S.G. Pharmaceuticals... v. V.D. Padamwar, Presi...

Cases Referred

1. Fedclers Lloyect Corporation (Pvt) Ltd. Vs. Lt. Governor, Delhi

2. Treogi Nath Vs. Indian Iron and Steel Co. Ltd.

3. State of Maharashtra Vs. Chhotabhai Jethabhai Patel & Company

4. Management of Booklatinga Tea Estate Vs. N.J.Korean

5. The State Bank of India Vs. Shri N. Sundara Money

6. Bangalore Water Supply and Sewerage Board Vs. A. Rajappa

7. D.P. Maheshwari Vs. Delhi Administration

8. S.K. Verma Vs. Maheah Chandra

9. Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd.

10. Lachman Das Vs. M/s Indian Express Newspapers (Bombay) Pvt. Ltd.

11. J.K. Iron and Steel Co. Ltd. Kanpur Vs. The Iron and Steel Mazdoor Union, Kanpur

12. Management of M/s May and Baker (India) Ltd. Vs. Their Workmen

13. Burmah Shell Oil Storage and Distributing Co. of India Vs. The Burmah Shell Management Staff Association

14. D.S. Nagaraj Vs. The Labour Officer, Kurnool

15. The All India Voltas and. Volkart Employees Federation Vs. M/s Voltas Ltd.

16. J. & J. Dechane Distributors Vs. State of Kerala

17. Shalimar Paints Ltd. Vs. Third Industrial Tribunal

18. John Wyeth & Brother Ltd. Vs. Industrial Tribunal, Alleppey

19. S.K. Verma Vs. Mahesh Chandra

20. Ballabhdas Mathuradas Lakhani v. Municipel Contmittee, Malkapur

21. Hanmant Kallappa Bhanclare Vs. The Food Inspector, Poona Municipal Corporation

22. The Life Insurance Corporation of India Vs. D.J. Bahadur

23. See Union of India Vs. K.S. Subramanian

24. A1I India Reserve Bank Employees Association Vs. Reserve Bank of India

25. Flying Officer S. Sundararajan Vs. Union of India

Advocate Appeared:

For petitioner- V. R. Manohar and S. V. Golwalkar

For respondent No. 1- A. A. Desai, Asstt. Govt. Pleader.

For respondent No. 2- Manohar Parchure.

Mohta V.A. J:- Two points of some importance are raised in this writ petition: (1) whether on facts and circumstances of the case, respondent no. 2 Sudhir Raghanath Taskar, a medical representative employed by the petitioner- S.G. Pharmaceuticals, Bombay, is a workman as defined under section 2(s) of the Industrial Disputes Act, 1941 (The ID Act for short), and (2) whether at material time Shri V.D. Padamwar, Presiding Officer, Third Labour Court, Nagpur- the first respondent had jurisdiction over ID Act case No. 20 of 1981-an application under section 33c(2) of the id act for payment of bonus under the Payment of Bonus Act, 1965 (The Bonus Act for short) filed by second respondent against the petitioner-Compamy.

