Bombay High Court
Abbott Healthcare Pvt. Ltd. vs Nicholas Employees Union on 27 February, 2026
2026:BHC-OS:5485
NEETA SAWANT WPL No.29514 of 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.29514 OF 2024
Piramal Healthcare Ltd. ...Petitioner
Versus.
Nicholas Employees Union and Another. ...Respondents
WITH
WRIT PETITION (L) NO.26875 OF 2024
Abbott Healthcare Pvt. Ltd ...Petitioner
Versus.
Nicholas Employees Union and Another. ...Respondents
_______________________________________________________________________________
Mr. J.P. Cama, Senior Advocate with Ms. Safiya Patel i/b Mr. Yash Vyas,
for Petitioner in WPL/29514/2024 & for Respondent No. 2 in
WPL/26875/2024
Mr. Vishwajeet P. Sawant, Senior Advocate with Mrs. Nutan R.
Patankar & Mr. Prabhakar M. Jadhav, for Petitioner in WPL/26875/2024
& for Respondent No. 2 in WPL/29514/2024
Mr. A.S. Peerzada with Mr. Iqbal Shaikh & Mr. Sudhakar Pandaram, for
Respondent No. 1 in both Petitions
_______________________________________________________________________________
CORAM: SANDEEP V. MARNE, J.
Digitally signed by Reserved On: 5 February 2026.
NEETA
NEETA SHAILESH
SHAILESH SAWANT Pronounced On: 27 February 2026.
SAWANT Date:
2026.02.27
21:54:19
+0530
Page No. 1 of 33
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NEETA SAWANT WPL No.29514 of 2014
Judgment:
1) These Petitions are filed challenging the Award dated 6
April 2024 passed by the Presiding Officer, Industrial Tribunal, Mumbai in Reference (IT) No.30 of 2011. By the impugned Award, the Industrial Tribunal has directed the Petitioners to abolish different designations like Territory Business Manager, Marketing Executive (ME), etc. and to absorb the employees working with those designations as Medical Representatives in the grade and classification as provided in the Settlement dated 25 February 1999. The Industrial Tribunal has further directed Petitioners to fill up the existing as well as future vacancies of Sales Promotion Employees by recruiting fresh candidates as Medical Representatives in the grade and classification as per the Settlement dated 25 February 1999. The Industrial Tribunal has further directed Petitioners to give monetary and other benefits to all workmen performing the work of sales promotion and to those who are designated as Territory Business Manager, Marketing Executive, etc.
2) Two separate Petitions are filed by two employers challenging the same Award. Abbott Healthcare Pvt. Ltd. (Abbott) has purchased Healthcare Solution Business of Piramal Healthcare Ltd. (PHL) vide Business Transfer Agreement dated 21 May 2010, on account of which, the employees from various departments/divisions of Healthcare Solution Business of PHL have been transferred to Abbott. Therefore, both PHL as well as Abbott were pleaded as first party to the Reference and Industrial Tribunal has apparently applied the operative directions both to PHL and Abbott. This is the reason why both of them Page No. 2 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 have filed separate Petitions challenging the same Award of the Industrial Tribunal.
FACTS
3) PHL is an incorporated company engaged in the business of manufacturing, marketing, selling and distribution of pharmaceutical products. It had employed several employees in sales promotions activities including Medical Representatives (MR). According to PHL, several MRs were offered promotions to the post of Business Development Manager (BDM) in the year 2003, which post was subsequently redesignated as Territory Business Manager (TBM). It is contended that TBMs of PHL used to report to Area Business Manager, who in turn reported to Zonal Business Managers. Those Sales Promotions Employees (SPE), who rejected the offer of promotion continued to perform the work of SPE on the post of MR. According to the PHL, about 180 MRs accepted promotion offers and only few of them, who refused promotion offers continued to work as MRs. It is PHL's contention that duties and responsibilities of MR are distinct from that of TBM. At that time there were following five unions functioning in the PHL:-
(i) Roche Anglo French Employees Union.
(ii)Rhone Poulenc Employees Union.
(iii)Boehringer Mannheim India Employees Union.
(iv)Sarabhai Piramal Pharmaceuticals Ltd and Allied Concerns Employees Union.
(v) Negotiating Committee of PSRs affiliated to FMRAI.Page No. 3 of 33
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4) However, according to the Respondent-Union, the promotions given to the MRs were sham and bogus and that the promotions were aimed solely at the objective of reducing unionised cadre by giving glorified designations to SPEs. The Respondent-Union contends that even if their designations were changed to TBM, the personnel occupying the said post continued to discharge same duties and responsibilities as SPEs on par with MRs.
5) The entire healthcare solution business of PHL was acquired by Abbott vide Business Transfer Agreement dated 21 May 2010, which came into effect on 8 September 2010. Respicare Division was one of the several divisions which came in the fold of Abbott from PHL after acquisition of healthcare solution business. Abbott contends that as a result of the acquisition of healthcare solution business, several employees of PHL came to be transferred to Abbott w.e.f. 8 September 2010. Accordingly, letters of release and acceptance were executed by PHL and Abbott respectively. Abbott contends that only MRs came to be transferred to it and no BDM/TBM were transferred. It is further contended by Abbott that it did not employ any TBMs, post acquisition of the business. So far as the Respondent-Union is concerned, it is claimed that only 37 of its members, who were in the cadre of MR came to be transferred to Abbott. Abbott contends that the Respondent-Union did not have any locus at any point of time either to represent either BDMs or TBMs.
