Madhya Pradesh High Court
Provimi Animal Nutrition India Pvt. ... vs Secretarymp Medical And Sales ... on 1 November, 2018
1 Writ Petition No.1307/2017
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
Writ Petition No.1307/2017
Provimi Animal Nutrition India Pvt. Ltd.
Vs.
Secretary, M.P. Medical & Sales Representatives
Association & another.
Date of Order 01.11.2018
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay Dwivedi
Whether approved for
reporting
Name of counsels for parties For Petitioner: Shri Naman Nagrath,
Senior Advocate with Shri Jubin
Prasad, Advocate
For Respondent No2 : Shri Uttam
Kumar Pardasani in person.
Law laid down
Significant paragraph
numbers
Reserved on : 22.10.2018
Delivered on : 01.11.2018
(JUDGMENT)
(01.11.2018)
With the request of the parties, matter is heard finally.
By the instant petition, the petitioner/Company is
challenging the order dated 06.03.2014 (Annexure-P/5) passed
by Labour Court No.1, Bhopal in case No.249/2003 (ID Act).
2. Relevant facts for disposal of this case are that respondent
No.2 was an employee of M/s Tetragon Chemie Pvt Ltd. and
2 Writ Petition No.1307/2017
was posted in February, 2000 on the post of the Sales
Promotion Officer at Bhopal. Respondent No.1 is an
Association of which, respondent No.2 was a Member. The
Association is known as 'M.P. Medical and Sales
Representatives Association'. Respondent No.2 got transferred
w.e.f. 01.04.2003 from Bhopal to Bangalore. As per respondent
No.2, from October, 2002 till January, 2003, he was neither
paid any salary nor the expenses for which, he made a
representation through respondent No.1 to the Deputy Labour
Commissioner, Bhopal for appropriate action. In the
representation/claim made before the Deputy Labour
Commissioner, he has raised a dispute under Industrial
Disputes Act, 1947 (hereinafter referred to as the 'Act') giving
reference of Section-10 of the Act alleging that his transfer
dated 01.04.2003 has been made with mala fide intention and
accordingly, the said order is illegal. As per respondent No.2,
he received a show-cause notice dated 02.01.2003 and the same
was replied through respondent No.1 but the said reply was not
found satisfactory, therefore, on 05.02.2003, an Enquiry Officer
was appointed and respondent No.2 was apprised that the
charge-sheet has been issued to him ergo, he was not paid
salary after October, 2003.
3. The Deputy Labour Commissioner has started
proceedings under Section-10 of the Act for considering the
case of respondent No.2 and issued notice to the
3 Writ Petition No.1307/2017
petitioner/Company asking it to participate in the meeting
scheduled to be held on 27.02.2003 and as per respondent No.2,
after receiving the said notice, impugned order of transfer was
issued with the mala fide intention and he got transferred to
Bangalore from Bhopal. Respondent No.2 has also contended
that the said transfer does fall within the category of illegally
changing the service conditions of an employee and
accordingly, he sought direction from the Authority that the
order of transfer be set aside declaring the same to be mala fide
and he be also permitted to work at Bhopal.
4. The petitioner/Company submitted a reply saying that the
transfer is an incidence of service and during the course of
employment, respondent No.2 can be transferred from one
place to another and transferring an employee is a prerogative
of the management and in such circumstance, interference by
the Labour Court is not permissible. The petitioner/Company
has also raised an objection that the dispute in respect to
transfer of respondent No.2 does not fall within the definition
of "Industrial Disputes" and accordingly, the Labour Court has
no jurisdiction to entertain such dispute and the order of
transfer, therefore, cannot be interfered with.
5. The Labour Court vide impugned award dated
06.03.2014 (Annexure-P/5) after recording evidence has held
that the dispute raised by respondent No.2 does fall within the
definition of "Industrial Disputes", therefore, it has jurisdiction
4 Writ Petition No.1307/2017
to entertain such dispute and also held that the order of transfer
of respondent No.2 from Bhopal to Bangalore is illegal and
unjustified, the same was accordingly, set aside with a direction
that respondent No.2 be paid all unpaid salary prior to his
transfer and also the expenses which he has made during his
service.
