Shri R.K. Madan And Anr. vs Govt. Of Nct Of Delhi And Ors.
2005 Latest Caselaw 424 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule. With the consent of the learned counsel for the parties, the writ petition is taken up today for final hearing.

2. The petitioners were employed by the respondent No.3, M/s Hoechst, a pharmaceutical company as Medical Representatives. The respondent No.1 is the Government of National Capital Territory of Delhi, through Secretary(Labour), Delhi and respondent No.2 is the Assistant Labour Commissioner (South Distt), Kalkaji, New Delhi. The respondents 4 to 10 are management executives of the respondent No.3 Company. The petitioners' services were terminated pursuant to what according to them was an unfair ex-parte enquiry deliberately conducted at Bombay and not at Delhi by the respondent No.3. This led to the seeking of a reference from the respondent No.2, who declined the reference by the impugned order dated 2nd September, 1998.

3. This writ petition has two facets of challenge. The first challenge is to the Order of 2nd September, 1998 which reads as follows:-

"Government of NCT of Delhi O/o Asstt. Labour Commissioner, South District, Giri Nagar, Kalkaji, New Delhi-19.

No.C-200/ALC/S/98//13454 Dated:2.9.1998

Shri R.K. Madan & Another, Through Hoechst Field Staff Committee, New Delhi Branch and Hoechst All India Representative Committee, 31-A, Malviya Nagar, New Delhi-17.

Subject: Your request to proceed against M/s Hoechst Marion Roussel Limited under the Industrial Disputes Act, 1947 for committing unfair labour practices.

With reference to the above subject we kindly request you to refer to your complaint. In this regard, I am directed to state that you do not come within the purview of the definition of workman as defined by the Industrial Disputes Act, 1947. Thus, this office is unable to proceed any further in your matter under the Industrial Disputes Act, 1947.

Sd/-

(S.P. Singh) Asstt. Labour Commissioner/ Conciliation Officer"

4. The second facet of the challenge in the writ petition arises from an application/representation dated 17th April, 1998 written by the petitioner to the respondents 1 & 2 for prosecution of respondents 3 to 10 under Section 25 and 25 read with Section 29 and Fifth Schedule (1) of the Industrial Disputes Act, 1947(hereinafter referred to as the `ID Act') which according to the petitioners, has not been decided one way or the other by the respondents 1 & 2.

5. In so far as the first plea relating to the challenge to the order of 2nd September, 1998, rejecting the petitioners' prayer for making a reference of their disputes to adjudication is concerned, there are two defects in the said order dated 2nd September, 1998, (i) it has attempted to adjudicate the merits of the dispute which is contrary to the well-settled position of law laid down by the Hon'ble Supreme Court as well as of this Court in the following judgments, holding that the Labour Secretary while exercising powers under Section 10 of the Industrial Disputes Act while making an order of reference, does not have the right to adjudicate the matter on merits:

1. Telco Convoy Drivers Mazdoor Sangh v. State of Bihar 1989 SCC (L & S) 465

2. Ram Avtar Sharma v. State of Haryana ;

3. M.P. Irrigation Karamchari Sangh v. State of M.P. :

4. Shambu Nath Goyal v. Bank of Baroda

5. Bombay Union of Journalists v. State of Bombay .

6. Sharad Kumar v. Govt. of NCT of Delhi and Ors.

(ii) Furthermore even the reasoning given about the inapplicability of the provisions of the ID Act is contrary to the well settled position of law laid down by this Court in a judgment delivered on 14th May, 2001 in Civil Writ Petition No.5611 of 1998 titled as "Sandeep Gupta and Ors. v. The Hindustan Antibiotics Ltd. and Ors." which reads as follows:-

"10. I am, therefore, satisfied that irrespective of the fact that the amended definition of the Act regarding the definition of the `industry' had not come into operation of the `workman' may not cover the sales promotion employees as per the law laid down by the Supreme Court, in so far as the operation of section 6 is concerned, the provisions of the Act would become inapplicable to such persons. Consequently, while the Tribunal may not have been wrong in holding that the petitioners herein did not come within the definition of `workman' under section 2 of the 1947 Act, but its consequent finding that due to the above finding the Tribunal did not have jurisdiction to deal with the dispute, is unsustainable in view of S. 6(2) of the 1976 Act, and the finding of the Supreme Court in Para 4 of H.R. Adanthaya's Case (Supra). Even if the petitioners did not fall within the conventional definition of `workmen' under S. 2(s) of the Act, nevertheless as per the dictum of law laid down by the Supreme Court, the provisions of Industrial Disputes Act, 1947 do apply to Sales Promotion Employees and consequently the Tribunal was in error declining to deal with the dispute on merits. In my view such a query qua definition of workmen under S. 2(s) of the 1947 Act and the answer to such a query in the negative were clearly of no relevance in view of the mandate of Section 6(2) of the 1976 Act."

6. The aforesaid judgment was based upon a Constitution Bench judgment of the Hon'ble Supreme Court in H.R. Adyanthaya Etc. v. Sandoz (India) Ltd., reported as wherein it had been held as follows:-

"In other words on and from 6th March 1976 the provisions of the ID Act became applicable to the medical representatives depending upon their wages up to 6th May 1987 and without the limitation on their wages thereafter and upon the capacity in which they are employed or engaged."

Even proceeding on the assumption that the merits of the matter could have been looked by the Asst. Labour Commissioner, the reasoning given for rejecting the reference in the Order dated 2nd September, 1998 is directly contrary to the well settled position of law laid down by the Constitution Bench of the Hon'ble Supreme Court as interpreted by this Court in Sandeep Gupta's case (supra). Accordingly the order dated 2nd September, 1998 impugned in the writ petition is unsustainable.

7. In so far as the other plea is concerned, the grievance of the petitioner is the continued inaction of the respondents 1 & 2 in not acting upon the complaint made by the petitioner under Section 25T and 25 of the ID Act as cognizance under Section 34 of the ID Act in such a complaint, can only be taken upon a complaint made by the appropriate Government or the complaint made by the authority of the appropriate Government.

8. Sections 25T, 25U and 34 of the ID Act reads as follows:-

"25T. Prohibition of unfair labour practice.___ No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.

25U. Penalty for committing unfair labour practices.__Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.

34. Cognizance of offences.__(1) No Court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government

(2) No Court inferior to that of [a Metropolitan Magistrate or a judicial Magistrate of the first class] shall try any offence punishable under this Act."

There is no denial of the petitioners' averments that any action has been taken on the complaint dated 17th April, 1998 made by the petitioners under Section 25T & 25U of the ID Act by the respondents 1 & 2 even after about 7 years.

9. Accordingly in view of the above, a writ of certiorari, quashing and setting aside the Order dated 2nd September, 1998 is issued. A writ of mandamus is also issued, directing the respondent No.1 to make a reference of the dispute as sought by the petitioners preferably on or before 31st May, 2005 as per the decision in Telco Convoy's case(supra) since the reference was sought in 1998 and almost a period of 7 years has since elapsed.

10. Industrial adjudication is required to be done expeditiously, and therefore, normally complaints alleging unfair labour practice should normally be disposed of by the respondents 1 & 2 within six months and in any case no t later than one year from the receipt of such complaint. A writ of mandamus will also issue, directing the respondents 1 & 2 to take appropriate action on the petitioners' complaint dated 17th April, 1998 under Section 25 and 25 of the ID Act preferred by the petitioners on or before 31st May, 2005. The representation dated 17th April, 1998 shall be disposed of by a reasoned order not later than 31st May, 2005 by the respondents 1 & 2.

11. The writ petition stands allowed and disposed of accordingly.