Industrial Disputes Act, 1947 - Sections 2, 10(2) and 39
1. This industrial dispute between the East Asiatic Company (India) (Private), Ltd., Bombay, and the workmen employed under it has been referred to me as industrial tribunal under Sub-section (2) of S. 10 of the Industrial Disputes Act, 1947 (XIV of 1947), by the Deputy Commissioner of Labour (Administration), Bombay, empowered under S. 39 of the Industrial Disputes Act, 1947, as per notification of the Labour and Social Welfare Department, No. IDA. 3557, dated 8 May, 1957. The dispute relates to a single demand which is as follows :
'Sri H. A. Daruwalla be reinstated with full compensation and continuity of service.'
2. The company both in its written statement and at the time of hearing has taken a preliminary objection which goes to the very root of the matter and I shall therefore dispose it first. That objection as set out in the written statement is as follows :
'With reference to the demand generally, the company contends that Mr. Daruwalla having been a 'salesman' does not and cannot come within the purview of the Industrial Disputes Act and the claim made by the union should be rejected in limine on this point.'
Sri Neemuchwalla, the learned advocate who appeared for the union, has on the other hand submitted that Mr. Daruwalla is a workman and therefore covered by the Industrial Disputes Act. He has in the first instance urged that the present reference has been made under Sub-section (2) of S. 10 of the Act, that is, on a joint application being made by the parties to the appropriate Government to make the reference; that in these these circumstances the company cannot now raise a contention that Sri Daruwalla does not come within the purview of the Act. I do not think this would be so. The appropriate Government may make a reference where an industrial dispute exists or is apprehended or it may refer a dispute at the joint request of the parties. In the latter case the appropriate Government is bound to make a reference. Thus a right has been conferred on the parties to have a dispute adjudicated upon by the industrial tribunal by a speedier and expeditious method. The jurisdiction of this tribunal to determine a dispute would depend upon the fact whether an industrial dispute exists and I am of the view that a joint application cannot estop parties from raising the contention that the dispute is an industrial dispute. If it was held, as has been urged before me, that certain preliminary questions like the one raised herein could not be considered by this tribunal in a dispute under S. 10(2), it would only discourage parties from making a joint application under S. 10(2). The objection of Sri Neemuchwalla is therefore overruled.
3. Dealing with the preliminary objection raised by Sri Vimadalal, it has in the first instance been urged by Sri Neemuchwalla that Sri Daruwalla is a workman as defined in the Act and that even if he is not a workman, he would fall within the meaning of the words 'any person' in respect of whom an industrial dispute could be raised, that is, a person in whose employment or non-employment or the terms of employment or conditions of labour the parties to the dispute have a direct or substantial interest in terms of the decision of the Supreme Court in Civil Appeal No. 297 of 1956 between Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate . The first question therefore that falls to be considered is whether Mr. Daruwalla is a workman as defined in the Industrial Disputes Act. Section 2(s) defines a workman as follows :
''workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment the express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connexion with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute ....'
Sri Daruwalla was undoubtedly appointed as a salesman, but salesman is neither included in terms or excluded in terms from the definition of workman. It has now been held in a series of decisions to which it is hardly necessary for me to refer that what matters is not the designation or that the designation does not lead to a correct conclusion as to whether a person is a workman or nor-workman. The criterion correctly laid down by industrial tribunals in a series of decisions is that the nature of duties which a workman has to perform primarily, and not his designation, determines whether he is a workman or not a workman. This would be so, also in the case of a salesman.
4. There have been a large number of decisions whether the question whether salesmen are workmen or not has been raised and they have been held to be workmen or not depending upon the nature of their duties. We must therefore look to the nature of their duties for an answer to this question. Notwithstanding many changes in the definition introduced, the criterion would still be whether the salesman concerned was b1 employed to do manual or clerical work. It appears to me that the following are normally the duties connected with the sale of goods :
(1) canvassing orders;
(2) giving delivery of goods and checking goods to be delivered;
(3) submission of reports of market conditions;
(4) preparation of bills and;
(5) collection of bills.
