Posted On by &filed under Bombay High Court, High Court.


Bombay High Court
Berger Paints India Limited vs Chandrakant N. Raut And Anr. on 21 September, 2000
Equivalent citations: (2001) IIILLJ 850 Bom
Author: S Shah
Bench: S Shah


JUDGMENT

S.K. Shah, J.

1. Heard the learned counsel on both sides.

2. This Writ Petition impugns Award Part-1 passed in Reference (IDA) No. 880 of 1991 by the learned Judge, 12th Labour Court, Mumbai on August 19, 1998, whereby he held that the second party workman is a workman covered by the definition under Section 2(s) of the Industrial Disputes Act, 1947.

3. The short question involved in this matter is whether Respondent no. 1 is or is not workman covered by the definition of the workman in Clause (a) of Section 2 of the Industrial Disputes Act, 1947.

4. The Petitioner is a limited company duly incorporated under the Companies Act, having its registered office at Calcutta and a Branch Sales Office in Mumbai. Initially Respondent No. 1 was appointed as a Sales Representative in 1986 and subsequently in 1988 he was promoted to the post of Senior Sales Representative working in the Branch Office in Mumbai. As a part of duty of Respondent No. 1, he was required to furnish daily reports and end-use reports and other reports in respect of the sales of the product of the company, the product being paint. It appears that Respondent No. 1 failed to furnish various reports for the period between April 1989 and September 1989. It was also found by the Petitioner that during the aforesaid period the actual total collection made by Respondent No. 1 was much less than the prescribed target. As also the Petitioner could not ascertain any new dealers having been appointed by Respondent No. 1. Consequently, the petitioner had issued a letter dated October 3, 1989 specifying the lapses committed by respondent No. 1 and calling upon him to submit his explanation. Respondent No. 1 by his letter dated October 5. 1989 submitted his explanation as regards the alleged lapses committed by him. The Petitioner having not been satisfied with the explanation, initiated a Departmental Enquiry against Respondent No. 1. It is alleged that Respondent No. 1, during the inquiry admitted the lapses. The Inquiry Officer submitted his report and finding on November 10, 1989 and found Respondent No. 1 guilty of lapses. Based on this report, the Petitioner terminated the services of Respondent No. 1 by an order dated November 15, 1989 which was to take effect immediately.

5. Having served with the termination/dismissal order, Respondent No. 1 raised a dispute in regard to his dismissal whereupon the aforesaid reference being Reference (IDA) No. 880 of 1980 came to be made before the Labour Court.

6. In the said reference before the Labour Court evidence was led by both the parties besides producing documents. The Petitioner led the evidence of the Regional Administrative Manager and Respondent No. 1, examined himself. The learned Labour Judge, on evidence, held that Respondent No. 1 was a workman as his main work was of clerical nature which was covered by the definition of workmen given in Section 2(s) of the Industrial Disputes Act and passed Award Part-I. It is this Award which is impugned in this Writ Petition.

7. It was vehemently contended on behalf of the Petitioner that the finding arrived at by the Labour Court was perverse and without any support from the evidence. He further submitted that the Labour Court came to the conclusion that Respondent No. 1 was workman only on the ground that the witness of the Petitioner had failed to produce documentary evidence to show that Respondent no. 1 who was workman required to do the work of promoting the company’s product and canvassing the same for increasing the sales of the product to the customers. He further vehemently contended that the main work of Respondent No. 1 being the Senior Sales Representative, was to promote the Petitioner’s product and also canvass for the purpose of increasing the sales of the product besides the other work which was incidental to the main work/ He further submitted that the Labour Court did not take into consideration the documentary evidence which indicated the fact that the main work of Respondent No. 1 was of promoting the company’s product and canvassing the same for increasing the sale.

8. On the other hand, it was submitted on behalf of Respondent No. 1 that the view taken by Labour Court in arriving at the conclusion, that Respondent no. 1 was workman was based on cogent evidence and the view is correct. He further submitted that no evidence was led by the Petitioner to indicate that the duty of Respondent No. 1 to promote the company’s product by way of canvassing the same to the customers and increasing the sale. He submitted that the work of Respondent No. 1 was limited to obtaining the order, collecting the payment against the goods supplied, submitting daily report of sales performance, etc. which was of a clerical nature and the same was covered by the definition of workman given in Section 2(s) of the Industrial Disputes Act.

9. It is common ground that Respondent No. 1 was initially appointed as Sales Representative in 1986 and was then promoted as Senior Sales Representative in 1988. There is no dispute about the fact that it was the duty of Respondent No. 1 to obtain order, collect payment against goods supplied, submit daily report of sales performance, collect the outstandings from the dealers and also to appoint new dealers within the jurisdiction of Mumbai city. It can very well be seen that the aforesaid duties, which admittedly were required to be done by Respondent No. 1 involved mainly the clerical work, of going to various dealers, collect the orders, supply goods, collect payments, collect the defective goods, sometimes go to the godown for collecting the goods and supplying them to the dealers etc. was of the clerical nature.

10. The short question that needs to be considered is whether it was or was not the part of the duty of Respondent No. 1 to promote the company’s product and canvass the same for the purpose of increasing the sales. This would be, to my mind, a deciding factor whether Respondent No. 1 would or would not be covered by the definition of workman given in Section 2(s) of the Industrial Disputes Act, 1947.

