NOVARTIS INDIA LTD Vs. SARABJEET S SINGH

JUDGEMENT

(1.) An award of the Industrial Tribunal on a complaint filed by the respondent under section 33-A of the Industrial Disputes act, 1947 has been called into question in these proceedings under Article 226 of the Constitution. Principally the issue which arises before the Court for consideration is whether the respondent can be regarded as "a workman concerned in such dispute" within the intendment and meaning of those words in section 33 (2) of the Industrial Disputes Act, 1947. The first respondent was engaged as a Medical Sales Representative on 29th August, 1985 by the petitioner and was posted at New Delhi. By an order dated 26th September, 1995, the workman was transferred from New Delhi to Ratlam. The workman did not accept the order of transfer. On 1st November, 1995 the services of the workman came to be terminated by the management. The workman then instituted a complaint under section 33-A of the Industrial Disputes Act, 1947. The case of the workman was that he was a member of the Association of Chemical Workers and was governed by the conditions of the previous settlement dated 8th August, 1990, which had since expired on 30th June, 1992. Upon the charter of demands of the union having been taken into conciliation, the Commissioner of Labour had submitted a report of failure upon which the State Government referred the demands for adjudication by the Industrial Tribunal. One of the demands, it was submitted related to transfers, the demand being that save and except for mutual transfers with the consent of the sales and medical representatives concerned, no other transfer shall be carried out. The management filed its written statement stating that the Association of Chemical Workers could not have espoused the cause of medical representatives inasmuch as during the material time not even a single employee in that category was a member of the union within the metropolitan area of New Delhi.

(2.) The Industrial Tribunal dismissed the complaint upon which the workman filed a petition under Article 226 before this Court. By an order dated 4th March, 2005, the Petition was disposed of upon a statement made by the learned counsel appearing on behalf of the management and the workman that the order of the Industrial Tribunal be quashed and set aside and the Tribunal be directed to reconsider the complaint. The workman was granted liberty to prove his case in the application under section 33-A by leading evidence or by producing relevant documentary material before the Tribunal.

(3.) After the order of remand passed by this Court, the workman and the management adduced evidence before the Industrial Tribunal. The Tribunal by its order dated 30th June, 2005 allowed the complaint and came to the conclusion that there was a contravention of the mandatory provisions of section 33 (2) (b) of the Industrial Disputes Act, 1947. The Tribunal held that all the medical representatives in India were covered by the earlier settlement dated 8th August, 1990. The conciliation proceedings that followed upon the expiry of the settlement and the reference to the Industrial Tribunal for a revision of the conditions of service had, according to the Tribunal a nexus with the earlier settlement. The Tribunal held that since the management had taken action during the pendency of the reference, compliance with the provisions of section 33 (2) (b) was mandatory and the failure to do so would result in the order of termination being non-est. The complaint was accordingly disposed of.