REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8989 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 6692 OF 2015)

RAJNEESH KHAJURIA .....APPELLANT(S)

VERSUS

M/S. WOCKHARDT LTD. & ANR. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by the

High Court of Judicature at Bombay on 21st January, 2014 whereby

the writ petition filed by M/s. Wockhardt Ltd.1 was allowed and the

order passed by the Industrial Court on 6th August, 2012 was set

aside.

2. The High Court held that the transfer of the appellant2 was as per

the terms and conditions  of  employment.   It  was held  that  the

employer had to decide who should work at particular place and

who  was  to  be  transferred  to  another  place  in  the  interest  of

1  for short, ‘employer’ 2  for short, ‘employee’

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establishment.  It  was also held that the employee had failed to

challenge the termination order dated 15th April, 2005.   

3. Brief facts leading to the present appeal are that the employee was

appointed  on  6th June,  1985  as  a  Professional  Service

Representative  and  was  posted  at  Sagar,  Madhya  Pradesh.

Thereafter, he was promoted to Field Sales Officer Grade FM-One.

One of the conditions in the letter of  appointment was that the

employer  shall  be  entitled,  at  any  time  during  the  course  of

employment,  to  transfer  the  employee  to  any  of  its  affiliates,

subsidiaries or sister companies.  The employee was transferred to

Mumbai on 21st March, 2005 with immediate effect.  The employee

did not join duty at Mumbai; therefore, reminders were sent by the

employer on 1st April, 2005 and 8th April, 2005.  The service of the

employee was terminated on 15th April, 2005.   

4. The  employee  along  with  National  Federation  of  Sales

Representatives’ Union3 filed a complaint on 30th April, 2005 before

the  Industrial  Court,  Maharashtra  established  under  the

Maharashtra Recognition of Trade Unions and Prevention of Unfair

Labour Practices Act, 19714.  The allegation of the employee is that

he had reasonable and bona fide apprehension that the employer,

after  filing of  the present  complaint,  was going to take adverse

actions  such  as  mala  fide transfers,  suspension,  disciplinary

actions, summary terminations etc. against N.P. Mishra, Rajendra

3  for short, ‘Union’ 4  for short, ‘Act’

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Khandelwal,  Sandeep Mitra,  Manoj  Bhatt,  Rajaram V.  Baliga  and

Rajkumar  Jasnani.   The  employee  has  alleged that  the  basis  of

apprehended action against the employees mentioned by him was

that they have filed affidavits in his favour against unfair labour

practices,  high  handed  actions,  atrocities  etc.  committed  by

employer company and its employer on 15th March, 2005 during

the Launching Conference at Ahmedabad.  The employee alleged

that he was the President of Sagar Unit of Madhya Pradesh Medical

Representatives’ Association which is affiliated to complainant No.

1 i.e. the Union.  The employee also alleged that one Mr. Ashish

Khare, an active member of the Union was forced to resign from

the employment of the employer company in January, 2005 but the

same was not accepted.  He was paid wages till February, 2005.

He was invited for a Launching Conference but two managers of

the employer company Deepak Sethi, Sales Manager and Sanjay

Anand, Regional Manager drove Mr. Ashish Khare out of the hotel at

night time.  The employee had protested against the same and it is

on account of raising his voice against the said atrocities and acts

of  force,  the  employee  was  threatened  that  he  would  be

transferred  and  his  other  colleagues  would  also  be  dealt  with

severely by the employer.  Soon after the Conference was over, the

employee was transferred on 21st March, 2005.  Such transfer order

was received on 4th April,  2005.  The employee alleged that his

transfer  was unjust,  unfair,  illegal,  improper,  arbitrary and  mala

fide, amounting to unfair labour practices under Item 3, 7, 9 and 10

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of Schedule IV of the Act.  It may be noticed at this stage that the

complaint was filed against the company and its General Manager

(HR)  in its  official  capacity.   Relevant assertion in the complaint

reads as under:

“(iii)   That  the  impugned  transfer  order  does  not mention  any  business  exigency  and/or  administrative reason/s and, in fact, there does not exist any business exigency  and/or  administrative  reason/s  for  suddenly transferring the Complainant No. 2 from Sagar (Madhya Pradesh)  to  Mumbai  (State  of  Maharashtra)  because there are sufficient number of Medical Representatives working in Mumbai.  Thus, there is no business exigency or  administrative  reason  for  transferring  the Complainant  No.  2  from  Sagar  (Madhya  Pradesh)  to Mumbai (State of Maharashtra).  The impugned transfer of the Complainant No. 2 is, therefore, malafide transfer and thereby the Respondents are engaging in the unfair labour  practices  under  Item 3  of  Schedule  IV  of  the M.R.T.U. & P.U.L.P. Act, 1971.”

