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Intas Pharmaceuticals Ltd. & Others v/s Yogendra Singh Chouhan

    Misc. Petition No. 2212 of 2020

    Decided On, 26 November 2020

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE VIVEK RUSIA

    For the Petitioners: G.S. Patwardhan, Advocate. For the Respondent: --------



Judgment Text

1. Petitioners have filed the present Petition being aggrieved by the Award, dated 18.2.2020 (Pronounced on 23.3.2020) passed by the Labour Court, Indore in Reference Case No.51/IDR/14.

Facts of the case, in short, are as under:

2. Petitioner No.1 is a Company registered under the Companies Act and engaged in the business of manufacture and sale of pharmaceutical products. The Petitioner No.2 is the General Manager HRD (Field) posted in the head Office at Ahmedabad. The Petitioner No.1-Company is having operation all over the country managed from its Administrative Office at Ahmedabad. The Petitioner No.1-Company engages Employees for the purpose of promotion of the products of the Company for sale and they are called as Sales Representatives.

3. Respondent was appointed vide Letter, dated 20.5.2011 as Area Business Executive Trainee w.e.f. 20.5.2011 for a period of six months which may extend by the Company for a further period of six months at its sole discretion. During the training period (field) he was posted at Indore. The other terms and conditions of the appointment have been incorporated in the Letter, dated 23.5.2011 itself. His basic salary was Rs.1,600 and drawn total Salary of Rs.13,170 per month. He was also entitled to HQ. allowance, Ex. HQ. allowance and outstation allowance per working day etc.

4. Vide Order, dated 21.9.2013 the General Manager HRD (Field) has transferred the Respondent from Indore HQ. to Mumbai HQ. w.e.f. 1.10.2013 to look after SYBELLA Division in the business interest. The Respondent did not join at the transferred place and raised an Industrial Dispute before the Labour Commissioner. The Labour Commissioner had initiated the conciliation proceeding, which ended into failure hence, vide Order, dated 21.7.2014 the Govt. has referred the dispute to the Labour Court for its adjudication with the following terms of reference:

[Vernacular omitted]

5. After the reference the case was registered as 51/2014/ID Ref. The Respondent filed the statement of claim alleging that he was informed by the Regional Manager that the Management is not happy with his working and they want him to submit his resignation. Since he refused to give resignation hence in order to put undue pressure and with an intention to victimize him he has been transferred from Indore to Mumbai. He has also alleged that he was working with full satisfaction of the Management but on 4.5.2013 the Regional Manager has insulted him by shouting and assaulting before the staff. He has alleged mala fide against the Management and challenged the authority of Petitioner No.2 to issue his transfer order.

6. After receipt of the notice Petitioners have filed Written Statement raising a Preliminary Objection about the maintainability of the reference for want of territorial jurisdiction of Labour Court and specifically denied the allegations made in the statement of claim. The Petitioners have specifically pleaded that in view of the terms and conditions of the Appointment Letter the Respondent has been transferred in the interest of business, hence, no interference is called for. The Petitioners have also challenged that the reference is not maintainable before the Labour Court as the Respondent does not come under the category of Workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the ID Act').

7. On the basis of the pleading the Labour Court has framed 7 issues for adjudication which are as under:

[Vernacular omitted]

8. In support of the statement of claim, Respondent examined himself as PW1 and Rajesh Goyal, Medical Representative but he did not appear in the Court for cross-examination. The Respondent was cross-examined by the representative of the Petitioners. In Defence the Petitioners examined Mangesh Ghatage, Asst. General Manager (Field) HR and he was cross-examined in detail by the Respondent.

9. That learned Labour Court has answered the Issues No.1 & 3 against the Respondent. The Issues No.2, 4 & 5 have been answered against the Petitioners. While answering the Issues No.1 & 3 learned Labour Court has held that the Respondent/Workman has failed to prove that he was threatened and pressurized to give the resignation and on 4.5.2013 the Regional Manager had insulted him by way of assault. The Labour Court has answered the issues No.2 & 4 that the Respondent was not paid the wages for the months June, July, August and September 2013 and Monthly Expenses for 5 months without any valid reasons. In order to give final relief to the Respondent vide Award, dated 18.2.2020 learned Labour Court has held that the Respondent being low paid Employee has been transferred from Indore to Metropolitan city Mumbai without the payment of Salary and transfer allowances. The Petitioners have not constituted the governing committee, not framed the transfer policy and he has wrongly been transferred under the garb of business interest in order to victimize him without there being any certified Standing Orders hence the set-aside the Transfer Order, dated 21.9.2013 being illegal and improper. Being aggrieved by the aforesaid Award, Petitioners have filed the present Petition before this Court.

