Allahabad High Court
E. Merck India Ltd. Thru Director ... vs The Labour Court U.P. At Rampur And ... on 21 July, 2023
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:144024
Reserved
Court No. - 5
Case :- WRIT - C No. - 33499 of 2003
Petitioner :- E. Merck India Ltd. Thru Director And Auth. Signatory
Respondent :- The Labour Court U.P. At Rampur And Another
Counsel for Petitioner :- M.K. Gupta,S.K. Chaturvedi
Counsel for Respondent :- C.S.C.,Kumar Ashutosh Srivastava,S.S. Nigam,Y.K. Sinha
Hon'ble Piyush Agrawal,J.
1. Heard Mr. S.K. Chaturvedi for the petitioner and learned Standing Counsel for State.
2. No body appears on behalf of respondent no. 2 even if the case was taken up in the revised call.
3. By means of this writ petition, the petitioner is assailing the order dated 9.12.2022 (as published on 7.3.2003) passed by the Labour Court, respondent no.1.
4. Brief facts of the case are that the petitioner is a company incorporated under the Companies Act, 1956 in which respondent no. 2 was working as Field Executive/ Medical Representative and admittedly getting more than Rs. 12,000/- per month including commission. However, on some misconduct, after conducting proper inquiry, respondent no. 2 was terminated from service. Thereafter respondent no. 2 has raised a dispute by way of filing a reference before the Labour Court under Section 4 K of the Industrial Disputes Act, 1946 that termination of his service with effect from 21.4.1997 is illegal. The Labour Court by the impugned award has reinstated respondent no. 2 in service along with back wages. Hence the present petition.
5. Learned counsel for the petitioner submits that respondent no. 2 was Field Executive and was paid wages of Rs. 12,000/- per month including commission. However after detailed inquiry, the services of respondent no. 2 was terminated as found guilty of misconduct of serious nature. Learned counsel for the petitioner further submits that since respondent no. 2 did not fall under the category of "workmen" as prescribed under Section 2 (s) (iv) read with Section 2 (rr) his wages including the commission paid on promotion of sale, was above the prescribed limit. He further submits that Sales Promotional Employees (Condition and Service) Act 1976 which was effected from 6.3.1979 also prohibits for initiating the proceedings under Industrial Disputes Act. He submits that respondent no. 2 filed a Suit No. 474 of 1997 before the Civil Judge (Senior Division), Moradabad against the termination order. When objection was raised by the petitioner before the Labour Court with regard to concealment of fact of filing the civil suit, the respondent no. 2 had withdrawn the suit. He submits that the reference as well as the award itself is bad and are liable to be set aside. He prays for allowing the writ petition.
6. The Court has perused the records.
7. It is admitted between the parties that respondent no. 2 was engaged in work of sale and promotion as Field Executive /Medical Representative. The respondent no. 2 has admittedly getting the wages more than 12,000/- including commission from the petitioner. The services of respondent no.2 was terminated after a detailed inquiry conducted by the petitioner in which respondent no. 2 was found guilty.
8. Section 2 (s) read with Section 2 (rr) of Industrial Disputes Act are quoted hereunder:-
2(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 [ten thousand 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.]
2(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 supply of light, water, medical attendance or other amenity or of any service or of any concessional supply offoodgrains 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;]
[emphasis supplied by this Court]
9. On perusal of the said Sections, it shows that the workman does not include, who is getting back wages for more than 10,000/-. Further Section 2(rr) refers the wages including any commission payable on promotion of sales or business or both. In the case in hand, it is admitted that the petitioner being paid Rs. 12,000/- per month and the said fact is neither disputed in the counter affidavit nor any material was brought on record contrary to it.
10. This Court in the case of Anglo French Drug Co. (Eastern) Vs. Presiding Officer, Labour Court, (2004), 2 UPLBEC 1577, has held that the medical representative cannot be treated as workman under Industrial Disputes Act and there reference under Industrial Dispute Act, cannot be adjudicated. Relevant para 47 of the said judgment is quoted hereunder:-
"47. In the peculiar facts and circumstances of the case, as the respondent -employees had been appointed as a Medical Representative and had been indulging in canvassing and promoting the sale of the products of the employer, even if he had made certain sales and was also asked to make recovery that may not be held to be his dominance, therefore, he cannot be held to be a workman within the meaning of Section 2 (s) of the Central Act. More so, as the services of the respondent employee stood terminated prior to Amendment Act, 1986, in Act, 1976, and he was getting salary more than Rs. 750 per month on the date of termination, he could not be held to be workman."
11. Hon'ble the Apex Court in the case of H.R. Adyanthaya Etc. Vs. Sandoz (India) Ltd., AIR 1994 SC 2608 has taken the same view and held that the medical representative is not a workman.
12. In view of the admitted fact on record that respondent no. 2 is Medical Representative in the company of the petitioner and getting wages of more than Rs. 12,000/- p.m. including the commission, he does not fall under the category of workman.
13. In view of above observations, the impugned award cannot be sustained and is hereby quashed. The writ petition is allowed accordingly.
Order Date :- 21.7.2023
Rahul Dwivedi/-
