Intentional neglect to join at transferred place by workman amounts to misconduct and attracts disciplinary proceeding

State of West Bengal and Others

Facts of the case:
Appellant being a successor in interest of Santoz India Ltd. which had appointed respondents as their sales representative. Their offer of appointment contained an undisputable clause of transfer.

Thetransfer policy was questioned by 3 of the respondents as they were allegedly relieved from their duties and transferred despite request for withdrawal of the transfer order.

The company denied participation in conciliation initiated by respondents before the Regional Labour commissioner. Also services of respondents were terminated as they failed to report on jobs at transferred places, despite repeated reminders from the company.

Thisresulted in an Industrial Dispute and Government of West Bengal referred thesame to Third Industrial Tribunal, West Bengal for settlement. The authority of the same was challenged by appellants. The Tribunal highlighting lack of domestic inquiry prior to termination contented the order as bad in law and entitled the workmen to back wages but not for reinstatement as they attained superannuation.

The award was challenged by appellants via written petition in High Court of Calcutta which dismissed it. However, in a Letters Patent appeal filed by the appellant, 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 workman before this court. By a judgement and order reported as Bikash Bhusan Gosh and Others vs. Novartis India Ltd. and other,(2007) 5 SCC 591 the Court differed with the findings of the Calcutta High Court and while setting aside the judgement of the High Court remitted back the matter for its review on its own merits. The Division Bench of the Calcutta High Court reviewed the matter and dismissed the Letters Patent Appeal.

The Supreme Court confined to the question of back-wages only.

The Hon’ble Supreme Court observed that when an employee does not join at his transferred place, he commits misconduct. A disciplinary proceeding was, therefore, required to be initiated. The order of discharge is not a substitute for an order of punishment. If an employer is to be dismissed from service on the ground that he had committed misconduct, he was entitled to an opportunity of hearing.It was also observed that even if some income was derived by the employee, the same should be taken in to for consideration for the purpose of consideration in regard to grant of entire back-wages.


Source: Labour Law Reporter, 13 Feb 2009, Supreme Court of India.


Also Check: Other Legal Aspects