This application under section 34 of Industrial Relations Ordinance, 1969 arises out of an Industrial Dispute between the applicant and the respondents. The dispute arose out of a strike notice. It is averred in the petition that the respondent-Union is an illegally constituted Union because the "Salesmen" are not workmen; that the strike notice and the demands made by the Union of the respondent are liable to be rejected , that the notice dated 19th June 1971 issued by the respondent under section 26 of Industrial Relations Ordinance is illegal, invalid and incom--petent in law ; that notice dated 4-7-71 is also illegal ; that the meeting proposed to be held on 11-8-71 allegedly to be under section 27-A of Industrial Relations Ordinance, 1969 was time-barred and that the respondent may be prohibited from taking any action in pursuance of its notice dated 4-7-1971 and notice dated 19th June 1971.
2. The respondent-Union also brought a separate Petition No. 88 of 1973 against the present applicant that an award be granted accepting the demands mentioned in the charter of demands which is attached with the file as Annexure ---A---. I propose to dispose of this petition also by this order because the fact of both the petitions are the same and parties are also the same.
3. The parties produced their respective evidence in support of their contentions. I have heard the arguments of the learned counsel for the parties at length and carefully perused the record. The principal question that arises for determination is whether the Salesmen of the applicant are "workmen" or not as contemplated by section 2 (xxviii) of the Industrial Relations Ordinance, 1969.
Workman means any person including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward. According to the above definition 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. In the cross-examination, Khalilur Rehman's admitted that he is Incharge of the depot which consists of different markets. He further admitted that a vanman is being provided to him who helps him in all physical work but the vanman does not sell the tea. Further on he admitted that he is authorised to engage temporary vanmen and that he selects the persons to be appointed as temporary vanmen and that he recommends the vanmen for permanent appointment. In the middle of his cross-examination, Khalilur Rehman's admitted that the vanman works under his instructions and he is competent to look into the grievances and remove them without reference to the Company. He has also admitted that once he broke the strike of the dealers and can change the programme of the Depot and that he can sanction the leave to a vauman working under him. Mr. Muzaffar Ahmad Bhutta (P. W. 1) General Sales Manager of the applicant stated that the salesman has full authority and discretion to change the programme if such a change is necessary in his opinion and that the salesman is empowered to remove the grievance of the customers. He further deposed that a salesman can engage all vanmen and any other temporary labourer required by him and the services of a temporary vanman can be terminated by him. It is further stated in the statement of this witness that a vanman works directly under the control and management of a salesman who is his employer, He produced Exh, P. L. And Exh. P. M. Which shows that the salesman can engage a vanman and can remove him. It is in the evidence of Muzaffar Ahmad that a salesman is incharge of the stock at the Depot valuing from Rs.
10,000 to Rs. 70,000 depending on the position of the sales in his area. He has to travel from place to place at the expense of the Company. The salesman issues the cash memos for the stock sold and collects the amount. From the above analysis of evidence, it is clear that a salesman is incharge of the Depot placed under his control and is responsible for the sale and distribution work in his area.
In short the salesman in this company is responsible for the sales and distribution of the tea in his area. It is evident from the statement of P. W. 1 Muzaffar and R. W. 1 Khalilur Rehman's that salesmen of the applicant-Company have authority to engage vanman on temporary basis. In fact all vanmen are initially engaged by salesmen and subsequently they are made permanent by the company on the recommendation of the salesman. The learned counsel for the respondent argued that salesmen have got very limited powers and as such he should be regarded as workman. In this respect we have to see whether a person or a class of persons have or have not been vested with administrative powers and functions of Management. It is clearly established on record that the salesman in the applicant Company does exercise administrative powers which have been vested in him as salesman incharge of the depot area and he performs functions of Manage--ment. Section 2 (viii)(e) of the Industrial Relations Ordinance is were enough to include as employers "Manager, Secretary, Agent or officer of person concerned with the Management of the affairs" of the establishment, term "Establishment" as defined in section 2(ix) of the said Ordinance includes a depot as an industrial unit, shop or premises. The salesman in the applicant- Company is incharge of the depot. He manages the entire sales of his depot independently, he is paid commissions on sales made by him, he directs and takes work from vanmen. In view of the above dis--cussions, it can be said without any doubt that the respondent did work in a managerial capacity and does not fall within the definition of a workman. The definition of the term worker or workman when considered alongwith the exception of a supervisor in the light of the material brought on record brings me to the irresistible conclusion that the respondent falls within the ambit of the term of an employer. In my above opinion, I am supported by an authority quoted as 1969 PLC 616 id which a salesman has not been declared as a workman It is also held in 1961 PLC 1127 that "where the main work of an employee is that of convassing and any clerical or manual work that he has to do is only incidental to his main work and cannot take more than a small fraction of time for which he has to work, it cannot be held that the employee's duties are mainly clerical or manual or that therefore he is a workman". The facts of this case are similar as in the present case.
4. In view of the above discussion, I hold that the salesman is not a work non and the notices issued by the respondent's Union dated 4-7-1971, 19-7-1971 and the proposed meeting dated 11-8-1971 are illegal, invalid and incompetent in law. Thus the petition is accepted. The petition of the respondent-Union automatically falls and is hereby dismissed. In view of the peculiar nature of the petition, I allow the parties to bear their own costs. Pleader's fee Rs. 30 only.