DECISION This is an appeal against an award of the learned Presiding Officer of Labour Court No. 11, Karachi, dated the 7th of September 1973, whereby Ask the learned Labour Court came to the conclusion that the Appellant not being a workman was not entitled to any relief. On the arguments addressed before me by the parties, the short point that would require consideration in this connection is as to whether the Appellant being a salesman was a workman or not. In the second place, whether the Appellant was bound by the condition of service introduced after his employment.
2. Admittedly, the Appellant was appointed as a salesman in 1948. As to whether he was salesman, would depend upon the nature of his duties. It is noteworthy that when he was appointed as a sale-men there was no age for retirement. It was only later on in 1955 that the age of superannuation was fixed as 55 years. The Appellant was on his own showing, as would appear from his application dated 25th March 1972, appointed on 2nd August 1948, as a salesmen.
According to him, he could be retired only for misconduct or if he was found to, be unfit to perform his duties. Mr. Ali Amjad, the learned Advocate for the Appellant, raised two-- fold contentions before me, namely, that the nature of the duties of the appellant were such that he could be held to be a workman. On the other hand it was contended by the respondent that the nature of the duties of the appellant made him an employer. In the second place, it was contended by N-:r. Ali Amjad that the condition of service introduced after the employ--ment of a person is not binding on him unless it is brought to his notice. I propose to dispose of these two contentions separately.
3. Mr. Ali Amjad relied on paragraph 7, of the affidavit of the appellant, which enumerates the nature of his duties that he was required to performas a salesman. It runs as under.
"That the sales organisation in the respondent-Company divided into: a number of Depots spread out throughout Pakistan. ' The whole area of Pakistan, for the purposes of sales organisation and Management is divided into 295 Depots and each Depot is under the control of a salesmen who is incharge of the Depot."
4. It is noteworthy that admittedly there was no cross-examination on paragraph 7, stated above, by the respondent. On the other hand, Mr. M. A. Bhutta, the General Sales Manager of the Company had also filed affidavit enumerating the duties that ought to be performed by a salesman. It is also noteworthy that on many of the points stated by Mr. Bhutta in his affidavit there is no cross- examination on behalf of the Appellant. As it is a question of fact as to the duties that were being performed by the appellant, I would hold that his duties were essentially distribution and section 3 of tea and it was only incidentally that be used to do some clerical were,.' ;while performing the main duty of distribution of tea. I would hold that the Appellant was not a workman.
5. Admittedly, the condition of service of a person cannot be changed unless he agrees to that. In this connection, Mr. A. A. Shareef for the respondent pointed out three documents Exh. R-6, which is at page 165, of the Record of the Labour Court and is dated 1st March 1954 which is a notice fixing the date of retirement at 55 years. The first paragraph of the notice runs as under: ---As many of you already know, the age of superannuation in the Company's service is the attainment of 55 years."
6 This was signed by the Appellant on 13th March 1954. It has been denied that it is not his signature. The second document is Exh. R-7 at page 167 of the Record of the Labour Court. There is no date on this Exhibt but it was signed by the Appellant on 15th May 1956. This is Retirement Gratuity Scheme. The third document is at page 179. This gives a list of various persons including salesmen, who had been retired at the age of 55 years. The list gives the name of as many as 28 persons. The last one on the list is the Lady Secretary.