Full Judgment Text
2023:BHC-AS:33057
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5862 OF 2018
Kiran P. Pawar ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 2606 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Mr. Paul Solomon Raja ...Respondent
WITH
WRIT PETITION NO. 1758 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Kiran P. Pawar ...Respondent
WITH
WRIT PETITION NO. 2585 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Devan Jagdishchandra Tolia ...Respondent
WITH
WRIT PETITION NO. 2586 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Sachin Narsayya Nagarkar ...Respondent
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WITH
WRIT PETITION NO. 2587 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Kalyanrao Shankar Shinde ...Respondent
WITH
WRIT PETITION NO. 2588 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Rajendra Chandrashekhar Deshpande ...Respondent
WITH
WRIT PETITION NO. 2589 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Madhukar Prabhakar Ingale ...Respondent
WITH
WRIT PETITION NO. 2590 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Makrand Borkar ...Respondent
WITH
WRIT PETITION NO. 5668 OF 2018
Makarand Borkar ...Petitioner
Versus
Bata India Ltd. ...Respondent
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WITH
WRIT PETITION NO. 8024 OF 2018
Rajendra Chandrashekhar Deshpande ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 8026 OF 2018
Deven Jagdishchandra Tolia ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 6953 OF 2018
Sachin Narsayya Nagarkar ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 5667 OF 2018
Madhukar Prabhakar Ingle ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 6948 OF 2018
Kalyanrao Shankar Shinde ...Petitioner
Versus
Bata India Ltd. ...Respondent
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WITH
WRIT PETITION NO. 1815 OF 2016
ALONG WITH
CIVIL APPLICATION NO.1782 OF 2016
M/s. Bata India Ltd ...Petitioner
Versus
Mr. Yellappa Satyappa Patil ...Respondent
__________________________________________________________
Mr. Sudhir Talsania, Sr. Advocate a/w. Mr. Avinash Jalisatgi for
Petitioners in WP/2606/2018, WP/1758/2018, WP/2585/2018,
WP/2586/2018, WP/2589/2018, WP/2587/2018, WP/2588/2018,
WP/2590/2018, WP/1815/2016 a/w. CAW/1782/2016
for Respondent in WP/5668/2018, WP/8024/2018, WP/8026/2018,
WP/6953/2018, WP/5667/2018, WP/16948/2018 and WP/5862/2018.
Mr. Sameer Paranjape, a/w. Mr. Kaustubh Thipsay for Respondents in
WP/1758/2018, WP/2585/2018, WP/2586/2018, WP/2587/2018,
WP/2588/2018, WP/2589/2018 and WP/2590/2018
for Petitioners in WP/5862/2018, WP/8026/2018, WP/6953/2018,
WP/6948/2018, WP/8024/2018, WP/5667/2018 and WP/5668/2018.
Mr. P. R. Arjunwakar, i/b. Ms. Prabha Badadare for Respondents in
WP/1815/2016 and WP/2606/2018.
__________________________________________________________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 20 OCTOBER 2023.
PRONOUNCED ON : 01 NOVEMBER 2023.
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JUDGMENT:
HE HALLENGE
T C
Bata India Ltd. (Bata), a familiar name in Indian households,
manufacturing footwear for Indians for the last several decades decided to
operate its showrooms in Mumbai, Thane and Pune for 7 days in a week
in the year 2007 with extended hours to reduce losses. Bata’s this
decision created a rift between the company and some of its salesmen,
who were not willing to work as per roster prepared by Bata. Refusal to
work as per roster by its salesperson was treated as misconduct by Bata
leading to discontinuation of services of some of its salespersons in the
year 2007. The salesmen approached Labour Court by filing complaints
under provisions of Section 28(1) of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act 1971
(MRTU & PULP Act). Bata questioned the status of such salesman as
‘workman’ under the Industrial Disputes Act 1947 and consequently as
‘employee’ under the MRTU & PULP Act. Labour Court has however
held those salesmen as workmen under the provisions of Industrial
Disputes Act and ‘employees’ under MRTU & PULP Act and held the
complaints to be maintainable. In two sets of complaints, Bata is before
this Court challenging findings on preliminary point of status of salesman
as workman. In rest of complaints, the Labour Court, while holding
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salesman as workman, went into the merits of the termination Orders
and has set aside the same directing payment of 50% backwages. Bata has
challenged the Labour Court’s decision directing reinstatement and 50%
backwages whereas the salesmen, on the other hand, are aggrieved by
non-grant of 100% backwages and accordingly have filed their own
petitions.
2. Thus, Writ Petition Nos. 1815 of 2016 and 2606 of 2018 are
filed by Bata challenging the Order of Labour Court on preliminary issue
holding the complainants as ‘workman’ under Section 2(s) of the
Industrial Disputes Act, 1947 (ID Act) and as ‘employee’ under Section
3(5) of the MRTU & PULP Act. Bata has unsuccessfully tested the
decision of Labour Court before the Industrial Court and its Revision
Applications are dismissed. The Orders of Industrial Court dismissing the
revision applications are also under challenge in Writ Petition No.1815 of
2016 and Writ Petition No. 2606 of 2018.
3. In respect of 7 Complainants, whose complaints are allowed
by Labour Court by setting aside the Order of termination, Bata has filed
Writ Petition Nos. 2606/2018, 1758/2018, 2585/ 2018, 2586/2018,
2589/2018, 87/2018, 2588/2018 and 2590/ 2018. In those petitions,
Bata has also challenged Orders of the Industrial Court by which its
Revision Applications are rejected upholding the Orders passed by the
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Labour Court.
4. The Complainants are also aggrieved by the decisions of the
Labour Court to the extent of denial of 50% backwages and accordingly
they have filed Writ Petition Nos. 5668 of 2018, 8024 of 2018, 8026 of
2018, 6953 of 2018, 5766 of 2018, 1489 of 2018 and 5829 of 2018. In
their petitions, the Complainants have also challenged Orders of the
Industrial Court rejecting their Revision Petitions and upholding the
Orders passed by the Labour Court.
ACTS
F
5. Having summarized the exact challenge involved in the
group of present petitions, it is necessary to narrate few basic facts. Bata is
a company incorporated and registered under the provisions of
Companies Act 1956 having its registered office at Kolkata. It also has
retail shop offices at Mumbai, Thane and Pune. It is engaged in business
of manufacturing and sale of shoes and footwear and other allied
accessories. It had several manufacturing factories, branch offices and at
about 1200 retail shops all over the country at the time of filing of the
petitions.
6. In showrooms of Bata, there are various categories of
employees such as shop manager, salesman, shop assistant, cashier and
repairman, etc. The employees involved in the present petitions were
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employed on the position of ‘salesman’ in various showrooms of Bata.
Bata has given detailed description of duties and responsibilities of a
salesmen deployed in its retail outlets. Bata sought for permission from
Government of Maharashtra to keep its shops open for 07 days in a week
and during extended work hours with a view to improve its sales.
Accordingly, by Notification dated 02 February 2007, the State
Government granted permission to Bata to keep its retail outlets open for
07 days in a week and during extended working hours subject to various
conditions. One of the conditions was to give a weekly holiday to each
employee and that the shops must be shut by 9:30 pm. Bata accordingly
issued notices to the employees employed in the showrooms in
November 2007 giving them intimation about the permission granted by
the State Government. Bata prepared a duty chart with a view to man its
showrooms during the extended hours for keeping them open for 07
days in a week. It appears that some of the salesmen in the showrooms
were not willing to accept the sudden change in the working hours. They
were also not happy with the idea of not having a designated day as a
weekly holiday. Some of the salesmen therefore did not accept the change
of duty roster. Bata therefore issued chargesheets to those salesmen who
refused to work as per the duty roster. For the charge of failure to report
to work as per the assigned duty roster, the salesmen were held guilty and
their services were terminated by payment of one months’ salary.
However, they were offered reinstatement subject to condition of
submitting a good conduct bond (undertaking) within a period of 72
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hours from receipt of termination letter.
7. The terminated salesmen approached Labour Courts by filing
Complaints under Section 28 of the MRTU & PULP Act. The
Complaints were resisted by Bata raising a preliminary objection of
maintainability on the ground that a salesman employed in its
showrooms is not a ‘workman’ under Section 2(s) of the ID Act.
Termination Orders were also justified on merits. In two Complaints, the
Labour Court proceeded to answer preliminary point of maintainability
against Bata holding that the Complainants are workmen. Bata
unsuccessfully challenged Labour Court’s decision in revision before the
Industrial Court and upon dismissal of its revisions, has filed Writ
Petition Nos. 1815 of 2016 and 2606 of 2018. In rest of the cases, the
Labour Court not only held the Complainants to be workmen, but
proceeded to set aside the termination orders by directing reinstatement
with 50% backwages. In respect of Complainants whose complaints are
finally decided, two sets of Revision Petitions were filed before Industrial
Court both by Bata as well as by the Complainants. While Bata was
aggrieved by the entire Orders of the Labour Court, the Complainants on
the other hand challenged Orders of the Labour Court to the limited
extent of denial of 50% backwages. The Industrial Court however upheld
the decisions of the Labour Court by dismissing Revision Applications
filed by Bata as well as of Complainants. Accordingly, the present
petitions are filed both by Bata as well as employees.
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UBMISSIONS
S
8. Mr. Talsania, the learned senior advocate would appear on
behalf of Bata and submit that Industrial Court has erred in holding the
salesmen employed by Bata as ‘workmen’ under the ID Act and
consequently ‘employees’ under the MRTU & PULP Act. That sales
promotion employees constitute a totally different class of persons, who
are not covered by definition of the term ‘workman’ under ID Act. That
since the sales promotion employees are not covered by definition of the
term ‘workman’, the legislature has enacted separate enactment by name
Sales Promotion Employees (Conditions of Service) Act 1976 (SPE Act).
That the definition of the term ‘employee’ under the MRTU & PULP
Act came to be amended in the year 1999 by including sales promotion
employees under SPE Act in the definition of the term ‘employee’. That
if sales promotion employees were to be treated as workmen, there was no
necessity of including them separately in the definition of the term
‘employee’. Mr. Talsania would further submit that the provisions of SPE
Act 1976 are at the moment restricted only to the sales promotion
employees engaged in the establishment of pharmaceutical industry as no
other establishment has been included in the SPE Act 1976. He would
therefore submit that the sales promotion employees working in other
establishments than pharmaceutical industry are not covered by the
definition of the term ‘employee’ under the MRTU & PULP Act. He
would therefore submit that the Labour Court did not have jurisdiction
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to entertain the complaints filed by salesmen engaged in retail outlets of
Bata.
9. Mr. Talsania would take me through the evidence recorded in
some of the complaints to demonstrate that there is an admission of
receipt of commission by the complainants. That the duties and
responsibilities attached to a salesman are such that they do not perform
any manual, unskilled, skilled or technical job. That the work of a
salesman engaged in retail outlets of Bata is essentially to promote sale of
the products to the customers. That therefore the complainants otherwise
cannot be treated as workmen under the provisions of the ID Act.
