Madhya Pradesh High Court
Vimal vs Abbott Healthcare Pvt. Ltd on 17 March, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADES
H
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT APPEAL No. 43 of 2021
BETWEEN:-
VIMAL S/O LATE SHRI RAMSHANKAR
RAGHUWANSHI M.P. MEDICAL AND SALES
REPRESENTATIVE UNION, 201, KHYATI AVENUE,
20/7 PARSI MOHALLAH, CHHAWNI, INDORE
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI VIMAL CHETAN JOSHI - PARTY IN PERSON)
AND
1. ABBOTT HEALTHCARE PVT. LTD
MANAGING DIRECTOR GODREJ BKC,
PLOT C-68, G-BLOCK, 18TH FLOOR,
BANDRA KURLA COMPLEX NEAR MCA
CLUB BANDRA (EAST) (MAHARASHTRA)
2. LABOUR COMMISSIONER M.G. ROAD.
INDORE (MADHYA PRADESH)
3. LABOUR COURT. INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SHEKHAR BHARGAVA - SENIOR ADVOCATE WITH SHRI ROMESH
DAVE)
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Reserved on : 03.02.2023
Pronounced on : 17.03.2023
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Signed by: JYOTI
CHOURASIA
Signing time: 20-Mar-23
10:41:42 AM
2
This appeal having been heard and reserved for orders, coming
on for pronouncement this day, HON'BLE JUSTICE PRANAY
VERMA pronounced the following:
ORDER
This Writ Appeal under Section 2(1) of Madhya Pradesh
Uchch Nyayalya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005
has been preferred by the petitioner/appellant against the order dated
04.03.2020 passed in Writ Petition No.10001 of 2019 by the learned
Single Judge whereby his challenge to the award dated 28.03.2019
passed by the Labour Court had been dismissed.
2. As per the appellant, he was appointed as a Key Account
Manager by the respondents and was working as sales promotion
employee with it. The respondent-Company is engaged in sale of
medicines and providing health care services. The services of the
appellant were terminated by order dated 22.04.2017. On an
application being made, the Labour Commissioner, Indore made a
reference to the Labour Court as regards the validity and legality of
termination order of the appellant. The appellant filed his claim before
the Labour Court submitting that he had worked on different posts;
such as Marketing Executive, Sr. Marketing Executive, Deputy RBM
and Key Account Manager but his basic work was of a medical
representative and his initial appointment was in the year 2008 hence
he was covered within the meaning of Workmen as defined under
Section 2(s) of the Industrial Disputes Act, 1947 (the Act, 1947) and
under the Sales Promotion Employees (Conditions of Service) Act,
1976 (the Act, 1976). The appellant also submitted that his services
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have been terminated by adopting unfair labour practice, without
conducting any enquiry and without giving him any retrenchment
compensation.
3. The respondents had filed the reply and had submitted that
the appellant was an employee in the managerial capacity and his
main work was of management and administration, he having the
power to spend up to Rs.5,000/- per month, hence he did not fall
within the meaning of workmen under Section 2(s) of the Act, 1947
hence his services were terminated by following the due procedure.
4. By award dated 28.03.2019, the Labour Court held that the
appellant was appointed as a medical representative and was doing the
sales related work independently and did not fall within the meaning
of workmen under Section 2(s) of the Act, 1947. The reference was
consequentially dismissed for want of jurisdiction. The aforesaid order
was challenged by the appellant by preferring writ petition which has
been dismissed by the learned Single Judge by the impugned order by
holding that the Labour Court has not committed any error in reaching
to the conclusion that the appellant is not a workman within the
meaning of workmen under Section 2(s) of the Industrial Disputes
Act.
5. The appellant submits that the Labour Court as well as the
learned Single Judge have erred in passing order against the appellant.
They have not taken into account the provisions contained in Section
6(2) of the Sales Promotion Employees (Conditions of Service) Act,
1976 and have also not taken into account the judgment of the
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Supreme Court in the matter of Rhone-Poulenc (India) Ltd. Vs.
