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Judgment
B.N. Srikrishna, J.—The writ petition under Articles 226 and 227 of the Constitution of India challenges an Award of the Eleventh Labour Court at Bombay dated 26th October, 1988, made in Reference (IDA) No. 965 of 1985 under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act").
The petitioner joined as a Clerk on 13th April, 1950 in the erstwhile Hind Cycles Ltd., the predecessor of the First Respondent Corporation. In 1953, he was promoted as a Stenographer, as by that time he had learnt sufficient Stenography. In 1955, he was attached as a Stenographer to the Chief Executive of the Company. He was posted at Madras for some time and also at Bombay. In year 1969, he was transferred to Bangalore where he was given exclusively the work of Sales Representative on a salary of Rs. 1,055/- per month. His service was terminated with effect from 1st May, 1982 on the ground that he was no longer required. The petitioner raised an industrial dispute for reinstatement in service with continuity and back wages. The dispute came to be referred to the Eleventh Labour Court at Bombay vide Reference (IDA) No. 965 of 1985. A preliminary objection was raised as to the jurisdiction of the Labour Court by the First Respondent-Employer. The first respondent contended that, at the material time when his service was terminated, the petitioner was a Sales Representative drawing a salary in excess of Rs. 1,000/- and was, therefore, not a "workman" within the meaning of Section 2(s) of the Act and, consequently, that the alleged dispute was not an "industrial dispute" within the meaning of section 2(k) of the Act, and that the Labour Court had no jurisdiction to entertain the dispute. The Labour Court raised the following issues for trial and answered them as under :-
"1) Whether Shri B.S. Kurup is a workman within the definition of S. 2(s) of the Industrial Disputes Act ?
2) Whether the services of Shri Kurup were illegally terminated by the Company on 1.5.1982 ?
3) Whether the workman Shri B.S. Kurup is entitled for reinstatement with continuity of service and full back wages ?
4) What order ?
My findings on the above issues are as under :
1) He is not a Workman.
2) Does not survive.
3) Does not survive.
4) As per order below.
Finding that the Petitioner was not a "workman" the Labour Court declined to exercise jurisdiction in the matter, declined to answer the other issues, rejected the Reference and denied all relief to the Petitioner. Hence, this Petition.
Dr. Kulkarni, learned counsel appearing for the Petitioner, contended that the evidence on record clearly showed that for a long period of his service, the petitioner had been employed as a Clerk, thereafter as a Stenographer and, even during the material time when his service was terminated, he was doing only some miscellaneous work with regard to sales, though the nature of his employment remained as before. He criticized the finding of the Labour Court that the Petitioner was a Sales Representative and urged that I should take a different view of the matter. Having gone through the impugned Award with the assistance of the learned Counsel, I find it difficult to accept the contention. Voluminous material was placed on record to show that, at any rate after the Petitioner was transferred to Bangalore, the duties he was performing were only of a Sales Representative. After analyzing all the documentary evidence on record, the Labour Court has recorded clear findings that the duties of the Petitioner were (a) to collect orders from shopkeepers as well as dealers of articles in the State of Karnataka (b) to place orders with the Company and to seek that the goods were supplied to the parties, (c) to collect payment on behalf of the Company, if not paid and (d) to place the grievances of the deals with the First Respondent Company. The Labour Court, in terms held that the main functions of the Petitioner were those of selling of bicycles of the First Respondent and that his main duty was to work as a Sales Representative. It is not possible to accept the contention of the learned counsel that these findings are perverse or that they fly in the face of the material. On the other hand, I am of the view that these findings are very much justified by the documents on record, which brought out clearly the nature of work entrusted to the Petitioner during the last three years and odd of his career. The material, without doubt, showed that the work the Petitioner was doing was that of canvassing for sales and orders of the products of the First Respondent-Company.
