whether
the employee was a workman under Section 2(s) of the Industrial
Dispute Act, 1947 read with Section 3(5) of the Act.
whether the termination order dated 15th April, 2005 5 was real, existent and bona fide.
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. =
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8989 OF 2019
(ARISING OUT OF SLP (CIVIL) NO. 6692 OF 2015)
RAJNEESH KHAJURIA .....APPELLANT(S)
VERSUS
M/S. WOCKHARDT LTD. & ANR. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeal is 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.1
was allowed and the
order passed by the Industrial Court on 6th August, 2012 was set
aside.
2. The High Court held that the transfer of the appellant2
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
1 for short, ‘employer’
2 for short, ‘employee’
1
establishment. It was also held that the employee had failed to
challenge the termination order dated 15th April, 2005.
3. Brief facts leading to the present appeal 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.
4. The employee along with National Federation of Sales
Representatives’ Union3
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
3 for short, ‘Union’
4 for short, ‘Act’
2
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
3
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. Relevant assertion in the complaint
reads as under:
“(iii) That the impugned transfer order does not
mention any business exigency and/or administrative
reason/s and, in fact, there does not exist any business
exigency and/or administrative reason/s for suddenly
transferring the Complainant No. 2 from Sagar (Madhya
Pradesh) to Mumbai (State of Maharashtra) because
there are sufficient number of Medical Representatives
working in Mumbai. Thus, there is no business exigency
or administrative reason for transferring the
Complainant No. 2 from Sagar (Madhya Pradesh) to
Mumbai (State of Maharashtra). The impugned transfer
of the Complainant No. 2 is, therefore, malafide transfer
and thereby the Respondents are engaging in the unfair
labour practices under Item 3 of Schedule IV of the
M.R.T.U. & P.U.L.P. Act, 1971.”
5. 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
4
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.
6. 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
5
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.
7. In support of the complaint, the employee filed his affidavit in
evidence reiterating the version given by him in his complaint.
However, in respect of termination alleged by the employer, the
employee stated to the following effect:
“9. I say that the company had addressed me an E-Mail
dated 14th April, 2005, inter alia asking me to report for
work at Mumbai. I say that a copy of the said E-Mail is
filed by me along with my Application dated April 14,
2005, with Application dated 27th July, 2006. I say that I
have never received any termination letter dated
15.4.2005 either by courier or by UPC or by any other
mode of communication. I say that the purported letter
of termination dated 15.4.2005 is not real, existent and
bona fide. I say that it is fake and bogus termination
letter.”
8. The employee in his cross-examination, as a witness, conducted on
4
th June, 2009, admitted that there was no Union by the name
Madhya Pradesh Medical and Sales Representatives’ Association.
9. 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
6
the reported place. Since the employee had failed to report on
duty, his services stood terminated. Relevant extract of the crossexamination of the witness of the employer is reproduced
hereunder:
“With respect to his telegram claiming sick leave w.e.f.
02/04/2005, I say he was communicated by the
management that only if he first reports at transferred
place can it be considered, and hence was not granted.
I say thereafter the services of Mr. Rajneesh Jagannath
Khajoria stood terminated vide company’s letter dated
15.4.2005. I say the transfer order and the termination
letter contents are true and I identify the signatures
therein.”
10. With the said factual background, we find that the following
questions arise for consideration:
(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
7
of transfer which confers jurisdiction on the Industrial
Court to exercise jurisdiction in the matter arising out of
allegation of unfair labour practice?
11. Before we proceed further, relevant statutory provisions from the
Act need to be reproduced hereunder:
“3 (8) “Industrial Court” means an Industrial Court
constituted under section 4;
xx xx xx
3 (10) “Labour Court” means a Labour Court constituted
under Section 6;
xx xx xx
5. Duties of Industrial Court
(a) xx xx xx
(b) xx xx xx
(c) xx xx xx
(d) to decide complaints relating to unfair labour
practices excepts unfair labour practices falling in Item
1 of Schedule IV;
xx xx xx
7. Duties of Labour Court – It shall be the duty of the
Labour Court to decide complaints relating to unfair
labour practices described in Item 1 of Schedule IV and
to try offences punishable under this Act.
xx xx xx
26. Unfair labour practices:- In this Act, unless the
context requires otherwise, ‘unfair labour practices’
mean any of the practices listed in Schedules II, III and
IV.
27. Prohibition on engaging in unfair labour practices:-
8
No employer or union and no employees shall engage in
any unfair labour practice.
xx xx xx
32. Power of Court to decide all connected matters:-
Notwithstanding anything contained in this Act, the
Court shall have the power to decide all matters arising
out of any application or a complaint referred to it for
the decision under any of the provisions of this Act.
xx xx xx
Schedule IV – General Unfair Labour Practices on the
part of employers
1. To discharge or dismiss employees –
(a) by way of victimisation;
(b) not in good faith, but in colourable exercise of
employer’s rights;
(c) by falsely implicating an employee in a criminal
case on false evidence or on concocted evidence;
(d) for patently false reasons;
(e) on untrue or trumped up allegation of absence
without leave;
(f) in utter disregard of the principles of natural
justice in the conduct of domestic enquiry or with
undue haste;
(g) for misconduct of a minor or technical character,
without having any regard to the nature of the
particular misconduct or the past record of
service of the employee, so as to amount to a
shockingly disproportionate punishment.
