vil Appeal No 1681AL of 1979
From the award dated 281978 of the Additional Labour Court Rajasthan in Reference Case No ALC 120 of 1974
VM Tarkunde PH Parekh and Sunil Dogra for the Appel lant
474 JD 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 Courtor 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 281978 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 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 ie 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 andor 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 ie manual skilled andor 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 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 vs Burmah Shell Management and Staff   DS Nagraj vs Labour Officer Kamal and others 1973 FJR 42 P 440 JJ Dechane Distributor vs State 476 of Kerala and others 1974 11 LLJ9
We may also refer to the subsequent passing of the 
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 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 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 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
VPR Appeal dismissed


Summary:
In exercise of the powers under section 3 Of the Essential Com modities Act 1955 and under cl 5 of the Sugar Control Order 1955 the Government of India issued a notification dated July 30 1958 fixing the ex factory price per maund of sugar produced in Punjab Uttar Pradesh and North Bihar
The petitioners challenged the legality of the notification on the grounds 1 that it was beyond the ambit of authority conferred on the Central Government under section 3 of the Essential Commodities Act 955 and clause 5 Of the Sugar Control Order 1955 and that in any case it was bad as it could not subserve the purposes of the Act ensuring equitable distribution of the commodity to the consumer at a fair price 2 that the Act and the Order did not authorise the Central Government to fix ex factory prices and in any case the notification failed to fix prices for the ultimate consumer 3 that it imposed an unreasonable restriction on the right to trade under article 101g inasmuch as it fixed the price arbitrarily and there was no reasonable safeguard against the abuse of power and 4 that it was discriminatory because it fixed ex factory prices only for factories in Punjab Uttar Pradesh and North Bihar and not for factories in other parts of India and there was no reasonable classification discernible on any intelligible differentia on the basis of which prices had been controlled in certain regions only
Held 1 The notification dated July 30 1958 is within the authority conferred on the Central Government by section 3 Of the  and cl 5 of the Sugar Control Order1955
2 Section 3 of the Act which provides for control of price is very general in terms and authorises the Central Government to fix the ex factory price of sugar without fixing the wholesale or retail prices and since fair prices for the consumer are ensured by fixing the ex factory price the notification in question subserves the purposes of the Act and is valid
3 Clause 5 of the Sugar Control Order 1955 lays down the factors which have to be taken into consideration in fixing prices and as the prices were fixed in accordance therewith the 124 action taken by the Government in the interests of the general public could not be challenged on the ground that it was an unreasonable restriction on the right to carry on trade under article 191g of the Constitution
4 Though under the notification prices are fixed for fac tories only in Punjab Uttar Pradesh and North Bihar in effect they are fixed for the whole of India as the other States are deficit  consequently the notification brought about no discrimination between different regions