IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 25661 of 2003(E) -------------------------- PETITIONER: ---------------- SHRI B.THULASEEDHARAN, THULASEEMANDIRAM, ELANGAMANGALAM, ENATH P.O., PATHANAMTHITTA DIST. BY ADV. SRI.PAULSON C.VARGHESE RESPONDENTS: ------------------- 1. M/S. KERAL SOAPS AND OILS LTD., WEST HILL, KOZHIKODE, REPRESENTED BY ITS MANAGER. 2. THE LABOUR COURT, KOZHIKODE. BY ADV. SRI.P.R.RAMACHANDRA MENON FOR R1 GOVERNMENT PLEADER MST. N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25661 of 2003 EXT.P1: COPY OF THE AWARD DATED 27.8.2001. EXT.P2: COPY OF THE CLAIM STATEMENT FILED BY THE PETITIONER. EXT.P3: COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT. EXT.P4: COPY OF THE REJOINDER FILED BY THE PETITIONER. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.25661 OF 2003 ---------------------------------------- Dated this the 28th day of August, 2008 JUDGMENT The workman in I.D.No.28/1996 before the Labour Court, Kozhikode is the petitioner herein. He challenges Ext.P1 award passed by the Labour Court in that I.D. The issue referred for adjudication was: “whether the denial of employment or V.R.S benefits to the employee Sri. B.Thulaseedharan, is justifiable” The Labour Court, on an appreciation of the evidence adduced in the I.D., came to the conclusion that the petitioner was a Sales Promotion Employee and therefore he is outside the purview of the definition of 'workman' in Section 2(s) of the Industrial Disputes Act. On that ground, the Labour Court denied reliefs to the petitioner which is under challenge in this writ petition. 2. I have heard the learned counsel on both sides. The question as to whether a Sales Promotion Employee can validly W.P.(c)No.25661/03 2 maintain an industrial dispute under the Industrial Disputes Act, was the subject mater of a decision of this Court in Lupin Ltd. V. Suresh [2007(4) KLT 1092]. In that case, after considering the relevant provisions of the Sales Promotion Employees (Conditions of Service) Act 1976 and that of Industrial Disputes Act, this Court had held thus in paragraph 9: “9. Further, it is not because sales promotion employees are workmen, that the Industrial Disputes Act has been made applicable to them. On the other hand, under S.6(2), the provisions of the Industrial Disputes Act are made applicable in relation to sales promotion employees, as they apply to or in relation to workmen within the meaning of the Industrial Disputes Act. This definitely means that even though sales promotion employees are not workmen as defined under the Industrial Disputes Act, the provisions of the Industrial Disputes Act as they apply to workmen as defined under the I.D. Act shall apply to sales promotion employees also. Therefore, for applying the Industrial Disputes Act to sales promotion employees, it is not necessary that such sales promotion employees should be workmen as defined under the Industrial Disputes Act all. This is made further clear by the latter portion of S.6(2) of the SPECS Act, which makes it further clear that for the purpose of proceedings under the Industrial Disputes Act in relation to industrial disputes, a sales promotion employee shall be deemed to include a sales promotion W.P.(c)No.25661/03 3 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. Therefore, I am of opinion that the language of S.6(2) of the SPECS Act is clear enough to the effect that for a sales promotion employee as defined under the SPECS Act, to raise an industrial dispute under the Industrial Disputes Act it is not necessary that he should be a workman as defined under the Industrial Disputes Act. All what is necessary is that he should be a sales promotion employee as defined under the SPECS Act, and once it is proved that he is, he automatically becomes entitled to invoke the provisions of the Industrial Disputes Act as if he was a workman as defined under that Act notwithstanding the fact that he may not answer the definition of 'workman' under that Act”. In view of that decision, clearly the findings in Ext.P1 award that the petitioner is not entitled to any relief is clearly unsustainable. The Labour Court ought to have considered the matter on merits as if the petitioner was a workman since a Sales Promotion Employee, although not a workman as defined under the Industrial Disputes Act, should be deemed to have been a workman as defined in that Act and is entitled to maintain an industrial dispute under the Industrial Disputes Act. W.P.(c)No.25661/03 4 Accordingly, Ext.P1 award is quashed and the Labour Court is directed to re-adjudicate the dispute on merits as one validly raised by the petitioner. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd