w w w . L a w y e r S e r v i c e s . i n

West Bengal Medical & Sales Representative Union & Others v/s State of West Bengal & Others

Company & Directors' Information:- SALES INDIA PRIVATE LIMITED [Active] CIN = U29191GJ1985PTC007880

Company & Directors' Information:- R K B SALES PVT LTD [Active] CIN = U45202PB2006PTC029932

Company & Directors' Information:- P R SALES CORPORATION PRIVATE LIMITED [Active] CIN = U52399PN2011PTC141408

Company & Directors' Information:- P K SALES COMPANY PRIVATE LIMITED [Active] CIN = U74140DL2011PTC219681

Company & Directors' Information:- G. K. E. MEDICAL PRIVATE LIMITED [Active] CIN = U85100WB2009PTC139049

Company & Directors' Information:- K B SALES LTD [Active] CIN = U51109WB1993PLC058255

Company & Directors' Information:- J K SALES PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109479

Company & Directors' Information:- D K Y SALES PRIVATE LIMITED [Active] CIN = U74899DL2002PTC117108

Company & Directors' Information:- A R MEDICAL PRIVATE LIMITED [Active] CIN = U24232AS2003PTC007179

Company & Directors' Information:- WEST COMPANY (INDIA) PRIVATE LIMITED [Strike Off] CIN = U34203MH1995PTC092297

Company & Directors' Information:- K P R SALES PVT LTD [Active] CIN = U74899DL1983PTC016626

Company & Directors' Information:- M C SALES PRIVATE LIMITED [Active] CIN = U51909PB2007PTC031203

Company & Directors' Information:- A V M SALES PVT LTD [Active] CIN = U24112WB1990PTC048552

Company & Directors' Information:- P S SALES PRIVATE LIMITED [Active] CIN = U51432UP2002PTC026496

Company & Directors' Information:- A M SALES PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC034571

Company & Directors' Information:- S N SALES PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1995PTC071621

Company & Directors' Information:- G C SALES PVT LTD [Active] CIN = U51109HR1989PTC030575

Company & Directors' Information:- G. L. SALES PRIVATE LIMITED [Active] CIN = U51909DL2010PTC205078

Company & Directors' Information:- J P M SALES PRIVATE LIMITED [Strike Off] CIN = U52100TG2012PTC080686

Company & Directors' Information:- C J MEDICAL INDIA PRIVATE LIMITED [Active] CIN = U33110TG2010PTC068126

Company & Directors' Information:- C R SALES PRIVATE LIMITED [Active] CIN = U51311HR1989PTC034949

Company & Directors' Information:- S P S MEDICAL INDIA PRIVATE LIMITED [Active] CIN = U51397BR2007PTC013129

Company & Directors' Information:- S B SALES PRIVATE LIMITED [Active] CIN = U74899DL1984PTC019075

Company & Directors' Information:- S M G SALES PRIVATE LIMITED [Active] CIN = U52190DL1996PTC076099

Company & Directors' Information:- G N INDIA SALES PRIVATE LIMITED [Active] CIN = U74999WB2012PTC180525

Company & Directors' Information:- P. MEDICAL PRIVATE LIMITED [Strike Off] CIN = U85195TG1987PTC008112

Company & Directors' Information:- V. R. A. SALES PRIVATE LIMITED [Active] CIN = U74900UP2010PTC039548

Company & Directors' Information:- K K SALES PRIVATE LIMITED [Active] CIN = U20299UP1987PTC009147

Company & Directors' Information:- P S I SALES PRIVATE LTD. [Active] CIN = U74899DL1986PTC022999

Company & Directors' Information:- J D SALES LIMITED [Strike Off] CIN = U51909MH1983PLC029644

Company & Directors' Information:- N D K SALES PRIVATE LIMITED [Active] CIN = U51101UP2009PTC037413

Company & Directors' Information:- H P SALES COMPANY PRIVATE LIMITED [Active] CIN = U51495DL2004PTC128566

Company & Directors' Information:- R. K. P. SALES PRIVATE LIMITED [Active] CIN = U52601UP2018PTC101743

Company & Directors' Information:- N R B SALES PVT. LTD. [Active] CIN = U51109WB1989PTC047356

Company & Directors' Information:- U C SALES PRIVATE LIMITED [Active] CIN = U30007DL2004PTC127320

Company & Directors' Information:- M A K SALES PRIVATE LIMITED [Amalgamated] CIN = U26106UP2003PTC027989

Company & Directors' Information:- D. K. G. SALES PRIVATE LIMITED [Active] CIN = U51909DL2012PTC232444

Company & Directors' Information:- G AND G SALES INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U52339KL2001PTC015071

Company & Directors' Information:- D S SALES PVT LTD [Active] CIN = U74899DL1981PTC011644

