1976 PLP 491 (PLC)

4. During the proceedings P. W. 1 Mr. Muzaffar Ahmad Butta, General Sales Manager, Brooke Bond Ltd., Karachi, on behalf of the applicant and Mr. Khalilur Rehman, General Secretary, Union Karkunan-e Brooke Bond Ltd., Peshawar on behalf of the respondent, were examined. A precise of the material evidence pertaining to the point involved in the case is given as under. Karkunan-e-Brooke Bond Pakistan Ltd. N.-W.F.P., Vegetable Market, ' Abbottabad is the sole Trade Union in the establishment of Brooke Bond Ltd., vide certificate issued on 15-3-71, referred to above. The Trade Union is also the Bargaining Agent vide letter dated 4th of August 1971, referred to above. Brooke Bond Company Ltd. imports tea in bulk which is blended and packed in Karachi. The packets are then sent to various depots in the country. Each depot is controlled by a sales Manager. One depot controls various markets. For each of the markets a salesman is appointed. The basic wages of a salesman is Rs. 173 per month. A salesman is paid basic salary, dearness allowance, sales basis allowance, special adjustment payment and bonus, and commission on sales, if the sale exceeds certain limit. A salesman distributes the tea packets or packages in the market, and is assisted by a vanman. The salesman has a regular programme which is prepared by the Controller with his consultation. The Controller goes round the depot occasionally. The salesman prepares a small columnised daily statement known as daily sale sheet. He also prepares two weekly returns relating to accounts and sends them to the depot Manager. A salesman can appoint a temporary vanman, subject to the approval of the Controller. A salesman can also allow a vanman to go on leave, but the leave is subject to the sanction of the Branch Manager, who maintains a leave-pass of the vanman according to the entitlement of the vanman. The Branch Manager can only transfer a permanent vanman from one depot to the other. The Branch Manager or other higher authorities can terminate the services of a permanent vanman. A salesman cannot leave his office without intimation to the Branch Manager.

5. At the conclusion of the proceedings, the learned Labour Court by his order dated 7-11-73, held that "the salesman is not a workman and the notices issued by the respondent's Union dated 4-7-71, 19-6-71 and the proposed meeting dated 11-8-71 are illegal, invalid and incompetent in law." He thus accepted the petition and directed the parties to bear their own costs. The Union Karkunan-e-Brooke Bond Pakistan Ltd., N.-W. F. P. Sabzi Mandi, Abbottabad, District Hazara, through Khalilur Rehman, General Secretary, have come up on appeal.

