IMPORTANT POINT
Sales promotion employees can raise industrial disputes under the Industrial Disputes Act, and unregistered Trade Unions can validly initiate such disputes.

JUDGMENT :

The petitioner states that it is a Trade Union representing the interest of the sales and marketing workers. The petitioner preferred Ext.P1 industrial dispute before the 1^st respondent-Regional Labour Commissioner, challenging the action of the 2^nd respondent-Management in transferring all workers who are members of the petitioner-Trade Union from Kozhikode to various distant parts of the Country.

2. The petitioner states that the 1^st respondent relying on the judgment passed by this Court in Lupin Limited v. G. Suresh and another [2007 (4) KLT 1092] closed Ext.P1 complaint noting that sales and marketing personnel were not workmen as defined under Section 2(s) of the Industrial Disputes Act, 1947. The said finding is in fact contrary to the dictum laid down by this Court in the said judgment. The petitioner, therefore, prays that Ext.P3 be set aside and the 1^st respondent be directed to consider Ext.P1 on merits and pass appropriate orders.

3. The petitioner would contend that the members of the petitioner-Trade Union though described as Sales Managers, they were not discharging the duties of Managers or Supervisors. They were ordinary sales promotion employees. Merely because they are described as Managers, they cannot be excluded from the purview of Industrial Disputes Act. The petitioner further contended that in view of the Industrial Disputes (Kerala Amendment) Act, 2017, the words “promotion of sale” has been included in Section 2(s) of the Industrial Disputes Act. Therefore, sales promotion employees are now workmen under the Industrial Disputes Act as far as the State of Kerala is concerned. In such circumstances, the 1^st respondent ought not have passed Ext.P3 order.

4. Standing Counsel entered appearance and resisted the writ petition on behalf of the 2^nd respondent. On behalf of the 2^nd respondent, it is contended that an industrial dispute will not lie as the petitioner's members are not workmen as defined under Section 2(s) of the Industrial Disputes Act. The petitioner's members are Managers. When the branches of the insurance company were closed, they had to be transferred out.

5. The 2^nd respondent further urged that the 2^nd respondent being in the insurance sector, the workmen of the petitioner would not fall within the ambit of Sales Promotion Employees (Conditions of Service) Act, 1976. The petitioner, therefore, cannot claim the benefit of the Act, 1976 either. As long as the members of the petitioner are not falling under the Sales Promotion Employees (Conditions of Service Act), 1976 and as long as the members of the petitioner are not workmen falling within the definition of Section 2(s) of the Industrial Disputes Act, Ext.P3 is only to be upheld.

6. Standing Counsel appearing for the 2^nd respondent further submitted that the members of the petitioner are making Forum Shopping. The employees transferred out by the 2^nd respondent have approached the Labour Commissioner, as is evident from Ext.R2(a). The attempt of the petitioner is to agitate the same issue before two different authorities on experimental basis. For that reason also, this writ petition is liable to be dismissed.

7. The 2^nd respondent further contended that the petitioner admittedly is not a registered Trade Union. Only a registered Trade Union can raise a dispute under the Industrial Disputes Act. In view of Section 2 (qq) of the Industrial Disputes Act, a Trade Union means a registered Trade Union. The petitioner being an unregistered entity, cannot raise an industrial dispute.

8. I have heard the learned Counsel for the petitioner and the learned Standing Counsel representing the 2^nd respondent.

9. The members of the petitioner-Union are the workers of the 2^nd respondent. The 2^nd respondent is an Insurance Company. When the members of the petitioner- Trade Union were transferred out, the petitioner raised industrial dispute before the Regional Labour Commissioner (Central), who is under the Government of India. Whether an industrial