BEFORE JUNAID AHMED MOULANA
Chairman-cum-Presiding Officer Industrial Tribunal-cum-Labour Court Guntur
Friday, the 21st day of October, 2022
INDUSTRIAL DIPSPUTE No.61/2016
Between:
Joint Secretary, A.P Medical & Sales Representatives Union, Guntur, Rep for Ruknuddin, Marketing Executive, Alkem Laboratories Limited...Claimant
And:
1.Atul Param, General Manager-HR, Alkem Laboratories Limited, Mumbai
2.Dilip Korde, General Manager (Diabeto), Alkem Laboratories Limited, Mumbai
3.G. Sumanth, DSM (Diabeto), Alkem Laboratories, Hyderabad
4.B.V.A Narasimhulu (Diabeto) Alkem Laboratories, Vijayawada
5.M. Venogopal, ABM (Diabeto),
Alkem Laboratories, Tirupathi..Respondents
This reference coming before me for final hearing on 14.10.2022, in the presence of Sri Y.Kishore Kumar, Advocate for claimant, and Sri N.Chandra Sekhar, Advocate for respondent No.2, and Respondents 1, 3, 5 having remained ex-parte, and claim against respondent No.4 having been dismissed as no steps were taken against him by the complainant, and upon hearing the advocates, and perusing the material papers on record, the court passed the following: -
A W A R D
This is a reference under Section 10(1) of the Industrial Disputes
Act, made by Joint Commissioner of Labour, Guntur, to adjudicate the following terms of reference, as referred in the annexure: -
(i) Transfer of the workman Sri Md.Ruknuddin, Marketing Executive is
motivated action of the management with a mala-fide intention
and vindictive attitude, and is a clear case of victimization?
(ii) If not to what relief Md.Ruknuddin, Marketing Executive is entitled?
2 [2]Having noticed Point No.1 was framed affirmatively, and this court cannot amend the same, and convert it into question form, the proceedings of
Joint Commissioner of Labour, Guntur, along with the annexure, were sent back to reframe Point No.1 in appropriate manner by order dated 7.5.2022.
[3]In pursuance of above order, Joint Commissioner of Labour, Guntur has reframed Point No.1, vide proceedings dated 30.6.2022, as hereunder:
(1) Whether the action of Management of Alkem Laboratories in
transferring Mr Md.Ruknuddin, Marketing Executive, is justified
and sustainable in law?
[4]In the reference, claim statement was filed on behalf of
Md.Ruknuddin, Marketing Executive (hereinafter referred to as ‘the individual’), wherein it is submitted, he was appointed as Marketing Executive in Alkem
Laboratories Limited of respondents, and was posted to work at Guntur with effect from 19.3.2009, vide appointment letter dated 28.3.2009. The main duty of the individual is to promote the products of respondents among medical practitioners to generate prescription demand, and he being a sales promotion employee, is a workman as defined under Industrial Disputes Act. The individual worked at Guntur Headquarters right from the beginning for more than 5 years, without any blemish, and had discharged his duties to the satisfaction of respondents and was given several appreciation letters for his excellence, besides certificates of excellence for achieving targets from April to July 2011.
Respondents also gave appreciation letters to the individual for achieving targets from April to May 2012, and he is one of top 25 performing workman in
Headquarters, and he was also presented with Canon Camera for his performance in July to September 2014. While so, all off a sudden, respondents issued transfer order dated 10.11.2014 transferring the individual from Guntur to Rajkot, by stating, Guntur territory is de-growing, and he was not responding to Mails sent by his superiors. In fact, Guntur territory was not de-growing, and the individual had issued reply to respondents for all the Mails sent, that no product of respondents was de-growing in Guntur.
-: 3 :-
(i)The individual was posted to promote Diabetology products, and previously, Metabolic products were also included in Diabetology division. From
April 2014, Metabolic products were separated from Diabetology division, and separate employee was employed to promote Metabolic products at Guntur
Headquarters. So, the number of products in Diabetology division were decreased, as Diabetology division is separated from Metabolic products. The individual has to promote Diabetology products excluding Metabolic products and, he made every effort to promote sales. Due to his best efforts, there was a growth in sales of Diabetology products from April 2014, but the respondents blamed him by comparing total figures of sales before bifurcation of metabolic products from Diabetology division.
(ii)The individual is an active member of A.P Medical and Sale
Representatives Union and holding the post of Joint Convener of Alkem
Laboratories Field Workers Council in Guntur. As a Trade Union leader, he participated actively in several programs, as per the call of Trade Union, on several demands, and has been actively participating in trade union activities.
Respondents wanted to take vengeance against him by hook or crook, and to victimize him with a mala-fide intention, transferred him from Guntur to Rajkot which is 1600 Km away from Guntur. The local language at Rajkot is Gujarati, and the individual does not know Gujarati language. As a sales promotion employee, he has to consult doctors, and convince them for raising prescription demands of company products. Convincing local doctors can be done smoothly and easily, when the individual could explain local doctors in their mother tongue. The individual had been working at Guntur Headquarters for more than five years, and got good acquaintance with local doctors, and it will help him to promote company products more, at Guntur. These factors are known to respondents, and they deliberately issued transfer order, not to develop their business, but to take vengeance against him. Respondents are aware that no employee will go 1600 Km away for salary of ₹.16,108/- per month. The 4 individual has lot of respect towards respondents management, and never neglected his duties, and, still he is working and sending reports, but the management of respondents are not paying salary.
