P L D 1969 Lahore 717 (PLP)

MUHAMMAD AKRAM, J.

‑This is an appeal, by the Manage ment of the Brooke Bond (Pakistan) Limited, Karachi, against the award made by the West Pakistan Industrial Court (Northern Zone), Lahore, on 1‑7‑1965, published in the Gazette of West Pakistan, Extraordinary, dated 11th August 1965, under section 12 (5) of the Industrial Disputes Ordinance, 1959 (hereinafter called the Ordinance).

2. Brooke Bond (Pakistan) Limited, Karachi, is a public limited company incorporated under the Companies Act, 1913. is carrying on its business of blending, packeting, selling and distributing tea in Pakistan. It has its own factory for the purpose at Karachi registered under the Factories Act, 1934, The tea, after it is blended in the factory at Karachi, is dispatched duly packeted to its branches all over Pakistan for distribution. The respondent, Union Karkunane‑Brooke- Bond Pakistan Limited, Rawalpindi, is a Union of the employees working in this company and is registered under the Trade Unions Act, 1926.

3. On 15‑2‑1965, the General Secretary of this Union served a strike notice on the appellant raising a number of demands mostly concerning the salesmen and vanmen employed in the company. In pursuance to this notice the Conciliation Officer started the conciliation proceedings between the parties. But those led to the Failure Certificate issued by the officer on 15‑3‑1965.

4. Consequently, on 26‑4‑1965, on the basis of this certificate, the respondent Union applied under section 5 (5) of the Ordinance (registered as Industrial Dispute No. 27 of 1965) to the West Pakistan Industrial Court (Northern Zone), Lahore, for the settlement of the industrial dispute between the parties. In these proceedings, on 17‑5‑1965, the appellant made an application under section 10 (1) (a) of the Ordinance raising a number of legal objections to the validity of the strike notice and the proceedings thus initiated in the Industrial Court. Its most formidable objection raised was to the effect that the `salesmen' are not `workmen' within the meanings of section 2 (n) of the Ordinance and consequently no `industrial dispute' could be raised on their behalf in the Industrial Court under the Ordinance. In the rejoinder filed by the respondent the Union has controverted this contention.

5. The Court below, allowed an opportunity to the parties to adduce their evidence on this objection. The appellant produced R. W. 1 Mr. M. A. Bhutta, the Group Manager of the company, in support of its objection, but the respondent did not lead any evidence in rebuttal. After hearing the parties, the Industrial Court gave its award on 1‑7‑1965, rejecting this objection holding that the Salesmen employed in this company are workmen and that the industrial dispute raised in the Court was, therefore, competent.

6. In this appeal, at the hearing before us, Mr. Fazal ur‑Rehman, Advocate, Karachi, appeared to represent the appellant. But the representative for the respondent objected to his appearance before us in these proceedings. He asserted that the appellant was not entitled to be represented by a legal practitioner in this appeal arising under the Ordinance. Mr. Fazal‑ur‑Rehman Advocate frankly conceded before us that subsection (2) of section 34 of the Industrial Disputes Ordinance, 1959 was a bar to his representation as a legal practitioner for the appellant except with the consent of all the parties to this dispute. But according to the learned counsel this position of the law, in this respect, has undergone a radical change with effect from 8‑3‑1968 with the promulgation of the West Pakistan Industrial Disputes Ordinance No. IV of 1968, whereby the old Ordinance of 1959 was repealed. It is contended that thereby the express bar contained in subsection (2) of section 3 4 of the Ordinance, 1959 against the representation by a legal practitioner in these pro ceedings was altogether removed with effect from 8‑3‑1968. This appeal was filed in this Court on 1‑9‑1965 under section 12(5) of the old Ordinance and the learned counsel conceded before us that this dispute concerning the vested rights of the parties has got to be decided in accordance with the law prevailing at the time. But, in the opinion of the learned counsel, this matter concerning the representation of a party by a legal practitioner is purely procedural in its nature and to this the change in the law must be applied retrospectively. But prima facie this contention appears to be without any force. Section 34 of the old Ordinance deals with the representa tion of parties in the industrial disputes. Subsection (1) lays down that a workmen who is a party to an industrial dispute shall be `entitled' to be represented by an officer of a registered Trade Union and the employer shall be `entitled' to be represented by an officer of association of employers. In this connection subsection (2) of this section expressly A provides that no party to an industrial dispute shall be `entitled' to be represented by a legal practitioner except with the consent of all the parties to the dispute. This section regulates the rights of the parties to be represented in the proceeding taken under the Ordinance. It is, therefore, not a matter relating to the procedure which can be regulated retrospectively by the West Pakistan Industrial Disputes Ordinance, 1968. In fact, in view of the persistent objection raised by the representative of the respondent Mr. Fazal‑ur‑Rehman, Advocate, was allowed to withdraw from this appeal at his own request. We have, therefor, heard Mr. A. A. Sharif for the appellant and Mr. Abdul Maid Qureshi for the respondent, the respective representatives of the two parties before us on the merits of this appeal.

