Delhi District Court
Induskant Dixit vs The Press Trust Of India Ltd on 12 October, 2023
IN THE COURT OF SH.GAURAV RAO, ADJ-03/NEW
DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
DELHI.
CS No. 286/2023
CNR No. DLND01-006641-2023
Indukant Dixit
S/o Sh. Sudhakar Dixit
R/o Rameshwaram Colony,
Flat No. 4208, Sri Radhekrishna Garden,
Bariatu, P.O. & P.S. - Bariatu,
District-Ranchi
.....Plaintiff
Versus
The Press Trust of India Ltd.
Having Office at:
4, Parliament Street,
1st Floor, PTI Building,
New Delhi-110001.
....Defendant
AND
CS No. 285/2023
CNR No. DLND01-006640-2023
Renu Sinha
W/o Prashant Saxena
R/o C2B/46B, First Floor Janakpuri
Near Janakpuri Super Speciality
Hospital, Janakpuri B-1
West Delhi, Delhi -110058
.....Plaintiff
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 1/45
Versus
The Press Trust of India Ltd.
4, Parliament Street,
1st Floor, PTI Building,
New Delhi-110001.
....Defendant
Date of institution : 27.07.2023
Date on which reserved for judgment : 07.10.2023
Date of decision : 12.10.2023
Decision : Application allowed &
plaint rejected
JUDGMENT
1. Vide the present common order/judgment I shall be disposing of the applications moved by the defendant u/O 7 Rule 11 r/w Section 151 Code of Civil Procedure, 1908 in CS No. 286/23 and CS No. 285/23.
Brief facts of the case of CS No. 286/23 as filed by Indukant Dixit
2. The present suit has been filed by the plaintiff for declaring the transfer letter/orders dated 17.07.2023 and 25.07.2023 as null & void, being passed with malafide intentions to pressurize him to resign.
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 2/45 2.1 It is the plaintiff's case that he is a journalist by profession and has been in the field of journalism for more than 26 years.
2.2 It is his case that he joined the defendant's office at New Delhi as a Trainee Journalist in PTI-Bhasha, the Hindi Wing of Press Trust of India, New Delhi w.e.f. 01.08.1997 and was later confirmed as Journalist Gr III w.e.f. 01-08-1998 in the services of PTI-Bhasha and worked as Sub Editor at PTI Bhasha Desk till September 01, 2002.
2.3 It is his case that desk in PTI Bhasha refers to editing desk of the respondent which only exist in Delhi and at none other location/office of the defendant and since his appointment at Bhasha desk i.e. he had been given the responsibility of engaging with the users of PTI in Hindi language.
2.4 It is further his case that he is working with the defendant in Bhasha division (Hindi Edition) since beginning and at present, he is the vice-president of All India Federation Employee Union and has been involved in the upliftment of the employees of the respondent since 1999.
2.5 It is his case that on 29.08.2002, he was transferred to Jammu & Kashmir w.e.f. 02.09.2002 as a PTI-Bhasha CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 3/45 Reporter and thereafter to an imaginary desk at Jammu on 25.05.2004, which never existed and which transfer on being challenged by him was stayed and thereafter a settlement was arrived between him & the defendant whereupon he was transferred to Varanasi on 24.08.2007 as Bureau Manager & PTI Bhasha Reporter.
2.6 It is his case that on 15.04.2010, he was transferred to Ranchi, Jharkhand as PTI-Bhasha Reporter to revamp Bhasha service and to strengthen the Bhasha coverage in the Hindi Region, as the office did not have a full time Bhasha Reporter at Ranchi and though he was working to the utmost satisfaction of the defendant, without any allegation or any stigma from any corner, however, on 17.07.2023, he suddenly received at malafide transfer order dated 17.07.2023 (hereinafter referred to as the impugned order) issued under the signature of Sh. Rakesh Singh Gautam, Head-Human Resource of the Press Trust of India Ltd., who is even otherwise not a competent authority to issue such order in his case as he was appointed in the company by the then General Manager whereby he was being transferred from PTI Ranchi to PTI Mangluru considering the exigencies of business and administrative requirement of the defendant with further directions to report for duty at Mangluru on or before 27.07.2023.
2.7 It is his case that he immediately sent a detailed representation, vide letter dated 18.07.2023 to the C.E.O. and CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 4/45 Head-Human Resource of the defendant requesting them to immediately reconsider the impugned order and withdraw the same with immediate effect.
2.8 It is his case that when he did not receive any response from the defendant, he again wrote a letter dated 24.07.2023 to the defendant which was received by it on 25.07.2023, however the defendant refused to consider his genuine request and with malafide intentions, arbitrarily, just to victimize him, again instructed him to join the office on 27.07.2023 at Mangaluru.
2.9 It is his case that the City of Mangaluru is entirely a Kannad/Tulu /Konkani/ Malyalam and other south Indian language speaking center and hardly any person knows & speaks Hindi and there is no requirement of a Bhasha/ Hindi Correspondent.
2.10 It is his case that earlier also no Bhasha/Hindi correspondent/reporter was posted at Mangaluru or any state of the southern part of India, as for Hindi speaking people, the Kannad/Tulu/Malyalam language is completely alien and he being a correspondent would have no means/source to communicate with the local people and his posting at Mangaluru could not be justified, rather he would not be able to work in a situation where he will fail to establish any communication with CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 5/45 the people in the said area, which is the essence of news reporting.
2.11 It is his case that it is well within the knowledge of the defendant that he is having the knowledge of Hindi & English only and for all of his life he was posted in northern India/Hindi speaking belt, therefore, he being a reporter would be like a deaf & dumb correspondent/reporter posted in Mangaluru, who neither will be able to give any input nor will be able to serve the defendant properly due to language barrier.
2.12 It is his case that it is not a case that the impugned order has been issued due to some sudden increase in the news flow from Mangaluru region nor there is an activity which is seeking any sudden attention in public at large from that region.
2.13 It is his case that the impugned order has not been issued in a usual course and the application of mind has not been utilized by the defendant while issuing the same, rather the same has been issued in a malafide manner only to frustrate and harass him.
2.14 It is his case that he has been transferred from Ranchi to Mangaluru without any logic and good conscience as the defendant was having knowledge that he is having no knowledge of Kannada/Tulu language and he would be in great difficulty to perform his work diligently and would rather fail to CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 6/45 work there as without having any communication skill in Kannada language, it would be impossible for him to procure news and understand the activities being taken place in the city.
