P L D 1975 Karachi 279 (PLP)

The provision was subsequently substituted in India but no parallel substitution was made in Pakistan so that the original definition enured here. In Pakistan by Ordinance No. LVI of 1959, the Industrial Disputes Act, 1947, was repealed and re‑enacted with certain amendments. The new law was the Industrial Disputes Ordinance and section 2(n) in this Ordinance defined "workman" in the following words: " `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 purposes 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." In West Pakistan, by Ordinance VI of 1968, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance was enacted .and in this Ordinance "workman" was defined as follows " `Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual of clerical work for hire or reward." Since section 2(2) of the Industrial Disputes Act also defined an "industrial dispute" as a dispute "connected with the employment or non‑employment or the terms of employment or with the conditions of labour, of any person" their Lordships of the Supreme Court also considered if the words "of any person" in section 2(j) of the Industrial Disputes Act, 1947, contemplated a category of persons other than workman and the Supreme Court applying the principle that the context of the Statute could be examined for ascertain ing the true meaning of the Statutes; concluded, that "of any person" implied and applied to workmen only and if a salesman was not a workman, the protections and remedies under the Statutes. could not be extended to him by extending the meaning of "any person" so as to include such persons who are not workmen. In such context Hamoodur Rahman, J. (as he then was) observed as follows: "It seems to me that the use of the words `any person' in clause (k).of section 2 of the Industrial Disputes Act is in this sense to be limited to category of persons who fall within the general category of workmen and these particular words have been used merely to indicate that the category may compromise within it a discharged workman or a workman to be, and were not intended by the Legislature to embrace any other category of employees. Non‑workmen are, therefore, in my opinion, not included within the words `any person'." Earlier in the judgment Hamoodur Rahman, J. had clarified workmen to be such persons as qualify for falling in the category of persons described as "workmen" not in the etymological sense of the word but such persons who were engaged in "manual or clerical work". It would thus seem that a salesman, for the nature of duties he per forms, for the independence of action which he obtains and for the initiative and imagination that he exercises, is not doing the inferior work which is normally called manual or clerical work. He may be doing some manual or clerical work in order to accomplish his functions but the predominant functions and duties of a salesman are of a specialised nature designed to achieve the end of promoting sales, entering in competitive field with other producers and finding best available markets. Such type of labour cannot be called manual or clerical. I may also refer to a Division Bench Judgment of the West Pakistan High Court in the case of Chairman, Brooke Bond (Pakistan) Ltd. v. General Secretary, Union Karkunane Brook Bond (Pakistan) Ltd. (P L D 1969 Lah. 717) in which case the question of a salesman being a workman was examined by the learned Judges. Although this case also arose out of proceedings under the Industrial Disputes Ordinance of 1959, but the definition of "Workman" in that Ordinance was materially at par and substantially identical to the definition of "workman" in Industrial Disputes Act, 1947, and West Pakistan, Industrial and Commer cial Employment (Standing Orders) Ordinance, 1968. In the Lahore case it was held by the learned Judges that a salesman is not a workman and the process of reasoning is adopted reproduced hereunder: "According to this definition a `workman' is employed in an industry to do skilled or unskilled work which is `manual or clerical'. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same. The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within the definition. In case the manual work forms only a small and an auxiliary 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 a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him." I may state that the Supreme Court judgment in the case of Pakistan Tobacco Co. (P L D 1961 S C 403) was followed. In another case decided by Supreme Court of India viz. May & Baker (India) Ltd. v. Their Workmen (1961 P L C 1127) Wanchoo, J. considered the same question and came to the conclusion that a person in order to be classed as a "workman", bad as of necessity to do manual or clerical work. In such context the learned judge has stated as follows: "We find from the nature of the duties assigned to Mukerjee that his main work was that of canvassing and any clerical or manual work that he 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 Mukerjee was a workman is incorrect. The Tribunal seems to have been led away by the fact that Mukerjee had supervisory duties and had to work under the directions of his superior officers. That, however, would not necessarily mean that Mukerjee's duties were mainly manual or clerical. From what the Tribunal itself has found it is clear that Mukerjee's duties were mainly neither clerical nor manual. Therefore, as Mukerjee 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." I would now proceed to examine a judgment of this Court in the case of Muller & Phillips (Pakistan) Ltd. v. District Magistrate, Karachi (P L D 1974 Kar. 261). This case before the Division Bench arose out of n order passed by an authorised Magistrate in persuance of Martial Law Order No. 52 of Zone "D". . The respondent in that case was a salesman and he sought to execute the award in his favour and one of the contentions raised on behalf of the petitioners, who were the employers, was that after the enforcement