S. Rangarajan, J.
(1) This is a petition, under Articles 226 and 227 of the Constitution of India, by the Management, which is aggrieved by the Award of the Labour Court, Delhi, dated 28th August 1970, ordering the reinstatement of the third respondent (Shri Mohinder Pal Singh). The third respondent was appointed as a Technical Representative' The post had been advertised, as that of a Sales Representative. According to Annexure A the third respondent was to be 'primarily concerned with sales' being responsible to the General Manager of the Premier Irrigation Equipment Private Limited for promoting and developing sales of the company's irrigation equipment and industrial pipes.
(2) The appointee had to make contacts with customers and potential customers and promote sales in a specific region by giving demonstrations. etc. A training was also contemplated, both in theory and in the field. He was offered an initial salary of Rs. 650.00 gross per month inclusive of all allowances. There was also a supplementany communication dated 20th February 1968 (copy of which is Annexure B) offering commission of half per cent on all sales whether the order was picked up by the third respondent or had come through directly or through a dealer or an agent. Regarding the nature of the duties of the third respondent it would be best to set them out in the language emloyed by him from his affidavit dated 4th August 1970. which he filed before the Labour Court. Delhi :-
'THATI was appointed by the Management of Messrs Premier Irrigation Equipment Private Ltd., (hereinafter referred to as the Management) as its technical representative with effect from 1st October, 1966 on a monthly salary of Rs. 650-00 paise exclusive of dearness allowance and traveling allowance, etc. I was posted at Delhi Branch to do the work of the company, relating to Delhi Region (Northern India Branch) situated at K-60, Jangpura Extension. New Delhi. That my salary was later on increased to Rs. 750.00 paise per month exclusive of dearness allowance and traveling allowance, etc. and further considering my best performance in the discharge of my purely technical duties, the management was further agreed to pay me further extra wages in the shape of commission at the rate of 1/2 % of the business captured by the Company's Delhi office on account of my best and ablest technical demonstration and performances carried out by me to the great satisfaction of the esteemed customers of the company this commission was agreed to be paid to me with effect from 1-2-1967 onwards, and was given as an incentive in addition to my regular monthly salary on the scale of pay cited above.'
(3) The third respondent was served with a charge-sheet on 15th November 1968, and in spite of his Explanationn Mr. Khuba Ray was appointed as an Inquiry Officer; after an inquiry by him he was dismissed by the company. Thereafter there was a reference under the Industrial Disputes Act by the Lt. Governor. Delhi, to Shri B. B. L. Haielay, Presiding Officer, Labour Court. Delhi. Since the Labour Court issued a notice to the management for the hearing on 28th July 1970. which was refused, the case was posted finally for hearing on 4th August 1970 on which date no one appeared for the management: the third respondent's representative filed an affidavit with certain Annexures as evidence on the basis of which arguments were heard and a finding was given that the dismissal was not justified.
(4) The above said award had been attacked on three grounds ( I ) that the petitioner was not a ''workman' within the meaning of section 2(s) of the Industrial Disputes Act: (2) that the management had no notice of the date of hearing and (3) that since the office of the cumpany was at Calcutta, the reference to a Labour Court at Delhi was not competent. Points 2 and 3 may be considered at the outset.
(5) The petitioner-company had its branch office at New Delhi (K-60. Jangpura Extension) at least between 1st October 1966 and 2-12-70. according to the return of the third respondent. On this question, it will be sufficient to advert to Annexure D-11, a letter written by Mr. Khuba Ray to the Managing Director of the Company (Mr. Goenka). That letter pertains to various matters relating to the said company, including a reference to the third respondent. The Delhi address of the company is given as K-60, Jangpura. Extension, New Delhi-14. It is seen from Annexure D-12 that the Managing Director had asked the third respondent at the conclusion of the inquiry, to hand over all papers concerning the territory to Mr. Khuba Ray and take a receipt from him. In the face of the above the contention for the petitioner-company that it had no office at Delhi or that Shri Khuba Ray was not an employee of the company is not correct. Though it was stated in paragraph 6 of the petition that Shri Khuba Ray was working as a Liaison Officer at Delhi for many concerns located outside Delhi and had not been in the employment or pay roll of the petitioner it was at least admitted that he was a part-time Liaison Officer of the petitioner- company. It is also worth noticing that it was Shri Khuba Ray who was appointed as Inquiry Officer, despite the allegation of bias made against him by the third respondent to enquire into the charges which the) petitioner company had framed against the third respondent. The third respondent attended the inquiry but did not participate in the same. It was on the basis of the said report by Shri Khuba Ray that the services of the third respondent were terminated and he was asked to hand over all the papers, etc. to Shri Khuba Ray.
