WP(C)/20038/2024 of ALL INDIA SALES REPRESENTATIVES AND MARKETING EMPLOYEES FEDERATION Vs THE REGIONAL LABOUR COMMISSIONER on 11 April 2025

J U D G M E N T

Dated this the 11th day of April, 2025 The petitioner states that it is a Trade Union representing the interest of the sales and marketing workers. The petitioner preferred Ext.P1 industrial dispute before the 1st respondent-Regional Labour Commissioner, challenging the action of the 2nd respondent-Management in transferring all workers who are members of the petitioner-Trade Union from Kozhikode to various distant parts of the Country.

2. The petitioner states that the 1st respondent relying on the judgment passed by this Court in Lupin Limited v. G. Suresh and another [2007 (4) KLT 1092] closed Ext.P1

:4: 2025:KER:31124 complaint noting that sales and marketing personnel were not workmen as defined under Section 2(s) of the Industrial Disputes Act, 1947. The said finding is in fact contrary to the dictum laid down by this Court in the said judgment. The petitioner, therefore, prays that Ext.P3 be set aside and the 1st respondent be directed to consider Ext.P1 on merits and pass appropriate orders.

3. The petitioner would contend that the members of the petitioner-Trade Union though described as Sales Managers, they were not discharging the duties of Managers or Supervisors. They were ordinary sales promotion employees. Merely because they are described as Managers, they cannot be excluded from the purview of Industrial Disputes Act. The petitioner further contended that in view of the Industrial Disputes (Kerala Amendment) Act, 2017, the words “promotion of sale” has been included in Section 2(s) of

:5: 2025:KER:31124 the Industrial Disputes Act. Therefore, sales promotion employees are now workmen under the Industrial Disputes Act as far as the State of Kerala is concerned. In such circumstances, the 1st respondent ought not have passed Ext.P3 order.

4. Standing Counsel entered appearance and resisted the writ petition on behalf of the 2nd respondent. On behalf of the 2nd respondent, it is contended that an industrial dispute will not lie as the petitioner's members are not workmen as defined under Section 2(s) of the Industrial Disputes Act. The petitioner's members are Managers. When the branches of the insurance company were closed, they had to be transferred out.

5. The 2nd respondent further urged that the 2nd respondent being in the insurance sector, the workmen of the petitioner would not fall within the ambit of Sales Promotion

:6: 2025:KER:31124 Employees (Conditions of Service) Act, 1976. The petitioner, therefore, cannot claim the benefit of the Act, 1976 either. As long as the members of the petitioner are not falling under the Sales Promotion Employees (Conditions of Service Act), 1976 and as long as the members of the petitioner are not workmen falling within the definition of Section 2(s) of the Industrial Disputes Act, Ext.P3 is only to be upheld.

6. Standing Counsel appearing for the 2nd respondent further submitted that the members of the petitioner are making Forum Shopping. The employees transferred out by the 2nd respondent have approached the Labour Commissioner, as is evident from Ext.R2(a). The attempt of the petitioner is to agitate the same issue before two different authorities on experimental basis. For that reason also, this writ petition is liable to be dismissed.

:7: 2025:KER:31124

7. The 2nd respondent further contended that the petitioner admittedly is not a registered Trade Union. Only a registered Trade Union can raise a dispute under the Industrial Disputes Act. In view of Section 2 (qq) of the Industrial Disputes Act, a Trade Union means a registered Trade Union. The petitioner being an unregistered entity, cannot raise an industrial dispute.

8. I have heard the learned Counsel for the petitioner and the learned Standing Counsel representing the 2nd respondent.

9. The members of the petitioner-Union are the workers of the 2nd respondent. The 2nd respondent is an Insurance Company. When the members of the petitioner- Trade Union were transferred out, the petitioner raised industrial dispute before the Regional Labour Commissioner (Central), who is under the Government of India. Whether an

:8: 2025:KER:31124 industrial dispute can be raised by the petitioner in respect of a dispute between sales promotion employees and their employer, is the question arising for consideration.