2. Factual background may be noticed first. The petitioner is a manufacturer of modern drug products and second respondent is employed by it as a Medical Representative on monthly consolidated salary ofRs. 1150/-vide letter of appointment dated 10th March 1977. On 28th January 1981, second respondent filed aforesaid application before Labour Court, Nagpur for payment of bonus for the years 1977-78, 1978-79 and 1979-80, amounting to Rs. 2250. It was assigned to the third Labour Court, Nagpur, by administrative order. The claim was resisted by the Company, inter alia, on the ground that the second respondent is not a workman as defined under the ID Act. Status of second respondent was tried as a preliminary point. Second respondent examined himself and the petitioner examined its Divisional Manager- Shri Gopal Waswani-on the point. By order dated 28th May 1982, it was held that the second respondent fell within the definition of term workman. This order was challenged in this Court in Writ Petition No. 1525 of 1982, decided on 29th September 1982. The matter was remanded with a direction to decide after recording additional evidence, if necessary, as to what were the main and substantial duties of the second respondent and if the decision on that basis was not possible to decide the matter on such test as was found proper under the circumstances. No guidelines for ascertaining *the main and substantial work were laid down despite specific request to that effect made .on behalf of the second respondent. Thereafter, second respondent and Shri Waswani again went into witness box. The matter was heard by Shri M.S. Deshpande, who then was the Presiding Officer of the Third Labour Court; but before he could pass* the order, he came to be transferred as Second Labour Court, Nagpur, on or about 31st October, 1983. On 10th November 1983, Shri Padamwar- respondent No. 1- was appointed by the Government of Maharashtra as a Presiding Officer of Fourth Labour Court. The charge of Third Labour Court which was hitherto with Shri Deshpande was given to Shri Padamwar on 30th December 1983, under the orders of Industrial Court, Bombay. On 28th February 1984, this matter was taken up by Shri Padamwar. It was adjourned from time to time and was finally heard on 6th April 1984. Vide Government Resolution dated 21st May 1984, Shri Padamwar was appointed as a Judge, Third Labour Court and Shri A.G. Deo was appointed as a Judge, Fourth Labour Court. On 6th June 1984, Shri Padamwar passed the impugned order re-affirming the earlier decision. The validity of this order is questioned in the present writ petition.

3. I will deal with the second point first. Submission is that under section 33 B of the ID Act only the appropriate Government has a power of transfer of a case and as neither the Government nor its delegate appointed under section 39 had issued order of transfer, Shri Padamwar, who was a Judge, Fourth Labour Court on the date of hearing (6th April 1984) could not hear the matter merely because administratively he was put in charge of the file of the Third Labour Court before which the matter was pending and hence the order passed is a nullity. Certain undisputed positions may be noticed. At Nagpur, in all four Labour Courts are constituted under section 7(1) of the It) Act. They all are specially empowered also under section 33 C(2). Either work-wise or area-wise their work is not divided and the first Labour Court Before whom all matters are presented assigns the matters to different Courts by passing administrative order and this is how the matter initially came to be assigned to the third Labour Court. Vide communication dated 29th December 1978, No. ICE/1178/1322/ Lab-II; issued by the Industries, Energy and Labour Department, Mantralaya, Bombay, addressed to the Registrar, Industrial Court, Maharashtra, Bombay, it is informed-

In the opinion of the Government, ranking of the judges in places where there are more than one Labour Court, can be done by the President, industrial Court, Bombay, as head of the department and no Government orders are necessary for this purpose, as the ranking is done on the basis of the seniority of the officer in their cadre.

It is true that only appropriate Government has power under section 33 B to withdraw proceedings pending before Labour Court, Tribunal or National Tribunal and transfer them to another Labour Court, Tribunal or National Tribunal and that there is no other specific provision about transfer either in the ID Act or the Rules framed thereunder, but I fail to see how ancillary administrative power of assignment of work from time to time is thereby affected and the hearing of a matter by a Presiding Officer holding charge that matter is illegal rendering the order null and void. The present case obviously is not of a withdrawal or transfer as contemplated under section 33 B. Any of the four Labour Courts could exercise jurisdiction over this matter in the absence of area wise or work wise division. But, the matter could not be tried simultaneously by all Courts and hence its assignment to some specific Court was necessary. Exactly this was done by the first Labour Court, before whom the matter was presented in usual course, in assigning this matter to the third Court. It is not disputed before me that the original . assignment was valid. What is contended is that the power of assignment gets exhausted on first exercise and hence there is no further power to reassignment or transfer. It is also not disputed that there is no statutory bar against such a course Being adopted. Now in every Court performing judicial functions certain ancillary powers are always implied for it is difficult to provide statutorily for every minute details of procedure and administrative exigencies, as in their absence the very functioning will be chaotic if not impossible. Principle of interpretation is well established that Courts are always endowed with all the ancillary powers which are necessary to discharge their functions effectively. If for administrative reasons power to transfer initially existed, it is difficult to see why for the same administrative reasons there can be no power of retransfer.

