# M/S Nicholas Piramal India Ltd. & Ors v. Presiding Officer Labour Court Lko. & Ors

- **Citation:** (2023) 11 ILRA 623
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-23
- **Case number:** Writ-C No. 1004529 of 2007
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-nicholas-piramal-india-ltd-ors-v-presiding-officer-labour-court-lko-ors-49381
- **Pages:** 10

## Headnote

A. Labour and Industrial Law - U.P. Industrial
Disputes Act, 1947 - Sales Promotion Employees
(Conditions of Service) Act, 1976 - Sections 2(d)
& 6(1) & (2) - Issue: Whether Medical
Representatives are "workmen" - Petitioner,
employer took plea of want of jurisdiction of the
Labour Court on the ground that Medical
Representatives are not workmen and therefore
the dispute cannot be termed as an industrial
dispute and the Labour Court was not
competent to hear and decide the said case -
Held : After coming into force of the Sales
Promotion Employees (Conditions of Service)
Act, 1976 and subsequent amendment by Act
No. 48 of 1986 w.e.f. 6.5.1987, Medical
Representatives are deemed to be workmen
under Section 6(2) of the Act of 1976 and are
covered by the Industrial Disputes Act, 1947.
624 INDIAN LAW REPORTS ALLAHABAD SERIES
Court held that after 6.5.1987 all Medical
Representatives were declared to be workmen
without limitation on their wages. (paras 32, 33,
34).
B. Labour and Industrial Law - U.P. Industrial
Disputes Act, 1947 - Sales Promotion Employees
(Conditions of Service) Act, 1976 - Domestic
enquiry, dismissal - Opportunity to adduce
additional evidence - Legal Issue: Whether the
petitioner employer, after reserving right in the
written
statement,
was
entitled
to
an
opportunity to lead further evidence before the
Labour Court in case the Labour Court was of
the opinion that there was any infirmity in the
domestic enquiry - Held : To avail of the benefit
of leading evidence before the Labour Court in
support of the charges levelled in domestic
enquiry, the first condition is that the option in
that regard should be exercised by the employer
at the time of filing of written statement. Labour
Courts/Tribunals have the power to call for any
evidence at any stage if facts demand the same
to meet ends of justice, and management has
to seek leave in the written statement itself to
lead additional evidence in the alternative and
without prejudice to its rights and contentions,
but this does not fetter powers of court/tribunal
to direct evidence in interest of justice -
Respondent workman dismissed on charge of
misconduct for submitting false daily call reports -
Domestic enquiry held at New Delhi though alleged
misconduct at Lucknow, certificates of doctors not
considered - Labour Court held charges not proved
after analysing evidence including statement of
prosecution witness and doctors' certificates -
Argument of petitioner that opportunity to lead
further evidence was wrongly denied rejected, as
Labour Court had already dealt with entire evidence
on record and found charges unproved - Court held
that the petitioner, employer, failed to demonstrate
that there was fresh/other material available which
could have been placed on record to prove the
charges - No infirmity found in Labour Court's findings
- Court held that remanding the matter would be
futile and an empty formality - Writ petition
dismissed. (paras 15, 17, 20).
Dismissed. (E-5)

## Text

11 All. M/S Nicholas Piramal India Ltd. & Ors. Vs. Presiding Officer Labour Court Lko. & Ors. 623
of the guaranteed right under Article 21 of
the Constitution and no part of pond could
have
been
allotted
to
anybody
for
construction of house building or any allied
purposes. A further direction has been issue
by the Hon'ble Supreme Court for
restoration of the pond, it's development
and maintenance as a recreational spot,
which will undoubtedly be in the best
interest of the villagers and it will also help
in maintaining ecological balance and
protecting the environment in regard to
which this Court has repeatedly expressed
its concern and such measures must begin
at the grass-root level if they were to
become the nation's pride. Therefore, if
others have also made encroachment on the
land of pond as stated by learned counsel
for the petitioner, the respondents shall get
the same also vacated in accordance with
law and restore the pond.

17. Even otherwise the encroachers,
who have their own land, can not be said to
be entitled for exchange of their land with
the same and if it is permitted, then the
persons having muscle power will make
encroachment on prominent and valuable
land of the Government and others and on
being found as encroachers would seek
exchange from their land, which may be of
lesser value, therefore exchange can not be
considered
and
allowed
in
such
circumstances.

18. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that the
impugned orders have rightly been passed
in accordance with law after affording
opportunity to the petitioner by reasoned
and speaking orders, which does not call
for any interference by this Court and the
pleas taken by the petitioner before this
Court are not tenable at all in the eyes of
law. This petition is misconceived, lacks
merit and liable to be dismissed. No other
points or grounds have been raised or
argued before this court.

19. This petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 11 ILRA 623
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.11.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 1004529 of 2007

M/S Nicholas Piramal India Ltd. & Ors.
 ...Petitioners
Versus
Presiding Officer Labour Court Lko. & Ors.
 ...Respondents

Counsel for the Petitioners:
Dr. R.K. Srivastava, Nishchal Jagdhari

Counsel for the Respondents:
C.S.C., Birendra Pd. Singh, Sanjay Saxena

A. Labour and Industrial Law - U.P. Industrial
Disputes Act, 1947 - Sales Promotion Employees
(Conditions of Service) Act, 1976 - Sections 2(d)
& 6(1) & (2) - Issue: Whether Medical
Representatives are "workmen" - Petitioner,
employer took plea of want of jurisdiction of the
Labour Court on the ground that Medical
Representatives are not workmen and therefore
the dispute cannot be termed as an industrial
dispute and the Labour Court was not
competent to hear and decide the said case -
Held : After coming into force of the Sales
Promotion Employees (Conditions of Service)
Act, 1976 and subsequent amendment by Act
No. 48 of 1986 w.e.f. 6.5.1987, Medical
Representatives are deemed to be workmen
under Section 6(2) of the Act of 1976 and are
covered by the Industrial Disputes Act, 1947.
624 INDIAN LAW REPORTS ALLAHABAD SERIES
Court held that after 6.5.1987 all Medical
Representatives were declared to be workmen
without limitation on their wages. (paras 32, 33,
34).
B. Labour and Industrial Law - U.P. Industrial
Disputes Act, 1947 - Sales Promotion Employees
(Conditions of Service) Act, 1976 - Domestic
enquiry, dismissal - Opportunity to adduce
additional evidence - Legal Issue: Whether the
petitioner employer, after reserving right in the
written
statement,
was
entitled
to
an
opportunity to lead further evidence before the
Labour Court in case the Labour Court was of
the opinion that there was any infirmity in the
domestic enquiry - Held : To avail of the benefit
of leading evidence before the Labour Court in
support of the charges levelled in domestic
enquiry, the first condition is that the option in
that regard should be exercised by the employer
at the time of filing of written statement. Labour
Courts/Tribunals have the power to call for any
evidence at any stage if facts demand the same
to meet ends of justice, and management has
to seek leave in the written statement itself to
lead additional evidence in the alternative and
without prejudice to its rights and contentions,
but this does not fetter powers of court/tribunal
to direct evidence in interest of justice -
Respondent workman dismissed on charge of
misconduct for submitting false daily call reports -
Domestic enquiry held at New Delhi though alleged
misconduct at Lucknow, certificates of doctors not
considered - Labour Court held charges not proved
after analysing evidence including statement of
prosecution witness and doctors' certificates -
Argument of petitioner that opportunity to lead
further evidence was wrongly denied rejected, as
Labour Court had already dealt with entire evidence
on record and found charges unproved - Court held
that the petitioner, employer, failed to demonstrate
that there was fresh/other material available which
could have been placed on record to prove the
charges - No infirmity found in Labour Court's findings
- Court held that remanding the matter would be
futile and an empty formality - Writ petition
dismissed. (paras 15, 17, 20).
Dismissed. (E-5)
(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Dr. R.K. Srivastava and Sri
Nischal Jagdhari, learned counsel for the
petitioner as well as learned Standing
Counsel for the respondents.

2. By means of present writ 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 alongwith all consequential
benefits.

3. Brief facts giving rise to the present
case are that the respondent no. 2 -
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.

4. 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. Accordingly charge
sheet
was
issued
to
the
workmanrespondent
no.
2
on
04.04.1997.
Respondent no. 2 was duly heard in the
11 All. M/S Nicholas Piramal India Ltd. & Ors. Vs. Presiding Officer Labour Court Lko. & Ors. 625
said proceedings, and he defended himself.
The enquiry proceedings were held at New
Delhi on 6th and 7th May, 1988 but the
respondent no. 2 did not appear and on his
request
the
enquiry
was
fixed
for
10.06.1998, but he again did not appear and
the matter was adjourned for 23.06.1998.
On 23.06.1998, respondent no. 2 appeared
and filed his documents.

5. 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
alongwith 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.