(iii)Under those circumstances, claimant has raised Industrial Dispute
before Assistant Commissioner of Labour, Guntur, questioning the transfer order,
and as the conciliation proceedings failed, dispute was referred to this Tribunal, praying to hold transfer order dated 10.11.2014, is a motivated action of respondents, and vindictive attitude, and is clear case of victimization, consequently to set aside the same by directing respondents to allow the individual to work as Marketing Executive, at Guntur Headquarters with continuity of service, and to pay arrears of wages at ₹.16,108/- per month, from 10.11.2014 till payment.
[5]Respondents 1, 3 and 5 having received notice in the reference, did not appear in the proceedings, and they remained ex-parte, and the reference against respondent No.4, was dismissed by order dated 19.4.2018, for not taking steps against him.
[6]Second respondent resisted the reference by fling counter, wherein they refuted all the material allegations made in the claim statement, and inter- alia submitted, Alkem Laboratories Limited, is an all India based company, and has employed 6000 employees all over India. It is professionally well managed company having its registered office at Mumbai in state of Maharashtra.
(i)The individual was appointed as Marketing Executive, based at
Guntur Headquarters, and he joined with effect from 19.3.2009 vide appointment letter dated 28.3.2009. The appointment order and its terms and conditions, including service rules, have been duly agreed and accepted by workman by affixing his signature, and his services were confirmed with effect from 1.12.2009.
-: 5 :-
(ii)No Union is operating in the company Alkem Laboratories Limited, and the claimant Union has no locus standi to espouse any cause of employee.
In spite of having business operations for last five years, business in
Headquarters at Guntur was not satisfactory, and it was economically not viable to operate its operations, as a consequence, the company had incurred heavy business loss.
(iii)Lot of communications were exchanged between the company, and the individual, to improve his performance, but it could not get good performance. The attitude of the individual was not positive, and he was irresponsible, and had a casual approach. A detailed E-mail from Reporting
Manager of the individual followed by recommendations of General Manager (sales) vide E-mail dated 5.11.2014 to close the Headquarters at Guntur, and purely on humanitarian grounds, to accommodate the individual in service, he was posted to Rajkot, Gujarat state, and it was approved by Business Head Mr
Mahesh Kawakar vide his Email dated 5.11.2014. Based on the said approval,
HR department has issued letter dated 10.11.2014 to the individual, for closing down field operations at Guntur with effect from 15.11.2014 and transferred his services to Rajkot, with an advice to join at transferred location on or before 24.11.2014. Thereafter, the individual had expressed his inability to report at
Rajkot vide E-Mail dated 14.11.2014, and a reply E-mail was sent by respondent dated 14.11.2014, instructing him to join at transferred location
Rajkot on or before 24.11.2014. The individual did not report at his transferred location at Rajkot, and as a consequence, his Garnet Reporting System was locked, and he sent a communication to management of respondent vide E-Mail
dated 28.11.2014. Thereafter, claimant filed a petition under Section 2(k) of
Industrial Disputes Act, before Assistant Commissioner of Labour/Conciliation
Officer, Guntur. The concerned authority registered petition.
(iv)As the petitioner did not join at transferred location Rajkot,
Management of respondents has sent communication vide letter dated 6 15.12.2014 to him to report at their Mumbai office on 5.1.2015, along with his written explanation, as a final opportunity to him. The individual has confirmed to participate in the aforesaid meeting vide Fax dated 3.1.2015, and subsequently he expressed his inability to report at Mumbai office due to non- availability of train/bus reservation, and requested to reschedule the meeting.
The respondent had also received E-mail dated 5.1.2015, from the individual reiterating non-availability of reservation, and to reschedule the meeting. The management of respondents vide communication dated 6.1.2016, instructed the individual to join at transferred location on or after 12.1.2015, but he failed to join at his transferred location.
(v)The representatives of respondents appeared before Assistant
Commissioner of Labour, Guntur on 31.12.2015, and anticipating physical, and coercive action from members of claimant at Guntur, and threatening calls received, they lodged a police complaint. The management of respondents had a detailed discussion with Assistant Commissioner of Labour at Guntur, and requested to close the dispute raised on behalf of individual.
(vi)Management of respondents has sent reminder to the individual, vide letter dated 16.2.2015, advising him to join at transferred location on or
before 23.2.2015, but, he neither joined at transferred location, nor sent any
communication for the reasons best known to him. Respondents gave sufficient time to the individual, but he did not reply nor sent any communication, or joined at his transferred location, therefore, respondents presumed, he had abandoned his job on his own accord, accordingly, sent final communication to the individual vide letter dated 16.3.2015, with an advise to join at transferred location, Rajkot, but he did not utilize and comply the same. Thereafter, respondent got issued letter dated 16.3.2015 to individual, and have settled his full and final settlement of ₹.72,432/- through cheque 00601 dated 31.3.2015, drawn on Kotak Mahindra Bank, and said cheque was got cleared on 9.6.2015.
