Rallis India Limited vs Additional Commissioner for Workmens Compensation, Madras and Another

Venugopal, J.—The Writ Petitioner is the appellant before this Court. It is a public limited company. It appointed the second respondent as

a salesman in the Pharmaceutical Division by its letter dated 21-8-1959. The second respondent was then promoted as its Medical Representative

with effect from 1-7-1964 for Nellore, Chittoor and Katappa, three Districts in Andhra Pradesh with Headquarters at Nellore. The second

respondent was charged with irregularities in respect of alleged low sales in the first three months of the financial year 1972-73. He was also

charged for being deliberately absent from duty on 24th and 25th December, 1972. He submitted his explanation regarding all these two charges

and the order of termination came to be passed on 10-1-1973. The second respondent then filed an appeal under S. 41(2) of the Tamil Nadu

Shops & Establishments Act XXXVI of 1947, (hereinafter referred to as (''the Act'') challenging the order of termination on the ground that it was

passed without conducting any domestic enquiry and giving him an opportunity to defend himself. The appeal was resisted by the Company by

raising the following two preliminary objections :

(i) The second respondent the employees was not employed in any shop or commercial establishment within the territorial jurisdiction of the first

respondent herein, and

(ii) The second respondent was employed only as a canvasser and hence the provisions of the Act are not applicable.

Both the preliminary objections were overruled whereupon the company filed a write petition reiterating the very same objections. The learned

single Judge of this Court who heard the writ petition held :

(a) The promotion order of the second respondent was issued by the Regional Office at Madras and the second respondent was receiving his

travelling allowance etc., only from the Regional Office and therefore, this confers territorial jurisdiction for the first respondent to adjudicate the

dispute; and

(b) Canvassing was only incidental to the work of the second respondent as a Sales Representative and that would not mean that he was

canvassor to whom the Act is not applicable.

Against the order of the learned single Judge, the company has preferred this present writ appeal.

Relying on the definition of ""person employed"" (S. 2(12) of the Act) and ""commercial establishment"" (S. 2(3) of the Act), learned counsel for the

appellant contended that the existence of a premises is not the sine qua non of a commercial establishment and the dominant characteristic of a

commercial establishment is its activity in trade, business, or a profession and a defined premises or fixed place is not the criterion for such activity

and since such commercial activity was carried on by the second respondent in Nellore in Andhra Pradesh where he was principally employed in

connection with the business of the establishment, the Andhra Pradesh Shops and Establishments Act, 1966, would apply to his case and the first

respondent has no jurisdiction to adjudicate the issue. In support of this contention the learned counsel relied on the two decisions reported in

Laxmi Vishnu Mills Ltd., Bombay v. M. R. Balakrishnan and others 52 F.J.R. 75 and Bayer (India Ltd. and another v. appellate Authority under

A. P. Shops & Establishments Act and others 57 F.J.R. 309.

Section 41(2) of the Act provides that the person employed shall have a right to appeal to such authority and within such time as may be

prescribed either on the ground that there was no reasonable cause for dispensing with his service or on the ground that he had not been guilty of

misconduct as held by the employer. The term ""person employed"" is defined under S. 2(12) of the Act. A reading of these two provisions would

indicate that the right of appeal is provided under S. 41(2) of the Act to the ""person employed"" and the ground on which the right of appeal is given

is dispensation of service without reasonable cause, or he is not guilty of misconduct. The Head Office of the appellant is at Bombay and the

Regional Office is at Madras. There is no office in Nellore where the second respondent was working as a Medical Representative. Pursuant to

the discussion with the Regional Manager, the second respondent was promoted as a Medical Representative with effect from 1-7-1964. The

evidence shows that the monthly working progress and monthly reports were submitted by the second respondent only to the Regional Office of

the appellant at madras. The second respondent in his cross-examination has stated that his salary was paid at Madras, that he used to discuss with

the Regional Manager about the promotion of sales and that they used to give him advice. The Regional Office at Madras was thus exercising

administration and supervision over the work of the second respondent. The evidence of the second respondent further shows that the order of

termination was passed on the recommendation of the Regional Manager at Madras and it was served at Madras. The company''s properties and

records in the possession of the respondent were directed to be handed over to the Regional Office at Madras. The Regional Office at Madras is

exercising control and supervision over the work of the second respondent and the order of termination was served in Madras would show that at

least a part of cause of action arose in madras and that is enough to confer jurisdiction on the first respondent to adjudicate the claim.

