' Rahat Mahmood Butt, respondent, was employed as Store Salesman in Bata Shoe Company's store located at the Mall, Lahore. Against the order of his dismissal dated 24-2-1976 he filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 before Punjab Labour Court No. 1, Lahore. The petitioner-Company in their written statement opposed the grievance petition of the respondent on merits and also by separate application raised a preliminary objection that Rabat Mahmood Butt, respondent, being a Salesman, was not a workman under the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and could not seek redress under Standing Order 12(3) read with section 25-A of the Industrial Relations Ordinance, 1969. In support of this preliminary objection, the Labour Court recorded the statements of Rabat Mahmood Butt as P. W. 1 and of Hamid Hussain, Provincial Controller as P. W.
1. The Labour Court vide impugned order dated 15-3-1979 came to the conclusion that Rahat Mahmood Butt, respondent, was a workman and, therefore, his application under section 25-A of the Industrial Relations Ordinance, 1969 was maintainable, and adjourned the case to 22-4-1979 for evidence of the parties on merits. The petitioner-Company, feeling aggrieved with the impugned interlocutory order, presented the present revision petition under section 38(3a) of the Industrial Relations Ordinance, 1969 on 21-3-1979 and the same was admitted for regular hearing on 26-3- 1979 when notice was ordered to be issued to the respondent for 13-4-1979 and meanwhile further proceedings pending before the Labour Court were stayed. Since then the matter is pending.
2. I have heard at length the counsel for the parties and have perused the relevant material available on the record and also considered the authorities cited on behalf of the parties.
3. It is vehemently contended by Mr. M. S. Bokhari, the learned counsel for the petitioner-Company, that the respondent, being a Store Salesman, is not a workman under the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, therefore, is not competent to seek redress under Standing Order 12(3) read with section 25-A of the Industrial Relations Ordinance, 1969. Reliance in this behalf is mainly placed upon PLD 1961 SC 403. On the other hand, Mr. Naeem Sultan Butt, the learned counsel for the respondent, argues that his client is clearly covered by the definition of workman both under the Industrial Relations Ordinance, 1969 as well as under the W. P. Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. He further relies upon 1977 SCM R 103 followed by 1979 PLC 131.
4. Rahat Mahmood Butt in his statement before the Labour Court has stated that it was his duty to clean shoes with flannel, which were placed as samples, to place and arrange shoes in the racks and shoe cases by taking out the same from the stock, to receive customers and to make them sit in the chairs provided for the purpose, to place trying stools in front of the customers and then to put off the old shoes of the customers and to take the measurement of their feet with the help of the trying stools. Thereafter, he used to bring out shoes of various designs from the stock to present the same to the customers. According to him, he used to put on the shoes to the customers with the help of the shoe horn. After a pair of shoes fitted a customer, who decided to purchase the same, the respondent used to take the pack of the said pair to the counter, tied it with the thread, prepared the cash memo. And handed it over to the Cashier on the counter. The additional packs lying on the floor which were shown to the customer, but were not liked or selected by the customer, were replaced at the proper place at the racks. According to the respondent, he used to issue slips to the customers for the shoes received for repairs. If a claim was preferred by a customer, he was issued a receipt by the salesman. It is further stated by the respondent that at the end of every day a salesman makes out the total of his respective sales and the return of daily performance is duly filled by a Salesman, which is called Daily Mirror Statement. After every week the Manager is informed by the Salesman about the sizes and designs required and these lying in the stocks. A fortnightly report regarding stock and requirement is submitted to the Manager after carrying out the checking and placing the stocks in the racks. Salesman's prosperity card is also prepared fortnightly by every Salesman. According to the respondent, when the stocks are received froth the Company, the crates are lifted by a Salesman and placed in the store. The hoops of crates are opened by a Salesman and the stocks are tallied with the packing slip. The quality of stock is checked after opening the cartons. A substandard goods are placed aside and the Manager is informed accordingly. The labels or varied prices are pasted on the cartons by a Salesman. If no printed labels are received from the Company, the same are prepared in manuscript by a Salesman. He has further deposed that the Salesman also performs the duty of a Decorator and arrange the samples in the shoe cases. In cross-examination the respondent has admitted that at The Mall Store there are 6/7 salesmen and two helpers. The helpers clear the chairs, stocks, windows and show cases. A Decorator is provided at The Mall Store and one of the salesm5n is assigned the duties of a Decorator and is additionally paid for the same. He denied the suggestion that the crates are opened by helpers alone, but admitted that in fact crates are opened by helpers and salesman. Laces are tied every day of the pairs placed on pre-setters and every salesman performs this duty.
