B.N Kirpal, J.:— The validity of the award of the Labour Court, who had held that the petitioner was not a workman, is sought to be challenged in this writ petition.

2. The petitioner is stated to have been employed on 1st January, 1964. According to the petitioner the nature of his duties were clerical and manual and he was getting a fixed salary of Rs. 185/- per month together with commission which accrued to him at an average of Rs. 100/- per month. It is also alleged that the management got annoyed with the petitioner because he had made a claim for salary in lieu of leave which had been unavailed. The petitioner is stated to have been dismissed from service vide the letter dated 31st March, 1970. The services were terminated without assigning any reason and without holding any departmental enquiry.

3. Thereafter a dispute was raised between the parties and vide notification dated 22nd February, 1971 the Lt. Governor, Delhi referred the dispute to the Labour Court for adjudication. The term of reference was as follows:

“Whether the termination of services of Shri Jugal Kishore Mittal w.e.f 31.3.1970 is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect”?

4. In the statement of claim filed by the petitioner he reiterated the aforesaid facts. The Respondent No. 1, on the other hand, contended that it was not an industry and secondly, the petitioner was not a workman as defined under the Industrial Disputes Act. The following three issues were thereafter framed by the Labour Court.

“ISSUES:

(i) Whether Jugal Kishore is a workman as defined under the Industrial Disputes Act?

(ii) Whether Sasta Sahitya Mandal is an industry as defined under the Act?

(iii) As in the reference.”

5. By his award dated 17th April, 1973, the Addl. Labour Court, Delhi decided Issue No. 2 against the Respondent No. 1. He held that the said respondent was an industry. With regard to Issue No. 1, however, the Labour Court came to the conclusion that the petitioner was not a workman as defined under the Industrial Disputes Act. In arriving at this decision, the Labour Court took into consideration the documents which had been filed before it and also the oral evidence which had been produced. It was observed by the Tribunal that in the cross-examination the petitioner had admitted that he was getting Rs. 185/- per month as salary and 5% commission on certain orders and 25 % on other orders depending upon the will of the management. It was also’ noted that the petitioner was making about Rs. 500/- or Rs. 600/- as travelling allowance in one year. The petitioner, of course, had stated in evidence that he used to go outside Delhi on management's work for about 11/4 months in a year. The Labour Court, however, took into consideration a letter dated 1st May, 1968 which had been written by the petitioner and also the oral evidence which was produced. The Labour Court then came to the conclusion that the petitioner used to go out for canvassing for about 6 or 7 months in a year. It was held that the clerical work which was done by the petitioner when he was in Delhi was only incidental or ancillary to his main duties of canvassing. The petitioner had also filed an application for production of some records. The said records were not produced and it was contended that an adverse inference should be drawn: With regard to this the Labour Court observed that even if an adverse inference was drawn, it could not be of any help to the petitioner in view of his admissions in his statement and the letter dated 1st May, 1968 and also in view of the other evidence on record. The Labour Court of course observed that the petitioner could have filed secondary evidence regarding the contents of the documents which were not produced. in conclusion the Labour Court observed as follows:—

“In view of the above discussion it is amply clear on the evidence on the record that Jugal Kishore was employed at a salary of Rs. 185/- per month and fixed commission on the orders secured by him for promotion of the sale of the books published by the respondent, that he was required to remain on tour for about 7 or 8 months in a year for canvassing and securing orders for the respondent's books; that even while at Delhi he was required to go to different places in the same connection; and that it was only occasionally that he was required to do some clerical or manual work in the office or the annual exhibition. Therefore, it follows that the nature of his main duties was to canvass for promotion of the sale of respondent's books and to secure orders for supply of books. As also to recover dues on the basis of which he was paid fixed commission besides salary. The clerical or manual work done by him occassionally while at Delhi was vary small and in the nature of incidental or ancillary work to the main job of canvassing for promotion of sales. That being so he was not covered by the definition of a workman under Section 2(S) of the Industrial Disputes Act. The issue is answered accordingly against the workman.”

6. Before me, in the petition under Article 226 of the Constitution, Mr. Charya, learned counsel for the petitioner has reiterated that the petitioner was doing only clerical-cum-manual work. It was first contended by him that he was doing duties other than that of selling the books also. Some of of the duties which are alleged to have been performed are stated to be as under:

“(i) To record entries of dak and orders on the incoming dak register and other registers, respectively.

(ii) To write down addresses and send circular by post after making entries in the register.

(iii) To do cyclostyling work on the cyclostyling machine.

(iv) To take out books and literature according to the orders of the customers and supervise its despatch etc.

(v) To send parcels, get the railway receipts or goods receipts prepared for despatch and to get goods released,

(vi) To make recovery of outstanding amounts from the parties on instructions of the management.

(vii) To take the goods to the customers in Delhi in execution of orders.

(viii) To arrange erection of stalls in exhibitions and fairs and to supervise its activities.

(ix) To call for advance from the customs before execution of orders by writting letters.

(x) To bring the books and literature from the Publications Division of the Government of India.

(xi) To go to godown and bring the goods.

(xii) To attend to the sales at counter.

(xiii) To persue the orders from the libraries, schools, colleges etc. consequent to the circulars sent by the management to these institutions.”

