1991 PLP 264 (PLC)

2. I have heard Mr. A. Hafiz, learned Advocate for the appellants and Mr. Manzar Alam, learned counsel for the respondent and have also gone through the record and proceedings of the case.

3. Admittedly the respondent was a salesman of the appellant company at Sukkur when his services were terminated on 11-1-1986. Aggrieved by this order after service of the grievance notice upon the appellants the respondent filed grievance application before the learned Labour Court which was resisted by the appellants mainly on the ground that the respondent was not a workman and therefore the Labour Court had no jurisdiction. It was also submitted that he was removed from service for remaining un-authorisedly absent for number of days.

4. The main question that requires consideration is whether the respondent was a workman as defined under the Standing Orders Ordinance, 1968 and under Industrial Relations Ordinance, 1969. MrA.Hafiz has submitted that it has been decided in number of cases by the Hon'ble Superior Courts that the salesman of the appellants was not a workman. He has relied upon the case of Chairman, Brooke Bond (Pakistan) Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi P L D 1969 Lah.

717. In that case learned Division Bench have discussed the ordinarily duties performed by salesman of the Brooke Bond Company and had come to the conclusion that essential and the primary work entrusted to a salesman in the Company was neither manual nor clerical in view of as the duties of the salesman which were described as under:- "His duty was to sell tea and was responsible for the sale and distribution work in his area. He had to go round in his own area with a vanman and distribute and sell tea to the shopkeepers. He was assisted by a vanman whose position was that of helper coolie under him. In the course of his dudes the salesman also issued memos and collected cash. He was required to prepare a small column-wise statement of sales and weekly returns forms. The clerical work involved in the discharge of his responsibilities in preparing the cash memos, the small column-wise daily statement of sales and the weekly returns formed but a small part of his duties were altogether consequential in nature."

5. Learned Division Bench also relied upon the decision of Hon'ble Supreme Court in the case of Pakistan Tobacco Company Limited v. Pakistan Tobacco Company Employees' Union, Dacca and others P L D 1961 Supreme Court 403, wherein it was 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 salesman 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 `workman'."

6. This decision of the Lahore High Court was followed and approved in number of other cases. In the case of Messrs Opal Laboratories Limited v. Muhammad Moinul Islam 1983 P L C 509, a learned Division Bench of Sindh High Court at Karachi had held that `medical representatives were neither skilled nor unskilled workers and no manual or clerical work was part of their main duties. Some clerical work in keeping account performed was of incidental nature and would not form part of their main duty'. Medical Representatives were not held as `workmen' under the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the `Ordinance'). Their Lordships referred to the aforesaid decision of Lahore High Court and of the Supreme Court in the case of Pakistan Tobacco Company v. Employees' Union and others and held that the law laid down therein was applicable to the Medical Representatives or the Salesmen.

7. In the case of Rehmat Ali v. Security Papers Ltd. and another P L D 1982 Kar. 913, learned Division Bench has discussed the definition of workman under the Ordinance at length and has come to the conclusion that a person admittedly belonging to the labour class could not be excluded from the definition of workman on the ground that performance of duties by him involved insignificant use of hands or that manual work lost a fraction of time. In that case their Lordships have also referred to the aforementioned decision of Lahore High Court in the case of Chairman, Brooke Bond (Pakistan) Ltd. and held that salesman in a tea company was not covered by the definition of workman. This decision of Sindh High Court was approved by their Lordships of Supreme Court in the case of Security Papers Ltd. v. Rehmat Ali P L D 1988 S C

180. In the case of Ganga R.Madhani 1985 S C M R 1511 their Lordships again referred to the aforementioned decision of Lahore High Court in the case of Chairman Brooke Bond v. Union Karkunane Brooke Bond (Pakistan) Ltd. and approved the view taken by Lahore High Court. This decision of Lahore High Court was also referred to and relied upon in the case of Syed Zahid Hussain v. Hoechst Pakistan Limited 1989 P L C 309 and learned Division Bench of Karachi High Court held the nature of duties and not designation of employee was determining factor as to his status as a workman.

