RAJNEESH KHAJURIA versus M/S. WOCKHARDT LTD. & ANR. on 15 January 2020

[2020] 1 S.C.R. 1005

RAJNEESH KHAJURIA

v.

M/S. WOCKHARDT LTD. & ANR.

(Civil Appeal No. 8989 of 2019)

JANUARY 15, 2020

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Maharashtra Recognition of Trade Unions and Preventionof Unfair Labour Practices Act, 1971:

s. 7 and Schedule IV Items 3, 7, 9 and 10 – Complaint byemployee-workman – Against the employer Company and its GeneralManager – Alleging that his transfer to Head-office of the employer-company was unjust, unfair illegal, improper, arbitrary and malafide and amounted to unfair labour practices u/items 3, 7, 9 and 10of Schedule IV – Plea of the employer interalia was that since theservice of the employee had already been terminated due to his notjoining at the transferred place, the employee not being in theemployment, complaint of unfair practices cannot be entertained –Stand of the employee was that the termination order was not real,existent or bonafide, as he never received the termination order –Industrial Court decided in favour of the employee – High Courtset aside the order of Industrial Court – Appeal to supreme Court –Held: The termination order does not become fake or ingenuine,just because the employee did not receive it – The act of transfercan be unfair labour practice, if the transfer is actuated by malafide– In the present case the employee has proved neither malice in factnor malice in law – The Industrial Court does not have jurisdictionto examine the question of termination as a consequence of theorder of transfer because the unfair labour practices mentioned inItem 1 of Schedule IV fall within the jurisdiction of Labour Courtand not Industrial Court – Jurisdiction.

Dismissing the appeal, the Court

HELD: 1. The termination order is said to be fake, bogusand not real or bona fide for the reason that the employee neverreceived any termination letter either by courier, UPC or by any

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Aother mode of communication. The statement of the witness ofthe employer is that the transfer order and termination letter aretrue. He has identified the signatures of the authorisedrepresentative on such documents as well. Therefore, it is notpossible to accept that the termination order is not in existence,as the statement of the employer witness has not been challenged.BThe only allegation is that the employee has not received thetermination letter. Therefore, the assertion that an order oftermination was not received by the employee is not relevant tohold that the termination order was fake. The order was issued,as deposed by the employer witness. Even if, the employee hasCmanaged not to receive the same, the termination order doesnot become fake or ingenuine. Thus, the appellant is not entitledto dispute the termination order as not real or bona fide for thereason that it was not received by him. [Paras 12 and 13][1014-G-H; 1015-A; 1016-E-F]

DState of Punjab v. Khemi Ram (1969) 3 SCC 28 : [1970]2 SCR 657 – relied on.

2.1 The act of transfer can be unfair labour practice if thetransfer is actuated by mala fide. The allegations of mala fidehave two facets – one malice in law and the other being malice inEfact. The challenge to the transfer is based upon malice in fact asit is an action taken by the employer. [Para 14][1016-G]

2.2 The allegation in the complaint is that the transfer wasactuated for the reason that the employee had raised voice againstremoval of one of the employees from the venue of a Conference.FThe officers present in the said Conference were the RegionalManager or Sales Manager, whereas order of transfer was passedby General Manager-HR. It is an admitted fact that there is powerof transfer with the employer. The allegations are against thepersons present in the Conference but there is no allegationagainst the person who has passed the order of transfer. None ofGthe named persons including the person present in Conferencehave been impleaded as parties to rebut such allegations. Sincethe order of transfer is in terms of the letter of appointment,therefore, the mere fact that the employee was transferred willper se not make it mala fide. The allegations of mala fide areHeasier to levy than to prove. [Para 19][1021-E-G]

2.3 The appellant has not laid any foundation to allege amalice in law. Malice in law would be something which is donewithout lawful excuse or an act done wrongfully and willfullywithout reasonable or probable cause. There is power of transferin the letter of appointment. If an employee is transferred after20 years and that to the place of headquarters of a company, itcannot be said that the act of transfer was done without lawfulexcuse. No inference can be drawn that the act was done from illfeeling or spite. [Para 21][1022-A-B]

2.4 Therefore, the allegation that the transfer of theappellant was an act of unfair labour practice without impleadingthe person who is said to have acted in a mala fide manner is notsustainable. [Para 20][1021-H]

State of Bihar & Anr. v. P.P. Sharma, IAS & Anr. (1992)Supp (1) SCC 222 : [1991] 2 SCR 1; Prabodh Sagar v.Punjab State Electricity Board & Ors. (2000) 5 SCC630 : [2000] 3 SCR 866; HMT Ltd. & Anr. v. Mudappa& Ors. (2007) 9 SCC 768 : [2007] 2 SCR 363; State ofA.P. & Ors. v. Goverdhanlal Pitti (2003) 4 SCC 739 :[2003] 2 SCR 908; Union of India & Ors. v. AshokKumar & Ors. (2005) 8 SCC 760 : [2005] 4 Suppl.SCR 317 – relied on.

