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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

J U D G M E N T

D.B. CIVIL SPECIAL APPEAL (W) NO.801/2014

M/s. Glenmark Pharmaceuticals Limited

Vs.

The Judge, Labour Court and Industrial Tribunal, Bhilwara & Anr.

Date of Order :: 27.8.2015

PRESENT

HON'BLE MR. JUSTICE GOVIND MATHUR

HON'BLE MISS JUSTICE JAISHREE THAKUR

Mr. RDSS Kharlia &

Mr. Bhavani Singh Singh, for the appellant

Mr. Mukesh Patodia, for the respondent

...

BY THE COURT :

By a notification dated 16.6.2006 the Appropriate

Government referred an industrial dispute for its adjudication to the

Labour Court, Bhilwara in the terms that “Whether termination of

the workman Rajesh Joshi S/o. Shri Om Prakash Joshi, resident of

223-A, Kashipuri, Bhilwara (Raj.) by his employer M/s. Glenmark

Pharmaceuticals Limited, B-2, Mahalaxmi Chamber, Bhula Bhai

Desai Road, Mumbai (Maharashtra) 400 026 from service w.e.f.

16.6.2005 is just and valid? If not, then for what relief the workman

is entitled?”

The workman submitted a statement of claim before the

Labour Court on 19.10.2006 with assertion that being appointed as

Medical Representative, he entered in service of the employer M/s.

Glenmark Pharmaceuticals Limited on 17.6.1999 and was promoted

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as Field Sales Officer on 24.4.2000. He was discontinued from

service w.e.f. 16.6.2005 without adhering the procedure prescribed

under the Industrial Disputes Act, 1947 (hereinafter referred to as

'the Act of 1947'). A copy of notice as well as statement of claim

was sent to the employer at the given address but no one appeared

on its behalf, despite service. The Labour Court, thus, on

19.10.1996 decided to proceed ex-parte. The Labour Court after

examining the evidence adduced by the respondent-workman

arrived at a conclusion that discontinuation from service in

question amounts to retrenchment and that was effected without

adhering the mandatory condition precedent to do so as prescribed

under Section 25-F of the Act of 1947, thus, the workman is

entitled for re-instatement in service with 50% of the backwages

accrued.

After passing of the Award and its publication, an application

on 21.10.2008 was filed by the employer as per provisions of Rule

22-A of the Rajasthan Industrial Dispute Rules, 1958 (hereinafter

referred to as 'the Rules of 1958') to set aside the ex-parte Award.

The Labour Court on 22.1.2009 dismissed the application being not

filed within a period of 30 days from the date of Award. Being

aggrieved by the same, the employer-appellant/petitioner preferred

a petition for writ, that came to be dismissed by the judgment

impugned dated 19.3.2014. The learned Single Bench while

dismissing the writ petition held that the notices issued to the firm

sent through the Registered Post were served upon it but without

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any sufficient cause, no one appeared before the Labour Court,

hence no reason exists to set aside the Award. The learned Single

Bench looking to this factual background refused to interfere with

the order passed by the Labour Court.

In appeal, the argument advanced by learned counsel for the

appellant are :- (1) the respondent is a Medical Representative,

hence is not a workman as defined under Section 2(s) of the Act of

1947, therefore, the Labour Court had no jurisdiction to entertain

the industrial dispute; (2) without prejudice to the above, the

Labour Court failed to appreciate that the notice was served upon

the address where the office of the appellant-petitioner was not

functional and (3) the Labour Court is having ample power to

condone delay in filing application under Rule 22-A of the Rules of

1958, but the authority aforesaid was not invoked without any just

reason.

While opposing the appeal, learned counsel appearing on

behalf of respondent Shri Rajesh Joshi submits that the petitioner

being a Medical Representative is a sales promotion employee and

by the force of Sub-Section (2