# No.18 of 2005 Ajit Singh v. Merind Ltd

- **Citation:** (2009) 1 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-12
- **Case number:** Civil Misc. Writ Petition No.55894 of 2005
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-18-of-2005-ajit-singh-v-merind-ltd-41351
- **Pages:** 14

## Headnote

Act
1936Section 1 (4)-readwith Sales Promotion
Employees Condition of Service Act,
1976-Workman-working
as
Sales
promotion drawing more than Rs.1600/-
salary-excluded for the provisions of Actorder
passed
by
Assistant
Labour
Commissioner without jurisdiction-also
on
the
ground
respondent/workman
transferred from Bijnor to Assam-which
remained
un
challenged-respondent
employee remanded absent for long
period-No question of salary.

Held: Para 35

In view of the aforesaid categorical
statement of law enunciated by Hon'ble
Apex Court, there can be no scope for
doubt to hold that the respondent no.2
who was admittedly drawing Salary
Rs.13,825/- per month is excluded from
the operation of provisions of the 1936
Act by virtue of the provisions of Section
1(6) of the said Act, irrespective of fact
whether he is workman or not by virtue
of Section 6(2) of the 1976 Act, which
continues
to
apply
to
him
and
irrespective of fact as to whether he is
excluded from Industrial Dispute Act by
Section 6(7)(b) of 1976 Act or not,
therefore, he is not entitled to invoke the
provisions of Section 15 (2) and Section
15(3) of the 1936 Act. As such the claims
set up by him under Section 15 (2) and
Section 15 (3) of the 1936 Act in my
considered opinion is not maintainable
before the prescribed authority under
the Act 1936. Therefore, the Assistant
Labour Commissioner, Bijnor has no
jurisdiction to entertain and proceed
with PWA Case No.18 of 2005 Ajit Singh
Vs. Merind Limited and another pending
before him. The entire proceeding is
without jurisdiction and is liable to be
quashed. Accordingly, the same is hereby
quashed. In the result, the writ petition
succeeds and is allowed.
Case law discussed:
(2007) 11 S.C.C. 25, AIR 1984 SC, 1022, AIR
1987 SC 579, (2007) 11 SCC, 25

## Text

_Characters 0–39,754 of 46,090. This is a partial read: ask again with offset=39754 for what follows._

1 All] Merind Ltd. and another V. P.A. (under Payment of Wages) Act, and another

229

17. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.55894 of 2005

Merind Limited and another ...Petitioners
Versus
Prescribed Authority (Under Payment
of Wages Act) Bijnor and Assistant
Labour
Commissioner,
Bijnor
and
another

 ...Respondents

Counsel for the Petitioners:
Sri Yashwant Verma

Counsel for the Respondents:
Sri Arun Kumar Singh
S.C.

Workman
Compensation
Act
1936Section 1 (4)-readwith Sales Promotion
Employees Condition of Service Act,
1976-Workman-working
as
Sales
promotion drawing more than Rs.1600/-
salary-excluded for the provisions of Actorder
passed
by
Assistant
Labour
Commissioner without jurisdiction-also
on
the
ground
respondent/workman
transferred from Bijnor to Assam-which
remained
un
challenged-respondent
employee remanded absent for long
period-No question of salary.

Held: Para 35

In view of the aforesaid categorical
statement of law enunciated by Hon'ble
Apex Court, there can be no scope for
doubt to hold that the respondent no.2
who was admittedly drawing Salary
Rs.13,825/- per month is excluded from
the operation of provisions of the 1936
Act by virtue of the provisions of Section
1(6) of the said Act, irrespective of fact
whether he is workman or not by virtue
of Section 6(2) of the 1976 Act, which
continues
to
apply
to
him
and
irrespective of fact as to whether he is
excluded from Industrial Dispute Act by
Section 6(7)(b) of 1976 Act or not,
therefore, he is not entitled to invoke the
provisions of Section 15 (2) and Section
15(3) of the 1936 Act. As such the claims
set up by him under Section 15 (2) and
Section 15 (3) of the 1936 Act in my
considered opinion is not maintainable
before the prescribed authority under
the Act 1936. Therefore, the Assistant
Labour Commissioner, Bijnor has no
jurisdiction to entertain and proceed
with PWA Case No.18 of 2005 Ajit Singh
Vs. Merind Limited and another pending
before him. The entire proceeding is
without jurisdiction and is liable to be
quashed. Accordingly, the same is hereby
quashed. In the result, the writ petition
succeeds and is allowed.
Case law discussed:
(2007) 11 S.C.C. 25, AIR 1984 SC, 1022, AIR
1987 SC 579, (2007) 11 SCC, 25

(Delivered by Hon'ble Sabhajeet Yadav, J.)

