CASE NO.: Appeal (civil) 1935-1936 of 1998 PETITIONER: RHONE-POULENC (INDIA) LTD Vs. RESPONDENT: STATE OF U.P. & ORS. . DATE OF JUDGMENT: 26/09/2000 BENCH: S.R.Babu, Y.K.Sabharwal JUDGMENT:
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J U D G M E N T
Y.K.SABHARWAL,J.
Respondent No.3 was working as a Medical
Representative with the appellant. By an order dated 11th
March, 1986 issued by the Regional Sales Manager of the
appellant, respondent no.3 was transferred from Aligarh to
Kanpur. Respondent No.3, however, did not join the duties
at Kanpur despite grant of various opportunities. Thus, a
charge-sheet dated 13th October, 1986 was issued to
respondent no.3. An enquiry was held. Respondent no.3 did
not participate in the enquiry. The enquiry officer found
the charges proved. By order dated 24th June, 1987 passed
by the appellant, respondent no.3 was dismissed from
service. An industrial dispute was raised by respondent
no.3. The State Government referred the dispute for
adjudication of the Labour Court to determine whether the
termination of respondent no.3 was correct and legal and if
not to what relief the workman was entitled to. The Labour
Court by order dated 22nd September, 1993 came to the
conclusion that respondent no.3 was a Sales Promotion
Employee as per the Sales Promotion Employees (Conditions of
Service) Act, 1976 and as per Section 2(s) of the Industrial
Disputes Act, 1947, he comes under the definition of workman
and has a right to raise the industrial dispute. The said
order also held that the enquiry conducted by the appellant
against the workman was not according to the principles of
natural justice. By award dated 18th December, 1995, the
Labour Court held that the appellant has failed to prove the
charge of misconduct against respondent no.3 and termination
of his services with effect from 24th June, 1987 is improper
and illegal and he is entitled to reinstatement in service
along with consequential benefits. The plea of respondent
no.3 that the transfer order had been issued by an
incompetent authority and, therefore, the non-compliance
thereof cannot be treated as misconduct was accepted. It
was noticed in the award that the appellant did not produce
any material to prove that the Regional Sales Manager was
competent to pass an order of transfer or that the powers to
transfer the Medical Representatives had been delegated to
the Regional Sales Manager. It was admitted that the
Corporate Manager had the power to pass order of transfer of
Medical Representatives. Two writ petitions filed by the
appellant, one challenging the order dated 22nd September,
1993 and the other the award dated 18th December, 1995, were
dismissed by the High Court by a common judgment which is
under challenge in these appeals. Mr. V.R. Reddy, learned
counsel for the appellant, contends that the Labour Court
had no jurisdiction to deal with the matter since respondent
no.3, a Medical Representative, could not be held to be a
`deemed workman’ within the meaning of the U.P. Industrial
Disputes Act by virtue of Section 6(2) of the Sales
Promotion Employees (Conditions of Service) Act, 1976. The
said section reads as under : “6(2) The provisions 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.”
The contention of the learned counsel is that assuming
the aforesaid provision is applicable, it still does not
extend the deeming fiction to any State enactment including
the U.P. Industrial Disputes Act as it is apparent on
reading of the section that Sales Promotion Employees,
within the meaning of Central enactment of the Industrial
Disputes Act, 1947 (14 of 1947) have been treated as
`workman’. Reliance has been placed by the learned counsel
on a Constitution Bench decision of this Court in H.R.
Adyanthaya & Ors. v. Sandoz (India) Ltd. & Ors. [(1994)
5 SCC 737]. The Bench has held that since the Medical
representatives are not workmen within the meaning of the
Maharashtra Act, the complaint made to the Industrial Court
under the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 was not
maintainable. The acceptance of the contention of Mr.
Reddy that respondent no.3 in view of Sandoz case is not a
`workman’ within the meaning of the U.P. Industrial
Disputes Act, however, does not help the appellant in
substance as in the present case we propose to adopt the
same course as was adopted in Sandoz case by treating the
complaint to be an industrial dispute under the Industrial
Disputes Act, 1947 in exercise of the powers of this Court
under Article 142 of the Constitution. More than 12 years
have passed since the reference was made to the Industrial
Court and in the facts and circumstances of the case, we
think it appropriate to adopt the course as was adopted in
Sandoz case. Thus, we treat the reference in question to be
one under Section 10(1)(d) of the Industrial Disputes Act,
1947. The appellant did not place any material before the
Labour Court to prove the authority and competence of the
Regional Sales Manager to order the transfer of respondent
no.3. The appellant has been unable to make out any case
for disturbing the finding recorded by the Labour Court as
affirmed by the High Court that the transfer order of
respondent no.3 had not been issued by a competent
authority. The mere fact that after the order of transfer
had been issued and when respondent no.3 had failed to
report for duty, he was also asked by the Corporate Manager,
who was competent to order his transfer, to join the duties
at Kanpur will not validate the order of transfer issued by
an authority not competent to do so. The High Court has
also held that respondent no.3 is entitled to the same
amount of salary/arrears of salary after he was reinstated
by the award of the Labour Court which his counterparts
(Medical Representatives) in the appellant company were
receiving under the settlement dated 25th June, 1988 and has
further held that the said settlement is applicable to the
case of respondent no.3 as well and the appellant is
estopped from taking the plea of its non- applicability in
case of respondent no.3. Mr. Reddy contents that the
aforesaid finding of the High Court deserves to be set
aside. We agree. The question whether respondent no.3 is
entitled or not to the benefit of settlement dated 25th
June, 1988 was not the subject matter of the award which
directed the reinstatement of workman in service along with
consequential benefits. What consequential benefits
respondent no.3 would be entitled to was not the subject
matter of the writ petitions before the High Court.
According to the appellant, respondent no.3 is not entitled
to the benefits under the settlement whereas respondent no.3
claims such benefits. This question may have to be
adjudicated by a competent authority at an appropriate stage
when the question of grant of consequential relief is raised
or it is contended that full consequential reliefs in terms
of the award have been denied to respondent no.3. The stage
of implementation of the award had not come when the matter
was pending before the High Court. The only question before
the High Court was with regard to the legality of the award
and the order dated 22nd September, 1993 whereby the two
preliminary issues were decided by the Labour Court. In
this view, we set aside the impugned judgment to the extent
it directs that respondent no.3 is entitled to the same
amount of salary/arrears of salary which his counterparts
are receiving under the settlement dated 25th June, 1988 as
also the finding that the said settlement is applicable to
respondent no.3 and that the appellant is estopped from
taking the plea of its non- applicability. We leave these
questions open without expressing any opinion as to the
applicability or otherwise of the settlement to the case of
respondent no.3 or the validity of other legal pleas
including that of estoppel. It would be open to the
appellant and respondent no.3 to raise such pleas as may be
available to them in law at the appropriate stage and it
goes without saying that the said aspects will be decided on
its own merits in accordance with law. For the aforesaid
reasons, we partly allow the appeals to the limited extent
as above and in all other aspects we maintain the impugned
judgment of the High Court. The parties are left to bear
their own costs.
