P L D 1969 Dacca 386 (PLP)

BAQUER, J.‑This first miscellaneous appeal is directed against the order of First Industrial Court, East Pakistan, dated the 2nd August 1965. The dispute was raised under section 5(5) of the Industrial Disputes Ordinance, 1959, against the Pfizer Laboratories Limited by their seven field employees designated as "pro fessional service representative" serving under them in East Pakistan. The employers that is, the second party, Pfizer Laboratories Ltd., raised a preliminary objection that their representatives are not "workmen" within the definition of the term in Industrial Disputes Ordinance. The other grounds of preliminary objections taken in their written statement not being pressed the tribunal disposed of the matter by only considering the point as to whether the representatives of the firm were "workmen" as defined in section 2(n) of the Ordinance. After considering the definition, as given in section 2 (n) of the Ordinance the Chairman of the Tribunal dismissed the case under section 5;5) of the Ordinance being of the view that the re presentatives of the second party were not "workmen" in terms of section 2;n) of the Industrial Disputes Ordinance. Mr. M. M. Haque, learned Advocate appearing for the appellants has referred to the definition of "workmen" as given in section 2(n) of the Ordinance of which the relevant part is 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 , Mr. Haq wants to say that the field representatives as here are covered by the definition. For a decision on this question it is necessary to have some discussion as to the nature of the work that these representatives were called upon to perform. One witness on each side was examined for this purpose and it appears from the evidence of P. W. 1 that the function of the appellants, as representatives, was to promote sale of the firm's products for which they had to visit medical pharmacies all over the country and also to contact medical men. It also appears that these men are given bonuses for excelling in the sale of the products. From the evidence it is true, as it appears, that incidental to this main work they had to take down orders, submit daily and periodical reports and also to carry on other correspondence, they had also to keep an account of the number of samples given to doctors. They had also to arrange samples; literatures in their bags and carry them on professional visits. Mr. Haq wants to say that this work of occasional corres pondence and of arranging the samples necessarily involves, some amount of clerical and manual work and, therefore, they are, "workmen". The amount of time spent on this kind of work also has been brought out in evidence. It shows that only about an hour in the morning is spent by those men for arranging the bags and about two hours or so in talking with the doctors. The talks with the doctors are primarily meant for promoting the sales and is more or less field work. Occa sional writing of correspondences and arranging the bags cannot convert a representative into a workman, within the definition. The test is what is the main nature of the work for which these men have been employed. Here these men have been clearly emplo3 ed only for the purpose of promoting sale of the company. The only little clerical and manual work done by them is only incidental to their work as representatives. The very definition says "employed to do manual and clerical work". Here they are employed as field representatives and not employed for the purpose of correspondences sitting at the desk. Reliance has been placed on the decision In May & Baker (India) Ltd. v. Their Workmen (1961 P L C 1127), of which the relevant observations are as under: ‑ "The next contention on behalf of the Company is with respect of the order of re‑instatement of Mukherjee. The Company's case is that Mukherjee was discharged, with effect from 1st April 1954. At that time the definition of the word "workman" under section 2 (s) of the Industrial Disputes Act did not include employees like Mukherjee who was a represen tative. A "workman" was then defined as any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward. Therefore doing manual or clerical work was necessary before a person could be called a workman. This definition came for consideration before Industrial Tribunal and it was consistently held that the designation of the employee was not of great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the persons concerned and incidental to his main work which is not manual or clerical, then such a person could not be a work man. It has therefore to be seen in each case from the nature of the duties whether a person employed is a workman or not, under the definition of that word as it existed before the amendment of 1956. The nature of the duties of Mukherjee, is not in dispute in this case and the only question therefore is whether looking to the nature of the duties it can be said that Mukherjee was a workman within the meaning of section 2 (s) as it stood at the relevant time. We find from the nature of the duties assigned to Mukherjee that his main work that of canvassing and any clerical or manual work that be had to do was incidental to his main work of canvassing and could not take more than a small fraction of the time for which he had to work. In the circumstances the Tribunal's conclusion that Mukherjee was a workman is incorrect. The Tribunal seems to have been led away by the fact that Mukherjee had no supervisory duties and had to work under the directions of his superior officers. That, however, could not necessarily mean that Mukherjee's duties were mainly manual or clerical. From what the Tribunal has found it is clear that Mukherjee's duties were mainly neither clerical nor manual. Therefore, as Mukherjee was not a workman his case would not be covered by the Industrial Disputes Act and the Tribunal would have no jurisdiction to order his re‑instatement. We therefore set aside the order of the tribunal directing re‑instatement of Mukherjee along with other reliefs." The decision in Pakistan Tobacco Company, Limited v. Pakistan Tobacco Company Employees' Union, Dacca (P L D 1961 S C 403), on which the Tribunal has relied is also to the same effect. It was held therein that "persons who are engaged exclusively in the field of dis tribution through proper agencies of the products of the Company or not assimilable wither 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 salesmen is in a wholly different category from manual work or clerical work salesmen, do not therefore fall within the definition of "workmen". The field representatives as here being more or less of the same position as the salesmen could not be covered byte the definition. There is, therefore, no substance in this part of the contention of the learned Advocate for the appellants. Failing on this point, however, Mr. Huq has urged Ground No. VI (b) of the memorandum of appeal which is as follows:‑ "For that rule 34 of the East Pakistan Industrial Dispute Rules have been violated." His contention is that one of the members of the Tribunal having kept away from attending the proceedings throughout the whole award is vitiated. Rule 34 of the East Pakistan Industrial Dispute Rules, 1960, is as under: `

34. Award‑while giving an award or a decision the Chair man shall consider the advice given to him by the members of the Court although he may not be bound to accept the advice either in full or part. Such advice may be given orally during day to day hearing of case and finally it shall be in writing signed and dated by the members concerned either jointly or separately after the close of the hearing of a dispute. The written advice so given shall form part of the record." On the basis of the expressions "such advice may be given orally during day to day hearing", Mr. Huq wants to say that it is mandatory upon the members to be present every day. We do not feel that any such meaning is implied particularly, when it has been stated in the first para merely that such advice may be given orally during day to day hearing of a case and finally it should be an advice in writing, signed and dated by the members. In the present case we find that the member who was absent from the sittings has put in a signed advice', before the delivery of the award. Moreover, it appears that it was the employer's member that was absent at the sittings and therefore, the appellants are not prejudice. There are also some decisions of this High Court which indicate that mere absence of the member will not vitiate the award. If still any doubt be left on this point that is resolved b) the provisions of the Industrial Disputes (East Pakistan Amendment) Act, 1964, adding new section 8 (a) in the Ordinance. No. LVI of 1959. Section 8‑A reads as under: "8‑A. Temporary absence of member not to invalidate acts, decisions award, etc.(1) if member is absent from any sitting of a Court, the Court shall subject to the provision of section 8 act in the absence of such member. (2) Notwithstanding anything contained in the said Ordinance, no act, proceeding, decision or award of a Court shall be invalid merely by reason of absence of any member from any sitting of a Court if called in question in any other Court of law." We think that this provision clinches the while point and there is no substance in the contention of the learned Advocate on the score of absence of a member from the sittings. In those circumstances, the appeal is dismissed but without any order as to costs. MAHMUD HOSAIN, J.‑I agree. A. B. Appeal dismissed.