Eskayer Ltd., Bangalore vs Maharashtra Sales and Medical Representatives Association, Nagpur and Another

Since the matter is squarely covered by the Judgment of the Apex Court in H.R. Adyanthaya Vs. Sandoz (India) Ltd., etc. etc., . I did not think if fit to adjourn the case in the absence of the counsel for the Maharashtra Sales and Medical Representative Association (Vidarbha Unit) and Pandurang Chatterjerao Khunyakari (Petitioners in Writ Petition No. 857 of 89 and respondents in Writ Petition No. 1234 of 88). I have heard Mr. S. V. Golwalkar, the learned counsel for the Eskayer Limited (for short, the ''employer'').

The employer in Writ Petition No. 1234 of 88 has challenged the order of the Industrial Court passed on April 22, 1988 whereby, the Industrial Court maintained the order passed by the Labour Court, Amravati to the extent of reinstatement of complainant of his former post and award of 50% of back-wages from the date of termination till the date of reinstatement. In the other Writ Petition No. 857 of 89, the Maharashtra Sales and Medical Representatives Association (Vidarbha Unit), Nagpur (for short, the ''Union'') and Pandurang Chatterjerao Khunyakari (for short, the ''employee'') have challenged the very order passed by the industrial Court on April 22, 1988 whereby only 50% of back-wages were allowed after reinstatement of the employee.

Brief facts of the case are that the employee Pandurang was employed as Medical Representatives by the employer on December 1, 1971. The basic salary of the employee as on April 1, 1980 was Rs. 1035 per month. The services of the employee were sought to be terminated by the order dated October 23, 1980. The said order of termination was challenged by the employee before the Labour Court, Akola u/s 5 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, the ''Unfair Labour Practices Act 1971''). The claim of the employee was contested by the employer and objection was raised that employee was not workman'' u/s 2(s) of the Industrial Disputes Act, 1947 and consequently, not an "employee" u/s 3(5) of the Unfair Labour Practices Act, 1971 and, therefore, the Labour Court had no jurisdiction to adjudicate upon the dispute about the termination of employee Pandurang, Chatterjerao Khunyakari. The Labour Court held the enquiry, and the by its award dated November 6, 1987 held that the dismissal of the employee was not just and proper and the order of termination was Unfair Labour Practice within the meaning of the Unfair Labour Practices Act and, therefore, directed the employer to reinstate the employee within 15 days from the date of passing of the order. However no back wages were awarded by the Labour Court.

Both the employer and the employee were dissatisfied with the awarded passed by the Labour Court, Amravati and two separate revision applications came to be filed and the Industrial Court, Amravati in revisions, by its order dated April 22, 1988 partly allowed the revision application of the employee and directed 50% of the payment of back-wages to the employee and rest of the order passed by the Labour Court was maintained. As stated above, the said order is under challenge in the aforesaid two writ petitions.

In H. R. Adyanthaya v. Sandoz (India) Ltd. (cited supra), the Constitutional Bench of the Supreme Court has held that the medical representative is not a "workman" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and, therefore was not an employee" within the meaning of the Unfair Labour Practices Act, 1971 and the Labour Court had no jurisdiction to adjudicate the dispute relating to medical representatives. The Apex Court has held that the complaint by such employee was not maintainable.

In view of the authoritative decision of the Supreme Court that the medical representative is not a "Workman" and complaint by such employee was not maintainable, the order passed by the Industrial Court, Amravati on April 22 1988 directing the reinstatement of the employee and payment of 50% of back-wages is liable to be set aside and the employee is held to be not entitled to any relief in the complaint filed by him before the Labour Court challenging his termination order dated October 23, 1980 since he was not a "workman".

Mr. Golwalkar, the learned counsel for the employer has, however, fairly and candidly submitted that pursuant to the order passed by this Court on June 30, 1988, the employer deposited 50% of the back-wages with the Labour Court, Amravati and in case the said amount has been withdrawn by the employee, his client would not seek refund of the said amount. However, in case the amount deposited by the employer pursuant to this Court''s order dated June 30, 1988 has not been withdrawn by the employee, it would be open to the employee to withdraw the said amount from the Labour Court, Amravati.

Consequently, Writ petition No. 1234 of 1988 is allowed and the order passed by the Industrial Court, Amravati on April 22, 1988 and the award passed by the Labour Court, Amravati and November 6, 1986 are quashed and set aside against the employer. In this view of the matter, Writ Petition No. 857 of 1989 filed by the Union and the employee does not survive and is accordingly dismissed. Rule is made absolute in Writ petition No. 1234 of 1988. Rule is discharged in Writ Petition No. 857 of 1989. No order as to costs in both the writ petitions.