6. In the instant petition, the said award of the Labour Court
has been assailed by the petitioner/Company. As per the request
of the parties, matter is heard finally and Shri Nagrath, learned
Senior Advocate at the time of arguments, confined his
argument to the extent that the dispute which has been
entertained by the Labour Court does not come within the
purview of "Industrial Disputes" as respondent No.2 is not a
workman and in view of the decision of Hon'ble Division
Bench of this Court passed in Writ Appeal No.75/2017 parties
being [Novartis India Limited Vs. Vipin Shrivastava &
others], any dispute relating to a Medical Representative
cannot be entertained by the Labour Court as a Medical
Representative does not come within the definition of workman
as defined under Section-2(s) of the Act.
7. Learned Senior Counsel has further placed reliance on a
decision reported in (2015) 7 SCC 263 parties being
[Chauharya Tripathi & others Vs. Life Insurance
Corporation of India & others] in which, the Apex Court had
held that the Development Officer of the Life Insurance
5 Writ Petition No.1307/2017
Corporation does not fall within the definition of workman. He
further submits that the Apex Court has placed reliance on a
case reported in 1994 (5) SCC 737 parties being [H.R.
Adyanthaya Vs. Sandoz (India) Ltd.] and therefore, the order
passed by the Division Bench in the case of Novartis India
Limited (supra) also placing reliance in the case of
Adyanthaya (supra) has held that the Medical Representative
does not fall within the definition of workman. As such, he
submits that in view of the decision of Division Bench, the
order impugned passed by the Labour Court, Bhopal in this
petition, is liable to be set aside.
8. Shri Nagrath, learned Senior Advocate has placed
reliance in the case of Novartis India Limited (supra) and said
that the contention raised by the petitioner/Company has been
answered by the Division Bench and, therefore, he has confined
his arguments to that extent not entered into merits of the case.
9. On the other hand, respondent No.2 appearing in person
refuted the arguments of learned Senior Advocate and has
placed reliance on several decisions of Hon'ble the Supreme
Court so also of the High Courts and contended that the
Medical Representative does come within the definition of
workman as defined under the Act and, therefore, the order
impugned passed by the Labour Court cannot be held illegal on
the ground that the same is without jurisdiction.
6 Writ Petition No.1307/2017
10. Respondent No.2 has also contended that as per Section-6
(7)(a-b) of The Sales Promotion Employees (Condition of
Service) Act, 1976 (hereinafter referred to as the 'Act, 1976'), it
is clearly prescribed that the Sales Promotion Employee is a
workman within the meaning of the Act, 1976. He has also
relied upon the decision of H.R. Adyanthaya (supra) and
contended that the Supreme Court has very clearly observed
that the Medical Representatives are already covered by the
Act, 1976 and, therefore, they are workmen as per Section-2(s)
of the Act. He has further relied upon a decision of Hon'ble
Division Bench of this Court reported in 2010 M.P.L.S.R. 312
(DB) parties being [R.R. Iyer Vs. R.P.G. Life Sciences Ltd.] in
which, the Division Bench has observed as under:-
"15. From the aforesaid enunciation of law it is clear as
crystal that the Apex Court was considering the question with
regard to definition of the term 'industrial development'.
Their Lordships were considering the said question as regards
the functional integrity of one establishment, i.e., between the
Churchgate Division and the Trombay Factory. In that
backdrop it was held, as is evincible from the above quoted
paragraphs, that the Churchgate Office used to market and
sale of goods so manufactured or processed by that factory
and used to disburse the salary and other employment benefits
and maintain accounts, etc., of the workmen. On the basis of
the aforesaid test of integral parts of manufacturing activities
of a factory and the office their Lordships have opined that the
integral part of the manufacturing activities of the factory and
the term 'factory' could not never have functioned
independently without the Churchgate Division being there. It
is worth-nothing that the aforesaid pronouncement was in
relation to counting of the total number of employees to apply
Chapter 5-A by including number of employees employed in
the office which was situated outside the factory premises.