4. Moreover, Section 11(1) of the ID Act makes the Labour Courts, Board and Tribunals masters of their own procedure, subject of course to the Rules specifically made in this behalf. Clear object behind this wide power and discretion is to effectively handle the sensitive subject of settlement of industrial disputes and not to allow technicalities of procedural laws to take a dominant position and thereby to frustrate the very object of the legislation. Our Courts were never known as Courts of Justice. They are itghtly called Courts of Law. There is an increasing tendency to convert the Courts into Courts of Procedural Law by those who have vested interest in the delay and such attempts have to be thwarted whenever and wherever possible and specially in labour disputes where even otherwise the battle is between unequals. Shri. Padamwar was one of the Courts which could exercise jurisdiction over the matter, there was special empowerment under section 33 C(2), on the date of passing of the order he was actually a judge of the third Labour Court by order of State Government and thus there is* no inherent lack of jurisdiction in him. It would be not merely an empty formality but a mockery of justice to quash the order on this ground and to remand the matter and have a third round of litigation even at preliminary stage. Provisions of section 9(1) of the ID Act also gives indication of legislative policy of discouraging the challenge to orders on merits merely on the ground of defect in the constitution of Court.

5. There is yet another reason why the petitioner cannot be heard on this point. It seems to me that this point is being raised for the first time in this Court and in fact the petitioner has acquiesced in the jurisdiction and is raising the objection only on finding an adverse order after having taken a chance of getting favourable order. It is petitioners own case that after Shri Padamwar took charge of the file, there were three adjournments for hearing. Neither the record of the case nor the order indicates that any such objection was raised by the petitioner before him. No doubt a vague averment is made in the petition (which is denied by the second respondent) that such an objection was orally raised. I find it extremely difficult to believe that the petitioner which is fighting this case tooth and nail and is resisting the application on all possible grounds, would be satisfied with raising such an objection only orally. Material particulars about this are missing and even otherwise the correctness of this factual allegation cannot be examined by me in writ jurisdiction, for its ramifications can properly be settled only with full disclosures, leading oral evidence and its testing by cross-examination. This is not a case of inherent lack of jurisdiction as already held by me and hence it is unnecessary to examine the authorities on the subject of effect on consent or acquiescence in such cases.

6. All that remains for consideration on the second point is the case law on which reliance was placed on behalf of the petitioner. In (Fedclers Lloyect Corporation (Pvt) Ltd. v. Lt. Governor, Delhi)1 it is held that temporary absence of a judge of Labour Court is not a vacancy during leave period as contemplated under section 8 of the id act and hence appointment of another Presiding Officer for the same Court was bad law as there could not be two officers for one Court. In (Treogi Nath Vs. Indian Iron and Steel Co. Ltd.)2 it has been laid that Labour Court constituted under section 7(1) in the absence of specific empowerment as contemplated under section 33C(2) of the Act does not get jurisdiction over such proceeding. To the same effect are the decisions of this Court in (State of Maharashtra v.. Chhotabhai Jethabhai Patel & Company)3 and Assam and Nagaland High Court in the case of (Management of Booklatinga Tea Estate v. N.J.Korean)4. Ratio of none of these cases has any application to the case at hand.

7. This takes me to the first and more important substantial point. The term workman was originally defined as below :

Workman means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceeding under this Act in relation to an industrial dispute. a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the* Crown.

After amendment by act 36 of 1956, the definition reads thus :-

workman means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the term of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that 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 Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; 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 five hundred 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.

It is the above definition which falls for consideration in this matter, but, in order to complete the legislative history of the definition, it is necessary even to notice the further change brought about by act 46 of 1982 which has been brought into force on August 1984. The latest definition reads thus :-

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 expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that 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 ofl950) or the Army Act of 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 one thousand six hundred 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.

Relevant portion of Statement of Objects and Reasons of the Bill which was made into act 36 of 1956 reads thus :

The present definition of workman in section 2(s) of the Industrial Disputes Act has led to uncertainty, particularly, in the case of technical and supervisory personnel. It is, therefore, proposed to enlarge the definition to cover supervisory personnel, whose emoluments do not exceed Rs. 500/-per mensem, and also the technical personnel.

