MERCK LIMITED, DR.ANNIE BESANT Vs. STATE OF BIHAR THROUGH THE SECRETARY, LABOUR RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT BUILDING, VIKAS BHAWAN, BAILEY

JUDGEMENT

(1.) THE petitioner -Company has come to this Court for quashing/setting aside the award dated 31.7.2007 (Annexure -1) passed in Reference Case No. 5 of 2006 by the Presiding Officer. Labour Court. Patna by which he has held the order of transfer dated 21.1.2005 with respect to respondent no. 3 Sri Nalin Sinha from Patna to Hissar Headquarter w.e.f. 1.2.2005 to be perverse and not sustainable in the eye of law and directed the petitioner to allow him to join at his previous place, i.e., Patna with full back wages and other consequential benefits.

(2.) SHORN of unnecessary details the facts of this case are that respondent no. 3 was appointed as Medical Representative by appointment letter dated 24.6.1986 (Annexure -2) w.e.f. 1.4.1986. The detailed terms and conditions of his service were enumerated in the said appointment letter, in paragraph -15 of the same it was provided that it is a condition of his appointment that his services can be utilized at any place in India as the Company may decide from time to time and further that he may be required to render service to the Company 'ssister concerns or associates as and when required. In token of acceptance of the terms and conditions the respondent no. 3 signed on a copy of the appointment letter on 14.7.1986. The respondent no. 3 after his appointment joined at Patna Headquarters; thereafter he was transferred from Patna to Samastipur w.e.f. 1.1.1988 and by letter dated 19.12.1995. he was again transferred from Samastipur Headquarters to Patna Headquarters at his request w.e.f. 1.1.1996. By letter dated 21.1.2005 (Annexure -4) the respondent no. 3 was transferred from Patna to Hisar in the State of Haryana w.e.f. 1.2.2005. Immediately on receipt of the said letter the said respondent by his letter dated 23.1.2005 (Annexure -5) wrote to the Company stating that he was holding the post of Treasurer of State Union of Medical Representative, namely, Bihar Pradesh Sales Representatives Union (in short BPSRU) and was holding the post of Vice -President of E. Merck Field Staff Union (in short EMFSU) and the said transfer would affect his basic Trade Union rights and will also disturb the entire family set up and will disrupt the education of his child who is studying at Patna and for the said reasons he requested for withdrawal of the said transfer order immediately. On 29.1.2005 a dispute was raised by EMFSU vide statement of demand dated 29.1.2005 alleging that the order of transfer was mala fide with a motive to break the Union and hamper the legitimate Trade Union functions of respondent no. 3 by the Management Company and was thus a colorable exercise so as to punish the respondent no. 3 for his lawful trade union activities and requested to withdraw the transfer order with a copy to Deputy Labour Officer - cum -Conciliation Officer, Patna. Thereafter the Assistant Labour Commissioner - cum -Conciliation Officer initiated a conciliation proceeding which ended in failure and ultimately the State Government by Notification dated 22.4.2006 (Annexure -9) referred the dispute under Section 10 of the Industrial Disputes Act to the Labour Court, Patna (which was registered as Reference Case No. 5 of 2006) in the following terms: "Whether transfer to Hisar (Haryana) from Patna of Sri Nalin Sinha. M.R. by Director, Merck Ltd., Dr. Annie Besant Road, Worli, Mumbai is justified? If not, what relief workman is entitled to - After hearing the parties the Presiding Officer, Labour Court, Patna by his impugned award dated 31.7.2007 held that the transfer order is perverse and not sustainable in the eye of law and further directed the Management to allow the employee to join the previous place with full back wages and other consequential benefits.

(3.) ON the basis of the respective cases of the parties the Labour Court framed essentially three questions for determination, namely, (i) Whether this is Industrial Dispute or individual dispute? (ii) Whether case is tanable under the S.P.E. Act? (iii) Whether the transfer order is mala fide in nature? On ail three points he has held against the Management -petitioner and in favour of the employee.