Are salesmen also workmen as per Industrial Disputes Act 1947?

Cause Title : Kiran P. Pawar vs Bata India Ltd., Bombay High Court, Writ Petition No. 5862 OF 2018

Date of Judgment/Order : 01 November 2023

Corum : Sandeep V. Marne, J.

Citied: 

1. H. R. Adyanthaya & Ors. Vs. Sandoz (India) Ltd. & Ors., (1994) 5 SCC 737
2. Miss A. Sundarambal Vs. Government of Goa, Daman and Diu & Ors., (1988) 4 SCC 42
3. Pepsico India Holding Private Limited Vs. Krishna Kant Pandey, (2015) 4 SCC 270
4. Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors, (2013) 10 SCC 324
5. Bata India Ltd. A Company, Calcutta Versus B. H. Nathani, 1077 (0) AIJ-GJ 223985
6. May & Baker (India) Ltd. V. Workman, (1961) 2 LLJ 94 : AIR 1967 SC 678
7. Western India Match Co. Ltd. Vs. Workmen, AIR 1964 SC 472
8. T. P. Srivastava Vs. National Tobacco Co. of India Ltd., (1992) 1 SCC 281
9. Burmah Shell Case AIR 1971 SC 922 

Background

Bata 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. Some of the salespersons refused which  as misconduct by Bata leading to discontinuation of services of some of its salespersons in the year 2007. The salesmen approached Labour Court under 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 (ID Act) 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. Appeal filed by Bata before the  Industrial Court and its Revision Applications were also  dismissed. Bata filed this appeal against the said orders.

Judgment

The High Court referred to the definition of 'workmen' under the ID Act and observed that as the said act, 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. It was 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 and  responsibilities and therefore a salesman can never be a ‘workman’ under Section 2(s) of the Industrial Disputes Act.

Referring to various judgments, the court held that 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.

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.

Disagreeing with the arguments offered by BATA, the court held that duties and responsibilities of a salesman employed in retail outlet cannot be restricted only to sales promotion activities of that outlet. 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. 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.