Ratnagiri Gas and Power Private Limited v. RDSProjects Limited & Ors. (2013) 1 SCC 524 : [2012] 9SCR 690 – referred to.

3. The jurisdiction of the Industrial Court is, inter alia, todecide complaints relating to unfair labour practices except unfairlabour practices falling under Item 1 of Schedule IV. The unfairlabour practices mentioned in Item 1 of Schedule IV fall withinthe jurisdiction of the Labour Court—(Section 7). In view of thespecific provision that the complaint relating to unfair labourpractices described in Item 1 of Schedule IV fall within thejurisdiction of the Labour Court, the Industrial Court will nothave jurisdiction to examine the question of termination as aconsequence of the order of transfer. Since the statute creates aforum for redressal of grievances in respect of termination ofservices, it is the said forum alone which can be invoked forredressal of grievances. The jurisdiction of a forum can be A

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Ainvoked only in accordance with the statutory provisions.Therefore, alleging termination as a consequence of non-joiningon the transferred post will not confer jurisdiction on the IndustrialCourt. The dispute regarding termination as an act of victimizationfalls exclusively within the jurisdiction of the Labour Court.Consequently, the appellant has not made out any case forBinterference against an order passed by the High Court in thepresent appeal. Therefore, the Labour Court alone was competentto decide the issue of alleged un-lawful termination of theappellant. [Para 23][1022-E-H; 1023-A]

Case Law Reference

Case Law Reference

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ECIVIL APPELLATE JURISDICTION: Civil Appeal No. 8989of 2019.

From the Judgment and Order dated 21.01.2014 of the High Courtof Judicature at Bombay in Writ Petition No. 10816 of 2013 and orderdated 27.11.2014 in Review Petition No. 106 of 2014 in Writ PetitionFNo. 10816 of 2013.

Vinay Navare, Sr. Adv., Ms. Gwen Karthika, Ms. AbhaR. Sharma, Advs. for the Appellant.

J.P. Cama, Sr. Adv., Nitin S.Tambwekar, Seshatalpa Sai Bandaru,Advs. for the Respondents.

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The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by theHigh Court of Judicature at Bombay on 21[st] January, 2014 whereby thewrit petition filed by M/s. Wockhardt Ltd.[1] was allowed and the orderpassed by the Industrial Court on 6[th] August, 2012 was set aside.

2. The High Court held that the transfer of the appellant[2] was asper the terms and conditions of employment. It was held that the employerhad to decide who should work at particular place and who was to betransferred to another place in the interest of establishment. It was alsoheld that the employee had failed to challenge the termination orderdated 15[th] April, 2005.

3. Brief facts leading to the present appeal are that the employeewas appointed on 6[th] June, 1985 as a Professional Service Representativeand was posted at Sagar, Madhya Pradesh. Thereafter, he was promotedto Field Sales Officer Grade FM-One. One of the conditions in the letterof appointment was that the employer shall be entitled, at any time duringthe course of employment, to transfer the employee to any of its affiliates,subsidiaries or sister companies. The employee was transferred toMumbai on 21[st] March, 2005 with immediate effect. The employee didnot join duty at Mumbai; therefore, reminders were sent by the employeron 1[st] April, 2005 and 8[th] April, 2005. The service of the employee wasterminated on 15[th] April, 2005.

