Gujarat High Court
Sandip Mansukhlal Ardesana vs General Manager (Hr), Unicure Remedies ... on 29 August, 2019
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/7241/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7241 of 2019
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SANDIP MANSUKHLAL ARDESANA
Versus
GENERAL MANAGER (HR), UNICURE REMEDIES PVT LTD
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Appearance:
JEET Y RAJYAGURU(8039) for the Petitioner(s) No. 1
MR AS VAKIL(962) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 29/08/2019
ORAL ORDER
1. This petition under Articles 226 & 227 of the Constitution of India challenges the order dated 11.02.2019 passed by the Presiding Officer, Labour Court, Rajkot in Recovery Application No. 69/2016 by which the petitioner's application under Section 33C(2) of the Industrial Disputes Act, 1947 for recovery of certain amounts was rejected on the short ground that the petitioner being a Medical Representative would not fall within the purview of the Industrial Disputes Act, 1947.
2. Perusal of the order under challenge would indicate that it was undisputed even by the petitioner that he was a Medical Representative which has been observed by the Labour Court considering the decision of the Apex Court in the case of H.R. Adyantha vs. Sandoz (India) Ltd. [AIR 1994 SC 2608] which holds that a Medical Representative Page 1 of 6 Downloaded on : Sat Aug 31 00:21:20 IST 2019 C/SCA/7241/2019 ORDER cannot be termed to be a workman.
3. Mr. Jeet Rajyaguru, learned advocate for the petitioner has drawn my attention to the fact that in view of the provisions of Section 6(2) of the Sales Promotion Employees Act, 1976, the provisions of the Industrial Disputes Act, 1947 were made applicable to such employees. In support of his submissions, Mr. Rajyaguru has relied on the decision of the Rajasthan High Court in the case of Rajasthan Medical And Sales Representatives Union vs. Industrial Research Institute Pvt. Ltd reported in 2001(1) LLJ 91 and Dolphin Laboratories Limited vs. Judge, Labour Court, Udaipur [2001(1) RajLR 718].
4. Mr. Apurva Vakil, learned advocate for the respondent has drawn my attention to the amended provision of Section 6 of the Sales Promotion Employees Act, 1976 by which it is evident that sub-section (2) of Section 6 has been omitted. By virtue of such clarification therefore expressly the provisions of the Industrial Disputes Act would not apply in case of a Medical Representative. He has also relied on a decision of this Court in the case of Rajnikant Narsinhdas Shah vs. Interfama Distribution reported in 2004(4) LLJ 200
5. Sub Clause-2 of Section 6 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 Page 2 of 6 Downloaded on : Sat Aug 31 00:21:20 IST 2019 C/SCA/7241/2019 ORDER 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.
5.1 On the enforcement of Section 24 of the Act 46 of 1982, Section 6(2) has been omitted.
5.3 Having heard learned advocates appearing for the respective parties and having gone through the records, this Court is of the view that the decision cited and relied upon by the Labour Court in the case of H.R. Adyanthaya (supra) by which it is expressly held that a Medical Representative is not a workman would squarely be applicable to the facts of the present case. The decision rendered in the case of H.R. Adyanthaya (supra) by the Constitution Bench of the Supreme Court holding that the work of the promotion of sales of the products or services of the establishments is distinct from and independent of the types of work covered by the definition of Section 2(s) of the I.D. Act and therefore the definition of workman under the I.D. Act will not obviously cover the Sales Promotion Employees (Conditions of Service) Act, 1976, holds the field and that the law remains that a sales representative is not a workman under the Industrial Disputes Act.
5.4 Further, in view of the fact that sub-section (2) of Section 6 of the Sales Promotion Employees (Conditions of Service) Act, 1976, relating to the application of the I.D. Act has been omitted on the enforcement of Section 24 of the Act 46 of 1982, the petitioner cannot be termed as a workman as Page 3 of 6 Downloaded on : Sat Aug 31 00:21:20 IST 2019 C/SCA/7241/2019 ORDER per Section 2(s) of the I.D. Act, 1947 and in that view of the matter, the present petition deserves to be dismissed.
5.5 So far as the decisions of the Rajasthan High Court cited by learned advocate for the petitioner is concerned , the same shall not have a persuasive value in view of the decision of this Court in the case of Rajnikant Shah (supra) wherein this Court following the decision of the Apex Court in the case of H.R. Adyanthaya (supra) has held as under:
"3. Mr. GA Doshi, ld. advocate appearing for the petitioner is not present at the time when the petition was called out once in the 1st session and thereafter in the second session. Mr. BA Vaishnav, ld. advocate appearing for Mr. KV Gadhia for the respondent submits that the Labour Court has rejected the application after appreciation of evidence and therefore this Court while exercising writ jurisdiction under Art. 226/227 of the Constitution should not interfere or disturb the finding given by the Labour Court. He has further submitted that since the petitioner was not a workman within the definition of Section 2(s) of the Industrial Disputes Act, the Recovery Application filed by the petitioner before the Labour Court was not maintainable and hence the Labour Court has rightly rejected the recovery application filed by the petitioner. Mr. Vaishnav has placed reliance on the decision of the Hon'ble Supreme Court in the case of H.R. Adyanthaya etc.etc. vs. Sandoz (India) Ltd - AIR 1994 SC 2608, wherein it is held that the medical representatives do not perform duties of skilled and technical nature and, therefore, they are not workmen. The Court has discussed at length the correct position of law emerging from the judicial decisions, statutory provisions and the changes made therein. After discussing the case law on the subject and the statutory provisions, the Hon'ble Supreme Court has come to the conclusion that "the word "skilled" would not include the kind of work done by the sales promotion employees.Page 4 of 6 Downloaded on : Sat Aug 31 00:21:20 IST 2019 C/SCA/7241/2019 ORDER
For the very same reason, the word "operational"
would also not include the said work. To hold that everyone who is connected with any operation of manufacturing or sales is a workman would render the categorisation of the different types of work mentioned in the main part of the definition meaningless and redundant." It was further held that the word "skilled" in the context in which it is used will not include the work of Sales Promotion employee such as the medical representative. 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. On the basis of this judgment as well as on the basis of the authorities relied on before the Labour Court, Mr. Vaishnav has submitted that no error is committed by the Labour Court in rejecting the Recovery Application and hence the petition should be dismissed with costs.
4. I have heard Mr. Vaishnav and I have also gone through the facts stated and averments made in the petition as well as in affidavit-in-reply. I have also gone through the order passed by the Labour Court and the authorities discussed therein. I am of the view that the Labour Court has reached the conclusion after appreciation of the evidence on record and has rightly arrived at the conclusion that no adequate evidence was led by the petitioner in support of his claim and the petitioner has failed to prove his claim before the Labour Court. Since the petitioner, being a medical representative, cannot be considered as the "workman" within the meaning of Section 2(s) of the Industrial Disputes Act. Based on the judgment of the Hon'ble Supreme Court, the Labour Court has rightly held that the Recovery Application filed by the petitioner was not maintainable. Thus, on both the points, that is on merits as well as on legality, the order of the Labour Court does not call for any interference by this Court while exercising the writ jurisdiction under Article 226/227 of the Constitution of India. The petition is, therefore, dismissed. Rule is discharged with no order as to costs"
Page 5 of 6 Downloaded on : Sat Aug 31 00:21:20 IST 2019 C/SCA/7241/2019 ORDER6. For the foregoing reasons, petition deserves to be dismissed and is accordingly dismissed.
(BIREN VAISHNAV, J) DIVYA Page 6 of 6 Downloaded on : Sat Aug 31 00:21:20 IST 2019