There is hardly any doubt from the decisions that whether in a particular case the work of salesman has been primarily the canvassing of orders and nothing else, they have been held to be non-workmen. It has also been held that they do not become workmen merely because they have once in a way to submit reports. The questions arises only when their duties extend beyond mere canvassing of orders and they have to do some or many of the things mentioned hereinabove. Thus in National Tobacco company of India v. Hdfiz Ahmed and 14 others 1954 I L.L.J. 156 the Labour Appellate Tribunal observed at p. 159 :
'The second contention of the company is that none of these fifteen employees were workmen as they were salesman. For the purpose of determining this question, the designation of the employees is not of great moment. What is of importance is the nature of their duties. The company led no evidence to show what their duties were. Two employees, namely, Sri N. C. Roy Chowdhury and Sri Abani chandra Paul, deposed on behalf of the workmen. Sri N. C. Roy Chowdhury, on being further examined, stated that the duties of the salesmen were to go round the market and push the goods of the company, to receive payments of the cash sales made by them to the shopkeepers and to issue cash sales made by them to the shopkeepers and to issue cash memos and to render account of cash and stocks which they receive from the company and that the issue of cash memos and the submission of accounts for cash and stocks was a part of their routine work. Sri A. C. Paul did not state anything bearing upon the point in his examination-in-chief. In cross-examination by the company, however, he stated, that the duties of salesmen are to sell the company's goods in the various shops, to keep and to render accounts and to submit sale reports and statements after outdoor work. Thus these salesmen had clerical duties to perform regularly and as part of their routine work. We are, therefore, in agreement with the tribunal that all the employees, whose cases are before us, were workmen at the time of their discharge.'
Similarly in the case of British India corporation v. Sri N. T. Gandhi, 1955 L.A.C. 339 it has been observed at p. 340 :
'... It has been laid down by this tribunal in a series of cases that for the determination of the question whether an employee is a 'workman' or not, the nature of his duties must be seen. If they are of a manual or clerical nature, then he must be held to be a 'workman,' otherwise not. Oral and documentary evidence on the record proves that Sri Gandhi had to tour about in the territory assigned to him to meet the dealers, to take orders from them, to receive payments from them, and to see that the dealers did not nothing to lower the reputation of the appellant company. When he returned to headquarters, he had to render accounts, check up order book pertaining to tours undertaken earlier, prepare fresh programme, get advance money and samples, and leave for the next tour accompanied with full information regarding the amounts outstanding against the dealers at the places he was going to visit.'
After dealing with the case of National Tobacco Company (supra) it has been further observed :
'Though the designation of Sri N. T. Gandhi was that of a sales representative, yet the nature of the duties performed by him was almost similar to that of a salesman as given in the case cited above. Sri Ansari, on behalf of the management, has argued that the duties of the sales representative are higher than those of a salesman, because he has to stimulate the sales and to see that the agents of the company do nothing to lower its reputation. The job of salesmen also is to stimulate sales and they too have to protect the interest of their masters. We see hardly any difference between the duties of the salesmen as given in the case cited above and that of Sri N. T. Gandhi as sales representative. We hold, therefore, that his duties were of a clerical nature and as such he was a workman.'
In Lipton, Ltd., Madras v. Workmen represented by Lipton Employees' Union, Madras 1956 I L.L.J. 319, it has been observed :
'The management's advocate contended that Sri K. M. Govinda Pillai was working in the capacity of a salesman and he not being a worker within the meaning of S. 2(s) of the Industrial Disputes Act, 1947, the industrial tribunal had no jurisdiction to entertain the dispute with respect to him. This point has been discussed by the industrial tribunal in Paras. 