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CASE NO.: Appeal (civil) 1935-1936  of  1998

PETITIONER: RHONE-POULENC (INDIA) LTD

       Vs.

RESPONDENT: STATE OF U.P.  & ORS.  .

DATE OF JUDGMENT:       26/09/2000

BENCH: S.R.Babu, Y.K.Sabharwal

JUDGMENT:

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     J U D G M E N T

     Y.K.SABHARWAL,J.

     Respondent   No.3   was    working    as   a   Medical Representative  with the appellant.  By an order dated  11th March,  1986  issued  by the Regional Sales Manager  of  the appellant,  respondent no.3 was transferred from Aligarh  to Kanpur.   Respondent No.3, however, did not join the  duties at  Kanpur despite grant of various opportunities.  Thus,  a charge-sheet   dated  13th  October,   1986  was  issued  to respondent  no.3.  An enquiry was held.  Respondent no.3 did not  participate in the enquiry.  The enquiry officer  found the  charges proved.  By order dated 24th June, 1987  passed by  the  appellant,  respondent   no.3  was  dismissed  from service.   An  industrial dispute was raised  by  respondent no.3.   The  State  Government   referred  the  dispute  for adjudication  of  the Labour Court to determine whether  the termination  of respondent no.3 was correct and legal and if not  to what relief the workman was entitled to.  The Labour Court  by  order  dated  22nd September, 1993  came  to  the conclusion  that  respondent  no.3  was  a  Sales  Promotion Employee as per the Sales Promotion Employees (Conditions of Service) Act, 1976 and as per Section 2(s) of the Industrial Disputes Act, 1947, he comes under the definition of workman and  has a right to raise the industrial dispute.  The  said order  also held that the enquiry conducted by the appellant against  the workman was not according to the principles  of

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natural  justice.   By award dated 18th December, 1995,  the Labour Court held that the appellant has failed to prove the charge of misconduct against respondent no.3 and termination of his services with effect from 24th June, 1987 is improper and  illegal and he is entitled to reinstatement in  service along  with consequential benefits.  The plea of  respondent no.3  that  the  transfer  order   had  been  issued  by  an incompetent  authority  and, therefore,  the  non-compliance thereof  cannot  be treated as misconduct was accepted.   It was  noticed in the award that the appellant did not produce any  material  to prove that the Regional Sales Manager  was competent to pass an order of transfer or that the powers to transfer  the Medical Representatives had been delegated  to the  Regional  Sales  Manager.   It was  admitted  that  the Corporate Manager had the power to pass order of transfer of Medical  Representatives.   Two writ petitions filed by  the appellant,  one challenging the order dated 22nd  September, 1993 and the other the award dated 18th December, 1995, were dismissed  by  the High Court by a common judgment which  is under challenge in these appeals.  Mr.  V.R.  Reddy, learned counsel  for  the appellant, contends that the Labour  Court had no jurisdiction to deal with the matter since respondent no.3,  a  Medical Representative, could not be held to be  a ‘deemed  workman’ within the meaning of the U.P.  Industrial Disputes  Act  by  virtue  of  Section  6(2)  of  the  Sales Promotion  Employees (Conditions of Service) Act, 1976.  The said  section reads as under :  "6(2) The provisions of  the Industrial  Disputes Act, 1947 (14 of 1947), as in force for the  time  being, shall apply to, or in relation  to,  sales promotion  employees  as they apply to, or in  relation  to, workmen  within the meaning of the Act and for the  purposes of  any  proceeding  under  that   Act  in  relation  to  an industrial  dispute,  a  sales promotion employee  shall  be deemed  to  include a sales promotion employee who has  been dismissed,  discharged or retrenched in connection with,  or as  a  consequence  of,  that dispute  or  whose  dismissal, discharge or retrenchment had led to that dispute."

