Madhya Pradesh High Court
Ucb India Pvt. Ltd. Through Miss Grishma ... vs Additional Labour Commissioner on 17 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1064, (2019) 163 FACLR 588
Author: Vivek Rusia
Bench: Vivek Rusia
-1- W.P.No.2499/2017
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
SINGLE BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
WRIT PETITION No.2499/2017
Petitioners : UCB INDIA PVT. LTD. & OTHERS
Vs.
Respondents : ADDITIONAL LABOUR
COMMISSIONER, INDORE &
OTHERS
Shri G.S.Patwardhan, Advocate for the petitioners.
Shri R.S.Chouhan, Advocate for the respondent No.2.
O R D E R
(Passed on 17.09.2019) Petitioners have filed the present petition being aggrieved by the order dated 22.12.2015 (Annexure P/6) issued by the Additional Labour Commissioner, Indore, order dated 27.04.2016 (Annexure P/8) and order dated 23.11.2016 (Annexure P/10) passed by Labour Court, Ujjain.
Facts of the case in short are as under:
2. Petitioner No.1 is a company registered under the Companies Act having its registered office at Mumbai and engaged in the business of pharmaceuticals. Petitioners No.2 to 9 are the Managing Director, Senior Managers, Regional Business Managers, Area Sales Managers etc. of petitioner No.1. Initially, respondent No.2 was appointed as Marketing Executive by Vertex Marketing Services vide order dated 30.07.2009. The terms and conditions of the appointment are incorporated in the appointment order itself. As per -2- W.P.No.2499/2017 condition No.9 respondent No.2 is liable to be posted in any part of India where the agency has or may start operations on exigencies of business. By order dated 04.05.2012 the petitioner No.1 has promoted him to the post of Senior Field Sales Officer w.e.f. 01.05.2012. By letter dated 01.03.2012 the petitioner No.1 has sent the details of his annual gross salary payable for the period 1st March, 2012 to 31st March, 2013 i.e. Rs.1,86,115/-.
3. Vide order dated 23.05.2014 the respondent No.2 has been transferred from Ujjain headquarter to Gorakhpur (UP) headquarter w.e.f. 26.05.2014. The respondent No.2 did not comply the aforesaid transfer order, hence show cause notice dated 17.06.2014 was issued to him. According to the respondent No.2, he submitted a reply to the show cause notice on 18.06.2014. Vide order dated 22.08.2014 the petitioners have terminated the services of the respondent No.2 inter alia on the ground that he did not report at the transferred place.
4. Respondent No.2 raised an industrial dispute before the Labour Commissioner under section 10 of the Industrial Disputes Act, 1947 (for short 'the ID Act'). Vide order dated 22.12.2015 the Office of Labour Commissioner has referred the dispute to the Labour Court. The terms of reference is reproduced below:
vuqlwph D;k lsokfu;qDr Jh jkgqy firk Jh j?kqukFk flag pkSgku dk fu;kstd }kjk fd;k x;k lsoki`FkDdj.k oS/k ,oa mfpr gS\ ;fn -3- W.P.No.2499/2017 ugha rks os fdl lgk;rk ds ik= gS ,oa bl laca/k esa lsok fu;kstd dks D;k funsZ'k fn;s tkus pkfg;s\
5. Respondent No.2 being a first party submitted a statement of claim before the Labour Court. However, the petitioners did not appear before the Labour Court despite service of notice. The respondent No.2 examined himself and got exhibited 30 documents Ex.P/1 to P/30. After appreciating the ex-parte evidence came on record the Labour Court vide award dated 27.04.2016 answered the reference in favour of respondent No.2 directing the petitioners to reinstate him into service with all benefits of past service. The aforesaid award was notified and declared on 30.06.2016. The petitioners came to know about the aforesaid award only when the respondent No.2 approached the management with an application dated 11.07.2016 for his reinstatement into service. Thereafter, petitioners approached the Labour Court by way of an application under Order 9 Rule 13 CPC read with section 11 of the ID Act for setting aside the ex-parte award dated 27.04.2016. The aforesaid application was opposed by the respondent No.2 and vide order dated 23.11.2016 the Labour Court has dismissed the application, hence the present writ petition before this Court.
