Delhi District Court
Whether Terms Of Reference Is Bad As Per ... vs Name Of The on 13 February, 2007
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IN THE COURT OF SH. I.S. MEHTA: PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO.I: ROOM NO.50: FIRST FLOOR:
KARKARDOOMA COURTS: SHAHDARA: DELHI-110032.
I.D.NO.76/2006 (OLD I.D.NO.77/1993)
BETWEEN
The management of M/s. Cipla Ltd.,
A-37, Connaught Place, New Delhi-1.
AND
Its workmen as represented by
Delhi Sales and Medical Representatives Association,
D-137, Gautam Nagar, Behind Yusuf Sarai, New Delhi-49.
AWARD
Secretary (Labour), Government of the National Capital
Territory of Delhi has referred this dispute arising between the parties,
named above for adjudication vide notification F.24(1178)/93-
Lab./17721-26 Dated 11.06.93 with the following term of the
reference:-
"Whether the transfer of Shri Sandeep
Talwar from New Delhi to Munger is illegal
and/or unjustified and if so, to what relief is
he entitled and what directions are
necessary in this respect ?"
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1.In support of the case of the workman-Sh. Sandeep Talwar, statement of claim was filed wherein it is stated that the workman was employed with the management of Cipla Limited w.e.f.3rd February, 1987 as Trainee Medical Representative at a consolidated stipend of Rs.1050/- per month and confirmed as Medical Representative w.e.f.01.02.1988 at a salary of Rs.2500/- per month.
2. It is further stated that at the time of appointment, the workman was given to understand that he has been specifically appointed for the Territory of Delhi. The workman has also informed to the management that due to his family circumstances, he will not be able to accept any transfers. The appointment was made on the condition that the workman would not be transferred outside Delhi and that Sh. V.C. Pisharody, the Personnel Manager of the management, at the time of issue of appointment letter had confirmed that clause no.8 of the appointment letter will have no effect in the case of workman and this clause is of no consequence and it is just a formal clause.
3. It is further stated that the workman was an active member of the Delhi State and Medical Representative Association, Delhi unit of FMRAI which was not liked by the management and with a view to take revenge for the trade union activities of the workman, the management transferred the workman to Munger, Bihar vide -3- letter dated 12.04.1991. The said transfer is malafide, illegal and unjustified and not maintainable as there were certain disputes pending regarding the workman and the said transfer amounts to change in service conditions. The management was bent upon to create circumstances for the workman due to which he may have to leave the job. The workman has not been paid wages since May, 1991 to which he is entitled as he had been regularly reporting for duties. The said action of the management amounts to termination of the workman without conducting any enquiry which is violation of principles of natural justice.
4. It is further stated that the workman does not know the local language of district Munger (Bihar) and that the law and order position is very bad, as it is an area inflicted by naxalities and anybody other than Bihari is unwelcomed in the area and is open to physical assault. It is further stated that after transfer of the workman, the management has made fresh appointments for its Delhi Headquarter. The said transfer, made by the management is not either for the administrative reasons and for expanding business but for malafide intentions and ulterior motives. The management wanted to suppress the legitimate union activities of the workman as the management forced the workman on number of times to join Cipla Field Workers Association which is supported by the management but the workman refused to toe the line of the management, he was harassed and victimised during the period -4- prior to his transfer and thereafter was transferred immediately which transfer of the workman was malafide. It is prayed that the transfer of the workman from Delhi to Munger be held illegal and unjustified and the same be quashed and the management be directed to pay all back wages in full from the date of transfer till he is allotted duty in Delhi along with other benefits.
5. In rebuttal, the management has filed the written statement, wherein the management has taken preliminary objections that the present dispute is an individual dispute and not an industrial dispute as it does not come within the purview of Section 2 A of the I.D. Act. The petitioner is not a workman as defined in the I.D. Act as the petitioner was working as Medical Representative and not performing any clerical/ operational duties to come within the purview of Section 2 (s). The appointment letter dated 03.02.1987 as well as Service Rules stipulate that the services of the petitioner are transferable and clause 8 of the said appointment letter is regarding transfer and clause 10 of the appointment letter dated 26.02.1988 is also regarding transfer. The Industrial Tribunal has no territorial jurisdiction to entertain the dispute, raised by the petitioner as the Head Office of the management is in Bombay from where all the administration is carried on. Delhi Office in Connaught Place is only a Distribution Centre headed by Bombay Office and even the letters of transfers were issued from Bombay and that the statement of claim, filed is not verified as required under the Law.
