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The Management of Godrej Consumer Products Ltd, Kolkata & Another v/s The State of Assam Others

    Case No. WP(C) 1037 of 2017 & I.A.(Civil) 1843 of 2017

    Decided On, 29 March 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

    For the Petitioner: D. Mazumdar, A.K. Dekar. Advocates. For the Respondent: K.M. Haloir, S. Senapati, Advocates.



Judgment Text


1. Heard Mr. S. Dutta, learned senior counsel appearing for the petitioner. Also heard Mr. S.S Roy, learned counsel appearing for the respondent Nos. 1 & 2 and Mr. K.M Haloi, learned counsel for the respondent No. 3.

2. The management/writ petitioner has challenged the Award dated 25.10.2016, passed in Reference Case No. 6/2015, whereby the learned Labour Court, Guwahati has ordered the reinstatement of the respondent No. 3 with full back wages.

3. The petitioner’s case in brief is that due to termination of the service of the respondent No. 3 by the writ petitioner, a dispute arose between the respondent No. 3 and the writ petitioner. The Government referred the dispute for adjudication before the Labour Court, Guwahati, by way of a reference under Section 10 of the Industrial Disputes Act, 1947, on 2 (two) issues:

(1) Whether the management is justified to terminate the respondent No.3 from his service.

(2) If not, then he is entitled to re-installation in the same post with back wages and back benefit.

4. The writ petitioner, being aggrieved with the issues set out by the Government for reference of the dispute between the parties, approached this Court by way of WP(C) No. 4655/2015, stating that no reference had been made with regard to the core issue relevant for adjudication of the dispute, i.e., whether the respondent No. 3 was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.

5. WP(C) No. 4655/2015 was disposed of by this Court vide Order dated 12.08.2015, by holding that the issue, “whether the respondent No. 3 was a workman within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947”, was implicit in Issue No. 1 itself.

6. The petitioner’s counsel submits that subsequent to the Order dated 12.08.2015 passed in WP(C) No. 4655/2015, the Labour Court decided the Reference Case No. 6/2015, after adducing evidence of the parties and directed reinstatement of the respondent No. 3 with full back wages from the date of his dismissal.

7. The learned senior counsel for the writ petitioner submits that the learned Labour Court did not address the issue with regard to whether the respondent No. 3 was a workman within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947.

8. He also submits, in the alternative, that if the learned Labour Court had come to a finding that the respondent No. 3 was a workman, the records would show that there was no basis for the learned Labour Court to have come to such a finding.

9. The learned counsel for the writ petitioner also submits that the work of the respondent No. 3 was to promote the sales of the distributors and super stockist and that of the company, as a whole. Accordingly, the respondent No. 3 was a Supervisor. He thus submits that as the work of the respondent No. 3 involved Supervisory work and as he was earning Rs. 18,000/- per month, the respondent No. 3 could not be said to be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. In support of his submission, the learned Senior Counsel has relied upon the judgment of the Apex Court in T.P Srivastava vs. National Tobacco Co. of India LTD, reported in 1992 1 SCC 281, wherein it held that persons, who are employed for Sales Promotion, would normally not come within the definition of workman under the Industrial Disputes Act, 1947. He has also relied upon the judgment of this Court in the case of Management of M/s Escorts Construction Equipment Ltd. vs. State of Assam in WP(C) No. 5946/2006, which was disposed of vide Judgment dated 28.08.2014. He has also relied upon the judgment of the Allahabad High Court in the case of Anglo-French Drug Company (Eastern), Ltd. vs. Presiding Officer, Labour Court, Allahabad & Ors, reported in 2004 (2) L.L.N 913, para 47.

10. The learned counsel for the respondent No. 3 submits that the respondent No. 3 is a workman, who comes within Section 2(s) of the Industrial Disputes Act, 1947, in view of the amendment of Section 2 of the Industrial Disputes Act, 2007, vide the Industrial Disputes (Assam Amendment) Act, 2007, herein after referred to as the Amendment Act, 2007, which came into force on 17.11.2007. He also submits that as per the evidence given by the writ petitioner, the post held by the respondent No. 3 was in the lowest rank and there was no post below that of the respondent No. 3. In fact, the respondent No. 3 was under the superintendence and control of the Area Sales Manager, who in turn was under the control of Regional Sales Manager. He also submits that Section 2(d) of the Sales Promotion Employees (Conditions of Service), Act, 1976, herein after referred to as the ‘1976 Act’ defines a Sales Promotion employee and that the Sales Promotion employee does not come within the meaning of a Supervisor or a Manager.

11. I have heard the learned counsels for the parties. 12. With regard to the first issue raised by the petitioner’s counsel that the learned Labour Court did not address the issue, i.e., whether the respondent No. 3 was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, this Court finds that the said issue has been dealt at length by the learned Labour Court and has finally held in the impugned Award as follows:

“In such circumstances, it can be safely held that Chanchal Mukhopadhyay was a workman within the meaning of Section 2(s) of the Industrial Disputes Act.”

