SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Mr. Justice Guizar Ahmed, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
CIVIL PETITIONS NO.3587 TO 3589 OF 2020
Against the judgment dated 20.11.2020, passed by the Islamabad High Court, Islamabad
in Writ Petitions No.327, 340 and 342 of 20201
Getz Pharma (Pvt) Limited, Karachi. (in all cases)
...Petitioner(s)
Versus
Muhammad Nafees and another. (in CP.3587 of 2020)
Saeed Akhtar Awan and (in CP.3588 of 2020)
another.
Umar Farooq lilian and another. (in. CP.3589 of 2020)
.Respondent(s)
For the Petitioner(s)
(in all Cases)
For Respondent No.1
(in all cases)
Date of Hearing
Mr. Faisal Siddiqi, ASC
Mr. Muhammad Bashir Khan, ASC
24.03.2021
ORDER
GULZAR AHMED, CJ.- The petitioner-Getz Pharma
(Pvt.) Limited, has filed these three petitions assailing the common
judgment dated 20.11.2020, passed by the learned Single Judge
of the Islamabad High Court, Islamabad (the High Court),
whereby the three writ petitions filed by the petitioner were
dismissed.
C.P.No.3587 of 2020
2. Respondent No. 1-Muhammad Nafees (the respondent)
was employed by the petitioner through letter dated 31.01.2005 as
CJ's.358710 3589 of 2020 
2-
"Territory Manager/ Hearty". While working as a Senior Sales
Manager (I.B. and A-5 North), through letter dated 04.07.2017, he
gave one month's notice to the petitioner of his resigning from
employment. Through letter dated 06.07.2017, the petitioner
accepted the resignation of the respondent. The respondent filed
an application under Section 15 of Payment of Wages Act, 1936
(the Act of 1936) before the Authority claiming following amounts
as dues payable to him by the petitioner: -
Gratuity: 
Rs.
Provident Fund: 
Rs.
Pay of July, 2017: 
Rs.
Last claimed expenses Rs.
which have not been
paid.
15,50,670/-
7,70,000/-
1,22,100/-
65,000/-
Total: 
Rs. 24,42,750/-
The petitioner contested the matter before the Authority. The
Authority vide its order dated 26.12.2019, allowed the application
of the respondent and directed the petitioner to pay the following
dues to the respondent: -
Gratuity: 
Rs. 15,50,670/-
Provident Fund: 
Rs. 7,70,000/-
Pay of July, 2017: 
Rs. 1,22,100/-
Total: 
Rs. 24,42,750/-
The petitioner challenged the order of the Authority by filing
of a writ petition in the High Court, which by the impugned
judgment dated 20.11.2020, was dismissed.
C.P.No.3588 of 2020
3. Respondent No.1-Saeed Akhtar Awan 
(the
respondent) was appointed as "Territory Manager/Bravo" vide
CJ's.358710 3589 of 2020 
-3:
V..
letter dated 10.12.2003. While working as a National Sales
Manager (Alpha-11), he was issued a Show Cause Notice dated
30.11.2017. The respondent submitted his reply and thereafter,
the petitioner tilde letter dated 30.11.2017, dismissed him from
service. The respondent filed an application under Section 15 of
the Act of 1936 before the authority, claiming the following
amounts as dues payable to him by the petitioner: -
Gratuity: 
Rs. 
32,90,000/-
Provident Fund: 
Rs. 
10,00,000/-
Pay of November, 2017: 
Rs. 
2,25,100/-
Last 
serving 
month Rs. 
65,000/-
expenses which have not
been paid
Total: 
Rs. 
45,15,000/-
The petitioner contested the matter before the Authority. The
Authority vide its order dated 26.12.2019, allowed the application
of the respondent and directed the petitioner to pay the following
dues to the respondent:-
Gratuity: 
Rs.
Provident Fund: 
Rs.
Pay of November, 2017: 
Rs.
Last 
serving 
month Rs.
expenses which have not
been paid
Total: 
Rs,
32,90,000/-
10,00,000/-
2,25,100/-
65,000/-
45,15,000/-
The petitioner challenged the order of the authority by filing
of a writ petition in the High Court, which by the impugned
judgment dated 20.11.2020, was dismissed.