5. In the written statement filed by the employer, the status of the

employee  as  a  workman  was  denied  as  he  was  alleged  to  be

working in supervisory, managerial or administrative capacity and

he was discharging his duties as Territory Manager.  The stand of

the  employer  was  that  the  transfer  was  as  per  contract  of

employment signed between the parties and that there is no mala

fide in the order of transfer.  It was also pleaded that services of the

employee stood terminated on 15th April, 2005 and on the date of

filing of the complaint, the employee was not in the employment of

the respondent employer, therefore, no complaint of unfair labour

practices can be entertained in law.  It was also asserted that the

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employee had failed to report for duties at the transferred place,

therefore, communications dated 1st April, 2005 and 8th April, 2005

were  addressed  to  him  to  resume  duties  but  the  employee

continued  his  defiant  attitude  of  not  reporting  for  work  at  the

transferred place and subsequently, his services were terminated

on 15th April, 2005. It was also pleaded that the Industrial Court did

not  have  any  jurisdiction  to  return  findings  on  the  issue  of

termination  in  a  complaint  filed  under  Item  3,  7,  9  and  10  of

Schedule IV of the Act.  It was also pleaded that there was no Sagar

Unit  of  Madhya Pradesh Medical  Representatives’  Association  as

per the information of the employer. Further, it was pleaded that

the  resignation  of  Mr.  Ashish  Khare  was  voluntary  which  was

accepted and he was relieved on 6th January, 2005.  It was further

pleaded  that  Mr.  Khare  came  to  the  Conference  without  an

invitation in a clandestine manner.  It was also stated that transfer

of the employee was discussed by the employer much prior to the

actual issuance of the order of transfer.  It was also mentioned that

the employee had failed to submit his expense statements for the

months of  February  and March,  2005 and,  therefore,  it  was  not

possible to make payments of salary to the employee.    

6. The Industrial Court examined four issues.  The first being whether

the employee was a workman under Section 2(s) of the Industrial

Dispute Act, 1947 read with Section 3(5) of the Act.  The second

issue being whether the termination order dated 15th April,  2005

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was real, existent and bona fide.  The third, whether the employer

had indulged in  unfair  labour practices  under the Act.   The last

issue  being  whether  the  employee  was  entitled  to  the  reliefs

claimed.   

7. In  support  of  the  complaint,  the  employee  filed  his  affidavit  in

evidence  reiterating  the  version  given  by  him in  his  complaint.

However, in respect of termination alleged by the employer, the

employee stated to the following effect:  

“9.  I say that the company had addressed me an E-Mail dated 14th April, 2005, inter alia asking me to report for work at Mumbai.  I say that a copy of the said E-Mail is filed by me along with my Application dated April 14, 2005, with Application dated 27th July, 2006.  I say that I have  never  received  any  termination  letter  dated 15.4.2005 either by courier or by UPC or by any other mode of communication.  I say that the purported letter of termination dated 15.4.2005 is not real, existent and bona fide.  I say that it is fake and bogus termination letter.”

8. The employee in his cross-examination, as a witness, conducted on

4th June,  2009,  admitted  that  there  was  no  Union  by  the  name

Madhya Pradesh Medical and Sales Representatives’ Association.

9. Mr. Raj Kumar Chadha furnished his affidavit in evidence on behalf

of  the  employer.   In  cross-examination,  he  deposed  that  the

Employer communicated to the employee that he must report at

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the reported place.   Since the employee had failed to report  on

duty, his services stood terminated.  Relevant extract of the cross-

examination  of  the  witness  of  the  employer  is  reproduced

hereunder:

“With respect to his telegram claiming sick leave w.e.f. 02/04/2005,  I  say  he  was  communicated  by  the management that only if he first reports at transferred place can it be considered, and hence was not granted. I say thereafter the services of Mr. Rajneesh Jagannath Khajoria stood terminated vide company’s letter dated 15.4.2005. I say the transfer order and the termination letter  contents  are  true  and  I  identify  the  signatures therein.”

