Deshpande, J.
1. This letters patent appeal by the original non-applicant is directed against the order passed by the learned Single Judge affirming the finding rendered by the Third Labour Court, Nagpur, in I.D.A. No. 20 of 1981 holding that the respondent No. 2 is a workman under Section 2(s) of the Industrial Disputes Act.
2. The appellant is a manufacturer of modern drug products while the 2nd respondent is employed by it as a Medical Representative on a monthly salary of Rs. 1,150 by the letter of appointment dated 10th March, 1977. On 28th January, 1981, the 2nd respondent filed an application before the Labour Court, under Section 33-C(2) of the Industrial Disputes Act, claiming bonus under the provisions of the Bonus Act for claiming the years 1977-78 to 1979-80 amounting to Rs. 2,250. The Labour Court held upon a preliminary issue raised by the appellant, by its order dated May 28, 1982, that the 2nd respondent was a worker within the meaning of Section 2(s) of the Industrial Disputes Act and that finding was challenged by the appellant in Writ Petition No. 1525 of 1982 and this Court by its judgment delivered on September 29, 1982 remanded the matter for finding out, if necessary after recording fresh evidence, what were the main and substantial duties of the 2nd respondent and if a decision on that basis were not possible, to decide the case on such test as was found proper under the circumstances. After recording additional evidence, the Labour Court passed an order on June 6, 1984 affirming its earlier finding that the 2nd respondent was a worker and this finding came to be challenged in Writ Petition No. 1514 of 1984. The learned Single Judge held that the finding of the Labour Court that the 2nd respondent was a worker, was justified by evidence because in the view of the learned Single Judge sales promotion was not an identifiable job by itself but was a combined result of several jobs, technical, manual and clerical. He found that the main and substantial duties of the 2nd respondent may not fall in any one category, but did fall in some or the other category out of three or in combination of the duties actually performed on a given day or point of time. The finding of the Labour Court affirmed by the learned Single Judge holding the 2nd respondent to be a worker within the meaning of Section 2(s) of the Industrial Disputes Act is being challenged in this Letter Patent Appeal. We may refer to the operative portion of the order of remand passed in Writ Petition No. 1525 of 1982 decided on September 29, 1982 which was as follows :
'In view of the law laid down by the Supreme Court, it is necessary for the learned Judge of 3rd Labour Court first to try to ascertain as to what was the main and substantial work of respondent No. 2 and after ascertaining it to decide as to whether respondent No. 2 could be said to be a workman within the meaning of Section 2(s) of the Industrial Disputes Act. In case the learned Judge comes to a conclusion that application of such a test is not possible in the circumstances of the case it is necessary for him to record such a finding and to proceed to decide the question on such other basis as may be found proper under these circumstances'.
Two witnesses came to be examined before the Labour Court before remand, one being the respondent No. 2 Taskar and the other one Waswani who was the Divisional Manager of the appellant. After remand, no additional evidence besides recalling those two witnesses was adduced. It is necessary for us to refer in some detail to the evidence of these two witnesses because according to the learned counsel for the appellant the well established principles laid down for ascertaining who is a worker and what has to be established in reaching that conclusion have not been followed by the Labour Court, and the finding of the Labour Court even otherwise is perverse because the Labour Court reached the conclusion that the respondent No. 2 was a worker though the evidence showed unmistakably that the substantial and main work of the respondent No. 2 was canvassing sales. Taskar (Ex. 16) stated that since his employment in 1962 he had received training on medical topics and pharmacology of products and after every two months there used to be regular course for updating his medical knowledge so that he could discharge his duties more efficiently. He stated that a plan action was used to be supplied to him by the employer for every two months though a slight deviation from it was permitted. His work comprised of visiting chemists and doctors of the area for detecting infringement of the appellant's trade mark, substitution of prescription, gathering information regarding spurious drugs and ensuring availability of stock. This information had to be passed to the appellant in the course of his duties in addition to booking orders which had to be delivered to the stockist. Normally he had to pay 2 or 3 visits to the chemists each visit lasting an hour, and a few visits to the doctors each of which lasted about 5 minutes. A daily diary was to be maintained and after every 3 days daily reports were to be sent. A statement has also to be sent regarding consumption of samples and the general market trend along with salesman's suggestions. He used to be given a questionaire on medical topics called 'field focus quiz programme', which was for testing and improving his knowledge and the purpose of this and the workshops organised being to improve the employee's technical knowledge. There were also incentive schemes including offers of prize money for good work.