7. On the merits the learned Representative for the appellant has criticized before its the finding by the industrial Court below to the effect that the salesmen working in this company are workmen within the meanings of the Ordinance. A `workman' is defined in section 2(n) of the Ordinance as under :‑ "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 . . . 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 this definition. In case the manual work forms only a small and an axiliary part of his respon sibilities 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.

8. The true answer to this question will, therefore, depend upon the proved facts in each case. In the instant case R. W. 1 Mr. M. A. Bhutta, Group Manager, Brooke Bond Company Pakistan Limited, has appeared as a witness to depose about the duties of a salesman in this company. The witness has been in the service of this company for about 12 years working in different capacities as a salesman, Controller, Assistant Manager and Manager. He has deposed that a salesman is in charge of his unit of business called a depot. He is responsible for sales and distribution work in his area. In the big cities these areas are divided and number of depots are established. In smaller towns the depot area also includes the neighbouring places. A salesman works independently. He is incharge of the stocks at the depot valuing from Rs. 5,000 to Rs. 25,000 depending on the position of the sales in his area. He is solely engaged in the field of distribution and sale of the products manufactured by the company. He has to travel from place to place at the expense of the company. He goes on round in his own area along with a vanman and they distribute and sell the tea to the shop‑keepers. The salesman issues the cash memos for the stock sold and collects the amount. He maintains the accounts of the stocks and sales in his area. The witness admitted that the salesman arranges for the advertisement of [lie company posted at different places in his area through his vanman. At certain places the company has got permanent vanmen, but at others there are the temporary vanmen called Tikka coolies, to help the salesman. The salesman has the absolute authority to hire and tire the Tikka coolies working under him. But a permanent vanman is engaged by the company on the recommendation made by the salesman and the disciplinary action is taken against him on the report of the salesman. The witness has also deposed that in the course of his duties a saldsmari has to issue the cash memos and in the evening he is 'required to prepare a small column‑wise statement of sales. At the end of the week he has to send the weekly account to the office, with a short report giving the market conditions According to the witness on ;in average it takes about half an hour for him to do this job. He gets his commission on the sales at the rate of 5 Paisa per pound of tea, after the fixed sale basis. There is no upper limit to the commission earned by him. He gets his salary, dearness allowance, and commission. The witness has also deposed that the vanman works under the directions of the salesman as an assistant to him. The salesman remits the cash to the company through Bank. He does not sell the stock of tea from the depot. In the cross‑examination of this witness it was elicited that in the cities the salesman has to go on round on foot as well as on cycles. Sometimes he carries the stock on his own cycle when he is to make a quick round of the market. In certain depot areas the salesman daily supplies tea stock to the hotels. The company has provided cycles to the salesman may hire the cycle on behalf of the company. There are no working hours for the salesman. The witness reiterated that the duty of the salesman is to sell tea and that of the vanman to assist him in the sales. It is the salesman who is responsible for the stocks and cash. This is nil the evidence on the record bearing on this controversy between the parties.

