On merits it was admitted that the appellant was appointed as a Sales Officer on 18-3-1995. It was then stated that since the appellant had committed bad name to the reputation of respondent-company, his services were terminated after adopting the due process. It was then stated that he was terminated on 25-2- 2001 due to his malpractice and had conduct. In response to para 7 it was stated that it is admitted that a grievance notice was served but the appellant does not fall within the definition of a workman and he can file a suit for damages. Evidence of the parties was recorded. Vide judgment dated 5-8-2002, the learned lower Court dismissed the grievance petition of the appellant.
3. Learned counsel for the appellant with reference to the case Brooke Bond (Pak'stan) Ltd v.
Conciliator appointed by Government of Sindh and 6 others (PLD 1977 SC 237) argues that his client was a workman within the meaning of I.R.O. 1969 as also the (Standing Orders) Ordinance, 1968 and the learned. Labour Court has erred in law by declaring him that he is not a workman or a worker going by the title of the post being held by his client. He vehemently argues with reference to the noting made by the respondents on the grievance notice admittedly served by the appellant to urge that the respondent had resorted to fraud and forgery by fabricating the inquiry proceedings.
According to the learned counsel the impugned order of termination of the services of his client is violative of the mandatory provisions of said (Standing Orders) Ordinance, 1968. Learned counsel for the respondents, on the other hand, refers to the case of Government of Balochistan, Live Stock Department v. Live Stock Employees' Union, Balochistan and 2 others (1993 PLC 13), Ghulam Muhammad v. Government of Punjab and others (2000 SCM R 30) and Muhammad Akram v. Senior Personnel Manager, F.E.C. Ltd. Rawalpindi and another (1988 PLC 490) to urge that the appellant was not a workman or a worker and as such the impugned judgment of the learned Labour Court needs no interference. Learned counsel, "owever, feels difficulty in answering the said other contentions of the learned counsel for the appellant but still supports the impugned judgment on all counts.
4. I have gone through the learned trial Court's records. Before I proceed to examine the evidence and consequently the law points arising in this case I may state here with reference to the context of the pleadings reproduced by me above, that there is no denial that a formal appointment order had not been issued to the appellant and of course that is not available even on the records. There is no denial of the specific statement in the grievance petition that the grievance notice was put up before the respondent No,5 who observed that legal formalities had to be complied with and the agreement of respondent No,3 with respondent No,5 is noted on the said document. There is no denial that a written order of termination had not been issued. It has been observed by the learned Labour Court in the impugned judgment and it has been admitted by the learned counsel for the appellant that the appellant was paid one month salary in lieu of termination notice.
5. Now the said grievance notice in original is on record as Exh. P16. It has been produced by Major
(R) Malik Pervez Saeed Tariq (Respondent No,5 in the case). He has stated in his examination-in- chief that the note Exh. P-16/1 dated 9-3-2001, was written by him. He has, however, denied that the legal formalities were not completed prior to the service of grievance notice dated 3-3-2001 by the appellant. Now, the said note admittedly written by this witness reads as follows:-- "It is suggested that we should complete all legal formalities like charge-sheet, inquiry and termination order of Mr. Asif Saleem, before he takes the matter to Court."
6. Respondent No,3 made the following endorsement in red ink:- "I agree with you. Co-ordinate with Mr. Shahid Insha and prepare all required documents and place in his file". "Now, in the said admitted position on record this is how this witness responded to the cross-examination by the learned counsel who, inter alia, was representing him as well.
"It is correct that I was appointed as an Inquiry Officer against the petitioner on 31-1-2001. I issued a notice to the petitioner and prior to the receipt of grievance from the petitioner, I had completed all the legal formalities. The object of this noting Exh.P16/1 was to compile the complete file which was being dealt by different departments."
' A bare reading of said note Exh.P 16/1 admittedly written by this witness on 9-3-2001 completely negates and falsifies the said statement made by him in the said cross-examination as P.W.-2 and consequently his statement as RW-5. Rather, the said notings on the said grievance notice by respondent No,5 agreed by the respondent No,3 leave no manner of doubt as to what assignment was given to respondent No,5 and the said Shahid Insha who appeared as RW-2. It is further evident that the documents were fabricated and placed on record, on 11-7-2001 i,e, the date on which the evidence of the respondent was recorded. These were objected for the said reason but no reason is forthcoming and the impugned judgment is silent as to why these documents were not placed alongwith written reply by the respondents.