Page No. 4 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 6) In the above background, Respondent-Union raised demand
on 25 May 2009, which led to reference order by the appropriate Government dated 28 November 2011 to the Industrial Tribunal. The Schedule of Reference was as under:
1. The Company should abolish the different designations like Territory Business Manager/ Marketing Executive etc as those employees, in fact, are doing the work of Sales Promotion and the said Employees should be absorbed as Medical Representatives in the grade and the classification as provided in the settlement dated 25th February 1999 and further settlement/Award modifying the said settlement.
2. The Company should fill-up the present vacancies as mentioned in Annexure"A" and future vacancies of the Sales Promotion Employees by recruiting fresh candidates as Medical Representatives in the grade and classification as provided in the settlement dated 25th February 1999 and further Settlement/Award modifying the said settlement.
3. The Company should maintain the work force compliment of MRs not less than as existing in January 2003.
4. The company shall not give the work of sales promotion, to any employee designated in the management/executive/officer/staff cadre.
5. In the event, the company gives higher monetary or other benefits from time to time to those who are designated Territory Business Manager/Marketing Executive etc. or by whatever nomenclature, as compared to the workmen doing the work of sales promotion, then the Medical Representatives and other workmen doing the sales promotion work shall be given an amount of money or benefit to equalize the wages and benefits between the sales promotion employees and the purported Territory Business Manager/Marketing Executive etc. or by whatever nomenclature.
7) The Respondent-Union filed Statement of Claim dated 10 October 2013 justifying its demands. The claim of the Respondent-Union Page No. 5 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 was resisted by PHL and Abbott by filing their respective written statements. Parties led evidence in support of their respective contentions. The Industrial Tribunal has made Award dated 6 April 2024 answering the Reference in affirmative. It has directed the Petitioners to abolish designation of TBM, ME, etc. and to absorb them as MRs. Petitioners are directed to fill up vacancies of sales promotion employees by recruiting fresh candidates as MRs. The Petitioners are further directed to pay same monetary and other benefits to sales promotion employees at par with TBM/ME etc. Aggrieved by Award dated 6 April 2024, PHL has filed Writ Petition (L) No.29514 of 2024 and Abbott has filed Writ Petition (L) No.26875 of 2024.
SUBMISSIONS
8) Mr. Cama, the learned Senior Advocate appearing for the PHL submits that the Industrial Tribunal has erred in passing the impugned Award, which affects employees, who are not party to the dispute. That the entire Award is directed against employees working as TBM, whom the Respondent-Union does not represent. He would submit that most of the MRs have accepted promotions to the post of TBM out of their own will in the year 2003. That the direction of the Industrial Tribunal would result in their reversion without even hearing them. That the Industrial Tribunal thus committed fundamental jurisdictional error in directing reversion of employees, who have willingly accepted the promotions. That while espousing the cause of 35 odd MRs, the Respondent-Union cannot force over 180 TBM, who accepted promotions in the year 2003. That the directions issued by the Industrial Tribunal in Page No. 6 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 the impugned Award are inconsistent and incapable of being implemented. He submits that there is no similarity in the duties and responsibilities of TBM and MRs. That mere performance of same duties cannot be a reason for treating two classes of employees as one class. He relies on judgment of the Apex Court in V. Markendeya and Ors Versus. State of Andhra Pradesh1 in support of the contention that principle of equal pay for equal work cannot be applied where there is historically separate classification. He relies on judgment of the Apex Court in Steel Authority of India Limited and Others Versus. Dibyendu Bhattacharya2 in support of his contention that there has to be complete and wholesome identity between a group of employees claiming identical pay scales and that equal pay for equal work is not a fundamental right. He submits that there is historical difference in salary and emoluments between TBMs and MRs. That beyond producing a chart, no other evidence was produced for establishing any similarity in the duties and responsibilities of TBMs and MRs. That even the said chart also bears out difference in duties and responsibilities. He relies on judgment of the Apex Court in State of Orissa & Ors. Versus. Balaram Sahu & Ors. 3 in support of his contention that mere similarity of functions is not sufficient and the same would not attract the principle of equal pay for equal work. Mr. Cama would therefore pray for setting aside of the impugned Award.
1 1989 3 SCC 191 2 2011 (11) SCC 122 3 2002 (3) CLR 947 Page No. 7 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 9) Mr. Sawant, the learned Senior Advocate appearing for
Abbott would submit that the operative directions in the Award, apart from being inconsistent, are wholly inexecutable so far as Abbott is concerned. That the impugned Award is beyond the terms of Reference. He submits that only 180 MRs in employment of PHL had opted for promotion to the post of BDM, later redesignated as TBM and none of them were in Respicare Division of PHL, which has come over to Abbott. That therefore none of the TBMs are transferred to Abbott nor Abbott has ever employed any MR or TBM and ME in Respicare Division. Mr. Sawant has further submitted that the Respondent-Union has no locus standi to represent any of the employees of Abbott. None of them is party to the Reference to whom Respondent-Union represents or employed by Abbott. That last settlement between the Respondent-Union and PHL was of the year 1999 to which Abbott was not a party. That therefore the Industrial Tribunal has grossly erred in directing implementation of settlement terms by the Petitioner. That BDM-TBMs and MEs of PHL did not authorise the Respondent-Union to raise any demand nor prosecute the Reference. That the impugned Award adversely affects service conditions of TBMs and MEs, who are not parties to the Reference. Mr. Sawant would accordingly pray for setting aside the impugned Award.
10) The Petitions are opposed by Mr. Peerzada, the learned counsel appearing for Respondent No.1-Union in both the Petitions. He submits that the Industrial Tribunal has conducted indepth analysis of all activities of PHL in deliberately granting glorified designations to sales promotion employees, which is aimed solely at the objective of reducing unionised cadre and has accordingly directed restoration of the Page No. 8 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 position, which existed prior to such redesignations. That TBMs and MEs are nothing but MRs holding different designations but performing same duties and responsibilities. That therefore awarding higher wages to TBM and ME is ex-facie discriminatory and the Tribunal has rightly sought to achieve equality between the employees performing same duties and responsibilities. Mr. Peerzada refers to the Sales Promotion Employees (Condition of Service) Act, 1976 (SPE Act) and invites attention to the phrase used in Section 1 therein 'by whatever name called' and submits that designation of employee engaged in sales promotion activities is irrelevant.