of the Constitution of 1972 an award in persuance of Martial Law Order No. 52 became un-executable. The learned Judges of the Division Bench repelled such a contention on basis of the provisions contained in Article 295 of the Constitution which provisions are of identical import as section 6 of the General Clauses Act, so that transactions past and closed as well as rights accrued or liabilities incurred under the old law could be enforced. Mr. Naimur Rehman, the learned Advocate for the petitioner sought to rely on the said judgment for sustaining an argument that their Lordships of the Division Bench had held a salesman to be a workman. In that behalf Muhammad Haleem, J. summarised the contention on behalf of the employer in the following words:‑ "The legal contention that emerges is that being a sales representative, respondent No. 5 could not be placed in the category of workman, for its definition visualises that he should either be skilled or unskilled, which in turn must be either manual or clerical. Thus `skilled' must convey the sense of manual or clerical. Similarly, unskilled work should also be such. This is how he wanted us to construe the words `skilled or unskilled manual or clerical work' occurring in the definition of the word `workman' in section 2 (1) of the West Pakistan Indus trial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the Ordinance, which meaning is also assigned to it by para. 3(b) of the order, which reads:‑ `Any person employed in any industrial and commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward'." The contention was dealt with as follows: "No doubt, the words 'skilled or unskilled, manual or clerical work' also occur in the definition of that term and it was, construed as such in the above case. It was while elucidating definition of `workman' that it was observed that he was employed in an industry to do skilled or unskilled work, which could either be manual or clerical. If that is so, then a person will not be covered by the definition of the term `workman', who neither does manual nor clerical work, but that does not seem to be the intention of the Legislature, which while laying emphasis on the nature of work seems to give to it a wide meaning by using the words `skilled or unskilled, manual or clerical' which, to my mind, illustrate the nature of the work and have to be read disjunctively. As such, it is not possible to read the words `skilled or unskilled' to mean either manual or clerical whether comma is or is not taken into consideration while construing these words. Therefore, the nature of the duties performed would not except him from the definition of the word `workman'. There is another distinction. In that case, the definition had a bearing to the key word `Industry' which is defined in Ordinance LVI of 1959 and it was therefore that the observations of the Supreme Court in Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Employees' Union, Dacca and others (P L D 1961 S C 403) were relied on, which are to the effect that a salesman cannot be regarded as a workman because he is not assimil able either to the group of workers, whose manual labour contributed to that product or those of the clerical establishment who perform the paper work connected with the operation of the company. It seems, if I may say so, that the observations of their Lordships of the Supreme Court that the work of a salesman is in a wholly different category from manual or clerical work have weighed with the minds of' the learned Judges, who decided that case, while construing the definition of `workman'. Such construction cannot be given to the term `workman' as defined in the Ordinance." It would seem that in general the learned Judges were of the opinion that a salesman was not assimilable to the group of workers‑both manual and clerical but distinguished the Supreme Court Judgment reported in P L D 1961 S C 403 on the premises of different definition of "workman", I may also state that the nature of duties of the "workman" in the case decided by the Division Bench included fixing of tin‑plates which was clearly manual labour and not the ordinary job of a salesman. What is more that in the case before the Division Bench the dispute regarding jurisdiction had not been taken before the Aribitrator who decided the dispute and for such reason the Division Bench was of the view that such facts as pointed to lack of jurisdiction in the Arbitrator would not be raised before the High Court. It would indeed be of benefit to reproduce the said passage from the judgment which reads as follows: "Therefore, it was necessary that the jurisdictional fact, which could deprive the arbitrator of his jurisdiction, should have been raised before him to enable him to give a finding on it before raising this question in the constitutional petition. Not having done so, it is not open to the petitioner to raise it for the first time in these proceedings when the jurisdictional fact is disputed even on the assumption that the nature of duties would have made the difference in holding that he was not a workman when the determination rests on the jurisdictional fact being resolved upon evidence. Such a plea cannot, therefore, be raised now to impugn the jurisdiction of the arbitrator." On the plain reading of the old statutes viz. Industrial Disputes Act, 1947, Industrial Disputes Ordinance, 1959 and the present West Pakistan Industrial and Commercial Establishment (Standing Orders) Ordinance, 1968, the common thread underlying definition of "workman" is that he should be a person who should be engaged in doing skilled or unskilled manual or clerical work and in such context their Lordships of the Supreme Court have clearly, held in P L D 1961 S C 403 that a salesman was not assimilable in group oil persons doing manual or clerical work. In my view the Division Bench of this Court did not lay down a dictum different from the statement of the case by Supreme Court. This case decided by the Division Bench does not support the petitioner. It was next contended by Mr. Naimur Rahman, Advocate for the petitioner that the term "workman" should be construed in the light of the extended definition of the said word as contained in section 2 (xxviii) of the Industrial Relations Ordinance. No doubt the definition is wider than the definition of "workman" as contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. However, I have no doubt in my mind that for enforcement of rights of workmen guaranteed b the West Pakistan Industrial and Commercial Employment (Standing Orders, Ordinance the definition of workman in that statute has to be followed. In fact, section 3 of the Ordinance makes the position clear. It states as under: "Enforcement of Standing Orders.