1. This is a Constitution petition challenging the order dated 24-3-1975 passed by III Sind Labour Court directing the petitioner to enforce the deduction of the Union subscription from the salaries of the persons named by the respondent-Union.
2. The dispute relates to the question whether medical representatives employed by the petitioner, which is a pharmaceutical sales organisation, are workmen as defined in section 2 (xxaili) of Industrial Relations Ordinance, 1969, and further whether the medical representatives employed beyond the province of Sind by the petitioner could be enrolled as its members by the respondent Union. Since, Mr. Shareef for the petitioner took great pains to take me through the pleadings, evidence and documents, I would therefore refer to them in some detail.
3. Relevant facts are that the respondent Union is admittedly the Collective Bargaining Agent of the workmen, employed by the petitioner. The petitioner is a sales organisation and it sells pharmaceutical products mainly but it also sells Halls sweets. Previously it used to manufacture pharmaceutical products but now it does not. Petitioner has employed a total of 47 employees out of whom 17 are medical representatives. The clerks, subordinate staff and drivers were treated as workmen by the petitioner and respondent-Union. From 1969 when Industrial Relations Ordinance was enforced till May. 1975, the medical representatives of the petitioner were never enrolled by respondent-Union as its members and the respondent Union never represented them and never raised any demand for them.
4. For the first time on 29th May, 1975, and then on 16th June, 1975, the respondent Union required the petitioner to make deductions under section 23 of Industrial Relations Ordinance from the salary of the medical representa--tives as they had signed authentication forms as workmen. The petitioner replied to the first letter or. 10-6-1978 and raised objection that except 3 persons listed the rest were all employed in cities outside Sind province and since the respondent Union is a local Union it's remembership cannot extend to employees outside Sind. In the end the petitioner assured that deductions will be made in accordance with law subject to the clarification sought. The same objection was repeated on 25-6-1978. Thereafter, it seems that the petitioner took up the other objection of the medical representatives not being workman and they refused to make deductions out of salaries. There--upon, on 13-8-1975, the respondent Union filed an application against the petitioner under section 34 of Industrial Relations Ordinance of 1969 and also filed a complaint under section 34 before the Labour Court. In their reply to application under section 34, the petitioner took preliminary legal objections and objected to the contention that salesmen are workman under Industrial Relations Ordinance, 1969 and that though employed outside the province they could still he members of the respondent Union and that the Union should first raise an industrial dispute under section 32(1-A) of Industrial Relations Ordinance and hence application under section 34 was incompetent. The petitioner submitted that the 14 employees involved belonged to supervisory and/or employer category of staff and were not workmen and they are working independently and are members of sales Management team.
5. The respondent Union filed the affidavit of its General Secretary Mr. Asadali Jafri in support of its case who stated that the concerned persons were designated as medical detailment and were answerable to the field supervisor and they had no responsibility of Management and control. They could not employ or dismiss any person, they have to do leg work, cycling work of promotion and preparation of reports. He was cross-examined in detail, but without any substantial damage to his deposition. None of the medical representatives involved was examined by the respondent-Union.
6. The Petitioner filed a detailed affidavit of its Zonal Field Manager Mr. Muhammad Nasim. He gave the various details in respect of the responsibilities of the medical representatives and said that they work independently in the territories allotted to them and they are responsible for sales promotion and as Incharge of the territory the salesman is the Company on the spot. He stressed that the medical representative has to be very intelligent, properly trained and able to influence the doctors. The medical representative, he said, occasionally books orders but passes the orders to the distributors and he does not do manual work and he is consulted frequently and participates in conferences where Sales policies are devised. He can allow additional discount and can allow replacement of products. He makes his own tour programme and he is treated very well in respect travels. He supervises the work of distributors. The Zonal Field Managers visit him only once in 6 weeks. He concluded by saying that medical representatives are part of petitioners' sales management team. He filed various documents in support of his contentions. In cross-examination he admitted that medical representatives are required to sell to various shop--keepers Halls sweets in addition to medicines. Medical Representative is on the lowest ladder of sales Organisation and there is no one subordinate to him, he is allotted a number of doctors and chemists to visit in his area and he submits daily reports.
7. The petitioner also filed affidavit of Mr. Abdul Matin Khan, their Accountant who stated that the Union had never raised any demand in respect of Medical Representatives ; and that most of them are posted out of Karachi. In cross-examination he admitted that salaries are sent to all Medical Representatives from head office at Karachi and leave is also sanctioned from Karachi.
8. Written arguments were filed by the parties and on 24-3-1976, the Labour Court ordered the petitioner to make deductions of Union subscription from salaries of Medical Representatives and hence this petition.
