M/s. Indian Drug Manufacturers Association vs The Government of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(Pat) 11473

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9237 of 2017 ======================================================
1. M/s. Indian Drug Manufacturers Association Son of Mr. Daara Bahadur Patel, having its office at 102-B, Poonam Chambers, A wing, Dr. Annie Besant Road, Worli, Mumbai, Maharashtra through its Secretary General, Mr. Daara B. Patel, Son of Mr. Daara Bahadur Patel.
2. Micro Labs Limited, Son of Mr. Bandu Kapade, 27, Race Course Road, Bangalore- 560001, represented by its Senior Vice- President- Human Resource, Mr. Shivaji Kapade, Son of Mr. Bandu Kapade.
3. USV Limited, Son of Mr. Shiv Narayan Shastri, BSD Marg, Station Road, Govandi- 400088, represented by its DGM- Human Resource, Mr. Ravi Shastri, Son of Mr. Shiv Narayan Shastri.
4. M/s. Lupin Limited, Son of Mr. Ram Prakash Saluja, 159, CST Road, Kalina, Santacruz East, Mumbai- 400098, represented by its GM-HR, Mr.
Sumit Saluja, Son of Mr. Ram Prakash Saluja.
5. IPCA Laboratories Limited, Son of Mr Bhanwar Lal Jain, 48, Kandivali Industrial Estate, Kandivali (West), Mumbai- 400067, represented by its Joint Managing Director, Mr. A.K. Jain, Son of Mr. Bhanwar Lal Jain.
6. FDC Limited, Son of Mr. Subhash Dalvi, 142-48, S.V. Road, Jogeshwari West, Mumbai- 400102, represented by its General Manager- HR, Mr. Vijay Subhash Dalvi, Son of Mr. Subhash Dalvi.
7. Alembic Pharmaceuticals Limited, Son of Mr. Ishwar Shetty, Alembic Road, Vadodara- 390003, represented by its Sr. Vice- President, Mr. C.I. Shetty, Son of Mr. Ishwar Shetty.
8. Alkem Laboratories Limited, Son of Mr. Chandrakant Parab, Alkem House, Devashish Senapati Marg, Lower Parel, Mumbai- 400013, represented by its DGM-HR, Mr. Atul C. Parab, Son of Mr. Chandrakant Parab.
9. Sun Pharma Laboratories Limited, Son of Mr. Bal Krishna Shah, Acme Plaza, Andheri Kurla Road, Andheri East Mumbai- 400059, represented by Mr. J.B. Shah, Son of Mr. Bal Krishna Shah.
10. Biological E Limited, Son of Mr. N. Veera Reddy. 18/1 and 3, Azamabad, Hyderabad- 500020, represented by its Sr. Vice President- Legal, Mr. N.
Eswara Reddy, Son of Mr. N. Veera Reddy.
11. Ajanta Pharma Limited, Son of Mr. Chinubhai Shah, Ajanta House, 98, Government Industrial Area, Charkop, Kandivali (West), Mumbai- 400067, represented by its Sr. G.M.- Legal and Company Secretary, Mr. Gaurang Shah, Son of Mr. Chinubhai Shah.
12. Unichem Laboratories Limited, Son of Mr. Keshav Gore, Registered and Corporate Office- Unichem Bhawan, Prabhat Estate, S.V. Road, Jogeshwari (West), Mumbai- 400102, represented by its DGM- HR and ER, Mr. Sunil Gore, Son of Mr. Keshav Gore.
... ... Petitioner/s Versus
1. The Government of Bihar through the Principal Secretary, Labour Resources Department, Government of Bihar, Niyojan Bhawan, Bailey Road, Patna.
2. The Principal Secretary, Labour Resources Department, Government of Bihar, Niyojan Bhawan, Bailey Road, Patna.
3. The Joint Secretary, Labour Resources Department, Government of Bihar, Niyojan Bhawan, Bailey Road, Patna.
4. Bihar Jharkhand Sales Representative Union, Road No. 1E, Rajendra Nagar, Patna- 800016.
5. Devashish Roy, Son of Late Dilip Kumar Roy General Secretary, Bihar Jharkhand Sales Representative Union, Road No. 1E, Rajendra Nagar, Patna- 800016.
6. Manoj Choudhary, Son of Krishna Kant Choudhary Treasurer, Bihar Jharkhand Sales Representative Union, Road No. 1E, Rajendra Nagar, Patna- 800016.
7. Shashi Prakash, Son of Late Harihar Nath Shrivastav Secretary, Bihar Jharkhand Sales Representative Union, Road No. 1E, Rajendra Nagar, Patna- 800016.
8. Center of Indian Trade Union a registered central trade Union, having its office at B T Randive Bhawan, 13-A, Rouse Avenue, New Delhi and local office at Jamal Road, P.S. Kotwali, Town and District Patna through its Secretary, Bihar State Committee Anupam Kumar, Son of Late Surendra Prasad, resident of Village Baur, P.S. Ghanshyampur, District- Darbhanga.
... ... Respondent/s ======================================================
Appearance :
For the Petitioner/s : Mr. Alok Kumar Sinha, Advocate Mr. Rajiv Kumar Singh, Advocate Mr. Indrajeet Bhushan, Advocate For the Respondent/s : Mr. Raghwendra Kumar,SC-22 ======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY

ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 19-06-2023 The writ petition is filed by an Association of Drug Manufacturers and 11 pharmaceutical companies. The challenge is against a notification issued by the State of Bihar produced as Annexure-1. The notification is issued under sub-Section (3) of Section-6 of the Sales Promotion Employees (Conditions of Services) Act, 1976 (for brevity “Act of 1976”) read with sub- Section-1(a) of Section-13 of the Minimum Wages Act, 1948 (for brevity “Act of 1948”). The notification prescribes 8 hours working day for the Sales Promotion Employees; the commencement and conclusion of which is also specifically notified as 09.00 A.M. to 06.00 P.M, with a lunch break between 02.00 P.M. to 03.00 P.M. The notification further provides that the Sales Promotion Employees working in excess of the time schedule or on the weekly day of rest will be entitled to over time payment at the rates prescribed in Rule 25 of the Bihar Minimum Wages Rules, 1951. We have heard Mr. Alok Kumar Sinha, learned counsel for the petitioners, Mr. Shakti Suman Kumar and Mr. Rajesh Ranjan No. 1, learned counsel for the Centre of Indian Trade Union representing the Sales Promotion Employees and the learned Government Advocate. For the petitioners it was argued based on the specific provisions of the Act of 1976 and the Act of 1948 that there is absolutely no power conferred on the State Government to prescribe the time of commencement of work and its conclusion; which is the prerogative of the employer. The learned counsel representing the trade union, however, would point out that there can be no dispute raised on the fixation of time of work and the entitlement to overtime. The learned Government Advocate would argue that it was introduced as a welfare measure, especially when the sales promotion employees were put to difficulties by way of work during unearthly hours.

We have first looked up the provisions of the respective enactments placed before us. The Act of 1976 was enacted regulating conditions of service of Sales Promotion Employees engaged in the pharmaceutical industry and those notified under Section 3 of the enactment. The Sales Promotion Employee has been defined as: “A person who is employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business, or both; excluding those employed or engaged in a supervisory capacity, drawing wages exceeding sixteen hundred rupess per mensem; or those employed or engaged mainly in a managerial or administrative capacity. Sub-Section 2 (e) of the definition clause specifically prescribed that all words and expressions used but not defined in the Act shall have the meaning as defined in the Industrial Disputes Act, 1947. Section-6 of the Act of 1976 makes applicable various welfare enactments applicable to the sales promotion employees including the Act of 1948 by sub-section-

(3).

The Minimum Wages Act, 1948 by Section 13(1)(a)

empowers the appropriate Government to fix the number of hours of work, constituting a normal working day, inclusive of one or more specified intervals; with regard to any scheduled employment with respect to which minimum rates of wages have been fixed under the Act of 1948. Section 30 deals with the power of the appropriate Government to make rules by virtue of which the Bihar Minimum Wages Rules, 1951 has also been brought out. As per Rule 24, the number of hours constituting a normal working day is notified as 9 hours for an adult inclusive of the intervals of rest. Rule 25 also provides for extra wages with respect to overtime work and double the ordinary rate of wages for scheduled employments other than employment in agriculture.

We are in perfect agreement with the petitioners that the power conferred on the appropriate Government is to make rules for fixing the normal working hours in a day inclusive of intervals and providing for overtime wages, if the employee is subjected to suc

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