     The contention of the learned counsel is that assuming the  aforesaid  provision is applicable, it still  does  not extend  the deeming fiction to any State enactment including the  U.P.   Industrial  Disputes Act as it  is  apparent  on reading  of  the  section that  Sales  Promotion  Employees, within  the  meaning of Central enactment of the  Industrial Disputes  Act,  1947  (14  of 1947)  have  been  treated  as ‘workman’.   Reliance has been placed by the learned counsel on  a  Constitution  Bench decision of this  Court  in  H.R. Adyanthaya  & Ors.  v.  Sandoz (India) Ltd.  & Ors.  [(1994) 5  SCC  737].   The Bench has held that  since  the  Medical representatives  are  not workmen within the meaning of  the Maharashtra  Act, the complaint made to the Industrial Court under  the  Maharashtra  Recognition  of  Trade  Unions  and Prevention  of  Unfair  Labour Practices Act, 1971  was  not maintainable.   The  acceptance  of the  contention  of  Mr. Reddy  that respondent no.3 in view of Sandoz case is not  a ‘workman’  within  the  meaning  of  the  U.P.    Industrial Disputes  Act,  however,  does  not help  the  appellant  in substance  as  in the present case we propose to  adopt  the same  course  as was adopted in Sandoz case by treating  the complaint  to be an industrial dispute under the  Industrial Disputes  Act, 1947 in exercise of the powers of this  Court under  Article 142 of the Constitution.  More than 12  years have  passed since the reference was made to the  Industrial Court  and  in the facts and circumstances of the  case,  we

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think  it appropriate to adopt the course as was adopted  in Sandoz case.  Thus, we treat the reference in question to be one  under Section 10(1)(d) of the Industrial Disputes  Act, 1947.   The appellant did not place any material before  the Labour  Court  to prove the authority and competence of  the Regional  Sales Manager to order the transfer of  respondent no.3.   The  appellant has been unable to make out any  case for  disturbing the finding recorded by the Labour Court  as affirmed  by  the  High  Court that the  transfer  order  of respondent  no.3  had  not  been   issued  by  a   competent authority.   The mere fact that after the order of  transfer had  been  issued  and when respondent no.3  had  failed  to report for duty, he was also asked by the Corporate Manager, who  was competent to order his transfer, to join the duties at  Kanpur will not validate the order of transfer issued by an  authority  not competent to do so.  The High  Court  has also  held  that  respondent no.3 is entitled  to  the  same amount  of salary/arrears of salary after he was  reinstated by  the  award  of the Labour Court which  his  counterparts (Medical  Representatives)  in  the appellant  company  were receiving under the settlement dated 25th June, 1988 and has further  held that the said settlement is applicable to  the case  of  respondent  no.3  as well  and  the  appellant  is estopped  from taking the plea of its non- applicability  in case  of  respondent  no.3.  Mr.  Reddy  contents  that  the aforesaid  finding  of  the High Court deserves  to  be  set aside.   We agree.  The question whether respondent no.3  is entitled  or  not  to the benefit of settlement  dated  25th June,  1988  was not the subject matter of the  award  which directed  the reinstatement of workman in service along with consequential   benefits.   What    consequential   benefits respondent  no.3  would be entitled to was not  the  subject matter  of  the  writ  petitions   before  the  High  Court. According  to the appellant, respondent no.3 is not entitled to the benefits under the settlement whereas respondent no.3 claims  such  benefits.   This  question   may  have  to  be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or  it is contended that full consequential reliefs in terms of the award have been denied to respondent no.3.  The stage of  implementation of the award had not come when the matter was pending before the High Court.  The only question before the  High Court was with regard to the legality of the award and  the  order dated 22nd September, 1993 whereby  the  two preliminary  issues  were decided by the Labour  Court.   In this  view, we set aside the impugned judgment to the extent it  directs  that  respondent no.3 is entitled to  the  same amount  of  salary/arrears of salary which his  counterparts are  receiving under the settlement dated 25th June, 1988 as also  the finding that the said settlement is applicable  to respondent  no.3  and  that the appellant is  estopped  from taking  the plea of its non- applicability.  We leave  these questions  open  without  expressing any opinion as  to  the applicability  or otherwise of the settlement to the case of respondent  no.3  or  the  validity  of  other  legal  pleas including  that  of  estoppel.   It would  be  open  to  the appellant  and respondent no.3 to raise such pleas as may be available  to  them in law at the appropriate stage  and  it goes without saying that the said aspects will be decided on its  own  merits in accordance with law.  For the  aforesaid reasons,  we partly allow the appeals to the limited  extent as  above and in all other aspects we maintain the  impugned judgment  of  the High Court.  The parties are left to  bear their own costs.

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