The court held that a sales/medical representative in a pharmaceutical company is not considered a 'workman' under the Industrial Dispute Act.

1. The factual and legal matrix involved in M.P. No.2653/2018 filed by the employer/petitioner and M.P. No.1984/2018 filed by the employee/petitioner are the same and so is the order under challenge in both the petitions which are thus analogously heard and decided by this common order.

2. Supervisory jurisdiction of this Court under Article 227 of the Constitution of India is invoked assailing the award dated 19.01.2018 passed by Labour Court No.1, Gwalior in Case No.COC-02/A/ID Act/2015 answering the reference of termination of services of respondent in favour of respondent/workman after holding the sales promotion employee respondent to be a workman u/S.2(s) of the Industrial Dispute Act (for brevity “I.D. Act”) and directing reinstatement without back-wages.

Learned counsel for petitioner is heard.

3. The solitary ground as projected by learned counsel for the petitioner/employer is that the respondent/employee was discharging managerial and administrative functions and therefore is excluded from the definition of “Workman” u/S.2(s) of the I.D. Act. Learned counsel for employer has also pressed into service the Division bench decision of this Court rendered in W.A. No.75/2017 (Novartis India Limited Vs. Vipin Shrivastava & others) on 11.10.2018. Further reliance is placed on a recent decision of Single bench rendered in W.P. No.1307/2017 on 01.11.2018 after relying upon the aforesaid Division bench decision in Novartis India Limited (supra).

4. The bare facts giving rise to the present case are that respondent by letter of appointment (Annexure P/2) is appointed as Business Manager-Institutional Sales-Life Care in the all India Management Cadre of the petitioner/employer on 01.04.2013 on a basic salary of Rs.9,990/-per month along with certain allowances mentioned therein. Nature of the work was essentially of a medical representative. The services of respondent/employee were terminated on 28.04.2014 without following the provisions of Sec.25-F of the I.D. Act which impelled the respondent/workman to unsuccessfully raise industrial dispute before the Conciliation Officer, where after the Appropriate Government referred the 3 dispute to the labour Court for adjudication.

5. The labour Court after recording of oral evidence produced by the rival parties found that the work of respondent/employee was essentially of a medical representative having no managerial functions as respondent/workman was supposed to only meet and apprise the doctors of various kinds of pharmaceutical drugs produced and sold by the employer. The work essentially was of promoting sales of pharmaceutical drugs. This impelled the labour Court to hold that the respondent/employee fell within the category of workman as defined u/S.2(s) of the I.D. Act and therefore, since the provisions of Sec.25-F of I.D. Act had not been complied with at the time of termination of services, the impugned award was rendered in favour of workman holding the termination to be unlawful retrenchment and directing reinstatement without back-wages.

6. The statement of witness of management though reveals that no managerial or administrative functions were discharge by the respondent/workman but the division bench of this court in Novartis India Limited (supra) while dealing with a similar case of medical representative, relying upon the decision of the Apex Court in H.R. Adyanthaya and others Vs. Sandoz (India) Ltd. and others, (1994) 5 SCC 737, held that when the employee essentially performs functions of sales representative in a pharmaceutical company, the duties attached to his post are neither managerial nor administrative. The division bench held that the sales representative may not supervise any person but is master of his own affairs reporting to management only in respect of quantification of sales and therefore the division bench held that a medical representative cannot be treated to be a workman to fall within Sec.2(s) of the I.D. Act. The relevant paragraphs 14, 15,