JUDGMENT G.P. Mathur, J.
1. This petition was presented on November 1, 1987 and the parties have exchanged affidavits. Since a long time has elapsed the writ petition is being disposed of finally at the admission stage with the consent of the parties.
2. The principal prayer made in the petition is that the reference made by the State Government on October 18, 1986, (Annexure-1 to the writ petition) under Section 4-K of U. P. Industrial Disputes Act be quashed. Sri D. Mittal-respondent No. 3 was employed as Medical Sales Representative in the petitioner Company. His services were terminated w.e.f, March 20, 1985. It appears that he raised a dispute that the termination of his service was not proper. The State Government vide its order dated October 18, 1986 made a reference to the Labour Court, Agra. The reference was whether termination of service of D. Mittal, Medical Sales Representative w.e.f. March 20, 1985 was valid/proper and if not, what benefit he was entitled to get.
3. The undisputed facts are that respondent No. 3 was employed by the petitioner Company as Medical Sales Representative solely for sales promotion work and for selling company products. The appointment order was issued to him by the Head Office of the Company from Bombay vide their letter dated April 21, 1965. In pursuance of the aforesaid letter, the respondent No. 3 joined on May 21, 1965 and underwent training in Bombay. The services of respondent No. 3 were terminated vide letter dated March 8, 1985 which was effective from Mach 20, 1985 and at the time of termination of his service, respondent No. 3 was getting salary of Rs. 2842/- per month.
4. The main submission of Shri Sudhir Chandra, learned counsel for the petitioner, is that respondent No. 3 was not a "workman" as defined in U.P. Industrial Disputes Act nor was he a "Sales Promotion Employee" as defined in Sales: Promotion Employees (Condition of Service Act), 1976 and, therefore, the reference made by the State Government was wholly illegal and without jurisdiction. The question whether a Medical Sales Representatives is a workman and whether any: dispute regarding his termination of service can be referred to the Labour Court or Industrial Tribunal for the purpose of adjudication under the Industrial Disputes Act has recently been considered by a Constitution Bench in H.R. Adanthaya v. Y. Sandoz, (India Ltd.) (1995-I-LLJ-303), and it has been held that prior to May 6, 1987 when Sales Promotion Employees (condition of Service) Act; 1976 was amended by Act No. 48 of 1976 a Sales Promotion Employee was, firstly, who was engaged to do any work relating to promotion of Sales or business or both, and secondly only such of them who drew wages not exceeding Rs. 750/- per mensem (excluding commission) or those who had drawn wages (including commission) not exceeding 9,000/ - per annum whether they were doing supervisory work or not. In the present case, it is not in dispute that respondent No. 3 was getting total emoluments of Rs. 2842/- per months at the time when his services were terminated on March 20, 1985 and termination of his service took place prior to enforcement of amending Act No. 48 of 1976 w.e.f. May 6, 1987 by which the definition of Sales Promotion Emp.oyee was expanded so as to include all sales promotion employees without a ceiling on their wages except those employees who were engaged in a supervisory capacity drawing wages exceeding Rs. 1600/- per mensem or those employees who were engaged mainly on managerial or administrative capacity. In view of the authoritative pronouncement of the Supreme Court the respondent No. 3 was not a workman nor the dispute raised by him could be referred to the Labour Court for adjudication under the provisions of U.P. Industrial Disputes Act. The reference made by the State Government is, therefore, clearly illegal and without any authority of law.
5. Shri Ranjeet Saxena, learned counsel for the respondent No. 3 has however submitted that dispute regarding termination of service of one Hrushikesh Patnaik who was also employed as Medical Sales Representative in the same Anglo French Drug Company was referred to the Labour Court, Bhubaneshwar, and the said reference was challenged by the Company by filing a writ petition being OJC No. 2392 of 1989 in the Orissa High Court but the said writ petition was dismissed by a Division Bench on February 8, 1993 and the judgment of the High Court was affirmed by the Supreme Court as the S.L.P. No. 4394 of 1993 was dismissed by the Supreme Court on August 10, 1993. Shri Saxena has thus submitted that in view of the aforesaid decision of the Supreme Court, the present writ petition is liable to be dismissed. A perusal of the judgment of Orissa High Court shows that the writ petition was dismissed not on merits but on the ground that in view of the decision of the Supreme Court rendered in D.P. Maheshwari v. Delhi Administration (1983-II-LLJ-425), the High Court should not exercise writ jurisdiction against preliminary issues. The writ petition was accordingly dismissed with the direction to the Tribunal to decide issue regarding maintainability of the reference alongwith other issues which may arise while answering reference on merits. The Special Leave Petition appears to have been summarily dismissed with the following order;
"The Special Leave Petition is dismissed." The orders passed by Orissa High Court and the Supreme Court therefore, show that the question as to whether a Medical Sales Representative is a workman and whether the reference made regarding termination of his services was maintainable before the Labour Court were not gone into. Therefore, the authority cited by learned counsel has no bearing on the controversy involved in the present case. That apart, the judgment in the case of H.R. Adanthaya has been rendered by a Constitution Bench subsequently on August 11, 1994 and it has settled the controversy which is involved in the present case. In view of the decision in the aforesaid case, there can be no doubt that respondent No. 3 is not a workman nor any dispute regarding termination of his service could be referred to the Labour Court under the provisions of U.P. Industrial Disputes Act..
6. Shri Sudhir Chandra has also contended that the U.P. Government had no jurisdiction to refer the dispute inasmuch as the Head Office of the Company is situate at Bangalore and it was the appropriate Government of the State where the industry is situate which alone had the jurisdiction to refer the dispute. In my opinion, it is not necessary to go into his this question as the petition is entitled to succeed on the first ground.
7. Shri Saxena has urged that as was done by the Supreme Court in the case of H.R. Adanthyaya (supra) some compensation be awarded to respondent No. 3 in view of the fact that the reference was made by the State Government on October 10, 1986 and the matter has remained pending for nearly 8 1/2 years. It may be noticed that when the respondent No. 3 raised dispute before the Conciliation Officer, the Petitioner company filed on objection on December 20, 1985 (Copy enclosed as Annexure-14 to the writ petition) wherein it had raised a plea that the application made by respondent No. 3 was not maintainable as he was neither a workman within the meaning of U.P. Industrial Disputes Act nor a Sales Promotion Employee within the meaning of Sales Promotion Employees (Condition of Service) Act, 1976. Therefore, even before the State Government had made a reference to the Labour Court under Section 4-K of U.P. Industrial Disputes Act the petitioner had raised a plea that no reference could be made regarding termination of service of respondent No. 3. It is, therefore, clear that respondent No. 3 was fully aware of the stand taken by the petitioner Company as far back as in December, 1985, yet he persisted with this demand and sought a reference to the Labour Court. That apart, the documents filed along with writ petition, especially the order of termination of the service dated March 9, 1985, (Annexure 13 to the writ petition) show that he had been given prior warnings regarding his work and performance in 1980, 1982 and 1983 and he was also given chance for improvement. It was only after respondent No. 3 failed to avail the opportunity given to him and to show improvement in his performance that his services were terminated. An inefficient person cannot be given a reward. In view of these facts, I do not consider it proper that the ends of justice require any lump sum payment to be made to respondent No. 3.
8. In the result, the writ petition succeeds and is hereby allowed. The reference made by the State Government to the Labour Court, Agra by the order dated October 18, 1986 (Annexure-1) to the writ petition) is quashed, No order as to costs.