4. The employee along with National Federation of SalesRepresentatives’ Union[3] filed a complaint on 30[th] April, 2005 before theIndustrial Court, Maharashtra established under the MaharashtraRecognition of Trade Unions and Prevention of Unfair Labour PracticesAct, 1971[4]. The allegation of the employee is that he had reasonable andbona fide apprehension that the employer, after filing of the presentcomplaint, was going to take adverse actions such as mala fide transfers,suspension, disciplinary actions, summary terminations etc. against N.P.Mishra, Rajendra Khandelwal, Sandeep Mitra, Manoj Bhatt, RajaramV. Baliga and Rajkumar Jasnani. The employee has alleged that the 1 for short, ‘employer’

2 for short, ‘employee’

3 for short, ‘Union’

4 for short, ‘Act’

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Abasis of apprehended action against the employees mentioned by himwas that they have filed affidavits in his favour against unfair labourpractices, high handed actions, atrocities etc. committed by employercompany and its employer on 15[th] March, 2005 during the LaunchingConference at Ahmedabad. The employee alleged that he was thePresident of Sagar Unit of Madhya Pradesh Medical Representatives’BAssociation which is affiliated to complainant No. 1 i.e. the Union. Theemployee also alleged that one Mr. Ashish Khare, an active member ofthe Union was forced to resign from the employment of the employercompany in January, 2005 but the same was not accepted. He was paidwages till February, 2005. He was invited for a Launching ConferenceCbut two managers of the employer company Deepak Sethi, SalesManager and Sanjay Anand, Regional Manager drove Mr. Ashish Khareout of the hotel at night time. The employee had protested against thesame and it is on account of raising his voice against the said atrocitiesand acts of force, the employee was threatened that he would betransferred and his other colleagues would also be dealt with severelyDby the employer. Soon after the Conference was over, the employeewas transferred on 21[st] March, 2005. Such transfer order was receivedon 4[th] April, 2005. The employee alleged that his transfer was unjust,unfair, illegal, improper, arbitrary and mala fide, amounting to unfairlabour practices under Item 3, 7, 9 and 10 of Schedule IV of the Act. ItEmay be noticed at this stage that the complaint was filed against thecompany and its General Manager (HR) in its official capacity. Relevantassertion in the complaint reads as under:

“(iii) That the impugned transfer order does not mention anybusiness exigency and/or administrative reason/s and, in fact, thereFdoes 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) becausethere are sufficient number of Medical Representatives workingin Mumbai. Thus, there is no business exigency or administrativereason for transferring the Complainant No. 2 from Sagar (MadhyaGPradesh) to Mumbai (State of Maharashtra). The impugnedtransfer of the Complainant No. 2 is, therefore, malafide transferand thereby the Respondents are engaging in the unfair labourpractices under Item 3 of Schedule IV of the M.R.T.U. & P.U.L.P.Act, 1971.”

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5. In the written statement filed by the employer, the status of theemployee as a workman was denied as he was alleged to be working insupervisory, managerial or administrative capacity and he was discharginghis duties as Territory Manager. The stand of the employer was that thetransfer was as per contract of employment signed between the partiesand that there is no mala fide in the order of transfer. It was also pleadedthat services of the employee stood terminated on 15[th] April, 2005 andon the date of filing of the complaint, the employee was not in theemployment of the respondent employer, therefore, no complaint of unfairlabour practices can be entertained in law. It was also asserted that theemployee had failed to report for duties at the transferred place, therefore,communications dated 1[st] April, 2005 and 8[th] April, 2005 were addressedto him to resume duties but the employee continued his defiant attitudeof not reporting for work at the transferred place and subsequently, hisservices were terminated on 15[th] April, 2005. It was also pleaded thatthe Industrial Court did not have any jurisdiction to return findings on theissue of termination in a complaint filed under Item 3, 7, 9 and 10 ofSchedule IV of the Act. It was also pleaded that there was no SagarUnit of Madhya Pradesh Medical Representatives’ Association as perthe information of the employer. Further, it was pleaded that the resignationof Mr. Ashish Khare was voluntary which was accepted and he wasrelieved on 6[th] January, 2005. It was further pleaded that Mr. Kharecame to the Conference without an invitation in a clandestine manner.It was also stated that transfer of the employee was discussed by theemployer much prior to the actual issuance of the order of transfer. Itwas also mentioned that the employee had failed to submit his expensestatements 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 beingwhether the employee was a workman under Section 2(s) of the IndustrialDispute Act, 1947 read with Section 3(5) of the Act. The second issuebeing whether the termination order dated 15[th] April, 2005 was real,existent and bona fide. The third, whether the employer had indulged inunfair labour practices under the Act. The last issue being whether theemployee was entitled to the reliefs claimed.

