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Allahabad High Court dismisses petition following enactment of Sales Promotion Employees Act

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The Allahabad High Court while dismissing the petition held that following the enactment of the Sales Promotion Employees (Conditions of Service) Act, 1976, medical representatives are deemed to be “workmen” under the Industrial Disputes Act, 1947.

A Single Bench of Justice Alok Mathur passed this order while hearing a petition filed by M/S Nicholas Piramal India Ltd and Ors.

By means of the petition the petitioner has assailed legality and validity of award dated 24.01.2007 passed by the Labour Court, Lucknow thereby allowing claim preferred by respondent no 2 – workman and holding that domestic enquiry held against the workman was illegal and arbitrary and order passed against the workman as a result of domestic enquiry, was set aside holding that the workman was entitled to continue in service with effect from the date of his termination along with all consequential benefits.

The facts of the case are that the respondent no2 – workman was initially appointed as clerk in M/s Nicholas Piramal India Ltd with effect from 10.04.1973. Subsequently, by means of order dated 22.09.1982, he was appointed as Trainee Technical Representative and further was appointed on the post of Medical Representative.

It is stated that while discharging his duties as Medical Representative the workman-respondent no 2 was involved in certain acts of misconduct and most specifically submitting false call reports from 05.10.1996 to 18.10.1996 of visiting Doctors and Chemists to whom in fact he has not visited.

For his acts of misconduct an explanation was sought by means of a letter dated 07.12.1996 and not being satisfied with his explanation a regular enquiry was instituted.

The enquiry concluded and the enquiry officer submitted his report where he found all the charges levelled against respondent no 2 – workman to be proved. The workman was given show cause notice along with a copy of the enquiry report to which he responded and finally he was dismissed from service by means of order dated 12th March, 1999 and was paid compensation of Rs 1,64,346/- and one month salary. Against his termination, the workman-respondent no 2 preferred an appeal which was also rejected by the competent authority.

The Court considered the arguments of the petitioner as well as perused the record. The respondent workman was alleged to be involved in certain acts of misconduct for submitting false and fabricated daily call reports of 5/10/1996 and 18/10/1996 of having visited Doctors and chemists to whom in fact he had not visited. At the time the respondent was working as a Medical Representative. For the aforesaid misconduct he was required to submit his explanation, and subsequently a chargesheet was issued to him. The enquiry proceedings were held in New Delhi.

The Court observed that,

In the enquiry the charges were found to be proved as per the report of the enquiry officer. The reply of the workman was duly considered, and the disciplinary authority concurred with the findings of the enquiry officer, and a penalty of dismissal was imposed. Compensation of 1,64,346/- and one month ₹ salary was paid to him.

There was a meeting of the Workers Union of which the workman (respondent No 2) was a member on 05/10/1996 and 18/10/1996 in which he participated. He further submitted a certificate that he had met 5 Doctors and pharmacists on the said dates to promote the medicines sold by the petitioner. The allegations levelled against him was that on the date of the meeting it was not possible for him to meet the Doctors and pharmacists, and therefore the said certificates are false which was a misconduct, and the said basis disciplinary proceedings were initiated against him.

Considering the submissions of counsel for the petitioner, it is noticed that the Labour Court on the request of the petitioner framed a preliminary issue with regard to the fairness of the domestic enquiry.

It subsequently dealt with the entire evidence which was led by the prosecution including the statement of PK Shukla who appeared on behalf of the petitioner, as well as the evidence filed by the workman, and analysed the entire material. After a detailed discussion and analysis, the Labour Court came to the conclusion that the case for dismissal is not made out and none of the charges are proved. This Court has also looked into the aforesaid material and is of the opinion that there is no infirmity with the findings recorded by the Labour Court.

In the petition only a vain attempt has been made assailing the order of the Labour Court on the ground that it had not granted them opportunity to lead evidence. It was incumbent upon the petitioner to place material/evidence indicating that fresh/other material was in fact available which could have been placed on record to prove the charges. Matters can be remitted to the Prescribed Authority/Labour Court when it is found, on examination, that there has been violation of principles of natural justice and the workman was not given proper opportunity to defend himself.

In the case the merits of the charges have been examined by the Labour Court itself, and finding has been returned that the charges are not proved from the material available on record. Therefore, it was necessary for the petitioner to demonstrate that there was other evidence which was available but could not be produced during the domestic enquiry, and that evidence was relevant and necessary to bring home the charges. In the absence of any such material or assertion made before this Court, remanding the matter to the Labour Court would be futile and an empty formality, and is unjustified in the facts of the case.

Accordingly, no ground for interference in this regard is made out, and the argument of the petitioner is rejected.

“The dispute in the case admittedly pertains to period subsequent to enactment of Sales Promotion Employees (conditions of service) Act, 1976, and consequently the judgement of the Supreme Court in the case of May and Baker (India) Ltd v Their Workmen, AIR 1967 SC 678 would not be good law with regard to the fact that as to whether the medical representatives are ‘workman’ as per Section 2(d) of the Industrial Disputes Act, 1976.

We are in agreement with the view taken by the Bombay High Court in the case of S.G. Pharmaceuticals (supra) and it is thus clear that as per section 6(2) of Sales Promotion Employees (Conditions of Service) Act, 1976, the medical representatives are “workman” under the Industrial disputes Act, 1947.

Thus, after 06.05.1987 all the medical representatives were declared to be workmen without limitation on their wages thereafter and upon the capacity in which they were employed or engaged.

In light of the aforesaid discussion the Court is of the considered view that after coming into force of Sales Promotion Employees (conditions of service) Act, 1976 the medical representatives would be deemed to be workmen as per the provisions of Industrial Disputes act and accordingly the argument of the petitioner is rejected in this regard.

In light of the aforesaid discussion the Court does not find any infirmity in the order dated 24.01.2007″, the Court further observed while dismissing the petition.

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