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6. On merits, it is stated that the appointment, salary, designation and the length of service of the petitioner are a matter of record but at the same time, he is defying the lawful orders of the management, transferring him in accordance with the contract of appointment as stipulated in the letter of appointment with terms and conditions of employment which have been accepted by the petitioner with eyes open and as such, he cannot wriggle out the same. The appointment letter of the petitioner and the Service Rules both are having transfer clause which provides that the petitioner can be transferred to work in any territory in the country as the management may direct from time to time, without being entitled to any remuneration. The letter of appointment dated 03.02.1987 contained the provision for transfer of the petitioner and he accepted the same without protest or any objection. Yet another letter dated 26.02.1988 along with Service Rules was given to the petitioner which he also accepted without any objection or protest and the clause 10 of the same is stipulated as under :-
"A Representative may be transferred to work in any territory in the country as the Company may direct from time to time, without being entitled to any extra remuneration.
7. It is further stated that since the contract of employment had already existed, there was no need of any information to be given to the petitioner. The contract of service, pertaining to transfer of his service has never been waived by the management. Therefore, the transfer of the petitioner being malafide are denied. -6-
8. It is further stated that the management has never objected forming of the Union by the employees and the union has been in existence for a number of years and most of the employees of the management including petitioner have been members of the Union named Delhi Sales and Medical Representatives Association as well as the Cipla Field Workers Association through out India. It is denied that the management was annoyed any time or started harassing the petitioner levelling false charges. Since, the transfer of an employee from one place to another is necessary incident of employment, no employee or even an office bearer of a Union can have any immunity from transfer. It is also stated that the management has its offices/ branches all over India and the Medical Representatives are transferred from time to time from one place to another. It is denied that the transfer in any way is illegal, unjustified and malafide. The management has not withheld any wages.
9. It is further stated that the petitioner is levying frivolous and false allegations to stall the transfer. The plea, taken by the petitioner regarding not knowing of language is a device to stall the transfer. The transfer is a prerogative of the management and the management is to decide as to where and at what place services of employee can be better utilised. The management is facing tough competition with other pharmaceutical companies and the management in order to meet the challenges has to make -7- placement of its experienced employee in the new areas. The petitioner has knowledge of English Language and as a Medical Representative, he has to contact highly qualified doctors and the chemists who are fully conversant with English Language. It is denied that the law and order situation in Munger, Bihar is bad or other than Bihari is unwelcomed in the area. It is also stated that no fresh appointment have been made by the management. It is submitted that the petitioner has violated the lawful order of transfer, issued to him in the interest of business and exigencies of work. It is denied that the management has ever asked the petitioner to resign from the membership of FMRAI and to join CFWA. It is also denied that CFWA, alleged to be parallel union is supported by the management. Other allegations made in the statement of claim have been denied. It is stated that the petitioner by adopting dilatory tactics himself is keeping away from work and as such, he is not entitled to any relief. It is prayed that the claim of the workman be rejected.
10. Rejoinder filed wherein all the contents of the written statement are controverted and the contentions raised in the statement of claim are reiterated.
11. On the pleadings of parties, the following issues were framed :--8-
1. Whether terms of reference is bad as per para 1 of the preliminary objections ? If so, its effect.
2. Whether terms of reference is barred by res-judicata as per para 3 of WS ? If so, its effect.
3. Whether the employee is covered within the definition of workman ? If so, its effect.
4. Whether the Tribunal has no jurisdiction as alleged in para 9 of WS ?
5. As per terms of reference.
12. The workman-Sandeep Talwar in support of his case has examined himself as WW1 and tendered his affidavit Ex.WW1/A on 09.02.1998. Thereafter, the workman has further examined himself as WW1 and in his examination-in-chief, he has tendered documents Ex.WW1/1 to Ex.WW1/82.