Heard Sri Yashwant Verma, learned
counsel for the petitioners and Sri Arun
Kumar Singh for respondent no.2.

By this petition, the petitioners have
sought relief of writ of certiorari for
quashing the proceeding of PWA Case
No.18 of 2005 Ajit Singh Vs. Merind Ltd.
and another pending before the Prescribed
Authority (under Payment of Wages Act)/
Assistant Labour Commissioner, Bijnor,
Uttar Pradesh. Another relief for writ of
prohibition restraining the respondent
no.1 from entertaining or adjudicating
upon the proceedings in PWA Case No.18
of 2005 has also been sought for. This
petition was allowed in open Court on
2.12.2008 with indication that reasons
will be given later on, therefore, the same
are given hereinafter.
230 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

2. The brief facts leading to the case
are that respondent no.2 made an
application on 6.4.2004 under Section 15
of
Payment
of
Wages
Act,
1936
hereinafter referred to as ' the 1936 Act'
before
respondent
no.1/Prescribed
Authority under 1936 Act, Bijnor and
claimed
wages
amounting
to
Rs.1,26,162.50/-. A further sum of
Rs.12,61,625/-
was
claimed
as
compensation in terms of Section 15 (3)
of the said Act. The petitioners filed their
written statement on 14.7.2004. Apart
from reply on merits the attention of
respondent no.1 was also drawn to the
jurisdictional
issue
raised
by
the
petitioners with regard to the applicability
of provisions of the 1936 Act, and the
authority of respondent no.1 to adjudicate
upon the claim laid down by respondent
no.2. In the said written statement the
petitioners have inter alia stated that the
respondent no.2 was employed as a sales
representative by the petitioners and was
engaged in the work of carrying samples
of
medicines
and
other
products
manufactured by the petitioners to doctors
etc. and was enjoined to educate and
apprise them of the attributes, functions
and advantages of the products of the
petitioners. A copy of appointment letter
issued to the respondent no.2 dated
15.3.1997 is on record as Annexure-1 of
the writ petition. It is stated that the
respondent no.2 was transferred from
Bijnor to Dimapur (Asam) in the year
2003 where he was to join duties by
18.8.2003. But the respondent no.2 had
failed to join duties at Dimapur and
remained
absent
without
leave
unauthorizedly thereafter and since the
respondent no.2 failed to join the place of
posting, no salary was paid to him on the
principle of no work no pay.

3. Feeling aggrieved against the
aforesaid action the respondent no.2 made
aforesaid
application
dated
6.4.2004
purporting to be under Section 15 of the
1936 Act and claimed the wages referred
above. It is also stated that the respondent
no.2 being a sales promotion employee is
neither a workman nor he was employed
in any industrial or other establishment as
defined under Section 2 (ii) of the said
Act. The term and conditions of services
of
respondent
no.2
are
governed
exclusively
by
Sales
Promotion
Employees Condition of Service Act 1976
(hereinafter referred to as '1976 Act') and
the provisions of the 1936 Act stand
expressly and impliedly excluded. It is
also stated that the application upon
which the respondent no.1 has taken
cognizance is patently without jurisdiction
as admittedly the respondent no.2 in his
application has claimed to have been
employed
on
monthly
salary
of
Rs.13825/-, thus the respondent no.2
stood excluded from the operation of
provisions of the 1936 Act by virtue of
provisions of Section 1 (6) of the 1936
Act which places a maximum ceiling limit
on the salary of employee at Rs.1600/- per
month for applicability of the said 1936
Act but despite request of the petitioners
the respondent no.1 has not decided the
question of jurisdiction first, instead
thereof has proceeded to fix the case for
evidence by fixing date 2.11.2004 for
final hearing.

4. It is stated that aggrieved by the
aforesaid action and apprehending that the
respondent no.1 would not decide the
issue of jurisdiction, the petitioners
preferred Writ Petition No.44452 of 2004
in which an order dated 27.10.2004 was
passed by this Court directing the
respondent no.1 to first decide the issue of
1 All] Merind Ltd. and another V. P.A. (under Payment of Wages) Act, and another

231
jurisdiction.
Aforesaid
order
dated
27.10.2004 passed by this court was
placed before respondent no.1 but instead
of abiding by the direction of this court,
the respondent no.1 had fixed 2.11.2004
for evidence by imposing cost of Rs.2000
upon the petitioners. Aggrieved by the
aforesaid action, the petitioners filed writ
petition no. 48217 of 2004 wherein this
court
vide
order
dated
10.11.2004
directed the respondent no.1 to first
consider the application of petitioners
about
the
question
of
jurisdiction
thereafter proceed further in the matter.
Thereafter vide order dated 21.12.2004
the objections raised by the petitioners
were rejected by the respondent no.1 and
he proceeded to hear the matter on merit.