State of U.P. and others reported in 2000(7) SCC 675, in the matter
of H.R. Adyanthaya and others Vs. Sandoz (India) Ltd. and others
reported in 1994(5) SCC 737 as also the Division Bench judgment
of this Court in the matter of R.R. Iyer Vs. R.P.G. Life Sciences
Ltd. reported in 2010 MPLSR 312. He has further relied upon the
decision of the Hon‟ble Supreme Court in Olga Tellis and others vs.
Bombay Municipal Corporation and other, 1985 3 SCC 545 and
Abbott India Ltd. Vs. Federation of Medical and Sales
Representative Association of India (FMRAI) passed in W.P.
No.1330/2014 (Mumbai High Court), Abbott India Ltd. Vs. All
India Abbortt Employee Union, 2012 LLJ (2) 375 (Mumbai High
Court), Abbott Healthcare Pvt. Ltd. Vs. Kamalesh Kumar
Upadhyay in W.P. No.141582015 (M.P. High Court Gwalior),
Abbott Healthcare Pvt. Ltd. Vs. Labour Court SB-Civil, W.P.
No.3399/2016, (Rajasthan High Court), Nicholas Employee Union
vs. Abbott Healthcare Pvt. Ltd. ULP -37/2011, order dated
08.02.2017 Industrial Court Mumbai, Abbott India Ltd. Vs.
FMRAI Ref. (IT) No.37/2012, Nicholas Employee Union vs.
Abbott Healthcare Pvt. Ltd, Rev. Appl, ULP No.1302/2012, All
India Abbott Employee Union and Another vs. Abbott India Ltd.
And Another, W.P. No.2970/2019 Order Date 08.11.2019 Mumbai
High Court and All India Abbott Employee Union and Another vs.
Abbott India Ltd. and another ULP-231/2019 order dated
05.09.2019, Industrial Court, Mumbai.
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6. Per contra, learned counsel for the respondents have
brought to our notice an order dated 21.12.2022 passed by the
Division Bench of Principal Seat of this Court at Jabalpur in Writ
Appeal No.922 of 2006 [Petcare, Division of Tetragon Chemie Pvt.
Ltd. vs. M.P. Medical and Sales Representatives Association] and
Writ Appeal No.07 of 2019 [M.P. Medical and Sales
Representative Association vs. Provimi Animal Nutrition India
Pvt. Ltd.] wherein it has been categorically held that Medical
Representative or the Sales Promotion Officer do not fall under the
definition of "workman" as provided under Section 2(s) of the Act,
1947. It is submitted that the judgment of the Hon‟ble Supreme Court
in H.R. Adyanthaya vs. Sandoz (India) Limited reported in (1994)
5 SCC 737 and of the Division Bench of this Court in Novartis India
Limited vs. Vipin Shrivastava and others in Writ Appeal No.75 of
2017 have been taken into consideration in the aforesaid decision. It is
submitted that the controversy involved in the present appeal is
squarely covered by the aforesaid decision of the Division Bench
hence this appeal being devoid of merit deserves to be dismissed.
7. We have heard the learned counsel for the parties and have
perused the record.
8. In Petcare, Division of Teragone Chemie Pvt. Ltd.
(supra) the Division Bench of this Court at Principal Seat at Jabalpur
has considered in detail the issue as to whether Medical
Representative or Sales Promotion Officer fall under the definition of
"workman" or not and have answered the question in the negative. It
has been held in the aforesaid case as under:-
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"8. The sole question which has been raised for consideration of this Court is
whether the Medical Representatives or the Sales Promotion Officers are the
"workman" within the definition of Section 2(s) of the Act of 1947 and
whether the Labour Court was having a right to entertain the dispute and the
same does not fall under the Industrial Disputes Act.
9. The appellant No.2 appearing in person has heavily relied upon the
judgment passed in the case of German Remedies Limited vs. Presiding
Officer, Labour Court No.1, Bhopal reported in 2006 (II) LLJ 8 MP, wherein
it was held that the Labour Court is having jurisdiction to entertain the
dispute in respect to Medical Representatives as they fall under the definition
as provided in Section 2(s) of the Act of 1947.