13. On the other hand, the management has examined Sh.
Sanjeev Bhale as MW1 who has tendered his affidavit Ex.MW1/A-3 on 04.05.98. As per order dated 04.05.98 in the case of Alok Kumar Bali bearing I.D.NO.77/06/93, evidence of MW1 is to be read in other two connected cases including the present case also. The management has further examined Sh. Prakash Shetye as MW2 who has tendered his affidavit Ex.MW2/A on 15.11.2006. -9-
14. I have heard Learned ARs for both the parties and have perused the record carefully and my findings are as under :-
15. Learned AR of the workman- Sh. Mukesh Gupta has submitted that the workman was employed with the management since 1987 as a Medical Representative. The workman during the course of employment with the management became the member of Delhi Sales and Medical Representative Association (DSMRA), affiliated to Federation of Medical Representative Association of India (FMRAI). After the membership, the workman started taking very active interest in the union activities of DSMRA & FMRAI. He has further submitted that the union of the workman FMRAI had submitted a charter of demands in April, 1990 to the management for review of wages and better working conditions of the Medical Representatives, employed with the management on all India basis. However, the management was not interested to settle the matter with FMRAI but only with Cipla Field Workers Association (CFWA), the union sponsored and supported by the management. On this account, several meetings between FMRAI and the management took place to negotiate the charter of demands but the management was adamant to settle it with CFWA only. The union of the workman FMRAI strongly opposed the said attitude of the management and ultimately negotiations failed in June, 1990. The management because of his active interest and participation in the union activities got annoyed with the management and started -10- finding ways and means to harass and victimise the workman. The management called a meeting on 13.03.91 for bilateral agreement to discuss the wage review. In the said meeting only 11 Medical Representatives out of the 14 Medical Representatives, posted at the Delhi Headquarter were invited. The workman and his other two colleagues i.e A.K. Bali and I.K. Chawla were not invited in the said meeting malafidely and the workman and his above said colleagues were transferred to far of places. After transferring the workman and his colleagues, the management pressurized the other workmen to sign the bilateral agreement.
16. Learned ARW has further submitted that the management who is not in good terms with the workman due to his union activities, transferred the workman to Munger in Bihar vide letter dated 12.04.91 with the directions to report to the Regional Manager, Patna. Munger is a naxalite inflicted area. The language spoken in Munger is only Bhojpuri which is not known to the workman. On this, the workman filed a civil suit against the management before Sh. N.K. Sharma- Learned Sub Judge, Tis Hazari. The civil Court vide order dated 26.07.91 stayed the transfer order dated 12.04.91. The workman reported for duty at Delhi office but the management in all fairness did not pay any wages to the workman who worked till 31.03.92 at Delhi during the operation of stay order. The workman thereafter filed the conciliation proceedings before the Labour Department through his union -11- DSMRA, affiliated to FMRAI. On the failure of conciliation proceedings, the appropriate Govt. referred the present matter to this Court.
17. Learned ARW has further submitted that the workman is a workman as per Section 2 (s) of the Industrial Disputes Act. The workman was employed at Delhi and was working in Delhi. Moreover, the circular dated 19.09.89 of the management which de- centralize the management gives the jurisdiction to file the suit in Delhi. He has further submitted that the workman was employed with the condition that he would not be transferred out of Delhi. This was agreed by the Personnel Manager- Sh. V.C. Pisharody. It is for this reason that the second appointment letter, in compliance of Section 5 of Sales Promotion Employees (Conditions of Service) Act, 1976 did not contain the clause of transfer. The workman was transferred to Munger in Bihar and was not paid the transportation charges which violated the Clause 4 of Schedule I B of the Industrial Employment (Standing Orders) Central Rules, 1946. Learned ARW has further submitted that the workman cannot be subjected to a new transferee place which was not in existence at the time of his initial appointment. He has further submitted that the workman in fact was not transferred to the transferee place due to exigencies of work but he was transferred to transferee place i.e. Munger with a malafide intention to victimise him. The offer given to the workman during the proceedings and at the stage of final -12- arguments to join at the place of transfer is the most malafide conduct of the management by showing that there is still some alleged requirement of employee at Munger but in fact after the transfer of the workman, none was transferred to the said place from which one can presume that the management did not want any employee in place of workman at Munger. Learned ARW has further submitted that the management succeeded in victimising the workman for his lawful union activities by transferring him to Munger in Bihar which is naxalite prone area and submitted that the transfer order which is malafide be set aside and further prays that the workman be reinstated with full back wages and relied upon 1995 (1) LLJ 303 H.R. Adyanthaya Vs. Sandoz (I) Ltd., 1997(I) LLJ 557 Ripu Daman Bhanot Vs. Labour Court & Cipla Ltd., CWP No.3237/1995 Rakesh Walia Vs. Labour Court and another before Hon'ble High Court of Delhi, 1967 (II) LLJ 12 Workman of Sri Ranga Vilas Motors (P) Ltd. Vs. Sri Ranga Vilas Motors (P) Ltd., and 1998 (II) LLJ 1047 Raj Bahadur Sharma Vs. Union of India.
18. On the other hand, Learned AR of the management Sh. A.K. Hazeley has submitted that the allegations, alleged by the workman against the management are false. In fact, the workman is the employee of the management and he was transferred to Munger in exigencies of business of the management. Learned ARM has further submitted that the services of the workman are -13- required at the transferee place and the management still offers his services at the transferee place if he wishes to join at the place of transfer. He has further submitted that the reference, made by the NCT of Delhi is bad and the Courts of Delhi have no territorial jurisdiction to adjudicate the reference and the present dispute is not an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act. Learned ARM prays that the statement of claim of the workman be rejected.