6. After notice, respondent No.2 filed return by submitting that after the appointment he worked hard with honesty, he gave progress and benefit to the company. Due to his hard work, he was promoted to the post of Senior -4- W.P.No.2499/2017 Sales Officer. The petitioners have illegally transferred him to Gorakhpur (UP) by manipulating the appointment order.
The Labour Court has rightly passed the award in his favour which came to the knowledge of the petitioners on 11.07.2016 and despite that they filed the application under Order 9 Rule 13 CPC on 09.08.2016 i.e. beyond the period of 30 days and that too without an application for condonation of delay. Despite the award in his favour he was not permitted to join and the petitioners have not complied with the statutory provision of section 17-B of the ID Act, therefore, the writ petition is liable to be dismissed on this ground alone.
7. Petitioners have filed the rejoinder by submitting that the division in which the respondent No.2 was working had been divested with Dr.Reddy's Laboratary and no work is left at Ujjain, therefore, the respondent No.2 was transferred from Ujjain to another location. The allegation of manipulation in the appointment order has specifically been denied. The respondent No.2 filed a detailed additional return by submitting that he sent the application dated 01.05.2017 to join in to the services at any place and also to pay the salary as per the award passed by the Labour Court. The respondent No.2 approached the Labour Court by way of an application under section 33 (c) (2) of the ID Act and vide order dated 25.04.2017 the said application has been allowed by directing the petitioners to pay the arrears of salary of Rs.10,20.650/-. Thereafter, petitioners filed an application -5- W.P.No.2499/2017 that the respondent No.2 has been paid Rs.12,44,600/- in compliance of the provision of section 17-B and order passed under section 33 (c)(2) of the ID Act.
8. Petitioners have also filed an application for amendment raising additional ground that the respondent No.2 was working as Senior Sales Officer in a pharmaceutical company, therefore, the provisions of the ID Act are not applicable to him in the light of the judgment passed by this Court in the case of Novartis India Ltd. vs. Vipin Shrivastava (Writ Appeal No.75/2017 decided on 11.10.2018).
9. The writ petition came up for hearing on 04.10.2017 for argument on the application for stay of the award dated 27.04.2016. The respondent No.2 filed a return by submitting that he is ready to join at any place wherever the petitioner is having establishment. Learned counsel appearing for the respondent No.2 has also fairly stated that the respondent No.2 is ready to join at Gorakhpur sales office. In view of the above, this Court has directed the petitioners to accept the joining of the respondent No.2 at Gorakhpur and also directed them to deposit 50% of the back wage. The respondent No.2 was also directed to file an affidavit in respect of his joining. Thereafter, the petitioners have filed an application for modification of the order dated 04.10.2017 on the basis of the judgment passed by this Court in the case of Novartis India Ltd. (supra).
10. With the consent of parties, the petition is heard finally.
-6- W.P.No.2499/201711. Shri G.S.Patwardhan, learned counsel for the petitioners submits that the petitioners No.2 to 9 have wrongly been impleaded as second party before the Labour Court and only petitioner No.1/company was liable to be impleaded as second party with proper address. The petitioners No.2,3,4,7,8 & 9 have already left the services of the petitioner No.1. In the statement of claim the proper addresses are not mentioned, therefore, the notice could not be served to all the petitioners. The respondent No.2 served a notice to petitioner No.6 who did not take care of the proceedings pending before the Labour Court and while resigning the service he did not hand over the charge to his successor. All these facts were brought to the knowledge of the Labour Court but the Labour Court has wrongly rejected the application filed under Order 9 Rule 13 CPC on the ground of delay. The petitioner is having a registered office at Mumbai and the petitioner No.1 had no knowledge about passing of the award by the Labour Court and an opportunity ought to have been granted to the petitioner to file an application for condonation of delay. Even otherwise, there was not much delay in filing the application under Order 9 Rule 13 CPC for which petitioners had sufficient cause to explain. He further submited that the services of respondent No.2 are transferable to any part of the country as per condition No.9 and since he did not give his joining at the transferred place, therefore, the management had no other option except to terminate him from the service. He did not -7- W.P.No.2499/2017 challenge the transfer order before the Labour Court. The petitioner's office at Ujjain has been closed down, therefore, he cannot be reinstated at Ujjain. Even otherwise, now the respondent No.2 does not come under the definition of workman under the ID Act, hence the award passed by the Labour Court under the ID Act is bad in law and liable to be set aside in view of the law laid down by this Court in the case of Novartis India Ltd. (supra).