13. With regard to deciding the issue whether the respondent No. 3 would come within the definition of workman, Section 2 (s) of the Industrial Disputes Act, 1947 and amendment of Section 2 vide the Amendment Act of 2007 are reproduced below:

“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, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person—

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” Amendment of Section 2, vide the Amendment Act of 2007: In the principal Act, in section 2, in clauses(s), in between the words “or supervisory work” and “for hire or reward”, the words’ or any work for the promotion of sales”, shall be inserted.”

14. Section 2(d) of the Sales Promotion Employees (Conditions of Service) Act, 1976, states as follows:

“2.(d) sales promotion employee”, means 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, but does not include any such person—

(i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or

(ii) who is employed or engaged mainly in a managerial or administrative capacity.”

15. The writ petitioners are manufacturers of fast moving consumer goods.

16. The respondent No. 3 is working as a Field Officer in the Company. The work of the respondent No. 3 was to ensure that the sales of the writ petitioner’s products were promoted in the market and in this respect he had to promote the sales of the super stockist and the distributors, who were within the area under his jurisdiction. The evidence of the Management is to the effect that though the respondent No. 3 was a Supervisor, he was not supervising any company paid employee. On the other hand, the respondent No. 3 was supervised by the area Manager. The evidence of the respondent No. 3 is to the effect that he was not employed in any managerial, administrative or supervisory capacity, but employed only to promote the sale of the Company products. The evidence of the Management and the respondent No. 3 is to the effect that the job of the respondent No. 3 was to promote the sales of the products of the petitioner and monitor sales of the super stockist and the distributors in the area under his jurisdiction.

17. The judgment of the Allahabad High Court in the case of Anglo-French Drug Company (Eastern), Ltd. v. Presiding Officer, Labour Court, Allahabad and Others , reported in 2004 (2) L.L.N. 913 has held at para No. 47 as follows:

“47. In the peculiar facts and circumstances of the case, as the respondentemployee had been appointed as a medical representative and had been indulging in canvassing and promoting the sale of products of the employer, even if he had made certain sales and was also asked to make recovery that may not be held to be his dominance, therefore, he cannot be held to be a workman within the meaning of S.2(s) of the Central Act. More so, as the services of the respondent-employee stood terminated prior to Amendment Act, 1986, in Act, 1976, and he was getting salary more than Rs. 750 per month on the date of termination, he could not be held to be workman.” Thus, a reading of the above, para No. 47 would show that the Allahabad High Court has held that an employee who had been appointed as a medical representative and had indulged in canvassing and promoting sale of products of the employer, could not be held to be workman within the meaning of Section 2(s) of the Industrial Dispute Act, 1947. In the case of Management of M/s Escorts Construction Equipment Ltd v. State of Assam in WP(C) No. 5946/2006, which was disposed on 28.08.2014 by this Court, this Court has held that the employee, who was an Assistant Manager (Sales) with a salary of Rs. 2,250/-, used to perform managerial functions and was earning more than the amount provided in Section 2(s)(iv) of the Industrial Disputes Act, 1947. Accordingly, he could not be said to be a workman.

18. In the case of T.P Srivastava v. M/s National Tobacco Co. Of India Limited, reported in (1992) 1 SCC 281, the Apex Court held that persons who are employed for sales promotion would not normally come within the definition of workman under the Industrial Disputes Act, 1947.

19. This Court has no dispute with the law laid down in the above judgments, as the same were made, keeping in view the facts and circumstances of those cases and law applicable at the relevant point of time. However, it must be kept in mind that the above judgments were made prior to the amendment of Section 2(s) of the Industrial Disputes Act, 1947. The Amendment Act, 2007 has amended Section 2(s) of the Industrial Disputes Act, 1947, as it states “In the principal Act, in Section 2, Clause(s), in between the words “or supervisory work” and “for hire or reward”, the words “or any work for the promotion of sales”, shall be inserted”. In view of there being an amendment to Section 2 (s) w.e.f. 17.11.2007, which was not in existence at the time of the unamended Section 2(s), the above judgments are not applicable to the case in hand. The amended Section 2(s) would thus be as follows:

“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 or any work for the promotion of sales 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, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person—

(v) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 19

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57 (62 of 1957); or (vi) who is employed in the police service or as an officer or other employee of a prison; or (vii) who is employed mainly in a managerial or administrative capacity; or (viii) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” Accordingly, in view of the amended Section 2(s), the respondent No. 3, who is working for the promotion of sales for the company has to be termed as a workman. Accordingly, this Court finds that the respondent No. 3 was not employed in any supervisory capacity or managerial or administrative capacity. He was employed for promoting the sales of the products of the company only. The question of the respondent No. 3’s wages exceeding Rs. 10,000/- per mensem has no relevance to the case in hand in view of the fact that the respondent No. 3 is a workman doing the work of promotion of sales, as he comes within the definition of the amended Section 2(s) of the Industrial Disputes Act, 1947. 20. In view of the reasons stated above, this Court finds no ground to interfere with the Award dated 25.10.2016, passed in Reference Case No. 6/2015, by the learned Labour Court, Guwahati.
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