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REGISTERED NO D-(D)-72

The Gazette of India

EXTRAORDINARY

PART II—Section 2

PUBLISHED BY AUTHORITY

No. 29] NEW DELHI, WEDNESDAY, MAY 14,1975/VAISAKHA 24, 1897

Separate paging is given to this Part in order that it may be filed as a separate compilation

RAJYA SABHA

The following Bill was introduced in the Rajya Sabha on the 14th

May, 1975:—

BILL NO. XII OF 1.975

A Bill to regulate certain conditions of service of sales promotion

employees in certain establishments.

BE it enacted by Parliament in the Twenty-sixth Year of the Republic

of India as follows:—

1. (1) This Act may be called the Sales Promotion Employees (Con-

ditions of Service) Act, 1975.

(2) It extends to the whole of India.

Short title. extent. com- mence- ment and applica- tion.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different States.

(4) It shall apply in the first instance to every establishment engaged

in pharmaceutical industry.

(5) The Central Government may, by notification in the Official Gazette, apply the provisions of this Act, with effect from such date as may be specified in the notification, to any other establishment en- gaged in any notified industry.

Z. In this Act, unless the context otherwise requires,—

Defini- tions.

(a) "establishment" means an establishment engaged in phar-

maceutical industry or in any notified industry;

(395)

(b) "notiiied industry" means an industry declared as such under section 3;

(c) "prescribed" means prescribed by rules made under this Act; -

(d) "sales promotion employee" means any person by whatever name called (";ne¹',idlng an apprentice) employed or enga-.-ed in any establishment ibr hire or reward to do any work relating to pro- motion of sales or business, or both, and—

(i) who draws wages (being wages, not including any com- mission) not exceeding seven hundred and fifty rupees per men- sem; or

(it) who had drawn wages (being wages, including com- mission\ or commission only, in either case, not ex^esding nine thousand rupees in the aggregate in the twelve months imme- diately preceding the month in which this Act appHcs to such establishment and continues to draw such wages or commis- sion, in the aggregate, not exceding the amount aforesaid in a year,

but does not include any such person who is employed or engaged mainly in a managerial or administrative capacity;

14 of 1947.

(e) all words and exm'essions used biit not defined in this Act and defined in the Industrial Disputes Act, 1947, shall have the meaninss respectively assigned to them, in that Act.

3. The Centra] Government may. having regard to the nature of any industry (not being pharmaceutical industry), the number of emplo- y es emt^oy^d in such industry to do any work re^Vng to promotion of sales or business or both, the conditions of service of puch emio^yees and such other factors which, in the opinion of the Central Govern- ment, are relevant, declare such industry to be a notified industry for the purposes of this Act.

Power of Central Govern- ment to declare certain industries to be notified indus- tries.

Leave.

4. In addition to such holidays, casual leave or other kinds of leave as may be prescribed, every sales promotion employee drawing wages (being wages, not including any commission) shall be granted, if so re- quested for—

(a) earned leave on full wages for not less than one-eleventh of the period spent on duty;

(b) leave on medical certificate on one-half of the wages for not less than one-eighteenth of the period of service.

5. Every employer in relation to a sales promotion employee shall furnish to such employee a letter of appointment, in such form as may be prescribed,—

Issue of appoint- ment letter.

(a) in a case where he holds appointment as such at the com- mencement of this Act, within three months of such commence- ment; and

(b) in any other case, on his appointment as such.

8 of 1923. 6. (1) The provisions of the Workmen's Compensation Act, 1923, as in force for the time being, shall apply to, or in relation to, sales promo- tion employees as they apply to, or in relation to, workmen within the meaning of that Act.

Applica- tion of - certain Acts to sales

O'OTIO- 14 of 1947.

•\nulo- ees.

(2) The previsions of the Industrial Disputes Act, 1947, as in fores for the time temg, shall apply to, or in relation to, sales nrorr.o:.ion em- ploye ffs a? they apply to, or in relation to, workmen within the mean- ing CL that Act and fcr the purposes of any procecdir-^ und'r thai Act in relation to an industrial dispute, a sales promotion emploj-ee shall be dr-emed to include a sa'les promotion employee who has b?^n dismissed, discharged or retrenched in connection with, or as 'a consequence of, that d i l u te or whose dismissal, discharge or retrenchment had led to that dispute.