12. Shri R.S.Chouhan, learned counsel appearing for the respondent No.2 argued that the respondent No.2 has wrongly been terminated from service without giving any opportunity of hearing. In the termination order various charges have been levelled against him, no enquiry was conducted and the order is stigmatic in nature, therefore, the Labour Court has rightly set aside the order of termination and thereafter rightly rejected the application under Order 9 Rule 13 CPC. The respondent No.2 has given a consent that he is ready to join at any place, therefore, he is not required to challenge the transfer order. So far the judgment passed by this Court in the case of Novartis India Ltd. (supra) is concerned, the same is not applicable to him because he was working on supervisory capacity as he was promoted to the post of Senior Field Sales Officer. The aforesaid judgment has been passed in the case of Medical Representative. His wages was more than Rs.10,000/- mensem. The services of respondent No.2 are governed under section 2(d) of the Sales Promotion Employees (Conditions of Service) Act, 1976 (for -8- W.P.No.2499/2017 short 'the SPE Act'), hence the petition is liable to be dismissed.
Appreciation of rival submissions and conclusion......
13. That the respondent No.2 was initially appointed as Marketing Executive in the Vertex Marketing Services, a unit of Pirmal Health Care Ltd., Mumbai. Thereafter, petitioner No.1 promoted him to the post of Senior Field Sales Officer. He was getting basic salary of Rs.92,738/- per month with 40% bonus enhancement. He was getting various allowances like HRA, special allowance, education allowance, transport allowance, medical allowance etc. and his total salary was Rs.1,86,115/- per month. Vide order dated 23.05.2014 he was transferred from Ujjain to Gorakhpur under the same terms and conditions due to business exigency. Being an employee of the petitioner he was bound to comply the transfer order. It is not in dispute that he did not join the transferred place, therefore, a show cause notice dated 17.06.2014 was issued to him and thereafter vide order dated 22.08.2014 he has been terminated from service. He raised an industrial dispute in which he has made various allegations against the then Area Sales Manager and also alleged mala fide behind his transfer order but he has failed to give any valid explanation for not joining at Gorakhpur. He has stated that he submitted a reply dated 28.05.2014 demanding salary in the month of March, 2014 and reimbursement of the medical bills. However, the Labour Court vide award dated 27.04.2016 has -9- W.P.No.2499/2017 set aside the order of termination on the ground that he had completed 240 days of service in the preceding year and without granting him the benefit of retrenchment compensation he was removed from service, therefore, it is an illegal termination, hence directed for reinstatement with all benefit of past services. The respondent No.2 has wrongly impleaded the Managing Director, the Managers and Officers of the petitioner No.1/company as second party although they were not the necessary party. The petitioner No.1 is the only employer of respondent No.2 and the company by name is liable to be impleaded as second party. When the fact of ex-parte award came to the knowledge of the petitioners they approached the Labour Court by filing an application under Order 9 Rule 13 CPC but the same has been dismissed on the ground of delay. Even if there was any delay then an opportunity ought to have been granted to the petitioners to file an application for condonation of delay. The Apex Court in the case of K.Subbarayudu and others vs. Special Deputy Collector (Land Acquisition) (2017) 12 SCC 840 has held that sufficient cause is to receive liberal construction so as to advance substantial justice when no negligence, inaction or want of bona fides is attributable to appellants, Court should adopt a justice oriented approach in condoning the delay, therefore, the Labour Court has wrongly dismissed the application for condonation of delay.