3. The evidence of Shri Waswani showed that the primary responsibility of the respondent No. 2 was to visit doctors as per the list prescribed and the respondent No. 2 used to be given pre-planned detailed talk which he was asked to repeat at bi-monthly regular course so that his presentation was more effective for promoting the appellant's sale. At the beginning of the year the respondent No. 2 used to be given a standard tour cycle and he was supposed to work as per the plan and he was allowed to make minor changes in the plan regarding which information had to be given to the appellant. According to him the purpose of refresher course was to impart more medical knowledge about diseases and the appellant's drugs. In his cross-examination he stated that the representative was supposed to understand the technical terms given in the Manual relating to their products and they manufactured drugs also for psychiatric troubles. According to him the purpose of workshop, refresher course, rehearsal in sales talk were all designed to make the representative present the product more scientifically for better sale result. He reiterated that the representative was expected to keep his scientific knowledge up-to-date so that he could effectively promote sales, which was his primary duty and the primary concern of the appellant was to reach the target fixed on the basis of the previous year's sale.
4. One of the submissions on behalf of the appellant was that the only averment in the application under Section 33-C(2) of the Industrial Disputes Act regarding the duties of the respondent No. 2 was that he was to promote sale of the products manufactured and marketed by the appellant and that he performed no managerial or administrative function and so he was a workman in the industry run by the appellant. In the written statement filed by the appellant in answer to the application, it was contended that the respondent No. 2's main duties as medical representative were to promote sale within the territories allotted to him and that he was not a worker within the meaning of Section 2(s) of the Industrial Disputes Act and so he could not maintain an application under Section 33-C(2) of the Industrial Disputes Act. On the pleadings apparently the position was that the duties of the respondent No. 2 were to promote the sales of the products manufactured and marketed by the appellant. Despite these pleadings, evidence was allowed to be led in detail regarding the other duties which were to be performed by the respondent No. 2. The finding of the Court below was that as the respondent No. 2 performed clerical, manual and technical functions, he was a workman, but the appellant's contention was that that was not how the case was presented before the Labour Court. The learned Single Judge while remanding the case referred to the observations in J. & J. Dechane Distributors v. State of Kerala and others : (1974)IILLJ9Ker , May and Baker (India) Ltd. v. Their Workmen : (1961)IILLJ94SC and Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. The Burmah Shell Management Staff Association and others : (1970)IILLJ590SC and pointed out that the evidence had not been examined by applying the test of 'main and substantial work' which was clearly outlined by the Supreme Court's decision in Burmah Shell Oil Storage and Distribution Co. (cited supra) and there was no finding as to what was the main and substantial work of the respondent No. 2, In the view of the learned Single Judge it was necessary for the Labour Court to ascertain what was the main and substantial work of the respondent No. 2 and the parties were permitted to adduce additional evidence. It is, therefore clear that when the matter came to be remanded to the Labour Court, both the parties were clear about what evidence should be adduced for ascertaining the main and substantial work of the respondent No. 2 and without objection adduced that evidence and argued the matter before the Labour Court on that basis. No grievance was, however, made before us about the scope of the pleadings and the nature of the additional evidence adduced, the contention of Shri Manohar the learned counsel for the appellant being that even on the basis of the evidence tendered, no finding could be reached that the main and substantial duties performed by the 2nd respondent fell into the categories, 'manual', 'clerical' or 'technical' and the finding of the Labour Court was perverse as it came to be rendered without applying the correct and well settled principles. The advertisement dated April 20, 1982 published in the Nagpur Times, was for a result-oriented medical representative who would be willing to travel extensively and interested in a selling career. Reliance was also placed on the terms of the appointment letter (Ex. 56) and particularly term No. 20 thereof, which required the respondent No. 2 to devote the whole of his time and attention to the duties entrusted to him, vide term No. 14. Another document on which the learned counsel for the respondent No. 2 relied, was the Representatives' Manual where it was mentioned that a medical representative is essentially a salesman, but of a special calibre and having special duties and he keeps a liaison or link between the company and the doctors at large including the doctors at the hospitals and also the chemists. Shri Aney the learned counsel for respondent No. 2 referred us also to the following portions of Manual which reads as follows :
