Decided on January 24,1961



- (1.) THE petitioner Wellford Transport Ltd. has impeached the award of the: First Industrial Tribunal. It was contended, first, that the decision of the Tribunal that car-salesmen were workmen within the meaning of the term in the Industrial Disputes Act was erroneous and that the Industrial Tribunal had no jurisdiction in the matter if the car salesmen were not workmen; secondly, it was contended that the decision of the First Industrial Tribunal was barred by resjudicata by reason of an earlier decision of another Industrial Tribunal between the petitioner company and its workmen where it had been held that car salesmen were not workmen doing manual on clerical work; thirdly, it was contended that the issue before the Industrial Tribunal being whether termination of ser vices of Sarbasri K. P. Chakravarty and D. N. Ghosh was justified and the Tribunal having come to the conclusion that the termination was justified the award of compensation was in excess of jurisdiction
(2.) AS to the first contention that car salesmen are not workmen within the definition of Industrial Disputes Act the Tribunal came to the conclusion that on the evidence the car salesmen did not have to do any technical work as mentioned in the amended section in the definition of workman. The Industrial Tribunal further held that the-car salesmen had to open the bonnet of the car to show the various parts of the car, and had to write orders, collect money, grant receipts, fill in order forms, calculate hire-purchase charge and to attend service after sale The Industrial Tribunal held that the duties of the car salesmen did not differ in essence from that of a salesman of my other commodity, as for example a salesman in a cigarette factory or a salesman in a cotton goods sales organisation. The Tribunal further said, "in all these cases as in the present case, salesman has to sell articles, receive money, do some clerical work and has to pick up some detailed knowledge about the commodity he deals in to in duce the buyer to purchase his goods. If a salesman with the advantage of his general education gathers specialized knowledge in cigarette or cotton textiles over the long period of his work as a salesman of such commodity that would not raise his work to the level of technical work in respect of such commodities His work will continue to be the same as it was before, and consider it to be nothing but manual and clerical combined. This finding was challenged by Counsel for the petitioner as erroneous or based on no evidence at all. On behalf of the workmen there is the evidence that a salesman moves iron, place to place and further that salesman's main duty is to contact the prospective purchasers of the new vehicles. Counsel on behalf of the work men contended that inasmuch as the workmen had to travel and further that there was evidence that they had to open the bonnets of cars there was sufficient evidence to come to a conclusion that they were doing manual and clerical work and were therefore workmen.
(3.) IT is true that the decision of the Tribunal will not be open to review either by way of appeal or by way of appraisement of evidence. If there is no evidence at all the finding may be challenged. Mr. Ginwalla relied on the decision of Shore ditch Assessment Committee case reported in (1) 1910 (2) K. B. 859 to illustrate as to how the finding of fact could be challenged by way of certiorari. Farwell L. J. said, "it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure. . . . and it is immaterial whether the decision. . . . on the question of the existence or non-existence of its own jurisdiction is founded on law or fact. " Counsel for the petitioner contended that as to the filling in of forms the evidence was that in some cases forms were filled in by others. As to the opening of bonnets of cars Counsel contended that that was not manual work. Mr. Ginwalla contended that the test of a workman, was what that workman was employed to do. The business of; a car salesman, he contended, would require qualities of initiative and imagination in the matter of sales of cars and that there was nothing manual on clerical in the work. Mr. Ginwalla contended that the Tribunal usurped jurisdiction by an erroneous decision that car salesmen were workmen.;

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