The respondent has settled the account of the individual, and he had accepted -: 7 :- the same vide his communication dated 6.6.2015, thus, the employee and employer relationship between the individual and respondent has broken down, and his service has been terminated.
(vii)The respondent no longer recognizes the individual as their employee, once he accepted full and final settlement, and he has no intention to join at Rajkot, and to continue in their company. It is a mandatory clause and provision in any State Government or Central Government Rules or private company rules and public company rules, all employees in a private organization should be transferred from one place to other for every three years, or at the convenience of management, and the employees should be bound by the same, otherwise, service of such employee will be automatically terminated, and, thus prayed to dismiss the claim of the individual (as referred in counter).
[7]The claimant, in support of their case, examined the individual as
PW-1, and in his evidence marked Exhibits P-1 to P-15, and second respondent in support of their case examined RW-1, and in his evidence filed Exhibit R-1, and during his cross examination, claimant filed and marked Exhibits P-16 to P- 21.
[8]Heard both sides.
[9]Learned Council for claimant would submit, job of the individual was to generate prescription demand, by promoting the products of respondents company and, since the beginning, he had been working at Guntur
Headquarters, and was allotted Diabetology department, which includes metabolic products also. Subsequently, in April 2014, metabolic products, were separated from Diabetology, even then, performance of the individual, in generating prescription demand, was good. In the past, his performance was appreciated by respondents, by issuing appreciation letters as well as, by awarding increments. He would also submit, just because he is a member of 8 claimant union, and participated in the union activity, to victimize him, he was transferred to Rajkot, which is 1600 Km away from Guntur, therefore, his transfer is not justified, and prayed to grant all the reliefs.
[10]Per contra, learned Council for respondent No.2 would submit, Head quarters of the individual was at Guntur, and it was closed with effect from 15.11.2014, therefore, he was transferred from that date under Exhibit P-2, and his transfer was effected on account of above reason. He also submits, the individual has not joined his new place of transfer at Rajkot, and in spite of issuing reminders from time to time, he failed to join his duties at Rajkot, therefore, towards his full and final settlement of benefits, amount of ₹.72,000/- was sent to him by way of cheque, and the same was encashed by him, there implies, he himself had abandoned his duties, and has no interest to work in the company. He would also submit the individual, had worked as
Marketing Executive and his prime job is promoting products of respondents, and he is a sales promotion employee, and not a workman for the purpose of the Industrial Disputes Act, and prayed to reject his claim. Learned Counsel for respondent No.2, also submitted memorandum of written arguments.
[11]On hearing both the parties, and upon perusing the material papers available on record, the Points that falls for consideration are:
(1) Whether, Sri Md.Ruknuddin, Marketing Executive, is a “workman”
within the meaning of Section 2(s) of Industrial Disputes Act, to
raise industrial dispute on his behalf?
(2) Whether, the action of management of Alkem Laboratories
Limited, transferring Sri Md.Ruknuddin, Marketing Executive, is
justified and sustainable in law?
(3) To what relief Sri Md.Ruknuddin, Marketing Executive is entitled?
POINT No.(1) -: 9 :- [12]Alkem Laboratories Limited is a pharmaceutical industry, having its registered office in Mumbai, doing business in manufacturing and sale of pharmaceutical products, and its business activity is spread all over India, and they engaged nearly 6000 employees across the country, in connection with their business. Likewise, the individual herein, is shown to have been appointed as Marketing Executive in Alkem Laboratories, vide Exhibit P-1 appointment order and has been deputed to work at Guntur as his Headquarters, with effect from 19.3.2009.
[13]It is matter of record, job of the individual primarily is, to visit
Doctors and physicians in Guntur Headquarters, and to promote products of
Alkem Laboratories and to generate prescriptions demand, for sale of pharmaceutical products.
[14]It seems from Exhibit P-6 Certificate of Excellence, issued by authorities of Alkem Laboratories, performance of the individual at Guntur
Headquarters was appreciated in 2011, as well as according to Exhibit P-16 to
Exhibit P-20, in recognition of his efforts and initiative he displayed in the work, he was sanctioned increments from 2010 to 2014. On 10.11.2014, second respondent had issued transfer order in Exhibit P-2, transferring the individual from Guntur Headquarters to Rajkot in Gujarat, with effect from 15.11.2014, with a direction to join in his new Headquarters on or before 24.11.2014. There was exchange of E-mails between the individual and second respondent, with regard to his transfer order under Exhibit P-2, and ultimately, the individual had not joined at his new place of work at Rajkot, and on his behalf, claimant, by espousing his cause and questioning his transfer order, raised industrial dispute
before Assistant Commissioner of Labour, Guntur by filing application under
Section 2(k) of the Industrial Disputes Act.