19. The Hon'ble Supreme Court of India in case 2004 (101) FLR 586 State of UP & Others and Gobardhan Lal has held as under :-
A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned.
This is for the reasons that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of malafides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it, or, on consideration borne out of conjectures or surmises and except for -14- strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
ISSUE NO.1
20. The management, in its written statement in para 1 of the preliminary objections has stated that the statement of claim is not verified as required under the Law. Learned ARM has submitted that since the statement of claim is not verified, the same is liable to be rejected.
21. From the perusal of the record, it shows that the statement of claim is signed by the workman-Sh. Sandeep Talwar through Sh. S.K. Gupta- Authorised Representative. The statement of claim is filed under the Industrial Disputes Act, 1947 and the same has been entertained on the basis of the reference made. As such, issue no.1 is decided against the management and in favour of the workman.
ISSUE NO.2 & 3
22. Issue no.2 & 3 are interconnected and are taken together. The management in para 3 of its written statement has stated that the present dispute is neither of dismissal nor discharge of a -15- workman to come within the purview of Section 2-A of the Act. The management, in the written statement has also taken the objection that the reference for adjudication as made by the appropriate Govt. is bad in law as it has been made mechanically. The workman has challenged his transfer before the Civil Court which has been rejected and decided against the workman in the appeal. The claim of the workman, therefore, in the present form is barred by principle of res-judicata. The management in its written statement has further taken the objection that the present workman is not a workman as defined in the Industrial Disputes Act. The workman in the rejoinder to the written statement has submitted that the Govt. has made the reference after considering all the due facts. The dispute existed is referred and the reference order is not U/s 2-A of the Industrial Disputes Act.
23. Section 2(s) of the Industrial Disputes Act, 1947 reads as under :-
"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, but does not include any such person---16-
(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, 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.
24. Section 6 Sub Clause-2 of the Sales Promotion Employees Act reads as under :-
[(2) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute.
25. The workman in his statement of claim has alleged that he is in the employment of the management since 1987. The management, in its written statement does not dispute the employment of the workman with the management. The present dispute has arisen out of the said employment. The present -17- reference "Whether the transfer of Shri Sandeep Talwar from New Delhi to Munger is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?" is made on 11.06.93. The said reference involves the question of legality and illegality of transfer of the present workman from Delhi to Munger. It means that on the date of reference i.e. 11.06.93, there was an industrial dispute between the management and the workman. Therefore, there was & is an industrial dispute, pending between the workman and the management. As such, the workman is a workman within the meaning of Section 2 (s) of the I.D. Act. It has been so held by Hon'ble High Court of Delhi in CWP No.3237 of 1995, disposed on 19.12.2000.
26. So far as the contention of the Learned ARM that the reference in question is barred by the principle of res-judicata is not convincing. The management has failed to prove that infact the action of the management in transferring the workman outside Delhi has already been adjudicated upon. Therefore, this objection is of no avail to the management.
27. The management has further taken the objection that the present dispute is an industrial dispute and not an industrial dispute. The workman, in his statement of claim has stated that he was an active member of the union Delhi Sales Medical -18- Representative Union which was affiliated to FMRAI. The present reference order shows the workman to be represented by Delhi Sales and Medical Representatives Association. The statement of claim, filed on behalf of the workman before the conciliation officer regarding the dispute of transfer also shows that the workman were represented through Delhi Sales and Medical Representatives Association, D-137, Gautam Nagar, Delhi. The workman has successfully able to prove that the union is representing his cause of transfer in the present case since long. It has been so held in 1961 (II) LLJ 436 Bombay Union of Journalists Vs. Hindu, 1967 (II) LLJ 12 Workman of Sri Ranga Vilas Motors (P) Ltd. Vs. Sri Ranga Vilas Motors (P) Ltd. In view of the discussions made above, issue no.2 & 3 are both decided in favour of the workman and against the management.
ISSUE NO.4
28. The management, in the written statement has taken the preliminary objection that Delhi Courts has got no territorial jurisdiction. The letter of appointment and order of transfer were also issued from Bombay Head Office. Therefore, Delhi Court has no jurisdiction to entertain the present dispute. The workman in the rejoinder to the written statement has stated that the Delhi Courts have got jurisdiction to entertain the present dispute as the dispute is referred by the State Government.