2. xx xx xx
3. To transfer an employee mala fide from one place to
another, under the guise of following management
policy.”
12. The termination order is said to be fake, bogus and not real or bona
fide for the reason that the employee never received any
termination letter either by courier, UPC or by any other mode of
communication. The statement of the witness of the employer is
9
that the transfer order and termination letter are true. He has
identified the signatures of the authorised representative on such
documents as well. Therefore, it is not possible to accept the
argument that the termination order is not in existence as the
statement of the employer witness has not been challenged. The
only allegation is that the employee has not received the
termination letter. This Court in a judgment reported as State of
Punjab v. Khemi Ram5
held that once the order is issued and sent
out to the concerned government servant, it must be held to have
been communicated to him, no matter when he actually received
it. This Court held as under:
“17. The question then is whether communicating the
order means its actual receipt by the concerned
government servant. The order of suspension in
question was published in the Gazette though that was
after the date when the respondent was to retire. But
the point is whether it was communicated to him before
that date. The ordinary meaning of the word
“communicate” is to impart, confer or transmit
information. (Cf. Shorter Oxford English Dictionary, Vol.
1, p. 352). As already stated, telegrams, dated July 31,
and August 2, 1958, were despatched to the
respondent at the address given by him where
communications by Government should be despatched.
Both the telegrams transmitted or imparted information
to the respondent that he was suspended from service
with effect from August 2, 1958. It may be that he
actually received them in or about the middle of August
1958, after the date of his retirement. But how can it be
said that the information about his having been
suspended was not imparted or transmitted to him on
July 31 and August 2, 1958 i.e. before August 4, 1958,
when he would have retired? It will be seen that in all
the decisions cited before us it was the communication
of the impugned order which was held to be essential
5 (1969) 3 SCC 28
10
and not its actual receipt by the officer concerned and
such communication was held to be necessary because
till the order is issued and actually sent out to the
person concerned the authority making such order
would be in a position to change its mind and modify it
if it thought fit. But once such an order is sent out, it
goes out of the control of such an authority, and
therefore, there would be no chance whatsoever of its
changing its mind or modifying it. In our view, once an
order is issued and it is sent out to the concerned
government servant, it must be held to have been
communicated to him, no matter when he actually
received it. We find it difficult to persuade ourselves to
accept the view that it is only from the date of the
actual receipt by him that the order becomes effective.
If that be the true meaning of communication, it would
be possible for a government servant to effectively
thwart an order by avoiding receipt of it by one method
or the other till after the date of his retirement even
though such an order is passed and despatched to him
before such date. An officer against whom action is
sought to be taken, thus, may go away from the
address given by him for service of such orders or may
deliberately give a wrong address and thus prevent or
delay its receipt and be able to defeat its service on
him. Such a meaning of the word “communication”
ought not to be given unless the provision in question
expressly so provides. Actual knowledge by him of an
order where it is one of dismissal, may, perhaps,
become necessary because of the consequences which
the decision in The State of Punjab v. Amar
Singh contemplates. But such consequences would not
occur in the case of an officer who has proceeded on
leave and against whom an order of suspension is
passed because in his case there is no question of his
doing any act or passing any order and such act or
order being challenged as invalid.” (Emphasis supplied)
13. In view of the aforesaid judgment, the assertion that an order of
transfer was not received by the employee is not relevant to hold
that the termination order was fake. The order was issued, as
deposed by the employer witness. Even if, the employee has
11
managed not to receive the same, the termination order does not
become fake or ingenuine. Therefore, the finding of the Industrial
Court on question No. 2 was rightly set aside by the High Court.
We affirm the order of the High Court but on the ground other than
which weighed with it. Thus, we find that the appellant is not
entitled to dispute the termination order as not real or bona fide for
the reason that it was not received by him.
14. The act of transfer can be unfair labour practice if the transfer is
actuated by mala fide. The allegations of mala fide have two
facets – one malice in law and the other being malice in fact. The
challenge to the transfer is based upon malice in fact as it is an
action taken by the employer on account of two officers present in
Conference. In a judgment reported as State of Bihar & Anr. v.
P.P. Sharma, IAS & Anr.
6
, this Court held that mala fide means
want of good faith, personal bias, grudge, oblique or improper
motive or ulterior purpose. The plea of mala fide involves two
questions, namely (i) whether there is a personal bias or an oblique
motive, and (ii) whether the administrative action is contrary to the
objects, requirements and conditions of a valid exercise of
administrative power. As far as second aspect is concerned, there
is a power of transfer vested in the employer in terms of letter of
appointment. Even in terms of the provisions of the Act, the
transfer by itself cannot be said to be an act of unfair labour
6 1992 Supp (1) SCC 222
12
practice unless it is actuated by mala fide. Therefore, to sustain a
plea of mala fide, there has to be an element of personal bias or an
oblique motive. This Court held as under:
“50. Mala fides means want of good faith, personal
bias, grudge, oblique or improper motive or ulterior
purpose. The administrative action must be said to be
done in good faith, if it is in fact done honestly, whether
it is done negligently or not. An act done honestly is
deemed to have been done in good faith. An
administrative authority must, therefore, act in a bona
fide manner and should never act for an improper
motive or ulterior purposes or contrary to the
requirements of the statute, or the basis of the
circumstances contemplated by law, or improperly
exercised discretion to achieve some ulterior purpose.
