The main legal point established in the judgment is the determination of the workman status of the employee based on the nature of duties and dominant performance of his employment, as well as the interpretation of the definition of workman under the Industrial Disputes Act, 1947.

( 1 ) THIS is a reference made by learned single judge vide order dated August 24, 1995 hearing the Writ Petition No. 16337 of 1987 and the following two questions have been referred for our opinion: (1) Whether in the peculiar facts and circumstances of this case, the State of U. P. will be the appropriate Government for making the reference in question on which the impugned award has been passed? and (2) Whether in the peculiar facts and circumstances of this case, the respondent no. 2 was correctly held to be a workman as defined under the Industrial Disputes act, 1947?

( 2 ) FACTS and circumstances giving rise to this case are that the respondent-employee, Shri r. K. Sharma was appointed by the petitioner-company as a Medical representative vide order dated October 17, 1973 (Annexure-3) and given the area of allahabad for his operation. His services stood terminated vide order dated March 8, 1985 (Annexure-7) with effect from March 20, 1985. The Government of Uttar Pradesh, vide order dated April 23, 1986 (Annexure-2), made a reference to the Labour Court under section 4-K of the U. P. Industrial Disputes act, 1947 (hereinafter called the "u. P. Act")as to whether the termination of service of the respondent-employee with effect from March 20, 1985 was valid, and if not to what relief he was entitled for. In response to the said reference, Case No. 18 of 1986 was registered before the Labour Court, Allahabad. Written statement was filed by the present petitioner-employer on August 2, 1986 (Annexure-9) taking the plea that respondent-employee was a Medical representative for the purpose of selling companys products and he was getting the salary of Rs. 2,447 per month on the date of termination, thus, as such was not a workman within the meaning of the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (hereinafter called the central Act ). The respondent-employee took the plea that he had also been assigned the duty of selling the products of the petitioner-company and also recovery of the money of sale proceeds and, thus, he was a workman. After considering the evidence led by the parties, the Labour Court made award on May 30, 1987 (Annexure-1)holding that the respondent-employee was a workman and his termination was unjust and illegal and thus, directed to reinstate him in service with back wages, treating that there had been no break in service. Being aggrieved, the petitioner- company filed a writ petition wherein the aforesaid two questions have been referred to for our opinion.

( 3 ) SHRI Tarun Agrawal. learned counsel for the petitioner, has submitted that as the respondent-employee had exclusively been appointed as a Medical Representative for advertisement and sale of the medical products of the petitioner-company, he does not fall within the definition of workman under the "central Act". The case of respondent-employee was governed by the provisions of the Sales Promotion Employees (Conditions of service) Act, 1976, (hereinafter called the "act 1976") thus, as he was not a workman, the reference itself was bad. More so, as the petitioner-company does not have any office or branch office in the State of U. P. and its entire business is in other States, the Government of u. P. was not the "appropriate Government", and thus, not competent to make the reference. Therefore, the award is a nullity.

( 4 ) ON the contrary, Shri Mehta, learned counsel appearing for the respondent-employee, has submitted that the employee had been working in State of U. P. ; he had been involved in advertisement and sale of the products of the company; had been obtaining the sale orders and was also involved in recovery of the money and sending daily and monthly progress report to the Head Office. He was doing the work of manual, skilled and clerical nature and, therefore, he was a workman and as he had been working in allahabad, the Government of U. P. was competent to make the reference.

( 5 ) WE have consi