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29. Learned ARM has submitted that the workman is the employee of Cipla Limited having its headquarter at Bombay and the appointment letter and transfer order were issued to him from Bombay Head Office. Therefore, the jurisdiction lies in the Bombay Courts and not in Delhi Courts. He has further submitted that the workman after his transfer, filed a Civil Suit wherein the management has raised the objection with regard to territorial jurisdiction and the appeal of the management succeeded. The judgment in the said dispute between the parties has become final qua against the workman.
30. The contention of Learned AR of the management is not convincing on the ground that the present reference bearing notification F.24(1178)/93-Lab./17721-26 Dated 11.06.93 is referred by the Government of NCT of Delhi. The reference in question indicates that the management has not taken any such objection before the conciliation officer. So far as the judgment of appellate Court is concerned, that too does not talk about the ousting of the Industrial Courts' jurisdiction. Moreover, the workman has relied upon document Ex.WW1/9 which is the circular dated 19.09.89 of the management. The circular dated 19.09.89 is reproduced as under :-
CIPLA INTERNAL COMMUNICATION R.K. SOOD TO: ALL MEMBERS OF DELHI TEAM R.K.S./YP 19th Sep'89 Dear Colleagues:
We are pleased to inform you that with effect from 1st October, 1989, the Sales Services functions -20- have been decentralised. This means from now onwards your Regional Office will look after all your needs including leave sanction, salary disbursement, expense reimbursement, incentive pay- off, etc. To help us to help you effectively, we request you to adhere to the enclosed reporting schedule starting 1st October, 1989.
Please acknowledge receipt of this communication.
With best wishes, Yours sincerely, sd/-
R.K. SOOD Regional Manager,
31. The above said circular shows that the management has decentralized its functions and has given powers to Delhi Regional Office. As such, the Delhi Courts have jurisdiction to entertain the present dispute, referred by the Government of Delhi. Therefore, this issue is decided against the management and in favour of the workman.
ISSUE NO.5
32. The workman, in his statement of claim has stated that the workman was employed with the management of CIPLA Limited w.e.f.03.02.87 as a Trainee Medical Representative. The conduct of the workman was appreciated from time to time by the management. At the time of the appointment, the workman was given to understand that he has been specifically appointed for the territory of Delhi. Sh. V.C. Pishrody, the then Personnel Manager while issuing the appointment letter has pointed out that Clause -8 -21- of the appointment letter will have no effect in the case of the workman and it is just a formal clause. The workman was confirmed vide letter dated 01.02.88. During the course of employment, the workman became the member of DSMRA, affiliated to FMRAI. After the membership, the workman was taking very active interest in the activities of DSMRA & FMRAI which was not liked by the management. With a view to take revenge for the trade union activities of the workman, the management thought of a noble way to get rid off the workman by transferring him to Munger vide letter dated 12.04.91. The transfer so made is malafide and unjustified. The management started deducting salary of the workman and litigation was pending in different Courts. The workman made a complaint to the Labour Department about the illegal and unjustified transfer and despite intervention by the Labour Department, the management did not agree to withdraw the illegal order of transfer. The workman filed a case before the Conciliation Officer and the management thereto bent upon creating circumstances for the workman to leave the job. The transferee place i.e. Munger in Bihar is a naxalite prone area. Moreover, the workman does not understand the local language. After the transfer of the workman, the management got appointed fresh candidates for Delhi which also shows the malafide intentions of the management. The management on the other hand, did not appoint any fresh candidate uptill now at the transferred place where the workman did not join till date. The transfer made is not either for the -22- administrative reasons or for expanding business but for malafide intentions and ulterior motives and prays that the same be set aside.
33. On the other hand, the management, in its written statement has stated that the workman has sought a device in stalling the transfer by taking of a plea which pertains to the alleged conversation long time back for his personal benefits. Transfer is a service condition of the workman. The workman having accepted the letter of appointment with transfer clause without any protest or reservation is estopped by his own conduct. Another letter dated 03.02.87 given to the workman which also contain the provisions of transfer of the workman and he accepted the same without protest or any objection. The management denied having caused any harassment on the pretext of union activities as alleged. In reply to the plea of not knowing Local language, the management has stated that it is the prerogative of the management to decide as to where and at what place services of employee can be better utilised. The management has reviewed its field operational strategies and on such review necessitated creation of new Headquarters at several places owing to business projections and exigencies of better field operations. These new Headquarters needed experienced medical sales representatives to make a beginning and establish promotional activities. With this view, the services of the workman were transferred. It is prayed that the statement of claim of the workman be dismissed. -23-
34. The contention of Learned AR of the workman that the workman was given assurance of not transferring him outside Delhi does not seems to have any force. The first appointment letter dated 03.02.1987 Ex.MW1/1 is reproduced as under :-
___________________________________________ CIPLA PER/A2(c)/762/87 February 03, 1987 Mr.Sandeep Talwar Flat No.59-C Pocket-3, Mayur Vihar Delhi : 110091.