The determination of a plea of mala fide involves two
questions, namely (i) whether there is a personal bias
or an oblique motive, and (ii) whether the
administrative action is contrary to the objects,
requirements and conditions of a valid exercise of
administrative power.
51. The action taken must, therefore, be proved to
have been made mala fide for such considerations.
Mere assertion or a vague or bald statement is not
sufficient. It must be demonstrated either by admitted
or proved facts and circumstances obtainable in a given
case. If it is established that the action has been taken
mala fide for any such considerations or by fraud on
power or colourable exercise of power, it cannot be
allowed to stand.
xx xx xx
59. Malice in law could be inferred from doing of
wrongful act intentionally without any just cause or
excuse or without there being reasonable relation to the
purpose of the exercise of statutory power. Malice in law
is not established from the omission to consider some
documents said to be relevant to the accused. Equally
reporting the commission of a crime to the Station
House Officer, cannot be held to be a colourable
exercise of power with bad faith or fraud on power. It
13
may be honest and bona fide exercise of power. There
are no grounds made out or shown to us that the first
information report was not lodged in good faith. State
of Haryana v. Ch. Bhajan Lal [1992 Supp (1) SCC 335 :
JT 1990 (4) SC 650] is an authority for the proposition
that existence of deep seated political vendetta is not a
ground to quash the FIR. Therein despite the attempt by
the respondent to prove by affidavit evidence
corroborated by documents of the mala fides and even
on facts as alleged no offence was committed, this
Court declined to go into those allegations and
relegated the dispute for investigation. Unhesitatingly I
hold that the findings of the High Court that FIR gets
vitiated by the mala fides of the Administrator and the
charge-sheets are the results of the mala fides of the
informant or investigator, to say the least, is fantastic
and obvious gross error of law.”
15. In another judgment reported as Prabodh Sagar v. Punjab State
Electricity Board & Ors.
7
, it was held by this Court that the mere
use of the expression “mala fide” would not by itself make the
petition entertainable. The Court held as under:
“13. … Incidentally, be it noted that the expression
“mala fide” is not meaningless jargon and it has its
proper connotation. Malice or mala fides can only be
appreciated from the records of the case in the facts of
each case. There cannot possibly be any set guidelines
in regard to the proof of mala fides. Mala fides, where it
is alleged, depends upon its own facts and
circumstances. We ourselves feel it expedient to record
that the petitioner has become more of a liability than
an asset and in the event of there being such a
situation vis-à-vis an employee, the employer will be
within his liberty to take appropriate steps including the
cessation of relationship between the employer and the
employee. The service conditions of the Board's
employees also provide for voluntary (sic compulsory)
retirement, a person of the nature of the petitioner, as
more fully detailed hereinbefore, cannot possibly be
given any redress against the order of the Board for
7 (2000) 5 SCC 630
14
voluntary retirement. There must be factual support
pertaining to the allegations of mala fides,
unfortunately there is none. Mere user of the word
“mala fide” by the petitioner would not by itself make
the petition entertainable. The Court must scan the
factual aspect and come to its own conclusion i.e.
exactly what the High Court has done and that is the
reason why the narration has been noted in this
judgment in extenso. …”
16. In a judgment reported as HMT Ltd. & Anr. v. Mudappa & Ors.
8
,
quoting from earlier judgment of this Court reported as State of
A.P. & Ors. v. Goverdhanlal Pitti
9
, it was held that ‘legal malice’
or ‘malice in law’ means ‘something done without lawful excuse’. It
is an act done wrongfully and willfully without reasonable or
probable cause, and not necessarily an act done from ill feeling and
spite. The Court held as under:
“24. The Court also explained the concept of legal mala
fide. By referring to Words and Phrases Legally Defined,
3rd Edn., London Butterworths, 1989 the Court stated:
(Goverdhanlal case [(2003) 4 SCC 739], SCC p. 744,
para 12)
“12. The legal meaning of malice is ‘ill will or
spite towards a party and any indirect or
improper motive in taking an action’. This is
sometimes described as ‘malice in fact’. ‘Legal
malice’ or ‘malice in law’ means ‘something
done without lawful excuse’. In other words, ‘it
is an act done wrongfully and wilfully without
reasonable or probable cause, and not
necessarily an act done from ill feeling and
spite. It is a deliberate act in disregard of the
rights of others.’ ”
It was observed that where malice was attributed to the
State, it could not be a case of malice in fact, or
8 (2007) 9 SCC 768
9 (2003) 4 SCC 739
15
personal ill-will or spite on the part of the State. It could
only be malice in law i.e. legal mala fide. The State, if it
wishes to acquire land, could exercise its power bona
fide for statutory purpose and for none other. It was
observed that it was only because of the decree passed
in favour of the owner that the proceedings for
acquisition were necessary and hence, notification was
issued. Such an action could not be held mala fide.”