9. Mr. Sharif learned counsel for the petitioner assisted by Mr. Lateef Sarwary for the petitioner addressed me at length and pointed out that the Labour Court had not adverted at all to the various contentions raised in the affidavit of Mr. Muhammad Nasim and has merely noticed the cross-examination of Mr. Nasim and thereby reached incorrect conclusions. He particularly pointed out the important and responsible position that a medical representative has in the sales organisation of petitioner-Company, that he is consulted on various occasions and sales policy is divided in consultation with medical representatives, and the petitioner accords them first class status and allows them liberty of movement and they have the authority of allowing a bigger discount or asking the distributor, to replace the stocks and thus he is the petitioner-Company at the spot and is really the employer. He has referred to PLD 1978 Kar. 649, where it was held that Manager of a part of the establishment was an employer. He therefore, argued that the salesman being incharge of the particular area was almost Manager of a part of establishment and was therefore an employer. He has relied upon the definition of workman is section 2 (xxviii) of, Industrial Relations Ordinance of 1969 and says the medical representatives are not covered by this definition.
10. Mr. Ali Amjad, learned counsel for the respondent has on the other hand stressed that the decision of Labour Court cannot be upset only because High Court may take a different view of the evidence. That in any case, there is no basis on record to support the conclusions of Labour Court and that the Labour Court has relied upon the admissions made by the petitioner's own witness and those admissions demolish the case of the petitioner that Medical Representatives are not a part of the Management. He relies upon, PLD 1977 SC 237 (268) and (272) where salesmen of Brooke Bond Company were held to be workmen.
11. In order to appreciate the submissions of the counsel it is necessary to note the relevant definitions of workman and employer. Worker is defined in section-2 (xxviii) of Industrial Relations Ordinance as under.:---- "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 a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal discharge, retrenchment, lay-off, or removal has led to that dispute [but does not include any person-----
(a) who is employed only in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per, mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature]. `Employer' is defined in section 2 (viii) of Industrial Relations Ordinance as under :- "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workman in the establishment under a contract of employment and includes-
(a) an heir, successor or assign as the case may be, of such person or body as aforessid ;
(b) any person responsible for the management, supervision and control of the establishment ;
(c) In relation to an establishment run by or under the authority of any department of the [Federal Government] or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department;
(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the Chief Executive Officer of that authority ; Special Provision.--For the purposes of distinction from the category of "worker or workman" officers and employees of a Department of the [Federal Government] or a Provincial Government or a local authority, who belong to the superior, managerial, secretarial directional supervisory or agency staff' and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers;
(e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary agent or officer or person concerned with the management of the affairs thereof;.
12. Now even a cursory look at the definition of workman in Industrial Relations Ordinance of 1969 will clearly establish that the definition of Indus--trial Relations Ordinance is much more wider and comprehensive than the definition of Standing Ordinance Orders and since Industrial Relations Ordi--nance is a later Act and the application was made under section 34 of Industrial Relations Ordinance and was in respect of section 23 of Industrial Relations Ordinance and there is no mandatory provision that the definition of Industrial Relations Ordinance of 1969 will not be applicable and no positive injunction that definition as given in Standing Orders Ordinance (III of 1960) should alone be restored to, therefore, I would hold that the definitions as given in Industrial Relations Ordinance shall have to be resorted to, to determine the status of a workman.
13. The definition of workman in subsection (2) (xxviii) of Industrial Relations Ordinance being very wide and covering the case of every employee, the burden of proving that an employee is not a workman, but is either a supervisor drawing more than Rs. 800 or is employed in a managerial or administrative capacity or performs managerial functions ok is an employer is upon the person who sets up the plea as the definition is of a presumptive character and presumes every employee to be a workman unless covered by the exemptions of supervisor or employer or manager or, administrator.
14. Now there is no allegation of any nature in the evidence or in the pleadings that the Medical Representatives are performing any supervisory work for the company as they are admittedly the lowest limb and there is no one who works under them, therefore the criterion of supervisorship is excluded.
15. I have noticed in above para. That Medical Representatives of petitioner company are not supervisors. They are employees all rights and there is no dispute on that point. Therefore, let us examine, if they could be covered by the criterion of "employed in a managerial or administrative capacity" or could be covered by the definition of employer.
16. The criterion to determine is whether he is in any way, concerned with the management or administration. What are the incidents of Managements. Basically the power to hire and fire is considered as the most important part of management. That power a medical representative does not have. Then the other criterion is of over all control of the establishment which Mr. Ali Amjad canvasses, but this criterion of control of over all establish--ment would make the definition redundant, as the definition suggests that not only the manager but also others connected with the Management may be covered by the definition of employer. Mr. Justice Abdul Hayee Kureshi while considering a case under Standing Orders Ordinance, 1963 (III of 1960) has suggested a criterion in PLD 1975 Kar. 342, that the person in authority or concerned with the Management should have such a status in the establishment that there may be no other link between him and the owner of the establishment and viewed from this point of view the Medical Representatives would not qualify as employers as there are several officers above him up to the level of Directors who could be called the owners. But this would be applicable only in respect of Standing Orders Ordinance and not in respect of Industrial Relations Ordinance. Does consultation by the owner with an employee raise him to the status of an employer concerned with the Management. It may be a factor leading to a better status but not the position of Management because an employer can consult any employee and may act upon his advice in a particular matter or may not. The real question is does he take any decision on his own in respect of the sales policy, but there is no definite evidence on the same. Only evidence is that sales policy is framed in consultation with Medical Representatives. Therefore, their status in this regard is at best of those who are consultants and not of policy makers. Mr. Nasim deposed that Medical Representative can allow an extra discount and order replacement of stocks. This is very minor incidence of Management. The most important duty performed by him as a routine is visiting an allotted number of doctors and chemists in an area and to canvass for the company's goods and also occasionally book orders.