6. The principal objection of respondent (Brooke Bond Pakistan Ltd.) is that the appellant-Union which includes salesman is a Trade Union combining workmen and employers, and therefore, illegally constituted Union and thus not entitled to serve notices dated 19-6-71 and 4-7-71 upon the respondents. It will be advantageous to appreciate the definitions of "worker" and "workman", "industrial dispute", "employer" and "Trade Union". Section 2 (n) of the Industrial Disputes Ordinance, 1959 (Ordinance LVI of 1959) defined "workman" as under:- "(n) 'workman' means any person including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute, a workman discharged during that dispute but does not include any person employed in the police or armed forces of Pakistan." The Industrial Relations Ordinance, 1969, as amended by Industrial Relations (Amendment) Ordinance, 1970, has defined "worker" and "workman" differently in section 2 (xxviii) than the previous definition of workman in the Ordinance of 1959. The definition is as under: "(xxviii) 'worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as an apprentice) in an establishment or industry for hire or 'reward either directly or through a contractor whether the terms of employment be expressed or implied, an for the purpose of any proceeding under the Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to the dispute. "The definition of "worker" - and "workman" in section 2 (xxviii) has undergone some amendments by Ordinance IX of 1972 and another Ordinance notified on November 7, 1972. This definition is quoted below : (xxviii) 'worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contract: r whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrench ed, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, 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 six 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." This definition has undergone some improvement in Clause (b) by Ordi nance XXIX of 1973. The latest definition of "worker" in section 2(xxviii) is reproduced below: "(xxviii) 'worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor, or as an apprentice) in an establishment or industry for hire or reward either directly or through a contrac tor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute (but does not include any person-(a) who is employed mainly in managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or perform, 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)." The "industrial dispute" has been defined in section 2(xiii) of the I. R. O., 1969 as under "(xiii) "industrial dispute, means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions or work of any person;". The "employer" has been defined in section 2(viii) of the I.R.O. as under (viii) Employer , in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes (b) any person responsible for the management, supervision and control of the establishment;" The "Trade Union" has been defined in section 2 (xxvi) thus (xxvi) Trade Union, means any combination of workmen or employers formed primarily for the purpose of regulating the relations between workmen and employers or workmen and workmen or employers and employers or for imposing restrictive conditions on the conduct of any trade or business and includes a federation of two or more Trade Unions; The Brooke Bond Pakistan Ltd. instituted the application under section 34 of the I.R.O., 1969 on 23-8-71, before the Labour Court, Peshawar. The proceedings were concluded on 7-i1-73. It may not be out of context to mention that the learned Labour Court, Peshawar has based his judgment on a case reported in Chairman, Brooke Bond (Pakistan) Ltd, Karachi v. General Secretary, Union Karkunan-e-Brooke Bond (Pakistan) Ltd., Rawalpindi (1). While deciding that case the learned Single Judge considered the definition of "workman" as given in section 2 (n) of the Industrial Disputes Ordinance of 1959, quoted earlier. At the time of institution of this application under section 34 of the I. R. O., 1969 till the conclusion of the proceeding of the application, the definition of "workman" had undergone material changes and amendments. The words "worker" and "workman" as defined by I.R,O., 1969 mean: "Any person not falling within the definition of employer who is employer (including employment as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and for the urpose of any proceedings under this Ordinance in relation to an industrial dispute include a person who had been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connec tion with or as a consequence of that dispute or whose dismissal. dis charge, retrenchment, lay-off or removal has led to that dispute." Thus according to the present definition of "workman", any person employed for hire or reward in an establishment would be a "workman" if he does not fall within the definition of "employer". To determine whether a person is a "workman" or not, we have to look at the definition of employer and not that he is a workman or supervisor. The fact that a person is designat ed as supervisor would not be sufficient to bring him within the category of employer unless he satisfies the test laid down in the definition of "employer". Employer in relation to an establishment means any person, who employs workman in establishment and includes any person responsible for the Management, supervision, and control of the establishment, and who is employed mainly in a managerial or administrative capacity. The test for the determination whether a person is a workman would be the nature or extent of control and supervision of the employer. In each case it would depend upon the facts and circumstances of the case as to whether 2 person is or is not responsible for the Management, supervision, and control o1 the establishment. The maintenance of discipline and the authority to give decisions in respect of disciplinary matters is the responsibility of the employer Sale of tea is the most important affair of the Company and all those person, responsible for making sale policies or programmes and all those entrusted with the execution of such policies and programmes fall within the category of employers. In view of the discussion and the extract from the evidence of the parties, given earlier. I am of the opinion that a salesman is a "worker" or "workman" as he does not fall within the definition of "employer", who is employed in the establishment. The appellate-Union being a registered, Trade Union in the establishment as well as declared bargaining agent being a sole Union in .the establishment, is entitled to give notice of and declared strike in accordance with the provisions of the I.R.O. in view of section 22(12) -(c) of the I.R.O.

7. The Brooke Bond Pakistan Ltd., respondent in this appeal, by its application under section 34, I. R. O., 1969 has also called in question the constitution of the Trade Union of the appellant because according to its allegations it is a combination of workmen and employers and not of workers pure and simple and has sought a declaration therefore. The declaration prayed for, in my view, does not come within the purview of industrial disputes. Section 35(5) (a) provided that a Labour Court shall: "(a) adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance." The Labour Court, therefore, cannot grant a declaration of the nature prayed for. In conclusion, I accept the appeal and set aside the impugned Award of the Labour Court dated 7-11-73. Parties to bear their own costs.