Dear Mr. Talwar With reference to your application dated November 12, 1986 and the subsequent interviews, we have pleasure in offering you full-time employment in our organization initially as a Trainee Medical Representative with effect from February 03, 1987 on the following terms and conditions :
1. You will be on training for a period of six months.
During this period of training, you will be paid a consolidated stipend of Rs.1,050/- (Rupees One Thousand Fifty Only) per month. Your training period may be extended depending upon your performance during training.
2. On satisfactory completion of training, you will be put on probation for a period of six months. During the probationary period you will be paid a consolidated salary of Rs.1,150/- (Rupees One Thousand One Hundred Fifty only) per month. The probationary period may also be extended depending upon your performance during the probation period.
3. On satisfactory completion of the probation period, you will be confirmed in the permanent cadre of the Company and you will be placed in the salary scale applicable to Medical Representatives of the Company. At that time, besides salary, you will be entitled to dearness allowance as per the scheme applicable to Medical Representatives of the Company.
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4. On confirmation, you will be entitled to receive House Rent Assistance, Leave Travel Assistance and Kit Allowance as per the scheme applicable to Medical Representatives of the Company.
5. You will be paid daily allowances as per the following scheme, for the days you do active field work.
Place of work Daily Allowance
a. Headquarters Rs. 26.00 per
working days
b. Ex-headquarters when
covering outstations from
headquarters and involving
a full day's work and returning
to headquarters the same night. Rs. 32.00 per
working day.
c. Outstations i.e. not involving
returning to headquarter the
same night. Rs. 42.00 per
working day.
d. Bombay, Madras, Delhi &
Calcutta as headquarter. Rs. 28.00 per
working day.
Your daily allowance or outstation allowance may be forfeited in full or in part at the discretion of the management if any lapses occur in the submission of your daily reports and other submissions as per the procedures laid down.
6. In due course, you will be eligible for two retirement benefits- Provident Fund and Gratuity provided for by the Company as per rules.
7. In case you are not covered under Employees' State Insurance Scheme, you will be eligible to be covered under the Company's Medical Aid Scheme with an Insurance Company. So also, you will be eligible to be covered under the Company's Group Personal Accident Insurance Scheme. Details of these will be made available to you in due course.
8. Initially, after the class-room training, you will be posted for work in Delhi with Delhi as your headquarters. You may be transferred to work in any territory in the country as the Company may direct from time to time, without being entitled to any extra remuneration.
9. During the training period as well as the probation period, your services may be terminated without assigning any reason and without notice. After confirmation, your services may be terminated by -25- the Company by a notice of one month. If you desire to leave the services of the company, a written notice of one month will have to be given by you. However, the Company has a right to waive the period of notice and relieve you immediately on receipt of your notice, in which case no salary will be payable for the period of notice so waived.
10. You will visit at least 10 doctors per day and detail our products to them. You are requested to submit daily reports of your day-to-day work, as also weekly and monthly reports as per the procedures of the Company laid down from time to time. You are expected to visit chemists, Druggists them for stocking the Company's products. You are required to abide by the work norms and working practices as set out in the annexure hereto.
11. We clearly disapprove of your engaging in or devoting any time or attention to any part-time employment or business or monetary position other than that of the Company.
12. You will abide by the service rules applicable to Medical Representatives, other regulations and discipline of the Company. A copy of the service rules is enclosed.
13. As per the Company's Rules, on confirmation, you will be eligible for casual leave of 7 days, sick leave of 7 days and 21 days (actual working days) privilege leave in a calender year. A copy of the leave rules applicable to Medical Representatives is enclosed.
14. This is something which may not be of immediate interest to you, but nevertheless important to note that as per our Company's policy the retirement age is 55 years.
15. You will carry out all the instructions given by the head office from time to time to the best of your knowledge and ability and work in close co-
operation with other representatives and officers of the Company.
16. Your appointment is subject to your being declared medically fit in the medical check-up, which will be conducted by the Company at the time of your joining and periodically thereafter. On being found that you are unfit, your services are liable to be terminated.
17. Your date of birth as recorded at the time of your appointment with the Company is 22/02/1965. You are required to take note of this, as this date will be considered as the authenticated date of birth for all -26- purposes throughout your service with the Company.
18. You shall communicate to the Company any change in your address as well as personal status. All communications sent to you in the normal course on the address given by you shall be deemed to have been received by you.