In 1956, two more categories-technical and supervisory-are added. In 1982 the net is again widened by placing unskilled and skilled as independent categories and by adding the new category operational. All this indicates that there is progressively an attempt to enlarge the sweep of the definition. How a welfare ligislation like ID Act should be interpreted has been considered by the Supreme Court in many decisions including the case of The State Bank of India Vs. Shri N. Sundara Money5. It is observed :-

Statutory construction, when courts consider welfare legislation with an economic justice bias, cannot turn on cold print glorified as grammatical construction but on teleological purposes and protective intendment.

Thus, keeping these salient aspects in view, the letter as well as the spirit of the definition of workman will have to be examined. It is pertinent to notice that these considerations led to a progressive and enlarged interpretation of the term industry in (Bangalore Water Supply and Sewerage Board v. A. Rajappa)6 and that this decision is principally responsible for amending the definition of industry by Act No. 46 of 1982.

8. No dowbt, this is a case of a medical representative of a Pharmaceutical Company but it would be impermissible to examine the matter either on designation or generalization without reference to the evidence on recoord about the nature of actual duties which the second respondent is expected to perform and does perform. Nature of industry, types of goods manufactured, type of work expected from an employee, organizational set up and the like factors - all must enter verdict to examine the nature of duties of a sale representative as they are not and cannot be standardized anywhere and may vary from product to product, company to company, grade to grade, and time to time. The first material of relevance is the appointment letter. Under the terms, the second respondent, inter alia, (i) is entitled to participate in the Incentive Scheme as announced by the Company from time to time, (ii) is required in the course of employment to travel throughout the country for business which may extend to several weeks continuously, (iii) is bound to hold in a fiduciary capacity for the benefit of the company and will disclose fully to the Company immediately upon organisation or acquisition thereof any and all inventions, discoveries, improvements, process, methods, formulae, products, compositions, devices, tools, machines, appliances, designs or apparatus, whether or not patentable or subject to trade-mark or copyright, registration, which are made, discovered or developed by him solely or jointly with others, or otherwise during the term of the employment of the Company or for one year thereafter, (iv) is to abide by and observe all the Companys Rules and Regulations governing the employment of staff that may be in force from time to time.

9. Then comes for consideration the oral evidence. Almost unchallenged is the following evidence of respondent No.2 about the nature of his employment and duties:

I am B.Sc. For one month I was given training. Every two months there is a regular course to keep our medical knowledge upto date. I start work in morning. There is plan of action supplied to me by employer for every two months. I visit the Chemist of the area. I have to see if our stock is available. I have to find out intelligently if there is any infringement of our trade mark, substitution or prescription, and some information about spurious drugs. If I come to notice any of that things, 1 have to report to Company promptly. I book the orders. The order is delivered to stockist. One blue copy is to be sent Jo the Company. Complaint of chemist is to be sent to Company or to stockist as the c5se may be. As Chemist I got idea about trend of prescription while approaching doctors we utilise this knowledge. We have to spend one hour to chemist. Normally, we visit 2 to 3 chemists. Then 1 visit doctors. Normally, for a representative we spend 5 minutes with each doctor. We provide doctor with literature and samples. We show the medical reports. clinical trials taken as our products. We also take orders from doctors. We have to maintain daily diary showing visit to doctors and samples distributed. Alter every three days we send report to Company and that is called daily report. We maintain report of daily work done. After every 10 clays sample consum;;. on statement is sent. We send monthly reports. We physically count the stock. Then there is monthly report of total monthly work done containing competitors activities and general market trend with our suggestions. I also visit hospitals and see superintendents, doctors, clerk to get orders and to get the bills released. There are instructions about the work. It is called manual of medical representatives. There is a questionnaire on medical topics called Field focus quiz programme. That is for our testing knowledge and improving our knowledge in case of any complaints about our product, I withdraw it from chemists and hand over to stockists who forwards that to the Company. I have to see that it is in fact forwarded. Workshop is for new products and refresher course is for old products. The purpose is to improve our technical knowledge. There are incentive schemes. If we complete target then we get prize.