17. In a judgment reported as Union of India & Ors. v. Ashok
Kumar & Ors.
10
, it has been held that allegations of mala fides are
often more easily made than proved, and the very seriousness of
such allegations demands proof of a high order of credibility. The
Court held as under:
“21. Doubtless, he who seeks to invalidate or nullify any
act or order must establish the charge of bad faith, an
abuse or a misuse by the authority of its powers. While
the indirect motive or purpose, or bad faith or personal
ill will is not to be held established except on clear proof
thereof, it is obviously difficult to establish the state of a
man's mind, for that is what the employee has to
establish in this case, though this may sometimes be
done. The difficulty is not lessened when one has to
establish that a person apparently acting on the
legitimate exercise of power has, in fact, been acting
mala fide in the sense of pursuing an illegitimate aim. It
is not the law that mala fides in the sense of improper
motive should be established only by direct evidence.
But it must be discernible from the order impugned or
must be shown from the established surrounding
factors which preceded the order. If bad faith would
vitiate the order, the same can, in our opinion, be
deduced as a reasonable and inescapable inference
from proved facts. (S. Pratap Singh v. State of
Punjab [(1964) 4 SCR 733 : AIR 1964 SC 72] .) It cannot
be overlooked that the burden of establishing mala
fides is very heavy on the person who alleges it. The
allegations of mala fides are often more easily made
10 (2005) 8 SCC 760
16
than proved, and the very seriousness of such
allegations demands proof of a high order of credibility.
As noted by this Court in E.P. Royappa v. State of
T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974
SC 555] courts would be slow to draw dubious
inferences from incomplete facts placed before them by
a party, particularly when the imputations are grave
and they are made against the holder of an office which
has a high responsibility in the administration.
(See Indian Rly. Construction Co. Ltd. v. Ajay
Kumar [(2003) 4 SCC 579 : 2003 SCC (L&S) 528] .)”
18. In another judgment reported as Ratnagiri Gas and Power
Private Limited v. RDS Projects Limited & Ors.
11
, this Court
held that when allegations of mala fides are made, the persons
against whom the same are levelled need to be impleaded as
parties to the proceedings to enable them to answer the charge. A
judicial pronouncement declaring an action to be mala fide is a
serious indictment of the person concerned that can lead to
adverse civil consequences against him. The Court held as under:
“27. There is yet another aspect which cannot be
ignored. As and when allegations of mala fides are
made, the persons against whom the same are levelled
need to be impleaded as parties to the proceedings to
enable them to answer the charge. In the absence of
the person concerned as a party in his/her individual
capacity it will neither be fair nor proper to record a
finding that malice in fact had vitiated the action taken
by the authority concerned. It is important to remember
that a judicial pronouncement declaring an action to be
mala fide is a serious indictment of the person
concerned that can lead to adverse civil consequences
against him. Courts have, therefore, to be slow in
drawing conclusions when it comes to holding
allegations of mala fides to be proved and only in cases
11 (2013) 1 SCC 524
17
where based on the material placed before the Court or
facts that are admitted leading to inevitable inferences
supporting the charge of mala fides that the Court
should record a finding in the process ensuring that
while it does so, it also hears the person who was likely
to be affected by such a finding.”
19. The allegation in the complaint is that the transfer was actuated
for the reason that the employee had raised voice against removal
of Shri Khare from the venue of a Conference. The officers present
in the said Conference were the Regional Manager or Sales
Manager, whereas order of transfer was passed by Mr. Suresh
Srinivasan, General Manager-HR. It is an admitted fact that there
is power of transfer with the employer. The allegations are against
the persons present in the Conference but there is no allegation
against the person who has passed the order of transfer. None of
the named persons including the person present in Conference
have been impleaded as parties to rebut such allegations. Since
the order of transfer is in terms of the letter of appointment,
therefore, the mere fact that the employee was transferred will per
se not make it mala fide. The allegations of mala fide are easier to
levy than to prove.
20. Therefore, 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.
18
21. We do not find that the appellant has laid any foundation to allege
a malice in law. As mentioned in the judgments referred to above,
malice in law would be something which is done without lawful
excuse or an act done wrongfully and willfully without reasonable
or probable cause. There is power of transfer in the letter of
appointment. The appellant has stayed at Sagar for almost 20
years. 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.
22. The next question which was vehemently argued by Mr. Cama,
learned senior counsel for the employer was that the order of
termination can be disputed only before the Labour Court in terms
of Section 7 of the Act read with Item 1 of Schedule IV of the Act
and not before the Industrial Court. Learned counsel for the
appellant argued that the termination was ancillary to the order of
transfer or a consequence of not joining the transferred station.
Therefore, 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.
19
23. 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.