19. Any dispute arising out of and/or related to your employment with the Company shall be subject to Bombay Jurisdiction only.
Please confirm in writing your acceptance of the terms and conditions of your appointment as stated in this letter. You are requested to sign in the space provided below and return one copy fo this letter as a token of your acceptance.
Yours sincerely, For Cipla Ltd.
sd/-
V C Pisharody Personnel Manager I have read the above terms and conditions. I have understood them and I hereby accept the appointment on the said terms and conditions.
Sd/-
Signature of the employee :
Date: 13.02.87 Encl: a/a.
35. The additional appointment letter dated 26.02.1988, along with the service rules Ex.MW1/3, to meet the provisions of Sales Promotion Employees Act, issued to the workman is reproduced as under :-
CIPLA February 26, 1988 Dear Mr. Talwar Ref: Letter of appointment.
Vide notification no.S.O.458(E) dated 5.5.1987, the Sales Promotion Employees (Condition of Service) Amendment Act, 1986 comes into force from 6.5.1987. In terms of Section 5(a) of the Act, a letter of appointment as required by Rule 22(1) and as -27- specified in Form 'A' has to be issued to all Representatives. In view of these requirements, we are sending herewith a letter of appointment.
Yours sincerely, For Cipla Ltd.
sd/-
Sanjeev Bhale Personel Executive Encl: as above.
FORM A Under Section 5(a) of the Sales Promotion Employees (Conditions of Service) Act, 1976 read with Rule 22 (1) of Sales Promotion Employees (Conditions of Service) Rules, 1976.
LETTER OF APPOINTMENT
1. Name of the establishment : Cipla Ltd.
2. Address : Bombay Central Bombay 400 008.
3. Name of employer : Cipla Ltd.
4. Name and address of the Sales Promotion : Mr. Sandeep Talwar employee Flat No. 59-C, Pocket 3, Mayur Vihar Delhi- 110091.
5. You were appointed as a permanent Medical Representative with effect from 03/02/87 and are placed at Delhi. You were originally appointed on probation for a period of six months which could have been extended by a further period of six months and you have already successfully completed the same.
6. Your current grade and scale of wage is 800-50-
900-55-1175-60-1475-65-1800-70-2150-75-2525.
7. You are drawing a basic wage of Rs.800/- per month. In addition to this, you are also receiving dearness allowance and other allowances as detailed in Annexure 'A'.
8. You are eligible for two retirement benefits-
Provident Fund and Gratuity- provided for by the Company as per Rules.
9. You are eligible to be covered under the Company's Group Personal Accident Insurance Scheme, details of which have been made available to you.
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10. As a responsible, result oriented and disciplined member of the management team, you will perform your work as per the guidelines and instructions given by the Company and your superiors from time to time with regard to all aspects of your responsibility.
11. You are responsible for successful implementation of the Company's marketing strategies and programmes towards creating increased demand for the products in the assigned territory and achieving the business targets, adherence to reporting systems, maintenance of required documents and records, participation in training and development programmes.
12. You will be in full-time employment with the Company and shall not engage in or devote any time or attention to any part-time employment or business or monetary position other than that of the Company.
13. As per the Service Rules applicable to you, you will kbe superannuated on 29/02/2020.
14. In case the information provided by you regarding personal details and work experience or other relevant details are found to be malafide, the Company has a right to terminate your services.
15. You are bound by the Service Rules, other regulations and discipline of the Company, applicable to Representatives. A copy of the Service Rules brought up to date is enclosed herewith.
16. Any dispute arising out of an/or related to your employment with the Company shall be subject to Bombay Jurisdiction only.
Date: 26/02/1988 Signature of the employer For Cipla Ltd.
sd/-
S V Iyer Personnel Manager Encl: as above.
36. Clause-10 of the Service Rules Ex.MW1/3 reads as under:-
A Representative may be transferred to work in any territory in the country as the Company may -29- direct from time to time, without being entitled to any extra remuneration.
37. The issuance of the first appointment letter Ex.MW1/1 and the issuance of second/ additional appointment letter along with service rules Ex.MW1/3 is not disputed between the parties. The management, in its written statement has denied of giving any verbal assurance by any official of the management to the workman of not transferring him out of Delhi.
38. A bare perusal of the first appointment letter Ex.MW1/1 and the additional appointment letter dated 26.02.88 to meet the provisions of Sales Promotion Employees Act shows that the appointment of the workman with the management was subject to the transfer in the territory anywhere in India. Therefore, it is apparent that the appointment of the workman with the management was subject to transfer in the territory anywhere in India from his initial date of appointment.
