JUDGMENT 1. THE third respondent was appointed a Salesman of the appellant sometimes in June, 1946. According to him he became a member of the workers' Union of the appellant and thereafter his increment was stopped. By a letter dated March 30, 1964 his employment was terminated by the appellant. Thereupon he made an application under section 33a of the Industrial dispute Act, 1947 (hereafter referred to as the Act. The fast respondent the (Third Industrial Tribunal) before whom this application was filed, transferred the application to the second Labour Court, the second respondent. This application was contested by the appellant. The second respondent after hearing the parties held in favour of the third respondent that he was a workman and was also a concerned workman of the appellant within the meaning of section 33 of the Act. It was also found by the second respondent that he was discharged for misconduct without any inquiry and without soy opportunity to defend himself. On this finding, by an order dated March 16, 1966, the appellant was directed to reinstate the third respondent with 50% back wages. This order was challenged by the appellant on a Writ petition and a rule nisi was issued by this Court. This rule was made absolute to a limited extent. It was held that except on the question of whether the third respondent was a workman all the other findings of the Labour Court should remain and the matter was remitted back to the tribunal for a fresh hearing on the only point namely whether the third respondent was a workman within the meaning of the Act on the evidence already on record. This appeal is directed against this Judgment and order. 2. FOUR points were canvassed before us by Mr. Ginwalla counsel for the appellant. The first point urged by him was that the application under S.33a of the Act by the third respondent was not maintainable at all, because the main reference under s. 10 of the act had been held by T. K. Basu, J. by his judgment and order dated March 6, 1970 to be invalid and incompetent. The first point urged by him was that the application under S.33a of the Act by the third respondent was not maintainable at all, because the main reference under s. 10 of the act had been held by T. K. Basu, J. by his judgment and order dated March 6, 1970 to be invalid and incompetent. It was argued that since this Court had held that the reference under S.10 of the Act was invalid, S.33 of the Act was not attracted and therefore the application under S.33a of the Act by the third respondent was wholly incompetent, as such an application could only be maintained where S.33 of the act had been validly attracted and S.33 of the Act was attracted only where there was a reference pending. It was argued that since the reference under S.10 of the Act had been held by T. K. Basu, J. to be invalid and incompetent no order could be made by the Labour court on the third respondent's application under S.33a of the Act. The second point urged by the counsel for the appellant was that the third respondent was not a workman within the meaning of that term under S.2 of the Act. It was contended that an application under S.33a of the Act could be maintained only when an applicant was a workman within the meaning of that term in the Act. It was argued that on the materials on record and on the case made out by the third respondent before the Tribunal, it must be held that he was not a workman. 3. THE third point urged by the counsel for the appellant was that even if the third respondent was held to be a workman he could not be held to be a concerned workman inasmuch as he was in no way concerned with the main dispute which was the subject-matter of reference under S.10 of the Act. It was argued that the subject-matter of the dispute in the main reference was a claim by certain named workmen to compensatory allowances, on the ground that they had to travel longer distance in attending to their work, as the office had been shifted from Calcutta to howrah. It was argued that the subject-matter of the dispute in the main reference was a claim by certain named workmen to compensatory allowances, on the ground that they had to travel longer distance in attending to their work, as the office had been shifted from Calcutta to howrah. A list of the workmen who claimed such compensatory allowance had been furnished and the name of the third respondent did not appear in such list and therefore he could not be said to a concerned workman. 4. THE fourth point urged by counsel for the appellant was that the trial court erred in remitting the matter back to the tribunal because the court should have decided the question on the materials itself, as the question involved was a finding on jurisdictional fact. It was argued that it was clear from the judgment and order that the tribunal was not required to take any fresh evidence but was directed to give its finding on the evidence already on record. It was contended that since the question involved a finding on a jurisdictional fact, the trial court should have decided the question itself instead of remitting it back to the Tribunal. With regard to the first contention of counsel for the appellant, I should before proceeding any further, note that this identical question came up before P. K. Banerjee J. in (1)Shalimar Paints Ltd. v. Third Industrial tribunal of West Bengal matter No. 222 of 1967. In that case another employee of the same company, namely, Shalimar Paints Ltd., was served with a charge-sheet for gross misconduct and he was found guilty of the same. An order of dismissal was made against that employee and thereafter an application was made under S.33 of the Act for approval of the order of dismissal. The tribunal refused permission to the employer and thereupon an application was made by the company (the appellant in this appeal) under Article 226 of the Constitution and a rule nisi was issued. By a judgment and order dated December 13, 1971, it was held that since T. K. Basu, J. had by his judgment reported in A.I.R. (1971) Cal. 90, held that the main reference was invalid and quashed the order of reference, the condition precedent to an application under s, 33 (3) of the Act was not fulfilled and therefore section 33 (3) of the act had no application. 