Kerala High Court
All India Sales Representatives And ... vs The Regional Labour Commissioner on 11 April, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:31124
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 11TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947
WP(C) NO. 20038 OF 2024
PETITIONER:
ALL INDIA SALES REPRESENTATIVES AND MARKETING
EMPLOYEES FEDERATION, M.KANARAN MANDIRAM,
BEHIND YMCA BUILDING, KOZHIKODE PIN - 673001,
REPRESENTED BY ITS GENERAL SECRETARY.
BY ADVS.
MANU GOVIND
RAHUL SURENDRAN
RESPONDENTS:
1 THE REGIONAL LABOUR COMMISSIONER
COCHIN, SHRAMEVA JAYATE BHAWAN,
OLIMUGHAL, KAKKANAD, COCHIN,
PIN - 682030.
2 AVIVA LIFE INSURANCE COMPANY
HEAD OFFICE, 401-A, 4TH FLOOR, BLOCK A,
DLF CYBER PAK, SECTOR 20, NH 8, GURUGRAM,
HARYANA PIN - 122016,
REPRESENTED BY ITS MANAGING DIRECTOR.
W.P.(C)No.20038 of 2024
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BY ADVS.
SMT.ANIMA M., GOVERNMENT PLEADER
SRI.P.JAYABAL MENON
SMT.REKHA AGARWAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.11.2024, THE COURT ON 11.04.2025
DELIVERED THE FOLLOWING:
W.P.(C)No.20038 of 2024
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CR
JUDGMENT
Dated this the 11th day of April, 2025
The petitioner states that it is a Trade Union
representing the interest of the sales and marketing workers.
The petitioner preferred Ext.P1 industrial dispute before the 1 st
respondent-Regional Labour Commissioner, challenging the
action of the 2nd respondent-Management in transferring all
workers who are members of the petitioner-Trade Union from
Kozhikode to various distant parts of the Country.
2. The petitioner states that the 1 st respondent
relying on the judgment passed by this Court in Lupin Limited
v. G. Suresh and another [2007 (4) KLT 1092] closed Ext.P1
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complaint noting that sales and marketing personnel were not
workmen as defined under Section 2(s) of the Industrial
Disputes Act, 1947. The said finding is in fact contrary to the
dictum laid down by this Court in the said judgment. The
petitioner, therefore, prays that Ext.P3 be set aside and the 1 st
respondent be directed to consider Ext.P1 on merits and pass
appropriate orders.
3. The petitioner would contend that the
members of the petitioner-Trade Union though described as
Sales Managers, they were not discharging the duties of
Managers or Supervisors. They were ordinary sales promotion
employees. Merely because they are described as Managers,
they cannot be excluded from the purview of Industrial
Disputes Act. The petitioner further contended that in view of
the Industrial Disputes (Kerala Amendment) Act, 2017, the
words "promotion of sale" has been included in Section 2(s) of
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the Industrial Disputes Act. Therefore, sales promotion
employees are now workmen under the Industrial Disputes Act
as far as the State of Kerala is concerned. In such
circumstances, the 1st respondent ought not have passed
Ext.P3 order.
4. Standing Counsel entered appearance and
resisted the writ petition on behalf of the 2 nd respondent. On
behalf of the 2nd respondent, it is contended that an industrial
dispute will not lie as the petitioner's members are not
workmen as defined under Section 2(s) of the Industrial
Disputes Act. The petitioner's members are Managers. When
the branches of the insurance company were closed, they had
to be transferred out.
5. The 2nd respondent further urged that the 2 nd
respondent being in the insurance sector, the workmen of the
petitioner would not fall within the ambit of Sales Promotion
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Employees (Conditions of Service) Act, 1976. The petitioner,
therefore, cannot claim the benefit of the Act, 1976 either. As
long as the members of the petitioner are not falling under the
Sales Promotion Employees (Conditions of Service Act), 1976
and as long as the members of the petitioner are not workmen
falling within the definition of Section 2(s) of the Industrial
Disputes Act, Ext.P3 is only to be upheld.
6. Standing Counsel appearing for the 2 nd
respondent further submitted that the members of the
petitioner are making Forum Shopping. The employees
transferred out by the 2nd respondent have approached the
Labour Commissioner, as is evident from Ext.R2(a). The
attempt of the petitioner is to agitate the same issue before
two different authorities on experimental basis. For that reason
also, this writ petition is liable to be dismissed.
