Case: Bikash Bhushan Ghosh  Vs. M/S Novartis India Limited

2. Appellants were workmen of the Respondent company. They were transferred to Siwan (Bihar), Farrukhabad (U.P.) and Karimganj (Assam) by letters of transfer dated 3.10.1994. According to them, the said orders of transfer were violative of the Memorandum of Undertaking dated 18.12.1989 and were issued with anof victimizing them for their trade union activities. As despite requests, the purported orders of transfer were not revoked, they sought intervention of the Labour Commissioner, West Bengal by a letter dated 1.3.1995. Allegedly, a conciliation proceeding was initiated, but during the pendency thereof, their services were terminated by Respondent Company by letters dated 15.4.1995. Contending that the said orders of termination were unauthorized, arbitrary and illegal, as no domestic enquiry was held prior thereto, they raised an industrial dispute.3. The State of West Bengal, in exercise of its jurisdiction under Section 10(1)(c) read with Section 2A of the Industrial Disputes Act, 1947 referred the following dispute for its adjudication to the Third Industrial Tribunal, Westthe termination of service of (1) Shri Bikash Bhusan Ghosh (2) Shri Pradip Kumar Mukherjee and (3) Shri Shyama Charan Mallick is justified? What relief, if any, are they entitledBefore the said Tribunal,a contention was raised that the State of West Bengal had no jurisdiction to make the reference. Parties to the reference, however, adduced their respective evidences on merit of the matter.5. The question in regard to maintainability of the said reference was determined by the Tribunal in terms of an order dated 30.3.1999 holding the same to be maintainable.6. By reason of an Award dated 10.10.2002, the Tribunal opined that the orders of termination passed against the appellants were illegal and they were directed to bein service with back wages. Aggrieved by and dissatisfied with the said order, Respondent filed a Writ Petition before the Calcutta High Court which was marked as W.P. No. 2495 of 2002. By a Judgment and Order dated 11.7.2003, the said Writ Petition was dismissed. On anappeal filed by the Respondents under clause 15 of the Letters Patent of the Calcutta High Court, marked as G.A. No. 3157; a Division Bench of the High Court, however, without going into the merit of the matter held that the State of West Bengal, being not the appropriate Government in respect of the dispute raised by the appellants, had no jurisdiction to make the reference and on that premise allowed the said appeal and consequently set aside the Award made by the Tribunal as also the judgment and order of the learned Single Judge.

Reasoning: 10. As the Division Bench of the High Court did not enter into the merit of the matter, we do not intend to deal with the questions as to whether any conciliation proceedings was, in relation to the orders of transfer passed as against the appellants, in fact pending before the Deputy Labour Commissioner, West Bengal or not. Appellants, however, in our opinion could not have questioned the orders of transfer in view of the nature of the industrial dispute referred to by the State of West Bengal for determination thereof by the III Industrial Tribunal, West Bengal. The orders of transfer were, thus, not in issue before the learned Tribunal.11. It is, however, not disputed that the orders of termination were served upon the appellant at Calcutta. The orders of termination as against them, were passed for not obeying the orders of transfer. The transfer of the appellants, therefore, had some nexus with the order of their termination from services. It is, therefore, not correct to contend that the State of West Bengal was not the appropriate government.With respect to the Division Bench, we do not think that it has posed unto itself a correct question of law. It is not in dispute that the appellants did not join their duties at the transferred places. According to them, as the orders of transfer were illegal, their services were terminated for not complying therewith. The assertion of the respondent that the appellant were relieved from job was unilateral. If the orders of transfer were to be set aside, they would be deemed to be continuing to be posted in Calcutta. The legality of the orders of transfer, thus, had a direct nexus with the orders of termination.