THE MANAGEMENT FDC LIMITED v. B. RAJAKUMAR

(BY SRI M. RAJASHEKAR, ADVOCATE) AND: THE MANAGEMENT OF FDC LTD., NO.142-48, S.V. ROAD, JOGESHWARI WEST, MUMBAI - 400 102, REPRESENTED BY ITS MANAGING DIRECTOR. ... PETITIONER ... RESPONDENT (BY SRI C.K. SUBRAHMANYA, ADVOCATE FOR SRI B.C. PRABHAKAR, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.10.2011 PASSED BY THE PRESIDING OFFICER, LABOUR COURT, MANGALORE, D.K. IN IDR [LCM] NO.6/2010 i.e. ANNEXURE- A AND THE ORDER DATED 05.12.2011 PASSED BY THE SAID LABOUR COURT IN THE SAID REFERENCE IN REJECTING THE I.A. DATED 17.11.2011 FILED BY THE PETITIONER AND THE AWARD DATED 18.2.2012 IN IDR [LCM] NO.6/2010 IN SO FAR AS IT RELATES TO NOT GRANTING FULL BACKWAGES AS CONSEQUENTIAL BENEFIT AND CONSEQUENTIALLY PLEASED TO HOLD THAT THE DISCIPLINARY PROCEEDINGS HELD BY THE RESPONDENT AGAINST THE PETITIONER AS BEING NOT VALID AND ETC. THESE WRIT PETITIONS COMING ON FOR DICTATION, THIS DAY, THE COURT MADE THE FOLLOWING: - 3 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 ORDER The Labour Court by the impugned award set aside the termination order passed against the workman and directed reinstatement of the workman to the original post, with continuity of service and other consequential benefits with 50% backwages the date of termination, i.e., 23.12.2009 till reinstatement.

2. WP No.36181/2012 is preferred by management. WP No.49426/2012 is preferred by the workman assailing the impugned order insofar as holding the domestic enquiry fair and proper and to the extent of denial of full backwages.

3. Parties herein are referred to as per the ranking in WP No.36181/2012 as petitioner-management and respondent-workman for the sake of the convenience.

4. The petitioner is the Company incorporated under the Indian Companies Act, 1956 and having its Corporate Office at Mumbai. The petitioner company is - 4 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 engaged in the manufacture of pharmaceutical products and has its plants at Jogeshwari in Mumbai, Goa and Baddi in Himachal Pradesh. The respondent-workman was employed in Mangalore Headquarters (for short 'HQ') of the petitioner-company as Sales Promotion employee (Medical Representative). The respondent-workman was transferred from Mangalore HQ to Solan HQ with effect from 05.12.2008 in consonance with the terms and conditions of employment of the respondent. The respondent failed to report for work at Solan HQ, in spite of several reminders sent by the petitioner-management to the respondent-workman calling upon him to report for work at Solan HQ.

5. The respondent-workman having failed report to duty and having remained continuously absent, in the work place at Solan HQ, charge sheet was issued for refusing to report for work at Solan HQ, enquiry proceedings were conducted, Enquiry Officer on conclusion of the enquiry, submitted the report holding that the - 5 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 respondent-workman guilty of charges leveled against him in the charge sheet.

6. The Disciplinary Authority passed an order of punishment terminating the service of the respondent- workman with immediate effect. The respondent- workman aggrieved by the order of termination placed a dispute and filed claim statement, the petitioner objected to the claim statement by filing counter statement.

7. The Labour Court framed additional issues for consideration:

1. "Whether I party is 'workman' as defined under Sec.2(s) of ID Act?

2. Whether D.E. held is fair and proper?

3. What Order?"

8. The Labour Court, on issue No.2 held that the domestic enquiry conducted by petitioner- management was fair and proper. On the question of victimization and other aspect, the evidence was let in and - 6 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 by the impugned order, Labour Court allowed the claim statement.