The Apex Court applying the principles of functional integrity
opined that the employees and employer in the office even
though not situated in the premises itself yet would be
included to the total strength of 100 for the application of
Chapter 5-B. In the case at hand, the management has not
shown any material to show that in its industrial establishment
not more than 100 employees were employed. It is a question
7 Writ Petition No.1307/2017
of fact and nothing has been brought on record. The learned
Counsel appearing for the Management fairly admitted that
the original petitioner was in the office where the goods
manufactured by the factory were marketed. Be it noted, there
is no averment in the writ petition by the management that it
has not employed 100 employees and hence, the proviso
contained in Chapter-V would have no application. Despite no
stand being taken, the learned Single Judge solely relied on
the dictionary clause form a different spectrum and allowed
the writ petition. In our considered opinion the doctrine of
functional integrity has to be applied and the definition of the
term 'factory' singularly cannot be interpreted for the purpose
of counting the strength of the factory. It would include such
persons who are employed in the office situate outside the
factory premises and performing such work which has nexus
with the factory. Thus, we are unable to concur with the view
of the learned Single Judge that prior permission from the
appropriate Government was not necessary.
Before we part with the case we think it apt to deal with
a contention though feebly raised by Mr. Sheel Nagu, learned
Counsel for the respondent. It was urged by him that the
present appellant being a medical representative cannot be
treated as a workman. The said controversy is no more res
integra. The Apex Court in Rhone Poulene Ltd. Vs. State of
U.P. and others, (2000) 7 SCC 675, has held that medical
representative by virtue of Section 6, sub-section (2) of Sales
Promotion Employees (Conditions of Service) Act, 1976 is a
deemed workman under the provisions of the Industrial
Disputes Act, 1947.
He has further relied upon a decision of Division Bench
of Rajasthan High Court reported in 2001 (90) FLR 257 parties
being [M/s Dolphin Laboratories Ltd. Vs. Judge, Labour
Court, Udaipur & another] paragraphs 4 and 5 of the said
judgment are relevant and being reproduced hereinbelow:-
4. Having given our careful consideration we are unable
to sustain the said contention.
It is true that in the aforesaid two cases as a matter of
fact Hon'ble Supreme Court has held the concerned claimants
in the respective cases who were medical representatives as
not the workman. However, the difference that has been
brought about as a matter of law on account of amendments
made in Sales Promotion Employees (Condition of Service)
Act, 1976 from time to time and the amendment made in the
Industrial Disputes Act, 1947 by amending Act of 1982 under
which the amendment in Sections 2(s) and 2(rr) which has
come into force w.e.f. 21.8.1984 the medical representatives
without the limit of the salary which they draw has been held
to be falling in the definition of workmen under the Industrial
8 Writ Petition No.1307/2017
Disputes Act with effect from the respective amendments.
5. It has been noticed by the Supreme Court that the
definition of workman as it stood under Section 2(s) of the
Industrial Disputes Act only an employee discharging the
duties of skilled and technical nature and unskilled employees
and duties of unskilled nature were included in the definition
of workman. A medical representative was held neither a
skilled nor a technical employment and, therefore, on the anvil
of the definition of workman given in Section 2(s) read with
provisions of SPE Act as it stood then held the same not
falling within the definition of the workman. Section 6 of the
Sales Promotion and Employees Condition of Service Act,
1976 made the provisions of Industrial Disputes Act, 1947 as
in force for the time being applicable to the medical
representatives by Act No. 48 of 1986 w.e.f. 6.5.1987. Both
the Supreme Court decisions referred to above and relied on
by the appellant relate to disputes raised prior to amendment
in 1987. But with inclusion of category of workman employed
to different operational work in Section 2(s) and any
commission payable on the promotion of the sales or business
or both in definition of wages under Section 2(rr) made the
medical representatives as workmen depending on their wages
as workmen within the meaning of Section 2(s) upto 6.5.1987
and without the limitation on their wages thereafter the ratio is
not applicable to disputes relating lo medical representatives
arising thereafter. The court expressed its conclusion in this
regard as under:-
"In other words, on and from 6.3.1976 the provisions of the
ID Act became applicable to the medical representatives
depending upon their wages upto 6.5.1987 and without the
limitation on their wages thereafter and upon the capacity in
which they were employed or engaged."