10 [15]The issue of the individual was admitted for conciliation and, after convening joint meetings between both parties, as they failed to reach agreement or settlement of dispute, the appropriate Government has referred the dispute, with terms of reference for adjudication.
[16]In the terms of reference, the status of the individual is not referred as an issue for adjudication, but however, in the course of proceedings, second respondent had questioned the status of the individual as workman, that he is not a workman under the provisions of Industrial Disputes Act, therefore, the issue of status of the individual, being incidental to the terms of reference, is taken up for adjudication.
[17]It is axiomatic, the Industrial Disputes Act, 1947 is primarily an act made to make provisions for investigation and settlement of industrial disputes, and it was enacted to ensure social justice to both employer and employee, and advance the progress of industry, by bringing about existence of harmony and cordial relationship, between two parties of industry.
[18]The term “workman” has been defined under Section 2(s) of
Industrial Disputes Act, and, in State of Andhra Pradesh, it has been amended to, vide Act 22 of 2008 dated 23.8.2008 to Section 2(s), and it reads as hereunder:
“2-S: ‘Workman’ means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, t technical, sales promotion, operational clerical or supervisory work or any work for the promotion of sales for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceedings under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person,
(i) Who is subject to Air Force Act, 1950 (45 of 1950) or the Army Act, 1950 (46 of 1950), or Navy Act, 1957 (62 of 1957); or
(ii) who is employed in police service or as an officer or other employee of a prison; or -: 11 :-
(iii) Who is employed mainly in a managerial or administrative capacity; or
(iv) Who being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises either by the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial, in nature.
[19]It is obvious from Section 2(s) as substituted in State of Andhra
Pradesh, workman means not only an apprentice employed in any industry to do manual, skilled, unskilled, technical, operational, clerical or supervisory work, but also includes any person employed for promotion of sales of an industry for hire or reward.
[20]No doubt, the individual is designated as Marketing Executive, and going by nature of his duties of visiting doctors and physicians, to promote pharmaceuticals of respondents, was promoting their products, thereby, he was appointed in Alkem Laboratories Limited, to promote sale of their pharmaceutical products, and therefore, he should be considered as Sales promotion employee.
[21]The individual though appointed under Exhibit P-1 appointment letter issued by the Company Secretary of Alkem Laboratories Limited, Mumbai, but his place of work is at Guntur, as Headquarters, which is within the State of
Andhra Pradesh, therefore, he is governed by the provision in Section 2(s) of
Industrial Disputes Act, as amended in State of Andhra Pradesh, where, any person employed in an industry to promote its sales is also considered as a workman for the purpose of Industrial Disputes Act. Therefore, going by the duties executed by the individual, being designated as Marketing Executive, having promoted sale of pharmaceuticals products of Alkem Laboratories, he is a workman as defined under Section 2(s) of Industrial Disputes Act, hence, industrial dispute on his behalf, is permissible under the provisions of Industrial
Disputes Act. The Point is answered accordingly.
POINT No.(2) 12 [22]It is a matter of record, the individual worked as Marketing
Executive in Alkem Laboratories at Guntur Headquarters from 19.3.2009 vide his appointment order in Exhibit P-1, and had been transferred to Rajkot in same capacity vide Exhibit P-2 with effect from 15.11.2014. Under appointment order in Exhibit P-1, there are certain terms and conditions, mentioned governing employment of individual, and the relevant condition relating to his transfer of service has been provided in, condition No.4, which reads as hereunder:
“ Your services are transferable anywhere in India including any of the Divisions / SBUs / Subsidiary Companies associated companies /
Affiliated companies, which are in existence or which may be set up in future, will be automatically governed by the terms and conditions, to which you are transferred.” [23]It is obvious from above condition No.4 in Exhibit P-1, services of the individual are transferable anywhere in India including any of the Divisions /
SBUs / Subsidiary companies, associated companies, affiliated companies of
Alkem Laboratories Limited, which are in existence or which may be set up in future., upon transfer of his services, he shall be governed by the same terms and conditions as mentioned in Exhibit P-1.
[24]Condition No.4 in Exhibit P-1 not only makes the service of the individual transferable from one place to another place, but also to any place in
India, and confers a right upon the management of Alkem Laboratories to transfer his services to any place in India in any of their divisions or subsidiary companies, which are in existence or which may be set up in future.
[25]The individual had joined Alkem Laboratories Limited under the guise of Exhibit P-1, and in all probability, had been aware of the above condition that his service, is transferable to any place in any part of India within the divisions or companies associated to Alkem Laboratories Limited, and had -: 13 :- consciously taken up the job of Marketing Executive, knowing that he is transferable to any part of India.
[26]Contents of Exhibit P-2 disclose, the individual was transferred by management of Alkem Laboratories, in pursuance of their right given in condition No.4 of the appointment order/Exhibit P-1, and the reason for his transfer from Guntur to Rajkot is, they closed operations of Guntur
Headquarters, as it was economically unviable for operation, and because of that matter it was closed down, consequently, he was transferred to Rajkot.
