1981 PLP 250 (PLC)

(a) To sell company's merchandise and render proper service to customers. (b) To receive customers ' politely and smilingly with greetings and offer seats. (c) To offer for sale shoes and sundries to customers. (d) To examine customers old shoes and recommend repairs, if needed. (e) To receive shoes for repair and issue repair slips ; to send shoes for repairs and effect delivery when received back from the repair shop. (f) To examine customers feet and to recommend Pedicure treatment, if needed. (g) To make out cash memos for the merchandise sold and to receive cash from customers and hand it over to the Cashier. (h) To sell old stock first, and for that purpose identify the stock regularly. (i) For the purpose of placing proper order, to report demand and stock with sizes on prescribed form to the Manager, weekly/ fortnightly. (j) To fill up daily mirrors every day and prosperity card timely and to such other administrative work as may be required of him. (k) To receive consignments, accept only good quality shoes and return defective shoes with the approval of the Manager. (l) To attend conference arranged by the Manager or other superior officers according to instructions, for improvement of business, and to try and achieve their daily and weekly estimate as per category. (m) To bring to the notice of the Manager or other superior officers any discrepency or irregularity found by him in the shop effecting the welfare and reputation of the same and give suggestions for improve ment of business and rectification of such defects. (n) To render best co‑operation to other staff, the Manager, superior officers and maintain cordial relations with all concerned. (o) To keep the shop, stock (price stamping to be kept up to date) and furniture presentable for business and display up to date. (p) To work on behalf of the Manager as and when required during his absence from the shop in the ordinary course of day to day work and business." The duties of a shop helper are given at page 11, which is reproduced below :‑ "(f) Duties of Shop Helper.‑To carry out all orders of the Manager and other superiors in pursuance of the business and in the interest of the Shop both indoor and outdoor."

7. It is in the light of the above‑mentioned material that we have to determine the nature of duties performed by a Salesman working in a shop of the petitioner‑Company. A `worker' and `workman' is defined as under by the Industrial Relations Ordinance, 1969: "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 contractor 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 a managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding rupees one thousand 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. The definition of a workman given in the W. P. Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968 reads as under :‑ "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward.

8. It is not denied even by Mr. M. S. Bokhari, the learned counsel for the petitioner, that the definition of a worker/workman given in the Industrial Relations Ordinance, 1969 is very wide and will cover the case of the respondent. His contention, however, is that this case is governed by the definition of a workman as given in W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968: As enunciated by their Lordships of the Supreme Court in 1971 P L C 1 there are the following three essential requisites necessary to make an employed person a workman :‑ (1) He must be employed for hire or reward ; (2) He must be employed to do any skillled or unskilled, manual or clerical work ; and (3) He must be employed in an industrial or commercial establishment. Now we have to apply these requisites to the facts of the present case. Although in their statements Rahat Mahmood Butt, respondent, and Mr. tumid Hussain, Provincial Controller, made certain contradictory assertions regarding the duties of a Salesman, yet documents Exh. P. 3 and P. 5 are more authentic and are admitted by both the parties. In fact these documents are officially issued by the petitioner‑Company for the guidance of their Salesmen. Exh. P. 3 contains 15 duties of a Salesman while Exh. P. 5 is a booklet containing standing orders and rules for shop employees (other than shop Managers). According to Exh. P. 3, it is inter alia the duty of a Salesman to clean his stock and arrange it properly, check quality while receiving the consignments, make his fortnightly statement with care and anticipation and fill up daily mirror and prosperity card regularly. At page 9 of Exh. P. 5 are enumerated the duties of a Salesman. According to this document, the duties of a Salesman inter alia are to sell company's merch andise and render proper service to the customers, to receive customers politely and smilingly with greetings and offer seats and to offer for sale shoes and sundries to them, to examine customers old shoes and recommend repairs, if needed, to receive shoes for repair and issue repair slips and affect delivery when received back from the repair shop, to examine customers feet and to recommend Pedicure treatment, if needed, to make out cash memos for, the merchandise sold and to receive cash from the customers and hand it over to the Cashier, to fill up daily mirror every day and prosperity card timely, to receive consignment, accept only good quality shoes and return defective shoes with the approval of the Manager.

9. From the perusal of the above material, it can reasonably be inferred that a part of the duties of Salesman is of clerical nature like preparing daily mirror and prosperity cards, fortnightly statement and to make out cash memos. for the merchandise sold. The other part of his duties is clearly of manual in nature as he has to clean his stock and arrange it properly, check the quality while receiving the consignment, to receive customers and offer them seats, to offer for sale of shoes and sundries to the customers, to examine customers old shoes and recommend repairs, if needed, to receive shoes for repair and issue repair slips, to send shoes for repairs and affect delivery when received back from the repair shop, to receive consignment and accept only good quality shoes rind return defective shoes with the approval of the Manager and to examine customers' feet and to recommend Pedicure treatment, if needed. These duties are mentioned in the official documents Exs. P. 3 and P.

5. These duties are unskilled in nature. After taking into consideration the various duties admittedly performed by the respondent as a Salesman, I have reached the conclusion that the respondent is also covered by the definition of a workman given in the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

10. I have carefully gone through the authorities cited by the parties and I am of the view that mere label or designation of a Salesman is no sufficient to determine his status, but it is the true nature of the duties performed by him, which is the determining factor to ascertain whether he is a workman or not. I have enumerated above the duties performed by the respondent and most of those duties are supported by the official documents Exhs. P. 3 and P.

5. It is in the light of such material available on the record and not more academically that we have to determine the question whether the respondent is covered by the definition of workman or not. Each case depends upon its own facts. The nature of duties performed by the respon dent in the instant case clearly brings him within the purview of the definition of a workman under W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as held above.

11. Mr. Naeem Sultan Butt, the learned counsel for the respondent, has also tried to argue that the definition of a workman given in Standing Orders Ordinance, 1968 should not be taken into consideration for deciding the application of the respondent filed under section 25‑A of the Industrial Relations Ordinance, 1959. According to him, the definition of a workman given under the Standing Orders Ordinance, 1968 is not applicable to the instant case as it is the definition given under the Industrial Relations Ordinance, 1969 which applies to the respondent as his grievance petition has been filed under section 25‑A of the Industrial Relations Ordinance, 1969. Reliance in this behalf has been placed upon the following authorities :‑ (1) 1977 S C M R 1031, and (2) 1979 P L C 1311 It is not necessary to decide this point in this case because the respondent has already been held to be a workman under Standing Orders Ordinance, 1968.

12. For the foregoing reasons, I find no substance in this revision petition and the same is hereby dismissed. Petition dismissed.