2.15 It is his case that the impugned order has been issued only in order to discourage him, since, he from the beginning of his career has been representing the Federation/Union of the employees and has also worked on the post of General Secretary in the union and presently he is the Vice President of the All- India Federation, due to which he is being targeted, victimized and harassed. It is his case that though reason for his transfer has been cited as business & administrative requirements but the fact remains that since he is always raising genuine voice for the workmen & other members through union, he has been punished by transferring him to Mangaluru so that he will have no option except to resign or in future he would be terminated on the ground of non-performance.
2.16 It is his case that the chances are very high that in the future, if he joins at Mangaluru, he would be declared a non- performer for the obvious reason that he would fail to communicate in Kannada language due to which he will fail to perform his duties in all possible manner.
2.17 It is his case that he is also presently holding the post of Vice President of Federation of PTI Employees Union and under his leadership a week-long Dharna & demonstration was CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 7/45 held from 17.04.2023 to 21.04.2023 at PTI New Delhi Building, Parliament Street, New Delhi against the CEO, namely Mr. Vijay Joshi for his unfair labour practices of stopping the interest on the provident fund and illegal retrenchment of 297 employees of defendant.
2.18 It is his case that in pursuance to the aforesaid demonstration and Dharna, vide a letter dated 11.04.2023 he representing his Federation has raised the grievance for the employees of defendant before the Provident Fund Commissioner who issued show cause notices dated 18.05.2023 and 19.06.2023 against the defendant.
2.19 It is further his case that on 17.05.2023, the controlling authority under Payment of Gratuity Act, 1972 passed an order dated 17.05.2023, whereby, it directed the defendant to make payment of 10% simple interest p.a. on gratuity amount of the illegally retrenched employees and accordingly, on 06.06.2023, he through Federation of PTI Employees' Unions sent a letter dated 06.06.2023, thereby, intimating and requesting the defendant to make payment of 10% simple interest p.a. on gratuity amount of the illegally retrenched employees.
2.20 It is further his case that he is in the process of writing a letter for setting up wage board, however since, the defendant has always been against setting up of rightful wage board for the wages of the employees, the defendant has issued CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 8/45 the impugned order in order to limit and engage him at a new place. It is also his case that the defendant has also challenged the wage board before the Hon'ble Supreme Court of India, however, the Hon'ble Apex court has held the wage board to be constitutional and correct vide order dated 07.02.2014 passed in "ABP Pvt. Ltd. & Anr. Vs. Union of India & Ors.".
2.21 It is his case that in light of the reasons as stated above the defendant just to take revenge from him has issued the impugned order in a very tactful manner showing the business & administrative requirements just to teach a lesson to him. It is his case that the defendant is well aware that in Mangaluru, he shall feel socially boycotted and thus, could not live a dignified life due to language barrier but still, with malafide intentions, arbitrarily without any just and proper reasons, he was transferred to Mangaluru in complete violation of Article 21 - Right to Life, embedded in Constitution of India.
2.22 It is his case that the impugned order directs him to report at The Press Trust of India Limited, Flat No. C-0904, Brigade Pinnacle, Derebali, Mangaluru-575006, however, the same does not mention the name of any person to whom he shall report at the abovesaid address of Mangluru because of the facts that the abovesaid address at Mangluru does not exist in reality & physically and accordingly, the defendant is trying to transfer him at a place/office where the office of the defendant does not even CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 9/45 exist. It is his case that the said office at Mangaluru is in fact a residential flat.
2.23 It is further his case that the defendant has issued the impugned order with the malafide intention to further harass him, as such, the order/letter dated 25.07.2023 requires him to report for duty on 27.07.2023 at PTI-Mangaluru office, however, at the same time, mentions that his reporting officer shall be Mr. Ramnath Shenoy K, State Bureau Chief at Banglore Location.
2.24 It is his case that it is utterly confusing and impossible for him to actually abide by the impugned order, as such, how can he report to reporting officer in Banglore location by reporting at Mangaluru office.
Brief facts of CS no. 285/23 filed by Ms. Renu Sinha
3. Plaintiff herein has also challenged the same impugned order.
3.1 It is her case that she is working with the defendant as a Senior Librarian Grade II Journalist for the past 29 years, having joined the defendant on 18.10.1994 and has been performing her duties extremely diligently to the utmost satisfaction of the defendant. It is her case that she has never been transferred out of Delhi even once for the reason that the defendant has its library only at Delhi and at no other place.
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 10/45 3.2 It is further her case that she is President of PTI Workers Union and actively involved in the upliftment of the defendant's employees since 2002.
3.3 It is her case that vide the impugned order she has been transferred to Chennai, without any justifiable grounds despite the fact that there is no library of the defendant existing at Chennai office.
3.4 It is her case that the impugned order has been passed in a malafide manner merely to frustrate & harass her as well as to discourage her from working for/representing the Federation/Union of Workers. It is further her case that she had given representation against the impugned order on 18.07.2023 but the same was not considered.
3.5 It is her case that through the impugned order, which has been issued malafidely/with ulterior motive, the defendant wants to isolate the plaintiff from her family as well as society at large.
4. Plaintiff is challenging the impugned order on the same grounds as the plaintiff of CS No. 286/23 and the grounds taken in applications under Order 7 Rule 11 CPC as well as its reply are in essence the same in both the matters.
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 11/45 Defendant's contention in its application u/O 7 Rule 11 CPC r/w Section 151 CPC as filed in CS No. 286/23
5. It is the case of the defendant that the present suit does not disclose any cause of action & is barred by law and therefore, the plaint is liable to be rejected.
5.1 It is its case that the present suit is barred by law as the same being an industrial dispute only Labour Court and Industrial Tribunal constituted under the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act) has the jurisdiction to adjudicate the present dispute.
5.2 It is its case that it is the admitted position of the plaintiff that he is working as a journalist and all working journalists are covered under The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter referred to as the WJ Act) which act has been enacted to regulate certain conditions of service of working journalists and other persons employed in newspaper establishments.
5.3 It is its case that working journalist is defined under Section 2 (f) of the WJ Act and in view of Section 3 of the said Act, plaintiff being a "workman" is covered under the ID Act which act has been enacted to make provision for the CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 12/45 investigation and settlement of industrial disputes, and for certain other purposes.
5.4 It is its case that an "industrial dispute" has been defined under Section 2(k) of the said Act and the present dispute is an industrial dispute.
5.5 It is its case that Labour Courts have been constituted under Section 7 of the ID Act and matters under jurisdiction of the Labour Courts have been set out in the Second Schedule of the ID Act which includes the propriety or legality of an order passed by an employer under the standing orders and the application and interpretation of standing orders. It is its case that Part B of the Second Schedule lists the Central Acts offences whereunder triable by Labour Court. Entry 7 of the Part B of Second Schedule is of the WJ Act.