5.

The
aforesaid
order
was
challenged by the petitioners by means of
writ petition no. 10794 of 2005 wherein
this court on 10.3.2005 was pleased to
direct that the proceedings before the
respondent no.1 may go on and final order
may also be passed but no recovery in
pursuance of final order would be made
without leave of the court. Subsequent to
the aforesaid order being passed, the
respondent no.1 by an order dated
24.3.2005 was pleased to allow the claim
of respondent no.2 directing payment of
Rs.126162=50p. as wages together with
compensation amounting to eight times
the above and holding the petitioners
liable to pay a sum of Rs.11,35,462=50 p.
A copy of the order dated 24.3.2005
passed by respondent no.1 is on record as
Annexure-9 to this petition. Thereafter the
petitioners moved a review application
which came to be dismissed on 24.6.2005.
The aforesaid two orders have been
challenged by the petitioners in writ
petition no. 10794 of 2005 by means of
amendment application.
6. In the meantime the respondent
no.2 has yet again laid a claim before
respondent no.1 under Section 15 (2) and
(3) of the 1936 Act seeking wage for the
period 1.4.2004 to 28.2.2005 amounting
to
Rs.1,65,900/-
together
with
compensation
amounting
to
Rs.18,24,900/-. The aforesaid application
was registered before the respondent no.1
as PWA case No. 18 of 2005 and notices
on the same have been issued by
respondent no.1 on 15.7.2005 fixing
28.7.2005 as date for hearing. A copy of
notice dated 15.7.2005 is on record as
Annexure-11 to this petition.

7. The aforesaid proceedings are
challenged by means of instant writ
petition inter-alia on the ground that
respondent no.2 was employed on wages
amounting to Rs.13,825/- per month,
therefore, the claim of respondent no.2 is
clearly excluded by virtue of provisions of
Section 1(6) of the 1936 Act. Section 1
(6) of the said Act places ceiling limit on
wage of employees drawing Rs.1600/- per
month and excluded from the operation of
Act all those employees who may be
earning wages more than Rs.1600/- per
month.
It
is
also
submitted
that
respondent no.2 was not employed in any
industrial or other establishment as
defined under Section 2 (ii) of the 1936
Act, therefore, the claim laid down by
him seeking adjudication under Section
15 of the 1936 Act is without authority of
law. Admittedly the respondent no.2 was
a sales promotion employee whose terms
and conditions of the service were
governed by the provisions of the 1976
Act,
which
impliedly
excluded
the
operation of the 1936 Act, hence
respondent no.1 on the admitted facts has
committed manifest illegality in assuming
the jurisdiction and issuing the notice to
232 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

the petitioners in the claim set up by
respondent no.2. In support of his
submissions learned counsel for the
petitioners has placed reliance upon a
decision of Hon'ble Apex Court rendered
in Life Insurance Corporation of India
Vs. Anwar Khan (since deceased)
through Legal Representatives, (2007)
11 S.C.C. 25.

8. It is submitted that the respondent
no.1 is not appropriate authority as
contemplated under 1936 Act and to the
best of the information of petitioners there
is no notification issued by the State
Government empowering the Assistant
Labour Commissioner, Bijnor to act as
Prescribed authority for the purpose of
hearing and deciding the claim laid under
Section 15 of the 1936 Act. It is further
submitted that the claim of respondent
no.2 is even otherwise not maintainable
inasmuch as he has not complied with the
order of transfer and had not joined his
place of posting. He was thus not entitled
to wages on principle of no work no pay.
The respondent no.2 had also not taken
any step under law to challenge the order
of transfer nor was the operation of same
stayed and suspended by any court or
tribunal or authority, therefore, on this
count also the claim of respondent no.2
for wages is wholly without jurisdiction
and not maintainable.

