Arun Tandon,J.
1. Petitioner employee before this Court seeks quashing of the order of the Labour Court dated 10.02.2010 passed in Adjudication Case No. 27 of 2005. The Labour Court after holding that the workman had wrongly been dismissed from service under order dated 20.07.1995 has directed reinstatement but without back wages. It is against the last part of the Award that the present writ petition has been filed.
2. This Court while considering the writ petition made a pointed query to the Petitioner as to how a reference under the U.P. Industrial Disputes Act could be maintained on a reference made by the State of U.P. in exercise of powers u/s 4K of the Industrial Disputes Act.
3. The counsel for the Petitioner submitted that the reference order as issued on 06.06.2005 by the State Government u/s 4K of the U.P. Industrial Disputes Act was corrected vide order dated 14.11.2005 where-under it was provided that the reference is being made u/s 10(1)(d) of the Industrial Disputes Act (Central Act) and the earlier notification dated 06.06.2005 may treated as corrected accordingly. He submits that in view of the Constitution Bench judgment of the Hon''ble Supreme Court in the case of "H. R. Adyanthaya and Ors. v. Sandoz (India) Ltd. And others, 1994(5) Supreme Court Cases, 737" as also in view of the amendment made in Sales Promotion Employees (Conditions of Service) Act, 1976 hereinafter referred to as S.P.E. Act vide amending Act No. 48 of 1986 all sales promotion employees irrespective of their wages are covered by the Industrial Disputes Act.
4. It is, therefore, contended that in the facts of the case the reference was maintainable and could be adjudicated upon by the Labour Court. So far as the merits of the order refusing the back wages is concerned, it is submitted that the Petitioner had contested his termination affected on 20.7.1995 by raising a dispute in the year 1995 at the first instance. This reference was rejected by the Labour Court on technical ground on 5.3.2001. He made another application for a fresh reference being made u/s 10(1) of Industrial Disputes Act (Central Act). The reference was, however, made u/s 4K of U.P. Industrial Disputes Act being Adjudication Case No. 10 of 2002. This reference was also answered against the workmen on technical ground on 5.9.2003 by the Labour Court. The Petitioner thereafter made a third application for conciliation in the year 2003. The State Government under order dated 6.6.2005 again made a reference u/s 4K of the State Act. After great persuasion on 14.11.2005 the workmen could succeed in getting the reference made u/s 10(1)(d) of the Industrial Disputes Act which was registered as Case No. 27 of 2005 which has given rise to the award part whereof is being challenged by means of the present writ petition. He, therefore, submits that in the facts of the case there was no fault of the Petitioner as he had contested the matter all though out.
5. Heard learned Counsel for the Petitioner and examined the record of the present writ petition.
6. The Constitution Bench judgment of Hon''ble Supreme Court in the case of H. R. Adyanthaya (supra) has considered the effect of amending Act No. 48 of 1986, whereby the amended definition Clause 2(d) of S.P.E. Act came into force on 6.5.1987. In paragraph 28 of the judgment it has been held as follows:
28. The SPE Act was amended by the Amending Act 48 of 1986 which came into force w.e.f. 6-5-1987. By the said amendment, among others, the definition of sales promotion employee was expanded so as to include all sales promotion employees without a ceiling on their wages except those employed or engaged in a supervisory capacity drawing wages exceeding Rs. 1600 per mensem and those employed or engaged mainly in managerial or administrative capacity.
7. For the purposes of this petition the Court may clarify that the controversy before the Hon''ble Supreme Court was in respect of disputes which had arisen prior to the said amendment.
8. From a simple reading of the amending Act and paragraph 28 of the judgment of the Constitution Bench of Hon''ble Supreme Court in the case of H. R. Adyanthaya (supra), it would be apparently clear that the amendment made in the definition Clause 2(d) of Act No. 48 of 1986 excluded certain categories of sales promotion employees namely (a) employees who were employed in supervisory capacity and were drawing wages of more than Rs. 1600/-per mensem or (b) who was engaged/employed mainly in managerial or administrative capacity. For ready reference Section 2(d) is quoted below:
2. Definitions-
(d) "sales promotion employees" 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 sales 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.
Explanation.--For the purposes of this clause, the wages per mensem of a person shall be deemed to be the amount equal to thirty times his total wages (whether or not including, or comprising only of, commission) in respect of the continuous period of his service falling within the period of twelve months immediately preceding the date with reference to which the calculation is to be made, divided by the number of days comprising that period of service;)
9. It is, therefore, clear that the provision makes distinction between, a sales promoter in supervisory capacity and the person in managerial or administrative capacity. The supervisory sale promoters drawing salary of Rs. 1600/-per mensem or above stand excluded from the S.P.E. Act while employees engaged in managerial or administrative capacity stands excluded as a whole irrespective of salary drawn by them.
10. It will not out of place to mention here that the Hon''ble Supreme Court in the case of
11. It is, therefore, clear that except for the Sales Representative who satisfy the requirements of the conditions mentioned in the S.P.E. Act are covered within the Industrial Disputes Act, qua the other sales promotion representatives who are excluded u/s 2(d) of the S.P.E. Act as amended by Act No. 48 of 1986, the Industrial Disputes Act will have no application.
12. It was, therefore, obligatory open to the Petitioner as well as for the Labour Court to have recorded a categorical finding as to whether the Petitioner was covered by the definition clause of sales promotion employees u/s 2(d) or excluded therefrom having regard to duties and responsibility performed by him and the total salary drawn which aspect of the matter has completely be ignored. It was obligatory open to the workmen concerned to have been led cogent evidence for establishing that he was covered within the definition of sales promotion employees as contained u/s 2(d) and his case was not excluded under Clause 1 & 2 of the said Section 2(d).
13. The Court may leave the issue at this stage only, in as much as the direction of the Labour Court, in the facts of the case, that the workmen was not entitled to anything towards the back wages is legally justified for the reasons noticed below.
14. From the records of the present petition, it is an admitted position that the services of the Petitioner were brought to an end on 20.7.1995. Although it is alleged that the Petitioner raised a dispute in the year 1995 itself and the said dispute was answered against the workmen by the Labour Court on technical grounds on 5.3.2001 yet neither the award of the Labour Court nor the reference order has been brought on record before this Court. This Court further finds despite the first reference have been answered against the workmen, he made another conciliation application in the year 2002 and again the dispute was referred to the Labour Court u/s 4K of U.P. Industrial Disputes Act. The Petitioner made an application before the Labour Court for the dispute being returned unanswered as it was bad on technical ground. Accordingly, the Adjudication Case No. 10 of 2002 was returned unanswered vide order dated 5.2.2003. The Petitioner thereafter made another conciliation application in the year 2003 (the third application) and again the reference was made initially u/s K-4 which was corrected only under notification dated 14.11.2005. The dispute was registered as Adjudication Case No. 27 of 2005 and has been answered under the award dated 10.2.2010.
15. It would thus be seen that since 1995 till the date of impugned award the employers had absolutely no role to play in the matter and for the reasons best known to the Petitioner when the first reference itself was made in the year 1995 which according to the Petitioner was bad because of wrong mention of the section, why it was not objected too. He waited for the reference to be answered and kept on filing the second and third conciliation applications. It is, therefore, clear that it was for the Petitioner to have objected the reference at the first instance made in the year 1995.
16. In the said circumstances, this Court finds that the Labour Court is justified in directing that the workmen was not entitled to back wages for the period he was out of employment. The period extends to merely 10 years, and absolutely no fault can be attributed to the management for the said inordinate delay in a valid dispute being raised. There is no good ground to interfere with the award.
The writ petition is dismissed.
