(India) Ltd. Vs. State of U.P. & Ors,
 INSC 493 (25
Appeal (civil) 1936 of 1998 S.
RAJENDRA BABU, Y.K.SABHARWAL,
No.3 was working as a Medical Representative with the appellant. By an order
dated 11^^ 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 13^^ October, 1986 was issued to
respondent no .3. An enquiry was held.
no .3 dies not part, "'ci pate -in the enquiry, )he enquiry officer found
the charges proved. By order dated 24^^ June, 1987 passed by the appellant,
respondent no.3 was dismissed from servics.
industrial disputs was raised by respondent no.3.
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, 1376 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 heTd that the enquiry
conducted by the appellant against the workman was not according to the
principles of natural justice. By award dated 18th Decomber, 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 24^^ June, 1987 is improper and illegal and he i-s
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. Tt was noticed in the award that the
appellant die) 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.
writ petitions filed by the appellant, one challenging the order dated 22nd
September, 1993 and the other the award dated 18h December, 1995, were
dismissed by the High Court by a common judgment which is under challenge in
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. IndustrlaT Disputes Act by virtue of Section 6(2) of the Sales
Promotion Employees (Conditions of Service) Act, 1976. The said section reads
as under :
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 contetion of the
learned counsel is that assuming the aforesaid provsion Is applicable, it still
does not extend the deeming fiction to any State enactment Including the U.P.
Industrial Disputes Act as it 18 apparent on reading of the section that Sales
Promotion Employees, within the meaning of Centra'1 enactment of the Industria1
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.
& Ors. v. Sandoz (India) Ltd, & Ors. [(1394) 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 main'fc.^1n,ab^e. 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.
D.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 ana in the facts and circumsta.nces
of the case, we think it appropriate to adopt the course as was adopted in Sandoz
case. Thus, we treat the reference -sn question to be one under Secticr '0(1)(d)
of the Industrial Disputes; Act, 1947.
appellant did not place any material before the Labour Court to prove the authority arid 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 affir.mod 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.
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 25^ June, 1988 and has further held
that the said settlement is applicable to the case of respondent no.3 as well
and the appellant 1s estopped from taxing 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 raepondent,
no. 3 is entitled or not to the benefit of settlement dated 25h June, 1988 was
not the subject matter of the awerd which directed the reinstatement of workman
in service alons with consequential benefits.
consequential benefits respondent no. 3 would be entitled to was not- the subjact
matter of the writ petitions, before the High Court. According to the
appellant, respondeent no .3 i? not entitled to the benefits under the settierrient
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 22'""^
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
of salary/arrears of. salary which his counterparts are receiving under the
settlement dated 25^^ 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 nc.3 or the validity of other legal pleas inc1uding
that of estoppel. It would be open to the appellant and respondent no.3 to ra-ise
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 decoded on its own merits In
accordance with law.
the aforesaid reasons, we partly allow the appeals to the limited oxtent 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.