Company & Directors' Information:- S P M SALES PRIVATE LIMITED [Active] CIN = U51211DL1997PTC085322

Company & Directors' Information:- K S S SALES PRIVATE LIMITED [Active] CIN = U70200UP1999PTC024587

Company & Directors' Information:- S P C SALES PRIVATE LIMITED [Active] CIN = U51909DL2010PTC210237

Company & Directors' Information:- T I & M SALES LTD [Not available for efiling] CIN = U51900WB1967PLC015415

Company & Directors' Information:- G S SALES PRIVATE LIMITED [Active] CIN = U74899DL1983PTC015481

Company & Directors' Information:- M B SALES INDIA PRIVATE LIMITED [Active] CIN = U74899DL1994PTC057259

Company & Directors' Information:- G B SALES PRIVATE LIMITED [Strike Off] CIN = U74900PN2013PTC149637

Company & Directors' Information:- M L G SALES PRIVATE LIMITED [Strike Off] CIN = U51909DL1996PTC075048

Company & Directors' Information:- K I A SALES PRIVATE LIMITED [Strike Off] CIN = U51909DL2003PTC122783

Company & Directors' Information:- M V SALES (INDIA) PRIVATE LIMITED [Active] CIN = U51909DL2008PTC184122

Company & Directors' Information:- P L MEDICAL INDIA PRIVATE LIMITED [Strike Off] CIN = U33130DL2011PTC225068

Company & Directors' Information:- R & Y SALES PRIVATE LIMITED [Strike Off] CIN = U74900DL1998PTC093675

Company & Directors' Information:- A S M SALES PRIVATE LIMITED [Strike Off] CIN = U45301UR2000PTC025735

Company & Directors' Information:- M J SALES PRIVATE LIMITED [Strike Off] CIN = U18101MH1988PTC049326

Company & Directors' Information:- G M SALES PRIVATE LIMITED [Strike Off] CIN = U99999MH1994PTC076494

Company & Directors' Information:- S G SALES PVT LTD [Active] CIN = U51909TG1989PTC010567

Company & Directors' Information:- R. P. SALES PRIVATE LIMITED [Active] CIN = U16004UP1995PTC017800

Company & Directors' Information:- P M C SALES PRIVATE LIMITED [Strike Off] CIN = U74899DL1986PTC024459

Company & Directors' Information:- M M SALES PRIVATE LIMITED [Strike Off] CIN = U52602OR1993PTC003255

Company & Directors' Information:- S S G M SALES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74900PN2014PTC151358

Company & Directors' Information:- A P SALES PRIVATE LIMITED [Strike Off] CIN = U74899DL1977PTC008819

Company & Directors' Information:- A R SALES PRIVATE LIMITED [Active] CIN = U51909DL2003PTC123142

Company & Directors' Information:- B M SALES PRIVATE LIMITED [Strike Off] CIN = U51909DL2004PTC127901

Company & Directors' Information:- U R SALES PRIVATE LIMITED [Active] CIN = U51909PB2010PTC034419

Company & Directors' Information:- S W C SALES PRIVATE LIMITED [Strike Off] CIN = U52599PB2005PTC028340

Company & Directors' Information:- U. G. SALES PRIVATE LIMITED [Strike Off] CIN = U51101MH2012PTC233364

Company & Directors' Information:- M I P SALES PRIVATE LIMITED [Strike Off] CIN = U51900MH1973PTC016482

Company & Directors' Information:- G V S SALES PRIVATE LIMITED [Active] CIN = U51900MH2004PTC149593

Company & Directors' Information:- K J SALES PRIVATE LIMITED [Strike Off] CIN = U74120MH2012PTC228743

Company & Directors' Information:- M G SALES PRIVATE LIMITED [Active] CIN = U74120UP2011PTC047801

Company & Directors' Information:- S F SALES PRIVATE LIMITED [Strike Off] CIN = U51101UP2011PTC044031

Company & Directors' Information:- S D T SALES PRIVATE LIMITED [Strike Off] CIN = U52390TG2012PTC080405

Company & Directors' Information:- D B S SALES PRIVATE LIMITED [Under Process of Striking Off] CIN = U74999UP2004PTC028747

Company & Directors' Information:- S M SALES PRIVATE LIMITED [Active] CIN = U51900DL1993PTC053285

Company & Directors' Information:- A N SALES PRIVATE LIMITED [Strike Off] CIN = U51909DL1997PTC091432

Company & Directors' Information:- A R V SALES PRIVATE LIMITED [Strike Off] CIN = U51909DL2005PTC138896

Company & Directors' Information:- A. C. T. SALES PRIVATE LIMITED [Strike Off] CIN = U52100DL2008PTC172729

Company & Directors' Information:- V R SALES PRIVATE LIMITED [Strike Off] CIN = U51109KA1990PTC011491

Company & Directors' Information:- A J SALES PVT LTD [Strike Off] CIN = U51909CH1989PTC009863