Respondent No.2 has also placed reliance in a decision
reported in AIR 2000 SC 3182 parties being [Rhone-Poulenc
(India) Ltd. Vs. State of U.P. & others]. Paragraph-5 of the
same what has been observed by the Apex Court in the said
judgment is as under:-
5. The contention of the learned counsel is that assuming
the aforesaid provision is applicable, it still does not extend
the deeming fiction to any State enactment including the U.P.
Industrial Disputes Act as it is apparent on reading of the
section that Sales Promotion Employees, within the meaning
of Central enactment of the Industrial Disputes Act, 1947 (14
of 1947) have been treated as `workman'. Reliance has been
placed by the learned counsel on a Constitution Bench
decision of this Court in H.R. Adyanthaya & Ors. v. Sandoz
9 Writ Petition No.1307/2017
(India) Ltd. & Ors. [(1994) 5 SCC 737]. The Bench has held
that since the Medical representatives are not workmen within
the meaning of the Maharashtra Act, the complaint made to
the Industrial Court under the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act,
1971 was not maintainable. The acceptance of the contention
of Mr. Reddy that respondent no.3 in view of Sandoz case is
not a `workman' within the meaning of the U.P. Industrial
Disputes Act, however, does not help the appellant in
substance as in the present case we propose to adopt the same
course as was adopted in Sandoz case by treating the
complaint to be an industrial dispute under the Industrial
Disputes Act, 1947 in exercise of the powers of this Court
under Article 142 of the Constitution. More than 12 years
have passed since the reference was made to the Industrial
Court and in the facts and circumstances of the case, we think
it appropriate to adopt the course as was adopted in Sandoz
case. Thus, we treat the reference in question to be one under
Section 10(1)(d) of the Industrial Disputes Act, 1947.
He has further relied upon a decision of Division Bench
of Jaipur Bench of Rajasthan High Court reported in RLR 2000
(2) 214 parties being [Rajasthan Medical & Sales
Representatives Union, Ajmer & another Vs. M/s Industrial
Research Institute Private Ltd. & another] and also relied
upon a decision of Hon'ble Apex Court reported in 2007 (2) SC
718 parties being [SPIC Pharmaceuticals Division Vs.
Authority Under Sec.48(1) of A.P. & another] then he has
placed reliance in a case reported in (1983) 4 SCC 293 parties
being [D.P. Maheshwari Vs. Delhi Administration & others].
11. Learned counsel for the petitioner submits that
considering the order of the Labour Court especially paragraph-
23 of the judgment in which, dealing with the objection
regarding maintainability of the Industrial Disputes, the Labour
Court relying upon a decision reported in 2006 (II) LLJ 8 MP
parties being [Germane Remedies Limited vs. Presiding
10 Writ Petition No.1307/2017
Officer Labour Court No.1, Bhopal & others] reproducing
paragraph-14 of the said judgment and held that the Labour
Court has jurisdiction to entertain the dispute in respect of
Medical Representatives as they are workmen as per the
definition provided under Section- 2(s) of the Act. Shri Nagrath
further submits that since in the latest decision, the Division
Bench has held that the case of Germane Remedies Limited
(supra) is not a correct law and is overruled, the foundation of
the order of Labour Court for entertaining the dispute in respect
of respondent No.2 is dislodged and, therefore, only on this
count, the order of the Labour Court can be declared illegal and
deserves to be set aside.
12. I have heard the arguments advanced by the parties and
record perused.