I visit the chemists first. About 45 minutes are required to complete the visit with each chemist. I visit 2-3 chemists in the morning. 1 visit on an average 7-8 doctors in the morning. I am required to maintain daily diary. I prepare daily report and sample report at home in the night. I also prepare letters to be sent to the doctors or chemists. We are to do retiring of sample cases. 1/2 hour is required for preparing daily reports and weekly report.

In the cross-examination, it is put to him that for 12 days in a month he is expected to be on tour.

10. The evidence of Mr. Waswani is to the following effect:

His (i.e. respondent No.2s) main job is to promote sales of companys pharmaceutical preparation. His primary responsibility is to visit doctors as per list prescribed. We give him pre-planned detailed talk. We also repeat this at monthly regular conferences so that his representation and do sales talk is effective in promoting Companys sale. He is expected to submit twice a week report about daily work. Very rarely occasions arise to report about defective products. Refresher course is for reviving sales talk. That is once in two months. Workshop depends upon introduction of new products. For one month we give training when employee joins

In the cross-examination he states:

Representative is expected to know how heart functions and how our drug will act. Representative is supposed to understand technical terms given in Manual in respect of all instructions given in Manual so far our products are concerned. We have drug for psychiatric troubles. The purpose of workshop, refresher course, rehearsal in sales talk are all designed to make repersentative present the product more scientifically for better sale-result. We expect representative to keep watch on other similar products of other Company for same disease. We get information about trend of sale of other produsts from monthly reports as well as at the time of refresher course. Representative is expected to keep his scientific knowledge upto date. The applicant is not given any assistant to do his duties. It is possible that 50 per cent of the time of representative is spent for moving from one place to the other.

On record are placed certain forms which the second respondent is expected to fill in from time to time. They include (i) the list of the doctors actually visited along with other details about them, the name of the Chemist, doctor, hospital who have placed the orders along with the order number and the value of the goods booked, (ii) the order form, (iii) the sample consumption statement, (iv) the Territorial Report for giving a summary of the overall work done, tours undertaken along with the expenses incurred.

11. Major portion of this evidence was recorded before the remand by the High Court. Thereafter mostly the break up of time consumed for various jobs was given. Now, it is apparent that income under the incentive schemes depend upon the actual sale of the products. Booking the order is near surety of effecting sale. Thus the company-.which is formed to sell products and not to spread the knowledge - and the second respondent both for their own reasons would be naturally interested most in that part of job. Various other duties are also required to be performed to achieve this end of effecting sales. Sales promotion thus is not an identifiable job in itself, but is a combined result of the several jobs - technical, manual and clerical. The main and substantial duties of the second respondent may not fall in any one category but do fall in some category or the other out of the three or in combination depending upon what duties are actually performed on a given day or point of time. This is the view the Labour Court has taken of the evidence and I find it difficult to hold the appreciation of evidence as perverse needing interference in extra ordinary writ jurisdiction. Law on the point is well settled. In this connection, the latest decision in the case of (D.P. Maheshwari v. Delhi Administration)7 may also be noticed. In that case, the Labour Court after considerting the entire evidence, recorded a positive finding that the employee was discharging his duties of a clerical nature. The High Court disturbed that finding taking a different view. But, the High Courts order on the point was set aside by the Supreme Court on the ground that the finding of fact about the nature of the duties actually done was binding on High Court.

12. Assuming for a moment that propagating the product is his main and substantial work, I fail to see why considering the highly specialized nature of the drugs, the high qualifications of the customers to whom he is expected to convince the comparative superiority of the product the work is not of technical nature. The work technical has not been defined in the ID Act and therefore, resort to its dictionary meaning will have to be taken. In Strouds Judicial Dictionary, 4th Edition, Volume 5, at page 2725, the following word is explained thus:

Technical Technical work is a phrase of substantially wider import than scientific work. No doubt all scientific work may be said to be technical, but the converse by no means necessarily applies.