9. Heard Sri C. K. Subramanya, learned counsel for Sri B. C. Prabhakar, for the petitioner-Company and Sri M. Rajashekar, learned counsel for the respondent- workman and perused the material on record.

10. Learned counsel for the petitioner would urge the following grounds: i. The conclusion arrived by the Labour Court that the General Manager-HR has no authority to authorize the Regional Manager, empowering him to transfer the Medical Representative, is contrary to the material on record and Labour Court has failed to consider the appointment order of the respondent was signed by the General Manager and General Manager holds the same grade and powers, therefore, so long as the authorization empowering the Regional Manager is issued by any General Manager would be valid. - 7 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 ii.The Labour Court has failed to notice that the no such contention has been raised either in the claim statement or in the evidence to hold that the Regional Manager was having control over the medical representative working in the State of Karnataka only and that he had no right to transfer the medical representative to any other State. iii. The Labour Court has lost sight of the fact that the point of reference raised by the Government was whether termination of the workman was valid, and the reasoning arrived by the Labour Court is that the transfer itself is invalid, in the absence of any challenge by the workman to the order of transfer.

11. Per contra, learned counsel for the respondent- workman would contend that the Labour Court having rightly held that the transfer order was bad in law was not - 8 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 justified in awarding only 50% back wages, which order needs interference by this Court.

12. Having heard the learned counsel for the parties the point that arises for consideration is: "Whether the Labour Court was justified interfering, with reasons as assigned impugned order and would the same warrant any interference by this Court?"

13. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.

14. Government of Karnataka its order of reference has raised the following points for dispute for adjudication: éñÀ

1. "DqÀ½vÀ ªÀUÀðzÀªÀgÁzÀ J¥sï.r.¹. °«ÄmÉqï, 142-48, J¸ï.«.gÀ¸É Û, éj, ªÀÄÄA¨ÉÊ-400 102 gÀªÀgÀÄ PÁ«ÄðPÀ ²æÃ.©.gÁdPÀĪÀiÁgï, eÉÆÃUÉ ©£ï. ©.J-ï,J£ï. gÁªï, 56 ªÀµÀð, ªÉÄrPÀ-ï gÉ¥É æ¸ÉAmÉnªï, ®QäãÁgÁAiÀÄt ¸ÀzÀ£À, ªÉÊzÀå£ÁxÀ £ÀUÀgÀ, CvÁÛªÀgÀ, ªÀÄAUÀ¼ÀÆgÀÄ-575 001 gÀªÀgÀ£ÀÄß ¢£ÁAPÀ 23-12-2009 jAzÀ PÉ®¸À¢AzÀ vÉUÉzÀĺÁQgÀĪÀÅzÀÄ £ÁåAiÀÄ ¸ÀªÀÄävÀªÉÃ?

2. ºÁV®è¢zÀ Ý°è, ¸ÀzÀj PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉ Ì CºÀðgÀÄ?" - 9 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012

15. The points of dispute raised by the Government was: i. Is the management of FDC Limited, justified in terminating the services of Sri B. Rajakumar with effect from 23.12.2009? ii. If not, to what the relief the workman is entitled to?

16. The claim statement of respondent- workman was a prayer seeking to quash the order of termination and directing the management to reinstate him without consequential benefits. The respondent- workman was issued with the charge sheet dated

23.02.2009 for refusing to report for work at the transferred location and charges against the respondent was for the following service of misconduct: i. ii. "Unauthorisedly working at Mangalore Headquarter

5.12.2008

8.1.2009. Absent without leave, without prior sanction for more than a month. - 10 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 iii. Holding the Company's property including stationery and not using the same for bonafide purpose. iv. Refusing respond communications addressed to him by the Company. v. Disobedience of lawful and reasonable orders reporting assigned Headquarter as per terms and conditions of your employment. vi. Any act subversive of discipline while in the employment of the Company."