11) Mr. Peerzada submits that Memorandum of Settlement was signed on 25 February 1999 by Respondent-Union with Nicholas Piramal India Ltd., which was later renamed as PHL and the settlement was specifically in respect of MRs. That the settlement covers all MRs employed by PHL in its offices and factories across the country and the same did not classify them into any of the categories such as TBMs, MEs. That at that point of time, there were 312 MRs, which were systematically reduced to 37 by granting redesignations to others. That now there are 4000 TBMs as against only 37 MRs. That this redesignation of MRs to TBMs is without issuing notice of change as contemplated under Section 9A of the Industrial Disputes Act, 1947 (ID Act) r/w items 7 and 11 of the Fourth Schedule. That the illegal change is effected by giving high sounding designation of TBM to MRs but both perform duties and responsibilities of sales promotion employees. That this amounts to unfair labour practices within the meaning of item 4(e) of fifth schedule to ID Act. This discrimination is practiced by giving higher Page No. 9 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 wages to MR classified as TBM with the aim of wiping out Dearness Allowance to non-unionised employees and lesser wages to the unionised MRs. He relies on Section 2(ra) of the ID Act referring to unfair labour practices specified in Fifth Schedule and Section 25-T of the ID Act dealing with prohibition of unfair labour practices.
12) Mr. Peerzada further submits that the Petitioners' witness Mr. Mohammed Bashir Ahmed gave admission in his cross examination that MRs were designated as BDM and later as TBM and that their service conditions were uniform all over India. He admits that no permanent employee reports to TBM. He also admitted that sale promotion is part of the duties and responsibilities of TBM and would visit 12 doctors a day as a part of sales promotion activity. He also refers to the evidence of three Respondent-Union witnesses, one of whom (Mr. Aamir Khan) working as TBM and who has given admission of activities of sales promotion. That the Petitioners deliberately avoided examining any of its employees from category of TBM as a witness. Mr. Peerzada would further submit that all the employees engaged in sales promotion activities otherwise have community interest and classification of post of MR is nothing but a camouflage to avoid the clutches of labour laws. That such act renders provisions of SPE Act otiose. He submits that judgment in V. Markendeya and amp and Ors (supra), State of Orissa & Ors. Versus. Balaram Sahu & Ors and Steel Authority of India Limited and Others Versus. Dibyendu Bhattacharya (supra) relied on by PHL actually supports the case of the Respondent-Union. He submits that the Industrial Tribunal has rendered a well-reasoned Award exhibiting no perversity in the findings. That therefore, there is no Page No. 10 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 warrant for interference in the impugned Award. He prays for dismissal of the Petition.
CONSIDERATION OF SUBMISSIONS AND ANALYSIS
13) The Respondent-Union espoused the cause of MRs being deliberately reclassified as BDMs/TBMs and MEs solely for the purpose of ensuring that the Labour Laws do not apply to them and that they do not form unions. The Respondent-Union essentially espouses the cause of MRs and initiated the reference mainly for the purpose of bringing back employees classified as BDM/TBMs and MEs back as MRs so that they continue to be its members for the purpose of collective bargain with the employer. The Respondent-Union felt that the promotions granted to MRs as BDM/TBM were sham and bogus, aimed essentially at ending their union membership and exclusion from Labour Laws. With this grievance, demands were raised, which resulted into reference by the Appropriate Government to the Industrial Tribunal. The terms of reference have already been culled out in preceding part of the judgment. The Industrial Tribunal has answered the Reference in the affirmative and has issued following operative directions in the impugned Award:
1) The reference is answered in the affirmative.
2) It is held and declared that the first party should abolish the different designations like Territory Business Manager / Marketing Executive etc. as those employees in fact are doing the work of sales promotion and the said employees should be absorbed as medical representative in the grade and classification as provided in the settlement.
3) The first party should fill up the present vacancies as per Annexure and future vacancies of sales promotion employees by recruiting the Page No. 11 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 fresh candidates as medical representative in the grade and classification of as per settlement dated 25.02.1999 and maintain the work force.
4) The first party company is to give higher monetary or other benefits from time to time to those who are designated as Territory Business Manager/Marketing Executives or by whatever nomenclature as compared to the workmen doing the work of sales promotion shall be given an amount of money / benefits to equalize the wages and benefits between the sales promotion employees and the Territory Business Managers.
5) No order as to costs.
6) Copy of this award be forwarded to the appropriate government for proper action.
14) It must be observed at the very outset that the directions in the operative part of the Award are not very clearly worded and it takes some efforts to understand the exact purport of the directions. However, parties broadly agree that following three directions are issued by the Industrial Tribunal in the operative part of the Award:
(i) abolition of designations of TBMs and MEs and absorption of employees working as TBMs and ME as MRs in the grade and classification as provided in the Settlement dated 25 February 1999.
(ii) filling up of all vacancies indicated in the Annexure to the Reference as well as future vacancies of SPEs by recruiting fresh candidates as MR.