Dr. Kulkarni then contained that, even if it is assumed that the Petitioner was a Sales Representative on the date of the termination of his service, the finding of the Labour Court that the Sale Representative was not a "workman" is erroneous and needs to be interfered with. He pointed out that, by Act 46 of 1982 with effect from 21st August, 1984, Clause (iv) had been added in the definition of the expression "wages" contained in Section 2(rr) of the Act and any commission payable on the promotion of sales or business, or both is inclusively held to be "wages" as defined in Section 2(rr) of the Act. He also referred to the fact that the definition of "industry" stands chanted by the amendment Act 46 of 1982 and that any activity relating to promotion of sales or business or both carried on by an establishment would amount to "industry" within the meaning of amended Section 2(j) of the Act. He contends that, though the amended definition of Section 2(j) (by Act 46 of 1982) has not been brought into effect, the legislative intendment was very clear. He also placed reliance on sub-section (2) of Section 6 of the Sales Promotion Act. 1976 in which there was an oblique reference to the provisions of the Industrial Disputes Act which was also simultaneously deleted by Act 46 of 1982, by which the changes in Section 2(g) and Section 2(rr) of the Industrial Disputes Act were brought about. These facts, take in conjunction, submits learned counsel, unmistakably point out the anxiety of Parliament to ensure that even employees employed on the sales promotion activities were given a fair deal by coverage under the Act. Dr. Kulkarni, therefore, contended that, notwithstanding the fact that the Petitioner was held to be working as a Sales Representative as on the date of his termination, he was "workman" within the meaning of Section 2(s) of the Act.
It is not possible to accede to the contention so strenuously canvassed by the learned Advocate. These very provisions of law and changes brought about in the law pointed out by the learned Advocate, were very much noticed by the Supreme Court in a very recent judgment in H.R. Adyanthaya etc. etc. v. Sandoz (India) Ltd. etc. etc. 1994 II CLR 552. The Supreme Court set at rest the controversy, which was created with regard to the definition of "workman" in Section 2(s) of the Act. The Supreme Court, after taking an exhaustive survey of all its extant judgments from Management of May and Baker (India) Ltd. Vs. Their Workmen, to T.P.Srivastava v. National Tobacco Co. of India Ltd. & Ors. 1991 II CLR 739, crystalised the legal position as under :-
"We thus have three-Judge Bench decisions which have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories viz., manual, clerical, supervisory or technical and two two-judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three three-judge Bench decisions which have without referring to the decision in May & Baker, WIMCO and Burmah Shell cases (supra) have taken the other view which was expressly negatived, viz, if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the I.D. Act. These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the I.D. Act must be employed to do the work of any of the categories., viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions of the definition. We reiterate the said interpretation.
What is further necessary to remember is that in none of the aforesaid decisions which we have discussed above, the word "operational" or the words "skilled" and "unskilled" independently of "manual" fell for consideration as the amendment under which they were introduced came into operation for the first time w.e.f. 21st August, 1984 and the dispute involved in the aforesaid decisions were of the prior dates.
In the face of this clear re-statement of the law by the Supreme Court, I am afraid that even the persuasive arguments of Dr. Kulkarni must surely fail. As the law stands at the moment, no person can be considered to be a "workman", unless he is employed to do work of any of the categories, manual, unskilled, skilled, technical, operational, clerical or supervisory, which are enumerated in the main body of the definition of Section 2(g) of the Act. That the petitioner was not employed to do any such work is a finding of fact borne out by the evidence on record. The Labour Court''s view that the Petitioner was not a "workman" within the meaning of Section 2(s) of the Act is, therefore quite correct and needs to be upheld.