17. Now, the petitioner is a sales company which is selling its goods through distributors and in order to boost its sales, it needs the services of field staff who can go to the actual buyer, viz. Chemists and doctors and persuade them to buy and prescribe company's goods and these Medical Representatives do that job. One may call it sales promotion as Mr. Sharif puts it or salesmanship or Detailmen as petitioner describes them but the fact is the same that they are the lowest persons in the hierarchy of the petitioner to boost the sales and they may be very highly paid and highly educated and respected but they are hardly having a position in which they can be said to be concerned with the Management of the establishment. In fact almost most of the employees in any organisation except the clerks or chowkiders have to make some decisions and that does not convert them into persons holding positions of Management. The most important matter for a sales Organisation is the choice and appointment of distributors and their removal in an area. If the petitioner had proved that such a function was assigned to a Medical Representative then they could reasonably urge that he was concerned with the Management and be was the company at the spot but no evidence was led nor even an allegation made to this effect and therefore a mere privilege of allowing extra rebate or concession can be of no consequence as it is a matter of daily experience that ordinary salesmen at the shops allow a concession in price to customers. It has been admitted by Mr. Nasim that Medical Representatives send their tour programme to the head office. Although their programme is generally approved but still the fact that they have to send such a programme to Head Office shows that they are not independent. Moreover, the Field Zonal Managers visit them once in six weeks and some assessment of the work done by the medical representative must come up on such visits which again shows their subordination.
18. The word 'Management' has a particular significance.
19. Mr. Sharif pointed out that according to Black's Law Dictionary 1968 Edition page 1172 'manage' means to control and direct, to administer, to conduct, to carry on the concern of a business or establishment. Generally applied to affairs that same are completed and that involves skill and judgment. Manager means in the same dictionary as one who has charge and control of the corporation, of its business and branch establishment and who is vested with certain amount of discretion an independent judgment. He has relied upon (1926) L J R K B 397 where it was held that Management is not a term of art, it has no precise legal meaning. A Captain was held to be concerned with the management or mismanagement. It was however also observed in that judgment that application of terms of management depend upon facts and circumstances of such case. I am in find that my learned brother Agha Ali Hyder, J. Has held in 1977 PLC: 640 that the determination of the status of a workman and employer would depend upon duties and responsibilities in each case. I am in respectful agreement with the view of Agha Ali Hyder, J. Mr. Sharif also wanted to contend that any establishment and even a part of the establishment can be considered for determining the status of a workman if he is. Incharge of that part of establishment.
20. He relied upon PLD 1978 Kar. 649 where in a Division Bench Judgment my learned brother Fakhruddin G. Ebrahim, J. Held, after considering the circumstances of the case, that the incharge of a printing section was not a workman. I think that decision was given in the circumstances of that particular case. But here in the case before me the Medical Representative is working alone and although he had certain initiative with him but he has to abide by the instructions issued by the Head Office from time to time in respect of his programme. Mr. Ali Amjad has on the other hand relied upon 1974 PLC 98 where it was held that workmen need not be manual workers and they may be professional and intellectual workers, and that white collar worker are not excluded from the definition of a workman under Industrial Relations Ordinance. This was a case of an Accountants Firm which had employed Accountants and about whom it was said that they being intellectual workers could not be covered by the definition of workman. Mr. Ali Amjad also relied upon PLD 1977 SC 237 where the salesmen of Brooke Band were held to be workmen. Mr. Sharif tried to distinguish that case on the basis that in that case the salesmen were selling tea on cycles, worked under a manager and had no powers whereas in this case the situation was different.
21. However in the facts and circumstances of this case which I have noted in detail, the Medical Representatives of the petitioner were correctly decided to be workmen by the Labour Court for the purpose of sections 2 (xxviii), Industrial Relations Ordinance, 1969 and hence the order of the Labour Court was passed within his lawful authority.
22. The submission that workmen working out side the province cannot be represented by Union at Karachi has no substance. It is admitted that there is only one Head Office at Karachi and respondent is the only Collective Bargaining Agent. All Medical Representatives are employed by the Head Office and are paid by the Head Office and their leave and other matters are also controlled by the Head Office. There is no prohibition in law under section 3 of Industrial Relations Ordinance for the C. B. A. Not to enroll a workman as its member who is working at some other place on behalf of the Company. In fact, it is in the interest of the workmen that they should have some one to represent them in respect of their labour disputes. Merely, the submission that Registrar in Sind does not have the jurisdiction beyond Sind Province does not mean that stray employees of a company like the present would be left completely without a right of being members of a Union.
23. In the result the petition is dismissed.