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15) After having comprehended the exact purport of the directions in the operative part of the Award, now I proceed to consider the manner in which the findings in the Award are rendered. It must be mentioned that the learned Member has rather written a prolific Award running into 168 pages. After taking note of facts and pleadings and after setting out issues at page No.34 of the Award, the Industrial Tribunal has devoted as many as 88 long pages in merely recording submissions of the Advocates appearing for the parties. Thereafter the Industrial Tribunal has devoted further 15 pages of the Award in taking note of depositions of the witnesses. It has thereafter devoted about 14 pages in mere reproducing comparison of duties and responsibilities of TBMs and MRs. Its consideration actually starts at page 153 of the Award and ends at Page 167. Thus, in the lengthy Award running into 168 pages, the reasons are to be found in extremely limited part thereof. Be that as it may. I proceed to examine the correctness of findings recorded by the Industrial Tribunal as well as the operative directions issued by it in the impugned Award.
16) Petitioners have raised a strong objection that the directions in the operative part of the Award are both inconsistent as well as inexecutable.
Direction for Reversion of TBMs as MRs
17) In direction in Para No.2 of the operative part of the Award, the Industrial Tribunal has directed abolition of different designations such as TBM, ME, etc. and absorption of TBMs and MEs as MRs. Consequence of this direction is that TBMs and MEs will have to be Page No. 13 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 reverted as MRs. Thus, if direction No.1 in the operative part of the Award is implemented, every TBM and ME working in PHL and Abbott will have to be reverted as MR. The issue for consideration is whether TBMs and MEs desire so? The answer to this question is emphatically in the negative. The Industrial Tribunal did not have before it TBMs or MEs praying for their reversions and re-designation as MRs. TBMs and MEs not only enjoy higher position and different designations, but they also draw higher salary and wages than MRs. This is clear from the very fact that the Respondent-Union sought equalization of wages of MRs and TBMs. Thus, irrespective of the case set up by Respondent-Union of sham and bogus promotions of MRs as BDM/TBM, it is a matter of fact that TBMs do enjoy better service conditions as compared to MRs. However, by the impugned Award, the Industrial Tribunal has directed absorption of TBMs and MEs as MRs. This is done in absence of any TBM or ME being impleaded as party to the Award. Admittedly, TBM and ME are not members of the Respondent-Union. They did not authorise Respondent-Union to espouse their cause. No TBM or ME ever demanded redesignation or reversion as MR. Therefore, whether the Tribunal could have directed their reversion as MR is the issue for consideration and the answer to the said issue necessarily has to be in negative.
18) It is elementary that Courts and Tribunals cannot grant relief in favour of a party before it which adversely affects another person who is a not party to the proceedings. The Union and its members (who are the MRs and who refused to accept promotions as BDM/TBMs) desired that their erstwhile cohorts, who voluntarily opted for higher Page No. 14 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 positions as BDM/TBMs, should be brought back as MRs so that they can continue to be members of the Union. Thus, for securing their interest of running the Union, MRs have actually secured an order against TBMs behind their back. The Industrial Tribunal has failed to appreciate this fundamental position that it was directing reversions of TBMs behind their back.
19) The Industrial Tribunal has failed to appreciate that it was not deciding the reference at the instance of any TBM. Even if it is assumed arguendo that the grant of designation of TBMs to SPEs is sham or bogus or that the personnel occupying the positions as TBMs are nothing but MRs in real sense and that glorifying designation of TBM is granted deliberately to take them out of unionized cadre, such grievance ought to have been raised by the TBMs and not by MRs. Persons working as MRs cannot flight a battle for those who now occupy the designations as TBMs. This is particularly true since TBMs are apparently not aggrieved by their exclusion from unionized cadre. However, the impugned Award, if implemented, would result in reversion of all TBMs as MRs. The Industrial Tribunal has failed to appreciate this basic defect in the reference and has erroneously proceeded to answer the same in the affirmative by directing reversion of all TBMs as MRs.
20) In my view therefore the Industrial Tribunal has committed a jurisdictional error in directing reversion /absorption of TBM and MEs and MRs behind their back. The direction is in gross violation of principles of natural justice and in conflict with basic notions of justice. In its zeal of retaining union membership, the Respondent-Union sought Page No. 15 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 relief of reversion of TBMs and MEs as MR without even realizing that it no longer represents them nor any TBM or ME has filed any litigation seeking their redesignation as MR. Direction No.1 of the impugned Award is thus aimed solely at ensuring fitment of TBM and ME in the unionised cadre, which relief TBM never sought. In my view therefore, operative direction No.1 in the Award is patently illegal and deserves to be set aside.
21) Even if the aspect of grant of relief of reversion of TBMs or MEs as MRs behind their back is to be momentarily ignored, in my view, grant of such relief was otherwise not warranted. According to the Respondent-Union, the promotions are sham and bogus and are granted for deliberately removing the personnel from the category of SPEs so that they do not form union. It must be noted here that promotions were granted in the year 2003 whereas, the demands were raised by the Respondent-Union in the year 2009. As observed above, none of the promoted individuals had any grievance about their promotions and were happy to accept them. It otherwise sounds illogical that those who are not promoted or those who did not desire promotion are seeking to bring back promoted individuals to lower category of MRs. However, leaving aside this aspect momentarily, I proceed to examine whether grant of relief of redesignation of TBM and ME could otherwise be granted.
