2024:BHC-AS:19248 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2579 OF 2017 Mr. Jobi Joseph }…Petitioner V/S.

1. M/s. Cadbury India Ltd.

2. Mr. Rajesh Ramanathan }...Respondents Mr. Sanjay Singhvi, Senior Advocate with Mr. Rahil Fazelbhoy, for the Petitioner.

Mr. Dhananjay J. Bhanage, for Respondents.

CORAM : SANDEEP V. MARNE, J.

Reserved On : 12 April 2024.

Pronounced On: 26 April 2024.

JUDGMENT :

1) By this petition, fled under Article 227 of the Constitution of India, the Petitioner challenges the Order dated 1 April 2014 passed by the Labour Court, Mumbai in Complaint (ULP) No. 225 of 2012. By the impugned Order, the Labour Court has held that Petitioner is not an ‘employee’ within the meaning of Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (MRTU &

PULP Act) and that therefore the Complaint fled by him challenging his termination is not maintainable. The Order of the Labour Court has been upheld by the Industrial Court by dismissing Revision Application (ULP) No. 96 of 2014 fled by Petitioner.

2) Cadbury India Ltd. (Cadbury) India’s premier confectionery and sweet maker, which is also a global leader in manufacturing of chocolates, and other allied products has established wide distribution network in various parts of the country. It has appointed various Regional Distributors (RD). Such RDs, employ staf of their own for the purpose of marketing and supply of products of Cadbury to wholesalers and retail stores.

3) Petitioner joined the services of Cadbury on 17 June 2004 on the post of Sales Oficer and was confrmed in service on 1 April 2005. He was subsequently promoted to the post of Senior Sales Executive on 1 November 2011 and was drawing gross salary of Rs.58,891/- per month at the relevant time.

4) According to Petitioner, though he was designated as Senior Sales Executive, he performed various feld jobs relating to sell and marketing of products of Cadbury in the retail and wholesale outlets, through Cadbury’s RDs. That he was not involved in supervisory, administrative or managerial nature of work. That no employee of Cadbury was employed under Petitioner and that he independently worked and reported to his superior oficers. Petitioner therefore claimed that he is a ‘workman’ as defned under Section 2(s) of the Industrial Disputes Act, 1947 (I.D. Act) and consequently an ‘employee’ as defned under Section 3(5) of the MRTU & PULP Act. Though Petitioner mainly sought to press his status as ‘workman’ under ID Act before the Labour Court while giving a hint of his role as ‘Sales Promotion Employee’, his main thrust in the Petition is about his status as ‘Sales Promotion Employee’ within the meaning of Sales Promotion Employees (Conditions of Service), Act 1976 (SPE Act).

5) By letter dated 4 June 2012 issued by Cadbury, Petitioner was informed of certain irregularities in his area while opening of new outlets in February and March 2012 and was accordingly withdrawn from that area. According to Petitioner, he was not called for participation in any enquiry or was given any new assignment. He was assigned the work of door-to-door services and was assigned to perform miscellaneous jobs such as visiting shops in slum areas for booking of orders. By letter dated 1 October 2012, his services were terminated. Petitioner states that termination was without following the statutory provisions, in absence of show cause notice or any enquiry.

6) Petitioner therefore fled Complaint (ULP) No. 225 of 2012 in the Labour Court, Mumbai challenging the termination letter dated 1 October 2012 and prayed for reinstatement with continuity, backwages and all consequential benefts w.e.f. 1 October 2012. He also sought compensation of Rs. 1,00,000/-.

Petitioner also fled application seeking interim relief. Respondent-Cadbury appeared in the complaint and fled Afidavit opposing application for interim relief and also raised preliminary objection about maintainability