17. The reply submitted by the workman to the charge sheet leveled against the workman finds place at paragraph No.5 of Annexure-B, which reads as under: "5.For all reasonable and lawful order of the company I have complied the same in the best interest of the company. Please note that under the guise of management's right, against the interest of the company the management has been dealing with me since 2006. Can you term such actions is in interest of the company. I feel the management has violated the sanctity of the terms of the appointment and now attempts were being made to blame me!" (emphasis supplied) - 11 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012

18. Perusal of the impugned order would indicate that the Labour Court on the sole premise that the General Manager-HR had no authority to authorize the Regional Manager empowering him transfer the Medical Representative is without considering Ex-M.11, which has been issued by the officer, who is holding the rank of the General Manager and the appointment order of the respondent-workman has been signed by the officer. The appointment orders of the Medical Representatives are issued by the General Manager-HR and as long as the General Manager authorizes the Regional Manager, the Regional Manager has enormous power to transfer the Medical Representative and thus, the contention of the respondent-workman that the Regional Manager was not authorized to transfer the respondent-workman outside the State falls.

19. It is relevant to note that the point of dispute stated supra, by the Government was regarding the termination of the workman is justified, the transfer of the - 12 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 respondent-workman was not assailed before any authority, and thus, the transfer as on the date of reference was sustainable and thus, the reasoning arrived at by the Labour Court warrants interference, as the Labour Court deviated itself from the points of dispute raised, which is impermissible in law and the Labour Court could not have gone into the question, whether the transfer order is valid or invalid and whether it was passed by the competent person as the order of transfer issued to the respondent-workman remained un-assailed.

20. The charges issued against the workman was for disobedience of lawful and reasonable order of reporting to duty that was assigned as per the terms and conditions of the employment. The word ‘disobedience’ means refusal to obey or negligence in obeying a command; violation or disregard to a rule or prohibition. The Random House Dictionary, gives the meaning of ‘insubordination’ as ‘not submitting to authority; disobedient, one who is insubordinate’. Therefore, where - 13 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 a workman disobeys a lawful order as in the instant case, the transfer order un-assailed and stands binding on the respondent-workman, he has to be held guilty of ‘insubordination’ and such ‘insubordination’ would amount to indiscipline.

21. In American words and phrases the word ‘insubordination’ defined to mean ‘insubordination in civil service implies intentional, willful disobedience’. An employee should obey all lawful orders given to him by his employer and it is the duty of the workman to comply with the lawful orders of the employer because obedience of superior officer and loyalty to the management are inherent in jural relationship of master and servant and there may not be prescribed. Refusal to obey a lawful order of transfer constitutes willful disobedience and insubordination, as held in the case of A. A. Fernandes vs. Modern Mills Ltd1. 1 (1990) 1 LLJ 538 - 14 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012

22. In the case of Sarabhai M. Chemicals Ltd Vs. M.S. Ajmere2 the Division Bench of the Mumbai High Court held that the concept of disobedience is implicit in the fact that officer receiving the order is subordinate to officer giving the order and a lawful order has to be obeyed, unless there is good justification for not complying with such a lawful order. It is this conduct of declining to obey an order which not only results in disobedience, but the conduct of the workman would also amount to subordination.

23. In the instant case, the respondent-workman refused to obey the lawful order of transfer constituting willful disobedience and insubordination, the Labour Court totally lost sight of this fact and the conclusion arrived by the Labour Court directing reinstatement warrants interference by this Court and accordingly, the point framed for consideration is answered in favour of the petitioner-management and this Court pass the following: 2 (1980) 1 LLJ 295 - 15 - NC: 2024:KHC:7241 WP No. 36181 of 2012 C/W WP No. 49426 of 2012 ORDER i. WP No.36181/2012 management is hereby allowed and WP No.49426/2012 filed by the workman is hereby dismissed. ii. The impugned order of the Labour Court

18.02.2012 in I.D.R No.16/2010 on the file of the Presiding Officer, Labour Court, D.K., Mangalore is hereby set aside. iii. The order of the termination passed by the Disciplinary Authority stands confirmed. Sd/- JUDGE AT List No.: 1 Sl No.: 15 CT: BHK