DECISION This is an appeal under section 37(3) of the I. R. O. against the award of the Labour Court rejecting the demands raised by the appellant.
2. The salesmen and vanmen, who were in the employment of the respondent-Company formed a Union and it was duly registered. The Union raised an Industrial Dispute by serving a demand notice dated 8th July, 1974 raising demands with regard to terms and conditions of the service of salesmen, vanmen and controllers. It may be pointed out here that the controllers, whose number is small, were not members of the Union. The demand notice was followed by stiike notice dated 24-7-1974. The conciliation proceedings having failed the dispute was taken to the Labour Court. It was filed on 20-11-1974.
3. The respondent resisted the demands on various grounds. It was pleaded that the Union composed of salesmen and vanmen only and they could not raise the dispute in respect of the controllers and, therefore, the dispute raised by the Union was bad in law. It was further pleaded that the salesmen were not workmen under the I. R. O. as they were incharge of a' Depot for the purpose of promoting the sale and delivery of the tea to the customers and furthermore they were paid commission in addition to monthly salary. The Union being not properly constituted could not raise an industrial dispute. On merits it was pleaded that the employees were not entitled to benefits which they have claimed. 4.
Evidence was tendered by both the parties. On the assessment) of the evidence the Labour Court entertained the view that the salesmen were not workmen within the perview of I. R. O. and for this reliance was placed upon the decision of the Supreme Court reported in PLD 1961 SC 403 and a decision of the High Court of Sind & Baluchistan reported in PLD 1975 Kar. 279 as well as decision of my leamed predecessor in . It was also held by him that the Union could not raise the dispute in respect of the controllers who were not members of the Union. On merits it was stated that the Union had failed to make out a case on the basis of comparable concerns in order to entitle the benefits claimed by them. He did not accept the contention that the respondent-Firm could be compared with the Brooke Bond, Lipton and Ispahany Ltd. On the basis of these findings the dispute was dismissed. Aggrieved by this the present appeal had been filed.
5. It was urged on behalf of the appellant that the learned Labour Court erred in holding that the salesmen were not workmen. I entirely agree with this contention. The definition of workman as provided by under I. R. O., as it stands now, clearly includes the salesmen within the definition. The authorities which had been referred to by the Labour Court are either based on the previous definition of the term or the one provided by the Standing Orders Ordinance. The position has materially changed after the amendment of the definition. According to the present definitions all those persons who do not fall within the term 'employer', as defined by the I. R. O., are 'workmen'. Not only this but even the persons who are employed in a supervisory capacity not drawing wages exceeding Rs. 80D p. m. and not performing functions mainly of managerial nature, are also treated as 'workmen'. Thus according to definition even the controllers are workmen as their salary is Rs. 290 per month in addition to Rs. 110 as cost of living allowance. It seems that the learned Presiding Officer did not care to apply his mind to the definition of the employer and workmen as now provided after the, amendment of the Industrial Relations Ordinance. His decision is based on the previous definition which is materially out. Even the learned counsel for the respondent conceded that the salesmen were workmen in view of the new definition. 6. 7. 6n the other hand it was urged on behalf of the respondent that the Union could not be treated to be 'Collective Bargaining Agent' for want of certificate from the Registrar of Trade Unions. There is no force in this contention as this requirement was brought into effect by an Ordinance which was amended in October, 1974 whereas the Industrial Dispute was raised in July, 1974. The relevant time is the time when the dispute was raised and not when it was filed in the Court. According to section 22 of the I. R. O., as it stood prior to the amendment requiring certificate, it was not necessary to obtain any such certificate from the Registrar of Trade Unions. The amendment cannot be treated to be retrospective.
8. So far as the merits are concerned the learned Presiding Officer! rejected the demands simply on the ground that no evidence of any compar-u) able concern was led. This was rather insufficient. -He ought to have] The Labour Court also erred in holding that the Union was not properly constituted or at any rate not competent to raise the demands in respect of the controllers, who were not members of the Union. I am unable to support this conclusion. Admittedly the controllers supervise the work of the salesmen and, therefore, they are members of the same establishment. Their number is admittedly small. They have also to go about to supervise the market, depot and distribution of tea. So the Union was competent to espouse their cause although they were not members of the Union. Law does not require that all the workers of the establishment should be members of the Union but what is required is that the number of the members of the Union should not be less than one-third of the total number of the workers of the establishment. It has been clearly stated by Aleem that the number of the members of the Union is far in excess of the required one-third, although at the first time when the Union was formed there were only eleven members. In all there are fifty workmen. examined the demands on their own merits. It is clear that the leamed Presiding Officer was mainly influenced by his view that the Union was not properly constituted and not competent to raise the dispute although some of the demands were most reasonable and could be accepted without any opposition such asjfdemands with regard to service record, identity cards and holiday books. I do not wish to deal with the remaining demands as it is likely to prejudice one or the other party and leave it to be decided by the Labour Court on merits. In this connection it may be pointed out that even the learned counsel for the respondent not only conceded before me that the aforesaid three demands were reasonable but he informed me that he had raised no objection in the Labour Court.
9. In the result I allow the appeal and set aside the award of the Labour Court and remand the dispute to Labour Court No. II for decision on merits after allowing the parties an opportunity to lead any further evidence, if so desired by them.