C.P.No.3589 of 2020
4. Respondent No. 1-Umar Farooq Khan (the respondent)
was appointed as "Territory Manager/ Bravo-11" vide order dated
CPsJ587lo 3589 of2020 
-4-
 -
- 12.0 1.2005. While working as Senior Sales Manager (Bravo-11)
Rawalpindi, he was issued a Show Cause Notice dated
30.11.2017. The respondent submitted his reply and thereafter,
the petitioner vide letter dated 30.11.2017, dismissed him from
service. The respondent filed an application under Section 15 of
the Act of 1936 before the authority, claiming the following
amounts as due to him payable by the petitioner:-
15,87,300/-
6,00,000/-
1,21,100/-
45,000/-
Gratuity: 
Rs.
Provident Fund: 
Rs.
Pay of November, 2017: 
Rs.
Last 
serving 
month Rs.
expenses which have not
been paid
Total: 
Rs. 
23,53,400/-
The petitioner contested the matter before the Authority. The
Authority vide its order dated 26.12.2019, allowed the application
of the respondent and directed the petitioner to pay the following
dues to the respondent: -
Gratuity: 
Rs. 
15,87,300/-
Provident Fund: 
Rs. 
6,00,000/-
Pay of November, 2017 
Rs. 
1,21,100/-
Total: 
Rs. 
23,08,400/-
The petitioner challenged the order of the Authority by filing
of a writ petition in the High Court, which by the impugned
judgment dated 20.11.2020, was dismissed.
5. Mr. Faisal Siddiqi, learned counsel for the petitioner
has contended that the very applications filed by the respondents
before the Authority were not maintainable for the reason that the
respondents, in the first place, were not workmen and secondly,
the respondent-Muhammad Nafees had resigned from service
2027).
CPs.358710 3589 of 2020
under apprehension of his dismissal from service, as he was found
to have formed a company by the name of Sun Health Care (Pvt.)
Ltd. (Sun Health Care) doing business of pharmaceutical
distributor/ seller and also got the said company registered with
the petitioner and started making supplies of the petitioner's
medicines to the said company. He contended that on the same
ground of forming the very said company, Saeed Akhtar Awan and
Umar Farooq Khan, respondents in Civil Petitions No.3588 and
3589 of 2020 were dismissed from service by letters dated
30.11.2017. He contended that being dismissed employees, the
respondents were not entitled to grant of dues claimed by them
and both the Authority in allowing the claims of respondents and 
I:
the High Court in maintaining the orders of the Authority
committed serious error of law. He further contended that the
Gratuity and Provident Fund, in terms of Section 15 of the Act of
1936, are payable under the law and the respondents in their
application before the Authority, have not mentioned at all under
what law the claim for Gratuity and Provident Fund has been
made by them.
6. Mr. Muhammad Bashir Khan, learned counsel for the
respondents, on the other hand, has contended that for making of
claim under Section 15 of the Act of 1936, before the Authority,
the respondents were not required to be workmen and the only
requirement was to show that they were employed persons with
the petitioner. He relied upon a judgment of this Court in the case
of Aurangzaib vs Medipak (Put.) Ltd. and others (2018 SCMR
F-
CPs.358710 3589 02020 
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7 While replying the Court's query, as to under what law
the respondents have based their claim for payment of Gratuity
and Provident Fund, learned counsel for the respondents
contended that it was based upon the Industrial and Commercial
Employment (Standing Orders) Ordinance, 1968 (the Ordinance
of 1968).
8.
We have considered the submissions made by the
leaned counsel for the parties and have also gone through the
record of the case.
9.
All the three respondents have filed their applications
before the Authority under Section 15 of the Act of 1936.
Subsection (1) of Section 15 is relevant to the controversy in hand,
which is as follows: -
"15. Claims arsing out of deductions from wages or
delay in payment of wages and penalty for malicious or
vexatious claims.-- (1) The Provincial Government may, by
notification in the official Gazette appoint any
Commissioner for Workmen's Compensation or other officer
with experience as a Judge of a Civil Court or as
stipendiary Magistrate to be the authority to hear and
decide for any specified area all claims arising out of
deductions from the wages, or delay in the payment of
wages, for non-payment of dues relating to provident fund
or gratuity payable under any law,] of persons employed or
paid in that area."