10. Shri G.S. Patwardhan, learned Counsel for the Petitioners has argued that the reference before the Labour is not maintainable as the provisions of the ID Act do not apply to the Medical representative. The sales representatives are not the Workmen as per the definition of Workman in the ID Act. By omitting Section 6(2) from the Sales Promotion Employees (Conditions of Service) Act, 1976 (hereinafter referred to as 'the SPE Act') the provisions of the ID Act do not apply to the sales promotion Employees. Even if it is held that provisions of the ID Act apply to the Respondent then also by virtue of working as Area Business Executive Trainee and drawing the Salary of '15,736 does not fall within Section 2(d) of the SPE Act read with Section 2(s) of the ID Act. In support of his contentions he has placed reliance over the Judgment passed by the Division Bench of this Court in the case of (i) Novartis India Ltd. v. Vipin Shrivastava, 2019 (161) FLR 574; (ii) Provimi Animal Nutrition India Pvt. Ltd. v. Secretary, M.P. Medical & Sales rep. Association and another, 2019 (160) FLR 383; and (iii) Vimal s/o. Ramshankar Raghuvanshi v. Abbott Healthcare Pvt. Ltd. and others, reported in MANU/MP/0570/2020.

11. Shri G.S. Patwardhan, learned Counsel for the Petitioners has further argued that as per Condition No.2 of the Appointment Order the services of the Respondent are liable to be transferred at any place in India in connection with the work of the Company at the sole discretion of the Management, therefore, the Labour Court has committed an error of law while interfering with the transfer of the Respondent. In support of his contention he has placed reliance over the Judgments in the case of (iv) Mishra R.K. v. M.P.S.R.T. Corporation and others, 1999 (3) LLJ 736 MP; (v) Rajendra Roy v. Union of India (UOI) and others, AIR 1993 SC 1236; (vi) Kamal Singh Chauhan v. Industrial Court of M.P., CLR 1995 (2) 359; (vii) Sun Pharmaceuticals Ltd. v. Gyan Singh, M.P. No.2469/2019 & 2596/2019, dated 29.8.2019; (viii) Syndicate Bank v. Workmen, AIR 1966 SC 1283; (ix) Cipla Ltd. v. Jaya Kumar and another, 1999 SCC (L & S) 292; and (x) Chief Engineer (Personnel) TNEB Madras v. K. Raman, 1985 (1) LLJ 164. Learned Counsel for the Petitioners further submitted that the Respondent has alleged mala fide behind the transfer order but he has failed to prove the same before the Labour Court and against the said findings on issues No.1 & 3 the Respondent did not file any Writ Petition, therefore, that findings are final now. Since ld. Labour Court has held that that the Respondent was transferred due to mala fide reason, hence the interference with the transfer order was not permissible. He further submitted that the Labour Court has interfered with the transfer order merely on the ground that the Respondent being a low paid Employee has been transferred to a metropolitan city like Mumbai is not a valid ground for interference by the Labour Court because the Respondent himself accepted the terms and conditions of the Appointment Order i.e. he is liable to be transferred at any part of India.