7. In support of the complaint, the employee filed his affidavit inevidence reiterating the version given by him in his complaint. However,in respect of termination alleged by the employer, the employee stated tothe following effect:

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1012SUPREME COURT REPORTS

A“9. I say that the company had addressed me an E-Mail dated14[th] 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 myApplication dated April 14, 2005, with Application dated 27[th] July,2006. I say that I have never received any termination letter dated15.4.2005 either by courier or by UPC or by any other mode ofBcommunication. I say that the purported letter of termination dated15.4.2005 is not real, existent and bona fide. I say that it is fakeand bogus termination letter.”

8. The employee in his cross-examination, as a witness, conductedon 4[th] June, 2009, admitted that there was no Union by the name MadhyaCPradesh Medical and Sales Representatives’ Association.

9. Mr. Raj Kumar Chadha furnished his affidavit in evidence onbehalf of the employer. In cross-examination, he deposed that theEmployer communicated to the employee that he must report at thereported place. Since the employee had failed to report on duty, his servicesDstood terminated. Relevant extract of the cross-examination of thewitness 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 ifhe first reports at transferred place can it be considered, and henceEwas not granted. I say thereafter the services of Mr. RajneeshJagannath Khajoria stood terminated vide company’s letter dated15.4.2005. I say the transfer order and the termination lettercontents are true and I identify the signatures therein.”

10. With the said factual background, we find that the followingFquestions arise for consideration:

(i) Whether the employee is entitled to dispute the terminationorder dated 15[th] April, 2005 as not real or bona fide for thereason that it was not received by him?

(ii) Whether the employee is entitled to dispute his transfer asGunfair labour practice in terms of Item 3 of Schedule IV ofthe Act without impleading the person who is said to haveacted in a mala fide manner?

(iii) Whether the question of malice in law can be inferred in thematter of transfer of an employee as unfair labour practice?H

(iv) Whether the order of termination is ancillary to the order oftransfer which confers jurisdiction on the Industrial Court toexercise jurisdiction in the matter arising out of allegation ofunfair labour practice?

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11. Before we proceed further, relevant statutory provisions fromthe Act need to be reproduced hereunder:B

“3 (8) “Industrial Court” means an Industrial Court constitutedunder section 4; 3 (10) “Labour Court” means a Labour Court constituted underSection 6; C

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5. Duties of Industrial Court

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

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

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

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27. Prohibition on engaging in unfair labour practices:- No employeror union and no employees shall engage in any unfair labourpractice.

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32. Power of Court to decide all connected matters:-Notwithstanding anything contained in this Act, the Court shallhave the power to decide all matters arising out of any applicationor a complaint referred to it for the decision under any of theprovisions of this Act.

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Schedule IV – General Unfair Labour Practices on the part ofemployers

1. To discharge or dismiss employees –

(a) by way of victimisation;

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(b) not in good faith, but in colourable exercise of employer’srights;

(c) by falsely implicating an employee in a criminal case on falseevidence or on concocted evidence; D

(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 theconduct of domestic enquiry or with undue haste; E

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

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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 orbona fide for the reason that the employee never received any terminationletter either by courier, UPC or by any other mode of communication.GThe statement of the witness of the employer is that the transfer orderand termination letter are true. He has identified the signatures of theauthorised representative on such documents as well. Therefore, it isnot possible to accept the argument that the termination order is not inexistence as the statement of the employer witness has not beenHchallenged. The only allegation is that the employee has not received the termination letter. This Court in a judgment reported as State of Punjabv. Khemi Ram[5] held that once the order is issued and sent out to theconcerned government servant, it must be held to have beencommunicated to him, no matter when he actually received it. This Courtheld as under:

“17. The question then is whether communicating the order meansits actual receipt by the concerned government servant. The orderof suspension in question was published in the Gazette thoughthat was after the date when the respondent was to retire. Butthe 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 EnglishDictionary, Vol. 1, p. 352). As already stated, telegrams, datedJuly 31, and August 2, 1958, were despatched to the respondentat the address given by him where communications by Governmentshould be despatched. Both the telegrams transmitted or impartedinformation to the respondent that he was suspended from servicewith effect from August 2, 1958. It may be that he actually receivedthem in or about the middle of August 1958, after the date of hisretirement. But how can it be said that the information about hishaving been suspended was not imparted or transmitted to him onJuly 31 and August 2, 1958 i.e. before August 4, 1958, when hewould have retired? It will be seen that in all the decisionscited before us it was the communication of the impugnedorder which was held to be essential and not its actual receiptby the officer concerned and such communication was heldto be necessary because till the order is issued and actuallysent out to the person concerned the authority making suchorder would be in a position to change its mind and modify itif it thought fit. But once such an order is sent out, it goes outof the control of such an authority, and therefore, there wouldbe no chance whatsoever of its changing its mind or modifyingit. In our view, once an order is issued and it is sent out to theconcerned government servant, it must be held to have beencommunicated to him, no matter when he actually receivedit.We find it difficult to persuade ourselves to accept the viewthat it is only from the date of the actual receipt by him that A