90, held that the main reference was invalid and quashed the order of reference, the condition precedent to an application under s, 33 (3) of the Act was not fulfilled and therefore section 33 (3) of the act had no application. It was held that if the main reference was invalid, there was no proceeding pending in the eye of law and as such the question of taking approval under S.33 (3) of the act did not arise. On this basis the rule obtained by the company (appellant in this appeal) was made absolute and the order made by the tribunal under S.33 (3) of the Act was quashed. It is unfortunate that although this judgment was available to the appellant at the time when Sinha, J. delivered the judgment under appeal on March 13, 1972 the attention of Sinha, J. was not drawn to this decision. 5. TURNING now to the decision of T. K. Basu, J. reported in A.I.R. (1971)Cal. 90, it is clear that the order of reference itself was quashed and set aside. The award made by the tribunal was also quashed end set aside. In coming to this conclusion the learned judge held that in the absence of a condition that the employer should bear the employees' travelling expenses from to and from the place of work, the letter could not claim extra allowance when he shifted his residence to a more distant place and similarly there could be no claim when the employer in exercise of his right to choose his place of business, shifted the same to another place. It was also held that shifting of business was not transferring employees and hence the claim could hot be justified. 6. I agree with the view taken by p. K. Banerjee J. mentioned above that by reason of the order of Basu J. the order of reference in the main dispute under S.10 (1) of the Act has ceased to exist, as it has been declared to be invalid and quashed. It is true that an order of reference was made under S.10 (1) of the Act with regard to the claim made by certain specified workmen for compensatory allowances, on the ground that the appellant had shifted its business from Calcutta to howrah. It is true that an order of reference was made under S.10 (1) of the Act with regard to the claim made by certain specified workmen for compensatory allowances, on the ground that the appellant had shifted its business from Calcutta to howrah. But it is also true that this order of reference has been declared by basu, J. to be invalid and quashed. The result of the order of Basu, J. is that, the reference made under S.10 (1) of the Act cannot be held to be a valid reference and for all purposes the order of reference has ceased to exist. It cannot be lost sight of that section 33 (2) of the Act is attracted only when there is a valid reference pending under S.10 (1) of the Act. Sub-section (2) of S.33 of the Act, with which we are concerned in this appeal is clearly intended to give to a workman a protection to which he would not otherwise have been entitled, in a case where there is a reference pending under S.10 (1) of the act. If there is no reference pending or if the reference made by the State government has been declared to be invalid and quashed, it cannot in my view be said that S.33 (2) of the Act is attracted. S.33a of the Act in its turn can be invoked only where an employer contravenes the provisions of S.33 of the Act. The result therefore is that in a case such as this, where the main reference under S.10 (1) of the Act has been declared invalid and quashed, it can by no means be said that a proceeding is pending before the tribunal as contemplated by S.33 (2) of the Act, and if that is the position, and I have no doubt that it is so, an employee cannot invoke S.33a of the Act in order to get relief from a tribunal. The mere fact that a reference under S.10 (1) of the Act was pending sometime, does not by itself entitle an employee to claim relief under S.33a of the Act, since the main reference has been declared to be invalid and the reference itself has been quashed. In support of this branch of the contention Mr. The mere fact that a reference under S.10 (1) of the Act was pending sometime, does not by itself entitle an employee to claim relief under S.33a of the Act, since the main reference has been declared to be invalid and the reference itself has been quashed. In support of this branch of the contention Mr. Ginwalla relied upon a decision of the Assam High Court reported in 1971 (1) Labour Law Journal 608, in which it was held that if what was referred to the tribunal was held not to be an industrial dispute, there would be no foundation for an application under S.33 of the Act. Mr. P.P. Ghosh counsel for the third respondent sought to repel the contention of counsel for the appellant by urging that since the order of reference was an administrative order of the State government, the writ court could not set it aside or quash it in an application for appropriate writs under Article 226 of the Constitution. In support of this contention he relied upon a decision of the Supreme Court, (2) The State of madras