'What the medical representative is doing is a special task of selling the idea to the doctor so that he can prescribe the medicine to the patient and the patient in turn buys on doctor's prescription from a chemist shop ... Similarly, if the medical representative does not put sufficient and required effort for selling the drug there can be no benefit and the purpose of the pharmaceutical company in employing him and selling the drug is lost. In short the representative should project and endeavour to sell the products of the company with sufficient hard work and enthusiasm so that the objective is achieved ..... Regular habits and doctor calls will automatically look after the accomplishment of your sales objective'
These extracts, in our opinion, far from supporting the contention of the respondent No. 2 that the work of the respondent No. 2 fell into the three categories enumerated under Section 2(s) of the Industrial Disputes Act, viz., manual, clerical and technical, would show that it fell into an altogether different category which is not to be found in the main text of Section 2(s), viz., sales promotion.
5. From the evidence of the two witnesses who were examined, it is clear that all the training workshops and conferences were directed for achieving the objective of promoting sales or canvassing for sales. Merely because certain technical information was supplied to the medical representative, that would not make his job technical, but the technical information so received was to be put into use for achieving the main objective of promoting and canvassing the sales. It seems that an argument was advanced on behalf of the respondent No. 2 in the notes of arguments which are on the record of the Labour Court, that the nature of duties which the employer of the respondent No. 2 called for were manual because he had to carry a bag in which all the material required for contacting the doctors and chemists had to be carried. In now view this would be one of the incidental functions which the respondent No. 2 would have to perform, if he had to approach the chemists and doctors with a view to selling the products. All the information which he had to pass to them was of a technical nature so as to make the canvassing more effective and to this end it was necessary that he should be equipped with the nature of the product he had to sell. This requirement would not make his duties 'technical' because it was not for the use of this technical knowledge that he was being employed, but to promote sales by applying that knowledge.
6. The order passed by the learned Judge of the Labour Court on June 6, 1984, shows that though he was aware of what had to be ascertained in accordance with the order of remand passed by the learned Single Judge of this Court, he made no serious attempt for finding out what was the main and substantial work of the respondent No. 2. In para 10 of his judgment, he summarised the contentions of the appellant on this point including the one that the main duty of the respondent No. 2 was canvassing of sales and to achieve that object the 2nd respondent was to perform a number of duties including extensive travelling. After quoting extensively from the observations of the Supreme Court in S. K. Verma v. Mahesh Chandra : (1983)IILLJ429SC , the learned Judge of the Labour Court observed as follows :
'The applicant might have been engaged for canvassing sale. This duty means to convince the person for purchasing the product. The non-applicant may say that the applicant is not effecting sale of the product but he only canvasses for that. After convincing the customers about the quality of the goods, the customers order for the goods. This order is nothing but result of this canvassing or convincing the customers; what remains thereafter for effecting actual sale is only a physical act of receiving price and delivery of goods. In effect the sale is effected under the duty of the applicant and the non-applicant cannot deny that the applicant should be responsible for his territory and his duties must be result-oriented. Naturally the applicant must show interest in selling the product. It is nothing but increasing the business of the non-applicant.'
