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

PETITIONER: RHONE-POINENC (INDIA) LTD.  ...

       Vs.

RESPONDENT: STATE OF U.P.  & ORS,

DATE OF JUDGMENT:       25/09/2000

BENCH: S.  RAJENDRA BABU, Y.K.SABHARWAL,

JUDGMENT:

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     Y.K.SABHARWAL.J.

     Respondent   No.3   was    working    as   a   Medical Representative  with the appellant.  By an order dated  11^^ 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  13^^  October,   1986  was  issued  to respondent no .3.   An enquiry was held.

     Respondent  no  .3  dies not part, "’ci pate  -in  the enquiry,  )he enquiry officer found the charges proved.   By order  dated  24^^  June,  1987  passed  by  the  appellant, respondent no.3 was dismissed from servics.

     An  industrial disputs 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, 1376 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 heTd that the enquiry conducted by the appellant against the workman  was  not  according to the  principles  of  natural justice.   By  award dated 18th Decomber, 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 24^^ June, 1987 is improper  and illegal  and  he  i-s 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.   Tt

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was noticed in the award that the appellant

     die)  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 18h December, 1995, were dismissed by the High Court by a common judgment which is under challenge in these appears.

     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.  IndustrlaT 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  contetion of the learned counsel is that assuming the  aforesaid  provsion  Is applicable, it still  does  not extend  the deeming fiction to any State enactment Including the  U.P.   Industrial  Disputes Act as it  18  apparent  on reading  of  the  section that  Sales  Promotion  Employees, within  the meaning of Centra’1 enactment of the  Industria1 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.  [(1394) 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 main’fc.^1n,ab^e.   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  D.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 ana in the facts and circumsta.nces 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  -sn question  to be one under Secticr ’0(1)(d) of the Industrial Disputes;  Act, 1947.

     The  appellant  did not place any material before  the Labour  Court to prove the authority arid 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 affir.mod  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 25^ June, 1988 and has further held that the said settlement is applicable to the case of respondent no.3 as well and the appellant   1s  estopped  from  taxing   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  raepondent, no.  3 is entitled or not  to the  benefit of settlement dated 25h June, 1988 was not  the subject matter of the awerd which directed the reinstatement of  workman  in service alons with  consequential  benefits. What  consequential  benefits  respondent no.   3  would  be entitled  to  was  not-  the  subjact  matter  of  the  writ petitions,   before  the  High   Court.   According  to  the appellant,  respondeent  no  .3  i?   not  entitled  to  the benefits  under  the settierrient 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 22’""^ 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 25^^ 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 nc.3 or the validity of other  legal pleas inc1uding that of estoppel.  It would be open  to  the appellant and respondent no.3 to  ra-ise  such pleas  as may be available to them in law at the appropriate

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stage  and it goes without saying that the said aspects will be decoded on its own merits In accordance with law.

     For the aforesaid reasons, we partly allow the appeals to  the limited oxtent 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.