v. C. P. Sarathy and Anr. A.I.R. (1953) S.C. 53. In that case it was held that in making a reference under S.10 (1) of the Act the Govt. was doing an administrative Act and the fact that it had to form an opinion as to the factual existence of an industrial dispute did not make it any the less administrative in character and that the court could not canvass the order of reference to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial determination. In my view this decision is of no assistance to Mr. Ghosh's client as it was also held by the supreme Court that it would be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act and therefore the tribunal had no jurisdiction to make an award. This decision is not an authority for the preposition that an application under S.33a of the act can be maintained even if the main reference under S.10 (1) of the Act has been declared to be invalid. This decision is not an authority for the preposition that an application under S.33a of the act can be maintained even if the main reference under S.10 (1) of the Act has been declared to be invalid. Secondly it should not be over-looked that by a judgment of this court the order of reference under S.10 (1) of the Act has been declared to be invalid and accordingly quashed. We are not sitting in appeal over that judgment which has become final and binding on the parties. The correctness of the judgment of T. K. Basu, J. cannot be colaterally questioned in this appeal. In that view of the matter the contention of counsel for the appellant on this aspect of the case seems to me to be sound and ought to be upheld. If it is held that the third respondent is entitled to relief under S.33a of the Act, it would lead to an extremely incongruous and altogether untenable consequences. Such a conclusion would amount to this that the employee would be entitled to be reinstated by an order which could not be made by a tribunal because there was no valid pending reference. This would mean that an employee who seeks the assistance of the industrial tribunal under S.33a of the Act would be given a statutory relief, although the precondition of grant of such a relief has ceased to exist, and cannot be satisfied. This conclusion would have been enough to dispose of this appeal but since several other points mentioned above were canvassed before us I shall now proceed to deal with the same. 7. IT was argued by counsel for the appellant that the third respondent was not a "workman" within the meaning of that term in sec. 2 (s) of the Act and since he was not such a workman, there could be no industrial dispute as contemplated by section 2 (k) of the act. Therefore it was argued, there could be no reference to a tribunal under S.10 (1) of the Act nor could an application be made by the third respondent under S.33a of the Act. Therefore it was argued, there could be no reference to a tribunal under S.10 (1) of the Act nor could an application be made by the third respondent under S.33a of the Act. In other words it was contended that the third respondent was not a workman within the definition of that term in the Act, and not being a workman there could be no industrial dispute and he was not entitled to maintain an application under S.33a of the Act. In support of this contention reliance was placed on the petition filed by the third respondent before the Third Industrial tribunal. In paragraph 7 of this petition the third respondent stated that his principal duties and functions as Sales representative had always been to travel outside Calcutta to push the goods of the company and to secure customers for such goods. In the preceding paragraph he stated that he was appointed in June, 1946 as a Sales representative. Relying on these statements in the petition counsel for the appellant argued that plainly on his own admission the third respondent was a Sales Representative and his principal duties as such had always been to travel outside Calcutta to promote the sales of the appellant's goods. In the second half of paragraph 7, the third respondent stated that during the time he was in Calcutta his work, function and duties had not been specified but were of a hotchpotch character and were of manual technical or clerical nature. Relying on this statements in the petition, counsel for the appellant contended that it was amply clear that the principal duties of the third respondent was to promote sales and for this purpose to travel outside Calcutta and canvass the goods manufactured by the appellant within the area allotted to him. Counsel for the appellant also referred to the oral testimony of the third respondent adduced before the labour Court, in which he said that he was a Salesman on salary basis. He further said that he had to go to moffusal district to sell Shalimar paints in accordance with tour programmes prepared by the Divisional Manager, and in the sales division the salesman was the lowest category except the clerks. He also stated that there was no clerk under him to prepare bills and challans which he prepared himself. He collected orders and had to supply goods to different customers. He also stated that there was no clerk under him to prepare bills and challans which he prepared himself. He collected orders and had to supply goods to different customers. He also prepared reports with regard to the work clone by him. In cross-examination he said that it was his duty to express his views about the financial condition of the distributor and also about the amount of help that should be given to the distributor. Mr. Ghosh also relied upon the oral testimony of his client and also on the reports that that he prepared, and argued that a substantial part of his client's duties was of a clerical nature. 