Blacks Law Dictionary, Fifth Edition, at page 1312 explains the word technical as belonging or peculiar to an art or profession. I have already quoted in extenso the evidence regarding the up to date technical knowledge that respondent No. 2 is expected to have in promoting sales of the range of petitioners products which in the words of the petitioner itself are highly technical. The petitioners own witness has admitted that the knowledge of respondent No.2 had to be so upto date that he is expected to know how heart will function and how the drug manufactured by the Company will react. The petitioner manufactures drugs even for psychiatric troubles. The respondent No.2 is expected to be upto date on all these scientific matters and also to explain to specialists like medical practitioners as to how and why Companys products can produce better results than products of several other companies, which essentially means detailed and comparative study even of products manufactured by other companies. All this makes the job of propagating the product as technical under the circumstances.

13. It is submitted that no sales promotion employee - irrespective of (i) nature of produce sold, (ii) to whom it is sold, (iii) qualifications of seller and/or purchaser, (iv) skill and knowledge required for the job, (v) organisation set up, (vi) emoluments received - can be said to perform work of technical nature. I find it difficult to endorse this extreme stand considering the welfare nature of the legislation and the object of the Act No. 26 of 1956 by which the word technical was introduced and the sweep of definition was enlarged, is being still enlarged and the liberal way in which various terms like workman, industry etc. are being increasingly interpreted by Courts in general and Supreme Court in particular. Latest case of (S.K. Verma v. Maheah Chandra)8 giving altogether new approach to the definition of workman (to which I shall make a detailed reference shortly) indicates which way the wind of judicial interpretation and legislative thinking is blowing.

14. It is contended that the evidence adduced by the second respoadent about the nature of his duties was inadmissible in evidence for want of pleadings. This point was raised before the Labour Court even before remand. It was negatived for good and valid reasons. Obviously the second respondent has come up with a case that he is a workman. Evidence as to how is a workman is led, it is tested in cross-examination and even the Company has adduced evidence. This has taken place at two stages with sufficient interval. Both parties thus knew the controversy. Even otherwise, Law of Evidence, Law of Pleadings and several such Procedural Laws do not strictly apply to proceedings under the ID Act. The inquiry is essentially summary in nature. Moreover evidence is not to be pleaded. My attention was invited to certain decisions in support of a plea that evidence contrary to pleadings could not be adduced even in such proceedings. They are : (i) (Shankar Chakravarti v. Britannia Biscuit Co. Ltd.)9 (ii) (Lachman Das v. M/s Indian Express Newspapers (Bombay) Pvt. Ltd.)10 and (iii) (J.K. Iron and Steel Co. Ltd. Kanpur v. The Iron and Steel Mazdoor Union, Kanpur)11 .The present case is not of adducing evidence either contrary to pleadings or without the pleading. No prejudice seems to have resulted. I, therefore, find no merit in this technical point also. Equally untenable is the point that preliminary order is against the remand order. I fail to see how it is.

15. My attention was invited to some decisions holding that sales representatives of some companies are not workman. In the case of Management of (M/s May and Baker (India) Ltd. v. Their Workmen)12, interpreting the term workman under section 2(s) as it stood before amendment of 1956, the Supreme Court held on the facts of that case that the nature of the duties of a medical representative of that Company was neither manual nor clerical and hence he was not a workman. As the definition has undergone major change, the aforesaid ratio cannot apply to the present matter apart from the basic aspect that the duties performed in that case and the present case are not similar. In the case of (Burmah Shell Oil Storage and Distributing Co. of India v. The Burmah Shell Management Staff Association)13, the principal point that fell for determination was whether a person possessing technical qualification employed for supervisory duties should be held to be employed to do technical duties. The point arose in respect of several categories of employees, such as, Sales Engineering Representatives and District Sales Representatives of the Burmah Shell Company which manufactures lubricants and petroleum products. Considering the oral as well as the documentary evidence on record of that case, it was held that they did not perform any technical duties and did not fall within the definition of the term workman as defined after the amendment of 1956.