13. Since the petitioner has confined his arguments to the
extent that respondent No.2 does not fall within the definition
of workman and, therefore, the Labour Court had no
jurisdiction to entertain this dispute and has contended that the
Division Bench of this Court in the case of Novartis India
Limited (supra) has answered the issue involved in the present
case. Therefore, this Court is also confining itself to the
question raised by the petitioner and also examining the
decision of Division Bench for the purpose that the issue
involved in the present petition has been answered or not. The
order of the Labour Court on which, the petitioner/Company
11 Writ Petition No.1307/2017
has raised this question saying that respondent No.2 was not a
workman and, therefore, the dispute relating to his service
conditions cannot be entertained by the Labour Court, the
Labour Court has answered the said issue in paragraph-23 of
the impugned award and relying upon a decision of the
Germane Remedies (supra), rejected the contention of the
petitioner/Company and entertained the dispute. As per the
Division Bench in the case of Novartis India Limited (supra),
since the Division Bench has overruled the judgment passed by
the learned Single Judge of this Court in the case of Germane
Remedies (supra), the basic foundation of the order impugned
passed by the Labour Court is dislodged. The Division Bench
has considered only question "as to whether the Medical
Representative is a workman within the meaning of Section-
2(s) of the Industrial Disputes Act, 1947 and competent to raise
the dispute before the Labour Court." Hon'ble Division Bench
is also dealing with the law laid down by the Apex Court in the
case of H.R. Adyanthaya (supra) and finally observed that the
Medical Representative is not a workman within the meaning
of Section-2(s) of the Act and also Section-2(d) of the Act,
1976. Hon'ble the Division Bench has also considered the
judgment passed by the learned Single Judge in German
Remedies Ltd. (supra) and has observed that the learned Single
Judge has misread the judgment in the case of H.R.
Adyanthaya (supra) to hold that the Medical Representatives
12 Writ Petition No.1307/2017
as workmen within the meaning of Section-2(s) of the Act.
14. Looking to the question answered by the Division Bench,
I have no hesitation to say that the issue involved in the present
case is squarely covered with the decision of Division Bench in
the case of Novartis India Limited (supra), and, therefore, I
have also no hesitation to say that the order impugned passed
by the Labour Court founding his judgment in the case of
German Remedies Ltd. (supra), is not sustainable and deserves
to be set aside. Considering the latest legal position in view of
the Division Bench decision, I have no other option but to
follow the law laid down by the Division Bench of this Court in
the case of Novartis India Limited (supra). However, the
decision on which respondent No.2 is placing reliance are
basically relating to the issue and definition provided under the
Act, 1976. The Division Bench of this Court has also
considered the same situation and also taken note of the
definition provided under the Act, 1976 in paragraphs 8,9, 11
and 15 which are reproduced hereinbelow:
8. On the other hand, on the strength of the order of termination
dated 21.12.2013 (Annexure-E, at page 561 of appeal paper
book), learned counsel for the respondent pointed out that
respondent cannot be said to be engaged in a supervisory
capacity so as to be excluded from the definition of
"workman" within the meaning of Section 2(d) of the SPE Act
or Section 2(s) of the ID Act. The relevant assertion in the
letter of termination, referred to by the learned counsel for the
respondent, reads as under:-
"You have been appointed and are currently working in the
Company as a Medical Representative. Your primary duty
is to promote sales of company's products for which you
are required to visit Doctors, Chemists as well as Stockists.
You are aware that your performance and/or productivity
13 Writ Petition No.1307/2017
levels are measured on this basis. Further even while the
signing of the settlement dated 24.1.2012, between Novartis
India Limited, Pharmaceuticals Division and Novartis
Employees Union, the concerned employees and union
assured to render complete and wholehearted cooperation
so as to improve the competitive status of the company as
well as the earning capacity by improving efficiency and
productivity. In the said settlement, by way of incentive, a
clause was also incorporated that those who achieve growth
will be given an incentive. All employees were further
given substantial increase in salaries and benefits on the
assurance of performance."