7. The allegations of the petitioner doing the aforesaid duties has of course not been admitted by the Respondent No. 1. Nevertheless it is clear from the evidence on record, and this has also been found by the Labour Court, that the petitioner was doing some other duties besides going on tour and canvassing for sale of respondent's books: The petitioner in this statement before the Labour Court had stated that he was doing the following duties.

1. Recording and maintaining mail despatch register;

2. Writing address on envelopes;

3. Cyclostyling written material;

4. Follow up recovery of dues;

5. Getting Railway reeeipts prepared and getting goods cleared from the transport;

6. Taking out books for despatch to customers;

7. Erection of stalls in exhibitions and fairs.

8. It is clear that what was stated in the pleadings before the Labour Court, as being the duties which were being carried out, were much more than what was stated by the petitioner when he appeared as his own wit ness.

9. The question which, however, arises is that even assuming that the petitioner was carrying on the duties which he is alleged to have performed would it mean that he was a workman. In order to examine this it is necessary to see what are the duties which were being performed by the petitioner. It has not been denied, and in fact it has been so stated by the petitioner himself, that he used to go out on tour for the purpose of selling the books of the respondent.. The petitioner himself in his statement before the Labour Court had stated that he used to go out on tour for. about 11/4 months in a year. It is clear, therefore, that apart from the duties which the petitioner says that he used to perform, he was also performing the duty of going out on tour and canvassing for the sale of the respondent's books.

10. The Labour Court has come to the conclusion that the other duties which were being performed by the petitioner were incidental to the main duty which he was performing, namely, that of canvassing for the sale of the respondent's books. In order to examine this finding it will be relevant to enquire and determine as to what was the period which was being spent by. the petitioner in canvassing for the sales of the respondent's books. In the letter dated 1st May, 1968 the petitioner wrote to the respondent as under:—

“I submit that it is two months when I came back from tour, but I have not yet been sent on tour again, It is difficult to pull on this way. I am to remain on tour for eight months, as was notified by you. How can I complete eight months in this way ? Please think over.

While working in the office it is not only the loss of commission. that I suffer but the Mandal also suffers from non-increment of its sales. Therefore, I submit to kindly arrange to keep me on tours as much as possible, so that I may make more sales and may also carry on.”

11. The aforesaid letter clearly shows that according to the petitioner he was to remain on tour for 8 months in a year. The petitioner was obviously keen to go on tour as much as possible in order to earn more money. It has further come in evidence that even when the petitioner was in Delhi he used to go on tour to different places within Delhi for the purposes of selling the respondent's books.’. There is no reason to disbelieve this evidence. The petitioner no doubt has alleged thatin the chart which he had submitted along with the written arguments, he has mentioned the number of days which he had spent on tour during a year. For the years 1964 to 1969, the period has varied from 109 days to 165 days. Even if these figures given by the petitioner are accepted as correct, it would mean that the petitioner went out on tour for a number of weeks in a year. As already mentioned above, even when the petitioner was in Delhi he used to go out for the purpose of canvassing for the sale of the books published by the respondent. The Labour Court in my opinion, therefore, rightly came to the conclusion that the primary duty of the petitioner was that of canvassing and selling books and the other work which the petitioner did must necessarily be regarded as being incidental thereto. If the petitioner, in his capacity as a salesman obtained orders, then, the other work which he might have done must have been in order to ensure that the orders were fulfilled and that can only be regarded as incidental work. Merely because the petitioner had to collect money from the customers, or see to the despatch of the goods, would not mean that he was doing only clerical or manual work. It is true that adverse inference should be drawn when the respondent did not produce the documents which they were asked to produce, but the question which obviously arises is as to the amount of benefit which the petitioner would have obtained from them. All that the documents would show is that the petitioner was doing other work. That is not denied. The question, however, is the quantum of other work which was being done by the petitioner. The major work and duties of the petitioner, as has been found by the Labour Court and with which I wholly concur, was of canvassing for the sale of the books of the respondent. This being so, non-production of the documents called for can in no way non suit the respondent.

12. The present case is similar to the case of May Baker India. Limited v. Their Workmen (1). There it was held that if the nature of the duties is manual or clerical then the person must be held to be a workman. On the other hand, if the manual or clerical work is only a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be a workman. In that case a person had been employed by a pharmaceutical concern as a representative for canvassing orders and it was found that the work consisted mainly of canvassing and the clerical or manual work that he did was only incidental to his main work. It was held by the Supreme Court that he would not be regarded as a workman. In the present case also the main work of the petitioner was of canvassing for orders. It is only when the orders materialised and sale was made that the petitioner got his commission, The main work of the petitioner, therefore, was of securing orders and increasing the sale of the respondent and the clerical or manual work which he might have carried out was only incidental to this. To the same effect is another decision of the Supreme Court in the case of Burmah Shell Oil Storage and Distribution Company of India Ltd. v. The Burmah Shell Management Staff Association, (2).

13. From the aforesaid discussion it must follow that the petitioner had been rightly categorised as not being a workman and as such the Labour Court was right in not granting any relief to the petitioner. No other contention has been urged before me.

14. For the aforesaid reasons the writ petition is dismissed. The parties will, however, bear their own costs.