1. Heard Mr. L.P. Sharma, learned counsel along with Mr. S. Chakraborty, learned counsel for the petitioner. Also heard Mr. B. J. Talukdar, learned State Counsel. None has appeared for the respondent No. 4. This writ petition is directed against the award dated 23/05/2006 of the learned Labour Court, Assam, Guwahati in Reference Case No. 13/2001. By the award while answering the issues sent for determination, the learned Labour Court has held that the respondent No. 4 is a workman under the petitioner management and the termination of his service being in violation of the provisions of the Constitution of India, he would be entitled to reinstatement with full back wages.

2. From the materials on record it appears that the petitioner had raised a preliminary objection on maintainability of the reference on the ground that the respondent No. 4 is not a workman within the definition of the Industrial Disputes Act, 1947. Although the said application was entertained but no preliminary issue was framed and eventually on conclusion of the evidence the impugned award was passed, interalia, holding that the respondent No. 4 being a workman, there was violation of the provisions of the Industrial Disputes Act entitling him reinstatement in service with full back wages.

3. Coming to the facts of the case as it appears, the petitioner was first appointed on 02/08/1996 as Assistant Manager (Sales)(M-2) with the salary of Rs. 2,250/- with normal increment and other allowances including Car/Motor Cycle/Scooter allowances. As per the order of appointment, he was also entitled to LTC, Medical Facility, Gratuity, Provident Fund etc. His service was terminated by letter dated 06/01/1999 w.e.f. 18/12/1998 on the ground that he failed to report for duty at Faridabad, his new place of posting and instead he sent a fax message dated 13/11/1998 to the management with the request to promote him to M-3 grade. Along with the said termination order, the management also sent a draft for Rs. 8,414.37 being the amount towards full and final settlement.

4. Being aggrieved by such termination of service, the respondent No. 4 approached the Government raising a dispute on the basis of which the following reference was made to the Labour Court.

“a) Whether the Management of Escort Construction Equipment Limited is justified in terminating the service of its employee Shri S.S. Rahman ?

b) If not, whether Shri S.S. Rahman should be reinstated with full back wages or given any other relief in lieu thereof?”

5. On receipt of the notice from the learned Labour Court, parties entered appearance and filed their written statement including additional written statement. In the written statement, one of the pleas raised by the management was that the petitioner being in the Managerial cadre was not a workman and thus the reference was not maintainable. In the additional written statement filed by the respondent No.4, the following statement was made :-

“In paragraphs 7 and 8 it is said that the workman set up a network of dealership for the sale of company products, that it is he who fixed dealers commission, and incentive and supervised and monitored the sale. It is further said that his duties are both administrative and marketing. There is no duty allotment chart in place defining the duties of the workman. No infrastructure is provided to carry on the duties. He is the sole man in the area. There was no opportunity for the workman to fix dealers commission and incentives. The correspondences are handiwork of higher management level. He is only the signature lender. After signing the correspondence his duty was to dispatch them to the addresses. In paragraph 8 the management has agreed that everything is done in the Head Office.”

6. During trial, the management examined two witnesses as MW-1 and MW-2. On the other hand, the respondent No. 4 examined himself as WW-1.

7. Dealing with the issue relating to the reference being not maintainable,