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7. The 2nd respondent further contended that the
petitioner admittedly is not a registered Trade Union. Only a
registered Trade Union can raise a dispute under the Industrial
Disputes Act. In view of Section 2 (qq) of the Industrial
Disputes Act, a Trade Union means a registered Trade Union.
The petitioner being an unregistered entity, cannot raise an
industrial dispute.
8. I have heard the learned Counsel for the
petitioner and the learned Standing Counsel representing the
2nd respondent.
9. The members of the petitioner-Union are the
workers of the 2nd respondent. The 2nd respondent is an
Insurance Company. When the members of the petitioner-
Trade Union were transferred out, the petitioner raised
industrial dispute before the Regional Labour Commissioner
(Central), who is under the Government of India. Whether an
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industrial dispute can be raised by the petitioner in respect of a
dispute between sales promotion employees and their
employer, is the question arising for consideration.
10. It is evident that sales promotion employees
as such will not come within the definition of "workman" as
defined under Section 2(s) of the Industrial Disputes Act,
1947, inasmuch as the sales promotion employees are not
doing any manual, unskilled, skilled, technical, operational,
clerical or supervisory work as required in Section 2(s).
However, to give the sales promotion employees, the benefit
of the adjudication mechanism provided under the Industrial
Disputes Act, 1947 Section 6 has been incorporated in the
Sales Promotion Employees (Conditions of Service) Act, 1976.
11. Section 6 of the Act, 1976 states that the
provisions of the Industrial Disputes Act, 1947, as in force for
the time being, shall apply to or in relation to sales promotion
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employees as they apply to, or in relation to, workmen within
the meaning of the Industrial Disputes Act and for the purpose
of any proceedings 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 to that dispute.
12. Though the Industrial Disputes Act as such is
not applicable to sales promotion employees under the Sales
Promotion Employees (Conditions of Service) Act, 1976, the
Legislature though it necessary to make the provisions of the
Industrial Disputes Act, 1947 applicable to sales promotion
employees. Therefore, even though sales promotion
employees are not workmen as defined under the Industrial
Disputes Act, the provisions of the Industrial Disputes Act as
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they apply to workmen as defined under the Industrial
Disputes Act shall apply to sales promotion employees also.
13. This Court has held in the judgment in Lupin
Limited v. G. Suresh and another [2007 (4) KLT 1092] that
for a sales promotion employee to raise an industrial dispute
under the Industrial Disputes Act, it is not necessary that he
should be a workman as defined under the Industrial Disputes
Act. All what is necessary is that he should be a sales
promotion employees as defined under the Sales Promotion
Employees (Conditions of Service) Act, 1976.
14. By Ext.P3 communication of the Regional
Labour Commissioner (Central), Kochi, the Commissioner has
closed the dispute raised by the petitioner-Trade Union for the
reason that sales promotion / marketing employees /
Managers are not workmen as per Section 2(s) of the
Industrial Disputes Act, 1947. Surprisingly, the Regional
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Labour Commissioner (Central) has relied on the judgment of
this Court in Lupin Limited (supra) to come to such
conclusion whereas in the Lupin Limited (supra), this Court
has categorically held that though sales promotion employees
are not workmen, the Industrial Disputes Act has been made
applicable to them. Ext.P3 communication is therefore not
sustainable for the reasons advanced therein.
15. The 2nd respondent would then contend that a
dispute whether under the Industrial Disputes Act, 1947 or
under the Sales Promotion Employees (Conditions of Service)
Act, 1976 will not be maintainable at the instance of the
petitioner as the petitioner is not a registered Trade Union.
Section 2(qq) of the Industrial Disputes Act, 1947 defines a
Trade Union to mean a Trade Union registered under the
Trade Unions Act, 1926. The decision of the Regional Labour
Commissioner (Central) not to entertain a dispute at the
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instance of the petitioner is therefore justified, urged the
counsel for the 2nd respondent.
16. The question whether an unregistered Trade
Union can raise an industrial dispute has come up for
consideration before this Court as well as before the Hon'ble
Apex Court multiple times. In the judgment in Chief General
Manager, BSNL v. Industrial Tribunal, Kollam and another
[2008 (2) KLT 507], this Court held that though the
Management can lay down rules regarding recognition of
unions of its workmen and insist that the Management would
deal only with Unions recognised by it in accordance with such
rules, that would not stand in the way of unrecognised,
unregistered and minority unions or even a group of individual
workmen from validly raising an industrial dispute. This Court
held that it is not necessary that the sponsoring Union is a
registered Trade Union for the dispute becoming a valid
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industrial dispute.