6. The respondent no. 2 raised
industrial dispute under Section 4K of the
U.P.
Industrial
Disputes
Act
and
subsequently a reference was made on
08.09.1999 requiring the Labour Court to
adjudicate the dispute raised by respondent
no. 2 against the petitioner. In the said
proceedings
the
petitioner
put
in
appearance and filed written statement and
opposed the claim set forth by the
workman-respondent no. 2.

7. After completion of the pleadings
Labour Court framed preliminary issue
with regard to the facts as to whether
domestic enquiry was fair and proper
opportunity was given to the workman
during the said proceedings. The Labour
Court after perusing entire proceedings of
the domestic enquiry and the procedure
followed therein, returned a finding that
respondent no. 2 - workman was Medical
Representative and he had stated that he
had visited various Doctors on 05.10.1996
and 18/10/1996 and informed the Doctors
and pharmacists about various drugs being
sold by the petitioner company. It was
noticed by the petitioner that on 05.10.1996
there was meeting of Union in which
respondent no. 2 participated and it was not
possible to visit Doctors and pharmacists in
his capacity as Medical Representative and
charged the workman for submitting false
call reports.

8. It was noticed that the statements of
said Doctors were not recorded, and merely
by considering the fact that on that date
meeting the workman would not have
visited or called on the Doctors and
consequently had submitted a false report
in this regard. Similar allegations were
levelled against him for not visiting
Doctors on 18.10.1996. It was further
stated that in his defense respondent no. 2 -
workman had produced certificates issued
by various Doctors, wherein it was stated
that he had visited them on the said dates
and once such certificates were produced
before the enquiry officer then there was no
reason for taking a contrary view and
disbelieve the said certificates. It was also
considered that repeated requests were
made for taking statements of Doctors but
despite the requests the statements were not
recorded.

9.

The
Labour
Court
further
considered that the workman had worked
for a very long time with the petitioner
Company and during his tenure he had
extremely good track record and through
his efforts the petitioner had profited and
had sold huge amount of medicines and
consequently it was held that from the
626 INDIAN LAW REPORTS ALLAHABAD SERIES
material on record that charge no.1 with
regard to working dishonestly was not
proved. Further, it was found that once the
Doctors have given their certificates to the
effect that respondent no. 2 - workman had
visited them on the dates in question then it
cannot be concluded that the workman had
not visited them on the said dates, and
accordingly the charge on this count was
also not proved, contrary to the findings
recorded in the order of dismissal. It was
observed that certificates issued by the
Doctors could not have been disbelieved,
without any material to the contrary, and
accordingly held that the findings recorded
by the domestic enquiry were, illegal and
arbitrary and consequently the order of
dismissal was set aside.

10. We have 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. 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.

11. 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.

12. The domestic enquiry proceedings
were conducted in Delhi, while the alleged
misconduct happened in Lucknow where
respondent no. 2 had met the doctors
concerned. In his defense, the workman
had produced certificate of 5 Doctors
certifying that he had met them on the said
dates. On behalf of the petitioner statement
of the supervisor namely Mr P.K Shukla
was also recorded. From his statement, it
was found that it was possible for the
respondent/workman to have met the
Doctors either before the meeting or after 3
PM when the meeting got over, as he had
three-hour period between the end of the
meeting till attending the dinner in the
hotel. There were repeated requests made
by the workman for having the enquiry be
conducted at Lucknow where all the
witnesses i.e the doctors were present and
could have testified about his presence on
the said dates. Neither the enquiry
proceedings were conducted at Lucknow,
nor were the certificates of the doctors
relied upon by the prosecution, and
consequently the Labour Court has rightly
concluded that the charges have been
proved by the petitioner on the basis of
conjecture and surmises without there
being any material in support of the same.
The Tribunal has rightly concluded that
11 All. M/S Nicholas Piramal India Ltd. & Ors. Vs. Presiding Officer Labour Court Lko. & Ors. 627
charge number one was not proved as no
material was adduced which may indicate
that
he
had
worked
dishonestly
in
connection with the employers business.
The workman was able to prove that he had
worked satisfactorily for last 24 years and
due to his efforts the company has profited
which was reflected in the sales figures. He
was also given a gold medal by the
petitioner for his services.

