Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971:
s. 7 and Schedule IV Items 3, 7, 9 and 10 – Complaint by employee-workman – Against the employer Company and its General Manager – Alleging that his transfer to Head-office of the employercompany was unjust, unfair illegal, improper, arbitrary and mala fide and amounted to unfair labour practices u/items 3, 7, 9 and 10 of Schedule IV – Plea of the employer interalia was that since the service of the employee had already been terminated due to his not joining at the transferred place, the employee not being in the employment, complaint of unfair practices cannot be entertained – Stand of the employee was that the termination order was not real, existent or bonafide, as he never received the termination order – Industrial Court decided in favour of the employee – High Court set aside the order of Industrial Court – Appeal to supreme Court – Held: The termination order does not become fake or ingenuine, just because the employee did not receive it – The act of transfer can be unfair labour practice, if the transfer is actuated by malafide – In the present case the employee has proved neither malice in fact nor malice in law – The Industrial Court does not have jurisdiction to examine the question of termination as a consequence of the order of transfer because the unfair labour practices mentioned in Item 1 of Schedule IV fall within the jurisdiction of Labour Court and not Industrial Court – Jurisdiction.
Dismissing the appeal, the Court
HELD: 1. 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 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 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. Therefore, the assertion that an order of termination 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 managed not to receive the same, the termination order does not become fake or ingenuine. Thus, 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. [Paras 12 and 13] [1014-G-H; 1015-A; 1016-E-F]
State of Punjab v. Khemi Ram (1969) 3 SCC 28 : [1970]
2 SCR 657 – relied on.
2.1 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. [Para 14][1016-G]
2.2 The allegation in the complaint is that the transfer was actuated for the reason that the employee had raised voice against removal of one of the employees 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 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. [Para 19][1021-E-G]
2.3 The appellant has not laid any foundation to allege a malice in law. 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. 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 the act was done from ill feeling or spite. [Para 21][1022-A-B]
2.4 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. [Para 20][1021-H]
State of Bihar & Anr. v. P.P. Sharma, IAS & Anr. (1992) Supp (1) SCC 222 : [1991] 2 SCR 1; Prabodh Sagar v. Punjab State Electricity Board & Ors. (2000) 5 SCC
630 : [2000] 3 SCR 866; HMT Ltd. & Anr. v. Mudappa & Ors. (2007) 9 SCC 768 : [2007] 2 SCR 363; State of A.P. & Ors. v. Goverdhanlal Pitti (2003) 4 SCC 739 : [2003] 2 SCR 908; Union of India & Ors. v. Ashok Kumar & Ors. (2005) 8 SCC 760 : [2005] 4 Suppl. SCR 317 – relied on.
Ratnagiri Gas and Power Private Limited v. RDS Projects Limited & Ors. (2013) 1 SCC 524 : [2012] 9 SCR 690 – referred to.
3. 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—(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, 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 an act of victimization falls exclusively within the jurisdiction of the Labour Court. Consequently, the appellant has not 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. [Para 23][1022-E-H; 1023-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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