11 of 1948. (3) The provisions of +he Minimum Wages Act. 1343, as in force for the time being, shall a^ply to, or in relation to, sales promotion employees as they a~ply +c, or in relation to, employees within the meaning of that Act.

(4) The provisions of the Maternity Benefit Act, 1961, as in force

o3 of 1961

for the time be⁴n?, shall a p p^ to, or in relation to, sales promotion employees, being vomen, as they apply to, or in relation to, women em- ployed, whe+her directly or through any agency, for wages in any estab- lishment within the meaning of that Act.

21 of ifiiT, (5^ Th? provisions of the Payment of Bonus Act, 12"5, as in force for the time b~mg, shall apply to or in relation to, s"I°s promotion em- ployees as they apply to, or in relation to employees within the mean- ing cf that Act.

39 of 1972. (6) The ^revisions of the Payment of Gratuity Act, 1972, as in force for the t"Tfi3 h°ing\ Fha'l a^ply to, or in relation to. sales promotion em- pl3vr>-;s as they apply to, or in relation to, employees within the mean- ing of that Act.

Mainten- ance of registers.

7. Every employer in relation to an establishment shall keep and maintain such registers and other documents and in such manner as may be prescribed.

Inspec- tors.

8. (1) The State Government may. by notification in the Official Gazette, api^Int such persons as it thinks fit to be Inspectors for tlje purposes of this Act and may define the local limits within which they shall exercise their functions.

(2) Any Inspector appointed uMer sub-section (2) may, for the pur- pose of a^sertaMng¹ whether any cf the J?T©VMOTKS of this Act have been complied with in respect of an establishment,—

(a) require an employer to furnish such information as he may

consider necessary;

(b) at any reasonable time enter the establishment or any pre- mises connected therewith and require any one found in charge

thereof to produce before him for examination any registers and other documents relating to the employment of sales promotion employees;

(c) examine with respect to any matter relevant to any of the purposes aforesaid, the employer, his agent or servant or any other person found in charge of the establishment or any premises con- nected therewith or any persun whom the Inspector has zeasonable cause to believe to be or to have been a sales promotion employee in the establishment;

(d) make copies of or take extracts from any register or other documents maintained in relation to the establishment under this Act;

(e) exercise such other powers as may be prescribed.

(3) Every Inspector shall be deemed to be a public servant within

45 of I860.

the meaning of section 21 of the Indian Penal Code, 1860.

(4) Any person required to produce any register or other docu- mearit or to give information by an Inspector under sub-section (2) shall be legally bound to do so.

Penalty.

9. If any employer contravenes the provisions of section 4 or section 5 or section 7 or any rules made under this Act, he shall be punishable with fine which may extend to one thousand rupees.

Offences by com- panies.

10. (1) Where an ofience under this Act has been committed by a company, every person who, at the time the offence' was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company,, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this section, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (I), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or conni- vance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, mana- ger, secretary or other officer shall also bs deemed to be guilty of such offence and shall be liable to be proceeded against and punished accor- dingly.

(3) For the purposes of this section,—

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.

Cogniz- ance of offences.

II. (1) No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence punishable under this Act.

(2) No court shall take cognizance of an offence under this Act, un- less the complaint thereof is made within six months of the date on which the offence is alleged to have been committed.

12. (I) The Central Government may, by notification in the Official

Gazette, make rules to carry out the purposes of this Act.

Power to make rules.

{2) In particular and without prejudice to the generality of the fore-

going power, such rules may provide for—

(a) the kinds of leave that may be granted to a sales promo-

tion employee under section 4:

(b) the form of the letter of appointment to be furnished under

section 5;

(c) the registers and other documents to be kept and main- tained under section 7 and the manenr in which such registers and other documents may be kept and maintained:

(d) any other matter which has to be, or may be prescribed.

(3) Every rule made bv the Central Government under this Act sh,all be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the ses- sion or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses airee that the rule should not be made, the rule shall thereafter have effect onlv in. such modi- fied form or be of no effect, as the casa may be; so, however, that any such modification or annulment shall be without prejudice to the vali- ditv nf anvthintr previously done under that rule.