7. Without recording a finding as to what were the main and substantial duties of the medical representative, the learned Labour Judge rushed to hold that the duties of the medical representative were similar to those of the Development Officer in the Life Insurance Corporation. He then went on to observe that it was clear from the definition of the workman under Section 2(s) of the Industrial Disputes Act that certain persons are excluded from this category and the non-applicant was not able to bring the 2nd respondent within the exceptions 1 to 4, and, therefore, the 2nd respondent must be taken to be a workman within the categories indicated viz. skilled, unskilled, supervisory, technical, or clerical. The learned Labour Judge concluded by saying :
'Therefore, duties performed by him all may not come in one category skilled, unskilled, supervisory, technical or clerical, but some in one category, other in other category. Thus, nature of his duties are within the four categories mentioned in Section 2(s) of the Industrial Disputes Act.'
8. The learned Single Judge after quoting extensively from the evidence of the two witnesses examined was inclined to make the following observations :
'Now, it is apparent that income under the incentive schemes depends upon the actual sale of the products. Booking the order is mere surety of effecting sale. Thus, the company which is formed to sell products and not to spread knowledge, and the second respondent, both for their own reasons, would be naturally interested most in that part of job. Various other duties are also required to be performed to achieve this end of effecting sales. Sales promotion thus is not an identifiable job in itself, but is a combined result of the several jobs - technical, manual and clerical. The main and substantial duties of the second respondent may not fall in any one category, but do fall in some category or the other out of three or in combination depending upon what duties are actually performed on a given day or point of time.'
9. It is apparent that the learned Single Judge was disposed to regard the work of respondent No. 2 as being directed to achieve the end of effecting sales. The learned Counsel for the respondent No. 2 strenuously contended that the conclusion of the learned Single Judge was fortified by the following observations in S. K. Verma v. Mahesh Chandra (supra) (p. 432) :
'The words 'any skilled or unskilled manual, supervisory, technical or clerical work' are not intended to limit or narrow the amplitude of the definition of 'workman'; on the other hand they indicate and emphasise the broad sweep of the definition which is designed to cover all manner of persons employed in an industry irrespective of whether they are engaged in skilled work or unskilled work, manual work, supervisory work, technical work or clerical work. Quite obviously the broad intention is to take in the entire 'labour force' and exclude the 'managerial force'. That, of course, is as it should be ... Disputes between the forces of labour and management are not to be excluded from the operation of the Act by giving narrow and restricted meanings to expressions in the Act. The Parliament could never be credited with the intention of keeping out of purview of the legislation small bands of employees who, though not on the managerial side of the establishment, are yet to be denied the ordinary rights of the forces of labour for nor apparent reason at all.'
10. It would, however, be seen that at the end of para 5 of the report it was mentioned that the Development Officers which category came up for consideration, were separated from 'officers' strictly so called and were generally placed on par with subordinate and clerical staff. In Arkal Govind Raj Rao v. Ciba Geigy of India Ltd. : (1985)IILLJ401SC , a three member Bench of the Supreme Court, of which one of the Judges who decided S. K. Verma's case (cited supra) was a member, pointed out in para 14 that even though the Development Officer had power to recruit agents and supervise their work yet his duties were held to be primarily clerical, and the contention that it was administrative or managerial, was rejected. It was, therefore, apparent that the Supreme Court was not really adopting a new approach in S. K. Verma's case, but upon the facts of that case was following the proposition which was laid down in Management to M/s. May and Baker (India) Ltd. v. Their Workmen (supra) and Burmah Shell Oil Storage and Distributions Co. v. The Burmah Shell Management Staff Association (supra) to the following effect : (1970)IILLJ590SC :
'A person cannot be assumed to be a workman on the ground that he does not come within the four exceptions in Section 2(s). The specification of the four types of work in the definition in Section 2(a) obviously is intended to lay down that an employee is to become a workman only if he is employed to do work of one of those types, while there may be employees who not doing any such work, would be out of the scope of the word 'workman' without having to resort to the exceptions.'