20
24. In view of the above, we do not find any merit in the present
appeal. Accordingly, the appeal is dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
JANUARY 15, 2020.
21
whether the termination order dated 15th April, 2005 5 was real, existent and bona fide.
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. =
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8989 OF 2019
(ARISING OUT OF SLP (CIVIL) NO. 6692 OF 2015)
RAJNEESH KHAJURIA .....APPELLANT(S)
VERSUS
M/S. WOCKHARDT LTD. & ANR. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeal is 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.1
was allowed and the
order passed by the Industrial Court on 6th August, 2012 was set
aside.
2. The High Court held that the transfer of the appellant2
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
1 for short, ‘employer’
2 for short, ‘employee’
1
establishment. It was also held that the employee had failed to
challenge the termination order dated 15th April, 2005.
3. Brief facts leading to the present appeal 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.
4. The employee along with National Federation of Sales
Representatives’ Union3
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
3 for short, ‘Union’
4 for short, ‘Act’
2
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
3
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. Relevant assertion in the complaint
reads as under:
“(iii) That the impugned transfer order does not
mention any business exigency and/or administrative
reason/s and, in fact, there does not exist any business
exigency and/or administrative reason/s for suddenly
transferring the Complainant No. 2 from Sagar (Madhya
Pradesh) to Mumbai (State of Maharashtra) because
there are sufficient number of Medical Representatives
working in Mumbai. Thus, there is no business exigency
or administrative reason for transferring the
Complainant No. 2 from Sagar (Madhya Pradesh) to
Mumbai (State of Maharashtra). The impugned transfer
of the Complainant No. 2 is, therefore, malafide transfer
and thereby the Respondents are engaging in the unfair
labour practices under Item 3 of Schedule IV of the
M.R.T.U. & P.U.L.P. Act, 1971.”
5. 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
4
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.
6. 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
5
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.
7. In support of the complaint, the employee filed his affidavit in
evidence reiterating the version given by him in his complaint.
However, in respect of termination alleged by the employer, the
employee stated to the following effect:
“9. I say that the company had addressed me an E-Mail
dated 14th April, 2005, inter alia asking me to report for
work at Mumbai. I say that a copy of the said E-Mail is
filed by me along with my Application dated April 14,
2005, with Application dated 27th July, 2006. I say that I
have never received any termination letter dated
15.4.2005 either by courier or by UPC or by any other
mode of communication. I say that the purported letter
of termination dated 15.4.2005 is not real, existent and
bona fide. I say that it is fake and bogus termination
letter.”
8. The employee in his cross-examination, as a witness, conducted on
4
th June, 2009, admitted that there was no Union by the name
Madhya Pradesh Medical and Sales Representatives’ Association.
9. 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
6
the reported place. Since the employee had failed to report on
duty, his services stood terminated. Relevant extract of the crossexamination of the witness of the employer is reproduced
hereunder:
“With respect to his telegram claiming sick leave w.e.f.
02/04/2005, I say he was communicated by the
management that only if he first reports at transferred
place can it be considered, and hence was not granted.
I say thereafter the services of Mr. Rajneesh Jagannath
Khajoria stood terminated vide company’s letter dated
15.4.2005. I say the transfer order and the termination
letter contents are true and I identify the signatures
therein.”
10. With the said factual background, we find that the following
questions arise for consideration:
(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
7
of transfer which confers jurisdiction on the Industrial
Court to exercise jurisdiction in the matter arising out of
allegation of unfair labour practice?
11. Before we proceed further, relevant statutory provisions from the
Act need to be reproduced hereunder:
“3 (8) “Industrial Court” means an Industrial Court
constituted under section 4;
xx xx xx
3 (10) “Labour Court” means a Labour Court constituted
under Section 6;
xx xx xx
5. Duties of Industrial Court
(a) xx xx xx
(b) xx xx xx
(c) xx xx xx
(d) to decide complaints relating to unfair labour
practices excepts unfair labour practices falling in Item
1 of Schedule IV;
xx xx xx
7. Duties of Labour Court – It shall be the duty of the
Labour Court to decide complaints relating to unfair
labour practices described in Item 1 of Schedule IV and
to try offences punishable under this Act.
xx xx xx
26. Unfair labour practices:- In this Act, unless the
context requires otherwise, ‘unfair labour practices’
mean any of the practices listed in Schedules II, III and
IV.
27. Prohibition on engaging in unfair labour practices:-
8
No employer or union and no employees shall engage in
any unfair labour practice.
xx xx xx
32. Power of Court to decide all connected matters:-
Notwithstanding anything contained in this Act, the
Court shall have the power to decide all matters arising
out of any application or a complaint referred to it for
the decision under any of the provisions of this Act.
xx xx xx
Schedule IV – General Unfair Labour Practices on the
part of employers
1. To discharge or dismiss employees –
(a) by way of victimisation;
(b) not in good faith, but in colourable exercise of
employer’s rights;
(c) by falsely implicating an employee in a criminal
case on false evidence or on concocted evidence;
(d) for patently false reasons;
(e) on untrue or trumped up allegation of absence
without leave;
(f) in utter disregard of the principles of natural
justice in the conduct of domestic enquiry or with
undue haste;
(g) for misconduct of a minor or technical character,
without having any regard to the nature of the
particular misconduct or the past record of
service of the employee, so as to amount to a
shockingly disproportionate punishment.