10. Mr. Talsania would rely upon Judgment of the Apex Court in
H. R. Adyanthaya & Ors. Vs. Sandoz (India) Ltd. & Ors ., (1994) 5 SCC
737 in support of his contention that the issue with regard to inclusion of
sales promotion employees in the definition of ‘workman’ has finally
been decided by the Apex Court and that therefore the complaints filed
by salesmen under the provisions of MRTU & PULP Act cannot be
entertained. He would also place reliance on the Judgment of the Apex
Court in Miss A. Sundarambal Vs. Government of Goa, Daman and Diu
& Ors. , (1988) 4 SCC 42 in support of his contention that any employee
who does not satisfy any of the 4 categories of manual, unskilled, skilled,
supervisory, technical or clerical work cannot be treated as a ‘workman’
under the provisions of the ID Act.
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11. So far as the merits of the decisions of Labour and Industrial
Courts are concerned, Mr. Talsania would submit that the Complainants
committed misconduct, on account of which they were served with
memoranda of charge sheet. That the misconduct in not performing
duties as per roster is proved and that therefore production of any
evidence was not necessary. Alternatively, Mr. Talsania would submit that
Bata could have led evidence before the Labour Court, if it was found
that the proof of misconduct was not established. He would submit that
Bata had given clear offer to the employees to report back to duties even
after termination by filing undertaking. That despite such a clear offer,
none of the terminated employees came back for work, which is
indicative of their lack of interest to work with Bata. That in such
circumstances, Industrial Court has erred in setting aside termination and
directing reinstatement.
12. Mr. Paranjape, the learned counsel would appear on behalf of
some of the employees. He would submit that since sales promotion
employees are now covered by definition of the term ‘employee’ under
MRTU & PULP Act, the issue of maintainability of complaints filed by
the Complainants has been rendered academic. He would further submit
that the Labour Court has come to a specific conclusion that the
complainants were not performing work of sales promotion activities, but
merely doing work of salesman. That the Labour Court has appreciated
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evidence with regard to nature of duties and has arrived at a finding that
primary duties of the complainants were manual, unskilled, skilled and
clerical. That these findings have been confirmed by the Industrial Court
and therefore this Court would be loathe in interfering with the same in
exercise of its jurisdiction under Article 227 of the Constitution of India.
He would place reliance on the Judgment of Apex Court in Pepsico India
Holding Private Limited Vs. Krishna Kant Pandey, (2015) 4 SCC 270.
Mr. Paranjape would further submit that Bata has failed to establish or
demonstrate that nature of duties of complainants was that of sales
promotion employees.
13. So far as the merits of the decision of Labour Court are
concerned, Mr. Paranjape would submit that Notification dated 02
February 2007 required consent of the concerned employees before
placing them on duty on a day of weekly holiday or other holiday. That
such consent was never obtained by Bata before effecting any changes in
the duty hours of the employees. Therefore, the very basis of issuance of
charge-sheet for non-compliance with the terms of Notification dated 02
February 2007 was unfounded. That before changing any service
conditions, it was mandatory to issue notices as required under Section
9A of the ID Act and mere issuance of Notification dated 02 February
2007 by the State of Maharashtra would not have any overriding effect
over provisions of Section 9A of the Central Act. That the Standing
Orders, under which charge-sheet was issued, were admittedly not
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certified standing orders as has been held by the Labour Court. That
there was never any admission of guilt on the part of complainants at any
stage and therefore termination without holding any enquiry was ex-facie
illegal. That no attempt was made by Bata to prove misconduct before the
Labour Court and Bata never sought to produce evidence to establish
misconduct. That therefore Labour Court has rightly set aside
termination of the employees.
14. So far as the issue of backwages is concerned, Mr. Paranjape
would submit that Labour Court has erred in granting only 50%
backwages when the termination was found to be illegal. He would rely
upon Judgment of the Apex Court in Deepali Gundu Surwase Vs. Kranti
Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors , (2013) 10 SCC 324 in
support of his contention that employees are entitled to 100% backwages
with consequential benefits and continuity in service consequent to
reinstatement.
15. Mr. Arjunwadkar, the learned counsel appearing for
employees in Writ Petition Nos.1815 of 2016 and 2060 of 2018 would
adopt submissions of Mr. Paranjape. Additionally, he would rely upon
Judgment of the Gujarat High Court in Bata India Ltd. A Company,
Calcutta Versus B. H. Nathani , 1077 (0) AIJ-GJ 223985 in support of his
contention that in respect of very same employer, it is held that salesmen
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employed by Bata in its retail outlets are ‘workman’ within the definition
of Section 2(s) the ID Act.
16. Rival contentions of the parties now fall for my
consideration.
17. The moot issue involved in the present petition is whether
complainants, who are employed as salesmen in various retail outlets of
Bata , could be treated as workmen under provisions of ID Act and
consequently ‘employee’ under the provisions of the MRTU & PULP
Act. Answering this issue would determine jurisdiction of the Labour
Court to entertain the complaints filed by the employees. It is the
contention of Bata that salesmen employed by it at its retail outlets are
not covered by definition of the term ‘workman’ under the Industrial
Disputes Act. The term ‘workman’ is defined under section 2(s) of the
Industrial Dispute Act as under :-
2(s) : “workman” means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or reward,
whether the terms of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to an industrial
dispute, includes any such person who has been dismissed, discharged
or retrenched in connection with, r as a consequence of, that dispute,
or whose dismissal, discharge or retrenchment has led to that dispute,
but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the
Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of
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1957); or
(ii) who is employed in the police service or as an officer or
other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative
capacity, or
(iv) who, being employed in a supervisory capacity, draws wages
exceeding [ten thousand rupees] per mensem or exercise, either
by the nature of the duties attached to the office or by reason of
the powers vested in him, functions mainly of a managerial
nature.
18. Thus, every person employed in any industry doing any
manual, unskilled, skilled, technical, operational, clerical or supervisory
work is treated as a ‘workman’. It is the case of Bata that salesmen
employed at its retail outlets did not perform manual, unskilled, skilled,
technical, operational or clerical work. According to Bata , the
predominant duties of the salesmen are as under :-
i) Promotion of sales of Company’s products in the retail
outlets;
ii) Selling footware to the customers who visit the shop using
his salesmanship skill;
iii) Canvassing sales of the Company’s products;
iv) To attend to customers who come to the shop to buy
footwear by using skill of salemanship, which essentially consists
of greeting and inviting the customers into the shop, asking the
customer his need or requirement qua various footwears,
physically demonstrating by removing the old footwear and
fitting him with the new footwear, explaining to the customer the
advantages and usefulness of the particular footwear.
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v) Answering customer’s queries with regard to the footwear
that he wished to purchase and any specific need the customer
may have with regard to use of footwear;
vi) To persuade the customer to look at other comparable
footwear and also explain to him the various varieties of footwear
available which the customer can use during different times of the
day and for different occasions and ensure that the customer is
persuaded to buy the footwear.
vii) As a salesman he was required to promote the sales by
visiting to the institutions, schools, companies, melas and other
places.
19. It is thus Bata’s case that the main role of a salesman involves
promotion of its business as a salesman essentially canvasses for sale of
Bata’s products to its customers and also indulges in actual selling of the
products in the retail outlets. According to Bata , the job of a salesman
involves following acts, once a customer approaches him/her in a retail
outlet :-
(i) Acknowledge with a smile within the first ten seconds of
entering the stores;
(ii) Treat with courtesy respect and understanding;
(iii) Treat as a unique individual;
(iv) Deal as professional sales person who can solve any issue;
(v) Provide a quality product or service;
(vi) Provide value for his money;
(vii) tell the truth; and
(viii) Apologise, take quick action and provide a remedy if things
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are done wrong or do not measure up to standard.
20. It is contended by Bata that the a salesman need to follow
‘Bata Five Steps’ as under :-
Step 1: Greeting - smiling and acknowledging them to make
them feel comfortable.
Step 2: Ask two Questions - The first question must be
general to encourage conversation and the second one must be
business related to determine the customer's needs. Both should
be open-ended questions.
Step 3: Show Three Articles - consists of showing every
customer three articles including one that matches his needs, one
that matches his needs plus has added benefits at a higher price
and an appropriate bestseller or slow mover as an alternative or as
an add-on. When showing the article, the salesman should:
(i) Seat the customer;
(ii) Offer to measure his feet;
(iii) Agree on the customer's needs;
(iv) Review each feature and benefit of the article to establish
value;
(v) Encourage the customer to try on the product to create a sense
of ownership;
(vi) Check the fit - Bata 7 Point Fit Test;
(vii) Assume that at least one article is sold;
(viii) Respect the merchandise and be organized.
Step 4: Add-on and Close - Adding-on is the best service a
salesperson can provide. It must be applied consistently to every
single customer in order to increase average sale and turnover of
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the Company. The salesperson should close the sale by listening
for buying signals from the customer and overcoming objections
by repeating and reinforcing the benefits of the products.
Step 5: Thank and Invite - The salesperson should thank
and invite back both the purchasers and also the non-purchasers
who may be the future customer.
21. Thus on the basis of above nature of duties and
responsibilities, Bata claims that a salesman can never be a ‘workman’
under Section 2(s) of the Industrial Disputes Act.
22. Strong reliance is placed by Mr. Talsania on the Constitution
Bench Judgment of the Apex Court in H. R. Adyanthaya & Ors. (supra).
The issue before the Supreme Court was whether a medical
representative is workman under Section 2(s) of the ID Act. The Apex
Court referred to its earlier Judgment in May & Baker (India) Ltd. V.
Workman, (1961) 2 LLJ 94 : AIR 1967 SC 678 in which the Apex Court
has held that a medical representative of a company who was discharged
from service was not a ‘workman’ under ID Act. The Apex Court has also
referred to its decision in Western India Match Co. Ltd. Vs. Workmen ,
AIR 1964 SC 472 in which the issue was whether workmen employed by
sales office of a company are entitled to payment of bonus on par with
those employed in the factory and considering the nature of work done
by those salesmen which involved 75% clerical work, the Apex Court
held them to be workmen under the ID Act. The Apex Court also
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considered its Judgment in T. P. Srivastava Vs. National Tobacco Co. of
India Ltd., (1992) 1 SCC 281 in which a Section Salesman of the
company was not held to be workman’ under the ID Act. The Apex
Court also considered its judgment in Burmah Shell Case AIR 1971 SC
922 which involved cases of Sales Engineering Representatives and
District Sales Representatives. After considering the various Judgments
on the subject, the Constitution Bench in H.R. Adyanathya and Ors.
(supra) in paragraph nos. 17, 22, 33, 37 and 39 has held as under :-
17. A still later decision of a two-Judge Bench of this Court in T.P.
Srivastava National Tobacco Co. of India Ltd by referring to the
decision in Burmah Shell case has also reiterated the law laid down in
May & Baker case! There the employee concerned was a Section
Salesman of the company whose services were terminated w.e.f. 12-7-
1973. The Court held that in order to come within the definition of
workman under the ID Act the employee had to be employed to do
the work of one of the types referred to in the main body of the
definition. The Court also referred to the Sales Promotion Employees
(Conditions of Service) Act, 1976 and pointed out that the provisions
of that Act were not made applicable to the employees of the company.