‑In every industrial or commercial establishment, conditions of the employment of workmen and other incidental matters shall, subject to the other provisions of this Ordinance be regulated in accordance with the Standing Orders." Section 25‑A of the Industrial Relations Ordinance is designed to provide for redress in case of infringement of any right guaranteed or assured under any law. The only law which is attracted to the instant case is the Standing Orders Ordinance. Placed in such position Mr. Naimur Rehman, alterna tively urged before me that the petitioner was a victim of unfair labour practice as contemplated by section 15 of the Industrial Relations Ordinance but I cannot overlook that as against unfair labour practices a separate and distinct provision in the shape of section 53 of the Industrial Relations Ordinance exists, and the proceedings instituted by the petitioner in the present case were not under section 53 of the Ordinance, but for redress of individual grievance under section 25‑A of the Industrial Relations Ordinance. The contention is for such reason clearly misconceived and in any case it would be unfair to the respondents, if I were to record such a finding on the basis of unfair labour practice in these proceedings because that would be a case at variance with the original case set up by the petitioner before the Labour Courts. I now proceed to examine the last contention raised on behalf of the petitioner to the effect that the principle of salesman not being a workman as enunciated by the Supreme Court in P L D 1961 S C 403 is not importable in the present state of the definition attaching to "workman" in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The learned Advocate for the petitioner has contended that in the West Pakistan Ordinance "workman" is to include a person employed in a commercial establishment also but in section 2(a) of the Industrial Disputes Act, 1.947, reference was made only to persons "employed in any industry" so as to exclude persons employed in commercial establishments. The argument was sought to be expanded on the plea that the petitioner being employed in a commercial establishment the provisions of section 2(i) of the Standing' Orders Ordinance provided him with protections which were not provided to employees in commercial establishments under the old Industrial Disputes Act, 1947. In my view such contention is also misconceived. No doubts section 2(a) of the Industrial Disputes Act, 1947, made a reference only to persons employed in an "industry" but the word "industry" itself was defined in section 2(j) of the Industrial Disputes Act. The definition is as follows: " `Industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen." The above definition makes the position plain without any doubt that under the Industrial Disputes Act‑, 1947, all persons employed by such .establishments as carried on business or trade were by reason of section 2(j) of the Act deemed to be employed in an "industry" so that section 2(a) of the Industrial Disputes Act included even workmen employed in commercial establishments. On the other hand 1 may say that the definition of the word "industry" in section 2(j) of Industrial Disputes Act, was by reason of its general terms, to include all persons employed by any establishment engaged in business or trade, regardless of the nature or character of such business or trade. In the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance the definition attaching to "commercial establishment" is not general but specific and narrow. It would be of benefit to reproduce section 2(h) .of the Standing Orders Ordinance which reads follows: commercial establishment' means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with "the owner of any commercial establishment or industrial establishment employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock exchange, a cinema or theatre, and such other establishments or class thereof, as Government may, by notification in the official Gazette, declare to be commercial establishment for the purposes of this Ordinance." On a consideration of the parallel provisions of the Industrial Disputes ,Act, 1947, and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, in regard to persons employed in commer cial establishments or concerns engaged in trade or commerce, I find that the old Act gave protection to every person employed in an institution carry ing on a trade or business and every such person was "a workman" within the meaning of section 2(s) of the said Act, provided he was engaged in doing of skilled, or unskilled manual or clerical work. On such state of law the Supreme Court held salesman to be out of the category of "workmen". In .my view even the later legislation is more and not less to the same effect. In such view of the matter I am clear in my mind that a salesman employed in a commercial concern cannot be termed to be a "workman" as to have the protection of Standing Orders contained in the Schedule to the West Pakistan Industrial and Commercial Employment (Standing B Orders) Ordinance, 1968, and on such ground this petition fails and is hereby dismissed. Since only a point of law was involved in this case I will make no order as to costs. S. A. H. Petition dismissed.