Company & Directors' Information:- G M SALES PVT LTD [Strike Off] CIN = U51909CH1992PTC012260

Company & Directors' Information:- A TO Z SALES (P) LIMITED [Strike Off] CIN = U74900DL1996PTC082425

Company & Directors' Information:- J C SALES PRIVATE LIMITED [Strike Off] CIN = U51109DL1982PTC014805

Company & Directors' Information:- M S SALES PRIVATE LIMITED [Strike Off] CIN = U74300UP1967PTC003153

Company & Directors' Information:- B R SALES COMPANY PRIVATE LIMITED [Strike Off] CIN = U34300DL1983PTC016125

Company & Directors' Information:- D V SALES PVT LTD [Strike Off] CIN = U51900MH1982PTC026068

Company & Directors' Information:- WEST INDIA COMPANY LIMITED [Dissolved] CIN = U99999MH1945PTC004516

    Writ Petition No. 7248 of 2017

    Decided On, 01 July 2020

    At, High Court of Judicature at Calcutta


    For the Appearing Parties: Suvadip Bhattacharjee, Swapan Kumar Datta, Dipankar Das Gupta, Atashi Ghosh, Rishav Dutt, Advocates.

Judgment Text

1. Under challenge in this writ petition is the Award dated 30th December, 2016 of the Learned 4th Industrial Tribunal, West Bengal (for short the said Award and the Learned Tribunal respectively) in Reference Case No.VIII104/2014.2. The effective Respondent is the Employer, M/s Ricoh India Ltd./the Respondent No.3 (for short referred to either as the Employer or R3 respectively).3. By the impugned Award the Learned Tribunal refused to interfere with the action of the Employer/R3 to transfer the writ petitioner Nos. 2 & 3 (for short referred to as P2 and P3 respectively)/their employees, to Bhopal and Chandigarh respectfully. Both P2 and P3 are represented by their Registered Trade Union, the West Bengal Medical and Sales Representative Union/the writ petitioner No.1 (for short P1).4. Mr. Bhattacharjee, Learned Counsel appearing for the petitioners, fundamentally argues that the impugned Award failed to notice that the orders of transfer issued against P2 and P3 did not carry reasons for such transfer. It is submitted that the reasons for such transfer were provided subsequently thereby rendering the order of transfer vulnerable to the charge of mala fides. Such orders of transfer, without providing reasons, imbibe the colour of an unlawful trade practice which is prohibited by Section 2 (ra) and Section 25 (T) of the Industrial Disputes Act 1947 (for short the ID Act).5. Taking this Court to the materials on record, Learned Counsel for the petitioners argues that from the evidence of the employer as placed before the Learned Tribunal, it would be an obviously admitted position that reasons, if any, for the transfer were not part of the order of transfer. Management Witnesses (for short MWs) have stated before the Learned Tribunal that the reasons for the transfer, viz. penetration of new markets for the Employer, were clarified subsequently through correspondence by the Employer.6. Mr. Bhattacharjee submits that the subsequent clarification offered to support reasons for the transfer shows that the Employer was wanting in reasons while issuing the orders of transfer. Therefore, it would be logical to hold that the transfers were meant to punish P2 and P3 for their Union activities, being members of P1.7. In support of his submissions, Mr. Bhattacharjee relies on several authorities, more particularly on the decision of the Hon'ble Division Bench of the Jharkhand High Court as reported in 2003 SCC online Jharkhand 17. It is submitted that the Hon'ble Division Bench (supra) held that transfers in course of employment must be strictly construed on the basis of the terms and conditions in the contract of employment. Since the terms and conditions of the employees, who were members of the Usha Workers Union were specific qua their Employer, i.e. Usha Martin Industries Ltd., any transfer beyond the stated terms and conditions shall be illegal. The Hon'ble Division Bench (supra) noticed that the Employer/Usha Martin could not produce the original letter of appointment which was acknowledged as received by the employee. In the absence of any material to show that the Employee could be transferred for reasons available to the Employer, such transfer shall be invalid.8. The above context the Hon'ble Division Bench further held that transfers in Government Departments and the Public Sector Undertakings (PSUs) stand on a different footing from transfers arising out of private employment. A public employer can exercise the right to transfer in public interest. However, such privilege cannot be extended to a private employer.9. Per contra, Ms. Ghosh, Learned Counsel appearing for the Employer/R3, submits that the reasons for transfer were embedded in the order of transfer itself. Since the petitioners were appointed in the Sales Department of R3, it was part and parcel of their inherent job profile to promote the sales of the products manufactured by the Employer.10. Taking this Court to the Evidence on Affidavit tendered before the Learned Tribunal on behalf of R3, Ms. Ghosh points out that the formal appointment letters issued to both P2 and P3 at Clause No.5 thereof clearly envisage the Employer' right to transfer. Such right to transfer could be exercised in the interests of promoting the sales of R3. It was only at the behest of the petitioners and arising out of the proceedings under the ID Act, that R3/the Employer issued a clarification reiterating the conditions of transfer inherent in Clause 5 (supra). Their appointment letters were also exhibited before the Learned Tribunal.11. Learned Counsel for R3 relies on several authorities to stress the point that an order of transfer should