17. The Hon'ble Apex Court in B. Srinivasa
Reddy v. Karnataka Urban Water Supply and Drainage
Board Employees' Association and others [(2006) 11 SCC
731] has held that an unregistered Association under the
Trade Unions Act cannot maintain a writ petition under Article
226 of the Constitution of India. In this judgment, the question
considered was not as regards maintainability of an industrial
dispute raised by an unregistered Trade Union. The Apex
Court has been dealing with the maintainability of a writ
petition at the instance of an unregistered Trade Union.
18. In Newspapers Limited, Allahabad v. U.P.
State Industrial Tribunal and others [AIR 1960 SC 1328], a
Three Judge Bench of the Hon'ble Apex Court held that it is
not necessary that a registered body should sponsor a
workman's case to make it an industrial dispute. Once it is
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shown that a body of workmen, either acting through their
Union or otherwise had sponsored a workman's case, it
becomes an industrial dispute.
19. In Pradip Lamp Works, Patna and another
v. Workmen of Pradip Lamp Works, Patna and another
[1970 (1) LLJ 507], the Apex Court held that espousal of a
dispute before a reference is made even by a minority union,
having a membership of substantial number of workmen, is
sufficient to make such a dispute an industrial dispute.
20. In the judgment in Lissie Hospital v. Labour
Court, Ernakulam [2021 KHC 343], a Division Bench of this
Court held that it is not necessary that the Trade Union that is
espousing the cause of workmen for raising industrial dispute
should be necessarily a registered Trade Union as understood
in the Trade Unions Act, 1926. The Hon'ble Apex Court held
in State of Bihar v. Kripa Shankar Jaiswal [AIR 1961 SC
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304] that it would be an erroneous view to state that for a
dispute to constitute an industrial dispute, it is a requisite
condition that it should be sponsored by a recognised Union or
that all the workmen of an individual establishment should be
parties to it. A dispute becomes an industrial dispute even
where it is sponsored by a Union which is not a registered
Union.
21. The conclusion that can be arrived at
considering the aforesaid judgments of the Hon'ble Apex
Court and of this Court are that sales promotion employees
covered by the Sales Promotion Employees (Conditions of
Service) Act, 1976 can resort to the provisions of the Industrial
Disputes Act for redressal of their grievances and that even an
unregistered Trade Union can raise industrial disputes before
Conciliation Officers or Industrial Courts constituted under the
Industrial Disputes Act, 1947. Ext.P3 communication of the
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Regional Labour Commissioner (Central) is therefore
unsustainable. Ext.P3 is therefore set aside. The 1st
respondent is directed to consider Ext.P1 complaint on merits,
if the grievance still subsists and process the same under the
Industrial Disputes Act, 1947.
The writ petition is disposed of as above.
Sd/-
N. NAGARESH
JUDGE
ams/aks
2025:KER:31124
APPENDIX OF WP(C) 20038/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE LETTER DATED
06.04.2024 PREFERRED BY THE PETITIONER
BEFORE THE 1ST RESPNDENT.
Exhibit P2 TRUE COPY OF THE FILING DETAILS
GENERATED VIA THE SAMADHAN PORTAL IN
APPLICATION ID 300069413 DATED
06-04-2024.
Exhibit P2(a) TRUE COPY OF THE ACKNOWLEDGMENT
GENERATED BY VIA THE SAMADHAN PORTAL.
Exhibit P3 TRUE COPY OF THE CLOSURE REPORT DATED
ISSUED BY THE 1ST RESPONDENT
08.04.2024.
Exhibit P4 COPY OF THE CERTIFICATE OF
REGISTRATION OF TRADE UNION NO.
TU19921 DATED 13.12.2024 ISSUED TO THE
PETITIONER BY THE DEPUTY REGISTRAR OF
TRADE UNIONS & DISTRICT LABOUR
OFFICER, KOZHIKODE.
2ND RESPONDENT'S EXHIBIT
EXHIBIT R2(a) TRUE COPY OF REPRESENTATION SUBMITTED
BEFORE THEH LABOUR MINISTER, GOVT. OF
KERALA