16. Following these two decisions, Andhra Pradesh High Court in the case of (D.S. Nagaraj v. The Labour Officer, Kurnool)14, held that the sales representative of M/s Sandoz (India) Ltd. was not a workman as his duties were similar to those of a District Sales Representative in Burmah Shells case (supra). In the case of The (All India Voltas and. Volkart Employees Federation v. M/s Voltas Ltd.)15, a Salesman of the Voltas Ltd. who was employed chiefly on commission basis was not held to be a workman by this Court. This Company manufactured engineering products as well as Pharmaceuticals. After referring to the observations in May and Bakers case (supra) it is observed -

In that case the Tribunal had been impressed by the evidence given as to the quantum of technical knowledge required by a sales engineering representative and therefore, it held that they were doing technical work. In the present case as we have said there is hardly anyting to show that any of these employees called salesmen were actually doing clerical or technical work, even assuming the affidavit of DSouza to be true, we still do not see that the technical know-how to which he refers or the clerical work which he says he did was the main part of his duties as a salesman.

It is thus obvious that these observations are also made in the context of the facts of that case. Kerala High Court in the case of (J. & J. Dechane Distributors v. State of Kerala)16 came to the conclusion again rely11ing on the above two Supreme Court decisions and Nagarajs case (supra) that the sales representative of J. & J. Dechane Distributors was not a workman. In the case of (Shalimar Paints Ltd. v. Third Industrial Tribunal)17, sales representative of a paint manufacturing company was not held to be a workmen. In this case also, reference has been made to Burmah Shells case (supra) and a finding is recorded again on facts that the employee there was not workman. In the case of (John Wyeth & Brother Ltd. v. Industrial Tribunal, Alleppey)18, medical representative of John Wyeth & Brother Ltd. was not held to be a workman on the basis of material on record. All these cases are thus based on facts of those cases and bear no similarity with the nature of duties performed by the second respondent.

17. One important development - which changed the whole complexion of the problem - took place after the remand order was passed by the High Court and it is the decision or Supereme Court in the case of (S.K. Verma v. Mahesh Chandra)19 to which I have already made a passing reference earlier. While holding that the Development Officers of the Life Insurance Corporation of India are workmen as defined under section 2(A) of the Act, it is observed :

The words any skilled or unskilled manual, supervisory, technical or clerical work are not intended to limit or narrow the amplitude of the definition of workman; on the other hand they indicate and emphasise the broad sweep of the definition which is designed to cover all manner of persons employed in an industry, irrespective of whether they are engaged in skilled work or unskilled work, manual work, supervisory work, technical work or clerical work. Quite obviously the broad intention is to take in the entire labour force and excludes the managerial force. That, of course, is as it should be. The Labour Court, applying the above ratio held that as admittedly second respondent did not belong to managerial force he had to be included in the labour force and consequently has to be held as a workman. It is not disputed even before me that the second respondent did not perform managerial duties. If that be the position, it looks clear that the second respondent is entitled to succeed in a preliminary point merely on the basis of the above latest law declared and as such binding on all Courts under Article 141 of the Constitution.

18. Strangely enough it is contented before me that above ratio is not binding on rne. Submisssion is that it is rendered per incuriam and is sub-silentio in the sense that earlier contrary view of the Supreme Court and certrain provisions of law do not find place in the judgment. I am afraid this is not the right forum where these questions can be legitimately agitated. 1 do not think I can ignore the said ratio on this ground. Even on this aspect the law is settled. In the case of (Ballabhdas Mathuradas Lakhani v. Municipel Contmittee, Malkapur)20 , it is observed:

The decision was binding on the High Court and the High Court could not ignore because they thought that relevant provisions were not brought to the notice of the Court

Division Bench of this Court in (Hanmant Kallappa Bhanclare v. The Food Inspector, Poona Municipal Corporation)21 has also observed :

We are afraid that in view of the clear pronouncement of the Su preme Court, it is not possible for the High Court to take a different view merely on the ground that certain aspects of the matter and certain provisions have not been considered by the Supreme Court while laying down the law. ..

