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Appeal No. LHR‑335 of 1982/Pb., decided on 21st March, 1983.

Industrial Relations Ordinance (XXIII of 1969)‑--

‑‑Ss. 25‑A (5) & 37 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i) Salesman seeking redress against removal from service‑Labour Court relying upon precedent rulings of superior Courts observing that salesman was not a workman and dismissing petition as not maintainable‑No evidence regarding nature of duties of petitioner lead‑Labour Court, held, should go into all. facts of case coming on record by oral or documentary evidence on points ‑in controversy except pure question of law‑Question arising whether employee petitioner was or was not a workman‑Opportunity of evidence regarding nature of duties should be given ‑ Dismissal of petition without bringing necessary material on record, in circumstances, held, a contravention of S. 25‑A (5) of Industrial Relations Ordi nance. 1969 ‑ Decision of Labour Court set aside by Labour Appellate Tribunal and case remanded for re‑decision.

Syed Moin‑ud‑Din for Appellant.

M. S. Bokhari for Respondent.

Date of hearing : 15th March, 1983.

This appeal emanates from the decision dated 11‑5‑1982 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby, the grievance petition of the appellant for his re‑instatement in service was dismissed in limine on the sole ground that he was not covered by the definition of workman.

2. The appellant was a salesman in the respondent business concern. He ,is alleged to have applied for leave by telegram on the ground of illness but without giving him any information about the sanction or otherwise of the leave he was removed from service. The learned trial Judge has observed that according to the rulings of the superior Courts, a salesman is not a workman, but has not cited any particular authority. 1t, therefore, cannot be said if the decision of the learned lower Court is supported by any ruling. Authorities of superior Courts are considered with regard to the material brought on the record. If facts and evidence differ, ‑ a cited authority cannot be germane to the particular case in hand. So in every case first of all an opportunity is afforded to the parties to lead evidence about the duties of the employee concerned and only after that the case can be properly decided with the help of the authorities which may be cited by the parties. The requirement of section 25‑A (5) of the Industrial Relations Ordinance, 1969 is that the Labour Courts should go into all the facts of the case. Needless to say that facts of the case always come on the record in the shape of oral or documentary evidence op the points in controversy between the parties, except pure question of law. Dismissal of the petition lodged under section 25‑A is quite in contra vention of clause (5) of the section. Of course if a petition does not disclose any cause of action, it may be straightaway dismissed but when the question is whether the employee is or is not a workman, it is neces sary to give opportunity to produce evidence, unless the duties of the employee are admitted by the parties. The present case is of such a nature that it could not be properly decided without bringing necessary material on the record.

3. As upshot of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, remand the case for re‑decision in the light of the observations made above.

. Appeal accepted.

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