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2008(8) Supreme 475
SUPREME COURT OF INDIA
(From Calcutta High Court)
S.B. Sinha and Cyriac Joseph, JJ.
Novartis India Ltd. — Appellant
versus
State of West Bengal and others — Respondents
Civil Appeal No. 7011 of 2008
(Arising out of SLP (C) No. 21254 of 2007)
Decided on : 02-12-2008
(2007) 5 SCC 591 – Referred.
(b) Labour Laws – Back wages – Back wages cannot be granted almost automatically upon setting aside an order of termination – Burden of proof that he remained unemployed would be on the workmen – For the purpose of grant of back wages, besides other factors, conduct of the concerned workman also plays a vital role – Back wages cannot be claimed as a matter of right. (Paras 19 and 20)
(2003) 6 SCC 579; (2005) 5 SCC 124; (2006) 1 SCC 479; (2005) 5 SCC 591; (2006) 4 SCC 733; (2006) 2 SCC 282; (2005) 6 SCC 36; (2005) 7 SCC 406; (2007) 1 SCC 491; (2007) 2 SCC 433 – Relied upon.
(c) Labour Laws – Back wages – If some income was derived by the employee during the period of termination, the same should be taken into for consideration for the purpose of consideration in regard to grant of entire back wages. (Para 30)
2004 II CLR 46 – Cited with approval.
(d) Labour Laws – Last pay drawn – Means wages only at the rate last drawn and not at the same rate at which the wages are being paid to the workmen who are actually working. (Para 31)
(1999) 2 SCC 106 – Relied upon.
(e) Labour Laws – Back wages – Unless an employee is employed, he should not be denied back wages. (Para 36)
(f) Labour Laws – Back wages – Respondents were permanent employees in private employment – Their termination was held illegal – Their discharge therefore was void ab initio – Back wages could have been granted from the date of termination of service. (Para 38)
(2004) 8 SCC 222; (2007) 1 SCC 566 – Relied upon.
(g) Labour Laws – Back wages – Each case should be considered on its own merits. (Para 40)
(2007) 9 SCC 748 – Relied upon.
Facts of the case :
1. Appellant herein is a successor in interest of a company known as Sandoz (India) Limited. Respondents were appointed as Sales Representatives by the said Santoz (India) Limited. Indisputably in terms of offers of appointment they could be transferred from one place to another.
2. In October, 1994 respondent Nos. 2 to 4 were transferred to Siwan, Karimganj and Farrukabad respectively. They were allegedly relieved from their duties and were directed to report at the transferred places on or about 17th October, 1994. They filed their representations requesting for withdrawal/ cancellation of their respective orders of transfer.
3. The company, however, did not accede to the representations and asked respondents to report for duties at their respective transferred places.
4. As the respondents did not join at their transferred places, even after reminders, they were discharged from services by orders dated 15th April, 1995.
5. Questioning the said orders of termination respondent Nos. 2 to 4 raised an industrial dispute. The Government of West Bengal by an order dated 12th June, 1997 referred the said dispute for determination by the Third Industrial Tribunal, West Bengal.
6. The Industrial Tribunal made an award on 10th October, 2002 holding that the orders of termination were bad in law and that the said respondents were entitled to back wages from the date of termination till the date of attaining their normal superannuation.
7. A learned Single Judge of the High Court dismissed the writ petition. However, a Division Bench of the said court, in appeal, held that the State of West Bengal was not the appropriate Government for making the reference. This order was set aside and matter remitted back by the Supreme Court.
8. Pursuant to and in furtherance of the said directions, the matter was considered afresh by a Division Bench of the Calcutta High Court and by reason of the impugned judgment dated 1st August, 2007 the said Letters Patent Appeal was dismissed,
Finding of the Court :
Impugned judgment warrants no interference.
Result : Appeal dismissed with cost.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. Whether back wages should have been directed to be paid in favour of respondent Nos. 2 to 4 by the Industrial Tribunal as also by the High Court of Calcutta is the question involved in this appeal which arises out of a judgment and order dated 1st August, 2007 whereby and whereunder a Letters Patent Appeal filed by the appellant from a judgment and order dated 11th July, 2003 passed by a learned Single Judge of the High Court was affirmed dismissing the writ petition filed by the appellant herein and questioning the validity of an award dated 10th October, 2002.
3. Appellant herein is a successor in interest of a company known as Sandoz (India) Limited. Respondents were appointed as Sales Representatives by the said Santoz (India) Limited. Indisputably in terms of offers of appointment they could be transferred from one place to another.
In October, 1994 respondent Nos. 2 to 4 were transferred to Siwan, Karimganj and Farrukabad respectively. They were allegedly relieved from their duties and were directed to report at the transferred places on or about 17th October, 1994. They filed their representations requesting for withdrawal/ cancellation of their respective orders of transfer.
4. Respondent No.4 sought for cancellation of the order of his transfer on medical grounds.
Respondent No.3 in his representation dated 19th October, 1994 stated:-
“Now, the Company Advocate Shri C.U. Singh has made statement before Her Hon’ble Judge Miss Sondur of Bombay City Civil Court to the effect that “the Defendants shall not take any disciplinary action against the transferred Medical Representatives not reporting to their posts of transfer during the pendency of Notice of Motion”. On this statement, the Notice of Motion are fixed for hearing on 5th October, 1994.
I have not accepted transfer and not reported at the place of transfer in view of the above statement and awaiting result of Motion. I am advised by Association to defer to file suit to challenge the transfer order.”
5. Indisputably Civil Suits were filed in the District Court at Mumbai which were marked as Suit Nos. 6263 and 6290 of 1994 questioning the policy of transfer of the company.
6. The company, however, asked the respondents to report for duties at their respective transferred places. Reminders were sent by the company to respondent Nos. 2 and 4 on 1st April, 1995 while to respondent No.3 on 31st March, 1995. As the respondents did not join at their transferred places, they were discharged from services by orders dated 15th April, 1995, stating: –
“Note that as you have failed to honour adhere to and comply with the contractual obligations on your part, we are left with no alternative but to determine your contract of employment which we hereby do with immediate effect, with one month pay in lieu of notice. The notice pay for a sum of Rs.7311/- (Rupees seven thousand three hundred and eleven only) by a Demand Draft No.736343 dated 14.04.95 is being sent herewith as a part of the same transaction.
Your legal dues arising out of determination of the Contract of Employment shall be remitted to you at your last known local address upon your surrendering all company property such a Detailing Bag, Promotion Aids, Medical Dictionary, Training Manual, Operations Manual, Literatures, Company Correspondence etc. at an early date.”
7. It is, however, not in dispute that in the meantime respondent Nos. 2 to 4 had approached the Regional Labour Commissioner for conciliation. The Company refused to participate therein.
Questioning the said orders of termination respondent Nos. 2 to 4 raised an industrial dispute. The Government of West Bengal by an order dated 12th June, 1997 referred the said dispute for determination by the Third Industrial Tribunal, West Bengal, the terms whereof read as under :-
“Whether the termination of services of (1) Shri Bikash Bhusan Ghosh, (2) Shri Pradip Kumar Mukherjee and (3) Shri Shyama Charan Mallick is
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