22) Perusal of the findings recorded by the Industrial Tribunal would indicate that no reasons are recorded in support of the direction for abolition of designations of TBMs and MEs and for absorption of Page No. 16 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 TBMs and MEs as Medical Representatives. In its lengthy Award running into 168 pages, there is absolutely no discussion as to why abolition of the posts of TBMs and MEs is directed. If the findings of the Industrial Tribunal from para-103 onwards are considered (as pages from 1 to 122 merely records facts and submissions) it is seen that the Industrial Tribunal has merely reproduced depositions of the three witnesses examined by the Respondent-Union and of one witness examined by the Management in paras-105 to 114 of the Award. It thereafter has recorded findings relating to community of interests between MRs and the employees who are designed as TBMs and MEs and whether TBMs and MEs also fall in the definition of the term 'Sales Promotion Employees' under Section 2(d) of the Sales Promotion Employees (Conditions of Services) Act 1967. It thereafter reproduced definition of the term 'workman' under Section 2(s) of the ID Act. However, the Tribunal did not discuss the effect of the said definitions and straightaway proceeded to reproduce the duties and responsibilities of TBMs and MRs in next 14 long pages. After reproduction of duties and responsibilities of TBMs and MRs, the Industrial Tribunal proceeded to hold in para-121 of the Award that there is no difference between the work of TBMs and MRs and that therefore they fall in the category of workman and that there is community of interests between the employees who are designated as TBMs and MEs. It is further held that the Respondent-Union was successful in proving that MRs and TBMs fall in the definition of 'sales promotion employees' and that there is community of interest between them. This is how Issue Nos.8 and 9 are answered in the affirmative.
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The only findings recorded by the Industrial Tribunal in this regard are to be found in paras-119 to 121 of the Award, which read thus:
119) It is needless to mention here that the responsibilities of TBMs and MRs narrated in detail on oath but it was neither denied nor contradicted on behalf of first party company. When the statements made on oath in examination in chief were not denied, it should be taken as admitted. Further the witness of second party at Ex.UW-2 and Ex.UW-3 have categorically stated pre-dominant nature of work of MRS and TBMs. Whereas the witness of first party company below Ex.C-44 categorically deposed that TBMs of company report to Area Business Manager who in turn report to Zonal Business Manager. The Zonal Business Managers are the appointing authorities of TBMs and the appointment letters issued to TBMs are signed by ZBMs. The said witness further deposed that the first party no. 1 made offer of promotion and issued letter to MRs for the position of BDM. The management also informed MRs who did not wish to accept the promotion, that they must inform the management in writing and they would be reverted to the position of MRs. About 180 MRs accepted the promotional officer. Such of the MRs who informed in writing that they did not want to become BDMs were reverted to the post of MRs.
120) The witness further categorically deposed that the MRS write a daily call reports and submitted the same to the ABM. The ABMs are located in various regions of the country and MR is required to submit daily call report to his ABM with copy of his ZBM and ABM approves the tour plan of MR and can make changes in MR's tour plan. There is a settlement between the first party and second party regarding the terms of settlement of employment of MRs. The said witness further deposed that ABM can work any time with the TBM while MR and the union does not allow any manager to do joint filed work unless seven days' prior notice for doing joint field working is given and MRs call average is laid down as per settlement which is ten calls per day. Whereas the TBM meets 12 or more doctors a day depending on the availability of customers and time. Further it has come on record that the SPE's have been appointed by the first party no. 2 by giving them designation as TBMs, PSMs, and KAMs. According to second party, the duties performed by these categories of employees fall within the definition of workman. The said witness in his cross-examination at page no. 34 admits that "TBMs are not entitled to form a trade union in the first party organization." When the SPEs are appointed as per the provisions of Sales Promotion Employees (Conditions of Service) Act as MR, they are designated later on BDM, then TBM, when the initial appointment was of MR, at that time they having protection of law. But they Page No. 18 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 becomes, TBM, the protection of law snatched by the first party by signing, by re-designating as TBM. However, the permanent and perennial nature of work of MR and TBM remains same i. e. promotion and sell of the product.
121) In the light of evidence lead by the parties and observations relied by both the parties, considering the nature and duties and responsibilities of work, there is no difference between work of TBM and MR. Therefore, they fall under the category of workman and there is community interest with the employees who were designed TBMs and MEs, therefore, I have no hesitation to hold that second party union successfully proved that the MRs, TBMs, MEs fall within the definition of sales promotion employees and there is community of interest with the employees. Therefore, these two issues are required to be answered in the affirmative.
23) It is held by the Industrial Tribunal in para-119 that the duties and responsibilities of TBMs and MRs narrated in the examination-in-chief by the first witness of the Respondent-Union are not denied or contradicted by the first party companies and that since the statements in examination-in-chief are not denied, they should be taken as admitted. The first witness of the Respondent-Union, Shri. Dilip Ganesh Kagal was subjected to cross-examination. Perusal of his cross- examination would indicate that his claim of similarity in duties and responsibilities of TBMs and MRs was specifically challenged in the cross-examination, and he was given specific suggestion that TBMs predominantly perform managerial and administrative duties and had greater degree of responsibility and accountability than that of MRs. Thus, the findings recorded by the Industrial Tribunal that evidence of the first witness of the Respondent-Union about similarity of duties and responsibilities of TBMs and MRs was not denied or contradicted by the first party companies is perverse. So far as the evidence of second and third witnesses of the Respondent-Union is concerned, they were also Page No. 19 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 given specific suggestions during cross-examination about difference in duties and responsibilities of MRs and TBMs. Additionally, the management witness also led evidence in support of the claim of difference between duties and responsibilities of MRs and TBMs. However, the Industrial Tribunal has not considered the evidence before it in correct perspective and has assumed that the evidence of the first witness of the Respondent-Union was not contradicted. Even otherwise, if the comparative chart of duties and responsibilities of TBMs/MEs and MRs attached to the affidavit of evidence of Respondent-Union's witness is taken into consideration, there appears to be some difference between the same. While MRs are involved actively in promoting Company's products, the broad role of TBMs is to essentially to prepare strategies for improving sales.
