1 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present: The Hon’ble Justice Shampa Dutt (Paul) WPA 22987 of 2025 M/s. Medicare Environmental Management Private Limited Versus The State of West Bengal & Anr. With WPA 26230 of 2025 with CAN 1 of 2025 CAN 2 of 2026 M/s. Medicare Environmental Management Private Limited Versus The State of West Bengal & Anr. With WPA 28006 of 2025 with CAN 1 of 2025 CAN 2 of 2026 M/s. Medicare Environmental Management Private Limited Versus The State of West Bengal & Anr. with WPA 28011 of 2025 with CAN 1 of 2025 CAN 2 of 2026 M/s. Medicare Environmental Management Private Limited Versus The State of West Bengal & Anr. with WPA 29815 of 2025 with IA No.: CAN 1 of 2026 CAN 2 of 2026 M/s. Medicare Environmental Management 2 Private Limited Versus The State of West Bengal & Anr. For the Petitioner : Mr. Soumya Majumder, ld. Sr. Adv. Mr. Ritesh Kr. Ganguly, Ms. Sanjukta Dutta, Ms. Utsa Podder, Ms. Debasmita Chakraborty. For the Private Respondents : Mr. Nayan Rakshit, Mr. Nilay Rakshit. For the State in : Mr. Ajit Kr. Chaubey, WPA 22987 of 2025 Mr. Vinayak Chaubey. For the State in : Mr. Abhishek Kabir. WPA 26230 of 2025 For the State in : Ms. Madhusudhan Saha Roy. WPA 28006 of 2025 For the State in : Mr. Siddhartha Goswami, WPA 28011 of 2025 and Ms. Paramita Mondal. WPA 29815 of 2025 Judgment reserved on : 24.08.2026 Judgment delivered on : 28.09.2026 Shampa Dutt (Paul), J.: 1. Affidavit-of-service filed be kept with the record. 2. Leave to file supplementary affidavit annexing the copy of the enquiry report is granted. 3. The writ application in WPA 22987 of 2025 has been preferred challenging an award dated 18th March, 2025 passed by the learned Second Labour Court, West Bengal in Case No. 05 of 2015 under Section 2A(2) of the Industrial Disputes Act,1947 3 and published on 21st April, 2025 by the Government of West Bengal. 4. The writ application in WPA 26230 of 2025 has been preferred challenging an award dated 18th March, 2025 passed by the learned Second Labour Court, West Bengal in Case No. 11 of 2014 under Section 2A(2) of the Industrial Disputes Act,1947 and published on 11th April, 2025 by the Government of West Bengal. 5. The writ application in WPA 28006 of 2025 has been preferred challenging an award dated 18th March, 2025 passed by the learned Second Labour Court, West Bengal in Case No. 09 of 2014 under Section 2A(2) of the Industrial Disputes Act,1947 and published on 9th April, 2025 by the Government of West Bengal. 6. The writ application in WPA 28011 of 2025 has been preferred challenging an award dated 18th March, 2025 passed by the learned Second Labour Court, West Bengal in Case No. 10 of 2014 under Section 2A(2) of the Industrial Disputes Act,1947 and published on 9th April, 2025 by the Government of West Bengal. 7. The writ application in WPA 29815 of 2025 has been preferred challenging an award dated 18th March, 2025 passed by the learned Second Labour Court, West Bengal in Case No. 12 of 2014 under Section 2A(2) of the Industrial Disputes Act,1947 4 and published on 11th April, 2025 by the Government of West Bengal. 8. It is the case of the petitioner that the Second Labour Court, West Bengal under the provisions of Section 2A(2) of the Industrial Disputes Act, 1947 and registered as Case No. 05/2015 under Section 2A(2) has held that there was refusal of employment in this case as the service was not terminated by any letter. The Labour Court granted re-instatement and 50% back wages and costs along with all consequential benefits. 9. It is the case of the petitioner that respondent no. 2/workman who has not entered appearance in spite of service was engaged in certain disputes and differences while raising certain charter of demands. The workers went on a flash strike, completely jeopardizing public safety and health care services in the locality, in complete disregard to the responsibilities of the workers engaged in essential services and stopped attending work. The Conciliation meeting resulted in a bipartite settlement. 10. It is also alleged that few of the workers including the petitioner had assaulted the representatives of the Management and, as such, a charge-sheet-cum-suspension order had been issued on 6th August, 2013. On completion of departmental proceedings, the enquiry officer found the charges to be proved. 11. The Management without terminating his services, issued a transfer order dated 27th January, 2014, transferring the 5 respondent no. 2 to Gaziabad unit of the company. But the respondent/workman refused to resume his duties. 12. It is further the case of the petitioner that though a bipartite agreement was signed on 6th September, 2013, it is alleged by the respondent/workman that he was not allowed to join his duties on and from 1st January, 2014. 13. It is the contention of the petitioner that the fact of transfer was on record, in the written statement before the Labour Court and a copy of the transfer order has been placed before this Court. 14. It appears that the transfer order dated 27.01.2014 was issued, on the enquiry officer’s report finding that the respondent/workman was guilty, but the Management wanted to give one opportunity to the respondent and, as such, he was transferred to Gaziabad. 