Spic Pharmaceuticals Division Vs.
Authority Under Sec. 48(1) Of A.P. & Anr [2007] Insc 230 (28 February 2007)
Dr. ARIJIT PASAYAT & TARUN CHATTERJEE
With (Civil Appeal Nos. 768 of 2004, 767 of 2004 and 1498 of 2004)) Dr.
ARIJIT PASAYAT, J.
Challenge in these appeals is to the legality of the judgment rendered by a
Division Bench of the Andhra Pradesh High Court. By the impugned judgment
several writ appeals and writ petitions, filed by the appellants, were
dismissed.
The core question that arose for consideration in the cases before the High
Court was whether the provisions of Sales Promotion Employees (Conditions of
Service) Act, 1976 (in short the 'Act') oust the jurisdiction of the
authorities constituted under the Andhra Pradesh Shops and Establishment Act,
1988 (in short the 'Shops Act') and consequently the Authorities under the
Shops Act are excluded from entertaining appeals preferred by the aggrieved
sales promotion employees challenging the termination of their services. The
further question was whether the Authorities constituted under the Shops Act
have no jurisdiction to entertain any appeal preferred by the sales promotion
employees challenging action of the employees in terminating their services.
Several writ petitions filed were dismissed by learned Single Judge of the High
Court and therefore, writ appeals were filed. The orders of the Authorities
under the Shops Act directing the reinstatement of the employees into service
together with back wages which were challenged in the writ petitions came to be
dismissed by learned Single Judge. The appellant in each case is involved in
the manufacture of pharmaceutical products. It has engaged the services of
employees for the purpose of marketing its manufactured products. In common
parlance the employees appointed by the pharmaceuticals companies are known as
medical representatives. Charge sheets were issued against the concerned
employees and after holding inquiries, services of the employees were
terminated. The employees invoked the jurisdiction of the Labour Court
challenging the orders of termination but later on they withdrew them and moved
the authority under the Act along with, in some cases, condonation for delay in
approaching the Authorities concerned. Notwithstanding serious objections raised
by the employer, the concerned Authority condoned the delay. Writ Petitions
filed and writ appeals preferred were rejected.
In the present appeals the stand of the appellants was that the authority
under the Shops Act had no jurisdiction to entertain the so called appeals
preferred by the employees as the service conditions of the employer were
governed and regulated by the provisions of the Act which is a special
enactment. The competent authority rejected the objections raised by the
employer. As regards the jurisdiction it was held that the cause of action
arose within the territorial jurisdiction of the concerned appellate authority
could not be entertained.
Both the learned Single Judge and the Division Bench in the writ appeal held
that the appellate authorities' orders were in order. It did not accept the
stand that the forum created under the Industrial Disputes Act, 1947 (in short
the 'ID Act') was the only forum and the disputes cannot be raised in any other
forum.
In support of the learned counsel appearing for the appellant submitted that
the Parliament enacted the Act as it thought that it would be more appropriate
to have a separate legislation for governing service conditions of the Sales
Promotion Employees and accordingly made the provisions of the ID Act
applicable conferring rights on the Sales Promotion Employees to challenge the
orders of dismissal, discharge or retrenchment in the forum created and
constituted under the provisions of the ID Act. The Parliament specified
application of certain Acts to Sales Promotion Employees which include Workmen's
Compensation Act, 1923, Minimum Wages Act, 1948, Maternity Benefit
Act, 1961, Payment
of Bonus Act, 1965 and Payment of
Gratuity Act, 1972. Except these Acts no other Act including the Shops Act
shall be applicable.
In response learned counsel for the respondent- employees submitted that two
forums are available to the employees i.e. under the provisions of ID Act and
the Shops Act. It is for the employee to choose the remedy available to him in
law either by approaching the forums created i.e. one constituted under the ID
Act or the Authorities constituted under the Shops Act.
The High Court accepted that the Act which makes the provisions of the ID
Act applicable providing remedy to Sales Promotion Employees is a special
enactment dealing with service conditions of sales promotion employees employed
in the establishment engaged in pharmaceutical industries. The Shops Act deals
with specific rights created under that Act and it has been indicated that these
provisions provided for some more measures for protecting interest of the
employees.
They are beneficial in nature. The High Court held that the jurisdiction
conferred under the Shops Act cannot be said to have been taken away in respect
to enforcement of rights conferred under the Act. We think it is unnecessary to
go into these broader issues. We find that the forums created under the ID Act,
on the facts of the case can more effectively deal with the issues raised. It
is not to be understood that we have said that the Appellate authorities under
the Act do not have jurisdiction. We are not really deciding that issue as to
whether there was exclusion of the jurisdiction of authorities made the Shops
Act because it specifically provided that the forum under the ID Act can be
approached. In the peculiar circumstances, therefore, we direct that the
concerned State Governments i.e. Karnataka, Tamil Nadu and Maharashtra shall
make reference to the appropriate forum under the ID Act within a month from
today. The concerned forum shall make an effort to dispose of the reference to
be made within three months from the date of receipt of the reference. If the
respondent employees are entitled to any payment because of the pendency of the
disputes, the same shall be paid within two months from today. We make it clear
that we have not expressed any opinion on the merits of the case and the order
for reference by the State Government is being made in view of the special
features involved. Normally it is for the State Government to decide whether
reference is to be made but in view of the conceded position by the learned
counsel for the parties that the industrial disputes do exist, we direct the
concerned State Governments to refer the dispute to the forum under the ID Act
for adjudication as directed above.
Appeals are accordingly disposed of with no orders as to costs.
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