Role of Assistant Labour Commissioner
jayanttelang
(Querist) 08 December 2008
This query is : Resolved
Dear Mr Harbhajansingh ji,in my case,while my domestic inquiry is being going on, since Feb 2008,my Union submitted an application to the ALC at my city,regarding following points;
Delinquent employee(My self)is not satisfied with domistic inquiry due to some objectional points like,employer does not provide certified standing orders,
Expenses/some amount are being held by management without any reasonable cause,
management makes a barrier in the way of my defence Representative (co-emplyee)& pressurise him for not attending the Inquiry,
and some other reasons are being submitted to ALC,he accepted unoin's application and call to management for hearing but nobody attended the date of hearing,since long back,
Now management submitted an application for writ to High court of Gujrat,against me,ALC and Labour Commissioner Indore,for not intervening in the domestic inquiry,HC Set a date of hearing,
Management has given a reference wherein a Medical Representative is not being treated as a workman?
Kindly help me what to do?
do you have any references in which MR is being treated as workman and any Labour Court/High Court has been given their decisions in favour of or against of Medical Representative.
kindly reply soon as early as possible.thanks
H. S. Thukral
(Expert) 09 December 2008
Dear Jayanttelang
First of all I suggest that you should not address your queries to me alone. There are so many experts who might not like to give their views when your query is addressed by name to me. Since Labour and Industrial Law is my subject, I try to give my opinion on most of queries raised in the forum.
Medical representative is a workman if he is not doing any managerial or administrative function. There is plenty of case law on this, to give few citations I refer Shantanu v Hindustan Antibiotics 2000(3) CLR 881, Dolphin Laboratories v Labour Court 2001(2) LLJ 559, Lupin Ltd. v Suresh 2007(4) KLT1092. Earlier the stand taken by the Courts including SC in HR Adyanthaya case, was that medical representatives were not workmen as the same were not doing kind of work described in section 2(s) of the ID Act but after 1976, after introduction of Sales Promotion Employees Act, 1976 position has changed. In the first instance the Act has been extended to Medical Representatives.
Other points raised in your query I have to say that in a domestic inquiry, it is the management who has to see that the inquiry is fair and proper so that it does not get vitiated and is successfully challenged later. So at this stage you keep raising points in writing about the points which you find contravenes the fair procedure or violate principles of natural justice. These might help you if an adverse action is taken against you.
Regarding Certified Standing Order, there is an authority appointed who looks after this aspect who usually is a DLC. You can make a complaint to him and then the management shall have to concede before it that they donot have standing orders.
Regarding your wages during the suspension period I have advised you thoroughly. I once again say that you approach Labour Court directly under section 33 (C) 2 of the Act. Hindustan Antibiotics case referred above covers that too. Refer all those citations and observation of SC,( given to you in earlier queries ) that in the absence of any terms of contract or statutory rules, the employee is entitiled to full salary including annual increments.
ALC can not help you much and only can counsel the magmt.
ARVIND JAIN
(Expert) 13 March 2009
ANY BODY TO DISAGREE WITH THIS OPINION OR ALL TO AGREE ONLY???????????????????????
Hiralal Das
(Expert) 09 April 2009
Please follow the law books of Industrial Disputes Act.