5.6 It is its case that the plaintiff has alleged that his transfer has been done malafide & with ulterior motive and that he is being targeted because of his Trade Union activities. It is its case that the averment of the plaintiff is covered under Section 2(ra) of the ID Act which defines Unfair Labor Practice and Entry 7 of the Fifth Schedule deals with the grievances of the workman who alleges malafide transfer.
5.7 It is its case that the plaintiff being a working journalist, the ID Act is mandatorily applicable on him and the CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 13/45 Labour Court as established under the ID Act have the exclusive jurisdiction to adjudicate the present dispute relating to his transfer and therefore the present suit is barred by law and this court does not have jurisdiction to adjudicate the present suit.
5.8 It is its case that clause (h) of Section 41 of the Specific Relief Act, 1963 (hereinafter referred to as SR Act) specifically mandates that an injunction is to be refused when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.
5.9 It is its case that the Federation of PTI Employees Unions of which the plaintiff is an office bearer has already espoused the case of the plaintiff.
5.10 It is its case that the present suit is also barred under Section 14 of the SR Act as a contract of personal service cannot be specifically enforced and the court cannot give any such relief of declaration. Furthermore clause (e) of Section 41 of the SR Act also bars grant of injunction to prevent the breach of a contract the performance of which would not be specifically enforced.
5.11 It is further its case that the present suit does not disclose any cause of action as it is an admitted fact that transfer during the course of employment is a condition of service of the plaintiff and it is also admitted fact that the plaintiff has been CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 14/45 transferred during his employment and at no point of time he has challenged his transfer.
5.12 It is its case that not only transfer from one place to another is a condition of employment of the plaintiff, but the plaintiff has also given an unequivocal undertaking to that effect that he was ready to work at any PTI Station.
5.13 It is its case that as per the transfer letter dated 17.07.2023 the plaintiff stands relieved with effect from 21.07.2023 and thus no cause of action subsists as of today and as he has already been relieved, the present suit has now become infructuous.
5.14 It is further its case that the conduct of the plaintiff disentitles him of any discretionary relief as after being relieved from his place of transfer, he has been indulging in misconducts which disentitles him from grant of any discretionary relief.
5.15 It is its case that the plaintiff has till date not joined at his place of transfer and on 28.07.2023 had even made a phone call to the lady family member of a senior official of the defendant company with the motive of intimidation for which it has issued a letter to the plaintiff dated 28.07.2023.
5.16 It is its case that the plaintiff in his reply dated 31.07.2023 has duly admitted to making the phone call.
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 15/45 5.17 It is its case that the SR Act categorically bars grant of injunction where the conduct of the plaintiff has been such as demonstrated herein above.
5.18 It is further its case that this court lacks territorial jurisdiction to adjudicate the present suit as the situs of employment of the plaintiff prior to his transfer was at Ranchi and the situs of employment of the plaintiff after his transfer is at Mangalore and therefore he can only challenge his transfer at Mangalore and the courts at Delhi do not have the territorial jurisdiction to adjudicate any dispute relating to transfer of the plaintiff.
Plaintiff's reply in CS No. 286/23
6. It was pleaded that there is absolutely no merit, substance, truth or bonafides in the application/objections raised by the defendant and that the application is liable to be dismissed.
6.1 It was pleaded that an application at hand can only be decided on the basis of the contents of the plaint, by treating them as true & correct and the written statement or any defence taken by defendant is totally immaterial.
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 16/45 6.2 It was pleaded that as regards the defendant's contentions that this court lacks the jurisdiction to adjudicate the present dispute, the plaintiff is not relying upon any specific provision of the ID Act, but the challenge to the impugned order is based upon common law of malafides and the authority passing the transfer order having no legal authority & competence to issue the transfer order, thereby rendering the same as null, void and nonest.
6.3 It was pleaded that since there is no reference to any specific provisions of ID Act for seeking any relief in the suit, based on common law, the suit is legally maintainable and the objection raised by any defendant regarding the suit being barred by law is entirely misconceived, baseless and illegal.
6.4 It was pleaded that being a dispute between an individual workman & employer related to malafide transfer the present dispute is not covered under section 2(k) and 2-A of ID Act and thus, the present dispute is not an industrial dispute as defined under the said Act.
6.5 It was pleaded that section 41(h), of the Specific Relief Act 1963 is not applicable to the present case, in view of the judgment of the Hon'ble Supreme Court giving the choice of remedy either before the civil court or under the ID Act, to the employee negates the letter & spirit of section 41 (h) beside as already mentioned the remedy under the ID Act, is not available CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 17/45 unless the pre-conditions for raising an industrial dispute are fulfilled. It was further pleaded that the reliance upon any espousal of the case by plaintiff, does not take away his right to choose to file a civil suit instead of raising an industrial dispute under ID Act.
6.6 It was pleaded that the provision of Section 3 of the WJ Act reflects that the same shall apply to journalists or workmen and not to an individual journalist and that though he is a workman but still the present suit does not fall under the ID Act as it is not espoused by a body of workmen.
6.7 It was pleaded that the present suit arises from the malafide transfer which is covered in the Fifth Schedule of ID Act and Section 2(ra) of the said Act and there is no forum provision or provided in ID Act in regards to raising of dispute which may arise under Fifth Schedule and Section 2(ra) of ID Act.
6.8 It was denied that the ID Act is mandatorily applicable on plaintiff and the Labour Court as established under the IDAct have exclusive jurisdiction to adjudicate the present dispute relating to his transfer or that the present suit is barred by law and this court does not have the jurisdiction to adjudicate the present suit.
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 18/45 6.9 It was denied that the Federation of PTI Employees Unions of which the plaintiff is an office bearer has already espoused his case and it was pleaded that as per his information & knowledge no action in terms of section(k) of the ID Act has been initiated. It was pleaded that he has not approached the Federation for the expense of his case or to write to the management on his behalf.
6.10 It was pleaded that the suit is also not barred by sections 14 and section 41(e) of Specific Relief Act, since the impugned order has not been issued by a competent authority and is also patently malafide, null, void and nonest. It was pleaded that impugned order has not been issued by a competent authority as the same has been issued by the Manager in Charge, PTI who is not competent authority to issue the same. It was pleaded that an email was circulated in the organization upon the joining of the HR which clearly mentions the roles & responsibilities of the HR which does not include transfer and therefore, since order is malafide & illegal, plaintiff has the cause of action to institute the present suit and also to seek damages/compensation which have already been sought by the plaintiff and thus the present suit is maintainable in the eyes of law.
