A Bench of Judges of the Supreme Court Justice L. Nageswara Rao and Justice Hemant Gupta passed Judgment, in the case of Civil Appeal No. 8989 of 2019 in RAJNEESH KHAJURIA Vs M/S. WOCKHARDT LTD. & ANR. and dismissed the appeal. The challenge in the appeal was to an order passed by the High Court of Judicature at Bombay on 21st January, 2014 whereby the writ petition filed by M/s. Wockhardt Ltd. was allowed and the order passed by the Industrial Court on 6th August, 2012 was set aside. The High Court held that the transfer of the appellant was as per the terms and conditions of employment. It was held that the employer had to decide who should work at particular place and who was to be transferred to another place in the interest of establishment. It was also held that the employee had failed to challenge the termination order dated 15th April, 2005.
The facts of the case are that the employee was appointed on 6th June, 1985
as a Professional Service Representative and was posted at Sagar, Madhya
Pradesh. Thereafter, he was promoted to Field Sales Officer Grade FM-One. One of
the conditions in the letter of appointment was that the employer shall be
entitled, at any time during the course of employment, to transfer the employee
to any of its affiliates, subsidiaries or sister companies. The employee was
transferred to Mumbai on 21st March, 2005 with immediate effect. The employee
did not join duty at Mumbai; therefore, reminders were sent by the employer on
1st April, 2005 and 8th April, 2005. The service of the employee was terminated
on 15th April, 2005.
The employee along with National Federation of Sales Representatives' Union
filed a complaint on 30th April, 2005 before the Industrial Court, Maharashtra
established under the Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act, 19714. The allegation of the employee is that he
had reasonable and bona fide apprehension that the employer, after filing of the
present complaint, was going to take adverse actions such as mala fide
transfers, suspension, disciplinary actions, summary terminations etc. against
N.P. Mishra, Rajendra Khandelwal, Sandeep Mitra, Manoj Bhatt, Rajaram V. Baliga
and Rajkumar Jasnani. The employee has alleged that the basis of apprehended
action against the employees mentioned by him was that they have filed
affidavits in his favour against unfair labour practices, high handed actions,
atrocities etc. committed by employer company and its employer on 15th March,
2005 during the Launching Conference at Ahmedabad. The employee alleged that he
was the President of Sagar Unit of Madhya Pradesh Medical Representatives'
Association which is affiliated to complainant No. 1 i.e. the Union. The
employee also alleged that one Mr. Ashish Khare, an active member of the Union
was forced to resign from the employment of the employer company in January,
2005 but the same was not accepted. He was paid wages till February, 2005. He
was invited for a Launching Conference but two managers of the employer company
Deepak Sethi, Sales Manager and Sanjay Anand, Regional Manager drove Mr. Ashish
Khare out of the hotel at night time. The employee had protested against the
same and it is on account of raising his voice against the said atrocities and
acts of force, the employee was threatened that he would be transferred and his
other colleagues would also be dealt with severely by the employer. Soon after
the Conference was over, the employee was transferred on 21st March, 2005. Such
transfer order was received on 4th April, 2005. The employee alleged that his
transfer was unjust, unfair, illegal, improper, arbitrary and mala fide,
amounting to unfair labour practices under Item 3, 7, 9 and 10 of Schedule IV of
the Act. It may be noticed at this stage that the complaint was filed against
the company and its General Manager (HR) in its official capacity.
In the written statement filed by the employer, the status of the employee as a
workman was denied as he was alleged to be working in supervisory, managerial or
administrative capacity and he was discharging his duties as Territory Manager.
The stand of the employer was that the transfer was as per contract of
employment signed between the parties and that there is no mala fide in the
order of transfer. It was also pleaded that services of the employee stood
terminated on 15th April, 2005 and on the date of filing of the complaint, the
employee was not in the employment of the respondent employer, therefore, no
complaint of unfair labour practices can be entertained in law. It was also
asserted that the employee had failed to report for duties at the transferred
place, therefore, communications dated 1st April, 2005 and 8th April, 2005 were
addressed to him to resume duties but the employee continued his defiant
attitude of not reporting for work at the transferred place and subsequently,
his services were terminated on 15th April, 2005. It was also pleaded that the
Industrial Court did not have any jurisdiction to return findings on the issue
of termination in a complaint filed under Item 3, 7, 9 and 10 of Schedule IV of
the Act. It was also pleaded that there was no Sagar Unit of Madhya Pradesh
Medical Representatives' Association as per the information of the employer.