8. There is, however, a decision of the Hon'ble Supreme Court in the case of Messrs. Brooke Bond (Pakistan) Ltd. v. Conciliator P L D 1977 S C

237. In that case their Lordships held that salesman of the Brooke Bond (Pakistan) Ltd. were workers within the definition of workman under the Industrial Relations Ordinance, 1969 and, therefore, could form a Union. This decision of Hon'ble Supreme Court was discussed in the aforementioned case of Syed Zahid Hussain v. Hoechst Pakistan Limited by the learned Division Bench of Sindh High Court at Karachi who observed:-- "that the definition of workman given in section 2(xxviii) of I.R.O., 1969 was wider in scope as compared to definition given in clause (i) of section 2 of the Standing Orders Ordinance, therefore, for the purpose of determining whether employee falls within the definition of workman we cannot have recourse to the definition of workman in Section 2(xxviii) of I.R.O., 1969." Their Lordships further observed:- "We may point out that the above Supreme Court case of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union Dacca and others and Chairman, Brooke Bond (Pakistan) Limited Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi related to the interpretation of section 2(s) of the Industrial Disputes Act, 1947 and section 2(n) of the Industrial Disputes Ordinance, 1959 respectively which provisions are pari materia with the provision contained in clause (i) of section 2 of the Standing Orders and, therefore, the above two judgments have direct bearing on the interpretation of clause (i) of section 2 of the Standing Orders."

9. In the case of Muhammad Ishaque v. Messrs. National Thread Ltd. 1982 P L C 637 this Tribunal held that `where Sales Representative was engaged on commission basis to contact factories and purchasers for booking orders, but travelled by foot doing loading and unloading of articles, he was not a workman under Standing Orders Ordinance and grievance petition against termination of his service was not maintainable under section 25-A of I.R.O. In that case this Tribunal also referred to the Hon'ble Supreme Court decision in the case of Brooke Bond (Pakistan) Ltd. v. Conciliator P L D 1977 S C 237, and pointed out in that case Hon'ble Supreme Court considered only definition of workman under the Industrial Relations Ordinance and not the definition of workman as given in the Standing Orders Ordinance.

10. In the cross-examination the respondent has admitted that all the salesmen of Brooke Bond (Pakistan) Ltd. were performing the same duties. He has, also, admitted that only two persons including him self were working in the Depot. He contended that vanman was not working under him but admitted that in the absence of vanman he could appoint vanman on temporary basis. He has, however, admitted that the duty of the salesman was to take vanman and sale tea to various shops and issue receipts and to deposit the amount in the bank. It will be seen that duties of respondent as salesman are same which were taken into consideration by Lahore High Court in the aforementioned case of Chairman, Brooke Bond (Pakistan) Ltd.

11. In view of the persistent decisions of the Superior Courts that the salesman of the appellants was not a workman as defined under the Standing Orders Ordinance, I am in respectful agreement with the aforesaid decisions. The respondent claims the enforcement of the rights under the Standing Orders Ordinance as his services were terminated without enquiry which right he could enforce only if he was able to show that he was workman under the said Ordinance. As a workman under the Industrial Relations Ordinance, 1969, he will have right to enforce right guaranteed under any agreement or award or even under any other law. However, when a workman seeks enforcement of right under any other law and if that law defines workman he could seek enforcement of such right only if he could be considered as workman as defined under that particular law. The respondent not being a workman as defined under the Standing Orders Ordinance his application under section 25-A of I.R.O. for enforcement of his rights under the Standing Orders Ordinance would not be maintainable even if he was a workman as defined under I.R.O.1969.

12. For the aforesaid reasons, the impugned order passed by the learned Labour Court with regard to the reinstatement of the respondent is set aside. Appeal No. SUK-529 of 1989, filed by the appellants, is allowed. Consequently Appeal No.SUK-523 of 1989, filed by the respondent, is dismissed. ' M.Y.H./1692/Lb.S Order accordingly.