9. A detail counter affidavit has been
filed in the writ petition on behalf of
respondent no.2 whereby learned counsel
for the respondent no.2 has made serious
attempt
to
justify
the
proceedings
undertaken under Section 15 of the 1936
Act by the respondent no.2 before the
Prescribed Authority/respondent no.1. In
paras 4 and 5 of the counter affidavit it is
stated that by notification dated 31.3.1978
issued under Section 22 (F) of the
Minimum Wages Act, 1948 (hereinafter
referred to as '1948 Act') the provisions of
Sections 15 to 25 of the 1936 Act were
made applicable to the employees of
scheduled employment and respondent
no.2 is engaged in scheduled employment
under the provisions of 1948 Act,
therefore, the provisions of Section 1 (6)
of the 1936 Act would not apply in the
case of respondent no.2 so as to create
any bar in respect of the applicability of
the provisions of Section 15 of the 1936
Act. In para 18 of the counter affidavit
although it was admitted that the
respondent no.2 was employee on wage
of Rs.13,825/- per month but it was stated
that since the respondent no.2 has made
application under Section 15 (2) and
Section 15(3) of the 1936 Act, therefore,
the bar created by Section 1 (6) of the
1936 Act will not apply in the case of
respondent no.2. In paras 19 and 20 of the
counter affidavit it is further stated that
since the respondent no.2 has been
engaged
in
Pharmaceutical
industry
and/or notified industry under Section 3
of 1976 Act, therefore, he is workman
under Section 6 (2) of 1976 Act and the
provisions of Sections 15 to 25 of the
1936 Act are fully applicable in case of
respondent no.2, thus the proceedings
under Section 15 (2) and Section 15(3) of
the Act 1936, initiated by the respondent
no.2 before respondent no.1 is well within
the ambit of authority under law and
cannot be called in question before this
Court in instant writ petition.

10. Having considered the rival
submissions of learned counsel for the
parties, the questions which arise for
consideration of this Court are as to
whether in the wake of provisions of
Section-1 (6) of 1936 Act, the provisions
1 All] Merind Ltd. and another V. P.A. (under Payment of Wages) Act, and another

233
of the said Act shall apply to employees
of scheduled employment by virtue of
notification issued under Section 22 (F) of
the 1948 Act, who are drawing wage over
and above Rs.1600/- per month? and if
not, as to whether the application moved
by the respondent no.2 under the
provisions of Section 15 (2) and 15 (3) of
the 1936 Act is maintainable or not?

11.

To
appreciate
the
rival
contention of the parties and questions in
controversy it would be essential to have
a survey of relevant provisions of certain
Acts having material bearing on the issue
hereinafter.

12. Section 1 of the 1936 Act deals
with the short title, commencement and
extent of applicability of the Act as
under:-

"1.
Short
title,
extent,
commencement
and
application.--(1)
This act may be called the Payment of
Wages Act, 1936.
(2) It extends to the whole of India.
(3) It shall come into force on such date
as the Central Government may, by
notification in the Official Gazette,
appoint.
(4) It applies in the first instance to the
payment of wages to persons employed in
any (factory, to persons) employed
(otherwise than in a factory) upon any
railway by a railway administration or,
either
directly
or
through
a
subcontractor, by a person fulfilling a
contract with a railway administration.
(and
to
persons
employed
in
an
industrial
or
other
establishment
specified in sub-clauses (a) to (g) of
clause (ii) of Section 2).
(5) The State Government may, after
giving three months' notice of its
intention of so doing, by notification in
the
Official
Gazette,
extend
the
provisions of this Act or any of them to
the payment of wages to any class of
persons employed in any establishment
or class of establishments specified by
the Central Government or a State
Government under sub-clause (h) of
clause (ii) of Section 2:

{Provided that in relation to any
such establishment owned by the Central
Government, no such notification shall be
issued except with the concurrence of that
Government.}

(6) Nothing in the Act shall apply to
wages payable in respect of a wageperiod which, over such wage-period,
average {one thousand six hundred
rupees} a month or more."

13. Section 2 of the 1936 Act
defines various expressions used or
employed under the Act as under:-

"Section 2 Definitions- In this Act,
unless there is anything repugnant in the
subject or context,-
(ii) [ "industrial or other establishment"
means] any-
[(a) tramway service, or motor
transport service engaged in carrying
passengers or goods or both by road for
hire or reward;
(aa) air transport service other than
such service belonging to or exclusively
employed in the military, naval or air
forces of the Union or the Civil Aviation
Department of the Government of India;]
(b) dock, wharf or jetty;
(c)
inland
vessel,
mechanically
propelled;]
(d) mine, quarry or oil-field;
(e) plantation;
234 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Notes.- When there is a manger who is
entrusted with the affairs of the company,
the directors of the Company cannot be
said to be employers.
(f) workshop or other establishment
in which articles are produced, adapted
or manufactured, with a view to their use,
transport or sale;
[(g) establishment in which any work
relating to the construction, development
or maintenance of buildings, roads,
bridges
or
canals,
or
relating
to
operations connected with navigation,
irrigation or to the supply or of water, or
relating to the generation, transmission
and distribution of electricity or any other
form of power is being carried on;]
[(h) any other establishment or class
of establishment which the Central
Government or a State Government may,
having regard to the nature thereof, the
need for protection of persons employed
therein and other relevant circumstances,
specify, by notification in the Official
Gazette.]"