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Athe order becomes effective. If that be the true meaning ofcommunication, it would be possible for a government servantto effectively thwart an order by avoiding receipt of it by onemethod or the other till after the date of his retirement eventhough such an order is passed and despatched to him beforesuch date.An officer against whom action is sought to be taken,Bthus, may go away from the address given by him for serviceof such orders or may deliberately give a wrong address andthus prevent or delay its receipt and be able to defeat its serviceon him. Such a meaning of the word “communication” ought notto be given unless the provision in question expressly so provides.CActual knowledge by him of an order where it is one of dismissal,may, perhaps, become necessary because of the consequenceswhich the decision in The State of Punjab v. Amar Singhcontemplates. But such consequences would not occur in the caseof an officer who has proceeded on leave and against whom anorder of suspension is passed because in his case there is noDquestion of his doing any act or passing any order and such act ororder being challenged as invalid.” (Emphasis supplied)

13. In view of the aforesaid judgment, the assertion that an orderof termination was not received by the employee is not relevant to holdthat the termination order was fake. The order was issued, as deposedEby the employer witness. Even if, the employee has managed not toreceive the same, the termination order does not become fake oringenuine. Therefore, the finding of the Industrial Court on question No.2 was rightly set aside by the High Court. We affirm the order of theHigh Court but on the ground other than which weighed with it. Thus,Fwe find that the appellant is not entitled to dispute the termination orderas 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 transferis 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 toGthe transfer is based upon malice in fact as it is an action taken by theemployer on account of two officers present in Conference. In a judgmentreported as State of Bihar & Anr. v. P.P. Sharma, IAS & Anr.[6], thisCourt 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 anoblique motive, and (ii) whether the administrative action is contrary tothe objects, requirements and conditions of a valid exercise ofadministrative power. As far as second aspect is concerned, there is apower 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 cannotbe said to be an act of unfair labour practice unless it is actuated by malafide. Therefore, to sustain a plea of mala fide, there has to be an elementof 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 administrativeaction must be said to be done in good faith, if it is in fact donehonestly, whether it is done negligently or not. An act done honestlyis deemed to have been done in good faith. An administrativeauthority must, therefore, act in a bona fide manner and shouldnever act for an improper motive or ulterior purposes or contraryto the requirements of the statute, or the basis of the circumstancescontemplated by law, or improperly exercised discretion to achievesome ulterior purpose. The determination of a plea of mala fideinvolves two questions, namely (i) whether there is a personalbias or an oblique motive, and (ii) whether the administrative actionis contrary to the objects, requirements and conditions of a validexercise of administrative power.

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

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59. Malice in law could be inferred from doing of wrongful actintentionally without any just cause or excuse or without therebeing reasonable relation to the purpose of the exercise of statutorypower. Malice in law is not established from the omission toconsider some documents said to be relevant to the accused. Equallyreporting the commission of a crime to the Station House Officer, A

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Acannot be held to be a colourable exercise of power with badfaith or fraud on power. It may be honest and bona fide exerciseof power. There are no grounds made out or shown to us that thefirst information report was not lodged in good faith. State ofHaryana v. Ch. Bhajan Lal [1992 Supp (1) SCC 335 : JT 1990(4) SC 650] is an authority for the proposition that existence ofBdeep seated political vendetta is not a ground to quash the FIR.Therein despite the attempt by the respondent to prove by affidavitevidence corroborated by documents of the mala fides and evenon facts as alleged no offence was committed, this Court declinedto go into those allegations and relegated the dispute forCinvestigation. Unhesitatingly I hold that the findings of the HighCourt that FIR gets vitiated by the mala fides of the Administratorand the charge-sheets are the results of the mala fides of theinformant or investigator, to say the least, is fantastic and obviousgross error of law.”

