MADAN B. LOKUR, J.

( 1 ) THE Petitioner is aggrieved by an Award dated 18th February 1998 passed by the learned Labour Court in ID No. 85/92. The sole question agitated by learned counsel for the Petitioner is with respect to the finding of the learned Labour Court that the Respondent, an employee of Tata Risk Management Services, working as a Deputy Manager (Engineering) on a salary of Rs. 2700 per month, dearness allowance of Rs. 1500 per month and a flat is a workman within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947 (for short the Act ).

( 2 ) THE case law on the subject of how to determine whether an employee is a workman or not has been discussed by me in considerable detail in K. H. Pandhi vs. Presiding Officer, CW No. 1224 of 1978 decided on 5th February 2004. It is not necessary for me, therefore, to repeat the case law or the discussion therein.

( 3 ) SUFFICE it to say that the Constitution Bench of the Supreme Court in H. R. Adyanthaya vs. Sandoz (India) Ltd. , (1994) 5 SCC 737 held that for an employee to be covered by the definition of "workman", he must be employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work. If he falls within these categories, it has then to be seen whether he comes within any of the four excluded categories mentioned in section 2 (s) of the Act. The Constitution Bench noticed certain earlier decisions where the initial determination was whether an employee falls within any of the excluded categories. If he did not fall within any excluded category, then it was held that he was a workman within the meaning of Section 2 (s) of the Act. The Constitution Bench found this approach to be incorrect.

( 4 ) SO far as the present case is concerned, I find that the learned Labour Court has not followed the sequence laid down by the Supreme Court in Adyanthaya and that is why it has fallen into error.

( 5 ) A review of the case law undertaken in Pandhi clearly indicates that the mere designation of an employee is not of any consequence for the purposes of determining whether he is a workman or not. What is of importance is the nature of his duties, particularly his primary duties or his basic duties and the dominant purpose of his employment.

( 6 ) LEARNED counsel for the parties referred me to some judgements not discussed in Pandhi. These decisions confirm rather than detract from the conclusions already arrived at in Pandhi. However, for the sake of completeness, I propose to discuss these decisions referred to by learned counsel.

( 7 ) THE question that arose in T. P. Srivastava vs. M/s National Tobacco Co. of India Ltd, AIR 1991 SC 2294 was whether a Section Salesman was a workman or not. The Supreme Court discussed the nature of work of a Section Salesman and concluded that since his duties require an imaginative and creative mind, his duties could not be termed as either manual, skilled, unskilled or clerical in nature. Consequently, it was held that such an employee cannot be termed as a workman. This is what the Supreme Court said in paragraph 3 of the Report:

"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. Such a person cannot be termed as a workman is also the ratio of the decision of

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