14. From perusal of provisions of
Section 1 of the 1936 Act it appears that
by virtue of sub-section 4 of the said
Section the provisions of the 1936 Act
applies in the first instance to the payment
of wages to persons employed, in any
factory, to persons employed otherwise
than a factory, upon any railway by a
Railway Administration either directly or
through a sub-contractor and to persons
employed in an industrial or other
establishment specified in sub-clause (a)
to (g) to clause (ii) of Section 2 of the said
Act. Besides this, clause (5) of Section 1
of the 1936 Act further authorises the
State
Government
to
extend
the
provisions of said Act or any of them to
the payment of wages to any class of
persons employed in any establishment or
class of establishment specified by
Central Government or State Government
under sub-clause (h) of clause (ii) of
Section 2 of the 1936 Act. However, subsection (6) of Section 1 prescribes wage
limit for applicability of the provisions of
the 1936 Act to the employees drawing
wages to the extent of Rs.1600/- per
month and class of employees referred
hereinbefore drawing wages exceeding
sixteen hundred rupees per month are
excluded from the operation of the
provisions of the 1936 Act.

15. Now an incidental question
arises for consideration that what would
be legal impact and implication of
provisions of Section 22 (F) of 1948 Act
over the provisions of the 1936 Act? This
question can be simplified in a manner as
to whether by a notification under Section
22(F) of the 1948 Act, the provisions of
the 1936 Act, can be made applicable to
the employees of scheduled employment,
who are drawing the wages over and
above Rs.1600/- per month despite
exclusion
of
such
employees
from
operation of provisions of the 1936 Act
by virtue of the provisions of Section 1(6)
of the 1936 Act? In this connection, it is
necessary to point out that the provisions
of Section 22 (F) of the 1948 Act
empower the appropriate Government to
apply all or any of the provisions of the
1936 Act, by notification in Official
Gazette
to
the
wages
payable
to
employees of scheduled employments
under the 1948 Act despite anything
contained in the 1936 Act.

16.

For
ready reference the
provisions of Section 22 (F) of the
Minimum Wages Act, 1948 are extracted
as under:-
1 All] Merind Ltd. and another V. P.A. (under Payment of Wages) Act, and another

235
"(F) Application of Payment of
Wages
Act,
1936,
to
scheduled
employments.--(1)
Notwithstanding
anything contained in the Payment of
Wages Act, 1936 (4 of 1936), the
appropriate
Government
may,
by
notification in the Official Gazette, direct
that, subject to the provisions of subsection (2), all or any of the provisions of
the
said
Act
shall,
with
such
modifications, if any, as may be specified
in the notification, apply to wages
payable to employees in such scheduled
employments as may be specified in the
notification."

17. From a plain reading of the
provisions of Section 22(F) of the 1948
Act, it is clear that notwithstanding
anything contained in the 1936 Act, the
appropriate
Government
may
by
notification in the official Gazette direct
that all or any of the provisions of said
Act shall apply to the wages payable to
employees of scheduled employment. A
Scheduled employment is defined under
Section 2(g) of the 1948 Act to mean, an
employment specified in schedule or any
process or branch of work forming part of
such employment.

18. The opening word of Section
22(F) of 1948 Act, starts with nonobstante clause. A non-obstante clause is
usually used in a provision to indicate that
provision should prevail despite anything
to the contrary in provision mentioned in
such non-obstante clause. It implies that
in case there is any inconsistency or a
departure between non-obstante clause
and another provision, one of the object of
such a clause is to indicate that it is nonobstante clause which would prevail over
the other clause. It does not, however,
necessarily mean that there must be
repugnancy or inconsistency between the
two provisions in all such cases. Normally
non-obstante clause operates to remove
obstacles contained in relevant existing
laws which come in the way of giving
effect to the provisions contained in the
enactment to which non-obstante clause is
attached but non-obstante clause cannot
be construed to widen the scope and
effect of enactment to which the nonobstante clause is attached nor can nonobstante clause be interpreted to water
down the natural scope and effect of the
enactment to which it is attached. Nonobstante clause is usually employed to
give
overriding
effect
to
certain
provisions over some contrary provisions
that may be found either in the same
enactment or some other enactment that is
to say to avoid the operation and effect to
all contrary provisions as held by Hon'ble
Apex Court in Union of India Vs. G.M.
Kokil AIR 1984 SC, 1022.

