1982 PLP 637 (PLC(CS))

(3) The orders will be subject to final confirmation of this office. (4) The orders will be booked at the rates mentioned in the price List current on that date, and will be subject to the terms and conditions of the firm. (5) You will visit factories, shops etc., to book orders, for which, you will bear your own transport expenses. (6) You will be entitled to 3 y. commission for that amount of Bill Value only, for which, payment is received by us, against orders booked by you. (7) The said commission would be paid monthly, on supply value realized. (8) Responsibility, of the supply of the goods to the parties, and the collection of bills will be yours. (9) You will be fully responsible for the realization of all bills for the orders which have been booked by you. (10) In case of non‑payment of any bill by your party, such amount will be deducted from your commission account. (11) By way of a special incentive, the following conveyance expenses shall be made payable to you:‑ (a) For the first three months (i. e. September, October and November) 1969 Rs. 200 per month. (b) for the next three months (i. e. December, 1969, January and February 1970 (Rs. 100 per month). (12) The above Special Conveyance Allowance shall be discontinued at the end of February; 1970 or end of the sixth months, from the commencement of your appointment as Sales Representative. (l3) You will try your best to increase the sales of our products, to the maximum and the sale figures of Rs. 25,000 should be acheived within 3 months. (14) No commission whatsoever is to be collected from the buyers. (15) The firm, shall have the option to discontinue your services with the first 3 (three) months, without assigning any reason. (16) During the tenure of your Sales‑Representation, you are not allowed to work for any other items of trade, or to represent any other firm, company manufacturers etc. thus your Sales. Repre sentatives of our products shall be on exclusive basis only."

4. The above letter appears to have been followed by a subsequent letter dated 1st January, 1975, which contains substantially the same terms and conditions as the above letter except the term regarding pro visional payment of conveyance allowance. The letter of 1st January, 1975 is said to contain the signature of Muhammad Ishaque in token of his having accepted the terms and conditions stated in the letter but this signature is denied by Muhammad Ishaque. Ch. Rasheed Ahmed sought to rely on items 5 and of the letter of appointment of Muhammad Ishaque as according to him they support the evidence of the appellants that they were required to walk on foot to contact the shopkeepers and also it was their responsibility to load and unload the goods, which they were given for selling. A bare perusal of the appointment letter, however indicates that though the appellants were required to contact factories, shops etc. for the purposes of booking orders this does not mean that they were required to walk on foot. Of course, according to the respon dent the appellants were not provided with any conveyance nor they were given any conveyance allowance except the provisional conveyance allowance given to appellant Muhammad Ishaque for the first six months of his engagement with the respondent, but since the appellants' remuneration consisted of commission on the sale price of the goods sold by them they were expected to meet the expenses of travelling to see the factories and shops etc. Through this commission and any expenses in curred by them in loading and unloading was also to be met from the 3% commission allowed to them under the terms of the appointment letter. Even if it be conceded that the appellants had spoken truth that they had to go on foot to visit the factories and shops and they themselves used to load and unload merchandise, this would not make them workman for the purposes of the Standing Orders since they were not employed to do this work. They were employed as travelling sales representatives and although their duties undoubtely involved visits to factories and shops, loading and un loading merchandise, they could undertake the journies in suitable conveyance and also employ labour for the purposes of loading and un loading merchandise and meet this expenditure out of the commission paid to them.

5. I also find no force in the contentions of Mr. Ch. Rasheed Ahmad that the appellants were paid wages at the rate of Rs. 600 per month and further were in receipt of conveyance allowance. No doubt the letter of appointment of appellant Muhammad Ishaque shows that he was paid a small conveyance allowance for the six months of his employment with the respondent so that he could tide over the period until he was able to receive sufficient commission in this behalf, but the accounts and vouchers in respect of the appellants which have been produced on record clearly indicate that the appellants were in receipt of commission only and no wages or conveyance allowance were paid to them. Mr. Ch. Rashid Ahmed sought to show that since the very accounts produced by the respondent clearly, show that the appellants were receiving a sum of Rs. 600 every month it should b:, presumed that this was the monthly wages to which they were entitled but an examination of the said accounts and voucher shows that these payments, though made monthly, were towards account and were deducted from 3% commission on sales to which alone the appellants were entitled. This inference gains further support from the fact that there are in the accounts also other advances taken by the appellants, which had been adjusted against the commission to which they were entitled. I am, therefore, in agreement with the view taken by the learned Labour Court that the appellants were in receipt only of commission and not wages or conveyance allowance as claimed by them.

6. Mr. Ch. Rasheed Ahmed finally sought to rely on the decision of their Lordships of the Supreme Court in the case of Brooke Bond (Pakistan) Limited v. Conciliator (PLD1977SC237) wherein it had been held that a sales man having to go round market for distribution and sale and who was not concerned with the management but was required to account for sales and to submit return to the Manager Incharge was a workman. However in that case, the Supreme Court considered only the definition of worker as given in the I. R. O. and not definition of workmen as given in the. Standing Orders. In the case of Johnson & Johnson v. Zubair Ahmad, I had occasion to point out that the two definitions were materially different. A C travelling sales man may be a workman under the I. R. O. but the present sales representatives, as already shown, do not fall within the definition of workmen for the purposes of Standing Orders.

7. For the reasons discussed by me above, I would dismiss both the appeals of the two appellants in limine. Appeals dismissed.