IN THE HIGH COURT OF JUDICATAURE AT MADRAS DATED 20.9.2011 CORAM THE HONOURABLE MR. JUSTICE T. RAJA W.P.Nos.11250 and 11251 of 2004 A.Babu Mohammed Feroz Khan .. Petitioner in both the petitions Vs. The Management, M/s.Khandelwal Laboratories Ltd., 79/87D, Ladpeth, Mumbai 33. .. Respondent in both the petitions Writ Petition No.11250 of 2004 filed under Article 226 of the Constitution of India for issuance of Writ of certiorarified mandamus calling for the records pertaining to order dated 12.03.2004 in I.D.No.285/2001 on the file of Labour Court, Madurai and quash the same and direct the Labour Court, Madurai to restore I.D.No.285 of 2001. Writ Petition No.11251 of 2004 filed under Article 226 of the Constitution of India for issuance of Writ of certiorarified mandamus calling for the records pertaining to order dated 10.03.2004 in I.A.No.35 of 2002 in I.D.No.285/2001 on the file of Labour Court, Madurai and quash the same and direct the Labour Court, Madurai to restore I.D.No.285 of 2001. For petitioner : Mr.R.Subramanian For respondent : Mr.S.Silambanan Senior Counsel for Mr.N.Ganapathy O R D E R These two writ petitions have been filed by A.Babu Mohammed Feroz Khan against the award passed in I.D.No.285 of 2001 in and by which the Labour Court allowed I.A.No.35 of 2002 filed by the Management seeking to decide the preliminary issue whether the writ petitioner herein is a workman or not, after heavily relying upon the judgment of the Hon'ble Apex Court reported in (1994) 5 SCC 737 (H.R.ADYANTHAYA AND OTHERS VS. SANDAOZ (INDIA) LIMITED AND OTHERS) to hold that the Medical Representatives are not workmen and on that basis dismissed the I.D. The writ petitioner challenges both the primary award dated 10.3.2004 passed in I.A.No.35 of 2002 in I.D.No.285 of 2001 and yet another award dated https://hcservices.ecourts.gov.in/hcservices/ 12.3.2004 passed in I.D.No.285 of 2001. 2.The learned counsel for the petitioner submits that Section 2(d) of the Sales Promotion Employees (Conditions of Service) Act, 1976 defines "sales promotion employee" to mean 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. Thus, Section 2 (d) of the above said Act deals with two exemptions. 3.The first exemption is the drawing of salary exceeding Rs.1,600/- per mensem. The second exemption is the employee who is employed or engaged mainly in a managerial or administrative capacity. 4.Adverting to the above aspects, the learned counsel for the petitioner would submit that a sales promotion employee who is getting a monthly income exceeding Rs.1,600/- is always entitled to approach the labour Court, but this vital aspect has been completely overlooked by the labour Court. Secondly, whether the petitioner has been engaged in supervisory capacity or managerial capacity or administrative capacity has not been gone into by the labour Court. Therefore, it is submitted that unless and until sufficient evidence from both sides is adduced before the labour Court on those core aspects, it is not possible for any one to come to a fair conclusion as to whether the petitioner discharged duty in managerial or administrative wing. Since that exercise has not been duly discharged by the labour Court, he prayed for setting aside the impugned award. 5.In support of his submission, he relied upon various judgments, suffice it to refer the following judgment namely (1994) SCC 2608 (H.R.ADYANTHAYA AND OTHERS VS. SANDAOZ (INDIA) LIMITED AND OTHERS). Paragraph 2 of the above said decision has been much relied upon for setting aside the impugned award and the same reads as follows: "The change brought about by this Amendment was that the persons employed to do 'supervisory' and 'technical' work were also included in the definition for the first time by this amendment, although those who were employed in a supervisory capacity were so included in the definition provided their monthly wage did not exceed Rs.500/-. The definition of 'workman' was further amended by Amending Act 46 of 1982 which was brought into force w.e.f 21.8.1984. It read as -- "2(s) 'workman' means any person (including an apprentice) employed in any industry to do any https://hcservices.ecourts.gov.in/hcservices/ 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- (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 or by reason of the powers vested in him, functions mainly of a managerial nature." 6.Ultimately, the petitioner prayed for allowing the writ petition with a direction to the labour Court to decide the entire issue expeditiously to meet the ends of justice. 7.Mr.S.Silambanan, learned senior counsel for the respondent heavily relied upon the decision of the Division Bench of the Allahabad High Court reported in (2004) 2 UPLBEC 1577 (ANGLO-FRENCH DRUG COMPANY (EASTERN) LIMITED, BANGALORE VS. PRESIDING OFFICER, LABOUR COURT, ALLAHABAD AND OTHERS) in which it is stated that the Medical Representatives cannot be considered as workmen and therefore, no dispute regarding termination of their service could be referred to the labour Court under the said Act. Paragaraph 27 of the above said judgment reads as follows: "This Court in the petition of this very petitioner in the Anglo French Drug Co. (Eastern) v. State of U.P. & Ors., 1995 (71) FLR 1993, quashed the reference made by the Government of U.P, under Section 4-K of the U.P. Act on the ground that the Medical Sales Representative getting the total emoluments of Rs.2042/- per month, was not a workman. While deeding the said case, this Court applied the provisions of the Act, 1976, as stood amended by Act, 1986 and the judgment in H.R. Adanthaya (supra) and held that the Medical Representative was not a workman and https://hcservices.ecourts.gov.in/hcservices/ therefore no dispute regarding termination of his service could be referred to the Labour under the said Act." 8.Heard both sides. 9.Straight away it must be stated that the judgment reported in (2004) 2 UPLBEC 1577 relied upon by the learned senior counsel may not be helpful for this Court to arrive at a final conclusion. Admittedly, it is a case where the petitioner has been paid with the salary of Rs.5,855/- p.m.. He being a deemed employee, cannot be a ground to shut down the doors of the labour Court against the petitioner who approached it to decide on the issue whether he is a workman in terms of Section 2(s) of the Industrial Disputes Act. As there was no finding reached based on the evidence both oral and documentary let in after entertaining the primary issue as to whether the petitioner is a workman or not? the approach of the labour court in abruptly passing a non-speaking impugned Award without any facts or reasons is liable to be set aside. 10.Therefore without going into the merits of the matter, this Court sets aside the non-speaking award passed by the labour Court with a direction to the labour Court for fresh consideration, and to take up matter by keeping note of the fact that the matter has been pending for quite a long time, to dispose of the matter expeditiously within a period of six months from the date of receipt of a copy of this order. 11.The writ petitions are disposed of accordingly. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar cla To The Presiding Officer, Labour Court, Madurai. 2 cc to Mr.S.Silambanan, Advocate, Sr.No.58769 1 cc to Mr.R.Subramanian, Advocate, Sr.No.58493 W.P.Nos.11250 and 11251 of 2004 SR {CO} TP/15.11.2011. https://hcservices.ecourts.gov.in/hcservices/