JUDGMENT

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 companys service of his own account. At the instance of the appellant the Government of Rajasthan referred to the Labour Court for 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 entitled to. The Labour Court by its award dated 2-8-1978 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 appellant on the question whether the termination itself was illegal.

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 salesmen are appointed for certain number of districts and in the area of each section salesmen, a number of local salesmen and local travelling salesmen are appointed. The appellant was appointed 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 companys product in his area. The Tribunal also found and in fact it has referred to as an admitted case of both the parties hat the respondent company sells its product i.e. cigarettes manufactured 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 sectional 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 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 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 was 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 and/ or clerical nature and that the provision of the Industrial Disputes Act was not applicable and the refe