The Court further pointed out that the object of the said Act would
show that persons employed for sales promotion normally would not
come within the definition of workman under the ID Act. The Court
accordingly upheld the decision of the Labour Court that the employee
was not a workman within the meaning of the ID Act.
22. In Burmah Shell case the workmen involved were Sales
Engineering Representatives and District Sales Representatives. The
dispute had arisen on 28-10-1967 when the categories of workmen
doing supervisory and technical work stood included in the definition
of workman. The Court found that the work done by the Sales
Engineering Representatives as well as District Sales Representatives
was neither clerical nor supervisory nor technical. An effort was made
on behalf of the workmen to contend that the work of Sales
Engineering Representatives was technical. The Court repelled that
contention by pointing out that the amount of technical work that they
did was ancillary to the chief work of promoting sales and the mere fact
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that they possessed technical knowledge for such purpose, did not
make their work technical. The Court also found that advising and
removing complaints so as to promote sales remained outside the scope
of the technical work. As regards the District Sales Representatives, the
argument was that their work was mainly of clerical nature which was
negatived by the Court by pointing out that the clerical work involved
was incidental to their main work of promoting sales. What is
necessary further to remember in this case is that the Court relied upon
its earlier decision in May & Baker case' and pointed out that in order
to qualify to be a workman under the ID Act, a person concerned had
to satisfy that he fell in any of the four categories of manual, clerical,
supervisory or technical workman.
33. It was contended by Shri Sharma, appearing for the workmen
that the definition of workman under the ID Act includes all
employees except those covered by the four exceptions to the said
definition. His second contention was that in any case, the medical
representatives perform duties of skilled and technical nature and,
therefore, they are workmen within the meaning of the said definition.
We are afraid that both these contentions are 755 untenable in the
light of the position of law discussed above. The first contention was
expressly negatived by two three-Judge Benches in May & Baker and
Burmah Shell cases as has been pointed out in detail above. As regards
the second contention, it really consists of two sub-contentions, viz.,
that the medical representatives are engaged in 'skilled' and 'technical'
work. As regards the word 'skilled', we are of the view that the
connotation of the said word in the context in which it is used, will not
include the work of a sales promotion employee such as the medical
representative in the present case. That word has to be construed
ejusdem generis and thus construed. would mean skilled work whether
manual or non-manual, which is of a genre of the other types of work
mentioned in the definition. The work of promotion of sales of the
product or services of the establishment is distinct from and
independent of the types of work covered by the said definition. Hence
the contention that the medical representatives were employed to do
skilled work within the meaning of the said definition, has to be
rejected. As regards the 'technical' nature of their work, it has been
expressly rejected by this Court in Burmah Shell case. Hence that
contention has also to be rejected.
37. We are afraid that these contentions are not well placed. We
have already pointed out as to why the word ‘skilled’ would not include
the kind of work done by the sales promotion employees. For the very
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same reason, the word ‘operational’ would also not include the said
work. To hold that everyone who is connected with any operation of
manufacturing or sales is a workman would render the categorisation
of the different types of work mentioned in the main part of the
definition meaningless and redundant. The interpretation suggested
would in effect mean that all employees of the establishment other
than those expressly excepted in the definition are workmen within the
meaning of the said definition. The interpretation was specifically
rejected by this Court in May & Baker, WIMCO2, Burmah Shell and
A. Sundarambal cases. Although such an interpretation was given in
S.K. Verma, Delton Cable and Ciba Geigy ’ cases the legislature
impliedly did not accept the said interpretation as is evident from the
fact that instead of amending the definition of ‘workman’ on the lines
interpreted in the said latter cases, the legislature added three specific
categories, viz.. unskilled, skilled and operational. The ‘unskilled’ and
‘skilled’ were divorced from ‘manual’ and were made independent
categories. If the interpretation suggested was accepted by the
legislature, nothing would have been easier than to amend the
definition of ‘workman’ by stating that any person employed in
connection with any operation of the establishment other than those
specifically excepted is a workman. It must further be remembered that
the independent categories of ‘unskilled’, ‘skilled’ and ‘operational’
were added to the main part of the definition after the SPE Act was
placed on the statute book. The reliance placed on the aforesaid
observation in Kasturi and Sons case is, also not correct. In that case
the Court was considering the question whether Section 17 of the
Working Journalists (Conditions of Service) and Miscellaneous
Provisions Act, 1955 empowered the authorities specified by it to
adjudicate upon the merits of the claim made by a newspaper
employee against his employer under any of the provisions of that Act.
Section 17 read as follows:
“17. Recovery of money due from an employer- Where any
money is due to a newspaper employee from an employer under
any of the provisions of this Act, whether by way of
compensation, gratuity or wages, the newspaper employee may,
without prejudice to any other mode of recovery, make an
application to the State Government for the recovery of the
money due to him, and if the State Government or such
authority as the State Government may specify in this behalf is
satisfied that any money is so due, it shall issue a certificate for
that amount to the collector and the collector shall proceed to
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recover that amount in the same manner as an arrear of land
revenue.”
39. We are, therefore, of the view that the contention raised on
behalf of the management in this appeal, viz., since the medical
representatives are not workmen within the meaning of the
Maharashtra Act the complaint made to the Industrial Court under
that Act was not maintainable, has to be accepted. Hence the
complaint filed by the appellant-workmen under the Maharashtra Act
in the present case was not maintainable and hence it was rightly
dismissed by the Industrial Court.
23. By relying on Constitution Bench Judgment in H. R.
Adyanathaya, Mr. Talsania has strenuously contended that employees
engaged in sales promotion activities can never be treated as ‘workman’
under Section 2(s) of the ID Act.
24. Mr. Talsania has also relied on Judgment of the Apex Court
in A. Sundarambal (supra) in which the Apex Court considered the
question as to whether a teacher in the school falls in any of the 4
categories of ‘manual, unskilled, skilled, supervisory, technical or clerical
work’. The Court in paragraph No.9 held as under :-
9. We are concerned in this case primarily with the meaning of the
words ‘skilled or unskilled, manual, supervisory, technical or clerical
work’. If an employee in an industry is not a person engaged in doing
work falling in any of these categories, he would not be a workman at
all even though he is employed in an industry. The question for
consideration before us is whether a teacher in a school falls under any
of the four categories, namely, a person doing any skilled or unskilled
manual work, supervisory work, technical work or clerical work. If he
does not satisfy any one of the above descriptions he would not be a
workman even though he is an employee of an industry as settled by
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this Court in May and Baker (India) Ltd. v. Workmen . In that case this
Court had to consider the question whether a person employed by a
pharmaceutical firm as a representative (for canvassing orders) whose
duties consisted mainly of canvassing orders and any clerical or manual
work that he had to do was only incidental to his main work of
canvassing could be considered as a workman as defined in the Act.
Dealing with the said question Wanchoo, J. (as he then was) observed
thus:
A ‘workman’ was then defined as any person employed in any
industry to do any skilled or unskilled manual or clerical work
for hire or reward. Therefore, doing manual or clerical work was
necessary before a person could be called a workman. This
definition came for consideration before industrial tribunals and
it was consistently held that the designation of the employee
was not of great moment and what was of importance was the
nature of his duties. If the nature of the duties is manual or
clerical, then the person must be held to be a workman. On the
other hand if manual or clerical work is only a small part of the
duties of the person concerned and incidental to his main work
which is not manual or clerical, then such a person would not be
a workman. It has, therefore, to be seen in each case from the
nature of the duties whether a person employed is a workman or
not under the definition of that word as it existed before the
amendment of 1956. The nature of the duties of Mukerjee is
not in dispute in this case and the only question therefore is
whether looking to the nature of the duties it can be said that
Mukerjee was a workman within the meaning of Section 2(s) as
it stood at the relevant time. We find from the nature of the
duties assigned to Mukerjee that his main work was that of
canvassing and any clerical or manual work that he had to do
was incidental to his main work of canvassing and could not
take more than a small fraction of the time for which he had to
work. In the circumstances the tribunal’s conclusion that
Mukerjee was a workman is incorrect. The tribunal seems to
have been led away by the fact that Mukerjee had no
supervisory duties and had to work under the directions of his
superior officers. That, however would not necessarily mean
that Mukerjee’s duties were mainly manual or clerical. From
what the tribunal itself has found it is clear that Mukerjee’s
duties were mainly neither clerical nor manual. Therefore, as
Mukerjee was not a workman, his case would not be covered by
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the Industrial Disputes Act and the tribunal would have no
jurisdiction to order his reinstatement. We therefore set aside
the order of the tribunal directing reinstatement of Mukerjee
along with other reliefs.
25. Thus, the law now appears to be well settled that employees
who are engaged purely on sales promotion activities cannot be treated as
‘workman’ under Section 2(s) of the ID Act. A reference here must be
made to the provisions of SPE Act 1976. The Act has been enacted to
regulate certain conditions of service of Sales Promotion Employees in
certain establishments. A ‘Sales Promotion Employee’ is defined under
Section 2(d) of the SPE Act 1976 as under :-
2. Definitions -
[(d) “sales promotion employee” means any person by whatever
name called (including an apprentice) employed or engaged in
any establishment for hire or reward to do any work relating to
promotion of sale or business, or both, but does not include any
such person -
(i) who, being employed or engaged in a supervisory
capacity, draws wages exceeding sixteen hundred
rupees per mensem; or
(ii) who is employed or engaged mainly in a managerial
or administrative capacity.
26. Thus, any person employed to do work relating to promotion
of sales or business or both but who is not engaged in supervisory
capacity or any ministerial or administrative capacity, becomes a Sales
Promotion Employee. However, the definition of the term sales
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promotion employee makes reference to ‘establishment’. The word
‘establishment’ is defined under Section 2(a) of the SPE Act as under :
2. Definitions -
(a) “establishment” means an establishment engaged in
pharmaceutical industry or in any notified industry;
27. Thus, the definition of term Sales Promotion Employee is
restricted only to an establishment engaged in pharmaceutical industry. It
is common ground that provisions of SPE Act 1976 have not been
notified in respect of any other industries. Thus, as of now only a person
engaged on the job of promotion of sales or business in a pharmaceutical
industry is treated as Sales Promotion Employee under the SPE Act
1976.
28. Mr. Paranjape has relied upon amended definition of term
‘employee’ under Section 3(5) of the MRTU & PULP Act which reads
thus :-
Section 3 : Definitions :
(5) “employee”, in relation to an industry to which the Bombay Act for the
time being applies, means an employee as defined in clause (13) of
section 3 of the Bombay Act, and in any other case, means a workman
as defined in clause (s) of Section 2 of the Central Act, and a sales
promotion employee as defined in clause (d) of section 2 of the Sales
Promotion Employees (Conditions of Service) Act, 1976].
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29. Thus every Sales Promotion Employee as defined under
Section 2(d) of SPE Act 1976 automatically become an ‘employee’ within
the meaning of MRTU & PULP Act and is entitled to file complaint
under Section 28 of that Act before Labour Court or Industrial Court.
