Madhya Pradesh High Court
Zydus Healthcare Ltd. vs Shri Brijesh Singh on 15 March, 2023
Author: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 15 th OF MARCH, 2023
WRIT PETITION No. 24851 of 2021
BETWEEN:-
ZYDUS HEALTHCARE LTD. THROUGH ITS AUTHORIZED
REPRESENTATIVE, ZYDUS TOWER, SATELLITE CROSS
ROAD, AHMADABAD (GUJARAT)-380015.
.....PETITIONER
(BY SHRI ANURAG LAKHOTIA -ADVOCATE WITH SHRI ADITYA
KHANDEKAR - ADVOCATE)
AND
SHRI BRIJESH SINGH S/O SHRI R.C. SINGH,
OCCUPATION: MEDICAL REPRESENTATIVE, R/O 218,
RACHNA NAGAR, BHOPAL (MADHYA PRADESH)-462023.
.....RESPONDENT
(BY SHRI HARESH KUMAR PARDASANI - ADVOCATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
Petitioner has filed this writ petition under Article 226 of the Constitution
of India challenging order dated 02/03.08.2021 contained in Annexure-P/2.
2. By order dated 02.08.2021 case was registered as reference under
Industrial Disputes Act, 1947 and by order dated 03.08.2021 interim relief was
granted directing that no action be taken against respondent without following
due course of law and notices were issued to petitioner. Petitioner has
challenged aforesaid orders on grounds that Medical Representative is not
workman under Section 2(s) of Industrial Dispute Act, 1947. Reliance is placed
Signature Not Verified
Signed by: SUNIL KUMAR
PATEL
Signing time: 3/17/2023
4:55:23 PM
on judgment passed in Writ Appeal No.75/2017 (Novartis India Limited Vs.
Vipin Shrivastava and others). Further reliance was placed on judgment
passed in case of Samat Kumar Vs. M/s Parke Davis India Ltd., reported
in 1997(2) JLJ 353, wherein it has been held that even reference of Medical
Representative is not maintainable. It is further submitted that suspension does
not fall within Sections 2(A) and 2(K) of Industrial Dispute Act, 1947.
Application under Section 33-A was not maintainable and same is without
jurisdiction. In view of same, prayer is made to quash impugned orders.
3. Counsel appearing for respondent submitted that Medical
Representative has been held to be deemed workman under provision of
Industrial Dispute Act, 1947. He relied on judgment reported in 2010
M.P.L.S.R. 312 (DB) [R.R. Iyer Vs. R.P.G. Life Sciences Ltd.] . Counsel for
respondent further relied on order dated 17.11.2022 passed in Miscellaneous
Petition No.4834/2021. Attention of Court was drawn to paragraph 11
wherein, notice of industrial dispute has been issued to petitioner. It is
submitted that petitioner themselves has admitted that there is existence of
industrial dispute between petitioner and respondent. It is submitted that by
virtue of Section 6 (2) of Sales Promotion Employees (Condition of Service)
Act, 1976 is deemed workman. Further it is submitted that application under
Section 33 is maintainable as during suspension petitioner is getting only half
salary, therefore, his service condition is effected and application under Section
33 is maintainable. It is submitted that suspension of an employee will fall within
definition of industrial dispute. In these circumstances, prayer is made for
dismissal of writ petition.
4. Heard the counsel for the parties.
5. Workman is defined in Section 2(s) of Industrial Dispute Act, industrial
Signature Not Verified
Signed by: SUNIL KUMAR
PATEL
Signing time: 3/17/2023
4:55:23 PM
dispute is defined in Section 2(K) and Section 2(A) lays down dismissal of
individual workman to be deemed to be an industrial dispute. Aforesaid
provisions and Section 33 of Industrial Dispute Act is quoted as under:-
2. Definitions.- In this Act, unless there is anything repugnant
in the subject or context,--
******
(k) " industrial dispute" means any dispute or difference
between employers and employers or between employers
and workmen, or between workmen and workmen, which
is connected with the employment or non- employment
or the terms of employment or with the conditions of
labour, of any person;
******
(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, dischasrge 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
Signature Not Verified
Signed by: SUNIL KUMAR
PATEL
Signing time: 3/17/2023
4:55:23 PM
attached to the office or by reason of the powers
vested in him, functions mainly of a managerial
nature.