6 and 7 of his award; and in view of the evidence on record he cannot be said to have erred in holding that though designated as a salesman, Sri K. M. Govinda Pillai was performing duties of manual as well as clerical nature so as to be a workman as defined under the Act. It has been held in a number of decisions that what matters is not merely the designation but the nature of the duties performed and this is essentially a question of fact on which no general answer could possibly be given to cover all cases. Vide Assam Chha Karmachari Sangh v. Dimakuchi Tea Estate and another 1955 II L.L.J. 602, L. S. Seth v. United Commercial Bank,. Ltd., Kanpur 1954 II L.L.J. 457; and South India Estate Labour Relations Organization v. State of Madras and another 1954 I L.L.J. 8. In the case of National Tobacco Company of India v. Hafiz Ahmed and fourteen others (supra), reiterating the same principle, a salesman was held to be a 'workman' within the meaning of S. 2(s) of the Act, as there the duties of salesman were to sell company's goods, to keep and render accounts and to submit sale reports and statements after outdoor work, which are clerical duties of routine 1954 I L.L.J. 156. The management's advocate cited the case of Nellimarla Jute Mills Company, Ltd. v. Staff Union, Nellimarla Jute Mills 1955 I L.L.J. 167. There the employees concerned were teachers and assistant weaving supervisors employed by the jute mill. Regarding the teachers, it was held that the work of a teacher employed by a company of for imparting education to the children of its employees cannot be considered clerical or manual when the major part of his work consisted in teaching and the balance in doing educational propaganda, maintaining registers and records of the school and submitting periodical returns and that it all being entirely a brain work, he must be deemed to be not a workman within the meaning of S. 2(s) of the Act. So also in the case of assistant weaving supervisor it was held that an assistant weaving supervisor employed by a jute mill for supervising the work of the persons under him could not be considered to be a workman within the meaning of S. 2(s) of the Act. The case cited has no application to the facts of the present case, and looking to the actual duties performed by Sri K. M. Govinda Pillai in the capacity of a salesman, he has to be held a workman as done in the aforesaid case in 1954 I L.L.J. 156. Regarding the duties performed by Sri K. M. Govinda Pillai there is his own evidence as W.W. 1 and also of E.W. 1, the assistant branch manager of the company, and if the same were examined in the light of instructions contained in the company's book (Ex. 1) entitled, 'Salesman's Selling and Routine Instructions,' it is amply clear that the duties performed were not only of a clerical nature but involved some manual labour. In our opinion, the industrial tribunal has correctly appreciated the evidence and we are unable to arrive at a different conclusion.'
In an award dated 18 August, 1955 published in Government Gazette of Delhi, dated 6 October, 1955, it has been observed :
'In the second place Sri Samuel has questioned the propriety of the Government reference and the adjudication in relation to salesmen and divisional salesmen of the company on the ground that neither salesmen nor divisional salesmen are workmen as defined by S. 2(s) of the Industrial Disputes Act. We have carefully gone through the evidence relating to the duties which are actually performed by salesmen and divisional salesmen. The salesmen have to move about from place to place with vans driven by the porters for forcing the sale of the company's tea at local markets. They have to effect sales and to submit to respective headquarters reports and figures relating to actual sales. An analysis of the duties which the salesmen are called upon to perform leaves no room for doubt that those duties involve considerable physical labour more less of a mechanical type as clerical labour for drawing up returns and filling in reports of sales. We have no hesitation to conclude that salesmen are workmen as defined by the Industrial Disputes Act.
In so far as the divisional salesmen are concerned, we also feel convinced that though they are vested with higher responsibilities, they are nothing more than ordinary salesmen doing almost same type of work as is done by the latter only with additional burden of mechanical checking of duties performed by salesmen. We do not, therefore, see any reason to disagree with the finding of the learned tribunal that not only the salesmen but also the divisional salesmen are workmen as defined by the Industrial Disputes Act. Accordingly we overrule the second objection mooted by Sri Samuel.'
In the case of French Motor Car Company, Ltd., Bombay v. The workmen employed under it [Bombay Government Gazette, Part I-L, dated 12 March, 1959, p. 1177] the learned president of the industrial court Sri M. R. Meher has observed :
'From the evidence it is seen that the salesmen are employed to effect sales of cars and not to do clerical or manual work, though they have to do some clerical work incidental to sales. The standing orders regulating certain conditions of service (Ex. U. 18) have been made application to them as to clerks, but that would not make the salesmen clerks. Sri Mehta has relied on the following cases in support of his contention that salesmen are workmen. They are :