19. In view of aforestated legal
position it is clear that despite anything
contained in the provisions of the 1936
Act all or any of the provisions of said
Act shall apply to the wages payable to
the employees of scheduled employments
under the 1948 Act, as may be specified
in the notification issued by appropriate
Government. It implies that despite the
provisions of the 1936 Act may not cover
the employees of scheduled employment
under 1948 Act on its own strength and
by authority of their extension to
employee of any other establishment
under Section 1 (5) of the 1936 Act
nevertheless,
appropriate
Government
may extend all or any of the provisions of
the 1936 Act to wages payable to
employees of scheduled employments
under the 1948 Act. As indicated earlier
that the provisions of the 1936 Act are
236 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

applicable to only those employees who
are covered by that Act and employees of
any
establishment
or
class
of
establishments to whom the provisions of
the 1936 Act are extended by notification
issued
by
State
Government
under
Section 1(5) of the 1936 Act alone and
not employees of other establishments.
However, by virtue of provisions of
Section 22 F of 1948 Act, it could be
extended to the employees of scheduled
employment under 1948 Act also. But in
my considered opinion, it does not mean
that by virtue of a notification issued
under the provisions of Section 22 F of
the 1948 Act, the class of employees who
are expressly excluded from the operation
of the provisions of the 1936 Act, may
also be included by such notification
under the provisions of 1948 Act, which
is sub-ordinate legislation.

20. It is for the simple reason that
sub-ordinate
legislation/delegated
legislation cannot transgress the limit of
such legislation to which it is subordinate. In this view of the matter even
assuming as contended by learned counsel
for the respondent no.2 that the provisions
of Sections 15 to 25 of the 1936 Act are
extended to employees of scheduled
employment under 1948 Act by virtue of
notification
issued
by
appropriate
Government under Section 22 (F) of the
said Act, even then since the employees
drawing wages over and above Rs.1600/-
per month are expressly excluded from
the operation of provisions of the 1936
Act,
therefore,
the
employees
of
scheduled employment under the 1948
Act drawing the salary over and above
Rs.1600/- per month cannot be held to be
included by such notification However,
employees of scheduled employment
under the 1948 Act, who are drawing
salary below the ceiling limit of Rs.1600/-
per month may be entitled to get the
benefit of provisions of Sections 15 to 25
of the 1936 Act, if the notification so
specifies.

21. There is yet another reason to
support the view taken hereinbefore. The
provisions of the 1936 Act are intended to
regulate the payment of wages payable to
the employees covered by the said Act. It
is intended to ensure the disbursement of
wages to such employees within the
prescribed
time
limit
and
that no
deduction other than those authorised by
law are made by the employers. While
extending the benefits of the provisions of
the said Act, a ceiling limit on the wages
of such employees is fixed by the
legislature
whereby
the
employees
drawing the wage to the extent of
Rs.1600/- per month are covered by the
said Act, and those, who are drawing the
wages over and above Rs.1600/- per
month are expressly excluded from the
operations of the provisions of the said
Act by the competent legislature by virtue
of Section 1(6) of the said Act, therefore,
in
my
considered
opinion,
if
the
competent legislature itself has expressly
excluded the employees drawing the
wages over and above Rs.1600/- per
month
from
the
operation
of
the
provisions of the 1936 Act, it is very
difficult to assume that employees of
scheduled employment under the 1948
Act who are drawing wages over and
above Rs.1600/- per month can be
included to get the benefit of the
provisions of the 1936 Act, by a
notification issued under Section 22 F of
the 1948 Act by appropriate Government,
which is subordinate legislation.
1 All] Merind Ltd. and another V. P.A. (under Payment of Wages) Act, and another

237
22. The aforesaid view further
fortified by a decision rendered by
Hon'ble Apex Court in D.C. Wadhwa Vs.
State of Bihar AIR 1987 SC 579, wherein
it was held that a Constitutional authority
cannot do indirectly what it is not
permitted to do directly. If there is
constitutional provision inhibiting the
constitutional authority from doing an act,
such provision cannot be allowed to be
defeated by adoption of any subterfuge.
The
legislature
cannot
violate
the
constitutional prohibitions by employing
an indirect method. That would be clearly
a fraud on the constitutional provision.

