# M/s R.P.G. Life Science Ltd. & Ors v. Presiding Officer & Ors

- **Citation:** (2013) 2 ILRA 1147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-02
- **Case number:** Civil Misc. Writ Petition No.41394 of 2012
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-r-p-g-life-science-ltd-ors-v-presiding-officer-ors-42583
- **Pages:** 5

## Headnote

Constitution of India, Art. 226- Petition
against Labour Court award-work man
working
as
medical
representative
transferred from Kanpur to Ballia- instead
of joining at transferred place-inspite of
traveling allowance- refused to go at
transferred place-termination-tribunal seta-side on ground of violation of principle of
natural justice-direction for reinstatement
1148 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

with full back wages-questioned-so for
reinstatement, no doubt based on evidencerequire no interference-but considering
conduct of workman to disobey transfer
order-principle
of
'No
work
no
pay'
applicable-as such instead of back wages-1
lac compensation shall be proper in end of
justice, -accordingly award modified.

Held: Para-16
In the light of the aforesaid, the Court is of
the view that on the principle of 'no work
no pay', coupled with the fact that a
misconduct
was
committed
by
the
workman, the Court finds that the award of
the Tribunal directing payment of full back
wages
cannot
be
sustained
and,
consequently, to that extent, the award is
quashed. The writ petition is partly allowed
and the Court directs that in the given
circumstances the petitioner would pay a
composite amount of Rs. One lac towards
back wages and cost of the litigation. The
said amount shall be paid within six weeks
from the date of the production of a
certified copy of this order.

Case Law discussed:
1965(3)SCR 583; 1972(1) SCR 755; 1972 (1)
LLJ 180; 1973 (1) LLJ 278; 1975 (2) LLJ 379;
1979 SC 1652; AIR 2001 SC 2090; 2005(5)
SCC 591; 2009 LIC 415.

## Text

2 All] M/s R.P.G. Life Science Ltd. & Ors. Vs. Presiding Officer & Ors.

1147
the financial and administrative powers and
functions, which shall, until he is exonerated
of the charges in the final enquiry be exercised
and performed by a Committee consisting of
three members of Gram Panchayat appointed
by the State Government.

Provided that-

(i) no action shall be taken under
clause (f), clause (g) except after giving to
the
body
or
person
concerned
a
reasonable opportunity of showing cause
against the action proposed."

3. Section 5A (g) provides as under :

"Section 5 A- Disqualification for
membership-
A
person
shall
be
disqualified for being chosen as, and for
being, (the Pradhan or) a member of a
Gram Panchyat, if he-

(g) has been convicted of an offence
involving moral turpitude;"

4. A perusal of the aforesaid, makes
it clear that a person shall be disqualified
for being chosen and for being the
Pradhan, if he has been convicted of an
offence involving moral turpitude.

5. In the light of the aforesaid
provision, once a person has been
convicted, he incurs a disqualification for
being chosen or for being the Pradhan and
is disqualified from holding an office.

6. Section 95 (1)(g)(ii) provides that
the State Government may remove a
Pradhan, if he is accused of or charged for
an offence involving moral turpitude. In
the instant case, the petitioner has been
convicted of an offence involving moral
turpitude, and consequently, the District
Magistrate was justified in removing the
petitioner from the post of Pradhan under
the said provision.

7. In Radhey Shyam Vs. State of
U.P., 2008 (2) AWC 1921, a Division
Bench of this Court has held that if a
person is convicted of an offence
involving moral turpitude, he would be
removed as the Pradhan under Section 95
(1)(g) of the Act.

8. In the light of the aforesaid, this
Court does not find any reason to interfere
in the impugned order.

9. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.41394 of 2012

M/s R.P.G. Life Science Ltd. & Ors.