8. IN support of his contention mentioned above Mr. Ginwalla relied upon a decision of the Supreme court, (3) Burma Shell Oil, Storage and Distributing Co. of India Ltd. v. Burma Shell Management Staff Association and Ors. A.I.R. (1971) S.C. 922 in that case a similar question was raised namely whether the Sales Engineering representative of the company was a workman within the meaning of that term in the Act. It was found that the employee concerned who was a Sales engineering Representative had to guide the industrial concerns in the use of fuels and lubricants and he had to do some manual labour in demonstrating the method by which fuels and lubricants were to be used. It also appeared on evidence that he was employed to support the sales efforts by providing after-sale service. The conclusion of the tribunal in that case that the employee was not employed on supervisory work was upheld by the Supreme Court. Dealing with the technical work done by the employee in that case, it was held that the amount of technical work that a Sales Engineering Representative did was ancillary to his main duty of promoting sales and giving advice and the mere fact he was required to have technical knowledge for this purpose did not make his work, technical work. On this finding it was held that the Sales Engineering Representative was not a workman. On this finding it was held that the Sales Engineering Representative was not a workman. Dealing with the case of the district Sales Representative it was held that he was principally employed for the purpose of promoting sales of the company and his main work was to do canvassing and obtain orders though he had to carry on some correspondence, but that was incidental to the main work of pushing sales of the company. It was also held that he was the company's representative in his district responsible for all matters affecting the company's interest. On these facts it was held that the District Sales Representative was not a person who fell within any of the 4 classes because the work could not be held to be either manual, clerical, technical or supervisory and that the work of canvassing and promoting sales could not be included in any of the 4 classifications and therefore he was not a workman within the definition of that term in the Act. Counsel for the appellant placed strong reliance on this decision and argued that the duties of the third respondent were same as those of a Sales Engineering representative and District Sales representative in Burma Shell company's case. He argued that the only duty of the third respondent was to promote the sale of the goods manufactured by the appellant and for this purpose to canvas the goods for sale and to book order for supply of the goods. Reliance was also placed by Counsel for the appellant on this question on another decision of the Supreme Court, (4) Messrs May and baker (I) Ltd. v. Their Workmen A.I.R. (1967) S.C. 678. In that case also it was held where the main work of the employee was canvassing, and the clerical or manual work that he did was incidental to the main work of canvassing and could not take more than a small fraction of the time for which he had to work, and therefore such an employee could not be held to be a workman. 9. MR. Ghose on the other hand relied upon a decision of the Supreme Court, (5) Western India Match Co. Ltd. v. Their Workmen A.I.R. (1964) S.C. 472. In that case it was found on evidence that 75 percent of the time of the workmen was taken up in doing writing work. 9. MR. Ghose on the other hand relied upon a decision of the Supreme Court, (5) Western India Match Co. Ltd. v. Their Workmen A.I.R. (1964) S.C. 472. In that case it was found on evidence that 75 percent of the time of the workmen was taken up in doing writing work. It was on this finding of fact that it was held that the employees involved in that case were workman. I do not see how this decision is of any assistance to Mr. Ghosh's client because the finding was based on evidence that the greater part of the work of the employees was confined to writing work. 10. IT seems to me that the contention of counsel for the appellant is well-found. There can be little doubt that the principal duty of the third respondent was to promote sales of the company's goods, book orders and submit reports to his employer with regard to the progress made by him in pushing the sale of the goods. It cannot be said that the principal duty of the third respondent involved writing work. Mr. Ghosh argued that substantial part of the work done by his client was to do writing work, namely writing out reports and making recommendation regarding engagement of distributors and credit facilities to be granted to them. It is true that he had to do some amount of writing work, but that was purely incidental to his main work namely promotion of sale. A difference must necessarily be made between principal work of an employee and the ancillary duties involved in doing the principal duty. Even though a salesman is required to have some technical knowledge and even though he is required to have such knowledge in discharging his duties his principal duties still remain the promotion of sale of the appellant's goods and he certainly was not doing any supervisory work and there was little manual work involved in the discharge of his duties. In these facts it cannot but be held that the third respondent was not a workman within the meaning of that term in the Act. It was argued by Mr. Ghose that this Court in exercise of its writ jurisdiction