[27]It is quite clear from Exhibit P-1, the Management of Alkem
Laboratories had right to transfer the services of the individual, from one place to other place, and in any part of India and, in pursuance of that right, they have effected his transfer from Guntur Headquarters to Rajkot. This action of management of Alkem Laboratories, should be considered in exercise of their right given under Exhibit P-1 and his transfer is not effected as matter of policy of management.
[28]It is obvious from Exhibit P-2, the field operations at Guntur
Headquarters were closed with effect 15.11.2014, and the same was also conceded by the individual in his cross-examination that the field operations at
Guntur Headquarters were closed with effect from 15.11.2014. There appears, from his admission, the field operations of Alkem Laboratories at Guntur
Headquarters have been closed with effect from 15.11.2014. When the Alkem
Laboratories has closed down their field operations at Guntur Headquarters, from 15.11.2014, in that view of matter, necessarily not only the individual but other medical executives, who worked at Guntur are also required to be transferred from the Headquarters to any other place. Therefore, transfer of the individual was actuated by closure of field operations of Alkem Laboratories at
Guntur Headquarters, but not for any other reason.
14 [29]It is true, the new location of the individual is 1600 Km away from
Guntur, however, to show transferring him is an act to victimize him, he has to show, and demonstrate, at the time of effecting his transfer under Exhibit P-2, there were vacancies in other Headquarters of Alkem Laboratories functioning in
State of Andhra Pradesh, and in any other neighbouring states.
[30]On a reading of entire case of the individual as well as his evidence, nowhere, he could demonstrate, during the relevant time, when he was transferred under Exhibit P-2, there were vacancies available in other
Headquarters of Alkem Laboratories operating within the State, as well as in any other neighbouring states. For the first time in the evidence of RW-1, the individual tried to contend, without there being a plea in his case, there were vacancies in Metabolic Division available in Nellore and Chittoor districts, and it was denied by the witness.
[31]Except suggesting to RW-1, there were vacancies in Nellore and
Chittoor Divisions of Alkem Laboratories, the individual did not bring on record any material to remotely suggest, there were vacancies available in Nellore and
Chittoor divisions, much less in any of the divisions within the State, in which
Alkem Laboratories was operating. When no material is supplied by him, to show there were vacancies available in divisions of Alkem Laboratories operating in the State, the only inference that can be drawn is, at the time of his transfer, no vacancies were available in any of the divisions of Alkem
Laboratories within the State of Andhra Pradesh. Therefore, on account of closure of the field operations at Guntur Headquarters, the management of
Alkem Laboratories was left with no other option, except to transfer him out of the state.
[32]The individual had primarily attacked his transfer order on the ground, he was actively involved in Trade union activities against the -: 15 :- management of Alkem Laboratories, for that, and to take vengeance against him, his transfer was made to Rajkot.
[33]The individual had filed receipt in Exhibit P-14, issued by claimant under which he paid subscription for his membership in claimant union, and it is
dated 9.1.2014, and the transfer under Exhibit P-2 was effected on 10.11.2014.
No doubt Exhibit P-14 discloses, the individual is a member of claimant union and it is a Union of all Sales Promotion Employees working in Pharmaceutical
Companies. Except Exhibit P-14 receipt, the individual has not filed any material to show, he was one of the office bearers of claimant union, and was in commanding position as a leader of Trade Union to involve in trade union activities. The receipt in Exhibit P-14 discloses that he is only a member of claimant union, and has paid subscription from June to December 2014. The payment of subscription by the individual under Exhibit P-14 demonstrates, he was only a member of claimant union, and was not officiating in the capacity of leader of union, so as to participate in trade union activities.
[34]It is also asserted by the individual in his case as well as in evidence, he was the Joint Convener of Alkem Laboratories Field Workers
Council in Guntur, and in that capacity, actively participated in several programs as per the call of trade union on several demands. But he did not file any proof with regard to his holding post of Joint Convenor of Alkem Laboratories Field
Workers Council, so also, he did not furnish any instances of his participating in several programmes with their details, as well as he did not furnish details of demands on which he agitated actively as Joint Convenor of Alkem Laboratories
Field Worker Council. Except the ipse-dixit statement of the individual that he was the Joint Convenor of Alkem Laborotiers Field Workers Council and actively participated in several programs on the call of trade union, there is no spec of material to believe, he was holding the position of Joint Convenor in Alkem
Labourites Field Workers Council at Guntur, so as to consider his participation in trade union activities. When there is no material in that regard in the case of 16 the individual, and nothing is available on record to substantiate his case, it has to be assumed, aforesaid plea was raised by the individual, with a view to attack his transfer, as actuated by mala-fides and as victimization.
[35]It is true, during his work period at Guntur, the individual had received appreciations from the Management of Alkem Laboratories as per
Exhibit P6. So also, he was sanctioned increments under Exhibit P-17 to P-21 up to 2014. Just because his performance was appreciated under Exhibit P-6 for period in 2011, and he was sanctioned increments under Exhibit P-17 to P-21, it does not mean he cannot be transferred from Guntur Headquarters, and shall be retained there itself forever.