1956 I L.L.J. 319,
1954 I L.L.J. 156, and
1954 II L.L.J. 457.
But in those cases, the facts were different from the facts of the present case. In L. S. Seth v. United commercial Bank, Ltd., Kanpur 1954 II L.L.J. 457, it was held by the Labour Appellate Tribunal that the question whether a person is a workman or not would depend upon the nature of the work which he does and that the crucial question, therefore, always is, 'Is his work in the main clerical or manual within the definition of workman ?' With respect, this may be taken as the correct test. In the present case, it cannot be said that the main work of the salesmen is clerical or manual. A physician employed by company does not become a workman because he has to write prescriptions or keep some record of patients, nor does a mechanical engineer become a workman because in the course of his duties he may have to handle machines and show how work is to be done. In the case of National Tobacco Company of India v. Hafiz Ahmed and fourteen others 1954 I L.L.J. 156 , it was observed that for the purposes of determining this question the designation of employees is not of great moment. In that case the company led no evidence to show what the duties of salesmen were, while according to the evidence of two employees the duties of the salesmen were to go round the market and push the goods of the company, to receive payment of cash sales made by them to the shopkeepers and to issue cash memos and to render account of cash and stocks which they received from the company and the issue of cash memos and the submission of accounts for cash and stocks was part of their routine work. On these facts, the Labour Appellate Tribunal agreed with the view of the industrial tribunal that the salesmen were workmen. The facts in the present case are not on all fours with the facts in the case of the National Tobacco company and in the other case relied on by Sri Mehta, viz. : Lipton, Ltd. v. The workmen 1956 I L.L.J. 319. On the other hand, there are reported cases in which it has been held that salesmen are not workmen [Lever Bros. (India), Ltd. v. Their employees 1950 L.L.J. 1314, and Spence, Ltd. v. Their workmen 1951 I L.L.J. 690. In the latter case, the facts were that it was part of the duty of salesmen to make daily reports of their outdoor work in writing. Yet it was held that they were nor workmen.'
In Gillanders Arbuthnot & Co., Ltd., Bombay v. Workmen employed under it in its office in Greater Bombay (Bombay Government Gazette, Part I-L, dated 19 February, 1959, p. 7325), the learned tribunal Sri S. Taki Bilgrami has observed as follows :
'It is clear from the above-cited decision that merely having to submit reports to the management is not sufficient to bring the salesmen within the definition of workmen. In the case cited by the labour the salesmen had to issue cash memos, submit accounts for cash and stock. He received cash payments made by customers and kept record of it. In the present case even from the union's statement it does not appear that such are the duties entrusted to the salesmen. Merely because they sign the clerical muster, or have to submit a report, or occasionally have to have to write a letter is not sufficient to bring them within the definition of workmen in S. 2(s) of the Industrial Disputes Act.'
5. It is in the light of these decisions that we have to consider the question whether Sri Daruwalla is a workman or not. He has filed an affidavit in which he has briefly described all his duties which are follows :
(1) To collect payments from customers by cash or cheque.
(2) To write out, prepare and issue receipts in respect of such payments received.
(3) To carry on correspondence with the upcountry clients.
(4) To submit reports of offers, fluctuations in rates, markets conditions, etc.
(5) To submit daily reports.
(6) To carry posters and affix them at prominent place for which purpose he had to carry the necessary tools and paraphernalia with him, including hammer, nails, gum, etc.
(7) To carry samples and other book, etc. in a bag supplied by the company.
(8) To carry the goods and deliver them to the customers personally in case of urgent orders.
(9) To check the bills of wholesale as well as retail customers.
The company filed an affidavit in which most of the duties stated above have been denied. However, at different stages the company had to admit many of the duties it had at first denied. It is not suggested that some of the denials made by the company were deliberately false. At the same time it does appear to me that it reflects considerable ignorance of the duties performed by Sri Daruwalla in highest quarters and a certain anxiety to deprive him of the protection accorded him by the Industrial Disputes Act. The union has examined Sri Daruwalla while the company examined Sri Mahajan, the assistant manager of the company. Sri Daruwalla was employed since May 1949 and so far as Mr. Mahajan is concerned, it is clear from his evidence that his personal knowledge only extends to matters which happened after 1957 and not before. In fact several positively incorrect statements made in the earlier affidavit by Mr. Palle Buchwald, the principal officer and sub-manager of the company, were made in consultation with Mr. Mahajan, but had to be subsequently retracted. This considerably weakens the testimony of this witness particularly in so far as he knew the details of Mr. Daruwalla's duties. Mr. Mahajan himself has in his cross-examination admitted as follows :
'I do not know whether even after I become the head of department in 1957 whether Mr. Daruwalla was collecting bills or not. These were of comparatively small amounts and I did not bother to see who collected it. I was not very much interested in Mr. Daruwalla's work.'
