NOVARTIS INDIA LTD versus STATE OF WEST BENGAL AND ORS

Citation: [2008] 16 S.C.R. 918 · Decided: 02-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

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[2008] 16 S.C.R. 918 
A 
NOVARTIS INDIA LTD. 
_, 
II. 
.... 
STATE OFWEST BENGAL AND ORS. 
(Civil Appeal No. 7011 of 2008) 
B 
DECEMBER 2, 2008 
[S.B. SINHA· AND CYRIAC JOSEPH, JJ.] 
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Labour laws: 
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r
c 
Back wages - Grant of- Entitlement - Held: Back wages 
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cannot be granted automatically upon setting aside an order 
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of termination -1t would depend on the fact situation obtaining 
in each case - Burden of proof is on workman that he 
remained unemployed - Once he discharged the same, the 
D burden would shift on to the employer to show that workman 
was gainfully employed - On facts, workmen deposed that 
they remained unemployed - Award of re-instatement in 
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service was denied to them as meanwhile they had attained 
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age of superannuation - Jn such situation, back wages should 
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be granted byway of compensation - Evidence Act, 1872 -
f 
E s.106. 
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Transfer order - Non-compliance with, by workmen -
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Held: Amounts to misconduct7 However, employer required 
to conduct domestic inquiry - Order of discharge passed 
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F without giving opportunity of hearing to workmen, bad in Jaw 
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- Natural justice - Principle' of. 
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Transfer order - Challenge to - Held· Transfer is an 
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incidence of service - Order of transfer cannot be interfered 
G with if passed in terms of statutory rule or settlement. 
Constitution of India, 1950: Article 142 - Jurisdiction 
under -
Industrial Court granted back wages -
Wages 
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meanwhile' revised - Claim for back wages based on revised 
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918 
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NOVARTIS INDIA LTD. v. STATE OF WEST BENGAL 
919 
AND ORS. 
pay scale not made before Industrial Court - Claim made A 
before Supreme Court - Held: On the date of superannuation, . 
workmen were entitled t6 revised wages - However, in view of 
the fact. that decision of Industrial court had attained finality, 
case not fit for exercising jurisdiction under Article 142 and 
for interfering with the impugned order - Labour laws. 
B 
The respondents were appointed as sales 
representatives by the appellant-Company. In terms of the 
offers of appointment, they could be transferred from one 
place to another. In October 1994, respondent Nos.2 to 4 C 
were transferred. They were relieved from their duties 
and were directed to report at the transferred places. 
They filed representations requesting for withdrawal/ 
cancellation of their respective orders of transfer. They 
also filed civil suits questioning the policy of transfer of 
the company. The company however asked them to 8 
report for duties at their respective transferred places. 
Reminders were also sent by the company. As the 
respondents did not join at the transferred places, they 
were discharged from service, with immediate effect with 
one month pay in lieu of notice. The workmen E 
approached Labour Commissioner for conciliation but 
the company refused to participate therein. 
Questioning the orders of termination, workmen 
raised an industrial dispute. The industrial court made an 
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award holding that since no domestic inquiry was 
conducted before passing the orders of termination, the 
same were bad in law; and that since the workmen had 
superannuated in the meantime, the question of directing 
their reinstatement did not arise. Further it held that the G 
workmen were entitled to back wages from the date of 
termination till the date of attaining their normal 
superannuation based on the last pay drawn. The 
appellant-company filed writ petition before the High 
Court which was dismissed. Aggrieved, the employer H 
920 
SUPREME COURT REPORTS 
[2008] 16 S.C.R. 
· A ·filed the instant appeal. 
Dismissing the appeal, the Court 
HELD: 1. When an employee does not join at his 
transferred place, he commits a misconduct. A 
B 
disciplinary proceeding is, then required to be initiated. 
The order of discharge is not a substitute for an order of 
punishment. If an employee is to be dismissed from 
service on the ground that he had·. committed a 
misconduct, he is entitled to an opportunity of hearing. 
C In the instant case, had such an opportunity of hearing 
been given to workmen, they could have shown that 
there were compelling. reasons for their not joining at the 
transferred places. There did not exist any justifiable \ 
reason as to why such a post haste· decision was taken. 
D Admittedly the respondents were challenging the right of 
the employer to order transfer of the employee 
particularly. when · t.hey hold some posts in the 
a

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