39. The contention of Learned AR of the workman that the workman during the course of the employment with the management became the member of DSMRA & FMRAI, as a result of which the management annoyed and victimised him by transferring him to Munger in Bihar is also not convincing. -30-
40. Clause-8 of the first appointment letter Ex.MW1/1 and Clause-10 of the Service Rules Ex.MW1/3 indicate that the service of the workman was subject to the transfer in the territory anywhere in India. This fact, the workman knew from the initial date of his appointment.
41. In para-1 of the statement of claim, the workman has specifically stated that he is in the service of the management since 03.02.87. The transfer letter dated 12.04.1991 Ex.WW1/X-1 is reproduced as under :-
CIPLA PER (S4(c)/1266/91.
April 12, 1991
Mr. Sandeep Talwar REGISTERED A.D.
Flat No.59-C, Pocket 3 UNDER CERTIFICATE OF
New Delhi : 110091. POSTING
Dear Mr. Talwar,
In order to take care of our business growth, we have reorganised the field structure. Accordingly, you have been transferred to Munger headquarter with effect from May 01, 1991.
Please report to Mr. S.A. Narain, Regional Manager, at 9.30 a.m. on that day at the following address :
Cipla Sales Office Opp Fauzi Daftar Madhuraj, Radendra Path Patna : 800 001.
You are requested to intimate your new bank account number and the changed residential address at the earliest.
With best wishes, Yours sincerely, sd/-
Mohan T Motwani General Manager- Marketing.-31-
42. The above said transfer letter shows that the workman's headquarter was fixed at Munger and he was directed to report to the Regional Manager, Patna.
43. The plea of the workman that Munger is a naxalite prone area and he does not know local language and his transfer was not made in exigencies of the business but to victimise him cannot be accepted because the service conditions of the workman are governed by individual contract and not from the Industrial Employment (Standing Orders) Act. It has been so held by Hon'ble High Court of Delhi in 2007 LLR 127 Arifa Nauman and Ors. Vs. Govt. of NCT of Delhi and Ors.
44. The transfer order was passed as per the terms of the employment. It is the prerogative of the management to deploy its work force so as to yield best utilisation from the employees.
Transfer of an employee from one place to another is an incident of service and the employer can exercise such powers, hence the concerned employee who has been transferred also for several times will not be justified in making complaint about change in conditions of service. It has been so held by Hon'ble High Court of Madras 2006 LLR 1204 in case Management M/s. Gedee Weller (Pvt.) Ltd., Coimbatore Vs. (1) P.Swaminathan (2) Presiding Officer, Labour Court, Coimbatore.
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45. In the present case, the workman has spent more than four years in Delhi and he was supposed to be transferred from Delhi to any other part in the country. So far as his transfer to Munger is concerned, it is the management who knows best to use his ability in the particular area and it is not the workman who will decide his transfer posting.
46. The plea of the workman of the transferee place being a naxalite prone area and Munger is a newly created station to which the workman cannot be subjected to transfer is not going to help the workman particularly when the workman is from Delhi and working in Delhi for the last more than four years, definitely he may like to stay in Delhi under the false pretext of victimisation on ground of union activities. If this plea is accepted then nonelse could be transferred to Munger and the very policy of transfer will be stalled
47. The letters, written from the side of the management, as relied upon by the workman against the management are not going to help the workman as the same ipso-facto does not show that the workman is directly victimised by the management. Further the letters, written by the side of the workman Ex.WW1/20 & Ex.WW1/38 are simply an allegation against the management under the garb of having convenience to stay at Delhi and does not inspire confidence of victimisation.
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48. So far as the protest letter against the management for non-
receiving of the wages by the workman are concerned, the same is not the issue in question and is not covered under the present reference. The workman is at liberty to raise the said issue before the appropriate forum.
49. It is an admitted fact that after the transfer order, the workman has not joined the transferee place i.e. Munger till date. It is again an admitted fact that the management has not filled up the vacancy at the transferee place and the management, even during the course of the final arguments, has offered the workman to join at the transferee place but the workman refused to join at the transferee place. Thus, in view of the judgment Augusty Antony Kachappilly Vs. M/s. Varroc Engineering Pvt. Ltd. 2006 LLR 1154, I find no merit in the case of the workman and as such, no interference in the transfer order, in question is required. The judgments, relied upon by Learned AR of the workman on the point of malafide transfer are no help to the workman. As such, this issue is decided against the workman and in favour of the management.
50. In view of the above discussions, it is held that the workman is not entitled to any relief under the present reference. Reference is answered against the workman. Award is passed, accordingly. Dated: 13.02.2007.
(I.S. MEHTA) PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO.I:
DELHI.
(One separate copy attached).