24) In any event, I do not propose to delve deeper into the aspect of comparison of duties and responsibilities of TBMs/MEs and MRs on account of faulty nature of complaint raised by the Respondent- Union. As observed above, the demand was not raised on behalf of TBMs and MEs for the purpose of grant of designation as MRs or for ensuring collective bargaining through unions. The demand was made on behalf of MRs who wanted pulling back of individuals promoted as TBMs and MEs so as to form homogeneous class of sales promotion employees which could be unioned. The demand ought to have been raised by TBMs and MEs if they had a grievance that they are deliberately denied the status of SPEs with a view to ensure that they do not form union and collectively bargain for their rights. If and when TBMs and MEs raise Page No. 20 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 such dispute, the issue of validity of their promotion/redesignation on posts different than MRs can be considered.
25) Mr. Peerzada has made earnest efforts in impressing upon me that the entire scheme is engineered by Multi National Foreign Companies to kill unionisation of MRs and that if the impugned Award is set aside, the SPE Act would remain merely a piece of paper. He has contended that Petitioners have now employed a large work force of over 4,000 employees for carrying out activities of sales promotion of their products but since those employees carry different designations, they are deliberately not being treated as SPEs for the purpose of ensuring their exclusion from the unionised cadre. However, what Mr. Peerzadaa misses is the point that this grievance can be raised by individuals working as TBMs or MEs and not by MRs or their Union. If TBMs or MEs feel aggrieved by denial of right to form Union by not treating them as SPEs, it is for those individuals to raise this grievance. It is too far-fetched to recognise a right in the Union of MRs to take up the battle of TBMs/MEs whom they do not even represent. As of now, it is not even known as to whether any TBMs/MEs are interested in forming a Union or wanting themselves to be treated as SPEs. Therefore, initiation of this litigation at the behest of Respondent-Union does create an impression that it is an litigation for ensuring its own existence rather than protecting rights of any employees.
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Direction for filling up vacancies by recruitment on post of MR
26) The operative Direction No.3 in the Award is for filling up vacancies indicted in the Annexure to the Reference as well as future vacancies of sales promotion employees by recruiting fresh candidates as MR in the grade and classification as per Settlement dated 25 February 1999. Alongwith the Reference, Annexure-A contained list of 167 employees, who had left the job either due to retirement, promotions, resignations or death. The Respondent-Union claimed that the said 167 employees were working as MR and performing activities of sales promotion in PHL and that therefore resultant vacancies must be filled in only by recruitment of new personnel on the positions as MR. They also sought a direction for filling up of future vacancies of SPE cadre by recruitment as only MR. The Tribunal has granted this relief sought for by the Respondent-Union. The direction is to fill up the vacancies as MR 'in the grade and classification as per settlement dated 25 February 1999'.
27) I have gone through the Settlement dated 25 February 1999 executed between the then Nicolas Piramal India Limited and the Respondent-Union. However, Mr. Peerzada was unable to indicate any clause in Settlement dealing with maintenance of separate cadre of MR or any particular number of posts of MR. The Settlement did not contain any contractual obligation on the employer to maintain particular size of MR cadre. The Settlement, though applied to permanent MRs, it basically sought to improve their service conditions in respect of basic salary scale, annual increment, DA, Leaves, Holiday, PF, loan facility, leave travel assistance, special allowances, etc. The Settlement did not Page No. 22 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 mandate maintenance of particular size of MR cadre. Therefore, on mere resignation, retirement or promotion of MR there is no contractual obligation under the Settlement for employer to fill up resultant vacancy by recruiting fresh MR. It is otherwise well settled principle of law that employers cannot be forced to fill the vacancy and it is a matter of discretion for the employer whether to recruit a new appointee against a vacancy or to keep the post vacant. Operative direction No.2 in the impugned Award goes against fundamental principle. It is also contrary to the terms of Settlement dated 25 February 1999, which does not put any obligation for the employer to maintain particular size of MR cadre. In my view therefore, direction No.2 in the impugned Award is unsustainable and liable to be set aside.
Direction for payment of wages and benefits of TBM to MR
28) Though this Court has felt it prudent not to go deeper into the issue of duties and responsibilities of TBMs/MEs as compared to MRs while considering the issue of reversion of TBMs as MRs, the said issue is of significance for considering the direction in para-4 of the operative part of the Award in which the Industrial Tribunal has granted the relief of granting same wages to all SPEs on par with TBMs and MEs. As observed above, the direction in para-4 of the operative part of the award is slightly difficult to comprehend on account of language employed by the learned Member therein. However, what is granted broadly is a direction to give higher monetary and other benefits to every SPEs on par with the ones granted to TBMs and MEs. To paraphrase, it is directed Page No. 23 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 that MRs must be paid same wages, allowances and other benefits as are paid to TBMs and MEs.
29) There is slight inconsistency in the direction in para-4 of the operative part of the Award which envisages payment of higher monetary and other benefits to MRs on par with TBMs and MEs whereas in direction No.2, the Industrial Tribunal has directed abolition of designation of TBMs and MEs. If Direction No.2 is implemented, there would be no TBM or ME in the Company and every individual engaged in the activities of sales promotion would become MR. Therefore, there would be no occasion to compare between the salary, allowances and benefits of MRs with TBMs/MEs. Therefore, directions in operative part in paras-2 and 4 of the Award are clearly inconsistent.
30) However, I proceed to ignore the inconsistency in direction Nos.2 and 4 of the operative part of the Award since grant of direction No.2 is found to be unwarranted on account of union of MRs seeking reversion/down-gradation of individuals occupying better posts of TBMs/MEs as MRs behind their back. Therefore, if direction No.2 in the award is set aside, the demand in respect of direction No-4 for equal pay for equal work would continue to survive on a standalone basis. In fact, I of am of the view that the demand for equal pay for equal work was the only demand which could be made by the Respondent-Union and which could have been considered and decided in the Reference. This is because the demand applied only to MRs who are members of the Respondent- Union. Their grievance is that they are retained on the post of MR only because they refused to accept the glorified designation of BDM in the Page No. 24 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 year 2003 which was latter redesignated as TBM. They therefore complained that they are being given raw deal by payment of lesser salaries and grant of lesser benefits than the ones made available to TBMs. This is how the claim for equal pay for equal work is raised contending that MRs perform same duties and responsibilities as TBMs and MEs.