6.11 It was pleaded that the provisions of Section 41(h) of the Specific Relief Act, 1963 do not apply to the present suit as CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 19/45 there is no other efficacious remedy available to the plaintiff for the adjudication of the dispute raised in the present suit.
6.12 It was pleaded that the present suit against the impugned order does not amount to specific enforcement of a contract of personal service, since there was no contract of service permitting the defendant to issue a null, void and nonest transfer order.
6.13 It was pleaded that the objections that the conduct of the plaintiff disentitles him to the assistance of the court, are also entirely misconceived & baseless and that the defendant has deliberately suppressed the fact that the lady family member of a senior official of the defendant, was also a journalist of the defendant PTI, with whom the plaintiff had been maintaining contact on social issues as well as issues relating to women in particular, as such the question of calling her with the motive of intimidation, as alleged, does not arise.
6.14 It was pleaded that this court has the territorial jurisdiction as the impugned order was passed by the defendant from its office at Delhi.
6.15 It was pleaded that there is no PTI Bhasha office or any office of PTI in Mangaluru, Karnataka and that the defendant admitted that the office at Flat No. C-0904, Brigade FIL Pinnacle, Derebail, Mangaluru, Karnataka-575006 where the CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 20/45 plaintiff was asked to report was already closed down and that there is/was no office of PTI existing in Mangaluru and the defendant further admitted that there has never been any PTI Bhasha reporter in Mangaluru and also that the person/official to whom by way of subsequent communication it directed the plaintiff to report sits in Bangalore which is at a distance of 360 Kms from Mangaluru. It was further pleaded that the defendant also admitted that Hindi language is not spoken in Mangaluru, that the language spoken is Kannada/Tulu/Konkani/English and Hindi is not the preferred language to communicate.
6.16 It was pleaded that defendant's claim that the transfer order has come into effect, the date of joining has passed and thus the matter having become infructuous no status quo or stay can be granted ante-dated is bereft of merits. It was pleaded that the legality of the impugned order is under challenge and in case the plaintiff succeeds in demonstrating prima facie that the impugned order is actuated with malafide, punitive and for ulterior motives and that there is no exigency of work at Mangaluru then the finding of fact would entitle the plaintiff to get a temporary stay of the transfer order till the pendency of the present suit.
Arguments
7. I have heard the Ld. Counsels for the parties, given due consideration to the rival contentions raised at bar and have CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 21/45 carefully gone through the record. I have also considered the written arguments and case laws relied upon by the respective parties.
7.1 Ld. Counsel for the defendant/applicant relied upon Apollo Tyres Limited Vs. C.P. Sebastian (2009) 14 SCC 360, Kerala Rubber and Reclaims Ltd and ors Vs. P.A. Sunny Civil Revision Petition No. 1637 of 1988 dated 25.10.1988, Lokmat Newspaper Pvt. Ltd. Vs. Shankar Prasad (1996) 6 SCC 275 and Pearlite Liners (P) Ltd. Vs. Manorama Sirsi (2004) 3 SCC 172 in support of his arguments.
7.2 On the other hand, Ld. Counsel for the plaintiff/non applicant relied upon The Rajasthan State Road Transport Corporation and anr Vs. Krishna Kant etc. Civil Appeal no. 3100 of 1991 dated 03.05.1991, State of Punjab Vs. The Gandhara Transport Company (P) Ltd. and ors (1975) 4 SCC 838, Rajasthan State Road Transport Vs. Bal Mukund Bairwa AIR (SCW) (2009) 2566 and Hindustan Lever Vs. Ashok Vishnu AIR (SC) (1996) 285 to buttress the case of the plaintiff/non applicant.
Findings in CS No. 286/238. The plaintiff is a journalist and a combined reading of the WJ Act & the ID Act leaves no doubt that being a working journalist, the provisions of ID Act, as they apply to a workman, CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 22/45 are applicable to the plaintiff. Section 2 (f) of the WJ Act defines "working journalist" as under:-
"(f) "working journalist" means a person whose principal avocation is that of a journalist and [who is employed as such, either whole-time or part-time, in, or in relation to, one or more newspaper establishments], and includes an editor, a leader-
writer, news-editor, sub-editor, featurewriter, copy-tester, reporter, correspondent, cartoonist, news photographer and proof-reader, but does not include any such person who--
(i) is employed mainly in a managerial or administrative capacity, or
(ii) being employed in a supervisory capacity, performs, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature;"
8.1 Section 3 of the WJ Act makes the provisions of the ID Act applicable to a "working journalist" as they apply to workmen and the same is reproduced hereunder:-
"3. Act 14 of 1947 to apply to working journalists.--(1) The provisions of the Industrial Disputes Act, 1947, as in force for the time being, shall, subject to the modification specified in sub-section (2), apply to, or in relation to, working journalists as they apply to, or in relation to, workmen within the meaning of that Act.
(2) Section 25F of the aforesaid Act, in its application to working journalists, shall be construed as if in clause (a) thereof, for the period of notice referred to therein in relation to the retrenchment of a workman, the following periods of notice in relation to the retrenchment of a working journalist had been substituted, namely:--
(a) six months, in the case of an editor, and
(b) three months, in the case of any other working journalist."
8.2 Clause 2(s) of the ID Act defines the workman as under:-
"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 23/45 of any proceeding 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 the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]"
8.3 The ID Act has been enacted to make provisions for the investigation and settlement of industrial dispute, and for certain other purposes. What is an industrial dispute has been defined u/s 2(k) of the ID Act which is reproduced hereunder:-
"(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"
8.4 Labour Courts have been set up, in terms of Section 7 of the ID Act, to deal with/adjudicate upon all the industrial disputes relating to any matter specified in the Second Schedule of the said Act and for performing such other functions as may be assigned to them under the Act. The Second Schedule which provides the matters which are within the jurisdiction of the Labour Courts is reproduced hereunder:-
"THE SECOND SCHEDULE (See section 7) CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 24/45 MATTERS WITHIN THE JURISDICTION OF LABOUR COURTS
1. The propriety or legality of an order passed by an employer under the standing orders;
2. The application and interpretation of standing orders;
3. Discharge or dismissal of workmen including re-instatement of, or grant of relief to, workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;
5. Illegality or otherwise of a strike or lock-out; and
6. All matters other than those specified in the Third Schedule.
8.5 Section 7-A of the ID Act provides for constitution of Industrial Tribunals for the adjudication of industrial disputes relating to any other matter whether specified in the Second Schedule or the Third Schedule. The Third Schedule of the ID Act is reproduced hereunder:-
"THE THIRD SCHEDULE (See section 7A) MATTERS WITHIN THE JURISDICTION OF INDUSTRIAL TRIBUNALS
1. Wages, including the period and mode of payment;
2. Compensatory and other allowances;
3. Hours of work and rest intervals;
4. Leave with wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity;
6. Shift working otherwise than in accordance with standing orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalisation;
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed.