[36]When it is abundantly made clear, the field operations of Alkem
Laboratories at Guntur Headquarters were closed with effect from 15.11.2014, in such a case, though he might have performed well in his duties as Marketing
Executive, but it is not a ground, for his retention at Guntur Headquarters, even after closing down field operations at Guntur Headquarters.
[37]The individual had also attacked Exhibit P-2 transfer on the ground, local language at Rajkot is Gujarati, and he does not know said language, and it will be very difficult for him to convince the doctors thereat to generate prescription demand, and on that score, his transfer to Rajkot is mala-fide.
[38]It is true, local language at Rajkot is Gujarati, but however, it cannot be lost sight of the fact, in general, the doctors and physicians are well versed with English language and invariably, the representatives of
Pharmaceutical Companies, who visit such doctors to promote their products, in all probability, communicate with doctors and physicians in English language only, as promoting pharmaceutical products in local language is impracticable.
[39]Further the individual at one stage in his cross examination states, he does not know speaking English, but he states, he is a B.Sc. Graduate and -: 17 :- he pursued his graduation in English medium. When the individual is found to be a B.Sc. graduate and had pursued his graduation in English medium, that itself discloses, in all probability, he must be knowing English language, and there is no hurdle for him to communicate with doctors and physicians at Rajkot in English language, instead of local language.
[40]Further, the individual subsequent to Exhibit P-2 transfer, has sent
E-mail to management of Alkem Laboratories under Exhibit P-5, and also addressed a letter in Exhibit P-11, and both E-mail and letter were personally addressed by the individual to the Management of Alkem Laboratories, and second respondent herein, and they were in English language. The individual sending Mail in Exhibit P-5 and addressing letter in Exhibit P-11 in English language, discloses he is well versed in English language, and to avoid his transfer in Exhibit P-2, seems to have been speaking falsehood that he does not know speaking English. Therefore, when the individual is found to be able to speak in English language, and can communicate in said language, in that view of matter, he is competent and able to communicate in same medium with the
Doctors and Physicians at Rajkot, and it should be considered, to promote the products of Alkem Laboratories, absolutely there are no obstacles or hindrances for him to convince Doctors and Physicians there, at Rajkot.
[41]The company of Alkem Laboratories is all India based company and spread across the country, having its divisions in all most every state, and the job of the individual is transferable from one place to another in any part of
India, as per condition No.4 of his appointment order in Exhibit P-1. When the individual was conscious about the fact his job is transferable from one place to other place, and in any part of India, and with that knowledge, he had joined in
Alkem Laboratories, now he cannot turn around and contend his transfer from
Guntur Headquarters to Rajkot is an act of victimization, because his new place of transfer is situated at a faraway place from Guntur Headquarters.
18 [42]The power of court to interfere in an order transferring public servant or workman is limited, and the court shall not ordinarily interfere in such transfer order, unless exceptional circumstances are made out. The right of employer to transfer an employee, and the scope of judicial review on such transfer, has been well explained in the following cases: -
(i)In “Gujarath Electricity Board and Another Vs Atmaram Sungomal
Posham'',1the Hon'ble Supreme Court has held, “ transfer of employee is an incidental of service and he has no right to be posted at particular place ”.
(ii)In “Shilpi Bose (Mrs) and Others Vs. State of Bihar and Others”,2 the
Hon'ble Supreme Court held, “displaced employees holding transferable posts are
liable to transfer. The courts should not interfere with the transfer orders which are made in public interest, and for administrative reasons, unless the transfer order is made in violation of mandatory statutory rules or on the ground of mala-fide. If the courts continue to interfere with the day to day transfer orders issued by Government and Subordinate Authorities, there will be complete chaos, in the administration which would not be conducive to public interest”.
In ''Rajaneesh Khajuria Vs. Wockhardated Limited, and Another”,3 the
(iii)
Hon'ble Supreme Court held, “allegations that transfer order was actuated by mala-
fides, on account of appellant having raised voice against removal of one K from venue of conference on plea of mala-fide involves two questions namely i) whether there was personal bias or/motives and ii) whether administrative action was contrary to object requirements and conditions of valid exercise of administrative powers. As far as second aspect is concerned power of transfer is vested in employer in terms of letter of appointment and even in the terms of provisions of the Maharastra Recognition of 1 (1989) II SCC page 602 2 (1991) Supp (2) SCC 659 3 2020 (3) SCC page-86 -: 19 :-
Trade Unions and prevention of unfair labour practice Act 1977, transfer by itself could not be said to be an act of unfair labour practice unless actuated by mala-fides. Mere fact that employee was transferred would not per-say make it mala-fide'' .
(iv)In''Cement Corporation of India E.U, Adilabad Vs Assistant
Commissioner Labour and Other”,4the Hon’ble High Court of Andhra Pradesh held, ''from a reading of appointment order issued to one of the members of petitioner
Union, it is clear transfers can be effected from one unit to another unit. In view of the said condition, prima-facie, it cannot be said the members of the petitioner's union cannot be transferred from one unit to another unit of respondent's corporation'' .