7. Learned counsel also tried to argue that by signing what is termed as final settlement the appellant was estopped from filing the grievance petition. Now, the copy of this document is Exh. R- 1 at page 143 of trial Court's file. Now, I have already stated above that it is an admitted position that the appellant was appointed on 18-3-1'
95. However, this document narrates that he was appointed on 16-8-1999 and the period of his service has been stated as one year six months and nine days. This document is dated 3-3-2001 and the same is the date of the grievance notice. To my mind nothing turns on the said document, which rather appears to be spurious document, in favor of the respondent.
8. I am, therefore, satisfied that the appellant has been terminated without a written order and although the respondents have alleged misconduct against him, he has not been proceeded against in accordance with the mandatory directions contained in the said (Standing Orders)
Ordinance, 1968. This brings me to the question as to whether or not the appellant is workman or worker within the meanings of the said laws. Now section 2(viii) of I.R.O. 1969 defines an employer to be any person or bodx of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of an employment. The definition has then been broadened to include the persons mentioned in clauses (a) to (c) of sub-clause (viii) of the said section 2. To my mind clause (b) is relevant whereby a person responsible for the management supervision and control of the establishment is included in the said term.
9. Now, section 2 (xxviii) defines a "worker" and "workman" as follows:-- "Worker, and "workman" means any person not falling within the definition of employer who is employed (including employment as a superior or as apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, :etrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal discharge, retrenchthent, lay-off or removal has led to that dispute but does not include any person---
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
' Now there is no manner of doubt in my mind upon reading of said definition of employer in juxtaposition with that of a worker that appellant is a worker or workman within the meaning of said law. Now, section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 defines a workman as follows:-- "(i) 'workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
' Now according to para 4 of the grievance petition, the appellant has stated that his duty was to check the availability of the products packagewise in the market. The respondents have responded under this para as follows:-- "It's a procedural matter, needs no reply."
' I find that in his cross-examination as P.W.-1 nothing has been suggested to him regarding the performance of his duties. I have already mentioned above that formal letter of his appointment has not been issued and it has not been produced. RWs are silent as to the nature of duty of the appellant. Now coming to the law cited by the learned counsel for the parties. To my mind, the said case of Brooke Bond Ltd. fully supports the contention of the learned counsel for the appellant that his client is a workman. I may note here that their lordships with reference to the earlier judgments of the Hon'ble Supreme Court of Pakistan in case of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees' Union, Dacca, etc. (PLD 1961 SC 403) distinguished the said earlier judgment with reference to the definition as contained in the erstwhile Industrial Disputes Ordinance, 1959 and the I.R.O.
1969. Now coming to the judgments being relied upon by the learned counsel for the respondents I find that the said case of Ghulam Muhammad v. Government of Punjab (.002 SCMR 30) although, not on the point as to whether the petitioner before their lordships was not a workman does go to state a solutory proposition of law that a Labour Court can go behind the dismissal order and see for itself whether on facts and in circumstances of the case dismissal order was or was not justified both on merits as well as on facts. Their lordships observed that the intention of the legislature appears to provide a double check, one in the form of domestic inquiry to be held by an employer and the other in the form of a judicial inquiry by a Labour Court. In the instant case, there is no dismissal order and the learned Labour Court has opted to remain completely silent regarding the document Exh. 16 and its implication which are clear on its face and the admission of respondent No,5 as RW5 that he wrote the note Exh.P-16/1 thereon. So far as the case of Government of Baluchistan Live Stock Department is concerned, a learned Division Bench of High Court Balushistan decided the matter with reference to definition of a worker in the Factories Act, 1934. In the said case of Muhammad Hafeez a learned Division Bench of High Court Sindh at Karachi laid own the proposition that where violation of the said (Standing Orders) Ordinance, 1968 is alleged it is to be proved that the applicant is a worker within the meaning of the said law.
10. Having thus examined the records and the said law cited by both the learned counsel I do find that the learned Labour Court erred in holding that the appellant is not a workman. Simply because he is designated as a Sales Officer would not derogate from the fact that he is actually a workman doing manual/clerical work of visiting the markets and checking up the stocks therein.
11. For all that has been discussed above, this labour appeal is allowed. The impugned judgment of the learned Labour Court, Islamabad is set aside and the grievance petition filed by the appellant is allowed with costs through out. He shall stand reinstated with all back benefits. However, if the respondents want to proceed against him for any misconduct, they shall do so strictly in accordance with the provisions of Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968.