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Appeals Nos. LHR‑15 of 1984 and 586 of 1983, decided on 8th December, 1984.
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (V1 of 1968)‑
‑‑‑S. 2 (f)‑Workman‑Whether or not an employee a workman --Onus of proof‑Sales Assistant promoted as Sales Officer‑ Contention that even after promotion doing same duties as Sales Assistant and failing within definition of workman‑Onus of proof, in circumstances, held, upon petitioner and his solitary statement in his own favour without any other evidence regarding duties not sufficient to discharge such onus‑"Manual work"‑Means work done by hands‑Traveling to shops in Market to Check stock regis ters and prevailing rates‑Not a manual work--Sales Officer doing such duties, held, not a workman.
M. S. Bokhari for Appellants.
Pervez Inayat Malik for Respondent.
Date of hearing :1st December, 1984.
The two appeals captioned above arises from the decision, dated 12th December, 1983 recorded by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby Tariq Munir Cheema hereinafter to be called as the respondent) was directed to be reinstated in service without back benefits. The respondent has in his appeal claimed back benefits, whereas Dawood Yamaha Limited (hereinafter to be described as the appellant) has challenged the direction of reinstatement of the res pondent. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.
2. The respondent was a Sales Assistant and was promoted as Sales Officer. His services were terminated on 2nd November 1982 as no longer required, which led him to bring action under section 25‑A of the Industrial Relations Ordinance, 1969.
3. It has been argued by the learned counsel for the appellant that the respondent being a Sales Officer is not covered by the definition of workman. Since this is not the case of the appellant that the respon dent had supervisory power, so the objection of non‑workman is under section 2 (i) of the Standing Orders Ordinance, 1968. The respondent stated his duties and said that even after his promotion as Sales Officer his duties remained the same which he was performing as Sales Assistant. No other evidence was led by the respondent in support of his statement about the duties. This is not believeable that even after his promotion as Sales‑Officer, the respondent continued performing the duties of Sales Assistant and did not act as Sales Officer. Solitary statement of the respondent in his own favour is not sufficient to discharge the onus when he admits his promotion as Sales Officer. R. W. 1 bad controverted the meagre and scanty evidence of the respondent. He has said that the res pondent as Sales Officer used to inspect and check the dealers and to survey the stock of the dealers and rates in the market. Needless to say that stock registers are checked and not the stock. The rates are checked to see if at the rates fixed by the company the articles are being sold and that what are the rates of the goods of the other manufacturers in the market. For doing these duties neither clerical nor manual work is done. Manual work is that which is done by hands. Hands are not put to work for traveling to the shops in the market. The learned lower Court has wrongly held that the respondent had to do manual work by going from shop to shop. According to the statement of R. W. I, the duties of the respondent as Sales Officer were alike the duties of sales supervisor of tea companies, who have been held to be non‑workmen in various rulings. The respondent, therefore, is not covered by the definition of workman given in section 2 (i) of the Standing Orders Ordi nance, 1968.
4. It has been argued that Standing Orders Ordinance, 1968 is not applicable as the number of employees of the appellant at Lahore was never 20 or more. Admittedly, the appellant's Head Office is at Karachi and branches all over Pakistan. t is thus one establishment. The mere fact that its Lahore Office is registered under the Shops and Establishments Ordinance is not sufficient to show that the Lahore Branch is independent and is a separate establishment. The finding of the learned lower Court, therefore, is correct on the point.
5. So far as the point of termination of services of the respondent is concerned, the respondent stated that the post existed after his termina tion and some other person was working thereon. This part of evidence of the respondent was not rebutted by R. W. 1, nor any document was produced. No seniority list was brought to show that the respondent was junior most. So. the finding of the learned lower Court on the factual side is correct. Since the respondent did not state that after the termination of his services, he remained jobless, back benefits were rightly disallowed. Since the order of reinstatement has not to last, no question of back benefits arises.
6. As a result, the appeal of the appellant is accepted and setting aside the direction of reinstatement, the grievance petition of the respon dent is dismissed. The appeal of the respondent for back benefits is also dismissed.
A. E.
Orders accordingly.
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