However, since the provisions of SPE Act are admittedly not extended /
notified to the establishment of Bata , the salesmen of Bata can neither be
treated as Sales Promotion Employee under SPE Act 1976 nor ‘employee’
on that strength under the MRTU & PULP Act. Therefore it is necessary
for salesmen of Bata to prove that they are workmen on the strength of
nature of duties and responsibilities performed by them.
30. The Constitution Bench in H. R. Adyanthaya (supra) dealt
with cases of medical representatives. Such medical representatives
essentially promote business of industry. On the contrary, duties and
responsibilities of a salesman employed in retail outlet cannot be
restricted only to sales promotion activities of that outlet. It would be
unfair to place salesmen employed in a retail outlet with a medical
representatives engaged purely for the purpose of promoting sales of
products of a company. A salesman engaged in a retail outlet of Bata , in
addition to performing duties of promoting sales, also performs
multifarious functions including actual sale of products. The Labour
Court has considered nature of duties and responsibilities of a salesman
engaged in retail outlets of Bata . It has taken into consideration the
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standing orders and regulations formulated by Bata, under which the
duties of a salesman are notified as under:
A. Duties of Salesman / Salesgirl :-
(a) To receive customers politely and smilingly with greetings and
offer seat.
(b) To sell company’s merchandise and render proper services to
customers by taking off old shoes from customers’ feet and trying
on new ones, examining customer’s old shoes and recommending
repairs, receiving shoes for repairs and issuing of repair slips,
sending shoes for repairing and effecting delivery when received
after proceeding, recommending pedicure treatment, if needed.
(c) To make out proper cash memos for the merchandise sold and
to receive cash from customers and hand it over to cashier, to pack
the merchandise sold and deliver the same along with cash memos
to the customers and to maintain proper evidence for repair of
shoes.
(d) To maintain the stock he is responsible for, in proper order
and cleanliness, to clean show-cases, show-windows, podium and
arrange displays entrusted to him, to mark prices on shoes other
merchandise whenever required, to help maintaining furniture in
good and proper order.
(e) To report Manager on any article falling short of our standard
quality or found missing from shop.
(f) To fill daily his record of individual sale (Daily Mirror) every
day timely, prepare inventories of stock and furniture and to do
such administrative work as may be required of him and also to
prepare weekly or fortnightly statement.
(g) To help the Manager in opening and closing the shop and
fixing posters and other works as may be deemed to be necessary
by the Manager.
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(h) To help the Manager in packing and dispatching of goods to
Sales Office / respective Retail Chain Office or any other shops or
other stations whenever required.
(i) To work on behalf of the Manager as and when required
during his absence from the shop in the ordinary course of the
day to day work and business. To do all other work necessary and
connected with the shop and helping the Manager in all respects
to promote sale of the Company’s merchandise.
(j) To bring to the notice of the Manager or other superior officer
any discrepancy or irregularity found by him in the shop affecting
the welfare and reputation of the same and to give suggestions for
improvement of business and rectification of such defects.
(k) To receive consignment, control quality of stock and arrange
stock on racks and maintain them properly after cleaning.
31. Considering nature of duties assigned to a salesman or
salesgirl, it is clear that in addition to merely promoting sale of products,
they have to perform various other duties such as preparation of cash
memo, packing of mercantile, maintenance of stock, marking of prices,
reporting shortage of stock, preparation of inventories of stock and
furniture, perform administrative work, to help manager in opening and
closing of the shop, to fix posters, to help manager in packing and
dispatching goods, to receive consignments, to control quality of stock, to
set stock on racks, etc. After considering such nature of duties and
responsibilities of salesman employed in retail outlets of Bata , it is
difficult to hold that they do not perform manual, unskilled, skilled or
clerical nature of job or that they are engaged only on the job of
promoting sales.
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32. Therefore, reliance of Mr. Talsania on Constitution Bench
judgment in H. R. Adyanthaya (supra) to draw parallel between medical
representatives and salesman of Bata is clearly misplaced. An employee in
a shop, who is branded as ‘salesman’, who performs multifarious
functions cannot be compared with a medical representative or a sales
promotion employee whose job is essentially restricted to promoting
sales. An employee preparing memos, assisting in opening and shutting
of shops, maintaining stock etc cannot be treated as a one engaged solely
for promoting sale. The Apex Court judgment in A. Sundarambal
(supra) deals with issue of treatment of a teacher as workman and
therefore the same would have no application to present case. Also, it
cannot be held that the Complainants did not perform any manual or
clerical work. They maintained stock, prepared cash memos, packed
mercantile, assisted in opening and shutting of shops, etc.
33. In my view therefore, the Labour Court has correctly
answered issue about status of salesman employed in retail outlets of Bata
as workman. I do not find any patent error committed by the Labour
Court in holding salesmen employed by Bata in its retail outlets as
workmen within the meaning of Section 2(s) of the ID Act. The
Industrial Court has rightly rejected the Revisions filed by the Bata on the
issue of status of salesmen as workman.
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34. Once it is held that salesmen employed by Bata are workman
within the meaning of Section 2(s) of the I D Act, Writ Petition No.2606
of 2018 and 1815 of 2016, which are filed only challenging finding on
preliminary issue, would fail and deserve to be dismissed.
35. In rest of the petitions, the Labour Court, after answering the
preliminary issue of status of salesman as workman, has proceeded to
determine correctness of termination orders issued by Bata. I have
considered findings recorded by Labour and Industrial Courts on merits
of termination orders. Admittedly Bata did not lead any evidence in the
domestic inquiry to prove the alleged misconduct. Bata has taken a stand
that termination is effected on account of misconduct committed by the
employees in not following duties as per roster prepared by Bata in
pursuance of the notification dated 02 February 2007 issued by the
Government of Maharashtra permitting Bata to operate its outlets in
Mumbai, Thane and Pune for 07 days a week during extended hours. It
appears that to prove misconduct, charge-sheets were issued to the
employees. However, it is admitted position that no enquiry was held to
prove misconduct alleged in the charge-sheets. Mr. Talsania has
attempted to canvas that enquiry was not necessary as charge was
admitted. I find this submission to be totally misplaced as there is no
admission on the part of any of complainants either before the employer
or before the Labour Court. The services of the employees are terminated
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without holding any enquiry and without offering any opportunity of
defence. Therefore, no fault can be found in the orders passed by the
Labour Court setting aside their terminations. Mr. Talsania did attempt to
canvass before me that Labour Court ought to have given an opportunity
to Bata to lead evidence to prove misconduct. However, I do not find any
application being filed by Bata seeking liberty to prove misconduct by
adducing evidence before Labour Court. Therefore, I do not find any
merit in the contention that Bata ought to have been given an
opportunity to lead evidence for proof of charge before the Labour Court.
The contention is clearly afterthought and merits instant rejection.
36. I therefore do not find any error in the orders passed by
Labour Court holding the termination of employees to be illegal. The
Industrial Court has rightly rejected the Revisions filed by the Bata
challenging the relief of reinstatement granted by the Labour Court.
37. Having held that the termination of the employees was
illegal, the next issue is about exact relief that could be awarded to the
employees. Labour Court has granted reinstatement with 50%
backwages. Employees are aggrieved by the denial of 100% backwages
and have filed their own Petitions challenging the Orders of the Labour
and Industrial Courts denying 100% backwages. The employees were
terminated from services on various dates. To illustrate, one of the
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Complainants, Mr. Kiran Pawar has been terminated on 09 July 2007.
On account of pendency of these petitions, the Complainants have
neither been reinstated in service nor paid backwages. By now, substantial
period of time has elapsed from the date of termination. The complaints
remained pending before the Labour Court for considerable period of
about 09 years. So far as the Complainant Shri. Kiran Pawar is concerned,
by now period of 16 long years has elapsed. The Complainants are now at
advanced ages. To illustrate, Mr. Kiran Pawar’s age was described as 37
years as on 16 September 2010 and by now he must be about 50 years.
Considering the nature of job of salesman and rapid advancement in the
industry, it is not known whether the Complainants would now be in a
position to discharge duties as salesman in the retail outlets of Bata
effectively. In such circumstance, instead of directing reinstatement and
payment of any backwages, in my view ends of justice would meet if the
Complainants are awarded lump-sum compensation in the peculiar facts
and circumstances of case. Since reinstatement is being denied to the
Complainants, there is no question of entertaining the Petitions filed by
them for grant of 100% backwages.
38. Next question is about quantification of such lump-sum
compensation. The from the pleadings details of appointment,
termination and last drawn wages of all Complainants appear to be as
under:
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5862 OF 2018
Kiran P. Pawar ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 2606 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Mr. Paul Solomon Raja ...Respondent
WITH
WRIT PETITION NO. 1758 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Kiran P. Pawar ...Respondent
WITH
WRIT PETITION NO. 2585 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Devan Jagdishchandra Tolia ...Respondent
WITH
WRIT PETITION NO. 2586 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Sachin Narsayya Nagarkar ...Respondent
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WITH
WRIT PETITION NO. 2587 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Kalyanrao Shankar Shinde ...Respondent
WITH
WRIT PETITION NO. 2588 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Rajendra Chandrashekhar Deshpande ...Respondent
WITH
WRIT PETITION NO. 2589 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Madhukar Prabhakar Ingale ...Respondent
WITH
WRIT PETITION NO. 2590 OF 2018
M/s. Bata India Ltd. ...Petitioner
Versus
Makrand Borkar ...Respondent
WITH
WRIT PETITION NO. 5668 OF 2018
Makarand Borkar ...Petitioner
Versus
Bata India Ltd. ...Respondent
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WITH
WRIT PETITION NO. 8024 OF 2018
Rajendra Chandrashekhar Deshpande ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 8026 OF 2018
Deven Jagdishchandra Tolia ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 6953 OF 2018
Sachin Narsayya Nagarkar ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 5667 OF 2018
Madhukar Prabhakar Ingle ...Petitioner
Versus
Bata India Ltd. ...Respondent
WITH
WRIT PETITION NO. 6948 OF 2018
Kalyanrao Shankar Shinde ...Petitioner
Versus
Bata India Ltd. ...Respondent
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WITH
WRIT PETITION NO. 1815 OF 2016
ALONG WITH
CIVIL APPLICATION NO.1782 OF 2016
M/s. Bata India Ltd ...Petitioner
Versus
Mr. Yellappa Satyappa Patil ...Respondent
__________________________________________________________
Mr. Sudhir Talsania, Sr. Advocate a/w. Mr. Avinash Jalisatgi for
Petitioners in WP/2606/2018, WP/1758/2018, WP/2585/2018,
WP/2586/2018, WP/2589/2018, WP/2587/2018, WP/2588/2018,
WP/2590/2018, WP/1815/2016 a/w. CAW/1782/2016
for Respondent in WP/5668/2018, WP/8024/2018, WP/8026/2018,
WP/6953/2018, WP/5667/2018, WP/16948/2018 and WP/5862/2018.
