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Appeal No. KAR‑160 of 1981, heard on 26th July, 1981.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑‑ S. 2 (i) and S. O. 12 (3) ‑"Workman"‑Whether or not an em ployee was a workman‑Determining factor: Nature of primary duties‑Performance of some manual or clerical work as small part of main duties or incidental thereto‑Does not make a person a "workman"‑Regional Manager responsible to establish em ployer company on sound footing by generating maximum sales and to afford guidance and leadership to field staff and initiative to sales representatives---Not a workman and not entitled to grievance petition before Labour Court against termination of service‑Indus trial Relations Ordinance (XXIII of 1969), S. 25‑A.

Johnson & Johnson v. Zubair Ahmad 1980 P L C 622 and Brook Bond (Pakistan) Ltd. v. General Secretary, Union Karkunane Broke Bond (Pakistan) Ltd., Rawalpindi P L D 1969 Lab. 717 rel.

Junaid Farooqui for Appellant.

Date of hearing: 26th July, 1981.

The appellant, who was originally appointed as medical represen tative in the respondent establishment with effect from 17th December, 1968, and subsequently rose to the rank of Regional Manager, vide the respondent's letter, dated 4th July, 1972 was removed from service by order, dated 14th March, 1979: The appellant challenged the termina tion of his services through a grievance petition filed before the learned 3rd Labour Court but his grievance petition was dismissed by the learned Labour Court, by its decision, dated 18th February, 1981 on the ground that the appellant was not a workman for the purposes of the Standing Orders and consequently his grievance petition was not maintainable. The appellant has, accordingly, come up in appeal to this Tribunal against the said decision of the learned Labour Court.

2. I have heard Mr. Junaid Farooqui, the learned counsel for the appellant, and with his assistance I have gone through the record of the case.

3. It was contended by Mr. Junaid Farooqui that the appellant was required to perform and in fact performed duties involving manual work and consequently he should be deemed to be a workman for the purposes of the Standing Orders. In support of his contention he relied upon the additional affidavit of the appellant filed before the learned Labour Court on l0th February 1980. 1n that affidavit the appellant has claimed that:‑

(a) it was a regular part of his duties to physically collect the consign ments sent by the company, manually unload and then load the same in a taxi or tonga;

(b) take physical account of the consignments and individual items contained therein ;

(c) re‑arrange and classify the consignment

(d) un‑pack the big bundles and make from them small bundles;

(e) distribute the smaller bundles to the sales representatives of the company;

(f) walk on foot carrying heavy loads of consignments.

(g) memorise the details of literature of the medicines to be distri buted by him;

(h) take account of damaged medicines/products on their return from the Chemists; and

(i) take delivery of the give‑aways and gifts from the company, un load and load the same with his hands and distribute the same to the .persons from door to door and from shop to shop.

4. It has been held by this Tribunal in the case of Johnson and Johnson v. Zubair Ahmad (1980 P L C 622) that only a workman as defined in the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is entitled to file a grievance petition against the termination of his service, as provided in clause (3) of Standing Order 12 read with‑ section 25‑A, 1. R. O. A person would be deemed to be a workman for the purposes of the Standing Orders only if he was employed to do manual or clerical work, whether skilled or unskilled, for hire or reward. Mr. Junaid Farooqui was thus, at pains to show that the appellant's duties in clude the performance of manual or clerical work. However, even if a person performs or is required to perform as a part of his normal' duties any manual or clerical work that would not make him a workman for the purposes of the Standing Orders, if the manual or clerical work required to be performed by him is only a small part of his main duties or is incidental thereto. In the case of Brooke Bond (Pakistan Ltd. v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi (P L D 1969 Lab. 717) a Division Bench of the erstwhile High Court of West Pakistan observed in this behalf as follows:‑

"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 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 incidently performed by him."

