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PETITIONER: T .P. SRIVASTAVA

       Vs.

RESPONDENT: NATIONAL TOBACCO CO. OF INDIA LTD.

DATE OF JUDGMENT11/10/1991

BENCH: RAMASWAMI, V. (J) II BENCH: RAMASWAMI, V. (J) II KULDIP SINGH (J)

CITATION:  1991 AIR 2294            1991 SCR  Supl. (1) 472  1992 SCC  (1) 281        JT 1991 (4)   121  1991 SCALE  (2)787

ACT:     Industrial Disputes Act, 1947-Section 2  (b)--"Workman"- Definition  of-- Section salesman having supervisory  duties and   such   duties  which  require   creative   mind,   not workman---Employee covered under the Sales Promotion Employ- ees (Condition of Service) Act, 1976 not workman.     Labour Law---Termination of services of a Section Sales- man--Findings of Labour Court approved by Supreme  Court--16 years old labour dispute-Direction to pay amount  equivalent to three years salary.

HEADNOTE:     The  appellant  was in the service  of  the  respondent- company as a Section Salesman. He was terminated from  serv- ice  on  12th  July, 1973 on the ground that he  was  on  an unauthorised absence since 13th January, 1973.     At the instance of the appellant the Government referred to  the Labour Court for adjudication the  question  whether the  termination  of the services of the  appellant  by  the respondent-company  was  legal and justified and if  not  to what relief he was entitled to.     The  Labour  Court  held that the appellant  was  not  a "workman" and that, therefore, the reference was incompetent but it answered the question whether the termination  itself was illegal in favour of the appellant.     The appeal was filed in this Court against the order  of the Labour Court. Dismissing the appeal, this Court,     HELD:  1.  In  order to come within  the  definition  of "workman"  under the Industrial Disputes Act as it stood  in the  year 1973 when the appellant’s service was  terminated, the  employee has to be under the employment to do the  work of  one  of the types of work i.e.  manual,  skilled  rod/or clerical in nature. [475-E] 473     2.  The  appellant  was employed to  do  canvassing  and promoting  sales  for the company. The  duties  involve  the suggesting  of ways and means to improve the sales; a  study of the type or status of the public to whom the product  has to  reach and a study of the market condition. He  was  also required  to  suggest  about the publicity  in  markets  and

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melas, advertisement including the need for posters, holders and  cinema slides. These duties do require the  imaginative and creative mind which could not be termed as either  manu- al, skilled, unskilled or clerical in nature. The  supervis- ing work of the other local salesman was only incidental  to his  main work of canvassing and promotion in the  areas  of his operation. Such a person cannot be termed as a  workman. [475 F-G]     3.   The  Sales  Promotion  Employees   (Conditions   of Service)Act,  1976, defines "sales promotion  employees"  as meaning  a person employed or engaged in  any  establishment for  hire or reward to do any work relating to promotion  of sales or business or both. [476 A-B]     4. The object of the enactment and the employees covered by  the enactment also go to show that persons who  are  em- ployed  for sales promotion normally would not  come  within the definition of workmen under the Industrial Disputes Act. [476C-D]      In view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any  remedy at this stage. To meet the ends of justice,  the Company is to pay an amount equivalent to three years salary at  the  rate he was drawing when the  appellant’s  services were  terminated, in addition to whatever amount  they  were paying during the pendency of the appeal. [476 E,F]     Burmah  Shell  Oil Storage and Distribution  Company  v. Burmah  Shell  Management and Staff, AIR 1971 SC  922;  D.S. Nagraj v. Labour Officer, Kamal & Ors., 1973 (42) FJ.R. 400; JJ. Decbane Distributor v. State of Kerala and Ors., 1974-11 LLJ 9, referred to.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No.  1681A(L) of 1979.     From  the award dated 2.8.1978 of the Additional  Labour Court, Rajasthan in Reference Case No. ALC - 120 of 1974. V.M.  Tarkunde, P.H. Parekh and Sunil Dogra for  the  Appel- lant. 474 J.D. Jain for the Respondent. The Judgment of the Court was delivered by     V.  RAMASWAMI,  J.  The appellant who had  been  in  the service of the respondent-company as a Section Salesman  was terminated  from  service on 12th July, 1973 on  the  ground that  he was on an unauthorised absence since 13th  January, 1973 and shall be deemed to have left the company’s  service of  his  own account. At the instance of the  appellant  the Government  of  Rajasthan referred to  the  Labour  Court/or adjudication  the  question whether the termination  of  the services  of  the appellant by the respondent-  company  was legal  and justified and if not to what relief he was  enti- tled  to. The Labour Court by its award dated 2.8.1978  held that the appellant was not a "workman" and that,  therefore, the  reference was incompetent. We may, however, state  that the Labour Court has given findings in favour of the  appel- lant  on  the question whether the  termination  itself  was illegal.     The  facts as found by the Labour Court -for  coming  to the  conclusion that the appellant was not a  "workman"  are these. The head office of the company is at Calcutta in West Bengal.  The appellant was appointed as a  section  salesman and his services were controlled by the head office  through its territory office situated in Delhi. Section salesman are