13. To prove the charge of habitual
negligence or neglect of work, no evidence
was led by the petitioner. Mr P.K Shukla
the witness for the petitioner, on the
contrary stated that there was no allegation
against the petitioner prior to the said act of
misconduct and accordingly on the basis of
the said statement, and also in absence of
any other material, the said charge was also
not proved. Regarding the charge of
submitting false call reports, the Labour
Court held that relying upon the statement
of the witness for the petitioner it was clear
that on the date of the meeting there was
sufficient time to petitioner to have called
on the Doctors and pharmacists, and
consequently it cannot be said that the call
reports filed by the workman were false.
This was not contradicted and is also borne
out from the evidence adduced on behalf of
the petitioners. The certificates of the
Doctors were produced during the domestic
enquiry and there was no reason for
disbelieving
them,
and
for
the
aforesaid reason the charge against the
petitioner was also not proved. This
court also does not find any infirmity
with the findings recorded by the
Labour Court, and no other material or
argument was raised by the petitioner
which could persuade us to take a
contrary
view.
Accordingly,
the
argument in this regard submitted by
the petitioner is rejected.

14. The petitioner submitted that they
should have been given a chance to prove
the charges before the Labour Court. It was
stated that in the written statement they had
reserved the right of adducing evidence,
and in case the Labour Court was of the
opinion that there was any infirmity in the
domestic enquiry then opportunity should
have been given to the petitioner to adduce
further evidence. In support of their
submissions they relied upon the judgement
of the Supreme Court in the case of
Karnataka
State
Road
Transport
Corporation vs Smt Lakshmidevamma
and another (2001) 5 SCC 433.

15. To avail of the benefit of leading
evidence before the Labour Court in
support of the charges levelled in domestic
enquiry, the first condition is that the option
in this regard should be exercised by the
employer at the time of filing of written
statement. In the present case undoubtedly,
the petitioner had stated that after the
decision
of
primary
issues,
the
circumstances require that the petitioner
should be allowed to lead evidence on facts
in order to prove its case before the Labour
Court.

16. In cases where the termination of
a workman is preceded by domestic
enquiry,
and
such
termination
is
challenged, the Supreme Court has held
that in case the Labour Court is of the view
that the domestic enquiry is initiated on
account of violation of principles of natural
justice, or that the workman was not
afforded proper opportunity, then the
employer can be permitted to lead evidence
to prove the charges before the Labour
Court itself. It is the contention of the
petitioner that the order of dismissal has
been set aside and despite their seeking
628 INDIAN LAW REPORTS ALLAHABAD SERIES
permission to lead evidence, the Labour
Court declined to give such opportunity.

17. The Hon'ble Supreme Court in the
case
of
Karnataka
SRTC
v.
Lakshmidevamma, (2001) 5 SCC 433 has
held as under:-

"45. It is consistently held and
accepted that strict rules of evidence are
not applicable to the proceedings before the
Labour Court/Tribunal but essentially the
rules of natural justice are to be observed
in
such
proceedings.
Labour
Courts/Tribunals have the power to call for
any
evidence
at
any
stage
of the
proceedings if the facts and circumstances
of the case demand the same to meet the
ends of justice in a given situation. We
reiterate that in order to avoid unnecessary
delay and multiplicity of proceedings, the
management has to seek leave of the
court/tribunal in the written statement itself
to lead additional evidence to support its
action in the alternative and without
prejudice to its rights and contentions. But
this should not be understood as placing
fetters on the powers of the court/tribunal
requiring or directing parties to lead
additional evidence including production of
documents at any stage of the proceedings
before they are concluded if on facts and
circumstances of the case it is deemed just
and necessary in the interest of justice."

18. 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 Sri
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.

19. The Labour Court has declined to
give opportunity to the petitioner to lead
evidence on the ground that all the material
pertaining to the charges relating to
workman attending the meeting with the
doctors and pharmacists was already on
record, from which the charges are not
proved. Despite the specific application
having been given by the workman to
record the evidence of the Doctors at
Lucknow no orders were passed by the
enquiry officer and on the other hand
certificates given by the Doctor certifying
that in fact he visited on the said dates,
were available on record from which it was
clearly borne out that he had met the
Doctors on the two dates. It is in the
aforesaid facts that the Court held that the
charges are not proved and no other
material was placed before the Labour
Court in support of the charge.

20. In the present writ petition only
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
11 All. M/S Nicholas Piramal India Ltd. & Ors. Vs. Presiding Officer Labour Court Lko. & Ors. 629
the workman was not given proper
opportunity to defend himself. In the
present 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 present case. Accordingly, no ground
for interference in this regard is made out,
and the argument of the petitioner is
rejected.

