Brooke Bond Employees' Union (Punjab) hereinafter referred to as the petitioner-Union has brought the under consideration applications under section 32(1-A) of the Industrial Relations Ordinance, 1969 against the Chairman, Brooke Bond Pakistan Limited, Lahore hereafter referred to as the respondent seeking adjudication in respect of the following to demands:- Demand No.1.-The working hours of the Vanmen may be fixed in accordance with the restriction of law.
Demand No. 2. -The drivers working hours may be brought at par with office staff.
2. Needless to add that this application has been filed after observe--ing the procedure prescribed for raising of the industrial dispute i.e. The service of demand notice, service of strike notice, participation in the conciliation proceedings and the failure of the same.
3. The respondent resisted the application of the petitioner-Union and pleaded Inter alia that the application was not legally competent as it has been filed by a body of Trade Union which was not legally and properly con--stituted as it was composed of workmen as well as those who were not workmen and as such the application was liable to be dismissed. On merit the respondent contended that the demand relating to the fixation of working hours of Vanmen was not legally maintainable as the Vanmen were employed exclusively in connection with the collection and delivery of company's goods, and work exclusively in the fields and markets of cities, towns, and out-stations. Regarding Demand No. 2 the respondent pleaded that the demand was without any justification as there was no provision in law under which the drivers working hours could be fixed in accordance with the working hours of the clerical staff.
4. As regards the preliminary objection raised by the respondent that the petitioner-Union was not legally constituted body, it is observed that this objection purports to have been based on the plea that salesmen are not workmen whereas Vanmen are workmen and since the petitioner-Union represents salesmen as well as workmen it cannot be considered as properly constituted body. Not much evidence has been led by the parties about this half hearted plea of the respondent.
Nevertheless there is sufficient material on the records to suggest that as a salesman is a regular employee of the company who is paid on monthly basis and his duties are to go to the market stand hotels to dispose of the goods of the company received at his depot. He also commences for the disposal of such goods. He has no power to employ or remove workmen. The salesman in the circumstances is not an employer and is thus obviously a workman. In Union Karkunane Brooke Bond Pakistan Limited (PLJ 1974 Tr. C. (Lab.) 206) Mr. Justice Shah Zaman Babar of the Peshawar High Court has held that salesman who was not covered by definition of an employer falls within definition of workman. His Lordship further found that Union of such salesmen which was a registered Trade Union and was declared C. B. A. Was competent to give notice of strike and to declare strike. It was observed in this case that question whether a person falls within definition of the expression workmen could be determined by looking at definition of employer.
5. In view of the above, it is concluded that salesmen are also workmen like Vanmen and therefore the petitioner-Union which is composed of salesmen vanmen is a validly constituted Trade Union in the eye of law. It is note--worthy that the respondent has already recognized the petitioner Union as a validly constituted Union by entering into agreement and signing settlement with this Union.
Copy of one such settlement is Exh. R. 11 which was executed between the petitioners and the respondent on 8th October 1971. The preliminary objection raised by the respondent in the circumstances is over ruled.
FINDING ON MERITS Demand No.1.-According to this demand, the claim of the petitioner Union is that the working hours of vanmen should be fixed in accordance with the restriction of law. This means that this demand of the petitioner Union is based on right guaranteed or secured. It is noteworthy that according to the definition of the expression 'industrial dispute', as contained in section 2(xiii) of the Industrial Relations Ordinance, 1969 any dispute or difference between the employer and workmen in respect of enforcing of any right guaranteed or secured to him by or under any law other than the Industrial Relations Ordinance or any award or as settle--ment for the the being in force is not included in the terms industrial dispute. Any dispute or difference between employer and workmen in respect of the enforcement of any right guaranteed or secured to the workmen by or under any law has been taken out of the expression industrial dispute, by the Industrial Relations (Amendment) Ordinance, 1974. It appeals that such' a dispute or difference has been taken out of the purview of the industrial dispute because a right guaranteed or secured by or under any law can be enforced by the C. B. A. Under section 34 oft the I. R. O. And by a workman under section 25- A bid and need not be made as subject-matter of the Industrial dispute. Even prior to Amendment of 1974 the courses have always respect of rights guaranteed by any law that the same be enforced in accordance with law. Daily weekly hours and overtime of workmen are to be regulated in accordance with section 8 of West Pakistan Shops and Establishments) Ordinance, 1969, while opening and closing hours of establishments are regulated by section 7 ibid. In the present case the respondents, demand is that vanmen are employed exclusively in connection with collection, despatch, delivery and conveyance of goods and therefore by virtue of section (i) (ix) of West Pakistan Shops and Establishments ' Ordinance 1969, the provisions of the Ordinance are not applicable to them. We need not record finding regarding this plea of the respondent, in as much as the petitioner-Union has based this demand on law and appropriately it can be awarded that the petitioner or various concerned Vanmen, compare recourse, if so advised, to enforce it as a right guaran--teed or secured by or under any law. In such an eventuality during the proceedings as for enforcement of such right the plea of the employer that Shops Ordinance is not applicable to vanmen in view of the provision of section 5(i) (ix) ibid can be looked into.
7. In this view of the matter it is awarded that since this demand is being claimed as a right guaranteed or secured by law, adjudication regarding it cannot be claimed in an industrial dispute.
Demand No. 2.--In support of this demand Sarwar Khan who is employed as driver in the Branch Office of Brooke Bond Lahore stated that his working hours during winter are from 8-00 a.m. To 4- 45 p.m. And during summer the same were from 6-30 a.m. To 4-00 p.m. He also stated that he accompanied the Branch Manager when the latter was on tour. He admitted that he was paid overtime at Rs. 3.30 per hour. Overtime was paid if he worked beyond 48 hours a week. He was paid Rs. 6 as night allowance if he accompanied the branch Manger on tour. He was also paid Rs. 3 on account of day allowance when he was on tour during day-the. He further conceded that during summer he was allowed lunch break from 12-15 p.m. To 1-15 p.m. And during the winter lunch break was from 1-00 p.m. To 2. p.m. He also admitted that working hours in respect of different categories of employees were different. Peons work for 48 hours during a week while clerks work for 36 hours during a week. In rebuttal Mr. Shafqat Ahmed Malik, the then Branch Manager, Brooke Bond (Pakistan) Lahore Branch stated that there were three categories of employees in the Branch Office of the company. They were Peons, Drivers and Clerks. Different working hours were fixed for each category. The working hours of drivers in all the 5 branch offices located at Lahore, Rawalpindi, Peshawar, Sukkar and Karachi were 48 hours a week. It transpires from the parties evidence that in the respondent-Company different working hours are observed for different categories of workmen keeping in view (sic) are fixed which are meant for drivers employed in other branch offices in Pakistan. If driver is made to work beyond 481 hours week he is paid overtime in the circumstances there is not, justification in this demand of the petitioner-Union that the working hours of drivers be brought at par with office staff.
9. In the light of what has been said above, the application is disposed of in the manner as indicated under such demand.