9. The respondent has filed additional return before the learned
Single Bench wherein the pay slips for the month of December
2012, June, 2013, November, 2013 and December 2013 have
been produced. Such pay slips reveal that total earning of the
respondent is more than Rs.50,000/- in each month except in
the month of November, 2013. The total earnings of the
respondent-employee, as per his own showing, are as under:-
Relevant Extract of Pay Slips of Respondent No.1 Vipin Shrivastava
EMPLOYER : NOVARTIS INDIA LIMITED
Sl. Month/Year Total Earnings Net Salary
No. (without deductions) (after deductions)
1 December, 2012 Rs.64,612.16 Rs.53,017.16
2 June, 2013 Rs.51,297.85 Rs.43,358.85
3 November, 2013 Rs.34,464.59 Rs.28,409.59
4 December, 2013 Rs.62,608.43 Rs.53,584.43
11.Before we deal with the rival contentions of the learned
counsel for the parties, it would be apt to quote the relevant
provisions of the ID Act and the SPE Act, which read as
under:-
"Industrial Disputes Act, 1947.
2. Definitions - In this Act, unless there is anything
repugnant in the subject or context, -
xxx xxx xxx
xxx xxx xxx
(rr) "wages" means all remuneration capable of being
expressed in terms of money, which would, if the terms
of employment, expressed or implied, were fulfilled, be
payable to a workman in respect of his employment, or
of work done in such employment, and includes-
(i) such allowances (including dearness
allowance) as the workman is for the time
being entitled to;
(ii) the value of any house accommodation, or of
14 Writ Petition No.1307/2017
supply of light, water, medical attendance or
other amenity or of any service or of any
concessional supply of food grains or other
articles;
(iii) any travelling concession;
(iv) any commission payable on the promotion of
sales or business or both;
but does not include-
(a) any bonus;
(b) any contribution paid or payable by the
employer to any pension fund or provident
fund or for the benefit of the workman under
any law for the time being in force;
(c) any gratuity payable on the termination of his
service;
xxx xxx xxx
(s) "workman" means any person (including an apprentice)
employed in any industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory
work for hire or reward, whether the terms of
employment be express or implied, and for the purposes
of any proceeding under this Act in relation to an
industrial dispute, includes any such person who has
been dismissed, discharged or retrenched in connection
with, or as a consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of
1950), or the Army Act, 1950 (46 of 1950), or
the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an
officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or
administrative capacity; or
(iv) who, being employed in a supervisory capacity,
draws wages exceeding *(one thousand six
hundred rupees) per mensem or exercises,
either by the nature of the duties attached to the
office or by reason of the powers vested in him,
functions mainly of a managerial nature."
*Substituted to "ten thousand rupees" by
Act 24 of 2010, S.2 (w.e.f. 15.9.2010)
****
The Sales Promotion Employees (Conditions of Service) Act, 1976.
2. Definitions.- In this Act, unless the context otherwise requires,-
xxx xxx xxx
xxx xxx xxx
(d) "sales promotion employees" means any person by whatever 15 Writ Petition No.1307/2017 name called (including an apprentice) employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business, or both, but does not include any such person-
(i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or
(ii) who is employed or engaged mainly in a managerial or administrative capacity.
Explanation. - For the purpose of this clause, the wages per mensem of a person shall be deemed to be the amount equal to thirty times his total wages (whether or not including, or comprising only of, commission) in respect of the continuous period of this service falling within the period of twelve months immediately preceding the date with reference to which the calculation is to be made, divided by the number of days comprising that period of service;"
15.The judgment in H.R. Adyanthaya's case (supra) has come up for consideration before a Division Bench of this Court in Samat Kumar v. M/s Parke Davis India Ltd., 1997 (2) JLJ 353 wherein the reference to Labour Court was subject matter of challenge on the part of the management. Though the workman was said to be working as Area Sales Manager inmanagerial capacity drawing salary of more than Rs.1,600/-, therefore, he was not a workman but while examining the scope of Adhyanthaya's case (supra), the Court has held that the work of promotion of sales of the product or services of the establishment is distinct from and independent of the types of work covered by the said definition under Section 2(s) of the ID Act. The relevant extract of the Division Bench judgment reads as under:-
"10. As against it, learned counsel for the respondent No.1 has placed reliance on a case as reported in 1988 (II) MPWN 116 = AIR 1988 SC 1700 (Miss A. Sundarambal v. Govt. of Goa, Deman & Diu and others) whereby it was held that teacher employed in a school is not a workman. But, now dispute stands resolved with respect to the cases of Medical Representative as reported in AIR 1994 SC 2608 [H.R. Adyanthya etc. etc. v. Sandoz (India) Ltd. etc. etc.) whereby it has been held that 'Workman' does not include all employees except those covered by four exceptions in said definition of section 2(s) of Industrial Disputes Act. Medical Representatives do not perform duties of 'skilled' or 'technical' nature and therefore, they are not 'workmen'. The connotation of word 'skilled' in the context in which it is used, will not include work of a Sales Promotion Employees such as Medical Representative. That word has to be construed ejusdem generis and thus construed, would mean skilled work whether manual or non-manual, which is of a genre of the other types of work mentioned in the definition. The work of promotion of sales of the product or services of the establishment is distinct from and independent of the types of work covered by the said 16 Writ Petition No.1307/2017 definition."