2. xx xx xx
3. To transfer an employee mala fide from one place to
another, under the guise of following management
policy.”
12. The termination order is said to be fake, bogus and not real or bona
fide for the reason that the employee never received any
termination letter either by courier, UPC or by any other mode of
communication. The statement of the witness of the employer is
9
that the transfer order and termination letter are true. He has
identified the signatures of the authorised representative on such
documents as well. Therefore, it is not possible to accept the
argument that the termination order is not in existence as the
statement of the employer witness has not been challenged. The
only allegation is that the employee has not received the
termination letter. This Court in a judgment reported as State of
Punjab v. Khemi Ram5
held that once the order is issued and sent
out to the concerned government servant, it must be held to have
been communicated to him, no matter when he actually received
it. This Court held as under:
“17. The question then is whether communicating the
order means its actual receipt by the concerned
government servant. The order of suspension in
question was published in the Gazette though that was
after the date when the respondent was to retire. But
the point is whether it was communicated to him before
that date. The ordinary meaning of the word
“communicate” is to impart, confer or transmit
information. (Cf. Shorter Oxford English Dictionary, Vol.
1, p. 352). As already stated, telegrams, dated July 31,
and August 2, 1958, were despatched to the
respondent at the address given by him where
communications by Government should be despatched.
Both the telegrams transmitted or imparted information
to the respondent that he was suspended from service
with effect from August 2, 1958. It may be that he
actually received them in or about the middle of August
1958, after the date of his retirement. But how can it be
said that the information about his having been
suspended was not imparted or transmitted to him on
July 31 and August 2, 1958 i.e. before August 4, 1958,
when he would have retired? It will be seen that in all
the decisions cited before us it was the communication
of the impugned order which was held to be essential
5 (1969) 3 SCC 28
10
and not its actual receipt by the officer concerned and
such communication was held to be necessary because
till the order is issued and actually sent out to the
person concerned the authority making such order
would be in a position to change its mind and modify it
if it thought fit. But once such an order is sent out, it
goes out of the control of such an authority, and
therefore, there would be no chance whatsoever of its
changing its mind or modifying it. In our view, once an
order is issued and it is sent out to the concerned
government servant, it must be held to have been
communicated to him, no matter when he actually
received it. We find it difficult to persuade ourselves to
accept the view that it is only from the date of the
actual receipt by him that the order becomes effective.
If that be the true meaning of communication, it would
be possible for a government servant to effectively
thwart an order by avoiding receipt of it by one method
or the other till after the date of his retirement even
though such an order is passed and despatched to him
before such date. An officer against whom action is
sought to be taken, thus, may go away from the
address given by him for service of such orders or may
deliberately give a wrong address and thus prevent or
delay its receipt and be able to defeat its service on
him. Such a meaning of the word “communication”
ought not to be given unless the provision in question
expressly so provides. Actual knowledge by him of an
order where it is one of dismissal, may, perhaps,
become necessary because of the consequences which
the decision in The State of Punjab v. Amar
Singh contemplates. But such consequences would not
occur in the case of an officer who has proceeded on
leave and against whom an order of suspension is
passed because in his case there is no question of his
doing any act or passing any order and such act or
order being challenged as invalid.” (Emphasis supplied)
13. In view of the aforesaid judgment, the assertion that an order of
transfer was not received by the employee is not relevant to hold
that the termination order was fake. The order was issued, as
deposed by the employer witness. Even if, the employee has
11
managed not to receive the same, the termination order does not
become fake or ingenuine. Therefore, the finding of the Industrial
Court on question No. 2 was rightly set aside by the High Court.
We affirm the order of the High Court but on the ground other than
which weighed with it. Thus, we find that the appellant is not
entitled to dispute the termination order as not real or bona fide for
the reason that it was not received by him.
14. The act of transfer can be unfair labour practice if the transfer is
actuated by mala fide. The allegations of mala fide have two
facets – one malice in law and the other being malice in fact. The
challenge to the transfer is based upon malice in fact as it is an
action taken by the employer on account of two officers present in
Conference. In a judgment reported as State of Bihar & Anr. v.
P.P. Sharma, IAS & Anr.
6
, this Court held that mala fide means
want of good faith, personal bias, grudge, oblique or improper
motive or ulterior purpose. The plea of mala fide involves two
questions, namely (i) whether there is a personal bias or an oblique
motive, and (ii) whether the administrative action is contrary to the
objects, requirements and conditions of a valid exercise of
administrative power. As far as second aspect is concerned, there
is a power of transfer vested in the employer in terms of letter of
appointment. Even in terms of the provisions of the Act, the
transfer by itself cannot be said to be an act of unfair labour
6 1992 Supp (1) SCC 222
12
practice unless it is actuated by mala fide. Therefore, to sustain a
plea of mala fide, there has to be an element of personal bias or an
oblique motive. This Court held as under:
“50. Mala fides means want of good faith, personal
bias, grudge, oblique or improper motive or ulterior
purpose. The administrative action must be said to be
done in good faith, if it is in fact done honestly, whether
it is done negligently or not. An act done honestly is
deemed to have been done in good faith. An
administrative authority must, therefore, act in a bona
fide manner and should never act for an improper
motive or ulterior purposes or contrary to the
requirements of the statute, or the basis of the
circumstances contemplated by law, or improperly
exercised discretion to achieve some ulterior purpose.