12.Per contra the Respondent appearing in person has argued that his services are governed under the provisions of the SPE Act, therefore he is covered under the definition of Workman 2(s) of the ID Act, eligible to invoke the provisions of the ID Act by seeking a reference under Section 10 of the ID Act. The Petitioners are estopped from challenging the jurisdiction of the Labour Court because they have participated in the conciliation proceeding before the Labour Commissioner and did not challenge the terms of reference. Having been contested the case before the Labour Court and inviting the Award against them, they cannot now challenge the jurisdiction of the Labour Court which is not permissible in law. He has further argued that the Petitioners' Management has not framed the transfer policy and has not constituted Grievance Redressal Committee in its establishment under Section 9-C of the ID Act hence, the Labour Court has rightly interfered with the Transfer Order. He has emphasised that before issuing the Transfer Order he was not given the Salary for 4 months and the transfer allowances, therefore, being a low paid Employee it was not possible for him to join all the way from Indore to Mumbai. In the beginning, he was pressurized to resign from service and when he did not resign the Petitioners have transferred him in order to victimize him. It is Mandatory on the Petitioners to form a grievance redressal committee in view of Section 9(c) of the ID Act. Without a Salary of four months from June to September 2013 and transfer, allowance made him incapable to join at the transferred place. The Judgment passed by the Division Bench in the case of Novartis India Ltd. (supra) is not applicable to him because in that case the concerned Employee was not a sales promotion Employee but in the present case, the Petitioners have accepted that he was appointed as a sales promotion Employee. The Petitioners have not produced any gazette Notification to establish that Section 6(2) of the SPE Act has been omitted from the Statute, therefore, ID Act is very much applicable. It has also been argued by him that the Petitioners approached this Court vide W.P. No.6445/2015 against the Order, dated 12.8.2015 in which they did not challenge the applicability of the ID Act, therefore, now they are estopped from challenging the jurisdiction of the Labour Court for want of applicability of the ID Act. He further submitted that the scope of interference by the High Court under Article 227 of the Constitution of India is very limited. In support of the aforesaid contention, the Respondent has placed reliance over the Judgments passed by the Supreme Court, this Court as well as other Courts in the case of (i) UCB India Pvt. Ltd. and others v. Additional Labour Commissioner, Indore and others, W.P. No.2499 of 2017, dated on 17.9.2019; (ii) Novartis India Ltd. v. Vipin Shrivastava and others, W.A. No.75 of 2017. dated 11.10.2018; (iii) Abbott India Ltd. v. Gaurav Bairathi, W.A. No.547 of 2017, dated 9.10.2017; (iv) Rhone Poulenc India Ltd. v. State of Uttar Pradesh, LAWS (SC)-2000-9-119; (v) Usha Workers Union v. Usha Martin Industries Ltd., LAWS (JHAR)-2003-1-49; (vi) Sompal Singh v. Artificial Limbs Mfg. Corpn. of India, LAWS (ALL)-1993-10-39; and (vii) M.P. Medical & Sales Representative Association v. Senior General Manager, W.P. No.15162 of 2008, dated 25.1.2012.

I have heard learned Counsel for the Petitioners and the Respondent in person and perused the record of the Labour Court.

13. Vide Letter, dated 23.5.2011 the Respondent was appointed as Area Business Executive Trainee and posted at Indore initially for a period of six months with the basic salary of Rs.1,750 per month, compensatory living allowance of Rs.4,900 per month, house rent allowance @ 30% of the basic Salary, Transport allowance, Medical reimbursement, leave travel allowance, communication allowance, bonus etc. As per Condition No.2 of the Appointment Order, he is liable to be transferred without any additional remuneration or allowance at any places in India in connection with the work of the Company at the sole discretion of the Management. On such posting and transfer, the bye-laws and other working conditions shall remain unaltered. As per Clause 23 if the Respondent abstains from work without the prior consent of the supervisory officials or fails to attend the duties or abstain from work he shall be liable to be terminated forthwith without any claim over the Employer. As per the note written at the bottom of the aforesaid letter that if the terms and conditions are agreeable to him Respondent was requested to sign each page of the as a token of acceptance. The Respondent joined the services and started working, therefore, it is not in dispute that he had accepted all the terms and conditions written in the Appointment Order.

14. The General Manager HRD (Field) has transferred him from Indore headquarter to Mumbai headquarter in consonance with Clause-2 of the Appointment Letter and he was advised to inform through a separate letter about the confirmation of his joining and he was deemed to have been relieved w.e.f. 30.9.2013 to enable him to join Mumbai headquarter.