D15. In another judgment reported as Prabodh Sagar v. PunjabState Electricity Board & Ors.[7], it was held by this Court that the mereuse of the expression “mala fide” would not by itself make the petitionentertainable. The Court held as under:

“13. … Incidentally, be it noted that the expression “mala fide” isEnot meaningless jargon and it has its proper connotation. Maliceor mala fides can only be appreciated from the records of thecase in the facts of each case. There cannot possibly be any setguidelines in regard to the proof of mala fides. Mala fides, whereit is alleged, depends upon its own facts and circumstances. Weourselves feel it expedient to record that the petitioner has becomeFmore of a liability than an asset and in the event of there beingsuch a situation vis-à-vis an employee, the employer will be withinhis liberty to take appropriate steps including the cessation ofrelationship between the employer and the employee. The serviceconditions of the Board’s employees also provide for voluntaryG(sic compulsory) retirement, a person of the nature of the petitioner,as more fully detailed hereinbefore, cannot possibly be given anyredress against the order of the Board for voluntary retirement.There must be factual support pertaining to the allegations of malafides, unfortunately there is none. Mere user of the word “mala H7 (2000) 5 SCC 630

fide” by the petitioner would not by itself make the petitionentertainable. The Court must scan the factual aspect and cometo its own conclusion i.e. exactly what the High Court has doneand that is the reason why the narration has been noted in thisjudgment 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 ofA.P. & Ors. v. Goverdhanlal Pitti[9], it was held that ‘legal malice’ or‘malice in law’ means ‘something done without lawful excuse’. It is anact done wrongfully and willfully without reasonable or probable cause,and not necessarily an act done from ill feeling and spite. The Courtheld as under:

“24. The Court also explained the concept of legal mala fide. Byreferring 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 aparty 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 lawfulexcuse’. In other words, ‘it is an act done wrongfully and wilfullywithout reasonable or probable cause, and not necessarily anact done from ill feeling and spite. It is a deliberate act indisregard of the rights of others.’ “

It was observed that where malice was attributed to the State, itcould not be a case of malice in fact, or personal ill-will or spite onthe part of the State. It could only be malice in law i.e. legal malafide. The State, if it wishes to acquire land, could exercise itspower bona fide for statutory purpose and for none other. It wasobserved that it was only because of the decree passed in favourof the owner that the proceedings for acquisition were necessaryand hence, notification was issued. Such an action could not beheld mala fide.”

17. In a judgment reported as Union of India & Ors. v. AshokKumar & Ors.[10], it has been held that allegations of mala fidesare often 8 (2007) 9 SCC 768

9 (2003) 4 SCC 739

10 (2005) 8 SCC 760

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Amore easily made than proved, and the very seriousness of suchallegations demands proof of a high order of credibility. The Court heldas under:

“21. Doubtless, he who seeks to invalidate or nullify any act ororder must establish the charge of bad faith, an abuse or a misuseBby the authority of its powers. While the indirect motive or purpose,or bad faith or personal ill will is not to be held established excepton clear proof thereof, it is obviously difficult to establish the stateof a man’s mind, for that is what the employee has to establish inthis case, though this may sometimes be done. The difficulty isnot lessened when one has to establish that a person apparentlyCacting on the legitimate exercise of power has, in fact, been actingmala fide in the sense of pursuing an illegitimate aim. It is not thelaw that mala fides in the sense of improper motive should beestablished only by direct evidence. But it must be discerniblefrom the order impugned or must be shown from the establishedDsurrounding factors which preceded the order. If bad faith wouldvitiate the order, the same can, in our opinion, be deduced as areasonable and inescapable inference from proved facts. (S.Pratap Singh v. State of Punjab [(1964) 4 SCR 733 : AIR 1964SC 72] .) It cannot be overlooked that the burden of establishingmala fides is very heavy on the person who alleges it. TheEallegations of mala fides are often more easily made than proved,and the very seriousness of such allegations demands proof of ahigh order of credibility. As noted by this Court in E.P. Royappav. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR1974 SC 555] courts would be slow to draw dubious inferencesFfrom incomplete facts placed before them by a party, particularlywhen the imputations are grave and they are made against theholder of an office which has a high responsibility in theadministration. (See Indian Rly. Construction Co. Ltd. v. AjayKumar [(2003) 4 SCC 579 : 2003 SCC (L&S) 528] .)”