5. Mr. Hamid Hussain, Provincial Controller (R. W. 1) in his statement has stated that the duties of a Salesman are to guide the customers towards seats in the shop, talk to them politely and to advise them with regard to the purchase of shoes. The shop helper opens the goods when the same are received at the shop. The price labelling on the shoes is done in the Head Office. The Shop decorator does the work of decorating the shop and it is his duty to tighten or to loose the laces of the shoes put in the shoe cases. He has further deposed that the Salesman is also to help the Manager in the preparation of fortnightly statement with regard to the stock taken. In cross- examination this witness has admitted that there is a gallery in the shop situated on the Sharah-e- Quaid-i-Azam, Lahore and the shoes are placed in that shop in racks in order. He denies the suggestion that the Salesman goes and brings the shoes places in the gallery on the arrival of customer as this work is done by a helper. The repair slip is filled in by the Repair Incharge and not by the Salesman and one of the members of the shop staff is the Repair Incharge. He has admitted that the duties of a Salesman are also written in Exh. P.
3. He denied the suggestion that according to Exh. P. 3 the duty to fill in the Daily Mirror of the Salesman is that of the Cashier. The packing of sold out shoes is done by second helper at the counter and the cash memo is filled in either by the Cashier or by the Shop Manager. He, however, has admitted, that the Salesman opens the Shoe Box and passes on the same either to the customer or places the same on floor. He further denied the suggestion that the salesman helps the customer in wearing the shoes with the help of a shoe horn. He further denied the suggestion that the boxes containing the shoes are opened by the Salesman. This witness has further admitted that the duties of a Salesman are also given at page 9 of Exh. P.
5. He has denied the suggestion that fortnightly statement is prepared by the Salesman with his own hands.
6. In Exh. P. 3 printed duties of a Salesman are as under :"(I) Treat your customers as your guest.
(2) Greet them with smile and offer them seats.
(3) Serve them with courtesy and politeness.
(4) Know your merchandise to sell and offer substitute.
(5) You must achieve your daily estimate in all the categories.
(6) Remember you have to sell the old week supply first.
(7) Clean your stock and arrange it properly.
(8) Check the quality while receiving the consignments.
(9) Your show-windows, show-cases and pre-selectors must be well-maintained and attractively displayed.
(10) Make your fortnightly statements with care and anticipation.
(11) Be punctual and regular in your attendance.
(12) Be well groomed. Your dress should be neat and clean. Your shoes must be well polished and shining.
(13) You must fill up the daily mirrors and prosperity cards regularly.
(14) Co-operate with your colleagues and obey the instructions of your Manager and superiors.
(15) Be loyal to the organisation and suggest was and means to improve the business?'
' Similarly in Exh. P. 5 the following are the duties of a Salesman :(b) Duties of Salesman:
(a) To sell company's merchandise and render proper service to customers.
(b) To receive customers politely and smilingly with greetings and offer seats.
(e) To offer for sale shoes and sundries to customers.
(d) To examine customers old shoes and recommend repairs, if needed.
(e) To receive shoes for repair and tissue repair slips ; to send shoes for repairs and effect delivery when received back from the repair shop.
(f) To examine customers feet and to recommend Pedicure treatment,,, if needed.
(g) To make out cash memos for the merchandise sold and to receive cash from customers and hand it over to the Cashier.
(h) To sell old stock first, and for that purpose identify the stock regularly.
(1) For the purpose of placing proper order, to report demand and stock with sizes on prescribed form to the Manager, weekly/fortnightly.
(j) To fill up daily mirrors every day and prosperity card timely and to such other administrative work as may be required of him.
(k) To receive consignments, accept only good quality shoes and return defective shoes with the approval of the Manager.
(1) To attend conference arranged by the Manager or other superior officers according to instructions, for improvement of business, and to try and achieve their daily and weekly estimate as per category.
(m) To bring to the notice of the Manager or other superior officers any discrepancy or irregularity found by him in the shop effecting the welfare and reputation of the same and give suggestions for improvement of business and rectification of such defects.
(n) To render best co-operation to other staff, the Manager, superior officers and maintain cordial relations with all concerned.
(o) To keep the shop, stock (price stamping to be kept up to date) and furniture presentable for business and display up to date.
(p) To work on behalf of the Manager as and when required during his absence from the shop in the ordinary course of day to day work and business."
' The duties of a shop helper are given at page 11, which is reproduced below :- "(f ) Duties of Shop Helper.-To carry out all orders of the Manager and other superiors in pursuance of the business and in the interest of the Shop both indoor and outdoor."
7. It is in the light of the above-mentioned material that we have to determine the nature of duties performed by a Salesman working in a shop of the petitioner-Company. A 'worker' and 'workman' is defined as under by the Industrial Relations Ordinance, 1969 :-- "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 mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees one thousand 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.
