1989 PLP 916 (PLC(CS))

S.M. Arif for Appellant. Javed Altaf for Respondent. Date of hearing: 31st August, 1988. The appeal captioned above emanates from the decision dated 12‑5‑1988 recorded by learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad whereby the grievance petition of the appellant for his reinstatement in service has been dismissed holding that the appellant is not covered by the definition of workman given in section 2(i) of the Standing Orders Ordinance, 1968. No decision has been recorded on the merits of the case. 2. The appellant is a Salesman and his duties are given in Exh. R.3. Learned counsel for the appellant has argued that the duties given under the heading `Depot Premises' in Exh. R. 3 are manual. The said duties are that the Salesman has to maintain the premises of the Depot clean and in a presentable condition, so that it should be perfectly suitable for the storage of company's products and that the Salesman is responsible for the payment of depot rent to the landlord. It is not mentioned that the Salesman has to himself clean the premises. Payment of rent is not a manual act. The other duty given under the heading is that the Salesman is responsible for the custody and good condition of locks and keys of the depot premises and that the depot be kept clean. Mere custody of locks and keys is not a manual act. According to the arguments, the duties given under the heading "stocks" are clerical. This is true that the Salesman has to make entries in the register about the receipts, sales, transfers and stocks but this is not the main duty and is ancillary to the duties of distribution and sales of the goods. The receipt of sale proceeds and sale of goods are to be entered in the register. The duties given under the heading "Cash Proceeds of Sale" are that the cash will be deposited in the company's collection account in the bank or remitted strictly in accordance with the schedule of remittance and the cash so deposited or remitted will be kept in the depot wall coffer or safe. Depositing of the sale proceeds again is not a manual work. Putting the money in the safe is a duty ancillary to the sale. If no sale taken place, no question of receipt of cash arises and thus no question of keeping the money in safe would arise. The duties given under the heading "Returns to be made to Branch Office" are again ancillary to the main duty of sale and distribution of goods. Weekly Sales and Stocks and cash reports are to be made showing the position of Dept Sales and Stocks at the conclusion of all transactions upto and including Friday night and the remittance or deposit of the net cash proceeds of such transactions. Since such entries are only weekly, no good deal of clerical work is to be done. The same is the position with the duties given at serial Nos. 2 to 5 of the abovementioned heading. The duties numerated in serial Nos. 1, 2 and 3 of the heading, "Records to be maintained in Depots" are included under the headings of "Stocks and Cash Proceeds of Sale". Placing of correspondence with the branch office, circular letters received, visits reports issued by the Sales Assistant and dealers list on the record in not clerical work. Packrites weekly return and any other returns introduced by the company mentioned at serial Nos. 3 and 4 are covered by the heading "Returns to be made to Branch Office" and are thus not separate duties. The duties given under the heading". The following will be displayed in the Depot premises" are not clerical. The register and documents mentioned under the heading "The following will be retained in the Depot for use and Inspection" are included in the heading" Records to be maintained in Depots" and are not separate duties. The duties given under the heading `Sales' are ancillary to the sale and to the distribution of goods. The main duty is the delivery of goods at the time of sale and issuance of cash memos and receipts are ancillary since if no sale or distribution takes place, no question of preparation of the said documents arise. Dealers's list can be prepared only once and thus this work is not to be done daily. The duties given under the heading of "Itinerary" are that the Salesman will visit all ba7ars, markets, villages etc. strictly in accordance with the itinerary approved by the branch office. Visiting of bazars and villages etc. is not a manual work. The duty given under the heading "Advertising Display etc." is that the Salesman will be responsible for the display of the company's brands to the best advantage in dealers' shops and for the distribution or display of advertising material in accordance with the instructions received from branch office. It is not mentioned that the Salesman will himself display company's brands in the dealers shops. It shows that he has to deliver and distribute the brands and advertising material to the dealers and has to see that they are affixed in the shops at some conspicuous places. So these duties also are not manual. Giving of information to the sales assistant regarding competitors' activities which amount to an infringement of the company's labels, trade marks, etc. again is neither manual nor clerical. Information can be passed on even orally. Duties given under the heading "Depot Safety" are casual. Such eventualities may occur very seldom. So far as the distribution and sale of goods are concerned, vanmen are supplied to the salesmen as in the present case and they take the goods on the vans and deliver them under the instructions of the salesmen to the shop‑keepers and to the dealers to whom the good are sold. So the vanmen do manual work and not the salesmen while selling and distributing the goods. The appellant no doubt stated that sometime he takes goods on his bicycle but this is not believable. When admittedly he has been supplied a vanman, no question arises that he sometime carries the goods. If the vanman per chance is not available and the appellant takes the goods on his bicycle, that would be due to an emergency and not as a part of his duties. Learned counsel for the appellant has cited certain rulings but they are not relevant. He has cited 1996 P L C 302 and P L D 1977 S C 237. The first mentioned ruling is not germane to the facts of the present: case. In Brooke Bond (Pakistan) Ltd. v. Conciliator reported in P L D 1977 S C.' 237, the definition of workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 was involved and not the definition of workman given in section 2(i) of the Standing Orders Ordinance, 1968, therefore, the said ruling for this reason is not germane to the facts of the case. On the other hand, it has been held in the case "Chairman, Brooke Bond (Pakistan) Ltd. v. General Secretary Union Carkoonan‑e‑Brooke Bond (Pakistan) Ltd. reported in P L D 1969 Lah. 717 that the salesman of a Tea company is not covered by the definition of workman given in section 2(n) of the Industrial Disputes Ordinance (LVI of 1959). The definition given in the said Ordinance is the same as given in? (Sardar Muhammad Abdul Ghafoor Khan Lodhi, Appellate Tribunal) section 2(i) of the Standing Orders Ordinance, 1965, therefore, the ruling is quite germane to the facts of the present case. It has been observed:‑‑ "In case the manual work forms only a small and an axiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report he cannot be considered to be workman if otherwise his main and primary duties do belong to this category." It has been further held:‑‑ "The clerical work involved in the discharge of the responsibilities, of salesman who is responsible for the sale and distribution of tea in his area, in preparing the cash memo, the small column wise daily statement of sales and the weekly returns form but a small part of his duties and are altogether consequential in nature. These do not in any way change the complexion of the basic work for which the is employed icy the company." The appellant has the same duties as a salesman which the salesman in the above mentioned ruling had to perform. The duties of the appellant as a salesman are to sell, distribute and promote the sale of company's goods and all other duties mentioned in Exh.R.3, which are clerical or to some extent manual or consequential to his main duties. The other rulings cited by the learned counsel for the respondent do not involve the duties of the salesman of a Tea company, so they are not relevant. The appellant thus is not covered by the definition of workman given in section 2(i) of the Standing Orders Ordinance, 1968 and the finding, of the learned lower Court on the point is correct. 3. Since Standing Orders Ordinance, 1969 is not applicable, the appellant is not protected by its provisions and thus it cannot be said that any right guaranteed by the Standing Orders Ordinance has been violated. The grievance petition in these circumstances was rightly dismissed. 4. As a result the appeal fails and is dismissed. A.E./589/Lb. P???????????????????????????????????????????????????????????????????????? Appeal dismissed.