G18. In another judgment reported as Ratnagiri Gas and PowerPrivate Limited v. RDS Projects Limited & Ors.[11], this Court heldthat when allegations of mala fides are made, the persons against whomthe same are levelled need to be impleaded as parties to the proceedingsto enable them to answer the charge. A judicial pronouncement declaring H11 (2013) 1 SCC 524

an action to be mala fide is a serious indictment of the person concernedthat can lead to adverse civil consequences against him. The Court heldas under:

“27. There is yet another aspect which cannot be ignored. As andwhen allegations of mala fides are made, the persons against whomthe same are levelled need to be impleaded as parties to theproceedings to enable them to answer the charge. In the absenceof the person concerned as a party in his/her individual capacity itwill neither be fair nor proper to record a finding that malice infact had vitiated the action taken by the authority concerned. It isimportant to remember that a judicial pronouncement declaringan action to be mala fide is a serious indictment of the personconcerned that can lead to adverse civil consequences againsthim. Courts have, therefore, to be slow in drawing conclusionswhen it comes to holding allegations of mala fides to be provedand only in cases where based on the material placed before theCourt or facts that are admitted leading to inevitable inferencessupporting the charge of mala fides that the Court should record afinding in the process ensuring that while it does so, it also hearsthe person who was likely to be affected by such a finding.”

19. The allegation in the complaint is that the transfer was actuatedfor the reason that the employee had raised voice against removal ofShri Khare from the venue of a Conference. The officers present in thesaid Conference were the Regional Manager or Sales Manager, whereasorder of transfer was passed by Mr. Suresh Srinivasan, General Manager-HR. It is an admitted fact that there is power of transfer with theemployer. The allegations are against the persons present in theConference but there is no allegation against the person who has passedthe order of transfer. None of the named persons including the personpresent in Conference have been impleaded as parties to rebut suchallegations. Since the order of transfer is in terms of the letter ofappointment, therefore, the mere fact that the employee was transferredwill per se not make it mala fide. The allegations of mala fide are easierto levy than to prove.

20. Therefore, the allegation that the transfer of the appellantwas an act of unfair labour practice without impleading the person whois said to have acted in a mala fide manner is not sustainable.

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A21. We do not find that the appellant has laid any foundation toallege a malice in law. As mentioned in the judgments referred to above,malice in law would be something which is done without lawful excuseor an act done wrongfully and willfully without reasonable or probablecause. There is power of transfer in the letter of appointment. Theappellant has stayed at Sagar for almost 20 years. If an employee isBtransferred after 20 years and that to the place of headquarters of acompany, it cannot be said that the act of transfer was done withoutlawful excuse. No inference can be drawn that an act was done from illfeeling or spite.

22. The next question which was vehemently argued by Mr.CCama, learned senior counsel for the employer was that the order oftermination can be disputed only before the Labour Court in terms ofSection 7 of the Act read with Item 1 of Schedule IV of the Act and notbefore the Industrial Court. Learned counsel for the appellant arguedthat the termination was ancillary to the order of transfer or aDconsequence of not joining the transferred station. Therefore, in termsof Section 32 of the Act, there need not be any separate challenge to thetermination as such termination is a consequence of transfer and, thus,will fall within the scope of Section 32 of the Act.

23. We do not find any merit in the arguments raised by the learnedEcounsel for the appellant. The jurisdiction of the Industrial Court is, interalia,to decide complaints relating to unfair labour practices except unfairlabour practices falling under Item 1 of Schedule IV. The unfair labourpractices mentioned in Item 1 of Schedule IV fall within the jurisdictionof the Labour Court (See Section 7). In view of the specific provisionthat the complaint relating to unfair labour practices described in Item 1Fof Schedule IV fall within the jurisdiction of the Labour Court, therefore,the Industrial Court will not have jurisdiction to examine the question oftermination as a consequence of the order of transfer. Since the statutecreates a forum for redressal of grievances in respect of termination ofservices, it is the said forum alone which can be invoked for redressal ofGgrievances. The jurisdiction of a forum can be invoked only in accordancewith the statutory provisions. Therefore, alleging termination as aconsequence of non-joining on the transferred post will not conferjurisdiction on the Industrial Court. The dispute regarding termination asact of victimization falls exclusively within the jurisdiction of the LabourCourt. Consequently, we do not find that the appellant has made out anyH

case for interference against an order passed by the High Court in thepresent appeal. Therefore, the Labour Court alone was competent todecide the issue of alleged un-lawful termination of the appellant.

24. In view of the above, we do not find any merit in the presentappeal. Accordingly, the appeal is dismissed.

Kalpana K. Tripathy

Appeal dismissed.

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