should not investigate into question of facts, nor should it enter into an appraisal of evidence adduced before the tribunal, in dealing with a writ petition. It was argued by Mr. Ghose that this Court in exercise of its writ jurisdiction should not investigate into question of facts, nor should it enter into an appraisal of evidence adduced before the tribunal, in dealing with a writ petition. It was contended that the disputed questions of facts should not be entertained by this Court on a writ petition. In support of this contention reliance was placed by Mr. Ghose on a decision of the Supreme Court (6) Management of Express Newspapers (P) Ltd. v. The Workers and ors. A.I.R. (1963) S.C. 569. In that case there was transfer of the publication of two journals from one ownership to another and also from one place to other. This transfer was followed by a strike and a lock-out. A reference was made under S.10 (l) (d) of the Act. It was held that industrial courts were familiar with the nature of the problems raised by a preliminary issue with regard to the jurisdiction of the tribunal and that questions of complicated character could not be satisfactorily dealt with on affidavits. It was further held that normally the questions of facts, though they might be jurisdictional facts the decision of which depended upon appreciation of evidence should be left to be tried by the tribunal who after trying the preliminary issue regarding jurisdictional facts came to its conclusion and that normally the preliminary issue regarding jurisdiction should not be canvassed before the High Court in exercise of its writ jurisdiction. It was, however, observed that this was not an inflexible rule and that whether or not preliminary facts should be tried by the High Court in writ petition should depend upon the circumstances of the case. This decision to my mind is no assistance to Mr. Ghoses client because the matter has not been brought before this Court only on a preliminary issue. The question of jurisdiction namely whether the third respondent was a workman has been decided by the labour court who have disposed of the matter by making an order for re-instatement. Secondly, it is to be noticed that there is no question of any further evidence being adduced on the question whether the third respondent is a workman. The trial court had remanded the matter to the labour court to decide the question, namely, whether the third respondent was a workman, on the evidence already on record. Secondly, it is to be noticed that there is no question of any further evidence being adduced on the question whether the third respondent is a workman. The trial court had remanded the matter to the labour court to decide the question, namely, whether the third respondent was a workman, on the evidence already on record. The remand was not made for the purpose of taking fresh evidence before coming to a decision. 11. Mr. Ginwalla on the other hand contended that since the question involved was one relating to jurisdictional facts the writ court was entitled to give its own conclusion on such a question after taking into consideration the evidence adduced on behalf of the parties. He argued that the tribunal could not assume jurisdiction by deciding jurisdictional facts wrongly. In support of this contention he relied upon a decision of the Supreme Court (7) The State of Madhya Pradesh and ors. v. Sardar D. K. Jadav and ors. A.I.R. (1968) S.C. 1186. In that case it was held that it was well established that when the jurisdiction of an administrative authority depended upon a preliminary finding of fact, the High court was entitled in a writ proceeding to determine upon its own independent judgment whether or not that finding was correct. In my view there is no substance in Mr. Ghose's contention that the writ court cannot take into consideration the evidence adduced by the parties for coming to a decision namely whether the tribunal had jurisdiction to entertain the application of the third respondent under S.33a of the Act. 12. THE next point to be considered is whether the workman could be said to be "a concerned workman" within the meaning of that term in sub-sections (1) (2) and (3) of section 33 of the Act. It was argued by counsel for the appellant that because the name of the third respondent was not included in the list of the employees who claimed compensatory allowance in the main dispute which was the subject-matter of reference under S.10 (1) of the Act, he could not be said to be a "concerned workman". It was argued by counsel for the appellant that because the name of the third respondent was not included in the list of the employees who claimed compensatory allowance in the main dispute which was the subject-matter of reference under S.10 (1) of the Act, he could not be said to be a "concerned workman". It was argued that the third respondent was in no way interested in the claim of compensatory allowance and in fact he made no such claim and further that any award that might have been made by the tribunal in the reference under S.10 (1) of the Act, would not have touched the third respondent. It was contended that the third respondent was not a "concerned workman" and not being so, S.33 of the Act was not attracted in this case. It was further argued that since the third respondent was not a "concerned workman", there could be no contravention of S.33 of the Act and therefore he could not make an application under S.33a of the Act. Mr. Ghose on the other hand contended that in order to be a "concerned workman" it was not necessary that he should be directly or indirectly interested or involved in