31) Abbott has admitted that 37 members of the Respondent- Union have been absorbed in its services pursuant to execution of Business Transfer Agreement dated 21 May 2010. It is contended that at the time of filing of Statement Of Claim in the year 2013, the Respondent-Union had only 11 persons as its members and by the time the Petition was filed, the number reduced to 3. On the other hand, the Respondent-Union has contended that there are about 4000 employees engaged in the activities of sales promotion under different designations. Thus, the direction for payment of equal pay for equal work ultimately benefits minuscule number of employees.
32) Perusal of the impugned award would indicate that some discussion is made by the Industrial Tribunal about similarity in duties and responsibilities. However, there is no comparison between wages and other benefits payable to MRs and TBMs/MEs. Perusal of evidence also indicates that comparison of benefits payable in respect of the two posts was not deposed by any of the witnesses. The Industrial Tribunal has presumed that TBMs/MEs receive higher wages and other benefits and has accordingly directed extension of the same to MRs. May be this is Page No. 25 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 done on account of Petitioner's own stand that TBMs/MEs perform higher nature of duties and responsibilities than MRs and that TBM is a promotional post for MRs. The whole thrust of demands raised by the Respondent-Union was on the aspect of unionisation of entire cadre of SPEs and accordingly all the efforts while prosecuting the Reference were towards bringing back individuals promoted/redesignated as TBMs into unionised cadre. This appears to be the reason why no much efforts were made by the Respondent-Union in demonstrating the difference in pay, allowances and other benefits paid to MRs and TBMs. In fact, Demand No.5 in the schedule was itself speculative in nature. Demand No.5 for equal wages was made in the event TBMs/MEs were to be granted higher pay, allowances and benefits.
33) Petitioner-ABBOTT has relied upon Settlement dated 2 July 2013 executed between it and the Respondent-Union in respect of the conditions of service of MRs who were its members. Thus, it appears that various conditions of service of MRs after execution of Business Transfer Agreement dated 21 May 2010 were governed by the terms of Settlement dated 2 July 2013.
34) The promotions of MRs to the posts of BDMs (latter re- designated as TBM) had happened in the year 2003 itself. After raising of demand in the year 2009 which was aimed mainly at bringing back TBMs/MEs into unionised cadre of MR, the Respondent-Union entered into Settlement with Abbott and agreed for terms and conditions including salary wages and other benefits payable to MRs. Having Page No. 26 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 entered into Settlement in respect of the salary, wages and other benefits payable to MRs, could the Respondent-Union independently raise the issue of 'equal pay for equal work' in the Reference which was mainly aimed at bringing back TBMs and MEs to unionized cadre is the issue which the Industrial Tribunal has apparently not answered. The Settlement dated 2 July 2013 was in respect of 72 MRs named at Annexure-A therein, who were paid various ad-hoc amounts as indicated therein. The settlement was executed as per the Charter of Demands dated 12 September 2001 which was referred to Industrial Tribunal for adjudication being Reference IT No. 62 of 2003. The charter of demands was made to PHL upon execution of Business Transfer Agreement dated 21 May 2010, Abbott came to be added to the pending Reference. It was during pendency of the said Reference that Abbott and the Respondent- Union decided to amicably resolve the disputes relating to conditions of service, inter alia of Medical Representatives and this is how Settlement dated 2 July 2013 was entered into. Much before execution of the Settlement dated 2 July 2013, the Respondent-Union had already raised the demands in respect of the alleged illegal change vide letter dated 25 May 2009 which culminated into Reference IT No. 30 of 2011. The Reference was made to the Industrial Tribunal by order dated 28 November 2011. The Reference included Item No.5 relating to payment of equal wages for equal work. Even after reference of Item No.5 vide order dated 28 November 2011, the Respondent-Union thought it appropriate to execute Settlement dated 2 July 2013, which included settlement of conditions of service of MRs. This aspect is completely ignored by the learned Industrial Tribunal while making the impugned Page No. 27 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 award. This is done possibly on account of the position that the main grouse of the Respondent-Union in the Reference No. 30 of 2011 was about reduction of unionised cadre. The Respondent-Union was fighting more for its existence as number of MRs went on depleting with passage of time with only 3 MRs remaining in the service of Petitioner-Abbott, who are members of the Union in Maharashtra. The Respondent-Union was thus attempting to espouse its own cause in ensuring its survival and the demand for bringing back TBMs/MEs as MRs was aimed essentially in that direction. This is a reason why the aspect of equal pay for equal work was not seriously prosecuted by the Respondent-Union and it in fact entered into Settlement with the Petitioner-Abbott 2 years after Reference was made.
35) Once the Settlement dated 2 July 2013 was entered into with the employer-Abott, ordinarily the demand for equal pay for equal work on par with TBMs ought to have been deleted. However the Union proceeded to press the same halfheartedly, while laying main emphasis on the demand for bringing back TBMs into ununionized cadre of MRs. Once Settlement is made, which involves contractual agreement between the parties, the Union is estopped from claiming wages and benefits higher than the ones agreed under the Settlement. This is particularly true when the Settlement is executed during pendency of Reference which included the demand for payment of wages on par with TBMs. When the Reference was pending demanding higher wages and benefits, the Union ought not to have agreed to settle for lesser wages and benefits. However once contractual Settlement is arrived at, the Union Page No. 28 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 cannot turn around and continue to press the demand for wages higher than the ones agreed in the Settlement.