11. In Burmah Shell Oil Storage and Distribution Co.'s case (supra) the Court was considering various categories with a view to ascertain whether they fall within the definition of workman under Section 2(s) of the Industrial Disputes Act. With regard to the category of District Engineers, it was observed that their duties consisted of assessing suitability of sites for depots from the point of view of the technical and engineering aspects, suggesting lay-outs for construction of depots or service stations, etc. and he also gave certificate as required by the Inspector of Explosives after satisfying himself about the technical fitness of the installation facilities. On the other hand, it appeared that the principal work, for which he was employed, was that of supervision in as much as he was required to supervise work done by others instead of doing the work himself, and so he could not be held to be a workman (pp. 602-603). With regard to the category of Sales Engineering Representatives, it was held (p. 606) : (1970)IILLJ590SC :
'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, rightly 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 clerical work or manual work. Reliance was placed on the word 'technical' used in the definition of a workman. The amount of technical work the 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 his work technical work. The work of advising and removing complaints so as to promote sales remains outside the scope of technical work. Consequently, the Tribunal's decision that the Sales Engineering Representative is a workman is set aside'.
12. There was another category which the Supreme Court was considering viz. that of District Sales Representatives and it was observed (p. 610) : (1970)IILLJ590SC :
'His main work is to do canvassing and obtain orders. In that connection, of course, he has to carry on some correspondence, but that correspondence is incidental to the main work of pushing sales of the Company. In connection with promotion of sales, he has to make recommendations for selection of agents and dealers, extension or curtailment of credit facilities to agents, dealers and customers, investments on capital and revenue in the shape of facilities at Agents' premises or retail outlets; and selection of suitable sites for retail outlets to maximise sales and negotiations for terms of new sites'.
After enumerating the other duties. It was pointed out :
'The case of District Sales Representative is clearly that of a person who cannot fall within any of the four classes, because his work cannot be held to be either manual, clerical, technical or supervisory. The work of canvassing and promoting sales cannot be included in any of these four classifications. He is, therefore, not a workman at all within the principal part of the definition'.
13. We may refer to several other cases where the medical representative was held not to be a workman. They are D. S. Nagaraj v. The Labour Officer, Kurnool (1972 (II) AWR 126.); J. & J. Dechane Distributors v. State of Kerala and others (supra); John Wyeth & Brother Ltd. v. Industrial Tribunal. Alleppey 117 L.I.C. 1997 and N. J. Joseph v. Labour Court 1987 (60) FLR. 134. These are all cases in which it was found that the work of the Medical Representative was to do canvassing for promoting sales and therefore would not fall into any of the categories enumerated in the text of the definition 'workman' under Section 2(s) of the Industrial Disputes Act. The same was the view taken in several other cases regarding salesman. In Premier Irrigation Equipment (Private) Ltd. v. Labour Court, Delhi 1973 (I) L.L.N. 333 a sales representative giving technical demonstration and attending to after-sale service, was held not to be a workman within the meaning of Section 2(s) of the Industrial Disputes Act. In Shalimar Paints Ltd v. Third Industrial Tribunal. 1974 L.I.C. 213 it was held that though a salesman is required to have some technical knowledge his principal duties will remain the promotion of sale; in absence of any supervisory or manual work, he must held not to be a 'workman' under the Act. M/s. Kirloskar Brothers Ltd. v. The Presiding Officer, Labour Court 1976 L.I.C. 918 and Jugal Kishore Mittal v. The Management of Sasta Sahitya Mandal 987 I LLJ 231 are also the cases on the point.
14. In the All India Voltas and Volkart Employees' Federation v. M/s. Voltas Ltd. : (1972)ILLJ326Bom a Division Bench of this Court pointed out as follows (p. 338) :
'The Tribunal has found that these salesmen are not employees within the meaning of the Act. In dealing with this question certain broad principles have to be borne in mind. In almost every sphere of human activity different skills must exist and are called into play. Even a manual worker occasionally writes down specifications and vice versa. Even a clerk sometimes does manual work. He lifts up a typewriter or a load of books or files from one place and keeps it at another place and thus does some manual work. But it is not the causal or occasional work which a particular employee does which is decisive of what is the nature of his employment nor decisive of the question whether he is an employee at all falling within a particular definition. The test is what is the substance of the work which he does and what he was in substance employed to do. It is not in dispute in the present case that these particular employees with whom we are concerned, were substantially employed as salesmen and it may be that in the course of their duties as such salesmen they were required to show special knowledge of the products which they sell. It may be perhaps that the more technical their knowledge the better for them in order to earn their commission but it is not for the technical knowledge that they were employed because they go from business to business and canvass orders and that is the main and substantial part of the work which they have to do and for which they were engaged. It cannot therefore be held that they were employed to do clerical or technical work'.
