Rajasthan High Court - Jaipur
Rajasthan Medical And Sales ... vs Industrial Research Institute Pvt. ... on 28 March, 2000
Equivalent citations: [2000(87)FLR563], (2001)ILLJ91RAJ, 2000(4)WLC473
ORDER
1. To overcome such situation because of the Apex Court-judgment in the case of May and Baker (India) Ltd. v. Workmen AIR 1967 SC 678 : 1961-II-LLJ-94 whereby the employees engaged in sales promotion were held to be not falling within the purview of the definition of 'workman' under the Industrial Disputes Act and when such class of employees sought protection of security of their employment and particularly in the case of medical representatives in the firm Medicine Industry, the Parliament had enacted the Sales Promotion Employees (Conditions of Service) Act, 1976 (hereinafter referred to as SPE Act).
2. The statement of objects and reasons for regulating certain conditions of service of such sales promotion employees as published in the Gazette of India (Extraordinary) dated May 14, 1975 Part II page 400 as under:
"An Act to regulate certain conditions of service of sales promotion employees in certain establishments - Prefatory Note:
Statement of Objects and Reasons as a result of the Supreme Court judgment in the case of May and Baker (India) Limited v. Workmen (supra), the persons engaged in sales promotion do not come within the purview of the definition of "workman", under the Industrial Disputes Act, 1947 and as such they have no protection regarding security of employment and other benefits under that Act. These persons, particularly the medical representatives in the Pharmaceutical Industry have been demanding from time to time that they should be covered by Industrial Disputes Act. On a petition made by the Federation of Medical Representatives Association of, India, the Committee on Petitions (Rajya Sabha) in its thirteenth report submitted on March, 14, 1972, came to the conclusion that "the ends of social justice to this class of people will not be met only by suitably, amending the definition of the term 'workman' in the Industrial Disputes Act, 1947 in a manner that the medical representatives are also covered by the definition of 'workman' in the said Act.
The Committee also felt that other workers engaged in sales promotions should similarly be considered as workmen.
(2) Keeping in view the justification of the demand of the sales promotion employees, and the recommendation made by the Committee on Petitions, and taking other relevant aspects into consideration, it is considered more appropriate to have a separate legislation for governing the conditions of service of sales promotion employees, instead of amending the Industrial Disputes Act, 1947 to bring such employees within its purview."
3. Under Section 2(d) "sales promotion employees" 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, with the exception that the employees engaged in supervisory capacity, draws wages exceeding certain amount or engaged mainly in a managerial or administrative capacity.
4. Under Section 6, the provisions of the Industrial Disputes Act were made applicable to such sales promotion employees. The relevant provisions of Section 2(d) and that of Section 6(2) are reproduced as under:
2(d) sales promotion employees 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 supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or
(ii) who is employed or engaged mainly in a managerial or administrative capacity.
6(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 the 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."
5. The appellant writ petitioners were admittedly working as Medical Representatives with the private respondents. Their services were terminated with the result that the reference was made to the Labour Court cum Industrial Tribunal to adjudicate on the legality, justification or propriety of the order of termination. The Labour Court cum Industrial Tribunal vide order Annexure 5 in S.B. Civil Writ Petition No. 4970/1996 (D.B. Civil Special Appeal No. 764/1998) dismissed the reference holding, therein, that the medical representatives do not fall within the purview of the definition 'workman' and, therefore, despite the fact that the reference had been made, the Labour Court cum Industrial Tribunal had declined to exercise its jurisdiction. The Labour Court cum Industrial Tribunal primarily relied on the judgment of 1 the Apex Court in the case of H.R Adyanthaya v. Sandoz (India) Ltd., AIR 1994 SC 2608 : 1994 (5) SCC 737 : 1995-I-LLJ-303 it is stated by the counsel for the appellant as a matter of fact before the Labour Court cum Industrial ] Tribunal, no reply had been, filed by the respondent management.