After returning such finding it was held that the reference was not maintainable as Medical Representative would not fall within the definition of workman. We are not only bound by the aforesaid judgment but we find the same to be a correct enunciation of law.
15. Thus, in view of the decision of Division Bench, the contention of respondent No.2 that in view of the definition provided under Section-2(d) of the Act, 1976, he has rightly been considered as a workman, is liable to be rejected. However, Shri Nagrath has contended that the definition provided under the Act, 1976 for the Sales Promotion Employees is not conclusive but exclude the employees if they fall within two categories excluded under the definition. If we see the definition provided under Section-2(d) of the Act, 1976, I find force in the contention of Shri Nagrath. The definition is being reproduced hereinbelow:-
2[(d) "sales promotion employee" means any person by whatever name called (including an apprentice) employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business, or both, but does not include any such person-
(i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per menses;
(ii) who is employed or engaged mainly in a managerial or administrative capacity.
Explanation. - For the purpose of this clause, the wages per mensem of a person shall be deemed to be the amount equal to thirty times his total wages (whether or not including, or comprising only of, commission) in respect of the continuous period of his service falling within the period of twelve months immediately preceding the date with reference to which the calculation is to be made, divided by the number of days comprising the period of service;] 17 Writ Petition No.1307/2017 Admittedly, if we see the order of the Labour Court, in paragraph-17, it is shown that the salary from October, 2002 to May, 2003 was claimed by respondent No.2 and for the period from August, 2002 to May, 2003, he claimed Rs.53,800/- (Rupees Fifty Three Thousand Eight Hundred) towards salary and this fact was not disputed by respondent No.2 as he has not challenged the order of the Labour Court. Thus, it can be adjudged that the salary of respondent No.2 was more than the limit as provided under the definition i.e. Rs.1600/- per month and accordingly, he even does not fall within the definition of the Sales Promotion Employees and, therefore, he is not a workman as per the definition provided under Section-2(s) of the Act.
16. Shri Nagrath further submits that admittedly, respondent No.2 was working as a Sales Promotion Officer and was engaged in a managerial or administrative capacity, therefore, he is under the categories excluded for the definition of workmen provided under Section-2(d) of the Act, 1976. Therefore, I have no hesitation to say that in view of the Division Bench decision of this Court in case of Novartis India Ltd.(supra), the respondent No.2 does not fall within the definition of workman neither as per Section-2(s) of the Act nor as per Section-2(d) of the Act, 1976.
17. Accordingly, the order of the Labour Court is said to be illegal and without jurisdiction, the dispute in relation to service 18 Writ Petition No.1307/2017 conditions of respondent No.2 does not fall within the definition of "Industrial Disputes" and, accordingly, the order impugned is set aside only on the ground that the Labour Court had no jurisdiction to entertain the dispute raised by respondent No.2 and, therefore, the order passed by the Labour Court, Bhopal dated 06.03.2014 (Annexure-P/5) is hereby set aside and the petition filed by the petitioner/Company stands allowed.
Parties shall bear their own cost.
(SANJAY DWIVEDI) JUDGE Devashish Digitally signed by DEVASHISH MISHRA Date: 2018.11.01 17:18:40 +05'30'