The learned counsel for the respondent No. 2 urged that a medical representative who does the job of sales promotion does not do any identifiable job and his job may fall into any or all the categories, technical, clerical or manual, and it was not necessary that it must fall only in one category and if it could fall in any of the three categories he could not be deprived of the benefit of the beneficent piece of legislation which had to be construed liberally in favour of the subject for whose benefit it had been brought into the statute book. In the face of the decision cited above, it is too late now to contend that the job of sales promotion does not belong to an identifiable category. The Sales Promotion Employees (Conditions of Service) Act, 1976 defined the sales promotion employee as meaning any person, by whatever name called (including an apprentice), employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business, or both, but does not include any such person who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem, or who is employed or engaged mainly in a managerial or administrative capacity. From the statement of objects and reasons published in the Gazette of India on May 14, 1975, Part II, Section 2, it was clear that as a result of the Supreme Court judgment in the case of May and Baker (India) Limited and Their workmen (supra) the persons engaged in sales promo-on do not come within the purview of the definition of 'workman' under the Industrial Disputes Act, 1947 and as such they have no protection regarding security of employment and other benefits under that Act. These persons particularly the medical representatives in the pharmaceutical industry had been demanding from time to time that they should be covered by Industrial Disputes Act. On a petition made by the Federation of Medical Representatives Associations of India, the Committee on Petitions (Rajya Sabha) in its thirteenth report submitted on March 14, 1972, came to the conclusion that the ends of social justice to this class of people will not be met only by suitably amending the definition of the term 'workman' in the Industrial Disputes Act, 1947 in a manner that the medical representatives are also covered by the definition of 'workman' in the said Act. Our attention was drawn particularly to sub-section (2) of Section 6 of the Sales Promotion Employees (Conditions of Service) Act, 1976 which provides that the provisions of the Industrial Disputes Act, 1947, as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of the Act and for the purposes of any proceeding under that Act in relation to an industrial dispute. From this deeming provision, it is apparent that the Parliament recognised that the class for the benefit of which the legislation was being undertaken, was not covered by the definition of 'workman' under Section 2(s) of the Industrial Disputes Act and that was the reason to include that category by the deeming provision which was incorporated. To say, therefore, that a person who did the job of sales promotion did not belong to an identifiable category would not be correct. Another category which would not be covered by the definition of Section 2(s) of the Industrial Disputes Act was the class of teacher. The proposition laid down in May and Baker (India) Ltd. v. Their Workmen (supra) was reiterated by the Supreme Court in Miss A. Sundarambal v. Government of Goa, Daman and Diu : (1989)ILLJ61SC and it was pointed out in para 7 that in order to be a workman, a person should be one who satisfies the following conditions : (i) he should be a person employed in an industry for hire or reward; (ii) he should be engaged in skilled or unskilled manual, supervisory, technical or clerical work; and (iii) he should not be a person falling under any of the four clauses, i.e. (i) to (iv) mentioned in the definition of 'workman' in Section 2(s) of the Act. The class of teachers was regarded as not falling within the definition of 'workman' because imparting of education which was the main function of teachers cannot be regarded as skilled or unskilled manual work or supervisory work or technical work or clerical work. The clerical work, if any they may do, was held to be only incidental to their work of teaching.