' The definition of a workman given in the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 reads as under :- "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward.
8. It is not denied even by Mr. M. S. Bokhari, the learned counsel for the petitioner, that the definition of a worker/workman given in the Industrial Relations Ordinance, 1969 is very wide and will cover the case of the respondent. His contention, however, is that this case is governed by the definition of a workman as given in W. P. Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968; As enunciated by their Lordships of the Supreme Court in 1971 PLC 1 there are the following three essential requisites necessary to make an employed person a workman :- (1)He must be employed for hire or reward ; (2)He must be employed to do any skilled or unskilled, manual or clerical work ; and (3)He must be employed in an industrial or commercial establishment.
' Now we have to apply these requisites to the facts of the present case. Although in their statements Rahat Mahmood Butt, respondent, and Mr. Hamid Hussain, Provincial Controller, made certain contradictory assertions regarding the duties of a Salesman, yet documents Exh. P. 3 and P.
5 are more authentic and are admitted by both the parties. In fact these documents are officially issued by the petitioner-Company for the guidance of their Salesmen. Exh. P. 3 contains 15 duties of a Salesman while Exh. P. 5 is a booklet containing standing orders and rules for shop employees (other than shop Managers). According to Exh. P. 3, it is inter alia the duty of a Salesman to clean his stock and arrange it properly, check quality while receiving the consignments, make his fortnightly statement with care and anticipation and fill up daily mirror and prosperity card regularly. At page 9 of Exh. P. 5 are enumerated the duties of a Salesman. According to this document, the duties of a Salesman inter alia are to sell company's merchandise and render proper service to the customers, to receive customers politely and smilingly with greetings and offer seats and to offer for sale shoes and sundries to them, to examine customers old shoes and recommend repairs, if needed, to receive shoes for repair and issue repair slips and affect delivery when received back from the repair shop, to examine customers feet and to recommend Pedicure treatment, if needed, to make out cash memos for the merchandise sold and to receive cash from the customers and hand it over to the Cashier, to fill up daily mirror every day and prosperity card timely, to receive consignment, accept only good quality shoes and return defective shoes with the approval of the Manager.
9. From the perusal of the above material, it can reasonably be inferred that a part of the duties of Salesman is of clerical nature like preparing daily mirror and prosperity cards, fortnightly statement and to make out cash memos. For the merchandise sold. The other part of his duties is clearly of manual in nature as he has to clean his stock and arrange it properly, check the quality while receiving the consignment, to receive customers and offer them seats, to offer for sale of shoes and sundries to the customers, to examine customers old shoes and recommend repairs, if needed, to receive shoes for repair and tissue repair slips, to send shoes for repairs and affect delivery when received back from the repair shop, to receive consignment and accept only good quality shoes end return defective shoes with the approval of the Manager and to examine customers' feet and to recommend Pedicure treatment, if needed. ##TSE# These duties are mentioned in the official documents Exs. P. 3 and P.
5. These duties are unskilled in nature. After taking into consideration the various duties admittedly performed by the respondent as a Salesman, I have reached the conclusion that the respondent is also covered by the definition' of a workman given in the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
10. I have carefully gone through the authorities cited by the parties and I am of the view that mere label or designation of a Salesman is not sufficient to determine his status, but it is the true nature of the duties performed by him, which is the determining factor to ascertain whether he is a workman or not. ##TSE# I have enumerated above the duties performed by the respondent and most of those duties are supported by the official documents Exhs. P. 3 and P.
5. It is in the light of such naterial available on the record and not more academically that we have to determine the question whether the respondent is covered by the definition of workman or not.
Each case depends upon its own facts. The nature of duties performed by the respondent in the instant case clearly brings him within the purview of the definition of a workman under W. P.
Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as held above.
11. Mr. Naeem Sultan Butt, the learned counsel for the respondent, has also tried to argue that the definition of a workman given in Standing Orders Ordinance, 1.968 should not be taken into consideration for deciding the application of the respondent filed under section 25-A of the Industrial Relations Ordinance, 1959. According to him, the definition of a workman given under the Standing Orders Ordinance, 1968 is not applicable to the instant case as it is the definition given under. The Industrial Relations Ordinance, 1969 which applies to the respondent as his grievance petition has been filed under section 25-A of the Industrial Relations Ordinance, 1969. Reliance in this behalf has been placed upon the following authorities :-
(1) 1977 SCM R 1031, and
(2) 1979 PLC 131 ' It is not necessary to decide this point in this case because the respondent has already been held to be a workman under Standing Orders Ordinance, 1968.
12. For the foregoing reasons, I find no substance in this revision petition and the same is hereby dismissed.