6. Being aggrieved against the orders of the Labour Court cum Industrial Tribunal the, petitioners had filed the writ petitions which writ petitions had been dismissed by the learned single Judge vide the order impugned, confirming the orders of the Labour Court cum Industrial Tribunal to the effect that the medical, representatives do not fall within the purview of the definition of 'workman'. Reliance had been placed on the case of H.R. Adyanthaya (supra) decided by the Apex Court.
7. In our view, neither the Labour Court cum Industrial Tribunal nor the learned single Judge had appreciated the judgment in H.R Adyanthaya (supra) case correctly and hence the matter has not been decided correctly and both the cases need to be remanded back to the Labour Court cum Industrial Tribunal for deciding the same on merits on the reasons as below.
8. As has been narrated above, the SPE Act was enacted for bringing into the purview of the definition of 'workman' the sales promotion employees which includes the medical representatives. Initially, when the SPE Act was enacted only those employees drawing salary not exceeding seven hundred' and fifty rupees per mensem were brought within the purview of workman in the year 1976 which was later on amended in the year 1986 which came into force on May 6, 1987 by the amending Act 48 of 1986 and by the said amendment, the definition of sales promotion I employees was expanded so as to include all sales promotion employees without a ceiling on their wages except those employed or engaged in a supervisory capacity drawing wages exceeding Rs. 1600/- per mensem and those employed or engaged mainly in managerial or administrative capacity.
9. From the bare reading of the definition of sales promotion employees and sub-section (2) of Section 6 it becomes clear that from March 6, 1976 the provisions of the Industrial Disputes Act became applicable to the medical representatives depending upon their wages upto May 6, 1987 and without the limitation on their wages thereafter, but subject to capacity in which they were employed or engaged.
10. The Apex Court in H.R. Adyanathaya's case (supra) was seized of the cases of termination of the services of the medical representatives whose services were terminated before coming into force of the SPE Act. At the time when the services of the medical representatives were terminated in H.R. Adyanthaya's case, the SPE Act was neither in force nor their wages were less than Rs. 750/-per mensem excluding the commission of Rs. 9,000/- per annum including the commission and thus the SPE Act was not applicable to them. The employees concerned in Adyanthaya's case were non suited mainly on two grounds: (1) that the SPE Act was not applicable to them; (2) that it was nowhere mentioned that their wages were less than the prescription of wages mentioned in the definition of the workman as prevailing at the time and on that pretext only the Apex Court had non-suited the employees by holding that the medical representatives involved in the case of H.R. Adyanthaya's case (supra) were not workmen.
11. In the present special appeals and the writ petitions, the concerned medical representatives were employed and terminated when the SPE Act as amended up to date was applicable and thus the recourse of H.R. Adyanthaya's case is not applicable to the present case. It seems that this aspect has escaped the attention of the Labour Court cum Industrial Tribunal as well, the learned single Judge. Rather, the observations in H.R. Adyanthaya 's case are quite clear for laying down the law that after coming into force of the SPE Act, the medical representatives fall within the purview of the Act as observed under:
"The SPE Act was amended by the Amending Act 48 of 1986 which came into force w.e.f. May 6, 1987. By the said, amendment, among others, the definition of sales promotion employee was expanded so as to include all sales promotion employees without a ceiling on their wages except those employed or engaged in a supervisory, capacity drawing wages exceeding Rs. 1600/- per mensem and those employed or engaged mainly in managerial or administrative capacity."
12. In view of the above said discussion, the special appeal is allowed and it is held that the order of the learned single Judge in the case cannot be upheld and the impugned award passed by the Labour Court cum Industrial Tribunal, is set aside and it is held that the medical representatives do fall under the definition 'workmen' after coming into force the SPE Act as amended without a ceiling on their wages except when they are employed or engaged in supervisory capacity or in managerial or administrative capacity with the direction that the concerned Labour Court cum Industrial Tribunal shall decide the reference on merits.
13. For the reasons that nobody has appeared on behalf of private respondents, the costs are made easy.