Mr. Sameer Paranjape, a/w. Mr. Kaustubh Thipsay for Respondents in
WP/1758/2018, WP/2585/2018, WP/2586/2018, WP/2587/2018,
WP/2588/2018, WP/2589/2018 and WP/2590/2018
for Petitioners in WP/5862/2018, WP/8026/2018, WP/6953/2018,
WP/6948/2018, WP/8024/2018, WP/5667/2018 and WP/5668/2018.
Mr. P. R. Arjunwakar, i/b. Ms. Prabha Badadare for Respondents in
WP/1815/2016 and WP/2606/2018.
__________________________________________________________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 20 OCTOBER 2023.
PRONOUNCED ON : 01 NOVEMBER 2023.
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JUDGMENT:
HE HALLENGE
T C
Bata India Ltd. (Bata), a familiar name in Indian households,
manufacturing footwear for Indians for the last several decades decided to
operate its showrooms in Mumbai, Thane and Pune for 7 days in a week
in the year 2007 with extended hours to reduce losses. Bata’s this
decision created a rift between the company and some of its salesmen,
who were not willing to work as per roster prepared by Bata. Refusal to
work as per roster by its salesperson was treated as misconduct by Bata
leading to discontinuation of services of some of its salespersons in the
year 2007. The salesmen approached Labour Court by filing complaints
under provisions of Section 28(1) of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act 1971
(MRTU & PULP Act). Bata questioned the status of such salesman as
‘workman’ under the Industrial Disputes Act 1947 and consequently as
‘employee’ under the MRTU & PULP Act. Labour Court has however
held those salesmen as workmen under the provisions of Industrial
Disputes Act and ‘employees’ under MRTU & PULP Act and held the
complaints to be maintainable. In two sets of complaints, Bata is before
this Court challenging findings on preliminary point of status of salesman
as workman. In rest of complaints, the Labour Court, while holding
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salesman as workman, went into the merits of the termination Orders
and has set aside the same directing payment of 50% backwages. Bata has
challenged the Labour Court’s decision directing reinstatement and 50%
backwages whereas the salesmen, on the other hand, are aggrieved by
non-grant of 100% backwages and accordingly have filed their own
petitions.
2. Thus, Writ Petition Nos. 1815 of 2016 and 2606 of 2018 are
filed by Bata challenging the Order of Labour Court on preliminary issue
holding the complainants as ‘workman’ under Section 2(s) of the
Industrial Disputes Act, 1947 (ID Act) and as ‘employee’ under Section
3(5) of the MRTU & PULP Act. Bata has unsuccessfully tested the
decision of Labour Court before the Industrial Court and its Revision
Applications are dismissed. The Orders of Industrial Court dismissing the
revision applications are also under challenge in Writ Petition No.1815 of
2016 and Writ Petition No. 2606 of 2018.
3. In respect of 7 Complainants, whose complaints are allowed
by Labour Court by setting aside the Order of termination, Bata has filed
Writ Petition Nos. 2606/2018, 1758/2018, 2585/ 2018, 2586/2018,
2589/2018, 87/2018, 2588/2018 and 2590/ 2018. In those petitions,
Bata has also challenged Orders of the Industrial Court by which its
Revision Applications are rejected upholding the Orders passed by the
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Labour Court.
4. The Complainants are also aggrieved by the decisions of the
Labour Court to the extent of denial of 50% backwages and accordingly
they have filed Writ Petition Nos. 5668 of 2018, 8024 of 2018, 8026 of
2018, 6953 of 2018, 5766 of 2018, 1489 of 2018 and 5829 of 2018. In
their petitions, the Complainants have also challenged Orders of the
Industrial Court rejecting their Revision Petitions and upholding the
Orders passed by the Labour Court.
ACTS
F
5. Having summarized the exact challenge involved in the
group of present petitions, it is necessary to narrate few basic facts. Bata is
a company incorporated and registered under the provisions of
Companies Act 1956 having its registered office at Kolkata. It also has
retail shop offices at Mumbai, Thane and Pune. It is engaged in business
of manufacturing and sale of shoes and footwear and other allied
accessories. It had several manufacturing factories, branch offices and at
about 1200 retail shops all over the country at the time of filing of the
petitions.
6. In showrooms of Bata, there are various categories of
employees such as shop manager, salesman, shop assistant, cashier and
repairman, etc. The employees involved in the present petitions were
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employed on the position of ‘salesman’ in various showrooms of Bata.
Bata has given detailed description of duties and responsibilities of a
salesmen deployed in its retail outlets. Bata sought for permission from
Government of Maharashtra to keep its shops open for 07 days in a week
and during extended work hours with a view to improve its sales.
Accordingly, by Notification dated 02 February 2007, the State
Government granted permission to Bata to keep its retail outlets open for
07 days in a week and during extended working hours subject to various
conditions. One of the conditions was to give a weekly holiday to each
employee and that the shops must be shut by 9:30 pm. Bata accordingly
issued notices to the employees employed in the showrooms in
November 2007 giving them intimation about the permission granted by
the State Government. Bata prepared a duty chart with a view to man its
showrooms during the extended hours for keeping them open for 07
days in a week. It appears that some of the salesmen in the showrooms
were not willing to accept the sudden change in the working hours. They
were also not happy with the idea of not having a designated day as a
weekly holiday. Some of the salesmen therefore did not accept the change
of duty roster. Bata therefore issued chargesheets to those salesmen who
refused to work as per the duty roster. For the charge of failure to report
to work as per the assigned duty roster, the salesmen were held guilty and
their services were terminated by payment of one months’ salary.
However, they were offered reinstatement subject to condition of
submitting a good conduct bond (undertaking) within a period of 72
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hours from receipt of termination letter.
7. The terminated salesmen approached Labour Courts by filing
Complaints under Section 28 of the MRTU & PULP Act. The
Complaints were resisted by Bata raising a preliminary objection of
maintainability on the ground that a salesman employed in its
showrooms is not a ‘workman’ under Section 2(s) of the ID Act.
Termination Orders were also justified on merits. In two Complaints, the
Labour Court proceeded to answer preliminary point of maintainability
against Bata holding that the Complainants are workmen. Bata
unsuccessfully challenged Labour Court’s decision in revision before the
Industrial Court and upon dismissal of its revisions, has filed Writ
Petition Nos. 1815 of 2016 and 2606 of 2018. In rest of the cases, the
Labour Court not only held the Complainants to be workmen, but
proceeded to set aside the termination orders by directing reinstatement
with 50% backwages. In respect of Complainants whose complaints are
finally decided, two sets of Revision Petitions were filed before Industrial
Court both by Bata as well as by the Complainants. While Bata was
aggrieved by the entire Orders of the Labour Court, the Complainants on
the other hand challenged Orders of the Labour Court to the limited
extent of denial of 50% backwages. The Industrial Court however upheld
the decisions of the Labour Court by dismissing Revision Applications
filed by Bata as well as of Complainants. Accordingly, the present
petitions are filed both by Bata as well as employees.
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UBMISSIONS
S
8. Mr. Talsania, the learned senior advocate would appear on
behalf of Bata and submit that Industrial Court has erred in holding the
salesmen employed by Bata as ‘workmen’ under the ID Act and
consequently ‘employees’ under the MRTU & PULP Act. That sales
promotion employees constitute a totally different class of persons, who
are not covered by definition of the term ‘workman’ under ID Act. That
since the sales promotion employees are not covered by definition of the
term ‘workman’, the legislature has enacted separate enactment by name
Sales Promotion Employees (Conditions of Service) Act 1976 (SPE Act).
That the definition of the term ‘employee’ under the MRTU & PULP
Act came to be amended in the year 1999 by including sales promotion
employees under SPE Act in the definition of the term ‘employee’. That
if sales promotion employees were to be treated as workmen, there was no
necessity of including them separately in the definition of the term
‘employee’. Mr. Talsania would further submit that the provisions of SPE
Act 1976 are at the moment restricted only to the sales promotion
employees engaged in the establishment of pharmaceutical industry as no
other establishment has been included in the SPE Act 1976. He would
therefore submit that the sales promotion employees working in other
establishments than pharmaceutical industry are not covered by the
definition of the term ‘employee’ under the MRTU & PULP Act. He
would therefore submit that the Labour Court did not have jurisdiction
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to entertain the complaints filed by salesmen engaged in retail outlets of
Bata.
9. Mr. Talsania would take me through the evidence recorded in
some of the complaints to demonstrate that there is an admission of
receipt of commission by the complainants. That the duties and
responsibilities attached to a salesman are such that they do not perform
any manual, unskilled, skilled or technical job. That the work of a
salesman engaged in retail outlets of Bata is essentially to promote sale of
the products to the customers. That therefore the complainants otherwise
cannot be treated as workmen under the provisions of the ID Act.
10. Mr. Talsania would rely upon Judgment of the Apex Court in
H. R. Adyanthaya & Ors. Vs. Sandoz (India) Ltd. & Ors ., (1994) 5 SCC
737 in support of his contention that the issue with regard to inclusion of
sales promotion employees in the definition of ‘workman’ has finally
been decided by the Apex Court and that therefore the complaints filed
by salesmen under the provisions of MRTU & PULP Act cannot be
entertained. He would also place reliance on the Judgment of the Apex
Court in Miss A. Sundarambal Vs. Government of Goa, Daman and Diu
& Ors. , (1988) 4 SCC 42 in support of his contention that any employee
who does not satisfy any of the 4 categories of manual, unskilled, skilled,
supervisory, technical or clerical work cannot be treated as a ‘workman’
under the provisions of the ID Act.
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11. So far as the merits of the decisions of Labour and Industrial
Courts are concerned, Mr. Talsania would submit that the Complainants
committed misconduct, on account of which they were served with
memoranda of charge sheet. That the misconduct in not performing
duties as per roster is proved and that therefore production of any
evidence was not necessary. Alternatively, Mr. Talsania would submit that
Bata could have led evidence before the Labour Court, if it was found
that the proof of misconduct was not established. He would submit that
Bata had given clear offer to the employees to report back to duties even
after termination by filing undertaking. That despite such a clear offer,
none of the terminated employees came back for work, which is
indicative of their lack of interest to work with Bata. That in such
circumstances, Industrial Court has erred in setting aside termination and
directing reinstatement.
12. Mr. Paranjape, the learned counsel would appear on behalf of
some of the employees. He would submit that since sales promotion
employees are now covered by definition of the term ‘employee’ under
MRTU & PULP Act, the issue of maintainability of complaints filed by
the Complainants has been rendered academic. He would further submit
that the Labour Court has come to a specific conclusion that the
complainants were not performing work of sales promotion activities, but
merely doing work of salesman. That the Labour Court has appreciated
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evidence with regard to nature of duties and has arrived at a finding that
primary duties of the complainants were manual, unskilled, skilled and
clerical. That these findings have been confirmed by the Industrial Court
and therefore this Court would be loathe in interfering with the same in
exercise of its jurisdiction under Article 227 of the Constitution of India.
He would place reliance on the Judgment of Apex Court in Pepsico India
Holding Private Limited Vs. Krishna Kant Pandey, (2015) 4 SCC 270.
