Ramashish Kumar v. The Chairman Lupin Limited And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20995 of 2014 ====================================================== Ramashish Kumar son of Sri Bhola Singh, resident of B.S.S.R. Union Rest House, Jai Prabha Nagar, Kayasth Tola, District-Saharsa. .... .... Petitioner
Versus
1. The Chairman Lupin Limited, Laxmi Tower, C-wing, 4th Floor, Bandra Kurla Complex, Mumbai 400051
2. The Managing Director, Lupin Limited, Laxmi Tower, C, wing, 4th floor, Brandra Kurla Complex Mumbai-400051
3. The President (IRF), Lupin Limited, Laxmi Tower, C wing 4th Floor, Bandra Kurla Complex, Mumbai 400051
4. The Senior General Managar, Lupin Limited, Laxmi Tower, C wing 4th Floor, Bandra Kurla Complex, Mumbai 400051
5. The General Manager Limited, Laxmi Tower, C wing 4th Floor, Bandra Kurla Complex, Mumbai 400051
6. The Vice President, Lupin Limited, Laxmi Tower, C wing, 4th Floor, Bandra Kurla Complex, Mumbai 400051
7. The Head, HRIRF, Lupin, Limited, 159, C.S.T. Road Kalina Shantakruz East Mumbai 100098
8. The Sales Manager Lupin Limited, 203, Dukhan Ram Plaza, Exhibition Road, Patna.-10 ----------------------- Respondents 1st Set ( Management).
9. The State of Bihar
10. The Labour Department, Government of Bihar, Patna.
11. The Presiding Officer, Labour Court, Purnea. .... .... Respondents 2nd Set ====================================================== Appearance :
For the Petitioner/s : Mr. Sudhir Kumar, Adv. For the Respondent/s : Mr. AC to AAG-8 Mr. Alok Kumar Sinha, Adv.
====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 26-08-2015 Heard Sri Sudhir Kumar, learned counsel for the petitioner, learned AC to AAG-8 and Sri Alok Kumar Sinha, learned counsel, who has appeared on behalf of Respondent nos. 4 to 7.
The petitioner, invoking writ jurisdiction of this Court under Article 226 of the Constitution of India, has prayed for
2/8 quashing of an order/ Award dated 12.02.2014 passed by the Presiding Officer, Labour Court, Purnea in Reference Case no.02/2013 (Annexure-7 to the writ petition). By the said order, Reference case was rejected on the preliminary objection raised by the Management that the petitioner being a Medical Representative was not a workman within the meaning of Section 2(S) of the Industrial Dispute Act. It has further been prayed that after setting aside the impugned order/award, the matter may be remitted back for deciding reference case on its merit. Short fact of the case is that a reference was made under clause ( c) of sub section 2 (A) of Section 10 of the Industrial Dispute Act, 1947 by way of issuance of Notification dated 19.07.2013 by the Government of Bihar to decide "Whether termination of Sri Ramashish Kumar by Management, Lupin Limitedduring the conciliation proceeding was justified ? If not, what relief Sri Kumar was entitled to?"
After reference was received in the Labour Court, it was numbered as Reference Case no.02/2013. Before the Labour Court, a preliminary objection was raised on behalf of the Management on the point of maintainability of the reference on the plea that a Division Bench of this Court in L.P.A. No.1430/2009 has made it clear that Medical Representatives are
3/8 not workman under the Industrial Dispute Act. After objection being raised, the matter was heard by the Presiding Officer and by the impugned order i.e. order dated 12.02.2014 accepting the objection, it has been held that reference case was not maintainable and award was passed against the petitioner. Aggrieved with the impugned order, the petitioner approached this Court by filing the present writ petition. Sri Sudhir Kumar, learned counsel for the petitioner emphatically argued that in view of Section 6 of the Sales Promotion Employees (Condition of Service) Act 1976 (hereinafter referred to as the "SPE Act", in a case of such employees, provisions of Industrial Dispute Act is applicable. He submits that the learned Presiding Officer without appreciating the aforesaid provisions has rejected the award.
He has also placed heavy reliance on a Constitution Bench Judgment of the Hon‟ble Supreme Court reported in 1994(5)SCC 737 ; H.R. Adyanthaya & Ors Vs. Sandoz ( India) Ltd. & Ors. He has placed heavy reliance on paragraph nos.