23. In view of the aforesaid
discussion, there can be no scope for
doubt to hold that since the provisions of
Section 1(6) of the 1936 Act provides for
ceiling limit as to wages of employees so
as to exclude from the purview of the said
Act, therefore, persons whose wages
exceed such ceiling limit, any provisions
of the 1936 Act shall not apply to them.
Thus, the sales promotion employees,
who are alleged to be the employees of
scheduled employment under the 1948
Act drawing wages over and above
Rs.1600/- per month stand excluded by
virtue of provisions of Section 1(6) of
1936 Act from the purview of the said Act
and the provisions of the said Act cannot
be held applicable to them. Any other
view contrary to it, would defeat the aims
and objects of the 1936 Act, as it would
be doing a thing indirectly, what cannot
be done directly.

24. Now the issue has to be
examined in the light of provisions of the
1976 Act. Section 2 of the said Act
defines various words and expressions
used under the Act as under:-

"2. Definitions.- In this Act, unless
the context otherwise requires-
(a)
"establishment"
means
an
establishment engaged in pharmaceutical
industry or in any notified industry;
(b) "notified industry" means an industry
declared as such under Section 3;
[(d) "sales promotion employee" means
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 included any such persons-
(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.
Explanation:- For the purpose of this
clause, the wages per mensem of a person
shall be deemed to be the amount equal to
thirty times his total wages (whether or
not including, or comprising only of,
commission)in respect of the continuous
period of his service falling within the
period of twelve months immediately
preceding the date with reference to
which the calculation is to be made,
divided by the number of days comprising
that period of service;]
(e) all words and expressions used but not
defined in this Act and defined in the
Industrial Disputes Act, 1947, shall have
the meaning respectively assigned to them
in that Act."

25. Section 6 of the 1976 Act has
adopted various enactments by reference
and applied to the sales promotion
employees of pharmaceutical and notified
industry as under:-
238 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

"6. Application of certain Acts to
sales promotion Employees:- (1) The
provisions
of
the
Workmen's
Compensation Act, 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) *********
(3) The provisions of the Minimum
Wages Act, 1948, 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, employees within the
meaning of that Act.
(4) The provisions of the Maternity
Benefit Act, 1961, as in force for the time
being, shall apply to, or in relation to,
sales promotion employees, being women,
as they apply to, or in relation to, women
employed, whether directly or through
any
agency,
for
wages
in
any
establishment within the meaning of that
Act.
(5) The provisions of the Payment of
Bonus Act, 1965, 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, employees within the
meaning of that Act.
(6) The provisions of Payment of Gratuity
Act, 1972, 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, employees within the
meaning of that Act.
(7) Notwithstanding anything contained in
the foregoing sub-sections.
(a) in the application of any Act referred
to in any of the said sub-sections to sales
promotion employees, the wages of a
sales
promotion
employee
for
the
purposes of such Act, shall be deemed to
be his wages as computed in accordance
with the provisions of this Act;
(b) where an Act referred to in any of the
said sub-section provides for a ceiling
limit as to wages so as to exclude from
the purview of the application of such
Act persons whose wages exceed such
ceiling limit, such Act shall not apply to
any sales promotion employee whose
wages as computed in accordance with
the provisions of this Act exceed such
ceiling limit."

26. From a plain reading of the
aforesaid provisions of the 1976 Act it is
clear that Section 2 of the 1976 Act
defines 'establishment' which means an
establishment engaged in "pharmaceutical
industry" or "in any notified industry".
"Notified industry" defines to mean an
industry declared as such under Section 3
of the said Act. Section 2 (d) of 1976 Act
defines 'sales promotion employee' means
any person by whatever name called,
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
1600
rupees
per
mensem; or (ii) who is employed or
engaged mainly in a managerial or
administrative capacity.

27. Section 6 of the 1976 Act has
adopted and applied various labour laws
to the sales promotion employees by
reference as they apply to or in relation to
employees within the meaning of said
Acts. Thus, the provisions of Workmen
Compensation
Act,
1923,
Minimum
Wages Act, 1948, Maternity Benefit Act,
1961, Payment of Bonus Act, 1965 and
Payment of Gratuity Act, 1972 were made
applicable
to
the
sales
promotion
employees engaged in pharmaceutical
1 All] Merind Ltd. and another V. P.A. (under Payment of Wages) Act, and another

239
industry or in any notified industries.
However, Section 6 (7) of the 1976 Act
provides that notwithstanding any thing
contained in the foregoing sub-sections
where an Act referred to in any of the
such sub-sections provides for a ceiling
limit as to the wages so as to exclude
from the purview of application of said
Act, persons whose wages exceed such
ceiling limit, such Act shall not apply to
any sales promotion employees whose
wages as computed in accordance with
the provisions of this Act exceed such
ceiling limit.