 ...Petitioners
Versus
Presiding Officer & Ors. ...Respondents

Counsel for the Petitioners:
Sri Chandra Bhan Gupta

Counsel for the Respondents:
C.S.C., Sri B. Pant, Sri J. Nagar
Sri Pratik Nagar

Constitution of India, Art. 226- Petition
against Labour Court award-work man
working
as
medical
representative
transferred from Kanpur to Ballia- instead
of joining at transferred place-inspite of
traveling allowance- refused to go at
transferred place-termination-tribunal seta-side on ground of violation of principle of
natural justice-direction for reinstatement
1148 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

with full back wages-questioned-so for
reinstatement, no doubt based on evidencerequire no interference-but considering
conduct of workman to disobey transfer
order-principle
of
'No
work
no
pay'
applicable-as such instead of back wages-1
lac compensation shall be proper in end of
justice, -accordingly award modified.

Held: Para-16
In the light of the aforesaid, the Court is of
the view that on the principle of 'no work
no pay', coupled with the fact that a
misconduct
was
committed
by
the
workman, the Court finds that the award of
the Tribunal directing payment of full back
wages
cannot
be
sustained
and,
consequently, to that extent, the award is
quashed. The writ petition is partly allowed
and the Court directs that in the given
circumstances the petitioner would pay a
composite amount of Rs. One lac towards
back wages and cost of the litigation. The
said amount shall be paid within six weeks
from the date of the production of a
certified copy of this order.

Case Law discussed:
1965(3)SCR 583; 1972(1) SCR 755; 1972 (1)
LLJ 180; 1973 (1) LLJ 278; 1975 (2) LLJ 379;
1979 SC 1652; AIR 2001 SC 2090; 2005(5)
SCC 591; 2009 LIC 415.

(Delivered by Hon'ble Tarun Agarwala , J.)

1. Heard Sri C.B. Gupta, the learned
counsel for the petitioner and Sri Pratik
Nagar, the learned counsel for the workmanrespondent
and
the
learned
Standing
Counsel.

2. The workman was appointed as a
Medical Representative in the petitioner's
pharmaceutical company. The first posting of
the workman was Jaipur and, subsequently,
after a couple of years the workman was
transferred to Kanpur. The appointment letter
specifically contended that the area of
operation of the workman would be the
entire dominion of India and that he could be
posted in any part of the country. Further,
depending upon the exigencies of the
business of the Company, the workman
could be transferred to any place in India.
With these clear stipulation contained in the
appointment letter, the workman joined the
services.

3. It transpires that some incident took
place, in which some Officers got beaten up
and the workman was a mute spectator and
did nothing in the matter. The management
was aggrieved by the conduct of the
workman
and
instead
of
initiating
disciplinary proceedings, considered his long
length of service and chose to transfer him
from Kanpur to Ballia within the State of
Uttar Pradesh. The management accordingly,
transferred the workman to Ballia by its
order on 8th August, 1999. This order was
duly served upon the workman. The
workman did not comply with this order and
it is alleged that he initiated conciliation
proceedings under the U.P. Industrial
Disputes Act for conciliation of his dispute.
It is alleged by the management that several
letters and telegrams were sent including a
bank draft of of Rs.3000/- towards travelling
expenses and inspite of the receipt of the
letters and telegrams, the workman did not
join the place of transfer.

4. On the other hand, it was contended
by the workman that he had given suitable
replies and gave reasons for not joining and
further contended that he did not receive the
bank draft of Rs.3000/-. Eventually, the
management took a decision and, by an order
dated 17th November, 1999 terminated the
services of the workman on account of not
joining the place of transfer. There was no
inquiry, no chargesheet and only a simplicitor
order of termination was passed on the ground
that it appears that the workman was not
interested in working with the company.
2 All] M/s R.P.G. Life Science Ltd. & Ors. Vs. Presiding Officer & Ors.

1149

5. The workman, being aggrieved by
the order of termination, raised an
industrial dispute and, upon submission of
a failure report by the Conciliation
Officer, the matter was referred to the
State Government and ultimately a
dispute was referred to the Industrial
Tribunal for adjudication. The terms of
the reference order was "Whether the
employers were justified in terminating
the services of the workman with effect
from 17th November, 1999? If not to
what relief was the workman entitled to."

