MUHAMMAD ILYAS ZAHID Versus EHSANUL HAQ PARACHA
ORDER
1. This is an application by Muhammad Ilyas s/o Muhammad Afzal against the President Ferozsons Ltd. Rawalpindi and Manager Ferozsons Ltd. Laboratories Ltd, Awan Gharh, Nowshera and etc, brought under section 15(2) of the Payment of Wages Act, 1936 on 8‑2‑1987. It contains a claim of wages for 11 days and bonus under 10‑c of Standing Orders Ordinance, 1968.
2. Notice was issued to the Respondents who denied the claim both on factual as well as legal grounds. Subsequent to the written reply/statement of the Respondents, filed by Mr. Zawar Ahmad, Deputy General Manager (a duly authorised representative in this behalf) the petitioner submitted an application on 5‑3‑1987 for amendment in the original petition, praying that the petition be considered under West Pakistan Shops and Establishments Ordinance, 1969 than the Payment of Wages Act, 1936.
3. This was done so because the original application under tt Payment of Wages Act, 1936 could be applied only to the factor whereas petitioner "was a commercial employee working on sales du1 in the Province outside the factory. This application was allowed, and both the parties were allowed to produce evidence on the main preliminary issue, namely whether the Authority has got the jurisdiction to entertain the petition framed on their pleadings.
4. Having recorded the evidence and having heard the parties at length, the issue of jurisdiction framed in this behalf is discussed as under.
5. The main contention of the petitioner is that since he worked (made booking for Soaps of the company) in different areas of N.W.F.P., only therefore, the case of his grievance about the non payment of bonus and certain wages came within the jurisdiction of the Authority at Peshawar functioning for NWFP, than any other Authority operating elsewhere, had jurisdiction over the head office at Rawalpindi under whose authority/ direct supervision the petitioner operated.
6. On the other hand, the R W stressed that the petitioner's grievance could not be entertained by the Authority at Peshawar because the petitioner for all purposes i.e. terms and conditions of service was regulated by the Rawalpindi Office directly. Besides, the RW also contended that since the petitioner was basically a travelling agent whose duty was only introduction and canvassing for the company's product than actual selling of goods to bring him within the definition of workman. According to him, as a travelling agent, the petitioner was exempted by the provisions of section 5 of the Shops and Establishments Ordinance, 1969 from the cover of West Pakistan Shops and Establishments Ordinance. Further more, the R.W. also referred to the reported Ruling of the Labour Appellate Tribunal Sind (Appeal No. KAR. 109 of 1978 decided on 20th August, 1979 PLC 1980‑380) wherein Sales Representative was held not a workman within the meaning of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968). The learned Tribunal has in this case referred to the judgment of Lahore High Court which in the case of Brooke Bond Co (Pak.) Ltd. v. General Secretary Union following the decision of Supreme Court in the case of Pakistan Tobacco Company held that salesmen in the Brooke Bond Company are not workmen for the purpose of Industrial Dispute Ordinance,
59. A reference has also been made by the learned Tribunal in the same case to Karachi High Court in the case of Muhammad Aqil v. Sind Labour Appellate Tribunal wherein the High Court observed that unless a person was "employed to do any skilled or unskilled manual or clerical work" he would not be workman for the purpose of the Standing Orders Ordinance. In this case the employee's assignment was to introduce locally produced Mewillish Glues and other types of glues and products into the Karachi Market which was though a challenging job but not requiring to perform any skilled or unskilled manual or clerical work and his job as his designation signified was to promote and push the sales of the products of the Respondent, while little clerical work the job entailed was incidental to the work of remitting sale and from this, it was concluded that the appellant was not a workman.
7. The petitioner was employed and also confirmed as Sales Representative vide Exh.P.W.l and Exh. R.W.1 and the position of duties/assignment performed by him was in no way different from the above‑mentioned/discussed case as he (petitioner) mainly made (as per his own statement) booking of Soap for the Co. which was certainly, neither skilled or unskilled manual or clerical duty, and hence not covered by the definition of workman in the Standing Orders Ordinance 1968. Since the case/grievance of the petitioner is mainly for bonus which is admissible under the said ordinance, so his case not covered by the law i.e. Standing Orders Ordinance. Similarly travelling agents are also excluded from the application of Shops and Establishment orders Ordinance in section 5 of the Ordinance so, even on this account also his application is not tenable as his duties were mainly of the nature of a travelling agent of the Co. to canvass for its products and take bookings from the people for the same. The counsel for the petitioner when confronted with the above discussed rulings, could neither distinguish the same, nor refer to any other ruling of help to his case.
8. In view of the above, there is left no other alternative with me~ but to dismiss the petition for want of jurisdiction, there is however, no order as to cost in view of the complicated nature of case.
9. A.A. /50‑L/Lab. N
10. Petition dismissed.