(6) In the rejoinder which was filed by the petitioner at the time of the hearing it was stated, in paragraph 2, that the company had never its office at K-60. Jangpura Extension, New Delhi. It was further added (by way of addition in handwriting, the rejoinder being type-written) that A-1/110 Safdariang Development Area, New Delhi, is the residence -cum-office of Shri K. K. Sinha, Regional Sales Officer of the company. This was in reply to what had been stated in the return filed by the third respondent (there were two returns, one filed by himself dated 9th March 1971 and another which had been filed by his attorney earlier on 16th February 1971) that in addition to the Office at K-60. Jangpura Extension. New Delhi, the petitioner-company had another office at A-1/110, Safdariang Development Area, New Delhi as published in the Telephone Directory. Having subscribed to a statement in the writ petition that the petitioner-company had no sub-office or branch office at Delhi since the incorporation of the company, when reference was made to the entry in the Telephone Directory, the petitioner- company was hard pressed to explain the same in the aforesaid manner in the reioinder. It is thus clear that some business on behalf of the company was being transacted at both the said places, In these circumstances, the petitioner's grievance that the reference made by the Lt. Governor, Delhi, concerning the dispute in this case between the management and the third respondent was vitiated due to lack of territorial jurisdiction cannot even be listened to. It is further seen from Annexure G that Shri Khuba Ray had written to the Conciliation Officer concerning this very dispute that he could not attend the office, as directed, that he had nothing to do with the administration of the petitionpr's company and that the notice should be sent to the Calcutta Office a copy of the said letter is seen to have been marked to the Calcutta Office. Annexure H dated 4th April 1970 is a copy of the letter stated to have been addressed by Shri Khuba Ray to the Under Secretary labour) Delhi Administration, informing him also that he had nothing to do with the administration of the petitioner-company. The petition does not contain any Explanationn concerning these features. There is only a bald assertion in the petition that the company had never been served either personally or through substituted service. All that was stated in paragraph 9 was that under a certain fake report, on a registered envelope, the petitioner-Company was proceeded ex parte. There was thus no serious challenge of the statement made in the award to the following effect :-
'NOTICEto management was issued but was not served on 20th May 1970, when the workman filed his claim statement. They also filed an application that they have already served the management with claim statement and filed A.D. receipt. Fresh notice was thereforee issued asking them to file W/S by 8th June 1970. Even on 8th June 1970 the management was not served so fresh notice was ordered to be issued for 28th July 1970. On that date service on management was considered sufficient by registered post by refusal, the case was ordered to be put up for final hearing on 4th August 1970. Even on 4th August, 1970 none appeared for the management. Shri Autar Singh workman representative filed one affidavit with enclosures and closed the evidence. Arguments of the workman representative were then heard on 11th August 1970 and none appeared on behalf of the management on that date.'
(7) No affidavit from Khuba Ray has been filed. I, thereforee, see no merit in both the said contentions urged on behalf of the petitioner- company.
(8) The more important question, however, is whether the third respondent is a 'workman' within the meaning of section 2(s) of the Act. It is clear from the affidavit which has been filed by the third respondent before the Labour Court as well as from the other materials, discussed above, that the petitioner's primary duty was to promote sales; since sales could not be promoted except by one who could give demonstrations and perhaps also attend to after sale service (even in the view contended for by the third respondent) his main work was sales promotion.
(9) The Supreme Court recently had occasion to consider the question of who could be considered to be a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act in Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. The Burmah Shell Management Association and others, reported in 1971 (22) F.L.R. 11(1). Section 2(s) reads 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 be express or implied. and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with. or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Army Act 1950, or the Air Force Act, 1950, or the Navly (Discipline) Act 1934; or (ii) who is employed in the police service or as an offcer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensern or exercises, either by the nature of the duties attahced to the office or by reason of the powers vested in him. functions mainly of a managerial nature.'
(10) Bhargava J. speaking for the Court observed as follows:-
'THEprinciple is now well-settled that. for this purpose. a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other type of work.'
(11) Reliance in this connection, was placed upon May & Baker (India) Ltd. v. Their workmen-(1961)2 Llj 94. In this case a representative in a pharmaceutical concern (for convassing orders) had to do mainly the work of canvassing; the clerical or manual work that he had to do was a small part of his duties and incidental to his main work of canvassing. In these circumstances it was held that he was not a workman within the meaning of section 2(s) of the Act. The fact that he had no supervisory duties or that he had to work under the direction of his . superior officers was not held to make his duties mainly clerical or manual. Reliance was also placed upon South Indian Bank Ltd. v. A. R. Chacko : (1964)ILLJ19SC where a similar test was adopted: whether such duties as fell within the ambit of section 2(s) and performed by the workman were part of his principal and main duties. Reference was made to Ananda Bazar Patrika (Private) Lid. vs. Its workman (1969- 2 Llj 670) where the following observations occurred:
'THEprinciple which should be followed in deciding a question) whether a person is employed in a supervisory capacity or on clerical work is that if a person is mainly doing supervisory work but incidentally or for a fraction of the time also does some clerical work, it would have to be held that he is employed in supervisory capacity. . .' A number of other English cases were also referred and the test was stated as follows by Bhargava J :- 'We have to see what is the main or substantial work which they are employed to do ?'