Mr. Paranjape would further submit that Bata has failed to establish or
demonstrate that nature of duties of complainants was that of sales
promotion employees.
13. So far as the merits of the decision of Labour Court are
concerned, Mr. Paranjape would submit that Notification dated 02
February 2007 required consent of the concerned employees before
placing them on duty on a day of weekly holiday or other holiday. That
such consent was never obtained by Bata before effecting any changes in
the duty hours of the employees. Therefore, the very basis of issuance of
charge-sheet for non-compliance with the terms of Notification dated 02
February 2007 was unfounded. That before changing any service
conditions, it was mandatory to issue notices as required under Section
9A of the ID Act and mere issuance of Notification dated 02 February
2007 by the State of Maharashtra would not have any overriding effect
over provisions of Section 9A of the Central Act. That the Standing
Orders, under which charge-sheet was issued, were admittedly not
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certified standing orders as has been held by the Labour Court. That
there was never any admission of guilt on the part of complainants at any
stage and therefore termination without holding any enquiry was ex-facie
illegal. That no attempt was made by Bata to prove misconduct before the
Labour Court and Bata never sought to produce evidence to establish
misconduct. That therefore Labour Court has rightly set aside
termination of the employees.
14. So far as the issue of backwages is concerned, Mr. Paranjape
would submit that Labour Court has erred in granting only 50%
backwages when the termination was found to be illegal. He would rely
upon Judgment of the Apex Court in Deepali Gundu Surwase Vs. Kranti
Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors , (2013) 10 SCC 324 in
support of his contention that employees are entitled to 100% backwages
with consequential benefits and continuity in service consequent to
reinstatement.
15. Mr. Arjunwadkar, the learned counsel appearing for
employees in Writ Petition Nos.1815 of 2016 and 2060 of 2018 would
adopt submissions of Mr. Paranjape. Additionally, he would rely upon
Judgment of the Gujarat High Court in Bata India Ltd. A Company,
Calcutta Versus B. H. Nathani , 1077 (0) AIJ-GJ 223985 in support of his
contention that in respect of very same employer, it is held that salesmen
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employed by Bata in its retail outlets are ‘workman’ within the definition
of Section 2(s) the ID Act.
16. Rival contentions of the parties now fall for my
consideration.
17. The moot issue involved in the present petition is whether
complainants, who are employed as salesmen in various retail outlets of
Bata , could be treated as workmen under provisions of ID Act and
consequently ‘employee’ under the provisions of the MRTU & PULP
Act. Answering this issue would determine jurisdiction of the Labour
Court to entertain the complaints filed by the employees. It is the
contention of Bata that salesmen employed by it at its retail outlets are
not covered by definition of the term ‘workman’ under the Industrial
Disputes Act. The term ‘workman’ is defined under section 2(s) of the
Industrial Dispute Act as under :-
2(s) : “workman” means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or reward,
whether the terms of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to an industrial
dispute, includes any such person who has been dismissed, discharged
or retrenched in connection with, r as a consequence of, that dispute,
or whose dismissal, discharge or retrenchment has led to that dispute,
but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the
Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of
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1957); or
(ii) who is employed in the police service or as an officer or
other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative
capacity, or
(iv) who, being employed in a supervisory capacity, draws wages
exceeding [ten thousand rupees] per mensem or exercise, either
by the nature of the duties attached to the office or by reason of
the powers vested in him, functions mainly of a managerial
nature.
18. Thus, every person employed in any industry doing any
manual, unskilled, skilled, technical, operational, clerical or supervisory
work is treated as a ‘workman’. It is the case of Bata that salesmen
employed at its retail outlets did not perform manual, unskilled, skilled,
technical, operational or clerical work. According to Bata , the
predominant duties of the salesmen are as under :-
i) Promotion of sales of Company’s products in the retail
outlets;
ii) Selling footware to the customers who visit the shop using
his salesmanship skill;
iii) Canvassing sales of the Company’s products;
iv) To attend to customers who come to the shop to buy
footwear by using skill of salemanship, which essentially consists
of greeting and inviting the customers into the shop, asking the
customer his need or requirement qua various footwears,
physically demonstrating by removing the old footwear and
fitting him with the new footwear, explaining to the customer the
advantages and usefulness of the particular footwear.
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v) Answering customer’s queries with regard to the footwear
that he wished to purchase and any specific need the customer
may have with regard to use of footwear;
vi) To persuade the customer to look at other comparable
footwear and also explain to him the various varieties of footwear
available which the customer can use during different times of the
day and for different occasions and ensure that the customer is
persuaded to buy the footwear.
vii) As a salesman he was required to promote the sales by
visiting to the institutions, schools, companies, melas and other
places.
19. It is thus Bata’s case that the main role of a salesman involves
promotion of its business as a salesman essentially canvasses for sale of
Bata’s products to its customers and also indulges in actual selling of the
products in the retail outlets. According to Bata , the job of a salesman
involves following acts, once a customer approaches him/her in a retail
outlet :-
(i) Acknowledge with a smile within the first ten seconds of
entering the stores;
(ii) Treat with courtesy respect and understanding;
(iii) Treat as a unique individual;
(iv) Deal as professional sales person who can solve any issue;
(v) Provide a quality product or service;
(vi) Provide value for his money;
(vii) tell the truth; and
(viii) Apologise, take quick action and provide a remedy if things
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are done wrong or do not measure up to standard.
20. It is contended by Bata that the a salesman need to follow
‘Bata Five Steps’ as under :-
Step 1: Greeting - smiling and acknowledging them to make
them feel comfortable.
Step 2: Ask two Questions - The first question must be
general to encourage conversation and the second one must be
business related to determine the customer's needs. Both should
be open-ended questions.
Step 3: Show Three Articles - consists of showing every
customer three articles including one that matches his needs, one
that matches his needs plus has added benefits at a higher price
and an appropriate bestseller or slow mover as an alternative or as
an add-on. When showing the article, the salesman should:
(i) Seat the customer;
(ii) Offer to measure his feet;
(iii) Agree on the customer's needs;
(iv) Review each feature and benefit of the article to establish
value;
(v) Encourage the customer to try on the product to create a sense
of ownership;
(vi) Check the fit - Bata 7 Point Fit Test;
(vii) Assume that at least one article is sold;
(viii) Respect the merchandise and be organized.
Step 4: Add-on and Close - Adding-on is the best service a
salesperson can provide. It must be applied consistently to every
single customer in order to increase average sale and turnover of
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the Company. The salesperson should close the sale by listening
for buying signals from the customer and overcoming objections
by repeating and reinforcing the benefits of the products.
Step 5: Thank and Invite - The salesperson should thank
and invite back both the purchasers and also the non-purchasers
who may be the future customer.
21. Thus on the basis of above nature of duties and
responsibilities, Bata claims that a salesman can never be a ‘workman’
under Section 2(s) of the Industrial Disputes Act.
22. Strong reliance is placed by Mr. Talsania on the Constitution
Bench Judgment of the Apex Court in H. R. Adyanthaya & Ors. (supra).
The issue before the Supreme Court was whether a medical
representative is workman under Section 2(s) of the ID Act. The Apex
Court referred to its earlier Judgment in May & Baker (India) Ltd. V.
Workman, (1961) 2 LLJ 94 : AIR 1967 SC 678 in which the Apex Court
has held that a medical representative of a company who was discharged
from service was not a ‘workman’ under ID Act. The Apex Court has also
referred to its decision in Western India Match Co. Ltd. Vs. Workmen ,
AIR 1964 SC 472 in which the issue was whether workmen employed by
sales office of a company are entitled to payment of bonus on par with
those employed in the factory and considering the nature of work done
by those salesmen which involved 75% clerical work, the Apex Court
held them to be workmen under the ID Act. The Apex Court also
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considered its Judgment in T. P. Srivastava Vs. National Tobacco Co. of
India Ltd., (1992) 1 SCC 281 in which a Section Salesman of the
company was not held to be workman’ under the ID Act. The Apex
Court also considered its judgment in Burmah Shell Case AIR 1971 SC
922 which involved cases of Sales Engineering Representatives and
District Sales Representatives. After considering the various Judgments
on the subject, the Constitution Bench in H.R. Adyanathya and Ors.
(supra) in paragraph nos. 17, 22, 33, 37 and 39 has held as under :-
17. A still later decision of a two-Judge Bench of this Court in T.P.
Srivastava National Tobacco Co. of India Ltd by referring to the
decision in Burmah Shell case has also reiterated the law laid down in
May & Baker case! There the employee concerned was a Section
Salesman of the company whose services were terminated w.e.f. 12-7-
1973. The Court held that in order to come within the definition of
workman under the ID Act the employee had to be employed to do
the work of one of the types referred to in the main body of the
definition. The Court also referred to the Sales Promotion Employees
(Conditions of Service) Act, 1976 and pointed out that the provisions
of that Act were not made applicable to the employees of the company.
The Court further pointed out that the object of the said Act would
show that persons employed for sales promotion normally would not
come within the definition of workman under the ID Act. The Court
accordingly upheld the decision of the Labour Court that the employee
was not a workman within the meaning of the ID Act.
22. In Burmah Shell case the workmen involved were Sales
Engineering Representatives and District Sales Representatives. The
dispute had arisen on 28-10-1967 when the categories of workmen
doing supervisory and technical work stood included in the definition
of workman. The Court found that the work done by the Sales
Engineering Representatives as well as District Sales Representatives
was neither clerical nor supervisory nor technical. An effort was made
on behalf of the workmen to contend that the work of Sales
Engineering Representatives was technical. The Court repelled that
contention by pointing out that the amount of technical work that they
did was ancillary to the chief work of promoting sales and the mere fact
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that they possessed technical knowledge for such purpose, did not
make their work technical. The Court also found that advising and
removing complaints so as to promote sales remained outside the scope
of the technical work. As regards the District Sales Representatives, the
argument was that their work was mainly of clerical nature which was
negatived by the Court by pointing out that the clerical work involved
was incidental to their main work of promoting sales. What is
necessary further to remember in this case is that the Court relied upon
its earlier decision in May & Baker case' and pointed out that in order
to qualify to be a workman under the ID Act, a person concerned had
to satisfy that he fell in any of the four categories of manual, clerical,
supervisory or technical workman.
33. It was contended by Shri Sharma, appearing for the workmen
that the definition of workman under the ID Act includes all
employees except those covered by the four exceptions to the said
definition. His second contention was that in any case, the medical
representatives perform duties of skilled and technical nature and,
therefore, they are workmen within the meaning of the said definition.
We are afraid that both these contentions are 755 untenable in the
light of the position of law discussed above. The first contention was
expressly negatived by two three-Judge Benches in May & Baker and
Burmah Shell cases as has been pointed out in detail above. As regards
the second contention, it really consists of two sub-contentions, viz.,
that the medical representatives are engaged in 'skilled' and 'technical'
work. As regards the word 'skilled', we are of the view that the
connotation of the said word in the context in which it is used, will not
include the work of a sales promotion employee such as the medical
representative in the present case. That word has to be construed
ejusdem generis and thus construed. would mean skilled work whether
manual or non-manual, which is of a genre of the other types of work
mentioned in the definition. The work of promotion of sales of the
product or services of the establishment is distinct from and
independent of the types of work covered by the said definition. Hence
the contention that the medical representatives were employed to do
skilled work within the meaning of the said definition, has to be
rejected. As regards the 'technical' nature of their work, it has been
expressly rejected by this Court in Burmah Shell case. Hence that
contention has also to be rejected.
