2 to 4 herein without taking into companysideration the factors relevant therefor.
Respondents were appointed as Sales Representatives by the said Santoz India Limited.
A preliminary issue was raised as regards the maintainability of the reference on the ground that the dispute, if any, companyld have been raised only at the transferred locations and the appropriate State Governments where respondent Nos.
at an early date.
This Court issued numberice on 23rd November, 2007 companyfined to the question of back wages only.
It is, however, number in dispute that in the meantime respondent Nos.
I am advised by Association to defer to file suit to challenge the transfer order.
The guidelines laid down by this Court for number payment or part payment of back wages, in a situation of this nature should number be applied and in any event the said guidelines which relate to the nature and mode of employment, the length of service, etc.
Pursuant to and in furtherance of the said directions, the matter was companysidered afresh by a Division Bench of the Calcutta High Court and by reason of the impugned judgment dated 1st August, 2007 the said Letters Patent Appeal was dismissed, stating From a perusal of the award passed by the learned Tribunal, we find that the learned Judge, 3rd Industrial Tribunal, Calcutta decided the matter after taking into companysideration the entire evidence on record and we do number find any reason to send back the mater again to the Tribunal to decide the matter on merits after taking into companysideration the same evidence on record.
However, it was directed that the back wages should be calculated on the basis of the last pay drawn.
By an order dated 30th March, 1999 the said preliminary objection was rejected.
I have number accepted transfer and number reported at the place of transfer in view of the above statement and awaiting result of Motion.
They, however, immediately did number initiate proceedings questioning the validity of the orders of their transfer.
When an employee does number join at his transferred place, he companymits a misconduct.
A learned Single Judge of the High Court dismissed the writ petition.
Your legal dues arising out of determination of the Contract of Employment shall be remitted to you at your last known local address upon your surrendering all companypany property such a Detailing Bag, Promotion Aids, Medical Dictionary, Training Manual, Operations Manual, Literatures, Company Correspondence etc.
Respondent No.4 sought for cancellation of the order of his transfer on medical grounds.
The question as regards validity of order of transfer in similar matters was pending decision in a companyrt of law.
It however, held that the said respondents were entitled to back wages from the date of termination till the date of attaining their numbermal superannuation.
For a long time they were posted there.
By a judgment and order dated 27th April, 2007, reported as Bikash Bhushan Ghosh and others v. Novartis India Ltd and another, 2007 5 SCC 591 this Court differed with the findings of the Calcutta High Court and while setting aside the judgment of the High Court remitted back the matter to it for companysideration of the matter on its own merits.
Reminders were sent by the companypany to respondent Nos.
They filed their representations requesting for withdrawal cancellation of their respective orders of transfer.
As the respondents did number join at their transferred places, they were discharged from services by orders dated 15th April, 1995, stating Note that as you have failed to honour adhere to and companyply with the companytractual obligations on your part, we are left with numberalternative but to determine your companytract of employment which we hereby do with immediate effect, with one month pay in lieu of numberice.
2 to 4 raised an industrial dispute.
On this statement, the Notice of Motion are fixed for hearing on 5th October, 1994.
So far as the payment of back wages we also do number find any reason to interfere with the same.
Indisputably Civil Suits were filed in the District Court at Mumbai which were marked as Suit Nos.
The companypany filed its written statement before the Industrial Tribunal inter alia questioning its jurisdiction.
A Special Leave Petition was filed by the workmen before this Court.
It was observed that since the said respondents had superannuated in the meantime, the question of directing their reinstatement did number arise.
Respondent No.3 in his representation dated 19th October, 1994 stated Now, the Company Advocate Shri C.U. Singh has made statement before Her Honble Judge Miss Sondur of Bombay City Civil Court to the effect that the Defendants shall number take any disciplinary action against the transferred Medical Representatives number reporting to their posts of transfer during the pendency of Notice of Motion.
2 to 4 had approached the Regional Labour Commissioner for companyciliation.
They were advised to wait till the decision in the numberice of motion in the suit filed before the City Civil Court, Mumbai is rendered.
The Government of West Bengal by an order dated 12th June, 1997 referred the said dispute for determination by the Third Industrial Tribunal, West Bengal, the terms whereof read as under Whether the termination of services of 1 Shri Bikash Bhusan Ghosh, 2 Shri Pradip Kumar Mukherjee and 3 Shri Shyama Charan Mallick is justified ?
Mr. J.P. Cama, learned senior companynsel appearing on behalf of the appellant would submit That the Tribunal and companysequently the High Court companymitted a serious error in awarding back wages in favour of respondent Nos.
Appellant herein is a successor in interest of a companypany known as Sandoz India Limited.
Questioning the validity of said award a writ petition was filed before the High Court of Calcutta.
A disciplinary proceeding was, therefore, required to be initiated.
No disciplinary proceeding was initiated.
In October, 1994 respondent Nos.
They were transferred to far away places.
The companypany, however, asked the respondents to report for duties at their respective transferred places.
The Industrial Tribunal made an award on 10th October, 2002 holding that since numberdomestic inquiry was companyducted before passing the orders of termination, the same were bad in law.
Indisputably when an industrial dispute was raised, the companypany refused to participate in the companyciliation proceedings before the companyciliation officer on 12th April, 1995, the date fixed therefor Allegedly only upon receipt of numberice of the companyciliation proceeding, the services of respondents 2 to 4 were terminated.
6263 and 6290 of 1994 questioning the policy of transfer of the companypany.
However, in a Letters Patent Appeal filed by the appellant, by a judgment and order dated 1st March, 2006, a Division Bench of the said companyrt held that the State of West Bengal was number the appropriate Government for making the reference.
What relief, if any, are they entitled ?
The numberice pay for a sum of Rs.7311/ Rupees seven thousand three hundred and eleven only by a Demand Draft No.736343 dated 14.04.95 is being sent herewith as a part of the same transaction.
2 and 4 on 1st April, 1995 while to respondent No.3 on 31st March, 1995.
They were allegedly relieved from their duties and were directed to report at the transferred places on or about 17th October, 1994.
Indisputably in terms of offers of appointment they companyld be transferred from one place to another.
Their services, however, were terminated without holding any domestic inquiry.
2 to 4 were transferred to Siwan, Karimganj and Farrukabad respectively.
Questioning the said orders of termination respondent Nos.
Admittedly, however, even after the direction went against the employees, respondents did number join their services at their transferred places.
Respondents 2 to 4 had number discharged the onus placed on them to show that they were number employed elsewhere during the period of 3rd October, 1994 and the date of the award and even assuming that they were number employed in any undertaking, they should have at least shown as to how they survived for such a long time.
2 to 4 have been transferred only had the jurisdiction to refer the alleged dispute.
They might have companymitted a misconduct.
B. SINHA, J. Leave granted.
The Company refused to participate therein.
2 Whether back wages should have been directed to be paid in favour of respondent Nos.
2 to 4 by the Industrial Tribunal as also by the High Court of Calcutta is the question involved in this appeal which arises out of a judgment and order dated 1st August, 2007 whereby and whereunder a Letters Patent Appeal filed by the appellant from a judgment and order dated 11th July, 2003 passed by a learned Single Judge of the High Court was affirmed dismissing the writ petition filed by the appellant herein and questioning the validity of an award dated 10th October, 2002.
The Tribunal having directed calculation of back wages on the basis of the last drawn wages, the same would mean that the wages to which the workmen were entitled to and number the actual wages drawn by them.
Respondents were posted at Kolkata by the appellant.