In the circumstances, it would be unfair to rely upon the knowledge of Mr. Mahajan about the duties of Sri Daruwalla. I have gone closely through the evidence tendered by Sri Daruwalla and the various documents produced by both sides. In some respects there is no doubt that there has been some exaggeration on Sri Daruwalla's part and he has overstated his duties, but on the whole I am satisfied that the first affidavit filed by him does, after making suitable amendments, give a correct picture as to what his duties were.
6. Analysing his duties : Mr. Daruwalla was employed as a salesman in respect of provision goods and had to go to various dealers in the town to canvass orders. He had to contact a large number of dealers every day. His duties did not end merely with the canvassing of orders. He carried an order book and the orders were taken down by him in the same. The next day he handed over to the company the various order forms duly filled in by him. He had ordinarily nothing to do with the actual delivery goods, but in cases of emergency he had to effect delivery of goods sold by him. It was part of his duty to go and move in the market, to contact dealers in order to be in touch with market conditions and then to submit a report. It is true that reports might not have to be submitted every day as stated by him, but there his testimony is supported by documentary evidence to show that he had to submit reports quite frequently and he has on occasions been reprimanded for not submitting them. It is true that Mr. Daruwalla was not required to prepare the bills for recovery of money himself but I have no reason to disbelieve his statement that one of his duties was to check up the bills prepared. Mr. Daruwalla was also required to go round for collection of bills for most of the period. This he was doing as as a regular part of his duties. There is sufficient evidence to show that the collection of bills formed a substantial part of his duties. The dealers were small provision merchants and Irani restaurant keepers and in the case of may of them Mr. Daruwalla had to go several times to collect the bills. It is difficult to say in this case whether canvassing or the collection of bills took more time. He had to keep a note as to when to go for collection. A receipt book was given to him by the company and he had to sign and give the receipt. Next day he would go to the cashier, hand him over the cash and obtain acknowledgement on the counterfoil. Bill collectors have almost invariably been treated as workmen. It is not correct to say that when Sri Daruwalla was employed as a salesman he was only employed to canvass orders. He employed as a salesman by this company and as such was employed as a routine part of his duties to do many of the things which he in fact did. It must be assumed that he was employed to do all those duties, viz., canvassing orders by going from dealer to dealer, submit the orders or list thereof to the company, prepare order forms, give deliveries in emergences, keep in touch with market conditions and summit report of market conditions, check and collect bills, give receipts and submit cash and accounts to the cashier. He has in the course of his employment been sent out of Bombay, namely, once to Trivandrum where he had to go and deliver the goods himself. On more than one occasion he was sent to Poona. A certain amount of routine correspondence with the company had to be carried on when he was out of station. He has also deposed that he had to indulge in correspondence with certain upcountry dealers for securing orders for the company's goods. The company has denied that he had any authority to do so. The company had sent Mr. Daruwalla on many occasions out of Bombay to effect sales and I have no reason whatever to disbelieve the word of Mr. Daruwalla that the correspondence that he conducted with certain upcountry dealers were conducted by him as a normal part of his employment not only with the knowledge but under the authority of the company. Analysing all the various duties it appears to me that a substantial part of his work was clerical and even partly of a manual nature. He must be deemed to have been employed to do all those duties and not merely the work of canvassing. It is true that he has indulged in a certain amount of unnecessary exaggeration in regard to the display of posters. But that does not destroy his other testimony. In have no reason to disbelieve his statement that occasionally he had to carry the posters and even affixed them himself. His testimony on the whole appears to me to be true though there has been a certain amount of exaggeration here and there. The company has not examined any person who had adequate personal knowledge to contradict him.
7. The fact that he is paid some commission in addition to salary does not make any difference to the question whether he is a workman or not. The total emoluments earned by this worker also do not appear to be very large. He joined in April 1949 on a salary of Rs. 150 plus Rs. 62-8-0 dearness allowance. This has of course been subsequently increased. The commission earned earned by him during most of the years was round about Rs. 2,000 a year only.
8. I therefore hold that Mr. Daruwalla is a workman within the definition of the Act and overrule the preliminary objection of Sri Vimadalal. As I have hardly any hesitation in holding that Sri Daruwalla is a workman within the definition of the Act it is not necessary for me to consider whether even if he is not a workman he would fall within the meaning of the words 'any person' in respect of whom an industrial dispute could be raised.