not be readily interfered with by Court when there is no evidence of either mala fides or malice alleged against the Employer/R3. It is submitted that in the absence of specific pleadings, as also in the absence of impleadment of specified persons, no case in support of mala fides can be said to have been made out by the petitioners.12. In support of the above stated legal grounds, Ms. Ghosh, Learned Counsel, relies on Paragraphs 30 and 31 of at Page 540, In Re: Ratnagiri Gas and Power Pvt. Ltd. vs. RDS Projects Ltd. and Ors., (2013) 1 SCC 524 which read as follows:-"30. Coming then to the question whether the action taken by the appellant RGPPL was vitiated by malice in law, we need hardly mention that in cases involving malice in law the administrative action is unsupportable on the touchstone of an acknowledged or acceptable principle and can be avoided even when the decision maker may have had no real or actual malice at work in his mind. The conceptual difference between the two has been succinctly stated in the following paragraph by Lord Haldane in Shearer v. Shields quoted with approval by this Court in ADM, Jabalpur v. Shivakant Shukla: (SCC p. 641, para 317)"317. ... 'Between "malice in fact" and "malice in law" there is a broad distinction which is not peculiar to any system of jurisprudence. The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the law and can only act within the law. He may, therefore, be guilty of "malice in law", although, so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. "Malice in fact" is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act.' (Shearer case, AC pp. 813-14)31. Reference may also be made to the decision of this Court in State of A.P. v. Goverdhanlal Pitti where the difference between "malice in fact" and "malice in law" was summed up in the following words: (SCC p.744, paras 12-13)"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 willfully 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.' (See Words and Phrases Legally Defined, 3rd Edn., London, Butterworths, 1989.)13. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object."13. Prior to concluding arguments, Learned Counsel for R3 also draws the attention of this Court to the respective applications filed by P2 and P3 seeking employment under R3. It is pointed out that while P2 has expressed his versatility in speaking Bengali, English, and Hindi, P3 has stated his proficiency in speaking English, Hindi, Urdu and Bengali and could write in English, Hindi and Bengali. The job responsibilities of P3 in his previous employment have been stated by him in writing and include within their scope the search for new markets. Accordingly, Ms. Ghosh points out to the paradox arising out of the statements on oath at Paragraph 25 of the writ petition with the stated position in the application forms of P2 and P3 - all documents being part of the present records.14. Illustrative to the tone of the present discussion, this Court finds it useful to quote Paragraph 25 of the writ petition which, reads as follows:-"25. Your petitioners state that even in the manual and/or the booklet which are supplied by the respondent No.3 along with their product contents English, Hindi or vernacular language of the particular area where the products are being sold. In that case petitioners will, in great trouble as they cannot read and write the vernacular language of the particular area where they have been transferred. As the local people and/or customer will be more conversant with the vernacular language."15. Having heard the parties and considering the materials placed, this Court is of the view that Clause 5 of the formal letter of appointment issued to P2 and P3 clearly provide the provision to transfer in the interests of the Employer/R3. Such terms as embodied in Clause 5 (supra) must be read harmoniously with the orders of transfer. Clause 5 (supra) reads as follows:-"5. You will be attached to Bhopal Branch. At any time during your period of appointment you will be liable to transfer to any other establishment of the Company without adversely affecting your emoluments and general conditions of service."16. In the further view of this Court the language of the order of transfer demonstrates that it is embedded in the terms of appointment, inclusive of Clause 5 (supra). It would be therefore relevant at this stage to extract the orders of transfer which are identical and read as follows:-"Since this

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is a Company initiated transfer, you will be entitled to one time Relocation Allowance and Transfer Allowance for a period of one year, through Payroll, with effect from October 2013. In addition, you will be entitled to other transportation/transfer expenses for self and family, as per Transfer Policy of the Company. All other terms & conditions of your appointment remain the same as at present. (emphasis supplied) Please sign and return the duplicate copy of this letter as a token of your acceptance."17. Before parting with this discussion, it would be relevant to note that with the merger of R3 and another Company, there was no variation in the conditions or, job profile of employment of P2 and P3, who subsequently became employees of the merged entity.18. In the backdrop of the above discussion, the Award impugned deserves no interference.19. There will be no order as to costs.20. W.P. No. 7248 (W) of 2017 stands accordingly dismissed.21. Urgent Xerox certified photocopies of this judgement, if applied for, be given to the parties upon compliance of the requisite formalities.