10. Learned counsel appearing for the respondent has invited attention of this
Court to the judgment passed in the case of Novartis India Limited (supra)
wherein the earlier judgment passed in the case of German Remedies Limited
(supra) was considered and was held to be not a correct law and it is
overruled. The aforesaid aspect was considered by the writ Court, which is
clearly reflected from the impugned order.
11. The judgment of the Hon‟ble Supreme Court in the case of H.R.
Adyanthaya‟s (supra) is relevant which was subsequently considered by a
Division Bench of this Court in the case of Samat Kumar vs. M/s.Parke Davis
India Limited reported in 1997 (2) JLJ 353 wherein the definition in Section
2(s) of the Industrial Disputes Act was taken into consideration. The relevant
extract is as follows:-
"10. As against it, learned counsel for the respondent
No.1has placed reliance on a case as reported in 1988 (II)
MPWN 116 = AIR 1988 SC 1700 (Miss A. Sundarambal v.
Govt. of Goa, Deman & Diu and others) whereby it was held
that teacher employed in a school is not a workman. But, now
dispute stands resolved with respect to the cases of Medical
Representative as reported in AIR 1994 SC 2608 [H.R.
Adyanthya etc. etc. v. Sandoz (India) Ltd. etc. etc.) whereby it
has been held that „Workman‟ does not include all employees
except those covered by four exceptions in said definition of
section 2(s) of Industrial Disputes Act. Medical Representatives
do not perform duties of „skilled‟ or „technical‟ nature and
therefore, they are not „workmen‟. The connotation of word
„skilled‟ in the context in which it is used, will not include work
of a Sales Promotion Employees such as Medical
Representative. That word has to be construed ejusdem generis
and thus construed, would mean skilled work whether manual
or non-manual, which is of a genre of the other types of work
mentioned in the definition. The work of promotion of sales of
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the product or services of the establishment is distinct from
and independent of the types of work covered by the said
definition." After returning such finding it was held that the
reference was not maintainable as Medical Representative
would not fall within the definition of workman. We are not
only bound by the aforesaid judgment but we find the same to
be a correct enunciation of law."
12. From the aforesaid, it is clear that the Constitution Bench judgment of
H.R. Adyanthaya‟s (supra) was taken into consideration and it was
categorically held that Medical Representative or the Sales Promotion
Employee do not fall within the definition of a "workman" as defined in
Section 2(s) of the Act of 1947.
13. The learned writ court has gone to the extent of considering the definition
of "Sales Promotion Employees" as defined under Section 2(d) of the Act of
1976.
14. After going through the definition it is clearly reflected that the person
who is engaged in a supervisory capacity, draws wages exceeding sixteen
hundred rupees per mensem, will not be covered under the definition. The
learned Single Judge has taken into consideration the amount of wages which
has been claimed and drawn by the appellant and has clearly held that even if
from this angle the case of the appellant is considered, then also he does not
fall under the definition of "Sales Promotion Employees" or the "Medical
Representative" in terms of Section 2(s) of the Act of 1947.
15. A three-Judge Bench of the Hon‟ble Supreme Court in the case of May
and Baker (India) Limited vs. Workmen‟, reported in AIR 1967 SC 678 had
an occasion to directly deal with the question as to whether the Medical
Representatives of the company, who are discharged from service, are the
workman under the Industrial Disputes Act and the order of reinstatement
passed by the Industrial Tribunal was, therefore, valid. The Hon‟ble Supreme
Court referred to the undisputed nature of the duties of the employees and
found that his main work was of canvassing sales. Any clerical or manual
work that he had to do was incidental to the said main work, and could not
make more than a small fraction of time for which he had to work. In the
circumstances, the Hon‟ble Supreme Court held that the Tribunal‟s
conclusion that the employee was a workman under the Industrial Disputes
Act was incorrect.
