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Vimal v/s Abbott healthcare Pvt. Ltd. & Others


Company & Directors' Information:- ABBOTT HEALTHCARE PRIVATE LIMITED [Active] CIN = U24200MH1997PTC104834

Company & Directors' Information:- ABBOTT INDIA LIMITED [Active] CIN = L24239MH1944PLC007330

Company & Directors' Information:- R G S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110PB2004PTC047381

Company & Directors' Information:- R G S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110CH2004PTC027689

Company & Directors' Information:- P. H. HEALTHCARE PRIVATE LIMITED [Active] CIN = U33110MH2010PTC208651

Company & Directors' Information:- B G P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232GJ2007PTC050417

Company & Directors' Information:- D R HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110GJ2006PTC048008

Company & Directors' Information:- M J HEALTHCARE PRIVATE LIMITED [Active] CIN = U93090PN2008PTC132455

Company & Directors' Information:- S J HEALTHCARE PRIVATE LIMITED [Active] CIN = U85190MH2005PTC153435

Company & Directors' Information:- G J HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110PB1998PTC021049

Company & Directors' Information:- I M HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232CH2010PTC032454

Company & Directors' Information:- K G HEALTHCARE LIMITED [Active] CIN = U85110TZ1995PLC006402

Company & Directors' Information:- C S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110GJ2012PTC070018

Company & Directors' Information:- M M HEALTHCARE LIMITED [Active] CIN = U74899DL1988PLC034339

Company & Directors' Information:- A L B HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85110UP2002PTC026786

Company & Directors' Information:- S B M HEALTHCARE (INDIA) PRIVATE LIMITED [Active] CIN = U33112DL2005PTC140703

Company & Directors' Information:- S A HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85100OR2014PTC018365

Company & Directors' Information:- AND HEALTHCARE LIMITED [Active] CIN = U51909PB2017PLC046446

Company & Directors' Information:- D. S. HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232WB2007PTC115617

Company & Directors' Information:- B N HEALTHCARE PRIVATE LIMITED [Active] CIN = U15412AS2000PTC006258

Company & Directors' Information:- P AND B HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U24230GJ2013PTC075056

Company & Directors' Information:- M M D HEALTHCARE LIMITED [Active] CIN = U65921CH1996PLC017595

Company & Directors' Information:- A AND R HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239DL1999PTC102404

Company & Directors' Information:- K. N. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85320RJ2018PTC061003

Company & Directors' Information:- R F B HEALTHCARE PRIVATE LIMITED [Active] CIN = U85190DL2021PTC384643

Company & Directors' Information:- M S HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239MH2001PTC130893

Company & Directors' Information:- G A S HEALTHCARE PRIVATE LIMITED [Active] CIN = U74999BR2018PTC038700

Company & Directors' Information:- L. J. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100HR2019PTC078493

Company & Directors' Information:- J. R. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85191UP2013PTC054982

Company & Directors' Information:- M A P H HEALTHCARE PRIVATE LIMITED [Under Process of Striking Off] CIN = U85100WB2010PTC144870

Company & Directors' Information:- N. C. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85191DL2007PTC164437

Company & Directors' Information:- N Y HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230GJ2010PTC063348

Company & Directors' Information:- H 4 HEALTHCARE PRIVATE LIMITED [Active] CIN = U15100MH2021PTC353283

Company & Directors' Information:- D. B. HEALTHCARE PRIVATE LIMITED [Active] CIN = U33205MH2014PTC253439

Company & Directors' Information:- K S V HEALTHCARE PRIVATE LIMITED [Active] CIN = U85195HR2011PTC043767

Company & Directors' Information:- VIMAL INDIA PRIVATE LIMITED [Strike Off] CIN = U24231DL1999PTC099648

Company & Directors' Information:- N M HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110MH2000PTC125392

Company & Directors' Information:- T K HEALTHCARE (INDIA ) PRIVATE LIMITED [Strike Off] CIN = U85190MH2003PTC139346

