Madhya Pradesh High Court
Abbott India Ltd. vs The State Of Madhya Pradesh on 9 October, 2017
W. A. No.547/2017
09.10.2017
Shri Brian D'silva, learned Senior Counsel with
Madhur Sharma, leanred counsel for the appellants.
Shri Praveen K. Pal, learned counsel for the
respondent No.2.
Heard on the question of admission.
2. This intra-court appeal has been filed by the employer against the order dated 04.09.2017 passed in W. P. No.5350/2017 by which learned Writ Court dismissed the writ petition with a direction to the Labour Court to decide the case expeditiously.
3. Facts of the case are that the respondent No.3 is an employee of the appellant. He was appointed originally in M/s Solvay Pharma India Pvt. Ltd. on 21.08.2010 and the said company had merged with the appellant company - Abbott India Ltd. on 02.08.2011, hence, the respondent No.3 had become its employee. By order dated 21.10.2016, the respondent No.3 was transferred to Shri Ganganagar, Rajasthan. The respondent No.3 had filed W. P. No.2509/2017 in which the interim stay dated 04.11.2016 was passed. Thereafter, the reference was made to the Labour Court, hence the writ petition was disposed of by order dated 17.07.2017 with a direction to the Labour Court to decide the interim application within 15 days and further direction to continue the interim order passed by the High Court for six weeks or till the decision of the application pending before the Labour Court, whichever is earlier. The Labour Court by order dated 11.08.2017 had stayed the operation of the transfer order.
4. The contention of the appellants before the learned Writ Court was that the reference order dated 05.12.2016 has been passed without hearing the appellant and the salary was paid to the respondent No.3 till the time of passing of the transfer order, therefore, the reference is invalid and the transfer is a condition of service and there is no malafide or victimization, therefore, the Labour Court could not have stayed the transfer order.
5. In W. P. No.7421/2016, the appellant was party to the proceedings and grievance in respect of the delay in making the reference was also made. Since in the meanwhile, the reference was made, therefore, the writ petition was disposed of by order dated 13.12.2016. Thereafter, W. P. No.2509/2017 was filed by the respondent Nos.2 & 3 claiming the interim relief because post of Presiding Officer in the Labour Court was vacant. Learned Writ Court after hearing the learned counsel for the appellants passed the following order dated 17.07.2017:-
This Court while entertaining Writ Petition has issued notices and also granted interim relief on 08.05.2017. On notice respondents have entered appearance through Shri Girish Patwardhan, Advocate. Shri Patwardhan very fairly submitted that as per the charge memo issued by the Industrial Court, Indore matters falling within the territorial jurisdiction of Labour Court, Indore are being made over to Labour Court, Dewas for deciding urgent matters, therefore, the aforesaid matter may be made over to the said court for decision on interim relief.
Shri Praveen Pal, learned counsel for the petitioners does not oppose the suggestion. Accordingly, Writ Petition is disposed of with a direction to the Industrial Court, Indore for transfer of reference Case No.13/IDR/2016 Bhartiya Kamgar Karmchari Mahasangh V/s. M/s. Abbott India Limited to Labour Court, Dewas within a week. Both parties shall appear before the Labour Court, Dewas on 28.07.2017. The Labour Court shall endeavour to decide the interim application within a period of 15 days. The interim order passed by this court on 08.05.2017 shall remain operative for the period of six weeks or till the decision on the application pending before the Labour Court, Dewas, whichever is earlier.
The Registrar is directed to dispatch the order passed today to the Industrial Court, Indore immediately.
6. From the aforesaid, it is clear that in W. P. No.7421/2016 and W. P. No.2509/2017, the appellants have not raised any grievance about non-granting of opportunity of heairng before the Labour Commissioner while making reference. The respondent No.3, who was working at Indore had been transferred to Shri Ganganagar, Rajasthan, which is 1000 kms. away from Indore, without making payment of salary and payment of transfer expenses.