the dispute nor that he should be interested in the award that might be made by the tribunal. He argued that it was enough to make an employee a "concerned workman" if he was a member of the union which sponsored the dispute. In support of this contention reliance was placed by Mr. Ghose on a decision of the Supreme Court, (8) Messrs New India Motors (P) Ltd. v. K. T. Morris A.I.R. (1960) S.C. 875. In that case it was held that the expression "workman concerned" could not be limited only to such of the workmen who were directly concerned with the dispute and the expression included workmen on whose behalf the dispute had been raised as well as those who were bound by the award which might be made by the tribunal. In my view the contention of Mr. Ghose on this question should be upheld. In my view the contention of Mr. Ghose on this question should be upheld. But the question whether the third respondent is a "concerned workman" is wholly irrelevant in this case, since I have come to the conclusion that he is not a workman within the definition of that term in the Act and if he is not a workman which in my view he is not, an investigation into the question whether he is a "concerned workman" is altogether immaterial. Before proceeding to deal with the last contention raised by counsel for the appellant I should refer to one other question raised by Mr. Ghose. He argued that T. K. Basu, J. could not to have made the order quashing and setting aside the order of reference under S.10 (1) of the Act, as that was an administrative order. It was argued that no writ could be issued for quashing on order which was at administrative in nature. In support of this contention mr. Ghose relied upon a decision of the supreme Court (9) Radhyshyam Khare and v. State of Madhya Pradesh and ors. A.I.R. (1959) S.C. 107. I do not think it is open to counsel for the third respondent to attack the validity or correctness of the order made by T. K. Basu, J. That order has become final and is binding on the parties and cannot be collaterally challenged in this appeal. The union was a party in the writ petition in which the order was made by T. K. Basu, J. and Mr. Ghose's client as a member of the union is bound by that order and it is by no means to open to him to challenge the correctness of the order in this appeal. Mr. Ginwalla however contended that whether the administrative order had been made on irrelevant consideration or there has been a failure by the administrative authority to apply its mind to the relevant matter, appropriate writs could be issued by the court to stop any further action being taken on the basis of such an administrative order in support of this contention he relied upon a decision reported in 73 C. W. N. 315. As I have said earlier it is not for us in this appeal to consider the question of correctness of the order made by T. K. Basu, J. it is not therefore necessary for me to go into the question any further. 13. TO turn now to the last point urged by counsel for the appellant namely that the trial court erred in remitting the matter back to the tribunal for a fresh hearing on the question whether the respondent No. 3 was a workman on the evidence already on record. In my view since there was no question of taking further evidence and since no fresh investigation was directed on any question which was the subject-matter of adjudication by the labour court, the court below ought not to have remitted the matter back to the tribunal. Quite clearly the trial court was of view that the evidence necessary for deciding the matter was already on record, and also that decision of the tribunal on the question whether the third respondent was a workman was not correct. In this situation I do not see any justification for remitting the matter back to the tribunal for fresh decision on the question whether the respondent No. 3 was a workman. As I have said earlier the question whether the respondent no. 3 is a workman is a jurisdictional question and the decision of such a question necessarily involves investigation of jurisdictional facts All the material evidence being already on record the trial court should have, in my view, come to its own conclusion on facts already on record instead of remitting the same back to the tribunal. The tribunal could assume jurisdiction if, and only if, the respondent No. 3 is a workman and therefore the tribunal could not assume jurisdiction by deceasing the question wrongly. In this view of the matter the contention of counsel for the appellant on this question must be upheld. In my view the trial court was right in setting aside the award but should not have remitted it back to the tribunal for a fresh hearing on the question whether the third respondent is a workman within the Act. 14. In this view of the matter the contention of counsel for the appellant on this question must be upheld. In my view the trial court was right in setting aside the award but should not have remitted it back to the tribunal for a fresh hearing on the question whether the third respondent is a workman within the Act. 14. BEFORE concluding I should notice another point taken on behalf of the appellant, namely, that the first respondent had no jurisdiction to transfer the application of the third respondent under S.33a of the Act, to the second respondent. This point was not pressed before us by Counsel for the appellant but he wanted to have it recorded that he was not abandoning it. In the result, this appeal is allowed. The judgment and order are set aside, except and in so far as the award has been set aside. The Rule is made absolute. Each party is to bear its costs.