Company & Directors' Information:- A R HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110CH2013PTC034820

Company & Directors' Information:- I P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239DL2003PTC121211

Company & Directors' Information:- A 2 Z HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100DL2010PTC208860

Company & Directors' Information:- K. D. HEALTHCARE INDIA PRIVATE LIMITED [Strike Off] CIN = U85100DL2015PTC281658

Company & Directors' Information:- A P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230MH1999PTC122520

Company & Directors' Information:- K Y O S HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U51397HP2010PTC031280

Company & Directors' Information:- Z F HEALTHCARE PVT. LTD. [Active] CIN = U29295MH2006PTC164255

Company & Directors' Information:- K. B. B. K. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110RJ2013PTC041465

Company & Directors' Information:- T.H.E. HEALTHCARE COMPANY PRIVATE LIMITED [Strike Off] CIN = U33111MH2012PTC229451

Company & Directors' Information:- J S B HEALTHCARE PRIVATE LIMITED [Active] CIN = U74120MH2013PTC248848

Company & Directors' Information:- J S D HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC046578

Company & Directors' Information:- S V T HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85100TZ2009PTC015287

Company & Directors' Information:- A N S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100HP2011PTC031745

Company & Directors' Information:- J M HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230CH2007PTC030943

Company & Directors' Information:- P R HEALTHCARE PRIVATE LIMITED. [Strike Off] CIN = U24231DL2003PTC120123

Company & Directors' Information:- R S M HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U24232DL2005PTC136255

Company & Directors' Information:- M H HEALTHCARE PRIVATE LIMITED [Active] CIN = U74999DL2016PTC289311

Company & Directors' Information:- N T HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100DL2012PTC241304

Company & Directors' Information:- R A HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85190DL2009PTC188221

Company & Directors' Information:- G & G HEALTHCARE PRIVATE LIMITED [Active] CIN = U51397HR2015PTC057293

Company & Directors' Information:- P D HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230GJ2004PTC045131

Company & Directors' Information:- L. V. G. HEALTHCARE PRIVATE LIMITED [Active] CIN = U24233GJ2006PTC047749

Company & Directors' Information:- S H G HEALTHCARE PVT LTD [Strike Off] CIN = U85110WB1989PTC047231

Company & Directors' Information:- VIMAL AND VIMAL PVT. LTD. [Strike Off] CIN = U99999DL2000PTC005647

    WP. No. 10001 of 2019

    Decided On, 04 March 2020

    At, High Court of Madhya Pradesh Bench at Indore

    By, THE HONOURABLE MR. JUSTICE PRAKASH SHRIVASTAVA

    For the Petitioner: In person. For the Respondents: R1, Romesh Dave, Learned Counsel.



Judgment Text


1. By this petition the petitioner has challenged the award of the Labour Court dated 28.3.2019, whereby the reference has been dismissed on the ground that the petitioner is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, therefore, the dispute does not fall within the jurisdiction of the labour court.

2. The brief facts are that the petitioner was appointed as Key Account manager and was working as sales promotion employee with the respondent-Company, which is involved in sale of medicines and providing health care services and the services of the petitioner were terminated by order dated 22.4.2017. The Labour Commissioner, Indore had made a reference to the Labour Court in respect of correctness and validity of termination of the petitioner's services. Petitioner had Digitally signed by Trilok Singh Savner Date: 04/03/2020 18:17:39 filed the claim before the Labour Court with the plea that he had worked on the different posts; such as Marketing Executive, Sr. Marketing Executive, Dy. RBM and Key Account Manager but the basic work of the petitioner was of medical representative and his initial appointment was in the year 2008 and he was covered within the meaning of Workmen under Section 2(s) of the Industrial Disputes Act and Sales Promotion Employees (Conditions of Service) Act, 1976 (for short "the Act of 1976"). A further plea was raised that his services were terminated by adopting unfair labour practice, without conducting any enquiry and without giving any retrenchment compensation.

