Balbir Singh vs The State of Haryana and another

D.S. Tewatia, J.—Balbir Singh petitioner ex-salesman of the Ladwa Cooperative Marketing-cum-Processing Society Ltd Ladwa, Tehsil and District Kurukshetra was found guilty of misconduct and was dismissed from service by the Administrator vide his order dated 21st June, 1973. The petitioner sought a reference u/s 10 of the Industrial Disputes Act, 1917 (hereinafter referred to as the Act), which was dismissed by the respondent-State Government and a communication Annexure P 1 was sent to him in that regard stating therein that a salesman does not fall within the definition of ''workman'' The petitioner has impugned this order of the State Government in this writ petition.

It is his case that a salesman is not assigned any duty under the Bye-laws. He performs such duties as are assigned to him either by the Managing Committee or by the Manager of the Society. The petitioner (herein) has produced two instances of the kind of duties assigned to him. The following duties were assigned to him by the Manager of the Society:

To supervise the produce of the producers, to attend the bidding, to prepare from J. & P. to prepare market fee, to prepare vouchers of all kinds of products, prepare transfer and payments vouchers and sign them, to complete the goodgrains register, custodian of Hafed wheat and to supervise the leading of wheat from godown and mandies.

Another instance of the kind of duties that he was required to perform is said to contain in the order dated 25th May, 1971 of the Administrator which reads as under :--

to supervise Hafed wheat and all foodgrains stock and to be responsible for it, to prepare civil supply and marketing fee, to prepare marketing fee and prepare accounts of the Society, to accompany the stock to the station for the despatch of the wheat and to prepare all despatch papers of wheat to, complete the register of foodgrains and Hafed wheat and to be responsible for the same.

In the light of the above kind of duties that had been assigned by the Manager and the Administrator to the petitioner it is claimed that his case fell squarely within the definition of ''workman'' contained in clause(s) of Section 2 of the Act, which is in the following terms :--

(s) ''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 expressed 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 (45 of 1950), or the Air Force Act, 1950 (45 of 1950), or the Navy Discipline) Act, 1934 (34 of 1934); or

(ii) who is employed in the police service or as an officer 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 mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Mr. Sandhu, learned counsel for the petitioner has argued that the nature of the duty mentioned in the writ petition would clearly show that the petitioner was performing duties equivalent to that of a Clerk or Accountant. The perusal of the duties whether temporary or permanent assigned to him, as mentioned in the petition, would show that primary duty of the salesman is of a supervisory nature and not that of a Clerk or Accountant.

An employee who performs the duty of a supervisory character cannot be considered to be a workman if he drew wages exceeding Rs. 500/- P.M.

The petitioner in the petition has not mentioned his salary nor in the written statement there is any mention of the salary or rumeneration which he was getting.

Once it is held that an employee fell within the category of an employee mentioned in clause (s), then he shall be considered ''workman'' unless any of the exceptions is attracted to his case. The exception has to be proved by the party which claims that the exception applies i.e. respondents in this case. The respondents, as already observed have not mentioned as to what salary or rumeneration was being received by the petitioner.

In view of the above there is no escape from the conclusion that the petitioner has to be considered a ''workman''. From the above should not be considered to have hold that the salesman is ''workman''. Every case shall have to be determined on the facts of a given case The decision of this petition in favour of the petitioner turns on the facts of this case and the kind of duties that he was required to perform.

On behalf of respondents, Mr. Khoji, drew attention to the following observations in Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burma Shell Management Staff Association and Others, '' and urged that a salesman cannot be considered to be a ''workman''.

Mamohan Singh, Marketing Services and Planning Manager of the company, explained that a Sales Engineering Representative is employed primarily to support the sales efforts by providing after bales service and advice to the customers on optimum utilisation of fuels and lubricants. According to him, the principal duty of a Sales Engineering Representative is to provide such service and to guide and supervise the workers employed in customers'' plants to ensure efficient use of fuels and lubricants. His duties have been described as complementary to the duties of the District Sales Representative He, however, did admit that the Sales Engineering Representative has to give demonstrations regarding use of fuels and lubricants, and such demonstrations are conducted by him, though part of the work in the demonstration is done by the workers of the customer concerns. It is true that there is no subordinate personnel attached to him. The Tribunal itself held that the main work to be performed by Sales Engineering Representative is promotion of sales which are canvassed primarily by District Sales Representative. This the Sales Engineering Representative does by giving technical advice, holding demonstrations and suggesting methods for making best use of the products sold. On these facts, the Tribunal, in our opinion, lightly held that the Sales Engineering Representative is not employed on supervisory work; but the Tribunal did not proceed further to examine whether he was employed on any other work of such a type that he could be brought within the definition of a workman There is no suggestion at all that he was employed on electrical work or manual work Reliance was placed on the word ''technical'' used in the definition of a workman. The amount of technical work that a Sales Engineering Representative does is all ancillary to his chief duty of promoting sales and giving advice. As we have held earlier, the mere fact that he is required to have technical knowledge for such a purpose does not make bis work technical work. The work of advising and removing complaints so as to promote sales remain outside the scope of technical work Consequently, the Tribunal''s decision that the Sales Engineering Representative is a workman is set aside.

Perusal of the observations extracted above would show that their Lordships did not hold as a proposition of general application that a salesman or a sales representative is not a workman. There also in the light of the kind of duties that the sales representatives had to perform, it was held that the Sales Engineering Representatives was not a ''workman''.

For the reasons aforementioned I allow the petition, quash the order of the State Government and direct the State Government to reconsider the reference application and decide in accordance with law. No costs