******
[2A. Dismissal, etc., of an individual workman to be
deemed to be an industrial dispute.- [(1)] Where any
employer discharges, dismisses, retrenches or
otherwise terminates the services of an individual
workman, any dispute or difference between that
workman and his employer connected with, or arising
out of, such discharge, dismissal, retrenchment or
termination shall be deemed to be an industrial
dispute notwithstanding that no other workman nor
any union of workmen is a party to the dispute.]
[(2)] Notwithstanding anything contained in Section
10, any such workman as is specified in sub-section
(1) may, make an application direct to the Labour
Court or Tribunal for adjudication of the dispute
referred to therein after the expiry of forty-five days
from the date he has made the aplication to the
Conciliation Officer of the appropriate Government
for conciliation of the dispute, and in receipt of such
application the Labour Court or Tribunal shall have
powers and jurisdiction to adjudicate upon the
dispute, as if it were a dispute referred to it by the
appropriate Government in accordance with the
provisions of this Act and all the provisions of this Act
shall apply in relation to such adjudication as they
apply in relation to an industrial dispute referred to it
by the appropriate Government.]
[(3)] The application referred to in sub-section(2)
shall be made to the Labour Court or Tribunal before
the expiry of three years from the date of discharge,
dismissal, retrenchment or otherwise termination of
service as specified i sub-section(1).]
"33. Conditions of service, etc., to remain unchanged under
certain circumstances during pendency of proceedings.-(1)
Signature Not Verified
Signed by: SUNIL KUMAR
PATEL
Signing time: 3/17/2023
4:55:23 PM
During the pendency of any conciliation proceeding before a
conciliation officer or a Board or of any proceeding before 2
an arbitrator or] a Labour Court or Tribunal or National
Tribunal in respect of an industrial dispute, no employer shall-
(a) in regard to any matter connected with the dispute,
alter, to the prejudice of the workmen concerned in such
dispute, the conditions of service applicable to them
immediately before the commencement of such
proceeding; or
(b) for any misconduct connected with the dispute,
discharge or punish, whether by dismissal or otherwise,
any workmen concerned in such dispute,
save with the express permission in writing of the authority
before which the proceeding is pending."
6. Division Bench in Writ Appeal No.75/2017 (Novartis India
Limited Vs. Vipin Shrivastava and others) in para 15, 16 and 17 has held that
Medical Representative is not workman. Judgments passed by Apex Court in
case of H.R. Adyanthaya and others V. Sandos (India) Ltd. and others;
(1994) 5 SCC 737 and in case of German Remedies Limited V. Presiding
Officer, Labour Court No.1, Bhopal and others; 2006 Vol.II, LLJ 8 MP
were considered in detail. In view of above, respondent will not fall within
definition of workman.
7. Judgments relied upon by the respondents in case of Rhone
Poulene Ltd. Vs. State of U.P. and other, (2000) 7 SCC 675 has been
passed by Apex Court of Bench having strength of two judges and in case of
H.R. Adyanthaya and others (supra) is passed by Constitutional Bench of
five judges, therefore, said judgment is binding upon this Court and as per said
judgment Medical Representative does not fall within definition of workman.
8. Further suspension of an employee is not an industrial dispute.
Signature Not Verified
Signed by: SUNIL KUMAR
PATEL
Signing time: 3/17/2023
4:55:23 PM
Industrial dispute has been defined in Section 2(A) of Industrial Dispute Act.
As per Section 2(A) of Industrial Dispute Act, dismissal of individual workman
is deemed to be an industrial dispute. Applicant has not been dismissed, but has
only been suspended. A departmental enquiry against respondent/medical
representative is pending for consideration. Further Section 33 provides that
during pendency of any conciliation proceedings before a conciliation officer or
a Board or of an Arbitrator, Labour Court or Tribunal or National Tribunal, no
employer shall alter, prejudice to the workman concerned, conditions of service
applicable to him immediately before commencement of such proceedings.
Order of suspension does not alter the conditions of service. If petitioner is
finally exonerated, then he is entitle to get all the benefits and suspension does
not cause any stigma or any adverse consequences against the workman,
therefore, application under Section 33 is also not maintainable.
9. In view of aforesaid facts and circumstances of the case, writ petition
is allowed. Orders dated 02.08.2021 and 03.08.2021 are quashed.
10. Certified copy as per rules.
(VISHAL DHAGAT)
JUDGE
sp/-
Signature Not Verified
Signed by: SUNIL KUMAR
PATEL
Signing time: 3/17/2023
4:55:23 PM