Dr. Kulkarni sought to distinguish the judgment in Adyanthaya (supra) by contending that the exact legal implication of the amendments carried out simultaneously in Section 2(rr) of the Act, Section 6(2) of Sales Promotion Employees (Conditions of Service) Act, 1976 and Section 2(g) of the Act have not been considered by the Supreme Court and, therefore, the decision in Adyanthaya (supra) must be construed to be applicable only to a case where the employees were covered by the provisions of the Sales Promotion Employees (Conditions of Service) Act, 1976 (hereinafter referred to as "SPE Act"). I am afraid, it is not permissible to read the judgment of the Supreme Court in the manner suggested by learned Counsel. In the judgment in Adyanthaya (supra), all provisions highlighted by Dr. Kulkarni were specifically adverted to at the very beginning of the judgment and an exhaustive survey of the law was undertaken by the Supreme Court at the end of which the Supreme Court has set forth its conclusions as to the state of the law. It is not, therefore, possible to accept the contention that the judgment must be confined to the peculiar facts of the case before the Supreme Court viz., an establishment covered by the provisions of the SPE Act.
Dr. Kulkarni, then contended that Section 11A of the SPE Act contains a non-obstante clause whereby its provisions override the provisions of any other law and this was also indicative of the legislative intention to protect unprotected workmen. This may be so. If the SPE Act applies to an establishment or to workman, then, it may be possible to give full effect of the overriding affect contained in Section 11A of the SPE Act. It is not in doubt that the First Respondent-establishment was never covered by the SPE Act. It that be so, it would not be possible to place any reliance on the overriding provision contained in Section 11A of the SPE Act.
Dr. Kulkarni, then, contended, that even if I were to agree with the reasoning of the Labour Court holding that the petitioner was a Sales Representative and, therefore, not a "workman" within the meaning of the Act, I should consider the injustice done to the Petitioner, and, therefore, grant some relief. Dr. Kulkarni pointed out that the workman has, by now, crossed the age of superannuation, and therefore, monetary relief would be the most appropriated in his case. He cited the judgment of the Supreme Court in T.P. Srivastava v. National Tobacco Co. of India Ltd. & Ors. 1991 II CLR 739 as an index and pointed out that, even in this judgment, though the Supreme Court ultimately upheld the award of the Tribunal that the employee was not a ''workman'' as he was a sales promotion employee, yet, the Supreme Court though it fit, considering the long period spent by him in conducting the proceedings, to direct the employer to pay an amount equivalent to three years'' salary at the last drawn rate, in addition to whatever was paid during the pendency of the appeal under the orders of the Court, though without treating as a precedent. He also drew my attention to the fact that, even in Adhyanthay''s case (supra), though the question to law was answered against the workman and it was held that the proceedings were not tenable, the Supreme Court had directed payment of Rs. 1,00,000/- as ex gratia payment to each employees. He urged that I should follow the lead given by the Supreme Court in the matter and direct payment of such similar or better compensation. Though I sympathise with the plight of the petitioner, I am afraid that it would not be possible for me to accede to the contention of the learned Advocate to follow the lead given by the Supreme Court, for the simple reason that this Court is not vested with the extra-ordinary powers vested in the Supreme Court under Article 142(1) of the Constitution of India. While I do fell that the Petitioner''s is a harsh case, as the Petitioner who was for most of his career a workman, for no fault of his, ceased to be a workman during the last three years at the end of which he was abruptly removed from service under circumstances which are reminiscent of "hire and fibre". After a protracted legal battle he has drawn a blank, because the Court tells him that he is not a "workman" within the meaning of the Act to the date on which he was jettisoned from employment. The harshness and injustice of the case is self-evident; bound as I am to do justice within the bound of law, I am afraid that it would not be possible for me to make any direction for payment of compensation to the petitioner by taking a clue from the thinking of the Supreme Court in the two judgments cited before me. I would only make a recommendation to the First Respondent Corporation, which has been established by the Act of Parliament to do social justice to the workman, that the First Respondent should introspect and consider payment of an appropriate amount of compensation to the petitioner to alleviate the misery to which he has been subjected on account of the peculiar legal situation in which he find himself. Apart from this recommendation, it is not within my province to give any further relief as I find no ground on which I can interfere with the impugned Award of the Labour Court.
In the result, Writ Petition is dismissed, Rule dismissed. No order as to costs.