14. Respondent No.2 is out of employment since 2014 and fairly stated before this Court that he is ready to give joining -10- W.P.No.2499/2017 at Gorakhpur but due to pendency of this petition his joining was not accepted, however, he has been paid an amount of Rs.12,44,600/- by virtue of the order passed by the Labour Court under section 33 (c) (2) of the ID Act and under the head of 17-B of the ID Act. As held above, the service of respondent No.2 is liable to be transferred in any part of the country and he did not decline to join at the transferred place but demanded the salary of the month of March, 2014 and also reimbursement of medical bills incurred in the treatment of his mother. His services have been terminated mainly on the ground that he has failed to join at the transferred place. So far the other allegations are concerned, no detailed enquiry was conducted and an ex-parte order of termination has been passed. As held above, since the respondent No.2 was ready to join at the transferred place, hence there was no occasion to challenge the transfer order, however, in the meanwhile, his services have been terminated, therefore, unless the order of termination is set aside it was of no use to challenge the order of transfer.
15. So far the judgment passed by the Division Bench of this Court is concerned, this Court has held that medical representatives are not workmen as defined under section 2(s) of the ID Act, therefore, provisions of the ID Act are not applicable to them. But in the present case, the respondent No.2 was appointed as a Marketing Executive and thereafter he was promoted to the post of Senior Field Sales Officer and he was getting the salary of Rs.1,86,115/- per month.
-11- W.P.No.2499/2017The judgment passed in the case of Novartis India Ltd. (supra) is based on the judgment passed by the Apex Court in the case of H.R.Adyanthaya and others vs. Sandoz (India) and others (1994) 5 SCC 737. In the said case the Apex Court though held that the medical representatives are workmen within the meaning of the ID Act but in exercise of powers conferred under Article 142 of the Constitution of India directed the State Govt. to treat the complainant as workman and refer the dispute to the Industrial Tribunal. The Apex Court as well as this Court has considered the nature of work of the medical representatives and held that they are not workmen under the ID Act because they are not performing the duties of skilled and technical nature. In this case, no such objection has been raised by the petitioners before the Labour Court, therefore, the Labour Court had no occasion to examine the issue whether the respondent No.2 was engaged as medical representative or Senior Sales Executive and the nature of duties of medical representatives and Senior Sales Executive are similar or different, hence at this stage it would not be proper to remand the matter to the Labour Court to decide this issue again. However, in the case of SPIC Pharmaceuticals Division vs. Authority under Sec. 48(1) of A.P Shops and Establishments Act, 1988 and another; (2007) 2 SCC 616 the Apex Court has held that the SPE Act makes the provisions of the ID Act applicable and providing remedy to sales promotion employees is a special enactment dealing with service -12- W.P.No.2499/2017 conditions of sales promotion employees employed in the establishment engaged in pharmaceutical industries and directed the State Govt. to make a reference under the ID Act to the Industrial Tribunal/Labour Court. It has also been held that the forum created under the ID Act is more effective forum to deal with the issue raised.
16. In order to do complete justice with petitioners as well as respondent No.2, this petition is liable to be disposed of with direction to the petitioners to accept joining of the respondent No.2, however, he should not be entitled for back wages and the order dated 27.04.2016 be modified accordingly.
17. In view of the above, the petition is disposed of with direction to the petitioners to reinstate the respondent No.2 without back wages and permit him to give his joining at Gorakhpur (UP) or at any place in India with all past service benefits except back wages. The amount paid in compliance of the order passed by the Labour Court under section 33 (c) (2) or under section 17-B of the ID Act shall not be recovered from him. It is made clear that if the respondent No.2 fails to give joining within 15 days from the date of issuance of posting order, he will not be entitled for the benefits of the award dated 27.04.2016.
No order as to costs.
(VIVEK RUSIA)
hk/ Digitally signed by Hari Kumar JUDGE
Nair
Date: 2019.09.17 17:51:34 +05'30'