10. It is evident that sales promotion employees as such will not come within the definition of “workman” as defined under Section 2(s) of the Industrial Disputes Act, 1947, inasmuch as the sales promotion employees are not doing any manual, unskilled, skilled, technical, operational, clerical or supervisory work as required in Section 2(s). However, to give the sales promotion employees, the benefit of the adjudication mechanism provided under the Industrial Disputes Act, 1947 Section 6 has been incorporated in the Sales Promotion Employees (Conditions of Service) Act, 1976.

11. Section 6 of the Act, 1976 states that the provisions of the Industrial Disputes Act, 1947, as in force for the time being, shall apply to or in relation to sales promotion

:9: 2025:KER:31124 employees as they apply to, or in relation to, workmen within the meaning of the Industrial Disputes Act and for the purpose of any proceedings under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to to that dispute.

12. Though the Industrial Disputes Act as such is not applicable to sales promotion employees under the Sales Promotion Employees (Conditions of Service) Act, 1976, the Legislature though it necessary to make the provisions of the Industrial Disputes Act, 1947 applicable to sales promotion employees. Therefore, even though sales promotion employees are not workmen as defined under the Industrial Disputes Act, the provisions of the Industrial Disputes Act as

:10: 2025:KER:31124 they apply to workmen as defined under the Industrial Disputes Act shall apply to sales promotion employees also.

13. This Court has held in the judgment in Lupin Limited v. G. Suresh and another [2007 (4) KLT 1092] that for a sales promotion employee to raise an industrial dispute under the Industrial Disputes Act, it is not necessary that he should be a workman as defined under the Industrial Disputes Act. All what is necessary is that he should be a sales promotion employees as defined under the Sales Promotion Employees (Conditions of Service) Act, 1976.

14. By Ext.P3 communication of the Regional Labour Commissioner (Central), Kochi, the Commissioner has closed the dispute raised by the petitioner-Trade Union for the reason that sales promotion / marketing employees / Managers are not workmen as per Section 2(s) of the Industrial Disputes Act, 1947. Surprisingly, the Regional

:11: 2025:KER:31124 Labour Commissioner (Central) has relied on the judgment of this Court in Lupin Limited (supra) to come to such conclusion whereas in the Lupin Limited (supra), this Court has categorically held that though sales promotion employees are not workmen, the Industrial Disputes Act has been made applicable to them. Ext.P3 communication is therefore not sustainable for the reasons advanced therein.

15. The 2nd respondent would then contend that a dispute whether under the Industrial Disputes Act, 1947 or under the Sales Promotion Employees (Conditions of Service) Act, 1976 will not be maintainable at the instance of the petitioner as the petitioner is not a registered Trade Union. Section 2(qq) of the Industrial Disputes Act, 1947 defines a Trade Union to mean a Trade Union registered under the Trade Unions Act, 1926. The decision of the Regional Labour Commissioner (Central) not to entertain a dispute at the

:12: 2025:KER:31124 instance of the petitioner is therefore justified, urged the counsel for the 2nd respondent.

16. The question whether an unregistered Trade Union can raise an industrial dispute has come up for consideration before this Court as well as before the Hon’ble Apex Court multiple times. In the judgment in Chief General Manager, BSNL v. Industrial Tribunal, Kollam and another [2008 (2) KLT 507], this Court held that though the Management can lay down rules regarding recognition of unions of its workmen and insist that the Management would deal only with Unions recognised by it in accordance with such rules, that would not stand in the way of unrecognised, unregistered and minority unions or even a group of individual workmen from validly raising an industrial dispute. This Court held that it is not necessary that the sponsoring Union is a registered Trade Union for the dispute becoming a valid

:13: 2025:KER:31124 industrial dispute.