The very provision, inter alia, contains that non-payment of
dues relating to the Gratuity and Provident Fund, are those which
are payable under any 'law'.
10.
Learned counsel for the respondents has contended
that the respondents have claimed Gratuity and Provident Fund
under the Ordinance of 1968. In order to appreciate this very
contention of the learned counsel for the respondents, it is
CPs.358710 3589 of 2020 
-7k.
essential to examine the provision of the Ordinance of 1968. The
Standing Order 12 (6) and (7) are as follows:-
"12. Termination of employment.- ......
(6) Where a workman resigns from service or his services are
terminated by the employer, for any reason other than
misconduct, he shall, in addition to any other benefit to
which he may be entitled under this Ordinance or in
accordance with the terms of his employment or any custom,
usage or any settlement or an award of a Labour Court under
the Industrial Relations Ordinance, 1969 (XXIII) of 1969), be
paid gratuity equivalent to [thirty days, wages, calculated on
the basis of the [wages admissible to him in the last month of
service if he is a fixed-rated workman or the highest pay
drawn by him during the last twelve months if he is a piece-
rated workman], for every completed year of service or any
part thereof in excess of six months:
Provided that, where the employer has established a
provident fund to which the workman is a contributor and
the contribution of the employer to which is not less than
the contribution made by the workman, no such gratuity
shall be payable for the period during which such provident
fund has been in existence [* * * 1 1:]
[Provided further that if through collective bargaining the
employer offers and contributes to an "Approved Pension
Fund" as defined in the Income Tax Ordinance, 2001 (XLIX
of 2001), and where the contribution of the employer is not
less than fifty per cent of the limit prescribed in the
aforesaid Ordinance, and to which the workman is also a
contributor for the remaining fifty per cent or less, no
gratuity shall be payable for the period during which such
contributions has been made.]
(7) A workman shall be entitled to receive the amount
standing to his credit in the provident fund, including the
contributions of the employer to such fund, even if he
resigns or is dismissed from service."
11. The reading of the above provisions shows that they
apply to workman and Gratuity is payable to such a workman
whose services have been terminated or who has resigned from
employment. It provides for payment of Gratuity and lays down
the manner in which it is to be calculated. It further provides that
where the employer has established Provident Fund to which
workman is a contributor and contribution of the employer is no
less than the contribution of a workman, no such Gratuity shall
CPs.358710 3589 of 2020
be payable during which the Provident Fund has remained in
existence. The Provident Fund including contribution of employer
is payable to a workman, who resigns or is dismissed from service.
12.
The first moot question is whether the respondents are
at all workmen under the Ordinance of 1968 to qualify them to be
entitled to the benefit of Gratuity and Provident Fund under this
Ordinance. Section 2(i) of the Ordinance contains the definition of
the term "Workman", which is as follows: -
"(i) "workman" means any person employed in any
industrial or commercial establishment to do any skilled or
unskilled, manual or electrical work for hire or reward."
13.
Muhammad Nafees, respondent in Civil Petition I
No.3587 of 2020, was employed as Senior Sales Manager when he
resigned from service. Saeed Akhtar Awan, respondent in Civil
Petition No.3588 of 2020, was employed as National Sales
Manager when he was dismissed from service. Umar Farooq Khan,
Respondent in Civil Petition No.3589 of 2020, was employed as
Senior Sales Manager when he was dismissed from service.
14.
Learned counsel for the respondents has relied upon
the case of Aura nczzaib (supra), wherein this Court was also
dealing with a question as to whether petitioner Aurangzaib, who
was a Senior Sales Representative, was at all a workman. After
examining the job description of the petitioner and the law laid in
Pakistan Tobacco Comyang Ltd. vs. Pakistan Tobacco Compang,
Emplogees' Union, Dacca and others (PLD 1961 Supreme Court
403), Chairman, Brooke Bond (Pakistan) Ltd. ,Karachi vs. General
Secretarq, Union Karkunane .Brooke Bond (Pakistan) Ltd.,
Rawalpindi (PLD 1969 Lahore 717), .Brooke Bond (Pakistan) Ltd.
-1
CPs.358710 3589 of 2020
vs. Conciliator and 6 others (PLD 1977 Supreme Court 237) and
Sued Matloob Hassan vs. Brooke Bond Pakistan Limited, Lahore
(1992 SCMR 227), this Court has answered the question in J
negative i.e. Senior Sales Representative will not come within the
definition of the term "workman" as defined under the Ordinance -
of 1968.