8.6 Section 7 & Section 7-A read with Second & Third Schedule makes it amply clear that the power of the Labour Courts and the Industrial Tribunal is quite wide and list of the matters which can be dealt with by the Labour Courts or the CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 25/45 Industrial Tribunal is not an exhaustive one. The scope of intervention & adjudication by the Labour Courts and Industrial Tribunal is quite enormous and not a limited one.
8.7 What has been challenged by the plaintiff by way of present suit is his transfer to Mangaluru, which transfer according to him has been done in a malafide manner and with ulterior motive. The said dispute raised by the plaintiff, in my considered opinion, is an industrial dispute. Item 1 of the Second Schedule, as discussed above, provides as "The propriety or legality of an order passed by an employer under the standing orders" and the dispute is also covered under item 6 of the Second Schedule which provides as "All matters other than those specified in the Third Schedule" because though the transfer of a workman perse is not covered under the Second or the Third Schedule, however, the said list not being an exhaustive one, the power of Labour Court is wide enough to adjudicate upon all the disputes raised by a workman. Item 6 is in fact a residuary clause in the Second Schedule and its scope is wide enough to include the dispute of the present nature.
8.8 Though Ld. Counsel for the plaintiff relied upon Hindustan Lever (supra) to argue that dispute of the present nature cannot be adjudicated by the Labour Court, however, considering the residuary item 6 of Second Schedule, I find no such bar upon the power of Labour Courts. The workman can always agitate that the employer had adopted unfair labour CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 26/45 practice and invoking the said residuary clause seek redressal of his grievances.
8.9 It is the case of the plaintiff that he is being victimized, targeted as he from the beginning of his career has been representing the federation/union of employees more so now in the capacity of the Vice President of All India Federation, he has been raising the grievances of the defendant's employees, voicing their concern. It is his case that because of his above activities he has been transferred to Mangaluru to keep him engaged there and prevent him from representing the federation/employees. The Fifth Schedule of the ID Act deals with the unfair labour practices and the relevant entry is reproduced hereunder:-
"[THE FIFTH SCHEDULE [See section 2(ra)] UNFAIR LABOUR PRACTICES ............7. To transfer a workman mala fide from one place to another, under the guise of following management policy."
8.10 Section 2(ra) of the ID Act is reproduced hereunder:-
"[(ra) "unfair labour practice" means any of the practices specified in the Fifth Schedule;
8.11 It is the plaintiff's own case that his transfer is malafide, with an intention to victimize him and to keep him away from the union activities and that the same has been done under the guise of management policy. Though neither the CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 27/45 Second Schedule nor the Third Schedule specifically lists unfair labour practice as a matter within the jurisdiction of the Labour Court or the Industrial Tribunal, however, as discussed above, the said list is not an exhaustive one and item 6 of Second Schedule has a scope wide enough to include such practices, their adjudication by the Labour Court. "Unfair labour practice"
not specified in Third Schedule, in view of item 6 of Second Schedule there is no reason for this court to infer or assume that the jurisdiction of the Labour Court to adjudicate upon the said matter is excluded. Item 6 has in fact been provided in the Second Schedule to widen the jurisdiction of the Labour Courts and not to limit the same as regards the dispute which may arise between an employer and a workman. Therefore being a workman, it is the Labour Court as established under the ID Act which has the exclusive jurisdiction to adjudicate the present dispute.
8.12 Though Ld. Counsel for the plaintiff vehemently argued that Section 2 (k) has to read with section 2A of the ID Act and that when so read it makes it amply clear that only discharge, termination, dismissal and retrenchment of an individual workman can be considered as an industrial dispute and all other disputes can be so considered only once the same is espoused by the labour union, however, I find no merits in his arguments. As already discussed above, the Second Schedule vests wide power in the Labour Courts to deal with the dispute between an employer and workman. The powers cannot be CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 28/45 limited only to dismissal, discharge, retrenchment or termination. There is no reason to give such a limited interpretation to item 6 of the Second Schedule or else the entire purpose of enactment of ID Act would be rendered futile. As regards the argument that as the plaintiff's dispute is an individual dispute having not been espoused by the labour union and the reliance based upon State of Punjab (supra) is concerned, the defendant has placed on record letter dated 24.07.2023 written by the Federation of PTI Employees Union whereby the plaintiff's case has been espoused. The plaintiff could not counter the defendant's said claim. Furthermore it is to be seen that the plaintiff is the Vice President of the Federation.
8.13 Nonetheless irrespective of whether there has been an espousal or not and even if the said letter is completely neglected and only the plaint is seen as the law is well settled that while deciding application under Order 7 Rule 11 CPC only the plaint and accompanying documents are to be considered, still the jurisdiction of the civil court is barred because the ID Act provides the remedy available to the plaintiff against his alleged malafide transfer subject to compliance of certain conditions. At this stage, it will be worthwhile to highlight the following observations made in Kerala Rubber and Reclaims Ltd (supra):-
"The principal contention urged by learned counsel for the petitioners in this revision petition is that the finding recorded by the Court below on preliminary issue (1) is erroneous and is the result of misconception of law. Section 9 of the Code of Civil CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 29/45 Procedure provides that the civil Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or implidly barred. It is not disputed that the cause is of a civil nature. There is no express provision barring the jurisdiction of the civil Court. Therefore, I have to examine if the jurisdiction of the civil Court is impliedly barred. So far as the principles governing this aspect is concerned, the same are governed by the decision of the Supreme Court in Premier Automobiles, Ltd. V. Kamlakar Shantaram Wadke [1976-I L. L. N. 11. After an exhaustive examination of all aspects, the Supreme Court has summarised the law in this behalf as follows in Para. 23, at page 12:
".......the principles applicable to the jurisdiction of the civil Court in relation to an industrial dispute may be stated thus :
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the civil Court.
(2) If the dispute is an industrial dispute, arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chap. V-A, then the remedy for its enforcement is either S. 33C or the raising of an industrial dispute, as the case may be."'