15. Respondent did not join the transferred place and raised an Industrial Dispute before the Labour Court mainly on the ground of mala fide and secondly non-payment of the Wages and allowances for four months, thirdly being a low paid Employee it is very difficult for him to work in a Metropolitan city. In para-13 of the statement of claim he has mentioned that his current salary is Rs.13,600, hence, he is unable to work in Mumbai with his family. To elaborate the allegation of mala fide he has alleged that initially, the Management has pressurized him to resign from service and when he did not resign the then Regional Manager Shri Rajiv Musalgaonkar insulted him by shouting and assaulting in front of the Staff on 4.5.2013 and thereafter the Management has issued the Transfer Order. The Labour Court has framed the Issues No.1 & 3 in respect of the allegation of mala fide and assault on 4.5.2013. The Respondent has failed to prove both the issues and the findings recorded by the Labour Court has not been challenged by him by way of a separate Writ Petition or in this Petition, therefore, these findings have attained finality, hence it has been established that there was no mala fide on the part of the Petitioners' Management to transfer the Respondent from Indore to Mumbai.

16. Respondent has also alleged that he was not paid the Wages for four months i.e. July to September 2013. The Labour Court has given a finding in para-38 that the Management Witness has admitted in his cross-examination that the Wages of four months have been withheld, therefore, the Petitioners have failed to prove that without any valid reason the salary of four months was withheld. I do not find any perversity in the aforesaid finding because the salary was payable to the Respondent by crediting it in his Bank Account and the Petitioners' Management has failed to produce any document to establish that the Salary payable from June to September, 2013 has been paid to the Respondent. It is correct that in absence of payment of salary for four months it was difficult for the Respondent to join at the transferred place. If the Respondent was really interested to join to the transferred place he could have demanded the salary from the Petitioners by submitting a representation. Instead of making a demand for Salary for four months he straight away challenged the transfer order by raising a dispute alleging mala fide against the Management. According to him due to non-payment of four months salary, he was financially broken down by the Management, therefore, he could not join the transferred place. Since the date of transfer, the Respondent is not working with the Petitioner/Company and not getting salary. He has also not produced any document to show that he is working elsewhere and earning the livelihood. He is surviving with his family since 2013 i.e. almost 7 years and more without salary hence, it cannot be believed that only for non-payment of four months Salary he was financially broken down and could not join the transferred place. Even after joining at Mumbai he could have submitted a claim for the aforesaid Salary or he could have raised a dispute only in respect of payment of Salary under the Payment of Wages Act but he was not willing to join at the transferred place hence challenged the transfer order alleging mala fide, which he has failed to establish, therefore, on account of withholding of salary for a period of four months the Labour Court ought not to set aside the Transfer Order.

17. The Labour Court has also interfered with the transfer order on the ground that the Petitioner No.1 has not set up the Grievance Redressal Committee for resolving the dispute arising out of individual grievance but non-compliance of Section 9-C of the ID Act would not render any decision taken by the Management illegal. The Respondent was not remedy less as he raised the Industrial Dispute under Section 10 of the ID Act and the State Govt. has referred it to the Labour Court for adjudication. Non-framing of Certified Standing Orders in any establishment attracts the penalty as provided under Section 13 of the Industrial Employment (Standing Orders) Act, 1946. Against the Employer, who fails to submit the draft Standing Orders as required by Section 3 cannot be a ground for interfering with the decision taken by the Management.

18. So far the applicability of the ID Act is concerned according to the Respondent he comes under the definition of Sales Promotion Employee as he is engaged as a Sales Promotion Employee but as per the definition of Section 2(d) of the SPE Act a Sales Promotion Employee means any person by whatever name called employed or engaged in any establishment for hire or reward to do any work relating to Promotion of Sales or business or both but does not include any such person, who is employed or engaged in a supervisory capacity, draws Wages exceeding Rs.1,600 per mensem. As per Section 6(2) of the SPE Act, the provisions of the ID Act have been made applicable to the Sales Promotion Employees but on enforcement of Section 24 of the Act of 46 of 1982 sub-section (2) of Section 6 has been omitted, therefore, the provisions of the ID Act are not applicable to the Sales Promotion Employees like the provisions of Workmen's Compensation Act, Minimum Wages Act, Payment of Bonus Act, Payment of Gratuity Act etc.

