Sales Promotion Employees and their status as workmen..
Aditya Mudgal
(Querist) 16 December 2008
This query is : Resolved
Dear Experts,
There is a slight confusion in my head with regard to salesmen who go out into the market to take orders from wholesalers and retailers in non-pharmaceutical sectors.. Since the May and Baker India Ltd. v. Their Workmen decision, sales promotion employees were held not to be workmen under the ID Act, 1947. Subsequently, the Sales Promotion Employees (conditions of service) Act, 1976 was enacted. Under the said Act, Section 6 (2), medical representatives were brought within the purview of the ID Act, 1947. However, the question as to the nature of non-medical sales promotion employees from industries not yet notified by the govt. under the Act remains. They are not 'workmen' under the ID Act since they do not come within the scope of manual, skilled, unskilled, technical, operational, clerical or supervisory work for hire or reward, and if they have performed any of such work then it is not part of their main avocation as sales representative... Kindly Reconcile..
Thanks a lot..
H. S. Thukral
(Expert) 16 December 2008
Dear Mr. Mudgal:
Sales Promotional work is not the type of work defined in the ID Act under section 2(s) which would bring sales promotional employees under the definition of workman. Even the amended definition wherein word 'operstional' has been added has not helped such employees as per a judgement of the Apex Court. Sales Promotion work as interprettd in general term means convassing for sales but every sales promotional employee would not be excluded from the definition of workman and much shall depend upon the nature of his duties. An employee designated as 'sles representative' who vists a stockist of a company and oerforms various jobs such as taking physical inventory of his stocks, fills in various forms regarding sales/ stocks to report back to HQ. Takes stock of any defective material and make arrangement to send the same to a test lab. He may be termed as workman. To quote an exmple many companies have their goods distribution systems. Along with a small goods carrier a sales man also accompanies and on each retail outlets he takes out goods from the carrier, makes a bill of the same, collects payment for earlier deliveries, he also affixes some advertising material on the shop physically such as banner or posters etc and then moves on to next retailer. In my opinion such work is manual/clerical and therefore covered under 2(s).
There is plenty of case laws on this. If you would care to read it I can send you the citation details.
Aditya Mudgal
(Querist) 17 December 2008
Thank you for the explanation.. From what I understand, merely canvassing the sales of the products and taking orders. Unless he performs atleast some of the other tasks mentioned by you, he will not be a 'workman' for the purpose of the ID Act. This poses an interesting question. If a workman of the former category is not a 'workman' and neither covered by the Sales Promotion Employees Act, 1976, which labour law will govern his job? What if he needs to proceed against an employer? He cant raise an industrial dispute since the 76 Act doesn't apply to him..
Further, have there been any notifications under the 76 Act? I have come across no notifications bringing sales promotion employees from other industries within the scope of the Act
I would really like to read the case law on this tpoic to further my knowledge. I would be grateful if you could send me the relevant citations. Thank You once again
H. S. Thukral
(Expert) 18 December 2008
If the employee is not a workman, he has a remedy in Civil Court. Ony exception is that Civil Court cannot award reistatement in job in case of termination. Only compesation can be awarded. In Labour Court under the Industrial Dispute Act a workman can not take up an issue individually except in the case of termination of his services. If for example an employee is transferred from his place of posting to another place. The transfer is also colourable. Union of which he is a member does not espouse his cause and no ID is raised then the worker can approach Civil Court for relief.
For citations on Salesman held as workman wait for a day. I have to dig out from closed cases files.
Aditya Mudgal
(Querist) 19 December 2008
Thank You very much sir... I appreciate the trouble you have gone through to answer my querry..
Hiralal Das
(Expert) 08 April 2009
Thanks all of you the ld. members and the author.
I think your valuable opinions will assist everybody to solve their problem/matter in question properly.