16. We were referred to the observations in D. P. Maheshwari v. Delhi Administration : (1983)IILLJ425SC on behalf of the respondent No. 2, but the observations in para 6 on which reliance was placed, far from supporting the contention advanced on behalf of the respondent No. 2, point out that the question to be considered is what were the main duties of the employee and not whether he was occasionally entrusted with other work and on that question there was a clear finding of the Labour Court in that case that he was mainly discharging duties of a clerical nature. In Ved Prakash Gupta v. M/s. Delton Cable India (P) Ltd. : (1984)ILLJ546SC which was decided by the same three learned Judges who decided S. K. Verma's case (cited supra) the Court was called upon only to determine whether the duties which Ved Prakash was called upon to do viz., the work of looking after the security of the factory and its property, was supervisory in nature and the Court pointed out that the substantial duty of Ved Prakash was only that of a Security Inspector at the gate of the factory premises and it was neither managerial nor supervisory within the meaning of the law. The Court was not called upon to examine the other question whether the duties fell within the categories enumerated in the text of the definition of 'workman' under Section 2(s) of the Industrial Disputes Act and we find that position had been assumed in that case.
17. We must point out that the judgments rendered after the judgment in S. K. Verma's case (supra) which have been referred to above were delivered after the decisions were given by the Labour Court and the learned Single Judge in this case. We do not agree that the decision in S. K. Verma v. Mahesh Chandra (supra) had prescribed a different approach, considering the view taken by the Supreme Court even after that decision, had the enquiry been limited to finding out whether the duties of the respondent No. 2 fell within the categories enumerated in the text of the definition in Section 2(s) of the Industrial Disputes Act, it would have been obvious that these duties were not covered by the categories enumerated in the text of the definition. The Division Bench of this Court in Voltas case (cited supra) after referring to the Burmah Shell case (cited supra) pointed out that the principle was well settled that the workman must be held to be employed to do that work which is the main work he is required to do even though he may be incidentally doing other types of work. Though apparently this position was referred to by the Labour Court, it did not render a clear finding regarding the main and substantial work which the respondent had been employed to do. The foregoing discussion would show that the mere fact that the various duties were also required to be performed for performing the main and substantial duty of effecting sales, would not detract from what was the main duty. It cannot be said that the main duty fell into the category of technical, clerical or manual job merely because while performing that duty the employee had to be equipped with certain technical knowledge and had to do some manual or clerical work. These other functions would not be enough to bring him within the definition of workers. We are unable to accept the contention of the learned counsel for respondent No. 2 that the performance of such incidental technical, manual or clerical jobs formed an integral part of his main function and could not be incidental, having regard to the evidence led in this case.
18. It was lastly contended on behalf of the respondent No. 2 that since the learned Judge of the Labour Court had considered the evidence on record and recorded his finding on the basis of the evidence, it would not be open to us to interfere with that finding in our writ jurisdiction. Since we are of the view that the learned Judge of the Labour Court had misdirected himself while considering the evidence and had taken into consideration matters which were not really germane and based his finding on a proposition which, as pointed out above, militated against the long line of decisions of the Supreme Court on the point, it is not possible for us to uphold that finding. The finding of the learned Judge of the Labour Court that the main and substantial work of the respondent No. 2 fell under the categories manual, technical or clerical, was entirely wrong in view of his own observations that the main work of the respondent No. 2 was canvassing and promoting sales. It is also clear from the observations of the learned Single Judge in para 11 of his judgment that the main function of the respondent No. 2 was to advance sale of products. In view of these findings, it is clear that the case of the respondent No. 2 could not have been regarded as one falling within the definition 'workman' under Section 2(s) of the Industrial Disputes Act.
19. Disagreeing with the view taken by the learned Single Judge, we find that the decision on the preliminary point recorded by the Labour Court cannot be sustained. That was not a finding which could have been reached at all on the basis of the evidence and on the well settled position of law and so that finding will have to be quashed.
20. In the result, we allow the appeal, set aside the order passed by the learned Single Judge and quash the finding recorded by the Labour Court that the respondent No. 2 is a workman within the meaning of Section 2(s) of the Industrial Disputes Act. Consequently, the application filed under Section 33-C(2) of the Industrial Disputes Act is dismissed. There, will, however, be no order as to costs throughout.