28. It is necessary to point out that
medical representative whose main and
substantial work is to do canvassing for
promoting sales is not 'workman' within
the meaning of Section 2 (s) of Industrial
Disputes Act, 1947 but that class of
persons has been extended the benefit of
Industrial Disputes Act by adopting the
provisions of the said Act by reference
under Section 6 (2) of the 1976 Act.
Industrial Disputes Act, 1947 has been
amended by Amendment Act (46 of
1982). By virtue of Section 24 of
Amendment Act, Section 6 (2) of 1976
Act has been omitted but Central
Government has not given effect to said
clause as per notification No.S.O.606 (E)
dated 21st August, 1984. As logical
consequence, it will have to be held that
Section 6 (2) of 1976 Act has not been
omitted and it continues to be in force as
held in 1997 (1) Labour Law Journal,
557. It means that in spite of omission of
Section 6 (2) of 1976 Act, the provisions
of Industrial Disputes Act continues to
apply to the sales promotion employees.

29. But Section 6 (7)(b) of the 1976
Act excludes application of aforesaid
labour laws in relation to the sales
promotion
employees
whose
wages
exceed ceiling limit prescribed by such
labour laws. It implies that if particular
enactment prescribed any ceiling limit of
wages payable to the employees for
exclusion
of
applicability
of
the
provisions of such labour laws, the class
of sales promotion employees drawing
such wages shall be excluded from
applicability of such labour laws, and
only those sales promotion employees,
who are drawing wages below the ceiling
limit prescribed by such labour laws
would be entitled to get the benefits of
such labour laws. Therefore, it is essential
to examine as to whether Industrial
Disputes Act, 1947 has prescribed any
ceiling limit on the wages to the
employees
for
exclusion
of
such
employees
from
operation
of
the
provisions of the said Act.

30. In order to examine the aforesaid
issue it is necessary to extract the
provisions of Section 2 (s) of the
Industrial Disputes Act, 1947 which
defines the expression 'workman' as
under:-

"2 (s) "workman" means any person
(including and 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
express 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-
240 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

(i) who is subject to the Air Force
Act, 1950 (45 of 1950), or the Army Act,
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 of by reason of the powers vested in
him, functions mainly of a managerial
nature."

31. From perusal of Section 2(s) of
Industrial Disputes Act it is clear that a
person who is employed in any industry
to do any manual unskilled, skilled,
technical,
operational,
clerical
or
supervisory work for hire or reward
whether the term of employment be
expressed or implied, would be treated as
workman, but a person, who is employed
in supervisory capacity draws wages
exceeding 1600/- rupees per mensem or
exercises either by nature of his duties
attached to the office or by reason of
powers vested in him functions mainly of
a managerial nature would not be treated
to be workman. Aforesaid provision of
the Industrial Disputes Act, prescribed
conditions for exclusion of a person from
the definition of workman, one of which
is that the person must be employed in
supervisory capacity and drawing wages
exceeding 1600/- rupees per month and
another condition is that person must be
exercising power of managerial in nature,
but it cannot be held that a person merely
drawing wages exceeding Rs.1600/- per
month alone, would be excluded from the
definition of workman. It implies that for
such exclusion he must be working in
supervisory capacity besides drawing
salary exceeding Rs. 1600/- per month,
therefore, a person, who is drawing salary
exceeding Rs.1600/- per month is treated
to be workman within the meaning of the
Industrial Disputes Act, if he is not
working in supervisory capacity but since
a person drawing wages exceeding Rs.
1600/- per month is excluded from
operation of the provisions of the 1936
Act by virtue of provisions of Section 1
(6) of the said Act, therefore, such person
cannot be held to get the benefit of
provisions of the 1936 Act irrespective of
his job and as to whether he is workman
or not because of the reason that the
provisions of Section 1(6) of the said Act
expressly excludes the operation of the
1936 Act in relation to persons who is
drawing wages over and above Rs.1600/-
per month. Thus, there can be no scope
for doubt to hold that sales promotion
employees who are drawing wages over
and above Rs.1600 per month are not
entitled to invoke the provisions of the
1936 Act irrespective of fact that they are
workman or not under Industrial Dispute
Act, as they are expressly excluded from
the purview of the 1936 Act. However,
such sales promotion employees, who are
drawing wages within the ceiling limit
would get benefits of the provisions of the
1936 Act by virtue of the provisions of
Section 6(2) and Section 6 (7)(b) of the
1976 Act.

32.