37. We are afraid that these contentions are not well placed. We
have already pointed out as to why the word ‘skilled’ would not include
the kind of work done by the sales promotion employees. For the very
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same reason, the word ‘operational’ would also not include the said
work. To hold that everyone who is connected with any operation of
manufacturing or sales is a workman would render the categorisation
of the different types of work mentioned in the main part of the
definition meaningless and redundant. The interpretation suggested
would in effect mean that all employees of the establishment other
than those expressly excepted in the definition are workmen within the
meaning of the said definition. The interpretation was specifically
rejected by this Court in May & Baker, WIMCO2, Burmah Shell and
A. Sundarambal cases. Although such an interpretation was given in
S.K. Verma, Delton Cable and Ciba Geigy ’ cases the legislature
impliedly did not accept the said interpretation as is evident from the
fact that instead of amending the definition of ‘workman’ on the lines
interpreted in the said latter cases, the legislature added three specific
categories, viz.. unskilled, skilled and operational. The ‘unskilled’ and
‘skilled’ were divorced from ‘manual’ and were made independent
categories. If the interpretation suggested was accepted by the
legislature, nothing would have been easier than to amend the
definition of ‘workman’ by stating that any person employed in
connection with any operation of the establishment other than those
specifically excepted is a workman. It must further be remembered that
the independent categories of ‘unskilled’, ‘skilled’ and ‘operational’
were added to the main part of the definition after the SPE Act was
placed on the statute book. The reliance placed on the aforesaid
observation in Kasturi and Sons case is, also not correct. In that case
the Court was considering the question whether Section 17 of the
Working Journalists (Conditions of Service) and Miscellaneous
Provisions Act, 1955 empowered the authorities specified by it to
adjudicate upon the merits of the claim made by a newspaper
employee against his employer under any of the provisions of that Act.
Section 17 read as follows:
“17. Recovery of money due from an employer- Where any
money is due to a newspaper employee from an employer under
any of the provisions of this Act, whether by way of
compensation, gratuity or wages, the newspaper employee may,
without prejudice to any other mode of recovery, make an
application to the State Government for the recovery of the
money due to him, and if the State Government or such
authority as the State Government may specify in this behalf is
satisfied that any money is so due, it shall issue a certificate for
that amount to the collector and the collector shall proceed to
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recover that amount in the same manner as an arrear of land
revenue.”
39. We are, therefore, of the view that the contention raised on
behalf of the management in this appeal, viz., since the medical
representatives are not workmen within the meaning of the
Maharashtra Act the complaint made to the Industrial Court under
that Act was not maintainable, has to be accepted. Hence the
complaint filed by the appellant-workmen under the Maharashtra Act
in the present case was not maintainable and hence it was rightly
dismissed by the Industrial Court.
23. By relying on Constitution Bench Judgment in H. R.
Adyanathaya, Mr. Talsania has strenuously contended that employees
engaged in sales promotion activities can never be treated as ‘workman’
under Section 2(s) of the ID Act.
24. Mr. Talsania has also relied on Judgment of the Apex Court
in A. Sundarambal (supra) in which the Apex Court considered the
question as to whether a teacher in the school falls in any of the 4
categories of ‘manual, unskilled, skilled, supervisory, technical or clerical
work’. The Court in paragraph No.9 held as under :-
9. We are concerned in this case primarily with the meaning of the
words ‘skilled or unskilled, manual, supervisory, technical or clerical
work’. If an employee in an industry is not a person engaged in doing
work falling in any of these categories, he would not be a workman at
all even though he is employed in an industry. The question for
consideration before us is whether a teacher in a school falls under any
of the four categories, namely, a person doing any skilled or unskilled
manual work, supervisory work, technical work or clerical work. If he
does not satisfy any one of the above descriptions he would not be a
workman even though he is an employee of an industry as settled by
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this Court in May and Baker (India) Ltd. v. Workmen . In that case this
Court had to consider the question whether a person employed by a
pharmaceutical firm as a representative (for canvassing orders) whose
duties consisted mainly of canvassing orders and any clerical or manual
work that he had to do was only incidental to his main work of
canvassing could be considered as a workman as defined in the Act.
Dealing with the said question Wanchoo, J. (as he then was) observed
thus:
A ‘workman’ was then defined as any person employed in any
industry to do any skilled or unskilled manual or clerical work
for hire or reward. Therefore, doing manual or clerical work was
necessary before a person could be called a workman. This
definition came for consideration before industrial tribunals and
it was consistently held that the designation of the employee
was not of great moment and what was of importance was the
nature of his duties. If the nature of the duties is manual or
clerical, then the person must be held to be a workman. On the
other hand if manual or clerical work is only a small part of the
duties of the person concerned and incidental to his main work
which is not manual or clerical, then such a person would not be
a workman. It has, therefore, to be seen in each case from the
nature of the duties whether a person employed is a workman or
not under the definition of that word as it existed before the
amendment of 1956. The nature of the duties of Mukerjee is
not in dispute in this case and the only question therefore is
whether looking to the nature of the duties it can be said that
Mukerjee was a workman within the meaning of Section 2(s) as
it stood at the relevant time. We find from the nature of the
duties assigned to Mukerjee that his main work was that of
canvassing and any clerical or manual work that he had to do
was incidental to his main work of canvassing and could not
take more than a small fraction of the time for which he had to
work. In the circumstances the tribunal’s conclusion that
Mukerjee was a workman is incorrect. The tribunal seems to
have been led away by the fact that Mukerjee had no
supervisory duties and had to work under the directions of his
superior officers. That, however would not necessarily mean
that Mukerjee’s duties were mainly manual or clerical. From
what the tribunal itself has found it is clear that Mukerjee’s
duties were mainly neither clerical nor manual. Therefore, as
Mukerjee was not a workman, his case would not be covered by
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the Industrial Disputes Act and the tribunal would have no
jurisdiction to order his reinstatement. We therefore set aside
the order of the tribunal directing reinstatement of Mukerjee
along with other reliefs.
25. Thus, the law now appears to be well settled that employees
who are engaged purely on sales promotion activities cannot be treated as
‘workman’ under Section 2(s) of the ID Act. A reference here must be
made to the provisions of SPE Act 1976. The Act has been enacted to
regulate certain conditions of service of Sales Promotion Employees in
certain establishments. A ‘Sales Promotion Employee’ is defined under
Section 2(d) of the SPE Act 1976 as under :-
2. Definitions -
[(d) “sales promotion employee” means any person by whatever
name called (including an apprentice) employed or engaged in
any establishment for hire or reward to do any work relating to
promotion of sale or business, or both, but does not include any
such person -
(i) who, being employed or engaged in a supervisory
capacity, draws wages exceeding sixteen hundred
rupees per mensem; or
(ii) who is employed or engaged mainly in a managerial
or administrative capacity.
26. Thus, any person employed to do work relating to promotion
of sales or business or both but who is not engaged in supervisory
capacity or any ministerial or administrative capacity, becomes a Sales
Promotion Employee. However, the definition of the term sales
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promotion employee makes reference to ‘establishment’. The word
‘establishment’ is defined under Section 2(a) of the SPE Act as under :
2. Definitions -
(a) “establishment” means an establishment engaged in
pharmaceutical industry or in any notified industry;
27. Thus, the definition of term Sales Promotion Employee is
restricted only to an establishment engaged in pharmaceutical industry. It
is common ground that provisions of SPE Act 1976 have not been
notified in respect of any other industries. Thus, as of now only a person
engaged on the job of promotion of sales or business in a pharmaceutical
industry is treated as Sales Promotion Employee under the SPE Act
1976.
28. Mr. Paranjape has relied upon amended definition of term
‘employee’ under Section 3(5) of the MRTU & PULP Act which reads
thus :-
Section 3 : Definitions :
(5) “employee”, in relation to an industry to which the Bombay Act for the
time being applies, means an employee as defined in clause (13) of
section 3 of the Bombay Act, and in any other case, means a workman
as defined in clause (s) of Section 2 of the Central Act, and a sales
promotion employee as defined in clause (d) of section 2 of the Sales
Promotion Employees (Conditions of Service) Act, 1976].
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29. Thus every Sales Promotion Employee as defined under
Section 2(d) of SPE Act 1976 automatically become an ‘employee’ within
the meaning of MRTU & PULP Act and is entitled to file complaint
under Section 28 of that Act before Labour Court or Industrial Court.
However, since the provisions of SPE Act are admittedly not extended /
notified to the establishment of Bata , the salesmen of Bata can neither be
treated as Sales Promotion Employee under SPE Act 1976 nor ‘employee’
on that strength under the MRTU & PULP Act. Therefore it is necessary
for salesmen of Bata to prove that they are workmen on the strength of
nature of duties and responsibilities performed by them.
30. The Constitution Bench in H. R. Adyanthaya (supra) dealt
with cases of medical representatives. Such medical representatives
essentially promote business of industry. On the contrary, duties and
responsibilities of a salesman employed in retail outlet cannot be
restricted only to sales promotion activities of that outlet. It would be
unfair to place salesmen employed in a retail outlet with a medical
representatives engaged purely for the purpose of promoting sales of
products of a company. A salesman engaged in a retail outlet of Bata , in
addition to performing duties of promoting sales, also performs
multifarious functions including actual sale of products. The Labour
Court has considered nature of duties and responsibilities of a salesman
engaged in retail outlets of Bata . It has taken into consideration the
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standing orders and regulations formulated by Bata, under which the
duties of a salesman are notified as under:
A. Duties of Salesman / Salesgirl :-
(a) To receive customers politely and smilingly with greetings and
offer seat.
(b) To sell company’s merchandise and render proper services to
customers by taking off old shoes from customers’ feet and trying
on new ones, examining customer’s old shoes and recommending
repairs, receiving shoes for repairs and issuing of repair slips,
sending shoes for repairing and effecting delivery when received
after proceeding, recommending pedicure treatment, if needed.
(c) To make out proper cash memos for the merchandise sold and
to receive cash from customers and hand it over to cashier, to pack
the merchandise sold and deliver the same along with cash memos
to the customers and to maintain proper evidence for repair of
shoes.
(d) To maintain the stock he is responsible for, in proper order
and cleanliness, to clean show-cases, show-windows, podium and
arrange displays entrusted to him, to mark prices on shoes other
merchandise whenever required, to help maintaining furniture in
good and proper order.
(e) To report Manager on any article falling short of our standard
quality or found missing from shop.
(f) To fill daily his record of individual sale (Daily Mirror) every
day timely, prepare inventories of stock and furniture and to do
such administrative work as may be required of him and also to
prepare weekly or fortnightly statement.
