DECISION ' The two appellants, Muhammad Ishaque and Nazir Hussain, who were appointed as sales representatives of the respondent organization for the sale of Cotton Sewing and Embroidery Threads. Lace and Braids for Karachi District, filed separate grievance petitions before the learned Vth Labour Court on 2nd January, 1980 alleging that they were workmen of the respondent organization and that their services had been terminated unlawfully by the respondent in violation of the Labour laws. The respondent resisted the grievance petitions of the appellants mainly on the ground that they were working on commission basis and hence are not be considered too he workmen of the respondent. The learned Labour Court, by separate but substantially similar decision, has dismissed the grievance petitions of the two appellants, holding that they were not entitled to file and maintain grievance petition against the termination of their employment, as they are not workmen for the purpose of the Standing Orders. The decisions of the learned Labour Court were mainly founded on the view taken by the learned Labour Court that the appellants were paid commission basis alone and were neither getting any wages nor any conveyance allowance.
The appellants have come up in appeal against the said decisions to this Tribunal.
2. I have heard Mr. Ch. Rashid Ahmed, the learned counsel for the appellants. He has strongly urged that the Labour Court has failed to consider that it is not the nomenclature or designation of the post or job to which the appellants were employed but the nature of work which they were required to perform which is the determining factor whether the appellants were workmen or not for purposes of the Standing Orders. According to the learned counsel, there was not only the oral testimony of the appellants but further documentary proof in the nature of their appointment orders to show that they were required to perform manual work in connection with their duties, such as covering several miles on foot to contact shopkeepers and other purchasers of the products of the respondent and also the work of loading and unloading the products which they were required to sell.
3. It has been held by this Tribunal in the case of Johnson & Johnson v. Zubair Ahmed (1), that only a workman as defined in the Standing Orders is entitled to file and maintain a grievance petition against the termination of his services under clause (3) of Standing Order 12 read with section 25- A, I. R.
0. Ch. Rashid Ahmed did not challenge the position of law as laid down in the said decision. He, however, as already pointed out, sought to argue that the nature of duties of the appellant involved the performance of manual duties. It is settled law that for the purposes of determining whether an employee is employed to perform manual or clerical work it is his principal duties or functions which are to be taken into consideration and not the incidental or sundry duties which he may be required to 'perform while perormin his main or principal duties. It has, therefore, to be seen whether the main and the principal duties for which the appellants were employed required work of manual nature. No doubt the appellants have claimed in their affidavit before the Labour Court that they were required to walk several miles on foot in order to contact shopkeepers and other purchasers A of the products of the respondent which they were required to sell and that they had personally to load and unload the products of the respondent which were entrusted to them for sale but apart from the fact that there is no evidence in support of their statements the documentary evidence does not seem to support their claim regarding performance of this work.
As already pointed out, the main documentary evidence does not seem to support their claim regarding performance of this work. As already pointed out, the main documentary evidence in this behalf, which has been relied upon by Mr. Ch. Rashid Ahmad, is the letter of appointment of appellant Muhammad Ishaque. It appears no such letter of appointment was issued to Nazir Hussain. The letter of appointment of Muhammad Ishaque reads as follows :- "Dear Sir, ' With reference to your application for acting as our sales representative for the sale of Cotton Sewing and Embroidery Threads, Lace and Braids for Karachi District, we are pleased to confirm your appointment as our Sales Representative for a probationary period of 3 months with effect from the 6th of September, 1969, on the following terms and conditions :- .(l) You will act as our Sales Representative for the Karachi District.
(2) You will report all orders booked by you, to this office, for execution. {{FOOT NOTE}}
(1) 1980 PLC 622 {{FOOT NOTE}}
(3) The orders will be subject to final confirmation of this office.
(4) The orders will be booked at the rates mentioned in the price List current on that date, and will be subject to the terms and conditions of the firm.
(5) You will visit factories, shops etc., to book orders, for which, you will bear your own transport expenses.
(6) You will be entitled to 3% commission for that amount of Bill Value only, for which, payment is received by us, against orders booked by you.
(7) The said commission would be paid monthly, on supply value realized.
(8) Responsibility, of the supply of the goods to the parties, and the collection of bills will be yours.
(9)
You will be fully responsible for the realization of all bills for the orders which have been booked by you.
(10) In case of non-payment of any bill by your party, such amount will be deducted from your commission account.
(11) By way of a special incentive, the following conveyance expenses shall be made payable to you
(a) For the first three months (i. e. September, October and November) 1969 Rs, 200 per month.
