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Appeal No. MN-169 of 1972/Pb., decided on 12th March 1973.

Ss. 2(viii) (c) & 2(xxviii)-"Workman" or "employer"-Determin ing factor-Nature of duties and powers-Sales representative incharge of warehouses with powers to employ and remove workers-An employer and not a workman.

Chairman, Brooke Bond (Pakistan) Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd, Rawalpindi P L D 1969 Lah. 717 rel.

Abid Hasan Minto for Appellant.

A. A. Sharif for Respondent.

This is an appeal against the decision dated 13-9-1972 of the Punjab Labour Court Central Zone, Lahore passed under Section 25-A of the Industrial Relations Ordinance, 1969, whereby the petition of Muhammad Arshad appellant for his re-instatement and consequential benefits was dismissed on the ground that he was not a workman within the meaning of section 2 (xxviii) of Industrial Relations Ordinance, 1969.

The facts of the case as alleged by the appellant are that he was employed as a sales representative of the respondent-Company in the year 1968 on Rs. 1,100 p. m. as his basic salarly vide appointment letter Exh. R. I dated 23-11-1967. On 16.6-72 his services were terminated by the respondent. Company under the pretext of acceptance of his resignation, which he had never submitted. At that time he was drawing a monthly salary of Rs. 1,769. According to the appellant he had no power to engage or remove any workman or to take any other disciplinary action against the other workers on his own and falls within the definition of section 2 (xxviii) of Industrial Relations Ordinance, 1969.

The respondent-Company not only resisted the petition on merits but also raised a preliminary objection challenging the maintainability of the petition on the ground that he was not a workman as defined under the law. According to the respondent the appellant was employed as sales representative on a monthly salary of Rs. 1863 and was therefore an employer within the meaning of section 2 (viii) (e) of Industrial Relations Ordinance, 1969. The learned Labour Court accepted the contention of the respondent-Company and dismissed the petition of the appellant.

In appeal also the learned counsel for the respondent supported the decision of the learned Labour Court that the appellant was not a workman but an employer within the meaning of section 2 (viii) (e) of Industrial Relations Ordinance, 1969.

Before dealing with the preliminary objection it will be convenient to reproduce section 2 (xxviii) and section 2(viii) (e) of Industrial Relations Ordinance, 1969. At the time when the services of the appellant were terminated, section 2 (xxviii) read as follows:

" Worker and Workman means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through contractor whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute include a person who has been dismissed, discharge, retrenched, laid off or otherwise removed from employment in connection with or as consequence of that dispute or whose dismissal, discharge retrenchment lay off, or removal has led to that dispute:

Explanation.-'Supervisor' means a worker immediately above the lowest level of workers in an establishment or industry who has supervisory duties but no power to engage or remove, or take any other disciplinary action against another worker by his own authority."

Section 2 (viii) read as follows:

"'Employer' in relation to an establishment means any person or body of persons, whether incorporated or not who or which employs work men in the establishment under a contract of employment and include . . . . .

(a) .

(b)

(c) ...... ..

(d) ....... .

(e) in relation to any other establishment the proprietor of such establish ment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof,"

The true test as to whether a person is a worker or not is laid down by the High Court in the case, "Chairman Brook Bond (Pakistan) Ltd., Karachi v. General Secretary, Union Karkunane Brook Bond (Pakistan) Ltd., Rawalpindi (P L D 1969 Lah. 717) as under

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 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 will, therefore, depend upon how the proved facts in each case.

Thus it has to be seen as to what was the true nature of duties performed by the appellant. Exh. R. I is the appointment letter which does not show the true nature of the duties of the appellant and therefore, is of no help in the present case. The main duties which were to be performed by the appellant as a sales representatives are mentioned in Exh. R. 8. The paragraphs 1, 2, 4, 7, 8, 9, 10, 11, 12 & 13, in "A" and 1, 2, 4, in "B" in Exh. R 8 read with the admission of the appellant before, the Court below that he was incharge of warehouses and used to employ and remove Chowkidars under the instructions of the regional manager, show that the appellant was not a workman but employer as defined in section 2 (viii) (c) of Industrial Relations Ordinance, 1969. It may be mentioned here that the definition of a workman is no wide enough to cover a chowkidar and the fact that the appellant bad been employing chowkidars in the warehouses shows that is an employer within the definition.

In view of the above I uphold the decision of the learned Labour Court and dismiss the appeal.

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