17. The Hon’ble Apex Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees' Association and others [(2006) 11 SCC 731] has held that an unregistered Association under the Trade Unions Act cannot maintain a writ petition under Article 226 of the Constitution of India. In this judgment, the question considered was not as regards maintainability of an industrial dispute raised by an unregistered Trade Union. The Apex Court has been dealing with the maintainability of a writ petition at the instance of an unregistered Trade Union.

18. In Newspapers Limited, Allahabad v. U.P. State Industrial Tribunal and others [AIR 1960 SC 1328], a Three Judge Bench of the Hon’ble Apex Court held that it is not necessary that a registered body should sponsor a workman's case to make it an industrial dispute. Once it is

:14: 2025:KER:31124 shown that a body of workmen, either acting through their Union or otherwise had sponsored a workman's case, it becomes an industrial dispute.

19. In Pradip Lamp Works, Patna and another v. Workmen of Pradip Lamp Works, Patna and another [1970 (1) LLJ 507], the Apex Court held that espousal of a dispute before a reference is made even by a minority union, having a membership of substantial number of workmen, is sufficient to make such a dispute an industrial dispute.

20. In the judgment in Lissie Hospital v. Labour Court, Ernakulam [2021 KHC 343], a Division Bench of this Court held that it is not necessary that the Trade Union that is espousing the cause of workmen for raising industrial dispute should be necessarily a registered Trade Union as understood in the Trade Unions Act, 1926. The Hon’ble Apex Court held in State of Bihar v. Kripa Shankar Jaiswal [AIR 1961 SC

:15: 2025:KER:31124 304] that it would be an erroneous view to state that for a dispute to constitute an industrial dispute, it is a requisite condition that it should be sponsored by a recognised Union or that all the workmen of an individual establishment should be parties to it. A dispute becomes an industrial dispute even where it is sponsored by a Union which is not a registered Union.

21. The conclusion that can be arrived at considering the aforesaid judgments of the Hon’ble Apex Court and of this Court are that sales promotion employees covered by the Sales Promotion Employees (Conditions of Service) Act, 1976 can resort to the provisions of the Industrial Disputes Act for redressal of their grievances and that even an unregistered Trade Union can raise industrial disputes before Conciliation Officers or Industrial Courts constituted under the Industrial Disputes Act, 1947. Ext.P3 communication of the

:16: 2025:KER:31124 Regional Labour Commissioner (Central) is therefore unsustainable. Ext.P3 is therefore set aside. The 1st respondent is directed to consider Ext.P1 complaint on merits, if the grievance still subsists and process the same under the Industrial Disputes Act, 1947. The writ petition is disposed of as above. Sd/- N. NAGARESH JUDGE ams/aks

W.P.(C)No.20038 of 2024 :17: 2025:KER:31124 APPENDIX OF WP(C) 20038/2024 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER DATED 06.04.2024 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPNDENT. Exhibit P2 TRUE COPY OF THE FILING DETAILS GENERATED VIA THE SAMADHAN PORTAL IN APPLICATION

ID

300069413

DATED 06-04-2024. Exhibit P2(a) TRUE COPY OF THE ACKNOWLEDGMENT GENERATED BY VIA THE SAMADHAN PORTAL. Exhibit P3 TRUE COPY OF THE CLOSURE REPORT DATED ISSUED

BY

THE

1ST

RESPONDENT 08.04.2024. Exhibit P4 COPY

OF

THE

CERTIFICATE

OF REGISTRATION OF TRADE UNION NO. TU19921 DATED 13.12.2024 ISSUED TO THE PETITIONER BY THE DEPUTY REGISTRAR OF TRADE UNIONS & DISTRICT LABOUR OFFICER, KOZHIKODE. 2ND RESPONDENT'S EXHIBIT EXHIBIT R2(a) TRUE COPY OF REPRESENTATION SUBMITTED BEFORE THEH LABOUR MINISTER, GOVT. OF KERALA