(b) for the next three months (1. e. December, 1969, January and February 1970 (Rs, 100 per month).
(12) The above Special Conveyance Allowance shall be discontinued at the end of February, 1970 or end of the sixth months, from the commencement of your appointment as Sales Representative.
(13) You will try your best to increase the sales of our products, to the maximum and the sale figures of Rs, 25,000 should be achieved within 3 months.
(14) No commission whatsoever is to be collected from the buyers.
(15) The firm, shall have the option to discontinue your services with the first 3 (three) months, without assigning any reason.
(16) During the tenure of your Sales-Representation, you are not allowed to work for any other items of trade, or to represent any other firm, company manufacturers etc. Thus your Sales.
Representatives of our products shall be on exclusive basis only."
4. The above letter appears to have been followed by a subsequent letter dated 1st January, 1975, which contains substantially the same terms and conditions as the above letter except the term regarding provisional payment of conveyance allowance. The letter of 1st January, 1975 is said to contain the signature of Muhammad Ishaque in token of his having accepted the terms and conditions stated in the letter but this signature is denied by Muhammad Ishaque. Ch. Rasheed Ahmed sought to rely on items 5 and 8 of the letter of appointment of Muhammad Ishaque as according to him they support the evidence of the appellants that they were required to walk on foot to contact the shopkeepers and also it was their responsibility to load and unload the goods which they were given for selling. A bare perusal of the appointment letter, however indicates that though the appellants were required to contact factories, shops etc., for the purposes of booking orders this does not mean that they were required to walk on foot. Of course, according to the respondent the appellants were not provided with any conveyance nor they were given any conveyance allowance except the provisional conveyance allowance given to appellant Muhammad Ishaque for the first six months of his engagement with the respondent, but since the appellants' remuneration consisted of commission on the sale price of the goods sold by them they were expected to meet the expenses of travelling to see the factories and shops etc. Through this commission and any expenses incurred by them in loading and unloading was also to be met from the 3% commission allowed to them under the terms of the appointment letter. Even if it be conceded that the appellants had spoken truth that they had to go on foot to visit the factories and shops and they themselves used to load and unload merchandise, this would not make them workman for the purposes of the Standing Orders since they were not employed to do this work.
They were employed as travelling sales representatives and although their duties undoubtedly involved visits to factories and shops, loading and unloading merchandise, they could undertake the journeys in suitable conveyance and also employ labour for the purposes of loading and unloading merchandise and meet this expenditure out of the commission paid to them.
5. I also find no force in the contentions of Mr. Ch. Rasheed Ahmad that the appellants were paid wages at the rate of Rs, 600 per month and further were in receipt of conveyance allowance. No doubt the letter of appointment of appellant Muhammad Ishaque shows that he was paid a small conveyance allowance for the six months of his employment with the respondent so that he could tide over the period until he was able to receive sufficient commission in this behalf, but the accounts and vouchers in respect of the appellants which have been produced on record clearly indicate that the appellants were in receipt of commission only and no wages or conveyance allowance were paid to them. Mr, Ch. Rashid Ahmed sought to show that since the very accounts produced by the respondent clearly show that the appellants were receiving a sum of Rs, 600 every month it should be presumed that this was the monthly wages to which they were entitled but an examination of the said accounts and voucher shows that these payments, though made monthly, were towards account and were deducted from 3% commission on sales to which alone the appellants were entitled. This inference gains further support from the fact that there are in the accounts also other advances taken by the appellants which had been adjusted against the commission to which they were entitled. I am, therefore, in agreement with the view taken by the learned Labour Court that the appellants were in receipt only of commission and not wages or conveyance allowance as claimed by them.
6. Mr. Ch. Rasheed Ahmed finally sought to rely on the decision of their Lordships of the Supreme Court in the case of Brooke Bond (Pakistan) Limited v. Conciliator (1) wherein it had been held that a salesman having to go round market for distribution and sale and who was not concerned with the management but was required to account for sales {{FOOT NOTE}}
(1) PLD 1977 SC 237 {{FOOT NOTE}} ' and to submit returns to the Manager Incharge was a workman. However in that case, the Supreme Court considered only the definition of worker as given in the I. R.
0. And not definition of workmen as given in the, Standing Orders. In the case of Johnson & Johnson v. Zubair Ahmad, I had' occasion to point out that the two definitions were materially different. A travelling sales man may be a workman under the I. R.
0. But the present sales representatives, as already shown, do not fall within the definition of workmen for the purposes of Standing Orders.
7. For the reasons discussed by me above, I would dismiss both the appeals of the two appellants in limine.