4. As the law has been clearly enunciated by the Supreme Court, all that I need do is to apply them to the present case. In the light of the principles laid down by the Supreme Court what is required to be examined is as to whether the right claimed by the respondent to enforce which he has filed the suit is a common law right or a fright created by the Industrial Disputes Act. If the right claimed is not a common law right but a right created by the Industrial Disputes Act, the further question for examination is as to whether the statute which has created the CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 30/45 right has itself provided for a forum for enforcement of such a right. If the right sought to be enforced is the creature of the Industrial Disputes Act and the forum is also created by that Act for enforcing that right, the civil Court will have no jurisdiction to entertain the suit. If, however, the right sought to be enforced by the respondent is a common law right and the same is also recognised under the Industrial Disputes Act, then one can avail of the remedy either of approaching the civil Court for relief or the remedy available under the Industrial Disputes Act. If, however, the right is only a common law right and is not recognised by the Industrial Disputes Act, the remedy would be only to approach the civil Court. If, however, the right which the respondent seeks to enforce is a creature of the Industrial Disputes Act and the Industrial Disputes Act does not provide a remedy for enforcing that right, then also the respondent would be entitled to seek his remedy in the ordinary civil Court.
5. So far as the frame of the suit is concerned, the order of transfer is challenged on the ground that the transfer of the respondent by the petitioners is mala fide and the result of victimisation and unfair labour practice and is, therefore, illegal and unjust. It is not pleaded that the respondent is claiming any right recognised by the common law as such. Learned counsel for the respon dent was also not in a position to point out if the right claimed is recognised as a common law right. Common law does not recognise any limitation on the power of the master to transfer his employees on grounds of mala fides, victimisation or unfair labour practice. We must also bear in mind that a contract of service is not specifically enforce- able under the ordinary common law. If the master is not willing to employ the servant, he cannot be compelled to employ him. But, after the Industrial Disputes Act was enacted, new rights and liabilities have been created restricting the unfettered common law rights of the master in dealing with the workmen in this behalf. Under the Industrial Disputes Act, notwithstanding the unwillingness of the master, he can be forced to continue the servant in his service.
6. So far as the question of transfer is concerned, the Legislature has made express provision to safeguard the interests of workmen. Section 25T in Chap. V-C of the Industrial Disputes Act contains a probibition against unfair labour practice and reads as follows:
"25T Prohibition of unfair labour practice. No employer or workman or a trade union, whether registered under the Trade CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 31/45 Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice."
7. The expression "unfair labour practice" has been defined in S. 2(ra) of the Act' to mean any of the practices specified in the Fifth Schedule to the Act. The Fifth Schedule enumerates the various unfair labour practices statutorily recognised. Item (7) of the Fifth Schedule, which is relevant, may be extracted as follows:
"7. To transfer a workman mala fide from one place to another, under the guise of following management policy."
8. Thus, it becomes clear that there is a statutory prohibition engrafted in the Industrial Disputes Act prohibiting transfer of a workman mala fide from one place to another under the guise of following management policy. Thus, a valued right has been created by the statute in favour of the workman from being subjected by his employer to transfers mala fide under the guise of following a management policy. This is a right which has been created by the Industrial Disputes Act in favour of the workman restricting the unfettered right of the management in the matter of effecting transfer of his employees. The obligation not to transfer a workman mala fide from one place to another under the guise of management policy was not recognised under the common law. That right is now created by the statue. The right which the petitioners claim to enforce in the suit flows from S. 25T of the Industrial Disputes Act read with item (7) of the Fifth Schedule.
9. The next question for examination is as to whether the Industrial Disputes Act has created a forum for enforcing this statutory right in the matter of transfer created by S. 25T read with item (7) of the Fifth Schedule. If the Industrial Disputes Act does not contain any provision for enforcement of that right, the answer to the first issue has to be recorded in favour of the respondent. If, however, I come to the conclusion that the Industrial Disputes Act which has created this right in favour of the workman has also created a forum for its enforcement, then I have to answer issue (1) in favour of the petitioners. The petitioners' case is that the forum has also been provided under the Act by S. 10(1) which read as follows:
10. Reference of disputes to Boards, Courts or Tribunals.-(1) Where the appropriate Government is of opinion that any CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 32/45 industrial dispute exists or is apprehended, it may at any time, by order in writing,
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for Inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Cl. (c):
Provided further that where the dispute relates to a public utility service and a notice under S. 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make reference under this sub-section notwith- standing that any other proceeding under this Act in respect of the dispute may have commenced:
Provided also that where the dispute in relation to which the Central Government, is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government."
10. The Second Schedule enumerates matters which are within the jurisdiction of the Labour Court and the Third Schedule enumerates matters which are within the jurisdiction of the Industrial Tribunals. It was submitted by learned counsel for the respondent that S. 10 cannot be invoked as disputes pertaining to transfer are not specifically enumerated either in the Second or in the Third Schedule. But it has to be pointed out that there is a residuary clause in the Second Schedule pertaining to the jurisdiction of the Labour Courts which includes "all matters other than those specified in the Third Schedule." Hence, it follows that any dispute regarding transfers effected in contravention of S. 25T, read with item (7) of the Fifth Schedule CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 33/45 can be resolved under S. 10 of the Act. But it was contended by learned counsel for the respondent that the dispute brought by him is an individual dispute, which will not come within the definition of industrial dispute, as defined in S. 2(k) of the Act. It was, therefore, contended that so far as individual problems regarding transfer which are not espoused by a class of workmen are concerned, there is no remedy under the Act to enforce the right created by the statute. That being the position, it was contended that the respondent is entitled to invoke the jurisdiction of the civil Court. Merely because the respondent is not in a position to satisfy all the conditions prescribed by the statute for the purpose of enforcing the rights created by the statute, it cannot be said that the statute does not provide for a remedy for enforcing the rights created by the statute. It cannot be disputed that if the dispute regarding transfer is espoused by the workmen, it would be an industrial dispute as defined in S. 2(k) of the Act. The definition of the expression "industrial dispute in S. 2(k) includes within its ambit disputes connected with the terms of employment or conditions of labour of any person. The terms of employment or the conditions of employment are governed by the Industrial Disputes Act. One term of employment is that a workman is not liable (for transfer in contravention of S. 25T, read with item (7), of the Fifth Schedule. That an individual cannot seek reliet against transfer under S. 10 does not mean that the statute does not provide a remedy for enforcing the right created by S. 25T, read with item (7), of the Fitth Schedule. The remedy has been provided in S. 10 of the Act. There are several conditions which are to be satisfied for invoking the remedy provided under S. 10 of the Act. When the statute prescribes a remedy and also prescribes the conditions for availing of that remedy, if the conditions for invoking the remedy cannot be complied with, it does not mean that the statute has not provided the remedy. One of the conditions to be satisfied in such cases is that the dispute can be raised by a class of workmen. If the statute prescribes a period of limitation for availing of a remedy, can it be said that no remedy is provided merely because the period of limitation has expired? Remedy has been provided but the person concerned is not in a position to avail of that remedy as one of the conditions for availing of that remedy cannot be satisfied by him. The Legislature obviously intended that certain types of rights which have been created by the statute must be resolved before the forum only if such disputes are espoused by a class of workmen.