21. Learned counsel for the petitioner
has lastly argued that the award passed by
the impugned award dated 24.01.2007 is
illegal
and
arbitrary
and
without
jurisdiction.
It
was
submitted
that
respondent no. 2 was working on the post
of Medical Representative and he is not a
"workman" as per Section 2 of the U.P.
Industrial Disputes Act and accordingly the
Labour Court did not had jurisdiction to
decide the said dispute.

22. It was argued on behalf of the
respondent no. 2 that the said plea was not
taken before the Labour Court and has been
raised for the first time in the present writ
petition. It has been urged on behalf of
the
petitioner
that
Medical
Representatives are not 'workman' and
therefore, the present dispute cannot be
termed as Industrial dispute and the
Labour Court is not competent to hear
and decide the said case.

23. In the entire writ petition there is
no averment has been made as to the nature
of work performed by respondent no. 2 nor
the wages received by him have been
mentioned, but, it has been vehemently
submitted that this being question of law it
goes to the root of the matter and hence
same can be taken for the first time in the
writ petition. Considering the above
arguments it would be appropriate to
consider the said plea in the interest of
justice.

24. It has been submitted before this
court that Medical Representatives are not
'workmen', as defined in the Industrial
Disputes
Act.
In
support
of
their
submissions, they relied upon the case of
May and Baker (India) Ltd. v. Their
Workmen, AIR 1967 SC 678 where the
Apex
Court
held
that
medical
representatives shall not be included in the
definition of 'workman', since they do not
meet the criterion specified in the Act.

25. According to the said case, it was
held that for being a workman, certain
condition should be satisfied, namely:

1. he should be a person employed in
an industry for hire or reward;

2. he should be engaged in skilled or
unskilled manual, supervisory, technical or
clerical work; and

3. he should not be a person falling
under any of the four clauses, i.e. (i) to (iv)
mentioned in the definition of 'workman' in
section 2(s) of the Act, 1976.

26. The Supreme Court in May and
Baker (India) Ltd. (supra) accordingly
held that:-

"9. The next contention on behalf of
the company is with respect to the order of
630 INDIAN LAW REPORTS ALLAHABAD SERIES
reinstatement of Mukerjee. The company's
case is that Mukerjee was discharged with
effect from April 1, 1954. At that time the
definition of the word "workman" under
Section 2(s) of the Industrial Disputes Act
did not include employees like Mukerjee
who was a representative. A "workman"
was then defined as any, person employed
in any industry to do any skilled or
unskilled manual or clerical work for hire
or reward. Therefore doing manual or
clerical work was necessary before a
person could be called a workman. This
definition came for consideration before
Industrial Tribunals and it was consistently
held that the designation of the employee
was not of great moment and what was of
importance was the nature of his duties. If
the nature of the duties is manual or
clerical then the person must be held to be
a workman. On the other hand if manual or
clerical work is only a small part of the
duties of the person concerned and
incidental to his main work which is not
manual or clerical, then such a person
would not be a workman. It has therefore to
be seen in each case from the nature of the
duties whether a person employed is a
workman or not, under the definition of
that word as it existed before the
amendment of 1956. The nature of the
duties of Mukerjee is not in dispute in this
case and the only question therefore is
whether looking to the nature of the duties
it can be said that Mukerjee was a
workman within the meaning of Section
2(s) as it stood at the relevant time. We find
from the nature of the duties assigned to
Mukerjee that his main work was that of
canvassing and any clerical or manual
work that he had to do was incidental to his
main work of canvassing and could not
take more than a small fraction of the time
for which he had to work. In the
circumstances the tribunal's conclusion
that Mukerjee was a workman is incorrect.
The tribunal seems to have been led away
by the fact that Mukherjee had no
supervisory duties and had to work under
the directions of his superior officers. That,
however, would not necessarily mean that
Mukerjee's duties were mainly manual or
clerical. From what the tribunal itself has
found it is clear that Mukerjee's duties were
mainly
neither
clerical
nor
manual.
Therefore as Mukerjee was not a workman
his case would not be covered by the
Industrial Disputes Act and the tribunal
would have no jurisdiction to order his
reinstatement. We therefore set aside the
order
of
the
tribunal
directing
reinstatement of Mukerjee along with other
reliefs."