15. Vide a letter dated 01.11.2022, the respondent no. 2 was dismissed from service on the ground that the respondent/workman did not attend the enquiry nor did he deny the charge in the charge-sheet and also failed to join his place of transfer. So finally he was dismissed on and from 31.10.2022. 16. Petitioner is an “Operator” under Bio-Medical Waste Management Rules, 2016. It has one of its plants at Howrah. 17. Respondent no. 2 was engaged as a “picker” with a transfer clause contained in his appointment letter. Conciliation proceedings were initiated over the demand but the management 6 bilaterally settled such disputes. Two of the workers tendered apology and resumed duties; others did not. 18. No dispute was raised with regard to suspension and transfer issues. The management paid subsistence allowance from the date of suspension (i.e. 06.08.2013) till the date of transfer (i.e. 27.01.2014). 19. Clause (d) in the appointment letter provides for transfer which reads as follows:- “d) Your present place of posting will be at M/s SEMBRAMKY ENVIRONMENTAL MANAGEMENT PVT. LTD., Howrah. You will be reporting to the DEPUTY MANAGER - OPERATIONS or any other person assigned. The company reserves the right to transfer you to any of its sites/subsidiaries/associates/offices/factories at any place existing at present or which may be established in future.” 20. The petitioner relies upon the judgment of this Court in the case of the Collector of Customs, Calcutta & Ors. vs. Biswanath Mukherjee reported in 1971 SCC OnLine Cal 35, wherein the Court held as follows:- “8. Besides, if principles of natural justice are said to be violated by the use of the two expressions abovenamed, then there are also the other questions of principles of natural justice on which the learned Judge has not come to a finding namely, (1) no evidence, and (2) documents considered by the Enquiring Officer behind the back of the petitioner. It is difficult therefore to judge 7 piecemeal even this question of the principles of natural justice in the present context of facts………………” 21. The respondent no. 2 relies upon the judgment of the Supreme Court in Sayed Yakoob vs. K.S. Radhakrishnan & Ors. reported in AIR 1964 (SC) 477, (para 7 & 8) wherein the Court held:- “this Limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of evidence cannot be re-opened or questioned in the writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact.” 22. In conclusion it is submitted that the workmen, who have obtained an Award in their favour after more than 11 years, the same cannot be set aside by the Hon’ble writ Court without considering valid reason. Therefore the prayer for dismissal of the writ petition with cost. 23. The respondent also relies upon the judgment of Nicks (India) Tools vs. Ram Surat & Anr. reported in (2004) 8 SCC 222. 24. The respondent/workman herein was not dismissed from service but transferred for the serious offences committed by him in spite of being found guilty. 25. The learned tribunal held as follows:- “Given the present facts, it is difficult to show and suggest refusal by direct evidence. It is because there is not a single document in the record, on the point of such refusal. Hence it is to be inferred from the circumstance. Exhibits 10 to 15 of the case no. 09/14 relating to similar workmen under similar circumstances (of which this court takes a Judicial notice) depicts a discord between the 8 employees and the management, which is an inference of a motive of strained relationship which in general experience prompts the management to takes stern action against employees. This is followed by alleged act of assault upon the member of employer and criminal cases against applicant. In absence of direct evidence, these are the circumstances of the case, which cannot be overlooked to suggest a motive for refusal of employment. A charge sheet in sessions trial case was filed against the applicant. The charges appear to be assault by the group of employees of one Victor Dasgupta, in a meeting of conciliation summoned by Deputy Labour Commissioner. It has also appeared from the documents on record that they were acquitted from the case. There is no charge sheet preceding a domestic enquiry by the company apart from a chargesheet before the sessions Judge. No alleged order of transfer of the applicant is on record. These facts suggest that there was neither any domestic enquiry nor any alleged transfer has been subject of discord. Weighed in the balance of the probabilities, it seems that the alleged protest activities undertaken by the applicant’s and his associates has been a cause of discomfort which goes without much barren contradictions that such alleged act of alleged assault upon a representative of the employer side is not supposed to be attended with comfort by the employer.” 26. The said findings of the Tribunal seems to be erroneous considering that copy of charge-sheet/show cause cum suspension order dated 6th August, 2013 was before the Tribunal as the document filed bears the Courts (tribunal’s) seal. (Herein Annexure P-6 at page 35 to the writ application). 27. It is unfortunate that the Tribunal also held that there was thus neither any domestic enquiry nor an order of transfer, which again is erroneous, as the transfer order is also on record (Annexure P-7). 