36) Faced with the difficulty of Settlement dated 2 July 2013 coming in the way of demand for equal pay for equal wages to MRs on par with TBMs, Mr. Peerzada has attempted to salvage the situation by submitting that the Memorandum of Settlement dated 2 July 2013 cannot have any effect on the pending Reference No. 30 (IT) of 2011 as the same raised much broader issue of classifying the post of MR as TBM, which demand was raised by the Union on 25 May 2009, which got culminated into Reference (IT) No. 30 of 2011. While what is contended by Mr. Peerzada is correct and mere execution of Settlement dated 2 July 2013 would not foreclose Respondent-Union's right to prosecute the Reference as a whole, the same would not be true in respect of demand for equal pay for equal work. When Union enters into settlement relating to wages and benefits during pendency of Reference also covering the aspect of wages and benefits, it cannot turn around and seek an escape from the Settlement executed with the Management and continue to press the Reference qua demand for higher wages. Therefore, though the Settlement would not have any effect on other issues relating to redesignation of MRs as TBMs, it would most certainly foreclose Respondent-Union's demand for equal wages. It therefore cannot be contended that the Memorandum of Settlement did not touch upon any of the aspect about which Reference (IT) No.30 of 2011 was made. It most certainly covered demand for higher wages and once the Page No. 29 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 Settlement was executed, the Industrial Tribunal could not have adjudicated Demand No.5 for equal pay for equal work.
37) It is also sought to be submitted on behalf of the Respondent-Union that the Settlement dated 2 July 2013 was in respect of an altogether different Charter of Demands dated 12 September 2001 which was referred to Industrial Tribunal for adjudication of Reference IT No. 62 of 2003. Mere difference in the charter of demands would be inconsequential as ultimately the Union agreed for better terms of wages and benefits for MRs on 2 July 2013 despite having full knowledge that those wages would still be lesser than TBMs/MEs. In fact, the effect of execution of Settlement on 2 July 2013 is to accept operation of two separate cadres of MR and TBMs. If the Respondent-Union was firm that every MR must receive wages and benefits as that of of TBM, they ought not to have entered into settlement and ought to have waited for decision of the pending reference.
38) Considering the above position, in my view, even the direction for payment of equal pay for equal work to MRs on par with TBM/MEs cannot be sustained and is liable to be set aside. Since grant of relief of equal pay for equal work is held unwarranted in the peculiar facts and circumstances of the case, in my view, it is not necessary to discuss the ratio of the judgments in V. Markendeya and Ors, Steel Authority of India Limited and Others Versus . Dibyendu Bhattacharya and State of Orissa & Ors. Versus. Balaram Sahu & Ors. (supra) on Page No. 30 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 which reliance is sought to be placed by both the sides contending that the judgments assist their respective cases.
Conclusions
39) The conspectus of the above discussion is that the very demands made by the Respondent-Union, on which the Reference was made, were faulty. The alleged grouse of reduction of unionised cadre by deliberately redesignating SPEs as TBMs and MEs ought to have been raised by the individuals who have been so designated as TBMs and MEs. MRs cannot insist that their erstwhile cohorts should not be promoted or redesignated as TBMs and MEs and must continue as MRs to ensure that they remain members of the Respondent-Union To paraphrase, the person who is denied the right of forming union must complain and raise demand in that regard. It is not for the individuals who are already in unionised cadre to pull back the promoted individuals so as to ensure that their union survives. As of now, no individual who is promoted/re- designated/directly recruited as TBM/ME has raised any grievance that they actually perform the work of SPE and that therefore they must be permitted to form a Union. It will however be open for them to exercise their remedies in that regard, if they have any grievance. However, most certainly MRs cannot be permitted to fight their battle. In fact, if closely scrutinized, it appears that the objection behind seeking to fight the battle on behalf of TBMs and MEs is MR's own interest. Those individuals, who have chosen to remain on the post of MRs, are possibly aggrieved by reduction of cadre of MRs with passage of each day and the Page No. 31 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 activity of the union virtually coming to a standstill. They feel aggrieved by the action of the management in recruiting new appointees directly on redesignated posts of TBMs and MEs. They complain that TBM and ME are nothing but glorified designations deliberately given to SPEs performing the same duties as MRs. If this is the position, nothing prevents TBMs and MEs from raising the complaint that they fall into the category of SPEs. Thus, those promoted/redesignated/recruited on the posts of TBMs or MEs can file necessary proceedings for declaration that they fit into definition of the term SPEs. However, such declaration cannot be sought by MRs or by their Union. This is the basic fault-line in the demands made by the Respondent-Union and in the Reference made to the Industrial Tribunal, which the Tribunal has failed to appreciate.
Order
40) In my view, the impugned award is clearly indefensible and liable to be set aside. I accordingly proceed to pass the following order:
i. The Award dated 6 April 2024 in Reference (IT) No. 30 of 2011 is set aside.
ii. However, it is clarified that the issue of TBMs or MEs falling in definition of the term 'Sales Promotion Employees', within the meaning of Section 2(d) of the SPE Act, is left open to be decided in an appropriate case.
Page No. 32 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 ::: NEETA SAWANT WPL No.29514 of 2014 iii. Setting aside of the impugned Award shall not come in
the way of any TBM or ME claiming status as SPE within the meaning of SPE Act and all contentions in that regard are left open to be decided in appropriate proceedings.
41) With the above directions, Petition is allowed. Rule is made absolute. There shall be no order as to costs.
[SANDEEP V. MARNE, J.] Page No. 33 of 33 27 February 2026 ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:41:00 :::