15. 
We may note that in the case of Pakistan Tobacco
.1
Company Ltd. (supra) so also in Chairman Brooke Bond Pakistan I
Ltd., case (supra), the question that came up for determination
and decided by this Court was that whether a Salesman could be
considered as a workman under the Industrial Relations Act,
1947, Industrial Dispute Ordinance, 1959 and Industrial
Relations Ordinance, 1969. While in the case of Sued Matloob
Hassan (supra) the Court considered the application of definition
of term workman given in the Industrial Relations Ordinance,
1969 so also in the Ordinance of 1968. The Court dealt with the
matter as follows:-
8. A plain reading of the above subsection (1) of section
25-A of the Industrial Relations Ordinance shows that a
worker or a workman, who falls within the definition given
in above clause (xxviiij of section 2 of the Ordinance can
invoke the above provision of the Industrial Relations
Ordinance in respect of any right guaranteed or secured to
him by or under: -
(i)
any law; or
(ii)
any award; or
(iii)
any settlement for the time being in force.
Whereas, the above clause (3) of Standing Order 12
contemplates that the services of a workman shall not be
terminated nor shall a workman be removed, retrenched,
discharged or dismissed from service, except by an order in
writing containing the reason for the action. It further
provides that in case a workman is aggrieved by the
termination of his services or removal, retrenchment,
discharge or dismissal, he may take action in accordance :1
'2
CPs.3587 to 3589 of 2020
with the provisions of section 25-A of the Industrial
Relations Ordinance and thereupon the provisions of the
said section shall apply as they apply to the redress of an
individual grievance. In other words, the above clause (3) of
Sanding Order 12 incorporates the provisions of section
25-A of the Industrial Relations Ordinance by reference for
the purpose of enabling a workman as defined in clause (i)
of section 2 of the Ordinance to get redress against
termination of his services or removal or retrenchment,
discharge or dismissal, in violation of above clause (3) of the
Standing Order 12.
9. We may observe that as pointed out hereinabove, a
workman falling within the definition of "workman' and
"worker" given in clause (xxviii) of section 2 of the Industrial
Relations Ordinance can press into service the provisions of
section 25-A for the enforcement of any right guaranteed or
secured to him by any law or any award or settlement. If
the right which is sought to be enforced, is guaranteed or
secured by the provisions of the Industrial Relations
Ordinance or by the terms of an award or settlement, it is
enough that the workman comes within the ambit of the
definition given in the above clause (xxviii) of section 2 of
the Industrial Relations Ordinance, but in case, the claim of
the workman concerned is founded on a provision of any
other law, in that event if such law provides definition of a
"workman", he should besides being covered by the above
definition provided for in clause (xxviii) of section 2 of the
Industrial Relations Ordinance should also be covered by
the definition given in the relevant law. For example, if a
workman seeks the enforcement of the rights guaranteed
under the various provisions of the Standing Orders
Ordinance, he should also fall within the definition of the
"workman" given in clause (i) of section 2 of the Ordinance.
However, in case of termination of employment in violation
of clause (3) of Standing Order 12 as pointed out
hereinabove, it is sufficient that the workman concerned
falls within the definition of the "workman" given in clause
(i) of section 2 of the Ordinance and he need not be covered
by the definition of the "workman" and "worker" given in
clause (xxviii) of section 2 of the Industrial Relations
Ordinance."
The Court also dealt with the observation made by
Cornelius, CJ., as his lordship then was, in Pakistan Tobacco
Company Ltd's case (supra) which is as follows: -
"I consider that it admits of no doubt, that persons
who are engaged exclusively in the field of distribution
through proper agencies of the products of the
Company, are not assimilable either to the group of
workers whose manual labour contributes to that
product, or those of the clerical establishment who
perform the paper work connected with the operations
of the Company. The work of salesman is in a wholly
I
1
CPs.358710 3589 of 2020 
-11
U different category from manual work or clerical work,
and I feel no hesitation in agreeing with the decision of
the Tribunal upon this point, namely, that salesmen
do not fall within the definition of "workmen"."
Thus, the consensus opinion of the Court in the cited cases
is that salesman does not fall within the ambit of the term
workman.