Further, it was pleaded that the resignation of Mr. Ashish Khare was voluntary
which was accepted and he was relieved on 6th January, 2005. It was further
pleaded that Mr. Khare came to the Conference without an invitation in a
clandestine manner. It was also stated that transfer of the employee was
discussed by the employer much prior to the actual issuance of the order of
transfer. It was also mentioned that the employee had failed to submit his
expense statements for the months of February and March, 2005 and, therefore, it
was not possible to make payments of salary to the employee.
The Industrial Court examined four issues. The first being whether the employee
was a workman under Section 2(s) of the Industrial Dispute Act, 1947 read with
Section 3(5) of the Act. The second issue being whether the termination order
dated 15th April, 2005 was real, existent and bona fide. The third, whether the
employer had indulged in unfair labour practices under the Act. The last issue
being whether the employee was entitled to the reliefs claimed.
In support of the complaint, the employee filed his affidavit in evidence
reiterating the version given by him in his complaint. The employee in his
cross-examination, as a witness, conducted on 4th June, 2009, admitted that
there was no Union by the name Madhya Pradesh Medical and Sales Representatives'
Association.
Mr. Raj Kumar Chadha furnished his affidavit in evidence on behalf of the
employer. In cross-examination, he deposed that the Employer communicated to the
employee that he must report at the reported place. Since the employee had
failed to report on duty, his services stood terminated.
(i) Whether the employee is entitled to dispute the termination order dated 15th April, 2005 as not real or bona fide for the reason that it was not received by him?
(ii) Whether the employee is entitled to dispute his transfer as unfair labour practice in terms of Item 3 of Schedule IV of the Act without impleading the person who is said to have acted in a mala fide manner?
(iii) Whether the question of malice in law can be inferred in the matter of transfer of an employee as unfair labour practice?
(iv) Whether the order of termination is ancillary to the order of transfer
which confers jurisdiction on the Industrial Court to exercise jurisdiction in
the matter arising out of
allegation of unfair labour practice?
The allegation that the transfer of the appellant was an act of unfair labour practice without impleading the person who is said to have acted in a mala fide manner is not sustainable.
If an employee is transferred after 20 years and that to the
place of headquarters of a company, it cannot be said that the act
of transfer was done without lawful excuse. No inference can be
drawn that an act was done from ill feeling or spite.
in terms of Section 32 of the Act, there need not be any separate challenge to the termination as such termination is a consequence of transfer and, thus, will fall within the scope of Section 32 of the Act.
We do not find any merit in the arguments raised by the learned counsel for the appellant. The jurisdiction of the Industrial Court is, inter alia, to decide complaints relating to unfair labour practices except unfair labour practices falling under Item 1 of Schedule IV. The unfair labour practices mentioned in Item 1 of Schedule IV fall within the jurisdiction of the Labour Court (See Section 7). In view of the specific provision that the complaint relating to unfair labour practices described in Item 1 of Schedule IV fall within the jurisdiction of the Labour Court, therefore, the Industrial Court will not have jurisdiction to examine the question of termination as a consequence of the order of transfer. Since the statute creates a forum for redressal of grievances in respect of termination of services, it is the said forum alone which can be invoked for redressal of grievances. The jurisdiction of a forum can be invoked only in accordance with the statutory provisions. Therefore, alleging termination as a consequence of non-joining on the transferred post will not confer jurisdiction on the Industrial Court. The dispute regarding termination as act of victimization falls exclusively within the jurisdiction of the Labour Court. Consequently, we do not find that the appellant has made out any case for interference against an order passed by the High Court in the present appeal. Therefore, the Labour Court alone was competent to decide the issue of alleged un-lawful termination of the appellant.
In view of the above, we do not find any merit in the present appeal. Accordingly, the appeal is dismissed.