(v)In ''Tamilnadu Electricity Board Engineers Sangham Vs. Tamilnadu
Electricity Board”,5the Hon'ble High Court of Madras held, ''transfer when it is incidental to service and is not effected by mala-fide or in prejudice of any binding rule, cannot be judicially reviewed. It is not in dispute, that transfer is effected by an authority who is competent to effect such transfer and has already rejected the contention of the petitioners that the impugned order of transfer has been mala-fidely, because they held offices in their Sangham and had agitated against principles of respondents in certain matters''.
[43]Principles laid down in the above referred cases, obviously make it clear the court shall not ordinarily interfere in an order of transfer, and it should sparingly interfere in such transfer order, if it is established, it is actuated by mala-fides or prejudices.
[44]Under Schedule-V of Industrial Disputes Act, unfair labour practices have been defined and in Item-7 transfer of a workman made mala-fidely from one place to another under the guise of following management policies has been declared, as one of the unfair labour practice.
4 2004(-I) L LN page 685 5 1996 (1) LLN page 914 20 [45]In the instant case, the individual under Exhibit P-2, was not transferred by Alkem Laboratories from Guntur to Rajkot as their management policy, but his transfer was in pursuance to condition No.4 provided in Exhibit P- 1 order, and it is nothing but an agreement between the workman and management of Alkem Laboratories. Therefore, transfer of the individual made under Exhibit P-2 was not made as policy of management of Alkem
Laboratories, and in fact, it was made in pursuance of agreement between the individual and management, in accordance with condition No.4 of Exhibit P-1 order, which gave them a right to transfer his services from one place to other place in any part of India.
[46]To show that transfer is actuated by mala-fides on part of the employer, the individual has to show, his employer had bad faith, ill-intention, and by abusing his authority, has effected his transfer.
[47]In the case on hand, the individual failed to establish his participation in trade union activities and champaigning the causes of workmen of Alkem Laboratories by placing their demands before the management, so as to infer and to suggest the management of Alkem Laboratories, bore grudge against him, and that actuated his transfer from Guntur to Rajkot.
[48]It is quite clear from the material on record, field operations of
Alkem Laboratories were closed at Guntur Headquarters with effect from 15.11.2014, and had the field operations of Alkem Laboratories were still operating beyond 15.11.2014 at Guntur, and in spite of that, the management of Alkem Laboratories had transferred the individual from Guntur Headquarters to Rajkot, by keeping said post vacant, in such a case, it could have been inferred, there was ill-motive on the part of Alkem Laboratories in transferring him from Guntur to Rajkot.
-: 21 :- [49]As stated above, the field operations at Guntur Headquarters of
Alkem Laboratories were closed from 15.11.2014, and there were no vacancies in any of the divisions of Alkem Laboratories functioning within the State, and in any of their divisions in neighbouring states, in such a case, the only inference that can be drawn is there appears a vacancy of Marketing Executive at Rajkot was available, and because of that matter, management of Alkem
Laboratories has transferred the individual to Rajkot, and had it been otherwise, in such a case, act of management of Alkem Laboratories should have been said, it is an act of victimization; but such a case is not made out, therefore, transfer of the individual, made under Exhibit P-2, is not actuated by any mala- fides nor was it done to victimize the individual, and is not a unfair labour practice.
[50]It came on record, and conceded by the individual himself, in pursuance of Exhibit P-2, he had not joined at his new place of transfer at
Rajkot. It is also conceded by him subsequent to Exhibit P-2, management of
Alkem Laboratories had extended time for him to join at Rajkot upto 6.2.2015, even then he did not join his duties at Rajkot. It was also conceded by him, subsequent to 6.2.2015 also, management of Alkem Laboratories gave him opportunity to join his duties, but he did not join his duties at Rajkot.
[51]A question will arise whether, a workman/employee, who was transferred from one place to other, and without joining at new place of work at which he was transferred, can question the action of his employer transferring him from one place to other place.
[52]The transfer of the individual under Exhibit P-2, came into effect from 15.11.2014, as he was asked to relieve by that date at Guntur
Headquarters, and was directed to joint at his new transfer place Rajkot, on or
before 24.11.2014. Subsequently it was extended by management of Alkem
Laboratories upto 6.2.2015. But the individual, being transferred under Exhibit 22
P-2, and going by its contents, shown to have been stood relieved at Guntur
Headquarters on 15.11.2014, and had not joined at his new place of transfer at
Rajkot, though, he was provided more than the time, by the management, as originally fixed under Exhibit P-2. Without joining and reporting to duties at his new place of transfer at Rajkot, this dispute has been raised on behalf of the individual through the claimant, questioning his very transfer made by the management under Exhibit P-2.