10. With  the  said  factual  background,  we  find  that  the  following

questions arise for consideration:

(i) Whether  the  employee  is  entitled  to  dispute  the

termination  order  dated  15th April,  2005  as  not  real  or

bona fide for the reason that it was not received by him?

(ii) Whether the employee is entitled to dispute his transfer as

unfair labour practice in terms of Item 3 of Schedule IV of

the Act without impleading the person who is said to have

acted in a mala fide manner?

(iii) Whether the question of malice in law can be inferred in

the matter  of  transfer  of  an  employee as  unfair  labour

practice?

(iv) Whether the order of termination is ancillary to the order

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of  transfer  which  confers  jurisdiction  on  the  Industrial

Court to exercise jurisdiction in the matter arising out of

allegation of unfair labour practice?

11. Before we proceed further, relevant statutory provisions from the

Act need to be reproduced hereunder:

“3  (8)  “Industrial  Court”  means  an  Industrial  Court constituted under section 4;

xx xx xx

3 (10) “Labour Court” means a Labour Court constituted under Section 6;

xx xx xx

5. Duties of Industrial Court

(a) xx xx xx

(b) xx xx xx

(c) xx xx xx

(d)   to  decide  complaints  relating  to  unfair  labour practices excepts unfair labour practices falling in Item 1 of Schedule IV;

xx xx xx

7.  Duties of Labour Court – It shall be the duty of the Labour  Court  to  decide  complaints  relating  to  unfair labour practices described in Item 1 of Schedule IV and to try offences punishable under this Act.

xx xx xx

26.   Unfair  labour  practices:-  In  this  Act,  unless  the context  requires  otherwise,  ‘unfair  labour  practices’ mean any of the practices listed in Schedules II, III and IV.

27.  Prohibition on engaging in unfair labour practices:-

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No employer or union and no employees shall engage in any unfair labour practice.

xx xx xx

32.  Power of Court to decide all  connected matters:- Notwithstanding  anything  contained  in  this  Act,  the Court shall have the power to decide all matters arising out of any application or a complaint referred to it for the decision under any of the provisions of this Act.

xx xx xx

Schedule IV – General Unfair Labour Practices on the  part of employers

1. To discharge or dismiss employees –

(a) by way of victimisation; (b) not in good faith, but in colourable exercise of  

employer’s rights; (c) by falsely implicating an employee in a criminal

case on false evidence or on concocted evidence; (d) for patently false reasons; (e) on untrue or trumped up allegation of absence

without leave; (f) in  utter  disregard  of  the  principles  of  natural

justice in the conduct of domestic enquiry or with undue haste;

(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular  misconduct  or  the  past  record  of service of the employee, so as to amount to a shockingly disproportionate punishment.

2. xx xx xx

3. To transfer an employee mala fide from one place to  another, under the guise of following management  policy.”

12. 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

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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  the

argument  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.  This Court in a judgment reported as State of

Punjab v. Khemi Ram5 held that once the order is issued and sent

out to the concerned government servant, it must be held to have

been communicated to him, no matter when he actually received

it.  This Court held as under:

“17.  The question then is whether communicating the order  means  its  actual  receipt  by  the  concerned government  servant.  The  order  of  suspension  in question was published in the Gazette though that was after the date when the respondent was to retire. But the point is whether it was communicated to him before that  date.  The  ordinary  meaning  of  the  word “communicate”  is  to  impart,  confer  or  transmit information. (Cf. Shorter Oxford English Dictionary, Vol. 1, p. 352). As already stated, telegrams, dated July 31, and  August  2,  1958,  were  despatched  to  the respondent  at  the  address  given  by  him  where communications by Government should be despatched. Both the telegrams transmitted or imparted information to the respondent that he was suspended from service with  effect  from  August  2,  1958.  It  may  be  that  he actually received them in or about the middle of August 1958, after the date of his retirement. But how can it be said  that  the  information  about  his  having  been suspended was not imparted or transmitted to him on July 31 and August 2, 1958 i.e. before August 4, 1958, when he would have retired? It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential

5  (1969) 3 SCC 28

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and not its actual receipt by the officer concerned and such communication was held to be necessary because till  the  order  is  issued  and  actually  sent  out  to  the person  concerned  the  authority  making  such  order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes  out  of  the  control  of  such  an  authority,  and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our view, once an order  is  issued  and  it  is  sent  out  to  the  concerned government  servant,  it  must  be  held  to  have  been communicated  to  him,  no  matter  when  he  actually received it. We find it difficult to persuade ourselves to accept  the  view that  it  is  only  from the  date  of  the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be  possible  for  a  government  servant  to  effectively thwart an order by avoiding receipt of it by one method or the other till  after the date of his retirement even though such an order is passed and despatched to him before  such  date. An  officer  against  whom action  is sought  to  be  taken,  thus,  may  go  away  from  the address given by him for service of such orders or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such  a  meaning  of  the  word  “communication” ought not to be given unless the provision in question expressly so provides. Actual knowledge by him of an order  where  it  is  one  of  dismissal,  may,  perhaps, become necessary because of the consequences which the  decision  in The  State  of  Punjab v. Amar Singh contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave  and  against  whom  an  order  of  suspension  is passed because in his case there is no question of his doing  any act  or  passing  any order  and  such  act  or order being challenged as invalid.” (Emphasis supplied)   

13. In view of the aforesaid judgment, the assertion that an order of

transfer 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

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managed not to receive the same, the termination order does not

become fake or ingenuine. Therefore, the finding of the Industrial

Court on question No. 2 was rightly set aside by the High Court.

We affirm the order of the High Court but on the ground other than

which weighed with  it.   Thus,  we find that  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.

14. 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 on account of two officers present in

Conference.  In a judgment reported as State of Bihar & Anr. v.

P.P. Sharma, IAS & Anr.6, this Court held that  mala fide means

want  of  good  faith,  personal  bias,  grudge,  oblique  or  improper

motive  or  ulterior  purpose.   The plea of  mala  fide involves  two

questions, namely (i) whether there is a personal bias or an oblique

motive, and (ii) whether the administrative action is contrary to the

objects,  requirements  and  conditions  of  a  valid  exercise  of

administrative power.  As far as second aspect is concerned, there

is a power of transfer vested in the employer in terms of letter of

appointment.   Even  in  terms  of  the  provisions  of  the  Act,  the

transfer  by  itself  cannot  be  said  to  be  an  act  of  unfair  labour

6  1992 Supp (1) SCC 222

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practice unless it is actuated by mala fide.  Therefore, to sustain a

plea of mala fide, there has to be an element of personal bias or an

oblique motive.  This Court held as under:

“50.   Mala  fides  means want  of  good faith,  personal bias,  grudge,  oblique  or  improper  motive  or  ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it  is done negligently or not.  An act done honestly is deemed  to  have  been  done  in  good  faith.  An administrative authority must, therefore, act in a bona fide  manner  and  should  never  act  for  an  improper motive  or  ulterior  purposes  or  contrary  to  the requirements  of  the  statute,  or  the  basis  of  the circumstances  contemplated  by  law,  or  improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or  an  oblique  motive,  and  (ii)  whether  the administrative  action  is  contrary  to  the  objects, requirements  and  conditions  of  a  valid  exercise  of administrative power.

51.   The  action  taken  must,  therefore,  be  proved  to have  been  made  mala  fide  for  such  considerations. Mere  assertion  or  a  vague  or  bald  statement  is  not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or  by fraud on power  or  colourable  exercise  of  power,  it  cannot  be allowed to stand.

xx xx xx

59.   Malice  in  law  could  be  inferred  from  doing  of wrongful  act  intentionally  without  any  just  cause  or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. Malice in law is not established from the omission to consider some documents said to be relevant to the accused. Equally reporting  the  commission  of  a  crime  to  the  Station House  Officer,  cannot  be  held  to  be  a  colourable exercise of power with bad faith or fraud on power. It