19. No doubt in the cases of (i) May & baker (supra), (ii) Burmah Shell (supra) and (iii) (The Life Insurance Corporation of India v. D.J. Bahadur)22 it is clearly held by the Supreme Court that for an employee to be a workman he must fall at least in any one of the four classifications referred to in the definition and to that extent ratio of Vermas case (supra) is in direct contradiction with earlier views. But I find it difficult to accept that the Supreme Court was not aware of earlier decisions only because they do not find place in the judgment. In this connection, following significant observations of Lord Denning in the case of Miliangos Vs. George Frank (Textiles) Ltd. [(1975) 2 W.L.R. 555] may be noticed:

A case is not decided per incuriam because Counsel have not cited all the relevant authorities or referred to this or that rule of Court, or statutory provision. The Court does its own researches itself and consults authorities; and these may never receive mention in the judgment.

20. There is a great controversy among foreign as well as Indian jurists about the course that a High Court should follow when it is confronted with a situation of facing contradictory views of the Supreme Court on a given point. Some opine that it is possible for the High court to prefer the view which commends to it and some opine that the latter view must prevail. By and large, law Appeared to have settled on a view that latest judgment of bench of same strength has a binding force (See Union of India Vs. K.S. Subramanian23). All these four judgments are by benches of equal strength of three. Perhaps realizing this difficulty, my attention was later invited also to a four-Bench decision in the case of (A1I India Reserve Bank Employees Association v. Reserve Bank of India)24. It does not appear that the point involved was either directly in issue or was argued and decided. The only point involved in the case was whether the supervisory staff on scale of Rs. 500/-or less could be debarred from claiming a scale higher to Rs.500/-as in case the demand succeeds, those employees would fall out of the definition of the workman. National Labour Tribunal took the view against that supervisory staff and the Supreme Court reversed the decision holding that question of maintainability could be determined only on the basis of the status of employee on the date of application for reference and not in future. In this connection, useful reference may be made to the following observation of the Full Bench of Delhi High Court in (Flying Officer S. Sundararajan v. Union of India)25 :

But when a question is neither raised nor disscused in a judgment rendered by the Supreme Court it is difficult deduce any principle of a binding nature from it by implication.

21. It was also the submission of the learned counsel for the petitioner that the Sales Promotion Employees (Condition of Service) Act, 1976, has also not been noticed in latest decision of the Supreme Court and hence also the said judgment is not binding on me. For the reasons already given, all these points are not open before me. Alternative argument was that in view of the Act of 1976 the ratio of the latest Supreme Court decision cannot apply to Sales Promotion Employees as it is a special enactment for them and general law must give way to the special law. I do not find substance in this point. The Act of 1976 confers certain benefits to sales promotion employees as defined under the said Act. All such employees are not covered by the definition. It is restricted only to those whose scale does not exceed Rs. 750/-per mensem. The Act initially applied to establishment in pharmaceutical industry and can be made applicable to any industry by notification. It is a common ground that it Uas been made applicable to many industries. It confers certain benefits to the employees covered by this Act, such as, earned leave on full wages, leave on medical certificate on half wages for not less than 1/18th period of service, mandatory furnishing of a letter of appointment in such forms as may be prescribed within a given period. automatic application of several beneficial enactments etc. Non-compliance of some of the provisions is made punishable as offence. Undoubtedly second respondent is not covered by the Act of 1976. The I.D. Act and Act of 1976 cannot be said to*be mutually exclusive and only because certain benefits are conferred on a certain class of sales promotion employees, it does not follow that this category of employees be deemed.to have been specifically excluded from the definition of workman under the ID Act even if otherwise they fall in that definition. The latest Supreme Court decision lays down a basic principle, a clear ratio and admits no exception.

22. Conclusion : Petition dismissed. Rule discharged. No costs.

Petition dismissed

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