In the two cases relied on by the learned counsel for the appellant and referred to supra, dispute was raised at the place where the order of

termination was served. Since the order of termination in the present case was served in the Regional Office at Madras, the first respondent gets

clothed with the territorial jurisdiction to adjudicate the dispute and the claim of the second respondent. So long as there is no conferment of sole

and exclusive territorial jurisdiction on any single authority and the territorial jurisdiction of the first respondent to deal with the case is not excluded

either expressly or by necessary implication, the conclusion is inescapable that the first respondent has the territorial jurisdiction to deal with the

claim or the dispute claimed by the second respondent. We have, therefore, no hesitation in holding that the first respondent has territorial

jurisdiction to deal with the appeal filed by the second respondent under S. 41(2) of the Act.

The learned counsel for the appellant contended that the second respondent as a Medical Representative of the company meets the doctors,

canvasses for the company''s products, submits quotations to the customers, finalises the business and earns commissions on the sales effected and

he is thus only a canvasser squarely falling under the Exemption Clause of S. 4(1)(b) and the Act is not applicable to him. In support of this

contention, the learned counsel relied on a decision of this Court reported in Avery India Limited Vs. Additional Commissioner for Workmen''s

Compensation and Another, . The learned counsel for the second respondent relied on a decision of this Court reported in United Wire Ropes

Limited Vs. Additional Commissioner for Workmen''s Compensation and Another, , conteding that ""persons employed as canvassers"" occurring in

S. 4(1)(b) of the Act shows persons whose exclusive work is canvassing and it will not include employees like the second respondent whose work

may partly involve canvassing. In the decision relied on by the learned counsel for the second respondent, this Court had held that the salesman or

sales officer part of whose work is canvassing cannot be said to be merely a canvasser and where canvassing is only part of his duties, such an

employee cannot be termed as a canvasser falling within the ambit of S. 4(1)(b) of the Act.

In the appointment letter dated 19th February, 1965 giving details of the work and responsibility of the second respondent it is stated as follows

:

You are expected to maintain the strictest secrecy regarding the affairs of the company and will not divulge directly or indirectly any information of

a confidential nature. You will serve the company honestly and faithfully and will endeavour your utmost to promote the best interests of the

company. You are not permitted at any time in the discharge of your duties to decry the competitors or their products, but will confine your

discussions with the medical profession, institutions or the trade to the merits of our products. You are not permitted to undertake any part-time

work or commercial business on your own account or act as an agent for others without the previous sanction of the company"".

In the evidence of the second respondent, it is seen that monthly reports regarding the work done has to be sent to the Regional Office and he has

to also periodically discuss with the Regional Manager and get his advices regarding promotion of sales. Cash incentives were also given to the

second respondent whenever he had exhibited his talent in securing bulk orders and exceeding the targets fixed by the company. The second

respondent is thus committed to a programme of work with certain guidelines given in the shape of advise during discussions and his work is

oriented to achieve progress and prosperity of the company. Having regard to the duties, obligations and responsibilities of the second respondent

as set out in the appointment order and also as seen from the evidence, it is obvious that the second respondent was not a mere canvasser. As a

Medical Representative, part of the work done by him may include canvassing. On that account alone, he cannot be said to be a canvasser falling

within the ambit of S. 4(1)(b) of the Act. The contention of the learned counsel for the appellant that the second respondent is a canvasser and the

Act is not applicable to him, has to be rejected.

In the result, the order of the learned single Judge is confirmed and the appeal is dismissed with costs.