PARIHAR, J. - (1.) APART from challenging the interim award dated 21. 3. 1986 passed by the Labour Court, Kota, holding the respondent No. 1 (the concerned employee) as `workman' under the provisions of the Industrial Disputes Act, 1947 (hereafter to be referred to as `the Act of 1947') as also the Reference made by the Government of Rajasthan as maintainable and the departmental enquiry held against the concerned employee to be fair and proper as also the order dated 18. 3. 1991 passed by the Labour Court, rejecting the review application, the petitioner has also challenged the final award dated 30. 3. 1992, by which, the concerned employee has been ordered to be reinstated with all consequential benefits including back wages.
(2.) THE brief facts of the case are that the concerned employee was appointed as Medical Representative vide order dated 2. 2. 1976. A charge sheet was served on the concerned employee on 23. 4. 1982. After holding departmental enquiry, the services of the concerned employee were terminated vide order dated 19. 2. 1982. On a dispute been raised by the concerned employee, the same was referred to the Labour Court, Kota for adjudication by the State Government vide Notification dated 15. 11. 1983. THE reference was made in the following terms:-      " Whether the contention of the employer, M/s. JB Modi & Bros, Bombay, that Shri MK Chopra, Sales Representative, is not a workman covered by section 2 (S) of the Industrial Disputes Act, 1947? Whether under the service conditions of the said establishment a dispute can be raised in Bombay only, is tenable? If the above said contention of the employer is not tenable, whether the termination of Shri MK Chopra, Sales Representative, is justified and legal? If not, what relief he is entitled to ?" The Labour Court, while considering the submissions of representatives of both the sides, held the concerned employee as a `workman' as defined under section 2 (S) of the Act of 1947. The reference made by the State Government was also held to be within the jurisdiction. The departmental enquiry was also held to be fair and proper in the interim award dated 21. 3. 1986. However, the dispute was finally to be decided in regard to legality of the termination and discretion under section 11-A of the Act of 1947. After passing of the above award, it appears that a review application had been filed on behalf of the petitioner seeking review of the interim award dated 21. 3. 1986 to the extent the concerned employee had been held to be a workman. The review application was dismissed by the Labour Court vide order dated 18. 3. 1991 on the ground that no powers of review were available to the Labour Court under the Act. Subsequently, after considering the evidence and material on record, while holding the charges not proved against the concerned employee, the award dated 30. 3. 1992 was passed by the Labour Court, holding the termination of service of the concerned employee as not legal and justified and ordering reinstatement with all consequential benefits including back wages. This court, vide interim order dated 9. 10. 1992, had stayed the operation of the impugned award subject to the petitioner depositing 50% of the back wages. The above amount of 50% back wages could be withdrawn by the concerned employee on furnishing a surety as also undertaking to the extent of refunding the amount in case of writ petition been allowed. The petitioner was further directing to comply with the provisions of Section 17-B of the Act of 1947. It has been submitted that after depositing 50% back wages, the same has already been withdrawn by the concerned employee. The petitioner has also paid the salary last drawn by the concerned employee under the provisions of section 17-B of the Act of 1947 as ordered by this court. Learned counsel for the petitioner, while relying on the judgment of the Supreme Court in the case of Management of M/s May and Baker vs. Their Workmen, reported in AIR 1967 SC 678, as also the provisions of the Sales Promotion Employees (Conditions of Service) Act, 1976 (hereinafter to be referred to as `the Act of 1976'), has submitted that the concerned employee, in no case, could have been treated as a workman as defined under section 2 (S) of the Act of 1947. It has also been submitted that the Labour Court failed to appreciate the plea of `loss of confidence' while granting relief to the concerned employee. Mr. Man Singh, learned counsel appearing on behalf of the concerned employee, on the other hand, has submitted that looking to the nature of work and duties performed by the concerned employee he would certainly come within the parameters of section 2 (S) of the Act of 1947. It has also been submitted that as per amendment made in the Act of 1976 in the year 1986, the concerned employee should have been treated as Sales Promotion employee so as to attract the provisions of the Act of 1947.
(3.) HAVING considered the submissions of learned counsel for the parties, I have carefully gone through the entire material on record, the impugned awards and order passed the Labour Court as also the provisions of the Act of 1947, the Act of 1976 and the judgments cited at the Bar. There cannot be any dispute that the concerned employee was appointed as Medical Representative vide order dated 2. 2. 1976. The Supreme Court, in the case of Management of M/s May & Baker (supra), has held that the Medical Representatives cannot be covered under the definition of workmen as provided under Section 2 (S) of the Act of 1947. In view of the judgment of the Supreme Court, since the persons engaged in Sales Promotion had no protection regarding security of employment and other benefits, as per consistent demand of such persons, particularly the Sales Representatives in the Pharmaceutical industry, a separate Legislation for governing the conditions of services of the Sales Promotion employees came to be enacted under the title of Sales Promotion Employees (Conditions of Service) Act, 1976 w. e. f. 25. 1. 1976. The `sales promotion employee' has been defined under the above Act of 1976. The relevant clause is reproduced hereasunder:-      " 2. Definition. -. . . . . . . (d) "sales promotion employee" means any person by whatever name called (including any apprentice) employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business, or both, and- (i) who draws wages (being wages, not including any commission) not exceeding seven hundred and fifty rupees per mensem; or (ii) who had drawn wages (being wages, including commission), or commission only, in either case, not exceeding nine thousand rupees in the aggregate in the twelve months immediately preceding the month in which this Act applies to such establishment and continues to drawn such wages or commission in the aggregate, not exceeding the amount aforesaid in a year, but does not include any such person who is employed or engaged mainly in a managerial or administrative capacity;" Admittedly, the concerned employee was drawing more than Rs. 750/-, pm at the time of his termination on 10. 12. 1982. The benefit of amendment made in the Act of 1976, in the year 1986, could not have been given to the concerned employee. The Supreme Court in the case of Management of M/s May & Baker (supra) as also in the case of HR Adyanthaya and Other vs. Sandoz (India) Ltd. & Ors. , reported in (1994) 5 SCC 737, has clearly held that the Medical Representatives are not workmen. `any manual or clerical work done of an incidental nature is not relevant. It appears that the Labour Court laboured hard in taking note of the ancillary work done by the concerned employee so as to bring him within the definition of workman. A bare reading of the documents, as placed on record, would show that the concerned employee had performed mainly the duties of a Medical Representative. Merely performing some duties of receipt and dispatch of consignments would not bring him within the definition of workman, more so, in view of specific provisions under the Act of 1976 as also the judgments of the Supreme Court as referred above. Considering entire facts and circumstances, the concerned employee, in no case, could be treated as workman as defined under section 2 (S) of the Act of 1947 or even sales promotion employee as defined under the act of 1976 so as to get benefit under the provisions of the Act of 1947. It may also be pertinent to mention here that a strong plea of `loss of confidence' had been taken by the management not only at the time of termination but before the Labour Court also, however, the same could not be appreciated by the Labour Court properly. Looking to the nature of employment and allegations made against the concerned employee, in view of the considerations made above, the interim award dated 21. 3. 1986 as also the final award dated 30. 3. 1992 passed by the Labour Court cannot be sustained in the eyes of law. ;