(g) To help the Manager in opening and closing the shop and
fixing posters and other works as may be deemed to be necessary
by the Manager.
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(h) To help the Manager in packing and dispatching of goods to
Sales Office / respective Retail Chain Office or any other shops or
other stations whenever required.
(i) To work on behalf of the Manager as and when required
during his absence from the shop in the ordinary course of the
day to day work and business. To do all other work necessary and
connected with the shop and helping the Manager in all respects
to promote sale of the Company’s merchandise.
(j) To bring to the notice of the Manager or other superior officer
any discrepancy or irregularity found by him in the shop affecting
the welfare and reputation of the same and to give suggestions for
improvement of business and rectification of such defects.
(k) To receive consignment, control quality of stock and arrange
stock on racks and maintain them properly after cleaning.
31. Considering nature of duties assigned to a salesman or
salesgirl, it is clear that in addition to merely promoting sale of products,
they have to perform various other duties such as preparation of cash
memo, packing of mercantile, maintenance of stock, marking of prices,
reporting shortage of stock, preparation of inventories of stock and
furniture, perform administrative work, to help manager in opening and
closing of the shop, to fix posters, to help manager in packing and
dispatching goods, to receive consignments, to control quality of stock, to
set stock on racks, etc. After considering such nature of duties and
responsibilities of salesman employed in retail outlets of Bata , it is
difficult to hold that they do not perform manual, unskilled, skilled or
clerical nature of job or that they are engaged only on the job of
promoting sales.
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32. Therefore, reliance of Mr. Talsania on Constitution Bench
judgment in H. R. Adyanthaya (supra) to draw parallel between medical
representatives and salesman of Bata is clearly misplaced. An employee in
a shop, who is branded as ‘salesman’, who performs multifarious
functions cannot be compared with a medical representative or a sales
promotion employee whose job is essentially restricted to promoting
sales. An employee preparing memos, assisting in opening and shutting
of shops, maintaining stock etc cannot be treated as a one engaged solely
for promoting sale. The Apex Court judgment in A. Sundarambal
(supra) deals with issue of treatment of a teacher as workman and
therefore the same would have no application to present case. Also, it
cannot be held that the Complainants did not perform any manual or
clerical work. They maintained stock, prepared cash memos, packed
mercantile, assisted in opening and shutting of shops, etc.
33. In my view therefore, the Labour Court has correctly
answered issue about status of salesman employed in retail outlets of Bata
as workman. I do not find any patent error committed by the Labour
Court in holding salesmen employed by Bata in its retail outlets as
workmen within the meaning of Section 2(s) of the ID Act. The
Industrial Court has rightly rejected the Revisions filed by the Bata on the
issue of status of salesmen as workman.
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34. Once it is held that salesmen employed by Bata are workman
within the meaning of Section 2(s) of the I D Act, Writ Petition No.2606
of 2018 and 1815 of 2016, which are filed only challenging finding on
preliminary issue, would fail and deserve to be dismissed.
35. In rest of the petitions, the Labour Court, after answering the
preliminary issue of status of salesman as workman, has proceeded to
determine correctness of termination orders issued by Bata. I have
considered findings recorded by Labour and Industrial Courts on merits
of termination orders. Admittedly Bata did not lead any evidence in the
domestic inquiry to prove the alleged misconduct. Bata has taken a stand
that termination is effected on account of misconduct committed by the
employees in not following duties as per roster prepared by Bata in
pursuance of the notification dated 02 February 2007 issued by the
Government of Maharashtra permitting Bata to operate its outlets in
Mumbai, Thane and Pune for 07 days a week during extended hours. It
appears that to prove misconduct, charge-sheets were issued to the
employees. However, it is admitted position that no enquiry was held to
prove misconduct alleged in the charge-sheets. Mr. Talsania has
attempted to canvas that enquiry was not necessary as charge was
admitted. I find this submission to be totally misplaced as there is no
admission on the part of any of complainants either before the employer
or before the Labour Court. The services of the employees are terminated
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without holding any enquiry and without offering any opportunity of
defence. Therefore, no fault can be found in the orders passed by the
Labour Court setting aside their terminations. Mr. Talsania did attempt to
canvass before me that Labour Court ought to have given an opportunity
to Bata to lead evidence to prove misconduct. However, I do not find any
application being filed by Bata seeking liberty to prove misconduct by
adducing evidence before Labour Court. Therefore, I do not find any
merit in the contention that Bata ought to have been given an
opportunity to lead evidence for proof of charge before the Labour Court.
The contention is clearly afterthought and merits instant rejection.
36. I therefore do not find any error in the orders passed by
Labour Court holding the termination of employees to be illegal. The
Industrial Court has rightly rejected the Revisions filed by the Bata
challenging the relief of reinstatement granted by the Labour Court.
37. Having held that the termination of the employees was
illegal, the next issue is about exact relief that could be awarded to the
employees. Labour Court has granted reinstatement with 50%
backwages. Employees are aggrieved by the denial of 100% backwages
and have filed their own Petitions challenging the Orders of the Labour
and Industrial Courts denying 100% backwages. The employees were
terminated from services on various dates. To illustrate, one of the
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Complainants, Mr. Kiran Pawar has been terminated on 09 July 2007.
On account of pendency of these petitions, the Complainants have
neither been reinstated in service nor paid backwages. By now, substantial
period of time has elapsed from the date of termination. The complaints
remained pending before the Labour Court for considerable period of
about 09 years. So far as the Complainant Shri. Kiran Pawar is concerned,
by now period of 16 long years has elapsed. The Complainants are now at
advanced ages. To illustrate, Mr. Kiran Pawar’s age was described as 37
years as on 16 September 2010 and by now he must be about 50 years.
Considering the nature of job of salesman and rapid advancement in the
industry, it is not known whether the Complainants would now be in a
position to discharge duties as salesman in the retail outlets of Bata
effectively. In such circumstance, instead of directing reinstatement and
payment of any backwages, in my view ends of justice would meet if the
Complainants are awarded lump-sum compensation in the peculiar facts
and circumstances of case. Since reinstatement is being denied to the
Complainants, there is no question of entertaining the Petitions filed by
them for grant of 100% backwages.
38. Next question is about quantification of such lump-sum
compensation. The from the pleadings details of appointment,
termination and last drawn wages of all Complainants appear to be as
under:
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| Sr<br>No | Writ Petition<br>No. | Name of the employee | Date of<br>Appointment | Termination<br>Date | Last drawn<br>wage |
|---|---|---|---|---|---|
| 1. | 5667/2018 | Madhukar<br>Prabhakar Ingle | 28.07.1988 | 05.04.2007 | 13,600/- |
| 2. | 5668/2018 | Makarand Borkar | 10.02.1994 | 05.04.2007 | 20,800/- |
| 3. | 6948/2018 | Kalyanrao Shankar<br>Shinde | 01.09.2001 | 05.04.2007 | 13,300/- |
| 4. | 6953/2018 | Sachin Narsayya<br>Nagakar | 29.10.1998 | 05.04.2007 | 15,000/- |
| 5. | 8026/2018 | Deven<br>Jagdishchandra<br>Tolia | 28.07.1988 | 05.04.2007 | 17,900/- |
| 6. | 8024/2018 | Rajendra<br>Chandrashekar<br>Despande | 24.02.1994 | 05.04.2007 | 22,750/- |
| 7. | 5862/2018 | Kiran R. Pawar | 24.02.1994 | 05.04.2007 | 15,800/- |
Thus different Complainants were drawing different amount of wages.
Some of the employees have admitted in their evidence that they have
done odd jobs and have earned some remuneration for their survival. To
illustrate, Mr. Kiran Pawar admitted that he was earning Rs.2000/- to
3000/- per month by doing petty jobs. Considering the fact that
reinstatement is not being granted to them thereby denying an
opportunity to the employee to work in future period and to earn wages
and also considering the inflationary wage rise during the interregnum, in
my view, ends of justice would meet if Bata is directed to pay lump-sum
compensation of approximately 75% of backwages during last 16 years
(determined on the basis of last wages drawn by them) to each of the
Complainants in lieu of reinstatement and backwages. The amount of
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such lump-sum compensation payable to each Complainant would be as
under:
| Sr<br>No | Writ Petition<br>No. | Name of the employee | Last drawn<br>wage | 75%<br>backwages for<br>16 years | Amount of<br>Compensation<br>Payable |
|---|---|---|---|---|---|
| 1. | 5667/2018 | Madhukar<br>Prabhakar Ingle | 13,600/- | 19,58,400 | 19,50,000 |
| 2. | 5668/2018 | Makarand Borkar | 20,800/- | 29,95,200 | 30,00,000 |
| 3. | 6948/2018 | Kalyanrao Shankar<br>Shinde | 13,300/- | 19,15,000 | 19,50,000 |
| 4. | 6953/2018 | Sachin Narsayya<br>Nagakar | 15,000/- | 21,60,000 | 22,00,000 |
| 5. | 8026/2018 | Deven<br>Jagdishchandra<br>Tolia | 17,900/- | 25,77,600 | 25,50,000 |
| 6. | 8024/2018 | Rajendra<br>Chandrashekar<br>Despande | 22,750/- | 32,76,000 | 33,00,000 |
| 7. | 5862/2018 | Kiran R. Pawar | 15,800/- | 22,75,200 | 23,00,000 |
39. Accordingly, I proceed to dispose of the petitions by
modifying the Orders passed by the Labour Court and Industrial Court
in terms of following Order:
(i) Bata shall pay lump-sum compensation to each of the Complainants in
lieu of reinstatement and backwages as under:
| Sr<br>No | Writ Petition<br>No. | Name of the Complainant | Amount of<br>Compensation<br>Payable (in Rs.) |
|---|---|---|---|
| 1. | 5667/2018 | Madhukar Prabhakar Ingle | 19,50,000/- |
| 2. | 5668/2018 | Makarand Borkar | 30,00,000/- |
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| 3. | 6948/2018 | Kalyanrao Shankar Shinde | 19,50,000/- |
|---|---|---|---|
| 4. | 6953/2018 | Sachin Narsayya Nagakar | 22,00,000/- |
| 5. | 8026/2018 | Deven Jagdishchandra Tolia | 25,50,000/- |
| 6. | 8024/2018 | Rajendra Chandrashekar Despande | 33,00,000/- |
| 7. | 5862/2018 | Kiran R. Pawar | 23,00,000/- |
(ii) The amount of compensation indicated in clause (i) above shall be
paid within a period of 4 months from today, failing which Bata shall be
liable to pay interest @ 8% per annum on amount of compensation from
today till the date of actual payment.
(iii) With the above directions, Writ Petitions are disposed of. There
shall be no orders as to costs.
(iv) Writ Petition Nos.1815 of 2016 and 2606 of 2018, which are filed
only challenging finding on preliminary issue, are dismissed.
(v) With the disposal of Writ Petitions nothing survives in the Civil
Application and it is also disposed of.
SANDEEP V. MARNE, J.
Digitally signed
by KISHOR
VISHNU
KAMBLE
Date:
2023.11.01
20:45:08 +0530
KISHOR
VISHNU
KAMBLE
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