Case: Novartis India Ltd Vs. State Of West Bengal

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, 1994the Company Advocate Shri C.U. Singh has made statement before Her Honble 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.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,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.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 asthe termination of services of (1) Shri Bikash Bhusan Ghosh, (2) Shri Pradip Kumar Mukherjee and (3) Shri Shyama Charan Mallick is justified? What relief, if any, are theyThe company filed its written statement before the Industrial Tribunal inter alia questioning its jurisdiction. A preliminary issue was raised as regards the maintainability of the reference on the ground that the dispute, if any, could have been raised only at the transferred locations and the appropriate State Governments where respondent Nos. 2 to 4 have been transferred only had the jurisdiction to refer the alleged dispute. By an order dated 30th March, 1999 the said preliminary objection was rejected. The Industrial Tribunal made an award on 10th October, 2002 holding that since no domestic inquiry was conducted before passing the orders of termination, the same were bad in law. It was observed that since the said respondents had superannuated in the meantime, the question of directing their reinstatement did not arise. It however, held that the said respondents were entitled to back wages from the date of termination till the date of attaining their normal superannuation. However, it was directed that the back wages should be calculated on the basis of the last pay drawn.9. Questioning the validity of said award a writ petition was filed before the High Court of Calcutta. A learned Single Judge of the High Court dismissed the writ petition. However, in a Letters Patent Appeal filed by the appellant, by a judgment and order dated 1st March, 2006, a Division Bench of the said court held that the State of West Bengal was not the appropriate Government for making the reference. A Special Leave Petition was filed by the workmen before this Court. By a judgment and order dated 27th April, 2007, reported as Bikash Bhushan Ghosh and others v. Novartis India Ltd and another, [(2007) 5 SCC 591] this Court differed with the findings of the Calcutta High Court and while setting aside the judgment of the High Court remitted back the matter to it for consideration of the matter on its own merits.10. 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,a perusal of the award passed by the learned Tribunal, we find that the learned Judge, 3rd Industrial Tribunal, Calcutta decided the matter after taking into consideration the entire evidence on record and we do not find any reason to send back the mater again to the Tribunal to decide the matter on merits after taking into consideration the same evidence on record. So far as the payment of back wages we also do not find any reason to interfere with the same.This Court issued notice on 23rd November, 2007 confined to the question of back wages only.

Reasoning:
Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in thatwere in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination ofIndustrial Court had directed calculation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. In view of the fact that the same attained finality, this Court is not inclined to exercise its jurisdiction under Article 142 of the Constitution of India for the purpose directing payment of back wages on the basis of revised scale of pay and, thus, it will not be fit and proper to interfere with the impugned judgment while noticing the law in this behalf.