6. Before the Tribunal parties filed
their pleadings and evidences. The
petitioner in particular submitted in its
written statement that in the event, the
Tribunal comes to the conclusion that the
order of termination was in violation of
the principles of natural justice then in
that event, the employer should be given
an opportunity to lead evidence and prove
the charge against the workman.

7. The Tribunal, after considering
the material evidence on record held that
the order of termination was in violation
of the principles of natural justice,
inasmuch as the employers terminated the
services of the workman without giving
any notice and without issuing any
chargesheet and without holding any
domestic
inquiry.
The
Tribunal
accordingly, directed reinstatement of the
workman with continuity of service and
with full back wages.

8. The employers, being aggrieved
by the said award, has filed the present
writ petition.

9. This Court while entertaining the
writ petition passed an interim order
directing the petitioner to reinstate the
workman pursuant to which the workman
has been reinstated in service and is
working with the petitioners' company at
Kanpur and is being paid his monthly
wages. Nothing has come on record to
indicate that the workman's performance
pursuant to the interim order was
unsatisfactory and, consequently, it can be
presumed safely that the petitioners' have
no quarrel with the performance of the
workman.

10. Once a finding has been given
by the Tribunal that the order of
termination was in violation of the
principles of natural justice it became
imperative for the Tribunal to give an
opportunity to the petitioners' to prove the
charge against the workman. This view of
the Court is no longer res integra as it has
been settled by the Supreme Court in a
catena of cases, namely, Motipur Sugar
Factory Pvt. Ltd. Vs. Its Workmen,
1965 (3) SCR 583, Motipur Sugar
Factory (P) Ltd. Vs. Its Workmen, 1965
(3) SCR 583, State Bank of India Vs.
R.K. Jain and others, 1972 (1) SCR
755, Delhi Cloth & General Mills Co.
Vs. Ludh Budh Singh, 1972 (1) LLJ
180, Workmen of Messers Firestone
Tyre and Rubber Com. of India (P)
Ltd. Vs. Management and others 1973
(1) LLJ 278, Cooper Engineering Ltd.
Vs. P.P. Mundhe, 1975 (2) LLJ 379,
Shanker Chakraworty Vs. Britannia
Biscuit Co., 1979 SC 1652, Karnataka
State Road Transport Coporation Vs.
Smt. Lakshmidevamma and another,
AIR 2001 SC 2090.

11. In the light of the aforesaid
decision, the Court has no hesitation in
holding that the award of the Tribunal
could not be sustained any further and the
Court would be constrained to allow the
writ petition and remit the matter to the
1150 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Tribunal to decide the matter afresh and
give opportunity to the employers to led
the evidence and prove the charge against
the workman but the Court is of the
opinion that by doing so it would not be
doing substantial justice. The incident and
the termination of the service of the
workman is of the year 1999. We are now
in the year 2013. Fourteen years have
gone by and remitting the matter to the
Tribunal
would
unnecessarily
entail
further time and energy. The Court has
already opined earlier that pursuant to the
interim order, the workman has been
reinstated
and
is
working
to
the
satisfaction of the employers. In the light
of the aforesaid, the Court is of the view
that the matter should be finally decided
so that the litigation comes to an end once
and for all.

12. In the instant case, the order of
termination is based on the ground of
non-compliance of the transfer order.
Admittedly, the workman received the
transfer order but did not join the place of
transfer for reasons best known to him.
The workman did not like the transfer
order. To him, it was a punitive order but
then he could protest by making a
representation or approaching a higher
authority but did not do so. It is alleged
that he raised a dispute before the
Conciliation Officer but nothing is known
nor there is any material evidence before
the Court to show the fate of this
proceeding. The fact remains that till date,
the order of transfer has not been
questioned in any Court of law or before
an appropriate forum. If an order of
transfer is not complied, the management
was at a liberty to proceed against the
workman for the alleged misconduct for
not joining. At the same time, by not
joining, the workman becomes liable for
disciplinary action and entering into
unnecessary correspondence, does not
behove good conduct on the part of the
workman. For this misconduct, the
workman has to be punished but the
management cannot unilaterally take a
decision punishing the workman by
terminating his services in contravention
to the certified standing orders of the
Company and/or the service conditions
relating to the Medical Representatives.
Admittedly, no inquiry or charge sheet
was issued.