The determination of a plea of mala fide involves two
questions, namely (i) whether there is a personal bias
or an oblique motive, and (ii) whether the
administrative action is contrary to the objects,
requirements and conditions of a valid exercise of
administrative power.
51. The action taken must, therefore, be proved to
have been made mala fide for such considerations.
Mere assertion or a vague or bald statement is not
sufficient. It must be demonstrated either by admitted
or proved facts and circumstances obtainable in a given
case. If it is established that the action has been taken
mala fide for any such considerations or by fraud on
power or colourable exercise of power, it cannot be
allowed to stand.
xx xx xx
59. Malice in law could be inferred from doing of
wrongful act intentionally without any just cause or
excuse or without there being reasonable relation to the
purpose of the exercise of statutory power. Malice in law
is not established from the omission to consider some
documents said to be relevant to the accused. Equally
reporting the commission of a crime to the Station
House Officer, cannot be held to be a colourable
exercise of power with bad faith or fraud on power. It
13
may be honest and bona fide exercise of power. There
are no grounds made out or shown to us that the first
information report was not lodged in good faith. State
of Haryana v. Ch. Bhajan Lal [1992 Supp (1) SCC 335 :
JT 1990 (4) SC 650] is an authority for the proposition
that existence of deep seated political vendetta is not a
ground to quash the FIR. Therein despite the attempt by
the respondent to prove by affidavit evidence
corroborated by documents of the mala fides and even
on facts as alleged no offence was committed, this
Court declined to go into those allegations and
relegated the dispute for investigation. Unhesitatingly I
hold that the findings of the High Court that FIR gets
vitiated by the mala fides of the Administrator and the
charge-sheets are the results of the mala fides of the
informant or investigator, to say the least, is fantastic
and obvious gross error of law.”
15. In another judgment reported as Prabodh Sagar v. Punjab State
Electricity Board & Ors.
7
, it was held by this Court that the mere
use of the expression “mala fide” would not by itself make the
petition entertainable. The Court held as under:
“13. … Incidentally, be it noted that the expression
“mala fide” is not meaningless jargon and it has its
proper connotation. Malice or mala fides can only be
appreciated from the records of the case in the facts of
each case. There cannot possibly be any set guidelines
in regard to the proof of mala fides. Mala fides, where it
is alleged, depends upon its own facts and
circumstances. We ourselves feel it expedient to record
that the petitioner has become more of a liability than
an asset and in the event of there being such a
situation vis-à-vis an employee, the employer will be
within his liberty to take appropriate steps including the
cessation of relationship between the employer and the
employee. The service conditions of the Board's
employees also provide for voluntary (sic compulsory)
retirement, a person of the nature of the petitioner, as
more fully detailed hereinbefore, cannot possibly be
given any redress against the order of the Board for
7 (2000) 5 SCC 630
14
voluntary retirement. There must be factual support
pertaining to the allegations of mala fides,
unfortunately there is none. Mere user of the word
“mala fide” by the petitioner would not by itself make
the petition entertainable. The Court must scan the
factual aspect and come to its own conclusion i.e.
exactly what the High Court has done and that is the
reason why the narration has been noted in this
judgment in extenso. …”
16. In a judgment reported as HMT Ltd. & Anr. v. Mudappa & Ors.
8
,
quoting from earlier judgment of this Court reported as State of
A.P. & Ors. v. Goverdhanlal Pitti
9
, it was held that ‘legal malice’
or ‘malice in law’ means ‘something done without lawful excuse’. It
is an act done wrongfully and willfully without reasonable or
probable cause, and not necessarily an act done from ill feeling and
spite. The Court held as under:
“24. The Court also explained the concept of legal mala
fide. By referring to Words and Phrases Legally Defined,
3rd Edn., London Butterworths, 1989 the Court stated:
(Goverdhanlal case [(2003) 4 SCC 739], SCC p. 744,
para 12)
“12. The legal meaning of malice is ‘ill will or
spite towards a party and any indirect or
improper motive in taking an action’. This is
sometimes described as ‘malice in fact’. ‘Legal
malice’ or ‘malice in law’ means ‘something
done without lawful excuse’. In other words, ‘it
is an act done wrongfully and wilfully without
reasonable or probable cause, and not
necessarily an act done from ill feeling and
spite. It is a deliberate act in disregard of the
rights of others.’ ”
It was observed that where malice was attributed to the
State, it could not be a case of malice in fact, or
8 (2007) 9 SCC 768
9 (2003) 4 SCC 739
15
personal ill-will or spite on the part of the State. It could
only be malice in law i.e. legal mala fide. The State, if it
wishes to acquire land, could exercise its power bona
fide for statutory purpose and for none other. It was
observed that it was only because of the decree passed
in favour of the owner that the proceedings for
acquisition were necessary and hence, notification was
issued. Such an action could not be held mala fide.”