19. So far the Judgments on which the Respondent has placed heavy reliance are concerned, they have already been considered by the co-ordinate bench of this Court in the case of Vimal v. Abbott Healthcare Pvt. Ltd., W.P. No.10001 of 2019, dated 4.3.2020 and held that Petitioner therein was not a Workman within the meaning of Section 2(s) of the ID Act by virtue of the Division Bench Judgment in the matter of Novartis India Ltd. (supra) and I do not find any reason to take a different view. Para-7 to 12 of the said Judgment are reproduced below:

"7. Having heard the Petitioner and counsel for the Respondent No.1, it is noticed that undisputedly the Petitioner was working as Medical Representative with the Respondent. The issue in this regard came up before the Division Bench of this Court in the matter of Sanat Kumar v. Parke Davis (India) Ltd., 1997 LLR 21 wherein after considering Section 6(2) of the Act of 1976 and the requirement of Section 2(s) of the ID Act, it has been held that:

"11. This goes to show that a person engaged in managerial or administrative capacity or if, employed in a supervisory capacity draws wages exceeding one thousand six hundred per month shall not come within the definition of workman.

12. We have perused the Petition and the reply filed by Respondent No.1 before the learned Single Judge. The Company has made an averment in Para-4 that Sanat Kumar (Appellant here) was working in managerial capacity and his salary was more than Rs.1,600. In Para 5.8 it has been further pleaded that Respondent No. (Appellant have) draws a salary of Rs.5,725 p.m. plus perquisites. In reply to Para 5, 8 of the Petition, Appellant, who was Respondent No.4, has made an averment that his bare salary was Rs.3,425 p.m. from April 90. Thus, in any way, admittedly the salary of the Appellant was more than Rs.1,600 p.m. In such a situation he will not come within the purview of a 'workman'."

8. In the present case also the clear stand of the Respondent-Company is that the Petitioner was working in the managerial capacity and was drawing the salary of much more than Rs.1,600 per month. The same issue came up before the Division Bench recently in the case of Novartis India Ltd. v. Vipin Shrivastava and others, W.A. No.75/2017, wherein by Order, dated 11.10.2018 the Division Bench has reiterated the earlier position that the Medical representatives or sales representatives in a pharmaceutical Company cannot be treated to be Workman within the meaning of Section 2(s) of the ID Act. In this regard it has been held that:

€œ14. In view of the aforesaid Judgment, the question as to whether a person is a Workman within the meaning of Section 2(s) of the ID Act mainly depends upon the nature of the industry, type of work in which he is engaged, organizational set up of particular unit of industry and other factors. In the present case, the Respondent was engaged as Sales Representative in a Pharmaceutical Company. His primary duty was to visit Doctors, chemists as well as stockists. Meeting different professionals to promote sale of product of the Appellant cannot be said to be manual or clerical work as it requires knowledge of product, its uses and also persuasive skills. The Respondent may not be controlling any subordinate but he was master of the work assigned to him. The manner of performing the job was solely in the discretion of the Respondent. The interest of the Management was that the Medical Representative should achieve the sales target. The supervisory capacity necessarily has to be examined keeping in view the manual, unskilled, skilled, clerical work and the person performing such work is a Workman. May be, he does not supervise any person but he is the master of his own affairs reporting to Management only in respect of quantification of sales, therefore, a Medical Representative cannot be treated to be a Workman within the meaning of Section 2(s) of the ID Act.

15. The Judgment in H.R. Adyanthaya's case (supra) has come up for consideration before a Division Bench of this Court in Samat Kumar v. Parke Davis India Ltd., 1997 (2) JLJ 353 wherein the reference to Labour Court was subject matter of challenge on the part of the Management. Though the Workman was said to be working as Area Sales Manager in managerial capacity drawing salary of more than '1,600, therefore, he was not a workman but while examining the scope of Adyanthaya's case (supra), the Court has held that the work of promotion of sales of the product or services of the establishment is distinct from and independent of the types of work covered by the said definition under Section 2(s) of the ID Act. The relevant extract of the Division Bench Judgment reads as under:

"10. As against it, learned Counsel for the Respondent No.1 has placed reliance on a case as in A. Sundarambal v. Govt. of Goa, Deman & Diu and others, 1988 (2) MPWN 116: AIR 1988 SC 1700, whereby it was held that teacher employed in a school is not a Workman. But, now dispute stands resolved with respect to the cases of Medical Representative as H.R. Adyanthaya etc. v. Sandoz (India) Ltd. etc. etc., AIR 1994 SC 2608, whereby it has been held that 'Workman' does not include all Employees except those covered by four exceptions in said definition of Section 2(s) of Industrial Disputes Act. Medical Representatives do not perform duties of 'skilled' or 'technical' nature and therefore, they are not 'Workmen'. The connotation of word 'skilled' in the context in which it is used, will not include work of a Sales Promotion Employees such as Medical Representative. That word has to be construed ejusdem generis and thus construed, would mean skilled work whether manual or non-manual, which is of a genre of the other types of work mentioned in the definition. The work of Promotion of Sales of the product or services of the establishment is distinct from and independent of the types of work covered by the said definition."