Therefore, the respondent cannot contend that because he has brought this dispute as an individual dispute, he cannot invoke S. 10 of the Act and that, therefore, no remedy is provided by the CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 34/45 Act. It is for the respondent to invoke that remedy by satisfying all the conditions for enforcement of the right created under S. 25T, read with item (7), of the Fifth Schedule. I have, therefore, no hesitation in taking the view that this is a case in which the right as well as the remedy have been provided by the Industrial Disputes Act in the matter of transfers by the management. Therefore, the jurisdiction of the civil Court is by necessary implication barred. I have, therefore, no hesitation in reversing the finding of the Court of first instance)on issue (1)."
8.14 Though Ld. Counsel for the plaintiff while relying upon Rajasthan State Road Transport (supra) and Rajasthan State Road Transport Corporation (Supra) vehemently argued that when the workman is seeking remedy under the common law and not based on any provision of the ID Act, then such an employee/workman has the option to either file a civil suit on the basis of common law or to raise an industrial dispute, however, I find no merits in his arguments. The ID Act creates obligation upon the employer as well as the workman to not to indulge in unfair labour practice. Same is provided in Section 25T of the said Act, which is reproduced hereunder:-
"25T. Prohibition of unfair labour practice.--No employer or workman or a trade union, whether registered under the Trader Unions Act, 1926 (18 of 1926), or not, shall commit any unfair labour practice."
8.15 That being the case, if the workman alleges observance of unfair labour practice by the employer, then for redressal of his grievances he can approach the Labour Court as the said dispute in my considered is covered under residuary item 6 of the Second Schedule as discussed above in detail.
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 35/45 There is no question of the workman having the right to approach the Civil court for redressal of his grievances as emerges from the observations of the Hon'ble Apex Court in Rajasthan State Road Transport (supra) as reproduced hereunder:-
"16...............35. We may now summarise the principles flowing from the above discussion:
(1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947. (2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 -- which can be called "sister enactments" to Industrial Disputes Act -- and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is open.
(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to beexercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication. (5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 36/45 enabling a workman to approach the Labour Court/Industrial Tribunal directly -- i.e., without the requirement of a reference by the Government -- in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act. (6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated herein.
(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-
resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute."
Applying the said principles to the fact of the cases wherein the plaintiffs alleged that the enquiries were conducted in violation of the Standing Orders whereas the stand taken by the Corporation was that the requirements contained in the Standing Orders were complied with, the Bench, however, noticed that no Regulation had been framed by the Corporation in terms of Section 45 of the Act insofar as the employees answering the description of `workman' as defined in Section 2(s) of the 1947 Act are concerned. It appears that therein no dispute was raised that the provisions of the Standing Orders were applicable. The question, therefore, which inter alia arose for consideration was as to whether in holding the departmental proceeding the provisions of the Certified Standing Orders were violated or not............."
8.16 In Apollo Tyres Ltd. (supra) the plaintiff/workman had approached the civil court seeking declaration of his transfer order as malafide & illegal, having been issued with an intention to victimize him. Reversing the findings of the Hon'ble High CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 37/45 Court, which held that civil court has jurisdiction to entertain the suit of the present nature, the Hon'ble Apex Court observed as under:-
"3. Facts giving rise to this appeal are: the plaintiff filed a suit being OS No. 2098 of 1999 before the Munsiff's Court, Irinjalakuda, District Thrissur, Kerala seeking the following reliefs:
"A. Declaring that plaintiff is still a workman (Radial Tyre Builder) and continues to be a workman under the defendant entitled for wages and all other consequential benefits of service from the defendant.
B. Declaring that the order of transfer (Ref.WKS/PSL dated 08- 10-1999) issued by the defendant transferring plaintiff to West Bengal is intended to victimize, made with malafie intentions, irregular and illegal.
........8. On the facts of the case, we are clearly of the view that the suit filed by the plaintiff was barred by Section 14(b) of the Specific Relief Act, 1963 which states that a contract of personal service cannot be enforced in a civil suit. In our opinion, if the plaintiff had any grievance and if he is a workman as defined in the Industrial Disputes Act, 1947, he should have raised an industrial dispute and sought relief under the Industrial Disputes Act, 1947 before the labour Court or industrial Tribunal.
9. There are many powers which the Labour Court or Industrial Tribunal enjoy which the Civil Court does not enjoy e.g. the power to enforce contracts of personal service, to create contracts, to change contracts etc. These things can only be done by the Labour Court or Industrial Tribunal but cannot be done by a civil Court. A contract for personal service includes all matters relating to the service of the employee e.g. confirmation, suspension, transfer, termination etc.
10. In our opinion, the reliefs claimed by the plaintiff were clearly seeking enforcement of a contract of personal service and the civil Court has no jurisdiction to grant such reliefs as held by this Court in the case of Pearlite Lioners (P) Ltd. vs. Manorama Sirsi (2004) 3 SCC 172. The High Court and the first appellate Court were clearly in error in holding that the civil court had jurisdiction in the matter and the trial Court was right in holding that the civil court had no jurisdiction and rightly dismissed the suit filed by the plaintiff.
11. Accordingly, this appeal is allowed, the impugned judgment of the High Court and the first appellate Court are set aside and that of the trial Court is restored. No order as to costs."
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 38/45 8.17 In Pearlite Liners (supra) it has been held by the Hon'ble Apex Court as under:-
2. The appellant while denying the averments contained in the plaint took an objection that the Civil Court had no jurisdiction to try the suit. The trial court framed various issues in the suit.
The relevant issue for the present purpose is :
"Issue No 5 : whether defendant No.1 proves that this Court has no jurisdiction to try the suit."
3. The trial court decided the said issue in favour of the defendant and held that the court had no jurisdiction to entertain the suit as it was not maintainable and the plaint was liable to be rejected.............
9............In the background of such facts, the plaintiff has in the suit made the following prayers : "
(a) Declaring that the impugned transfer order is illegal, void and inoperative.
(b) The plaintiff continues to be in service of the defendant Company and is entitled all emoluments including salary; and
(c) Permanent injunction restraining the defendant from holding an enquiry against the plaintiff.