13. Consequently, the Court is of the
opinion that the order of termination
passed by the employer was in violation
of the principles of natural justice and that
the order of termination cannot be
sustained. The Tribunal, in the ultimate
analysis, was justified in reinstating the
workman. The Court is of the opinion that
in
the
given
circumstances
and
considering the length of service, the
order
of
termination
does
not
commensurate with the misconduct.

14. The Tribunal while reinstating
the workman has also granted continuity
of service, the Court is of the opinion that
the said direction is perfectly justifiable,
which requires no interference. The
Court, however, finds that the award of
the Tribunal directing payment of full
back wages is arbitrary. There are a
number of factors, which are required to
be considered as held by the Supreme
Court in the case of G.M. Haryana
Roadways Vs. Rudhan Singh, 2005 (5)
SCC 591, Kanpur Electric Supply
Comp. Ltd. Vs. Shamim Mirza, 2009
LIC 415 wherein the Supreme Court held
that the order of the back wages should
not be passed mechanically and other
factors,
namely,
the
nature
of
2 All] Narendra Kumar Vs. State of U.P. and Ors.

1151
appointment, length of service, whether
he is in a position to get another
employment etc. are some of the factors,
which are required to be considered.

15. These factors has not been
considered by the Tribunal, the mere fact
that the workman contends that he has
remained unemployed during the interim
period is by itself not sufficient to grant full
back wages. The Tribunal has also lost sight
of the fact that the workman did commit a
misconduct as he did not accept the transfer
order and disobeyed the orders of the
management. By reinstating the workman
and giving him full back wages, the
workman would go scott free for the
misconduct, which he had committed and
this Court cannot allow it to happen.

16. In the light of the aforesaid, the
Court is of the view that on the principle of
'no work no pay', coupled with the fact that a
misconduct was committed by the workman,
the Court finds that the award of the Tribunal
directing payment of full back wages cannot
be sustained and, consequently, to that
extent, the award is quashed. The writ
petition is partly allowed and the Court
directs that in the given circumstances the
petitioner would pay a composite amount of
Rs. One lac towards back wages and cost of
the litigation. The said amount shall be paid
within six weeks from the date of the
production of a certified copy of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.41477 of 2013

Narendra Kumar

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri A.K. Shukla

Counsel for the Respondents:
C.S.C.
Constitution of India, Art.226- Service
Law-Transfer
order
challenged
on
malafide ground-non impleadment of
authority by name-can not be considered
by Court-transfer being exigency of
service-can not be interfered by writ
court.

Held: Para-3
It is well settled that a person against
whom plea of mala fide is taken shall be
impleaded eo nomine since plea of mala
fide is not available against unnatural
person. The Apex Court has gone to the
extent that in absence of impleadment of
a person eo nomine, against whom plea
of mala fide is alleged, Court cannot not
even entertain the plea of mala fide

Case Law discussed:
1992 Supp. (1) SCC 222; AIR 1996 SC 326; JT
1996 (8) S.C. 550; AIR 2003 SC 1344; 2008(4)
ADJ-36; 2008 (2) ESC 1312; 2008 (3) ADJ
705; AIR 2012 SC 232; 2009(8) SCC 337; JT
2009(2) SC 474.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. It is contended that impugned order
of transfer has been passed mala fide and at
the instance of District President of Ruling
Party and my attention is drawn to letter
dated 10.10.2012, Annexure 5-A to the writ
petition allegedly written by Pradeep Pandey
to the District Magistrate, Shahjahanpur
requesting
for
taking
action
against
petitioner.

2. However, neither any person has
been impleaded by name against which
mala fide is alleged nor any ground has