9. On going through this evidence, the Industrial Court below has held that a salesman employed in this company is a `workman' within the definition in section 2 (n) of the Ordinance. The learned Court observed :‑ ..From the statement of Mr. Bhutta, it is quite clear that the salesmen of the Company are incharge of the stock of tea, they go from shop to shop selling tea to the dealers and hotelwalas. Sometimes they take the stock on their own cycles, they collect the sale‑proceed ; they prepare daily and weekly statements they distribute and affix posters themselves. on a careful consideration of the evidence on this point, we are of the opinion that they perform manual and clerical work within the meaning of the definition of `workman'. The mere fact that the major portion of their income is from commission, does not make them non‑workmen. It is given to them by way of incentive bonus. There is no evidence on the record to show that their duties are of supervisory nature. The duty of a vanman is simply to push the Van from shop to shop under the directions of a Salesman. The position of the vanman is merely that of a helper coolt. ,

10. But on a consideration of the evidence we are unable to subscribe to the conclusion at which the Court below has reached to the effect that the salesmen in this company are performing `manual and clerical work' within the meanings of this definition of workmen in section 2 (n) of the Ordinance. In our opinion the essential and the primary work entrusted to a salesman in the company is neither manual nor clerical: His duty is to sell tea. He is incharge of the depot placed under his control. He is responsible for the sale and distribution work in his area. He has to take care of the stocks of the company placed under his charge. He does not sell the stocks of tea at the depot. He bas to go round in his own area with a vanman and they distribute and sell tea to the shop‑keepers. He travels from place to place within his area at the cost of the company. For this purpose the company has provided cycles to the salesmen at some places and at others he is allowed to hire a cycle on behalf of the company. At times in the cities he has to go round on foot as well. Sometimes, when he is to make a quick round of the market, he carries the stocks on his own cycle. He is assisted by a. vanman whose position is that of a helper coolie under him. In the course of his duties the salesman also issues memos and collects cash. In the evening he is required to prepare a small column‑wise statement of sales and at the end of the work he has to send a weekly account to his head, office with a short report giving the market condition. He has also to arrange for the publicity in his area. In short a salesman in this company is responsible for the sales and distribution of the tea in his area. No doubt in, the process he has to go round mostly on cycle at the cost of the company but that is not the end in itself. It is merely an incidental part of those main and primary duties. For the manual work involved in carrying the stocks for distribution all over the area he has the services of the Vanman under him and he is not there merely to push the van from shop to shop. The clerical work devolved in the discharge of his responsibilities in preparing the cash memos., 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 salesman is employed by the company. The appellant has cited before us Pakistan Tobacco Company Limited v. Pakistan Tobacco Company Employees' Union, Dacca and others (P L D 1961 S C 403). In that case the Supreme Court, in considering a similar definition of the term `workman' in section 2 (3) of the industrial Disputes Act XIV of 1947, observed :‑ "I consider that it admits of no doubt, that persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company are not assimilable either 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, and I feel no hesitation in agreeing with the decision of the Tribunal upon this point, namely that salesmen do not fall within the definition of `workmen'." In an attempt to distinguish this case, the learned Represen tative for the respondent has largely relied on the case of a sister concern of this company in India Re : Brooke Bond India Private Limited, Calcutta v. Their Workman decided by the National Industrial Tribunal Bombay on 9‑6‑1959, published in the Central Government of India Notification dated 17‑6‑1959. The award, inter alia, deals with the relief granted to the company concerning their emoluments. But this precise objection now before us was not even raised in the case. The repre sentative for the respondent has also relied on the decision by the Supreme Court of India in Western India Match Co. Ltd. v. Their Workman (1964 P L C 699 at p. 707) which is distinguishable. That case proceeded on a somewhat different definition of the "work man" contained in Uttar Pardash Industrial Disputes Act to mean any person employed in an industry to do manual, supervisory, technical or clerical work for hire or reward, and on the evidence the Tribunal had found that the writing work consumed about 75 % of the time of the categories of the sales staff concerned. Dada Match Employees' Union, Khulna v. M/s. Dada Match Works, Khulna (1961 P L C 765) and Cantonment Board, Ambala Cantt. v. The State of Punjab and others (1961 P L C 955) cited on behalf of the respondent, are not at all in point.

12. As a result of the above discussion we hold that the salesmen serving in this company are not workmen within the meanings of section 2 (n) of the Ordinance. In this respect, therefore, the objection raised by the Management before the Industrial Court below must prevail. As such no industrial dispute concerning them could be legally raised.

13. For the foregoing reasons we accept this appeal and set aside the impugned award. But under the circumstances the parties are left to bear their own costs in this Court. A. E./K. B. A. Appeal accepted.