7. The grounds raised by the employee was that since he had taken membership of the Union in 2015, therefore, to victimize him, the transfer order has been passed. Learned Writ Court relying on the judgment of the Apex Court in the case of the Management of the Syndicate Bank Ltd. vs. the Workmen reported in AIR 1966 SC 1283, wherein it has been held that the Labour Court has the jurisdiction to interfere in the order of transfer, if found to be made for the malafide reasons or for some ulterior purpose like punishing an employee for his trade union activities. Similar is the view taken by this Court in the matter of D & H Secheron Electrodes Pvt. Ltd. vs. Lawrence Rebello passed in W. P. No.331/2005 decided on 30.01.2006.
8. Learned Senior Counsel for the appellants submit that the provisions of Section 33-A of the Industrial Disputes Act, 1947 only be attracted, if there is a violation of Section 33 of the Act. He has also drawn our attention to the Single Bench decision in the case of President vs. Director reported in 2015-IV-LLJ 189 (MP) and the law laid down by the Division Bench of Principal Seat in the case of Management, Dainik Naveen Duniya vs. Presiding Officer, Labour Court & another reported in 1991 MPLJ 114 and submitted that the Labour Court had no jurisdiction to grant interim relief. Learned Writ Court without considering the aforesaid, dismissed the writ petition and prayed that the appeal be allowed.
9. In reply, Shri Praveen K. Pal, learned counsel for the respondent No.2 has supported the case of the respondent No.3 and submits that by order dated 05.12.2016 passed by the Dy. Labour Commissioner referred the dispute under Section 10 of the Act. The interim order passed by the Presiding Officer can be challenged in a writ petition under Article 227 of the Constitution of India under the supervisory jurisdiction of this Court. He submitted that the law is well settled. In view of the Full Bench decision of this Court in the case Manoj Kumar Vs. Board of Revenue and others reported in 2007 (4) MPHT 545(FB), Jaidev Siddha Vs. Jaiprakash Siddha reported in 2007 (3) MPLJ 595, the decision of Apex Court in the case of Ramesh Chandra Sankla Vs. Vikram Cement reported in AIR 2009 SC 713, the decision of this Court in the case of Jyoti Nagar Grah Nirman Sahakari Sanstha Maryadit through Sanjay vs. Baljeet Singh passed in W. A. No.385/2017, Trustees of H. C. Dhanda, Trust through Jogesh Dhanda vs. State of M. P. & others decided on 04.09.2017 in W. A. No.265/2017 and Full Bench of this Court at Principal Seat, Jabalpur in the case of Shailendra Kumar vs. Divisional Forest Officer & another (W.A. No.286/2017), present writ appeal is not maintainable. On merit, he has submitted that the appellant pressurized the respondent No.3 to increase sales by unethical means and also threatened him for transfer and other disciplinary action in case of not abiding the company's unethical policies. Therefore, just to protect his right, respondent No.3 has joined respondent No.2 and made a complaint to the Assistant Labour Commissioner and the Assistant Labour Commissioner on 02.03.2016 passed an order against the appellants not to change any service condition of the respondent No.3. The company has annoyed and also with malafide intentions issued a transfer order transferring the respondent No.3's service from Indore to Shri Ganganagar (Rajasthan) so that he could not have proceeded his complaint with the Assistant Labour Commissioner at Indore against the company.
10. It is not in dispute that in W. P. No.2509/2017, learned Writ Court had passed the interim order on 08.05.2017 directing the parties to maintain status-quo and while disposing of the writ petition by order dated 17.07.2017, the interim order was continued with conditions.
11. On due consideration of the arguments of learned Senior Counsel for the appellants, we are of the view that no case to interfere with the impugned order passed by the learned Writ Court, as prayed in this intra-court appeal, is made out. The writ appeal has no merit and is accordingly, dismissed.
(P. K. Jaiswal) (Virender Singh)
Judge Judge
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