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appointed for certain number of districts and in the area of each section salesman, a number of local salesmen and  local travelling  salesmen  are appointed. The appellant  was  ap- pointed as a section salesman for the districts of  Bikaner, Ganganagar,  Merta  and Barmer in Rajasthan  with  his  head quarters  at Bikaner. There were seven other local  salesmen and  local  travelling  salesmen in his  area.  The  various correspondence and other evidence produced before the Labour Court showed that the appellant was employed for  canvassing and pushing and promoting the sales of the company’s product in  his  area. The Tribunal also found and in  fact  it  has referred to as an admitted case of both the parties that the respondent  company sells its product i.e. cigarettes  manu- factured  by  it directly through their wholesalers  who  in their turn sell the product to the various dealers appointed by  the  company in the area. The section  salesman  neither sells  nor collects any money from the wholesaler or  retail dealers.  The  company controls this through  the  territory office  at  Delhi. Neither the section sales-. man  nor  the local salesmen or local travelling salesmen are employed  in the shop of the wholesaler or any retail dealer to sell  the products  of the company and to collect the amount of  sale. The section salesmen and the local salesmen and local  trav- elling  salesmen  were employed by the company in  order  to canvass and promote the sales of the company. From 475 perusal of the records produced before the Labour Court  the Tribunal  further observed "it was apparent that the  appel- lant  is  required to send reports about the  publicity  and advertisement and of placing posters, holders, cinema slides and suggest means to canvass the sale in this area. Some  of the  document relate to matters of publicity in melas,  some relate to the existing position of the stock of the goods of the  company in the area and the action taken to  ameliorate stocks".  It  was not the duty of the appellant  to  procure orders  for the company. None of the salesmen were  employed to sell the product of the company in any particular area or collecting  the sale proceeds and depositing the  same  with the company. However, the Tribunal noted that the  appellant was  required to supervise the work of the  local’  salesmen and  local travelling salesmen appointed in the area of  his operation  as  well but it was only incidental to  his  main function of canvassing and promoting the sale of the product of  the  company in the four districts allotted to  him.  On these facts found, the Tribunal came to the conclusion  that the  appellant cannot be held to be a workman  employed  for manual,  skilled, unskilled and/or clerical nature and  that the  provisions of the Industrial Disputes Act was  not  ap- plicable  and the reference, therefore, was incompetent.  It is against this order the appeal was filed.     In order to come within the definition of workman  under the  Industrial  Disputes Act as it stood in the  year  1973 when  the appellant’s service was terminated,  the  employee has to be’ under the employment to do the work of one of the types  of  work  referred to in  the  Section  i.e.  manual, skilled and/or clerical in nature. The finding of the Tribu- nal on the nature of the work is a finding on a question  of fact  and  it  is also borne out by  the  document  produced before  the  Labour Court. It is seen from the  facts  found that the appellant was employed to do canvassing and promot- ing sales for the company. The duties involve the suggesting of ways and means to improve the sales, a study of the  type or status of the public to whom the product has to reach and a  study  of the market condition. He was also  required  to suggest about the publicity in markets and melas, advertise-

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ments  including  the need for posters, holders  and  cinema slides. These duties do require the imaginative and creative mind  which could not be termed as either  manual,  skilled, unskilled or clerical in nature. The supervising work of the other local salesmen was part of his work considered by  the Tribunal  as only incidental to his main work of  canvassing and  promotion in the area of his operation. Such  a  person cannot  be  termed  as a workman is also the  ratio  of  the decision  of  this  Court in Burmah Shell  Oil  Storage  and Distribution  Company v. Burmah Shell Management and  Staff; AIR  1971 SC 922, D.S. Nagraj v. Labour Officer,  Kamal  and others, 1973 F.J.R. (42) P. 440, J.J. Dechane Distributor v. State 476 of  Kerala and others (1974-11 LLJ.9). We may also refer  to the  subsequent  passing of the  Sales  Promotion  Employees (Conditions  of Service) Act, 1976. This Act defines  "sales promotion employees" as meaning a person employed or engaged in  any  establishment  for hire or reward to  do  any  work relating to promotion of sales or business or both. This Act is  to  apply in the first instance to  every  establishment engaged in pharmaceuticals industry. It enables the  Central Government  by notification to apply the provisions  to  any Other establishment engaged in any notified industry. If  an industry  is notified under this Act then the provisions  of the Industrial Disputes Act, 1947 would also be attracted to these  types of workmen. This is a subsequent enactment  and it is not applicable to the termination in the instant  case which  was long prior to the enactment of this Act.  Further no  notification under this Act bringing the  provisions  to the  employees like that of the company has been made  under the provisions of this Act. The object of this enactment and the employees covered by the enactment also go to show  that persons employed for sales promotion normally would not come within  the definition of workmen under the Industrial  Dis- putes Act.        The Labour Court considered the merits in detail  and ultimately  held that the termination of the appellant  from service  was illegal but dismissed the application  only  on the ground that the Industrial Disputes Act was not applica- ble.  We would not have interfered with that finding had  we differed  from the Labour Court on the question whether  the appellant is a workman. In the light of our holding that the Industrial Disputes Act is not applicable to him and in view of  the fact that a long period of over 16 years had  passed it would be unjust to leave the appellant without any remedy at  this  stage. In the circumstances, we  consider  that  a direction  to  the Management to pay  some  compensation  is necessary to meet the ends of justice. We accordingly direct the  Company  to  pay an amount equivalent  to  three  years salary  at  the  rate he was drawing  when  the  appellant’s services  were  terminated, in addition to  whatever  amount they  were  paying during the pendency of the  appeal  under orders of this Court. But this direction will not be treated as precedent.      For  the foregoing reasons we are of the view  that  no interference is called for with the decisions of the  Labour Court and this appeal accordingly fails and it is  dismissed subject  to the directions given above. However, there  will be no order as to costs. V.P.R                                                 Appeal dismissed. 477

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