16. The similar issue was considered by a three-Judge Bench judgment of the
Hon‟ble Supreme Court in the case of Western India Match Company
Limited vs. Workman 2 reported in AIR 1964 SC 472. The question before
the Court was whether the sales office was entirely independent of the factory
or was a department of the one and the same unit of production, and whether
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Inspectors, Salesman and Retail Salesman of the sales office were workmen
within the meaning of U.P. Industrial Disputes Act. The matter was referred
by the State Government for adjudication to the Industrial Tribunal on
18.08.1961. After a detailed analysis of the matter, the Bench following the
earlier decision in the case of May and Baker‟s case (supra) has arrived at a
similar finding that they cannot be termed as a workman in terms of the
definition under the Act of 1947.
17. Similar issue was considered in the case of Burmah Shell Oil Storage and
Distribution Company of India Limited vs. Burmah Shell Management Staff
Association reported in AIR 1971 SC 922 and again the judgment passed in
May and Baker‟s case (supra) was taken into consideration and the Court has
given the verdict in the light of May and Baker‟s case. The three-Judge
Bench in the case of May and Baker (supra) has taken a view that a person to
be qualified to be a workman must be doing the work which falls in any of
the four categories viz.manual, supervisory, technical or clerical. If a person
does not fall within the four exceptions to the aforesaid definition, he is a
workman within the definition as provided under Section 2(s) of the Act of
1947. Therefore, the position is clarified by the Hon‟ble Supreme Court in the
aforesaid cases.
18. The Constitution Bench of the Hon‟ble Supreme Court in H.R.
Adyanthaya‟s (supra) has categorically held that the Medical Representatives
are not the workman; therefore, the complaint made to the Industrial Court is
not maintainable itself. The arguments raised by the appellant that even in the
case of H.R. Adyanthaya‟s (supra), the benefits were extended and they were
treated to be the complainant in the matter and the State Government was
given directions but the fact remains that the powers were exercised under
Article 142 of the Constitution of India by the Hon‟ble Supreme Court. But
the law which has been settled in the aforesaid case by the Constitution
Bench is clear that the Medical Representatives or the Sales Promotion
Officer do not fall under the definition of workman. The learned Single Judge
has followed the aforesaid judgment passed by the Hon‟ble Supreme Court
and has rightly set aside the order passed by the Labour Court. Under these
circumstances, we do not have any hesitation to observe that no illegality is
committed by the writ court in allowing the writ petition. In absence of any
cogent material or a judgment to override the observations made by the writ
court and the law settled by the Constitution Bench of the Hon‟ble Supreme
Court in H.R. Adyanthaya‟s (supra), no relief can be extended to the
appellant."
9. The Division Bench in the aforesaid case has relied upon the
decision of the Hon‟ble Supreme Court in H.R. Adyanthaya (supra)
observing that therein it has been categorically held that the medical
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representatives are not workmen, therefore the complaint made by
Industrial Court is itself not maintainable. It has been further held that
the benefits extended in that case were in exercise of powers under
Article 142 of the Constitution of India but the law which has been
settled is that the Medical Representative or the Sales Promotion
Officer do not fall under the definition of „workmen‟. The judgment of
Division Bench of this Court in Novartis India Limited (supra) has
also been taken into consideration in which the judgment of H.R.
Adyanthaya (supra) was taken into consideration.
10. We are in complete agreement with the observations and
findings as recorded by the Division Bench in the case of Petcare,
Division of Tetragon Chemie Pvt. Ltd.(supra) and do not find any
good ground to take a different view. Since the issue raised in this
appeal has already been settled in the case of Petcare, Division of
Tetragon Chemie Pvt. Ltd. (supra) we have no hesitation to hold
that the appellant who was working as a Sales Promotion Officer with
the respondents company is not a „workman‟ within the meaning of
Section 2(s) of the Industrial Disputes Act, 1947. As a result, we do
not find any illegality in the impugned order passed by the learned
Single Judge. The Writ appeal is devoid of merit and is accordingly
dismissed.
(SUBODH ABHYANKAR) (PRANAY VERMA)
JUDGE JUDGE
jyoti
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CHOURASIA
Signing time: 20-Mar-23
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Signing time: 20-Mar-23
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