16.
On reading of the judgment of this Court in
Aurangzaib 's case (supra), it is quite evident that this Court has
been taking consistent view that a salesman by very nature of his
work is not a workman and does not fall within the ambit of the
term workman. In Sued Mat bob Hassari's case (supra), a 5-
Member Bench of this Court has in clear terms held that on the
basis of admission and keeping in view the duties of the appellant,
i.e., a salesman did not predominantly involve manual or clerical
work and as such was not considered to be a workman within the
meaning of Ordinance of 1968.
17.
Now coming to the present case, the application under
Section 15 of the Act of 1936, filed by all the three respondents
before the Authority, the respondents have claimed that they have
joined the petitioner's company as a Territory Manager. In para-5
of their applications, the respondents have averred that according
to the judgment of the Supreme Court of Pakistan and Labour
Laws, the petitioner is liable to pay damages and interest at bank
rate to the applicants till date of payment. The respondents have
not at all claimed themselves or pleaded in their applications
before the Authority that they were workmen. The petitioner in its
reply/written statement has taken a specific plea that
I
CPs.35871o3589o12020 
-12-
respondents were not employed as worker or workman and that
they were employed as Territory Manager and at the time of
resignation/ dismissal of the respondents, they were working as
National Sales Manager/Senior Sales Manager and were employed
on contractual terms and on managerial positions
18. It seems from the record and also from the order of the
Authority that no evidence in the case was led by the parties. We
note that where the respondents themselves claim the dues of
Gratuity and Provident Fund and that too, under the Ordinance of
1968, on the principle as laid down by this Court in Stied Matloob
Hassan's case (supra), it was incumbent upon the respondents to
have alleged or taken a specific plea in their applications before
the Authority that they are workmen under the Ordinance of 1968
and in case where the employer disputes and denies such
allegation/ plea, the burden to prove the fact that respondents
were employed as workmen will be upon the respondents, and
after they have discharged such burden by leading of positive
evidence, the burden will shift upon the petitioner/ employer to
establish the fact that the respondents were not workmen. In the
absence of the evidence from the side of the respondents and on
the basis of pleadings of the parties, as stood before the Authority,
can it be said that the respondents have succeeded in establishing
the fact that they were workmen under the Ordinance of 1968.
The answer will be altogether in negative, for there is neither any
allegation or plea in the applications of the respondents before the
Authority that they were workmen under the Ordinance of 1968
nor they recorded their evidence before the Authority to establish
CPs.358710 3589 of 2020 
- 13 -
the fact that they were workmen and performing manual or
clerical work in terms of Section 2(i) of the Ordinance of 1968.
19.
The other aspect that was emphasised by the learned
counsel for the respondents is that in order to avail the benefit of
payment of dues of Gratuity and Provident Fund, the respondents
were not required to establish that they were workmen and it was
sufficient for them to have established that they were employed
persons. This very submission of the learned counsel for the
respondents fails to take into consideration that where an
employed person has to claim his dues of Gratuity and Provident
Fund under Section 15 of the Act of 1936, the dues of Gratuity
and Provident Fund have to be those, which are payable under
any "law". The word payable under any law, in our view, could not
be anything else than the law as made by the competent
legislative authority and will not stretch to the dues of Gratuity
and Provident Fund payable under the contract. The respondents, I
by virtue of their contract of employment, as placed on record,
were entitled to be paid Gratuity and Provident Fund. This
contract of employment of the respondents with the petitioner
could not be termed as a law but at best could be considered as to
whether it is enforceable in law or not.
20.
On the basis of the above discussion, we are of the
considered view that the respondents have failed miserably to
establish their claim that they were entitled to the grant of
Gratuity and Provident Fund as claimed by them in their
applications before the Authority.
dismissed.
Bench-I
Islamabad
24.03.2021
'APPROVED FOR REPORTING'
Rabbani/
RIEF
DGE
CPs.3587to 3589 of 2020 
- 14-
e 
21. 
We, therefore, convert all the three civil petitions into
appeals and allow the same by setting aside the orders dated F
26.12.2019 of the Authority and the impugned judgment
20.11.2020, where it allows granting of Gratuity and Provident
Fund to the respondents and claim of the respondents to the
extent of payment of Gratuity and Provident Fund is accordingly