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may be honest and bona fide exercise of power. There are no grounds made out or shown to us that the first information report was not lodged in good faith. State of Haryana v. Ch. Bhajan Lal [1992 Supp (1) SCC 335 : JT 1990 (4) SC 650] is an authority for the proposition that existence of deep seated political vendetta is not a ground to quash the FIR. Therein despite the attempt by the  respondent  to  prove  by  affidavit  evidence corroborated by documents of the mala fides and even on  facts  as  alleged  no  offence  was  committed,  this Court  declined  to  go  into  those  allegations  and relegated the dispute for investigation. Unhesitatingly I hold that the findings of the High Court that FIR gets vitiated by the mala fides of the Administrator and the charge-sheets are the results of the mala fides of the informant or investigator, to say the least, is fantastic and obvious gross error of law.”

15. In another judgment reported as Prabodh Sagar v. Punjab State

Electricity Board & Ors.7, it was held by this Court that the mere

use of  the expression “mala  fide” would not  by itself  make the

petition entertainable.  The Court held as under:

“13.   … Incidentally,  be  it  noted that  the expression “mala  fide”  is  not  meaningless  jargon  and  it  has  its proper  connotation.  Malice or  mala fides can only  be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is  alleged,  depends  upon  its  own  facts  and circumstances. We ourselves feel it expedient to record that the petitioner has become more of a liability than an  asset  and  in  the  event  of  there  being  such  a situation  vis-à-vis  an  employee,  the employer  will  be within his liberty to take appropriate steps including the cessation of relationship between the employer and the employee.  The  service  conditions  of  the  Board's employees also provide for voluntary (sic compulsory) retirement, a person of the nature of the petitioner, as more  fully  detailed  hereinbefore,  cannot  possibly  be given any redress  against  the order  of  the Board for

7  (2000) 5 SCC 630

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voluntary  retirement.  There  must  be  factual  support pertaining  to  the  allegations  of  mala  fides, unfortunately  there  is  none.  Mere  user  of  the  word “mala fide” by the petitioner would not by itself make the  petition  entertainable.  The  Court  must  scan  the factual  aspect  and  come  to  its  own  conclusion  i.e. exactly what the High Court has done and that is the reason  why  the  narration  has  been  noted  in  this judgment in extenso. …”

16. In a judgment reported as HMT Ltd. & Anr. v. Mudappa & Ors.8,

quoting from earlier judgment of this Court reported as  State of

A.P. & Ors. v. Goverdhanlal Pitti9, it was held that ‘legal malice’

or ‘malice in law’ means ‘something done without lawful excuse’.  It

is  an  act  done  wrongfully  and  willfully  without  reasonable  or

probable cause, and not necessarily an act done from ill feeling and

spite.  The Court held as under:

“24.  The Court also explained the concept of legal mala fide. By referring to Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989 the Court stated: (Goverdhanlal  case [(2003)  4  SCC  739],  SCC  p.  744, para 12)

“12. The legal  meaning of malice is ‘ill  will  or spite  towards  a  party  and  any  indirect  or improper  motive  in  taking  an  action’.  This  is sometimes described as ‘malice in fact’. ‘Legal malice’  or  ‘malice  in  law’  means  ‘something done without lawful excuse’. In other words, ‘it is  an act  done wrongfully  and wilfully  without reasonable  or  probable  cause,  and  not necessarily  an  act  done  from  ill  feeling  and spite. It  is a deliberate act in disregard of the rights of others.’ ”

It was observed that where malice was attributed to the State,  it  could  not  be  a  case  of  malice  in  fact,  or

8  (2007) 9 SCC 768 9  (2003) 4 SCC 739

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personal ill-will or spite on the part of the State. It could only be malice in law i.e. legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for  statutory  purpose  and  for  none  other.  It  was observed that it was only because of the decree passed in  favour  of  the  owner  that  the  proceedings  for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide.”