11. In support of the submission made by the learned counsel for the Petitioner, he has placed reliance on the ruling of the Apex Court in the case of H.R. Adyanthaya and Ors. v. Sandoz (India) Ltd. and Ors. , wherein it was held that for a person to be a workman under the Act, must be employed to do the work of any of the categories mentioned in Section 2(s) of the Industrial Disputes Act, 1947. This position of law is also not disputed by the learned counsel for Respondent No. 1. It would therefore be useful to consider the definition of workman giver in Section 2(s) of the Industrial Disputes Act, 1947. The definition reads as under: –

“2. Section 2(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, discharge or retrenchment has led to that dispute, but does not include any such person.”

In the present case, we are concerned with only the first part of the definition that is to see whether the duties assigned to Respondent No. 1 are covered by the various categories of work given in this definition. If the duty or work, assigned to Respondent No. 1 was any of these categories namely to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work, and if Respondent No. 1 is doing any of these categories of work he would be a workman and not otherwise.

12. As stated hereinabove, the nature of the duties which Respondent No. 1 has been admittedly assigned to the extent of obtaining orders, collection of payment against goods
supplied, submitting daily report of sales performance, collecting defective goods and replacing them, sometimes actually supplying the goods from the godown etc. is undisputed. While considering this nature of duty, it would be clear that performance of the duties of such nature is of clerical type and therefore it is covered by the definition of workman. Therefore the limited question which needs to be considered is whether there is evidence to show that Respondent No. 1 was also required to do the work of promoting the company’s product and canvassing the same for the purpose of sale of the company’s product.

13. In the aforecited Sandoz (India) Limited’s case the Apex Court was considering the question whether the medical representative of Sandoz (India) Limited was or was not a workman. In that case the Apex Court held that the medical representatives are not workmen within the definition of Section 2(s) of the Act. This finding was based on the fact that it was the duty of the medical representative to promote and canvass the company’s product and increase its sale.

14. It is vehemently submitted on behalf of the Petitioner- company that the same ratio is applicable to the facts of the present case as admittedly Respondent No. 1 was appointed as Sales Representative and thereafter he was promoted as Senior Sales Representative and doing the same type of work as the medical representative does.

15. In this regard, however, as rightly observed by the Labour Court, there is no evidence to show that Respondent No. 1 was required to do the work of promoting the company’s product namely, the paint and increase its sale. In support of the contention raised by the learned counsel, he placed reliance on Respondent No. 1’s explanation given to the show cause notice. That explanation is dated October 5, 1989 which deals with sales report, sales performance, collection performance, overdue outstandings and new dealer appointment. What was vehemently submitted on behalf of the Petitioner company was that all these aspects related to the sales of the product and therefore, it was submitted that this aspect was being duty of Respondent No. 1 was not falling within the various categories mentioned in the definition of workman and therefore Respondent No. 1 was not a workman within the meaning of the workman given in Section 2(s) of the Act. However, this submission is not acceptable on facts and circumstances of the case. This is basically sc because although the Petitioner had examined its witness to show that Respondent 1 No, 1 was required to do the work of promoting the company’s product and canvassing the same, there was no evidence in support of that version. On the contrary, the Petitioner’s witness had admittedly no direct concern with the work of Respondent No. 1. The witness also further admitted in cross-examination that there was different division for canvassing the products of the company and that division was known as Project Selling Division. This admission makes to clear that there was different product selling division which required to promote the company’s product and canvass the same. There was nothing on record to show that Respondent No. 1 was required to do this work or that Respondent No. 1 was employed in this division. That particular division was only in Calcutta and the office which is situated in Mumbai was only the sales division. The Petitioner’s witness admitted in cross examination that the witness was assisting the Regional Sales Manager in the matter of sales administration and that he was not directly concerned with the day to day work of the sales representative. This being the position, the witness does not have direct idea as to what was the work of the Respondent No. 1. Apart from this, when the Petitioner’s witness was cross examined, the witness stated that he did not know whether any duty list was supplied to the sales representative. He further stated that after verifying the record he can tell the names of the dealers who started buying the products as per the canvassing by Respondent No. 1. But even after having given two chances the witness failed to produce any documentary evidence to show that the duty list was either given to Respondent No. 1 or that the said duty list included the work of sales promotion or that Respondent No. 1 was actually canvassing sales of the company’s product as a result of which the sales increased.

16. Under these circumstances, therefore, the Labour Court had rightly held that there was no evidence to show that Respondent No. 1 was required to do the work of promoting the product of the company and canvassing the same for the purpose of increasing the sale. The other work, which was the part of Respondent No. 1’s duty, was clearly included in the category of clerical work which was covered by the definition of Section 2(s) of the Industrial Disputes Act, 1947.

17. The burden to prove in a civil proceeding always shifts, primarily being on the party challenging the claim has to prove the claim burden lying on it. It was rightly submitted on behalf of the Petitioner that in the present case since both the parties had led evidence, the burden to prove was not of much importance. The evidence of the Petitioner’s witness was led initially and thereafter the evidence of Respondent No. 1 was led. The evidence of the Petitioners claimed that it was the duty of Respondent No. 1 to do the work of sales promotion by canvassing the company’s product. That was denied by Respondent No. 1 therefore. The burden had shifted on the Petitioner to establish by cogent evidence that it was the part of the duty of Respondent No. 1 to promote the company’s product by canvassing and increasing the sale and that the other aspect of the duty was incidental to the main work. This having not been establishing by cogent evidence, the finding arrived at by the Labour Court was correct. By no stretch of imagination it can be said to be perverse.

18. In this view of the matter, there is nothing in the matter to interrelate with Part-I Award passed by the Labour Court in the aforesaid manner. The Writ Petition, therefore deserves to be dismissed. Hence, the Writ Petition is hereby dismissed with no order as to costs.


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