3. The respondent by filing the reply had taken the stand that the petitioner was an employee of the managerial capacity and his main work was of management and administration and he had the power to spent up to Rs.5,000/- per month, hence he does not fall within the meaning of workmen under Section 2(s) of the Industrial Disputes Act and his services were terminated by following the due procedure.

4. The Labour Court had permitted the parties to lead evidence and had decided the first issue, as to whether the petitioner was appointed in administration and managerial capacity or he falls within the meaning of workmen under Section 2(s) of the Industrial Disputes Act? Labour Court has reached to the conclusion that the petitioner was appointed as Medical Representative and was doing the sales related work independently and he does not fall within the meaning of workmen under Section 2(s) of the ID Act. Accordingly the reference has been dismissed for want of jurisdiction.

5. The petitioner in person submits that the labour Court has not taken into account the provisions contained in Digitally signed by Trilok Singh Savner Date: 04/03/2020 18:17:39 Section 6(2) of the Act of 1976 and it has also not taken into account the judgment of the Supreme Court in the matter of Rhone-Poulenc (India) Ltd. Vs. State of U.P. and others reported in 2000(7) SCC 675, in the matter of H.R. Adyanthaya and others Vs. Sandoz (India) Ltd. and others reported in 1994(5) SCC 737 as also the Division Bench judgment of this Court in the matter of R.R. Iyer Vs. R.P.G. Life Sciences Ltd. reported in 2010 MPLSR 312.

6. As against this, learned counsel for the respondent has submitted that the issue that the medical representatives are not workmen, has already been decided by the Division Bench judgment of this Court, and the judgments of the Supreme Court which the petitioner is relying upon are rendered in exercise of the power under Article 142 of the Constitution of India.

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 Vs. Parke Davis (India) Ltd. reported in 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.1600. In para 5.8 it has been further pleaded that Digitally signed by Trilok Singh Savner Date: 04/03/2020 18:17:39 respondent No. (appellant have) draws a salary of Rs.5725 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.1600 p.m. In such a situation he will not come within the perview 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. Vs. Vipin Shrivastava and others in WA 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:-

"14. 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 Digitally signed by Trilok Singh Savner Date: 04/03/2020 18:17:39 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. M/s 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 Rs.1,600/-, therefore, he was not a workman but while examining the scope of Adhyanthaya'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 reported in 1988 (II) MPWN 116 = AIR 1988 SC 1700 (Miss A. Sundarambal v. Govt. of Goa, Deman & Diu and others) 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 reported in AIR 1994 SC 2608 [H.R. Adyanthya etc. etc. v. Sandoz (India) Ltd. etc. etc.) 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 Limited'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 Limited's case read as under:-

"14. 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 Digitally signed by Trilok Singh Savner Date: 04/03/2020 18:17:39 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- II-LLJ-559 (Raj.) and also by Punjab & Haryana High Court in Ripu Daman Bhanot v. Presiding Officer, Labour Court, Ludhiana and Ors. 1997-I-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 Limited'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. 06.03.1976, they were held not governed either by ID Act or SPE Act. In respect of employees whose services were terminated after 06.03.1976, the appeals were dismissed for the reason that it is not the case of the employees that their wages were less than Rs.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 16.02.1988. 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:-

"9. 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 Digitally signed by Trilok Singh Savner Date: 04/03/2020 18:17:39 the appellant has failed to achieve the targets of sale of group of medicines. The notice (Annexure2 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 Rs.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. Vs. Presiding Officer, Labour Court No.1, Bhopal and others (2006 Vol.II, 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 case 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 Cour

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t 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 Digitally signed by Trilok Singh Savner Date: 04/03/2020 18:17:39 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 WP No.2499/2017 in the case of UCB India Pvt. Ltd. and others Vs. 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.
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