[53]When the individual had not reported to duty in obedience to
Exhibit P-2, at Rajkot, and his not joining duties at his place of transfer, clearly amounts to his absenting to duties from the day onwards that was fixed by the management to report at Rajkot. The effect of workman absenting to his duties upon his employment with his employer has been covered by condition No.5 provided in Exhibit P-1 appointment order and it says— “If you absent yourself without leave or remain absent beyond the period of leave originally granted or subsequently ex tended, you shall be considered as having voluntarily terminated your employment without giving any notice unless:
(a) Return to work within 8 days from the commencement of such absence, and
(b) Give an explanation to the satisfaction of the management regarding such absence”
It is obvious from the above condition No.5 in Exhibit P-1, if the individual without leave absents to his duties or remains absent beyond period of leave originally granted, or subsequently extended, it shall be considered that he himself has voluntarily terminated his employment with his employer/Alkem
Laboratories without issuing notice, unless he returns to duty within eight days from the date of his absence, by giving sufficient explanation to the satisfaction of management .
[54]Leave aside, the individual reporting to duty as provided in Exhibit
P-2, and also within the period that was extended by Alkem Laboratories, even till this date he has not returned to his duties or joined his duties at Rajkot, the place where he was transferred. Therefore, by operation of condition No.5 of -: 23 :-
Exhibit P-1, it should be considered, the individual himself has terminated his services with his employer Alkem Laboratories Limited.
[55]The time provided for the individual to join at Rajkot Headquarters, apart from the time fixed under Exhibit P-2 was 6.2.2015, and as per condition
No.5 of Exhibit P-1 appointment order, at any rate from the date of his absence, he has to report to his duties within eight days. Going by the fact that the individual absented to his duties by not reporting at Rajkot Headquarters from the above date, as well as even till date, his employment with Alkem
Laboratories Limited stood terminated within eight days from 6.2.2015 that is 14.2.2015, well before referring the present industrial dispute on his behalf for adjudication.
[56]When the employment of the individual with Alkem Laboratories is shown to have been terminated as per condition No.5 of Exhibit P-1, before referring this dispute by appropriate Government, the cause that was raised for adjudication of dispute with reference to his transfer, does not survive at all, and it ceases to exist before it was made over to this court. Therefore, the adjudication of dispute with regard to his transfer has paled into insignificance, as the relationship of employee and employer between the individual and Alkem
Laboratories stood extinguished well before referring the dispute on hand for adjudication. Thus, the Point is answered accordingly against the individual.
POINT No. (3) [57]As per the discussions made in Point No.2, the transfer of
Md.Ruknuddin, Marketing Executive, made under Exhibit P-2 by Alkem
Laboratories Limited, is sustainable and justified in law, therefore, he is not entitled for any relief against the respondents. The point is answered accordingly.
24 [58]In the result, the reference is answered and action of Management of Alkem Laboratories Limited in transferring Sri Md.Ruknuddin, Marketing
Executive, is justified.
Typed to my dictation by the Office Superintendent, corrected and
pronounced by me in the open court, this the 21st Day of October 2022.
MOULANA JUNAID
Digitally signed by
AHMEDMOULANA JUNAID AHMED
Chairman-cum-Presiding Officer Industrial Tribunal-cum-Labour Court Guntur
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PETITIONER FOR RESPONDENTS
PW1: Md.RuknuddinRW-1: Atul Parab
DOCUMENTS MARKED
Exhibit P-1: copy of appointment letter
Exhibit P-2: copy of transfer letter
Exhibit P3: copy of appeal letter
Exhibit P4: letter issued by G.M, HR
Exhibit P5: Second appeal letter
Exhibit P6: Bunch of certificates of excellence (five in number)
Exhibit P7: E-mail print out appreciation letter dated 7.6.2013
Exhibit P8: E-mail print out appreciation letter dated 3.9.2013
Exhibit P9: E-mail print out appreciation letter dated 5.8.2013
Exhibit P-10: Full and final settlement letter issued by management to workman
Exhibit P-11: Office copy of letter dated 6.6.2016 sent by workman
Exhibit P-12: Postal receipts (two in number)
Exhibit P-13: Postal acknowledgements (two in number)
Exhibit P-14: Membership receipt bearing NO 16121 of workman in claimant union for the year 2014
Exhibit P-15: Member ship receipt dated 29.10.2016 of workman in claimant union for the year 2016
MARKED THROUGH RW-1
Exhibit P-16: Annual increment sanctioning letter dated 23.6.2014 of workman
Exhibit P-17: Annual increment sanction letter to workman dated 14.6.2013
Exhibit P-18: Annual increment sanction letter to workman dated 26.6.2012
Exhibit P-19: Annual increment sanction letter for 2010 to workman
Exhibit P-20: Annual increment sanction letter for 2011 to workman -: 25 :-
Exhibit P-21: Letter dated 15.7.2010 of respondent granting refitment of increment to workman
FOR RESPONDENT No 2
Exhibit R1: Authorization letter issued by Alkem laboratories to RW-1
MOULANA JUNAID
Digitally signed by
AHMEDMOULANA JUNAID AHMED
Chairman-cum-Presiding Officer Industrial Tribunal-cum-Labour Court Guntur