STATEMENT OF OBJECTS AND REASONS

As a result of the Supieme Court judgment in she case of May and Baker (India) Limi:ed and Chcv Workmen (I961-Z-LLJ, p. 94), the per- sons engaged in sales piCiVi.o'Cj.on da not ccrrie wrai n the purview of Lie cL'linii^cn oi '"woiKman"' under aie Industrial Disputes A:t. 1947 and as such, they have no protection regarding security d employment and oth?.T benefits und-:r that Act. These persons, particularly the medical representatives in the pharmaceutical industry. h?."e been demanding from time to time that th';y should be covered by 'he Indus'rial Disputes Act. On a petition made by the Federation of Medical Representatives' Associations oi India, the Committee on Petitions fRajya Sabha) in its thirteenth report submitted on March 14, 1972, came to the conclusion that "the ends of social justice to this class of people will be met only by suitably amending the definition of the term 'woikman' in, the Jndu^'rial Disputes Act, 1247 in a manner that the medical representatives are slso covered by the d'firr.ticn of 'workman' in the said Act". The Committee ako lilt that other workers engaged in sa^es oromotions should similarly be considered as workmen.

2. Keemn^ in view the justification of the demand of the sales promo- tion employees, and the recommendation road^ h^ the Comrr.it+ee on Petitions, and takmg oiher relevant aspects into consideration, it is con- sidered more a^orc^ria^e to have a senarat° •?'"i!i5f<.tion for governing the conditions of service of sales promotion emo^yees, instead of amend- ing the Industrial Disputes AcL 1947 to brine such employees within its purview.

3. The Bill seeks to achieve the above objects.

N EW DKLHI;

The Gth May, 1975. K. V. RAGHUNATHA REDDY.

FINANCIAL MEMORANDUM

Clause 8 of the Bill provides for the appointment of inspectors for securing implementation of the various provisions of the Bill. The pro- po?ed iegi&Iation is l:o be enforced by the, Scale Governments and ths in- spectors are to be appointed by the State Governments. Expenditure wouid be involved from the¹ Consolidated Fund of India only with respect to the appointment of Inspectors in those Union territories which have no Legislative Assemblies, namely, the Union territories of Delhi, Anda- man and Nicobar Islands, Lakshadweep, Dadra and Nagar Kaveli, Chan- digarh and Arunachal Pradesh. Even amongst these Union territories, in the Union territories of Andaman and Nicobar Island'", Dadra and Na- gar Haveli and Lak=hadweep, the work to be done by the inspectors, under the proposed legislation can be handled by the existing inspec- torates under the labour departments. It may be necessary to appoint one inspector each for the Union territories of Arunschal Pradesh "nd Chwn^ligarh, Two inspectors may, however, be required to be appointed for the-Union territory of DeJhi since there is a large scale concentration of not only medical representatives but also sales promotion employees engaged in the sales of consumer goods on a very competitive basis in that Union territory.

2. The inspectors to be appointed will be in the s"ale of Rs. 550—900 which is the scale of pay of the labour inspectors in the Delhi Adminis- tration. The total annual recurring expenditure is likely to be as under:—

Pay of inspectors

.. Rs. 43.200

Contingencies including Traveling Allowance, etc. . . Rs. 12,000

3. In addition, a non-recurring expenditure of Rs. 16,000 may have to be provided for in the first year for the setting up of office, purchase of furniture, etc

MEMORANDUM REGARDING DELEGATED LEGISLATION

Clause 12 of the Bill seeks to empower the Central Government to make rules to carry out the purposes of the proposed enactment. The matters in respect, of which iules may be so made relate, inter alia, to the kind of leav !hui, may be granted to a sales promotion employee under clause 4, the form of the letter of appointment to be\ furnished under clause 5 and the registers and other documents to be kept and maintained under clause 7 of the Bill. The matters in respect of which rules may be made pertain to matters of procedure or detail and it is hardly pos- sible to provide for these matters in the Bill itself. The delegation of legislative power is, therefore, of a normal character.

B. N, BANERJEE,

Secretary-General.

PRINTED BY THE GENERAL MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD, NEW DELHI AND PUBLISHED BY THE CONTRQLLEH OF PUBLICATIONS, DELHI, 1 9 75