It has, therefore, to be seen what were the actual duties for which the appellant was employed and what duties and work he was actually performing. As already pointed out, the appellant was appointed as Regional Manager for the territories of Sind and Baluchistan by the respondent company's letter, dated 4th July, 1972. At the time of his appointment his emoluments were:‑

By the time that his services were terminated in 1979, there had been a substantial increase in his pay. Though the appellant in his evidence before the learned Labour Court dishonestly denied knowledge about the quantum of his wages, conveyance allowance and house rent allowance the certificate of service in respect of the appellant, which the appellant admits to have received and which he does not dispute to be correct, shows that his basic salary was Rs. 2,175 and that in addition to the basic salary he was receiving house rent relief of Rs. 30 per month, conveyance allowance at the rate of Rs. 15 per day working day entertainment allowance of Rs. 50 p. m. and bonus equivalent to 28 salaries as also cash prize depending on sales. It will, thus, be seen that the appellant was in receipt of total emoluments of almost (sic) received by an employee is not the sole or even the most important factor in determining whether he is a workman for the purposes of the Standing Orders.

5. It has therefore to be considered for what purpose the appellant was employed and what were the primary duties, which he was required to perform. As already pointed out, the appellant had been working as Regional Manager with effect from 46 July, 1972 upto the date of termination of his services. The letter of his appointment as Regional Manager is illuminating and indicates the main and primary function of the appellant, though it is couched in somewhat wide language. The said letter recites:‑

"In this new appointment as Regional Manager, you will be directly responsible to the Field Manager, West Pakistan. Your promotion as Regional Manager is well earned reward of your sincere efforts in the past to promote our products. In this new position you have been assigned the major role of establishing SK&F in your region on sound footing and generating maximum sales. Your immediate task is to develop our sales and I shall be looking closely at the sales figure during the coming months.

Hyderabad Region provides tremendous opportunities for the pro gress of sales of our products and we have yet to explore and penetrate many areas. You have been assigned this task and also the responsibility of offering able guidance and leadership to your field force. You being at the helm of affairs should provide the best possible tactics and initiative to your Representatives in their efforts to further our sales.

With best wishes on your new appointment."

The primary responsibilities and work of the appellant, according to the above letter, thus, were:‑

(a) to establish SK&F (the respondent company) in his region on sound footing and generate maximum sales ;

(b) to explore and penetrate new areas in his region ; and

(c) to afford guidance and leadership to his field staff and to provide the best possible tactics and initiative to his representatives.

The appellant, however, claimed that though appointed as Regional Manager, in fact he was not performing the duties of the said post. He, however, was unable to produce a single letter of protest or other evidence to indicate that he was not being allowed to perform the duties of that post. On the other hand, in his cross‑examination, he had to admit that be used to receive, comment upon and approve the cycle reports of the representatives in his region, call the meetings of the representatives, review the performance of the representatives, chalk out programmes for the future cycles, approve tour programmes of the represen tatives of his region, give instructions to the representatives, prepare em ployees performance reviews, tour the region under him, call for the explanations of the medical representatives under him, receive daily re ports from the medical representatives, recommend approve leave of the staff in the region and also recommend increase in wages etc., ‑of the staff. The false plea of the appellant that he was required or that he used to personally load and un‑load the consignments of the company and used to walk on foot carrying the consignment on his shoulders is falsified by his own statement that he has been provided by the company Rs. 25,,000 for the purchase of a car and that he was also drawing cartage charges plus placing at his disposal float money of Rs. 1,500. Furthermore there is no other evidence besides the bare word of the appellant that he was required or had to perform the aforesaid manual duties, The main assignment and duties of the appellant would, thus, appear to have been of a substantially supervisory nature involving the promo tion of the products of the company and supervision and guidance of the medical representatives in his region. As the sales/medical represen tatives of the company were working under the appellant it cannot be believed that the appellant had to take consignments of medicines to them, and that too on foot or on his shoulders, rather than they had to see and receive consignments from him.

6. For the reasons discussed by me above, I am clearly of the view, that the learned Labour Court rightly held that the appellant was not a workman for the purposes of the Standing Orders. He cannot even be B considered to be a workman for the purposes of the I. R. O. as he was performing supervisory duties and his emoluments exceeded Rs. 8001 per month. I, accordingly, find no merit in this appeal and would dis miss the same in limine.

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