9 28. The transfer order is part of a letter dated 27.01.2014, (Annexure P-7), where in it is noted that though the enquiry report finds the employees guilty. Instead of dismissal the authorities gave an opportunity to work but transferred him. 29. From such erroneous findings, the Tribunal came to the conclusion that there was refusal of service and granted 50% back wages. It appears that there was no proper consideration of the documents/evidence on record, and thus non application of mind. 30. It appears from the record that admittedly the respondent did not join his place of transfer and has taken the stand of “refusal of service”. 31. Admittedly, there is a criminal case (Sessions Case) against the respondent for assaulting a management personnel. 32. In spite of being found guilty in a lawfully conducted disciplinary proceedings, the management did not dismiss him. Transfer is a service condition accepted by the employee at the time of appointment. 33. Admittedly, he did not join his place of transfer (in 2014) and thus he was dismissed from service (2022). 34. Finally, on perusal of the materials on record and considering the facts and circumstances, the documents which decide the issue in the present case are:- a) The transfer order dated 17.02.2014. This order is as follows:- 10 “We have received the enquiry report which was held against you consequent to the charge sheet dated 06.08.1013. After going through the proceedings of enquiry, we find that the Enquiry Officer has found you guilty and further you have not denied the allegations mentioned in your charge sheet. Since, the charges/offences committed by you are of serious and grave nature, the appropriate punishment is dismissal from service. However in view of the your constant persuasion, verbal apologies, personal request / assurances given by you and other workers on your behalf, the management has decided to take a lenient view and give you one more opportunity to work in the company. As such, the Management has decided to give you one more opportunity to continue working in the Company and has decided to transfer you to the Ghaziabad Unit of the Company. You are directed to report to Ghaziabad unit on or before 17.02.2014.” b) The dismissal order dated 01.11.2022, wherein the workman was dismissed from the said company with effect from 31.10.2022. Full and final settlement was being made from 06.08.2013. 11 35. The order of reference in this case is dated 2nd February, 2012 in partial modification of Dept. Notification dated 25.07.1997. 36. The impugned award was passed on 18.03.2025. 37. The application before the 2nd Labour Court, Kolkata is no. 05/2015 under Section 2A(2) of the Industrial Dispute Act. 38. Section 2A(2) of the Act, lays down:- “Section 2A(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub- section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.” 39. To maintain an reference/application under the said provision, there has to be prima facie, a case under Section 2A(1) of the Industrial Dispute Act. 40. In the present case, the transfer order (2014) and the order of dismissal (2022), proves that the workman was neither discharge, dismissed, retrenched and or otherwise terminated, 12 when the reference was made in 1997 and modified in 2012 and also when an application being no. 15/2015 was made under Section 2A(2) of the Act. 41. The order of dismissal dated 01.11.2022 is not under challenge. 42. The issues decided in the impugned award are as follows:- a) That the termination of workman from service in the form of refusal was illegal, b) Reinstatement of the workman in consequence thereof along with backwages, c) Declaration of illegal retrenchment and awarding compensation in consequence, as consequential benefits. 43. Admittedly there is a transfer order dated 17.02.2014, where the workman was asked to join his place of transfer. 44. There was never any “refusal to join” by the company. 45. As the workman refused to join his place of transfer even till 2022, an order of dismissal was issued, which is not under challenge in this case. 46. Refusal to join a place of transfer from 2014 to 2022 is thus a clear case of abandonment of service. 47. The judgment of the Supreme Court in Life Insurance Corporation of India & Ors. vs Om Prakash, in Civil Appeal No. 4393/2010 dated 13.11.2024 is relied upon. 13 48. Thus the award dated 18th March, 2025 passed by the learned Second Labour Court, West Bengal in Case No. 05 of 2015 under Section 2A(2) of the Industrial Disputes Act,1947 and published on 21st April, 2025 by the Government of West Bengal, being not in accordance with law is perverse and would amount to an abuse of the process of law if not set aside. 49. The impugned orders as noted in paragraph nos. 3 to 7 herein are quashed and set aside. 50. WPA 22987 of 2025, WPA 26230 of 2025, WPA 28006 of 2025, WPA 28011 of 2025 and WPA 29815 of 2025 are accordingly allowed. 51. Applications, if any, connected thereto stand disposed of consequently. 52. Interim order, if any, stands vacated. 53. Photostat certified copy of this Judgment, if applied for, be given to the parties on priority basis upon compliance of all formalities. (Shampa Dutt (Paul), J.)