Case: T .P. Srivastava Vs. National Tobacco Co. Of India Ltd

2. 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 sales-men are appointed for certain number of districts and in the area of each section salesman, a number of local salesman and local traveling salesmen are appointed. The appellant was appointed as a section salesman for the districts of Bikaner, Ganganagar, Merta and Barmer in Rajasthan with his headquarters 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 companys 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 manufactured by it directly through their wholesales who in their turn sell the product to the various dealers appointed by the company in the area. The section salesman neither sells not collects any money from the wholesaler or retail dealers. The company controls this through the territory office at Delhi. Neither the section salesmen 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 travelling salesmen were employed by the company in order to canvass and promote the sales of the company. From perusal of the records produced before the Labour Court the Tribunal further observed. "It was apparent that the appellant is required to send reports about the publicity and advertisement and of placing posters, holders, cinema slides

Court's reasoning:
3. In order to come within the definition of workman under the Industrial Disputes Act as it stood in the year 1973 when the appellants 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 Tribunal 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 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 melas, advertisements 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.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 applicable. 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.