After returning such finding it was held that the reference was not maintainable as Medical Representative would not fall within the definition of Workman. We are not only bound by the aforesaid Judgment but we find the same to be a correct enunciation of law.€

16. Learned Single Bench of this Court in German Remedies Ltd's case (supra) relying upon H.R. Adyanthaya's case (supra) held that the Medical Representative is a Workman. The relevant extracts of the said decision in German Remedies Ltd's case read as under:

€œ14. With regard to meet out, the objections-the Petitioner about the status of Respondent No.2, whether he would be a Workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, has to be dealt with. The Apex Court had an occasion to consider a similar question in a Judgment H.R. Adyanthaya v. Sandoz (India) Ltd. and others, 1994 (5) SCC 737. The Apex Court in the said case was considering the status of Medical Representatives and the Apex Court came to the conclusion that since there had been an amendment in the provisions of the Industrial Disputes Act, 1947 and also by virtue of the provisions of Section 6 of the Sales Promotion Employees (Conditions of Service) Act, 1976 makes application to the provisions of the Industrial Disputes Act, 1947 as in force for the time being, therefore, the Apex Court held that a Medical Representative shall be a Workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.

15. The aforesaid Judgment passed by the Apex Court had also been considered by the Rajasthan High Court in Dolphin Laboratories Ltd. v. Judge, Labour Court, Udaipur and another, 2001 (2) LLJ 559 (Raj.), and also by Punjab & Haryana High Court in Ripu Daman Bhanot v. Presiding Officer, Labour Court, Ludhiana and others, 1997 (1) LLJ 557 (P&H). The aforesaid two High Courts have also dealt with the similar questions and relying upon the ratio of Sandoz's case (supra) held that Medical Representative is a Workman for the purpose of Section 2(s) of the Industrial Disputes Act, 1947.

16. In view of the aforesaid law laid down by the two High Courts based upon the earlier Judgment passed by the Apex Court in Sandoz's case (supra), this objection of the Petitioner also cannot be accepted.€

The Single Bench in German Remedies Ltd's case (supra) has misread the Judgment in H.R. Adyanthaya's case (supra) to hold that Medical Representatives are Workmen within the meaning of Section 2(s) of the ID Act. In fact, three categories were created by the Supreme Court. In respect of the Medical Representatives engaged prior to enactment of SPE Act w.e.f. 6.3.1976, they were held not governed either by ID Act or SPE Act. In respect of Employees whose services were terminated after 6.3.1976, the Appeals were dismissed for the reason that it is not the case of the Employees that their Wages were less than '750 per month excluding commission, therefore, the SPE Act did not apply to them. The only dispute which was referred to Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971 was in respect of transfer of the Employees affected on 16.2.1988. The Supreme Court found that the definition of Workman under ID Act will not cover the Sales Promotion Employees within the meaning of SPE Act.

The argument raised that the sales Promotion Employees are skilled or operational Employees was not accepted. Therefore, the order of the learned Single Bench is not the correct reading of H.R. Adyanthaya's case (supra) and is, thus, overruled.

17. A Division Bench of Patna High Court in Deepak Kumar v. State of Bihar, 2016 (149) FLR 528, held as under:

€œ9. The Sales Promotion Employee as defined under the SPE Act as reproduced above includes any person by whatever name called (including an apprentice) employed or engaged in any establishment for hire or reward to do any work relating to Promotion of Sales or business, or both. The main provision is wide enough to include all categories of Employees engaged for hire or reward to do any work relating to promotion of sale of business. The Petitioner falls within such category. As admittedly, he was appointed as a person to promote sale of the pharmaceutical products, as is evident from Charge-sheet, dated 13th December, 2002, which is to the effect that the Appellant has failed to achieve the targets of sale of group of medicines. The notice (Annexure 2 to the Writ Petition) itself recites the Appellant as a Medical Representative. Therefore, he is a Sales Promotion Employee. But there is exclusion clause of Sales Promotion Employees and not all Sales Promotion Employees are the Employees within the meaning of Section 2(d) of the SPE Act. The Employees, who are employed or engaged in supervisory capacity drawing wages exceeding '1,600 per mensem is the first category which are not the Sales Promotion Employees. The second category is the Employees, who are employed or engaged mainly in a managerial or administrative capacity.€

18. In view of the said fact, the Award passed by the learned Labour Court and the Order passed by the learned Single Bench is set aside holding that the Medical Representative is not a Workman within the meaning of Section 2(s) of the ID Act and Section 2(d) of the SPE Act. The Appeal stands allowed and disposed of.