"27. It will be noticed that under the SPE Act, the sales promotion employee was firstly, one who was engaged to do any work relating to promotion of sales or business or both, and secondly,
4/8 only such of them who drew wages not exceeding Rs.750 per mensem (excluding commission) or those who had drawn wages (including commission) or commission not exceeding Rs.9000 per annum whether they were doing supervisory work or not were included in the said definition. The only nature/type of work which was excluded from the said definition was that which was mainly in managerial or administrative capacity.
28. The SPE Act was amended by the Amending Act 48 of 1986 which came into force w.e.f. 6-5-1987. By the said amendment, among others, the definition of sales promotion employee was expanded so as to include all sales promotion employees without a ceiling on their wages except those employed or engaged in a supervisory capacity drawing wages exceeding Rs.1600 per mensem and those employed or engaged mainly in managerial or administrative capacity.
29. Section 6 of that Act made the workmen Compensation Act, 1923, Industrial Disputes Act, 1947, ( the ID Act), Minimum Wages Act, 1948, Maternity Benefit Act, 1961, Payment of Bonus Act, 1965 and Payment of Gratuity Act, 1972, applicable forthwith to the medical representatives. Sub section (2) of the said section while making the provisions of the ID Act, as in force for the time being , applicable to the medical representatives stated as follows:
5/8 "(2) The provision of the Industrial Disputes Act, 1947( 14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to , workmen within the meaning of the Act and for the purposes of any proceeding 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 that dispute." In other words, on and from 6-3-1976 the provisions of the ID Act became applicable to the medical representatives depending upon their wages up to 6-5-1987 and without the limitation on their wages thereafter and upon the capacity in which they were employed or engaged."
He further submits that before the Labour Court one another Division Bench Judgment of this Court was not brought to the notice. He submits that the issue, which was involved in the present case, was already set at rest by a Division Bench of this Court in a case reported in 2008(2) PLJR 83 ; Pankaj Sharan Vs. The State of Bihar & Ors. Accordingly, he submits that the impugned order is required to be set aside and the matter may be remitted back to the Labour Court for deciding the reference on its
6/8 merit.
Sri Alok Kumar Sinha, learned counsel, who has appeared on behalf of Respondent/ Lupin Limited, opposing the prayer of the petitioner submits that the order impugned is legal, justified and in accordance with the principle laid down by the Apex Court, on which reliance was placed by the petitioner in 1994(5) SCC 737; H.R. Adyanthaya & Ors Vs. Sandoz (India) Ltd. & Ors. He further submits that recently a Division Bench of this Court relying on the Judgment of the Apex Court i.e.1994 (5)SCC has categorically held that the Medical Representatives are not the workman and, as such, the provisions of Industrial Disputes Act is not applicable in such cases. He has referred to paragraph-18 of the Division Bench Judgment reported in 2012 (1) PLJR 214 ; Nalin Sinha Vs. The State of Bihar & Ors., which is quoted herein below:
"18. Thus in the light of the law laid down by the Apex Court, both in the case of H.R. Adyanthaya ( supra) and Rhone-Poulenc ( India ) Ltd. ( supra) , it has to be held that a medical representative in view of not performing duties of skilled or technical nature cannot be held as „workman‟ under I.D. Act. Once I come to the conclusion that the appellant was not a „workman‟ under the I.D. Act, obviously the reference itself
7/8 before the Labor Court under Section 10 of the I.D.Act has to be held wholly without jurisdiction rendering the impugned award a nullity in the eye of law."
On the aforesaid ground, he submits that there is no need to interference with the impugned order. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Fact remains that the case, on which learned counsel for the petitioner has placed reliance i.e. H.R. Adyanthaya‟s case (supra), goes against the petitioner. In paragraph-39 of the Judgment of the Apex Court, it has categorically been held that the Medical Representatives are not the workman. Of course, the said case was in relation to Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act. The Apex Court, even after deciding that the Medical Representative was not a workman, exercising power under Article 142 of the Constitution of India, had directed in favour of the employee/workman.
8/8 help from the said Judgment. So far as Nalin Sinha‟s case is concerned, on perusal of para-18 of the Judgment, it is evidently clear that the Division Bench of this Court reiterating the law, which was decided by the Apex Court, has categorically held that the Medical Representatives are not the workman and in such cases reference would be illegal.
In view of facts and circumstances as well as the law set at rest by the Apex Court as well as reiterated by a Division Bench of this Court, this Court has left with no option but to reject the writ petition.
Accordingly, the writ petition stands dismissed. (Rakesh Kumar, J) NKS/- U