27. After the judgement of the
Supreme Court in the case of May and
Baker (India) Ltd. v. Their Workmen
(supra) the Parliament enacted Sales
Promotion Employees (Conditions Of
Service) Act, 1976 (hereinafter referred to
as "the Act of 1976"). The said act
specifically applied to an establishment
engaged in pharmaceutical industry or in
any notified industry as per section 2(a) of
the Act, 1976, and as per section 2(d) of the
Act, 1976 the "sales promotion employee"
was defined as 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,
but does not include any such person-

(i) who, being employed or engaged in
a supervisory capacity, draws wages
exceeding sixteen hundred rupees per
mensem; or

(ii) who is employed or engaged
mainly in a managerial or administrative
capacity.
11 All. M/S Nicholas Piramal India Ltd. & Ors. Vs. Presiding Officer Labour Court Lko. & Ors. 631

28. By the Act of 1976, the Medical
Representatives who were defined as sales
promotion employees were held to be
'workman' under section 6(1) & (2) of the
Act, 1976. Provisions of section 6 of Act of
1976 are as under:-

6. Application of certain Acts to sales
promotion employees is detailed herein
below :-

(1) The provisions of the Workmen's
Compensation Act, 1923 (8 of 1923), 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 that Act.
(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 that 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.

29. The dispute in the present 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.

30. Supreme Court had decided the
said issue when the Sales Promotion
Employees (conditions of service) Act,
1976, was not in existence. The Act of 1976
had amended the definition of "sales
promotion
employee"
which
includes
Medical Representatives and held them to
be 'workman' as per the Industrial Disputes
Act. Bombay High Court in the case of
S.G. Pharmaceuticals Division of Ambala
Sarabhai
Enterprises
Ltd.
v.
U.D.
Pademwar, Letters patent appeal no. 515
of 1984 (decided on 7 August 1989) has
elaborated the issue, in this case, in the
following manner :-

"statement of objects and reasons
published in the Gazette of India on May
14, 1975, Part II, Section 2, it was clear
that as a result of the Supreme Court
judgment in the case ofMay and Baker
(India) Limited and Their Workmen(supra)
the persons engaged in sales promotion do
not come within the purview of the
definition
of
"workman"
under
the
Industrial Disputes Act, 1947 and as such
they have no protection regarding security
of employment and other benefits under
that Act. These persons particularly the
medical
representatives
in
the
pharmaceutical
industry
had
been
demanding from time to time that they
should be covered by Industrial Disputes
Act. On a petition made by the Federation
of Medical Representatives' Associations of
India, the Committee on Petitions (Rajya
Sabha) in its thirteenth report submitted on
March 14, 1972, came to the conclusion
that the ends of social justice to this class
of people will not be met only by suitably
amending the definition of the term
"workman" in the Industrial Disputes Act,
1947 in a manner that the medical
representatives are also covered by the
definition of "workman" in the said Act.
Our attention was drawn particularly to
sub-section (2) of section 6 of the Sales
632 INDIAN LAW REPORTS ALLAHABAD SERIES
Promotion
Employees
(Conditions
of
Service) Act, 1976 which provides that the
provisions of the Industrial Disputes Act,
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. From this deeming provision, it is
apparent that the Parliament recognised
that the class for the benefit of which the
legislation was being undertaken, was not
covered by the definition of "workman"
under section 2(s) of the Industrial
Disputes Act and that was the reason to
include that category by the deeming
provision which was incorporated. To say,
therefore, that a person who did the job of
sales promotion did not belong to an
identifiable category which would not be
correct."

31. 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. Further in the
case of H.R. Adyanthaya v. Sandoz
(India) Ltd, 1994 SCC (5) 737 it was
further made clear that the 1976 Act after
its amendment in the year 1986 by the
Amending Act No. 48 of 1986 which came
into effect w.e.f. 06.05.1987 expanded the
definition of sales promotion employee to
include all sales promotion employees
without any ceiling on their wages, except
those employed in supervisory capacity
drawing wages exceeding Rs 1600 per
mensem and those employed or engaged
mainly in managerial or administrative
capacity.

32. 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.

33. In light of the aforesaid discussion
this 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.

34. In light of the aforesaid discussion
this Court does not find any infirmity in the
impugned order dated 24.01.2007. The writ
petition is accordingly dismissed.
----------
(2023) 11 ILRA 632
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.11.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 4653 of 2023

Parashu Ram Dohre ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Dharm Raj Mishra

Counsel for the Opposite Parties:
G.A., Shambhunath Mishra, Shambhoo
Nath Misra, Umesh Chandra Tripathi, Quazi
Vakil Ahmad

A. Criminal Law - Criminal Procedure Code,
1973-Section 482 - Indian Penal Code, 1860Sections 342, 379, 427, 468, 471 & 120 (B) -