17. In  a  judgment  reported  as  Union  of  India  &  Ors.  v.  Ashok

Kumar & Ors.10, it has been held that allegations of mala fides are

often more easily made than proved, and the very seriousness of

such allegations demands proof of a high order of credibility.  The

Court held as under:

“21. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's  mind,  for  that  is  what  the  employee  has  to establish in this case, though this may sometimes be done.  The difficulty  is  not  lessened when one has to establish  that  a  person  apparently  acting  on  the legitimate exercise of power has, in fact,  been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fides in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must  be  shown  from  the  established  surrounding factors  which  preceded  the  order.  If  bad  faith  would vitiate  the  order,  the  same  can,  in  our  opinion,  be deduced  as  a  reasonable  and  inescapable  inference from  proved  facts.  (S.  Pratap  Singh v. State  of Punjab [(1964) 4 SCR 733 : AIR 1964 SC 72] .) It cannot be  overlooked  that  the  burden  of  establishing  mala fides is very heavy on the person who alleges it.  The allegations of  mala fides are  often more easily made

10  (2005) 8 SCC 760

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than  proved,  and  the  very  seriousness  of  such allegations demands proof of a high order of credibility. As  noted  by  this  Court  in E.P.  Royappa v. State  of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC  555]  courts  would  be  slow  to  draw  dubious inferences from incomplete facts placed before them by a  party,  particularly  when  the  imputations  are  grave and they are made against the holder of an office which has  a  high  responsibility  in  the  administration. (See Indian  Rly.  Construction  Co.  Ltd. v. Ajay Kumar [(2003) 4 SCC 579 : 2003 SCC (L&S) 528] .)”

18. In  another  judgment  reported  as  Ratnagiri  Gas  and  Power

Private Limited  v.  RDS Projects Limited & Ors.11,  this Court

held that when allegations of  mala fides are made, the persons

against  whom  the  same  are  levelled  need  to  be  impleaded  as

parties to the proceedings to enable them to answer the charge.  A

judicial  pronouncement declaring an action to be mala fide is  a

serious  indictment  of  the  person  concerned  that  can  lead  to

adverse civil consequences against him.  The Court held as under:

“27.   There  is  yet  another  aspect  which  cannot  be ignored.  As  and  when  allegations  of  mala  fides  are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity  it  will  neither be fair  nor proper  to record a finding that malice in fact had vitiated the action taken by the authority concerned. It is important to remember that a judicial pronouncement declaring an action to be mala  fide  is  a  serious  indictment  of  the  person concerned that can lead to adverse civil consequences against  him.  Courts  have,  therefore,  to  be  slow  in drawing  conclusions  when  it  comes  to  holding allegations of mala fides to be proved and only in cases

11  (2013) 1 SCC 524

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where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting  the  charge  of  mala  fides  that  the  Court should  record  a  finding  in  the  process  ensuring  that while it does so, it also hears the person who was likely to be affected by such a finding.”

19. The allegation in the complaint is that the transfer was actuated

for the reason that the employee had raised voice against removal

of Shri Khare 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  Mr.  Suresh

Srinivasan, 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.  

20. 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.   

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21. We do not find that the appellant has laid any foundation to allege

a malice in law.  As mentioned in the judgments referred to above,

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.   The appellant  has  stayed at  Sagar for  almost  20

years.  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 an act was done from ill feeling or spite.

22. The  next  question  which  was  vehemently  argued by  Mr.  Cama,

learned  senior  counsel  for  the  employer  was  that  the  order  of

termination can be disputed only before the Labour Court in terms

of Section 7 of the Act read with Item 1 of Schedule IV of the Act

and  not  before  the  Industrial  Court.   Learned  counsel  for  the

appellant argued that the termination was ancillary to the order of

transfer  or a consequence of not joining the transferred station.

Therefore, in terms of Section 32 of the Act, there need not be any

separate  challenge  to  the  termination  as  such  termination  is  a

consequence  of  transfer  and,  thus,  will  fall  within  the  scope  of

Section 32 of the Act.   

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23. We do not find any merit in the arguments raised by the learned

counsel for the appellant.  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 (See 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, therefore, 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  act  of  victimization  falls

exclusively  within  the  jurisdiction  of  the  Labour  Court.

Consequently, we do not find that the appellant has 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.

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24. In  view  of  the  above,  we  do  not  find  any  merit  in  the  present

appeal.  Accordingly, the appeal is dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; JANUARY 15, 2020.

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