(12) In the Burmah Shall case a transport engineer had been held by the Tribunal to be a 'workman' on the ground that he was employed because of his technical knowledge. The Supreme Court held that this was incorrect because if he used his technical language it was used primarily for the purpose of supervising the work done by the skilled manual labourers. The argument that even mere giving of technical advice to guide workmen amounted to .doing technical work and not supervisory work was repelled. Similarly the decision of the Tribunal holding the District Engineer also a workman on the ground of the nature of supervision and control being essentially technical because of his using technical knowledge for the purpose of properly carrying on supervision was set aside. The Tribunal had also held-and this is more important for our present purpose-that Sales Engineering Representatives were also workmen. Setting aside that decision the Supreme Court observed that the amount of technical work done by a Sales Engineering Representative was only ancillary to chief duty of promoting sales and giving advice; the work of advising and removing complaints so as to promote sales remained outside the scope of techincal work. The District Sales Representatives were also held to be not workmen since their work could not be held to be either manual, clerical, technical or supervisory as the work of canvassing and promoting sales could not he included in any of the four classifications.
(13) Bachawat J also pointed out that the mere description was immaterial; what was material was the actual work done by the person concerned in order to arrive at the conclusion whether he was a workman or not.
(14) It was urged by Mr. D. N. Vohra, learned counsel for the third respondent; that since the petitioner-company had not appeared before the Labour Court and placed sufficient materials before it. it would not be proper to interfere with the order passed by the Labour Court. There is no force in this contention because Annexures D to D.J2 are stated to have been filed before the Labour Court along with the affidavits on behalf of the third respondent. In spite of such an averment having been made in paragraph 9 there has been no denial of this. On this footing, thereforee, it is permissible to look at Annexures D. to D. 12. in order to find out the nature of the duties which the third respondent had to carry-out.
(15) In paragraph 2 of the award the nature of the duties which the third respondent was entrusted with have been summarised from the affidavit filed by the third respondent himself. The relevant portions of the said affidavit have already been extracted. The way in which the Labour Court understood the affidavit of the third respondent would be clear from the following portion of the Award :-
'SHRIMahinder Pal Singh in his claim statement asserted that he was appointed as Technical Representative from 1st October 1966 on a monthly salary of Rs. 650.00 exclusive of dearness allowance and traveling alowance, etc. He was posted at Delhi branch to do the work of company relating to Delhi Region at that time situated at K-60, Jangpura Extension, New Delhi. His salary was later on increased to Rs. 750.00 per month exclusive of Da and Ta, etc. He was further allowed commission at the rate of 1/2% with effect from 1st February 1967 on its business income that might be captured by the Company's Delhi Office on account of technical demonstration and performances carried out by the applicant.'
(16) The conclusion of the Labour Court on this question was expressed in the following manner :-
'THEapplicant was appointed as technical representative at a salary of Rs. 650.00. It was subsequently increased to Rs. 750.00 plus commission, etc. His unrebutted affidavit shows that though his salary was above Rs. 500.00 he was not holding any supervisory post nor had any administrative managerial powers. He was purely a technical hand and so he will be deemed to be workman under section 2(s) of the I.D. Act.'
(17) EVEN. the third respondent had referred to the demonstrations which he had to give in order to promote sales but characterised the same as technical. The fact that he was to be paid a commission on sales regardless of whether the sale was made by him or by others is a pointer to the fact that such demonstration as he had to give was only for the promotion of sales. It is significant that he had not referred in the said affidavit to any repair having been effected by him, a fact to which he had made a reference for the first time in the return which he himself filed by which time the decision of the Supreme Court had been rendered in the Burmah Shell case. In his letter dated 27th November 1968 (copy of which is Annexure D. 3), which he had written to the petitioner- company, also he had not referred to his having effected any repairs himself though he had given in detail the various things he had done for the company. Not only in the said letter, which he wrote by way of an Explanationn to the charges leveled against him under the Company's letter dated 15th November 1968. but also in his letter dated 23rd August 1969 (copy of which is Annexure D. 7), he had referred positively to the half per cent commission having been agreed to be paid to him from 1967 'on the business captured by the company' due to 'his efforts'.
(18) In these circumstances Shri Mohinder Pal Singh (the third respondent) could not be said to be a workman within the meaning of section 2(s) of the Act. The award is, thereforee, quashed.
(19) It is needless to state that such remedy as the third respondent may be advised to seek under the common law in respect of the termination of his services, independently of the Industrial Disputes Act, remains untouched by the order of the Labour Court being quashed; all that is decided in these proceedings is that the third respondent is not a workman within the meaning of the Act and, thereforee, no individual dispute could be referred there under.
(20) The writ petition is accepted accordingly and the order of the Labour Court (copy of which is Annexure E to the petition) is quashed. There will be no order as to costs in the circumstances.