17. In a judgment reported as Union of India & Ors. v. Ashok
Kumar & Ors.
10
, it has been held that allegations of mala fides are
often more easily made than proved, and the very seriousness of
such allegations demands proof of a high order of credibility. The
Court held as under:
“21. Doubtless, he who seeks to invalidate or nullify any
act or order must establish the charge of bad faith, an
abuse or a misuse by the authority of its powers. While
the indirect motive or purpose, or bad faith or personal
ill will is not to be held established except on clear proof
thereof, it is obviously difficult to establish the state of a
man's mind, for that is what the employee has to
establish in this case, though this may sometimes be
done. The difficulty is not lessened when one has to
establish that a person apparently acting on the
legitimate exercise of power has, in fact, been acting
mala fide in the sense of pursuing an illegitimate aim. It
is not the law that mala fides in the sense of improper
motive should be established only by direct evidence.
But it must be discernible from the order impugned or
must be shown from the established surrounding
factors which preceded the order. If bad faith would
vitiate the order, the same can, in our opinion, be
deduced as a reasonable and inescapable inference
from proved facts. (S. Pratap Singh v. State of
Punjab [(1964) 4 SCR 733 : AIR 1964 SC 72] .) It cannot
be overlooked that the burden of establishing mala
fides is very heavy on the person who alleges it. The
allegations of mala fides are often more easily made
10 (2005) 8 SCC 760
16
than proved, and the very seriousness of such
allegations demands proof of a high order of credibility.
As noted by this Court in E.P. Royappa v. State of
T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974
SC 555] courts would be slow to draw dubious
inferences from incomplete facts placed before them by
a party, particularly when the imputations are grave
and they are made against the holder of an office which
has a high responsibility in the administration.
(See Indian Rly. Construction Co. Ltd. v. Ajay
Kumar [(2003) 4 SCC 579 : 2003 SCC (L&S) 528] .)”
18. In another judgment reported as Ratnagiri Gas and Power
Private Limited v. RDS Projects Limited & Ors.
11
, this Court
held that when allegations of mala fides are made, the persons
against whom the same are levelled need to be impleaded as
parties to the proceedings to enable them to answer the charge. A
judicial pronouncement declaring an action to be mala fide is a
serious indictment of the person concerned that can lead to
adverse civil consequences against him. The Court held as under:
“27. There is yet another aspect which cannot be
ignored. As and when allegations of mala fides are
made, the persons against whom the same are levelled
need to be impleaded as parties to the proceedings to
enable them to answer the charge. In the absence of
the person concerned as a party in his/her individual
capacity it will neither be fair nor proper to record a
finding that malice in fact had vitiated the action taken
by the authority concerned. It is important to remember
that a judicial pronouncement declaring an action to be
mala fide is a serious indictment of the person
concerned that can lead to adverse civil consequences
against him. Courts have, therefore, to be slow in
drawing conclusions when it comes to holding
allegations of mala fides to be proved and only in cases
11 (2013) 1 SCC 524
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where based on the material placed before the Court or
facts that are admitted leading to inevitable inferences
supporting the charge of mala fides that the Court
should record a finding in the process ensuring that
while it does so, it also hears the person who was likely
to be affected by such a finding.”
19. The allegation in the complaint is that the transfer was actuated
for the reason that the employee had raised voice against removal
of Shri Khare from the venue of a Conference. The officers present
in the said Conference were the Regional Manager or Sales
Manager, whereas order of transfer was passed by Mr. Suresh
Srinivasan, General Manager-HR. It is an admitted fact that there
is power of transfer with the employer. The allegations are against
the persons present in the Conference but there is no allegation
against the person who has passed the order of transfer. None of
the named persons including the person present in Conference
have been impleaded as parties to rebut such allegations. Since
the order of transfer is in terms of the letter of appointment,
therefore, the mere fact that the employee was transferred will per
se not make it mala fide. The allegations of mala fide are easier to
levy than to prove.
20. Therefore, 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.
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21. We do not find that the appellant has laid any foundation to allege
a malice in law. As mentioned in the judgments referred to above,
malice in law would be something which is done without lawful
excuse or an act done wrongfully and willfully without reasonable
or probable cause. There is power of transfer in the letter of
appointment. The appellant has stayed at Sagar for almost 20
years. 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.
22. The next question which was vehemently argued by Mr. Cama,
learned senior counsel for the employer was that the order of
termination can be disputed only before the Labour Court in terms
of Section 7 of the Act read with Item 1 of Schedule IV of the Act
and not before the Industrial Court. Learned counsel for the
appellant argued that the termination was ancillary to the order of
transfer or a consequence of not joining the transferred station.
Therefore, 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.
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23. 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.
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24. In view of the above, we do not find any merit in the present
appeal. Accordingly, the appeal is dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
JANUARY 15, 2020.
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