9. So far as the Judgment of the learned Single Judge in the case of German Remedies Ltd. v. Presiding Officer, Labour Court No.1, Bhopal and others, 2006 (2) LLJ 8 MP, relied upon by the Petitioner is concerned, the same has already been overruled in the case of Novartis India Ltd. (supra). Petitioner has also placed reliance upon the Judgment in the case of H.R. Adyanthaya (supra), but the Division Bench in the case of Novartis India Ltd. (supra) has considered the Judgment of the Hon'ble Supreme Court in the case of H.R. Adyanthaya (supra) and has held that in that cas

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e also the Supreme Court had found that the definition of Workmen under the ID Act will not cover the sales Promotion Employees within the meaning of SPE Act. So far as the reliance of the Petitioner on the Judgment of the Supreme Court in the matter of Rhone-Poulenc (India) Ltd. (supra) is concerned, in that case exercising the powers under Article 142 of the Constitution the reference was made to the Industrial Court and so far as the Division Bench Judgment of this Court relied upon by the Petitioner in the case of R.R. Iyer (supra) is concerned, in that W.P. No.10001/19 case the reliance was placed on the Judgment of the Supreme Court in the case of Rhone-Poulenc (India) Ltd. (supra), though the power under Article 142 of the Constitution is not available to the High Court. That apart, while passing the Judgment in the case of R.R. Iyer (supra), the earlier Division Bench Judgment in the case of Sanat Kumar (supra) was not brought to the notice of the Court. 10. Petitioner has also relied upon the Single Bench Order, dated 17.9.2019 passed in W.P. No.2499/2017 in the case of UCB India Pvt. Ltd. and others v. Addl. Labour Commissioner, Indore and others, but that being a Single Bench Judgment is of no help to the Petitioner as the issue is settled by the Division Bench Judgment. 11. Having regard to the aforesaid, I am of the opinion that the issue which the Petitioner is raising, is concluded against him by virtue of the Division Bench Judgment in the matter of Novartis India Ltd. (supra). In this view of the matter the Judgments of Single Bench and Division Bench of Punjab & Haryana High Court and Rajasthan High Court relied upon by the Petitioner are of no help to him because the Division Bench Judgment of this Court in the case of Novartis India Ltd. (supra) has binding effect on this Single Bench. 12. Hence, I am of the opinion that the Labour Court has not committed any error in reaching to the conclusion that the Petitioner is not a Workmen within the meaning of Section 2(s) of the ID Act. The Petition is devoid of any merit, which is accordingly dismissed." 20. That the Supreme Court of India in the case of Gujarat Electricity Board and another v. Atmaram Sungomal Posham, 1989 (2) SCC 602, and in the case of Shilpi Bose and others v. State of Bihar and others, 1992 (1) LLN 7 (SC): AIR 1991 SC 532, has held that an order of transfer is part of service condition and it cannot be interfered with unless it is mala fide or the Service Rule prohibits such transfer, by the authorities, who issued the order are not competent to pass such order. It is equally well settled that the Employees have no right to be posted at a particular place and the order of transfer cannot be evaded on the ground of difficulties. Such order of transfer cannot be interfered with unless it is violative of any mandatory statutory rule or mala fide. Even if Transfer Order is passed in violation of Executive Instructions or Orders, the aggrieved party, instead of challenging the same, should approach the higher authority. 21. In view of the foregoing discussion, the Labour Court has committed an error of law as well as fact while interfering with the Transfer Order in view of the law laid down by the Apex Court in the case of Cipla Ltd. (supra). In the result, the Petition is allowed and the impugned Order passed by the Labour Court is hereby quashed. No order as to Costs.
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