10. The question arises as to whether in the background of facts already stated can such reliefs be granted to the plaintiff. Unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service. Further it is to be considered that if the plaintiff does not comply with the transfer order it may ultimately lead to termination of service. Therefore, a declaration that the transfer order is illegal and void in fact amounts to imposing the plaintiff on the defendant inspite of the fact that the plaintiff allegedly does not obey order of her superiors in the Management of the defendant Company. Such a relief cannot be granted. Next relief sought in the plaint is for a declaration that she continues to be in service of the defendant Company. Such a declaration again amounts to enforcing a contract of personal service which is barred under the law. The third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her. If the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her. The management cannot be restrained from exercising its discretion in this behalf. Ultimately, this relief if granted would indirectly mean that he court is assisting the plaintiff in continuing with her employment with the defendant CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 39/45 Company, which is nothing but enforcing a contract of personal service. Thus, none of the reliefs sought in the plaint can be granted to the plaintiff under the law. The question then arises as to whether such a suit should be allowed to continue and go for trial. The answer in our view is clear, that is, such a suit should be thrown at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, to be tried at all? Accordingly, we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf. The High Court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits. The judgment of the High Court is hereby set aside and the judgments of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit stands rejected."
8.18 Therefore the present suit is indeed barred by law as contract of personal service cannot be enforced in a civil suit and also this court does not have the jurisdiction to entertain and adjudicate the present dispute in view of the provisions of the ID Act.
8.19 It was also argued by Ld. Counsel for the plaintiff that apart from seeking a declaratory relief to declare the impugned order as null & void the plaintiff has also sought compensation of Rs. 5 lacs from the defendant on account of having suffered mental harassment & torture due to the impugned order and that the plaint cannot be rejected in part. No doubt the plaint cannot be rejected in part and if one of the relief is maintainable, the plaint cannot be rejected merely because the other or some of the reliefs are not maintainable. It has been discussed above that the jurisdiction of this court qua the CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 40/45 impugned order is barred and the remedy lies before the Labour Court. The relief of compensation/damages is a consequential relief which will flow only once the plaintiff is able to obtain the relief against the impugned order from the Labour Court. This court cannot adjudicate upon the aspect of compensation or damages in the absence of the adjudication by the Labour Court qua the impugned order. As on date in the absence of any such finding by the Labour Court and till the adjudication on the aspect of transfer by the Labour Court, the relief sought by the plaintiff is premature. As on date no cause of action exists in favour of the plaintiff against the defendant. In fact I am of the considered opinion that the relief of damages has been sought only to bring the present suit within the jurisdiction of this court as otherwise it is the Labour Court which has the jurisdiction to entertain the present suit. In the absence of cause of action, the plaint is liable to be rejected under Order 7 Rule 11 (a) Code of Civil Procedure 1908.
8.20 Last but not the least it is to be seen that it is the admitted the position that the plaintiff's job is a transferable one and the defendant can transfer him anywhere depending upon the defendant's requirement. The relevant clause of the plaintiff's appointment letter dated 01.07.1997 in this regard reads as "PTI jobs are transferable and as such you are liable to be transferred anywhere in India or abroad depending on requirements of the organization". Plaintiff had accepted the above terms at the time of his appointment and therefore he should not have any CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 41/45 grievances as regards the impugned order. Furthermore he has been transferred on earlier occasions as well to Varanasi, Ranchi etc. Plaintiff cannot as a matter of right seek transfer to a particular state or region. Being a contractual employee/workman he cannot dictate terms with the employer nor compel employer to give in to his demands or else it will set a bad precedent and render the management decisions at the mercy of the employee/workman. This is more so when the plaintiff has admittedly given an undertaking dated 23.08.2002 to the defendant to the effect that he is ready to work at any PTI station. Most importantly it is not a case where only the plaintiff has been transferred. Around dozen employees including the plaintiff have been transferred and the transfer thus appears to be a routine one and the allegations of malice seems to be unfounded. Atleast this is not the forum to agitate the same.
8.21 As regards the language barrier which the plaintiff is alleging, his claim that Mangaluru is a non Hindi speaking city/region and therefore he being not versed in the languages spoken in Mangaluru will not be able to prove productive for the defendant, suffice would be to say that once this court lacks the jurisdiction, as discussed above, the said aspect cannot be gone into by this court. Furthermore the transfer is the defendant's call/prerogative and the management/defendant's policy/wisdom cannot be challenged by the workman. Furthermore it is not as if the people at Mangaluru do not speak Hindi language or are not versed with the same. There are several North Indian CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 42/45 individuals/families working/residing in Mangaluru and for that matter in other southern states whose mother tongue is Hindi. If they can reside and work for gain in Mangaluru so can the plaintiff. Also plaintiff is admittedly versed in English language as well which is quite prominently spoken in the southern states including Mangaluru. It is one of the most common language in educational institutions, IT companies including Infosys, Cognizant etc. operating from the said region. In fact as per the plaintiff's own documents people at Mangaluru are quite well educated and do communicate in English. So no question arises of the plaintiff facing language barrier or being not able to live a dignified life socially.
8.22 Whether a proper office of the defendant exists at Mangaluru or not is not for this court to delve upon. Nonetheless the defendant's claim that the plaintiff is entitled to work from home cannot be outrightly rejected. It is only once the plaintiff joins the office, pursuant to impugned order then he has reasons to agitate regarding non existence of office or lack of work or waste of talent. Nonetheless if the defendant is willing to waste one of its most talented employee/workman by transferring him to a non existing office then the same is the absolute call of the defendant and one which does not call for any interference by this court. Same applies to the plaintiff's claim that the Mangaluru office has been closed in 2009 and there is no PTI Bhasha Centre in Mangaluru.
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 43/45 8.23 As regards the plaintiff's claim that the impugned order has not been issued by a competent person, suffice would be to say that merely because the plaintiff was appointed by the General Manager of the defendant and the impugned order has been issued by the Head of the Human Resource will not render the same null & void for the simple reason that the impugned order has the approval/backing of the defendant's management. Only the defendant can challenge the validity/authority of the person passing the impugned order and not the plaintiff. Furthermore I find merits in the defendant's contention that transfer being an administrative function it is for the defendant to take a call in that regard.
8.24 Therefore in view of the above discussion, the plaint is liable to be rejected under Order 7 Rule 11 (a) & (d) of the Code of Civil Procedure 1908.
Findings in CS No. 285/239. For similar reasoning and discussion, plaint of CS No. 285/23 is also liable to be rejected. As far as additional contention of plaintiff of CS No. 285/23 that no library existed in Chennai is concerned, suffice would be to say that being Senior Librarian Grade II Journalist, she can always set up a library with the assistance, under the guidance of the defendant. Non existence of a library is no ground to challenge the impugned order nor does it ipso facto render the impugned order malafide.
CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 44/45 Whether other non journalists have been transferred to New Delhi will also not alter the situation. Transfer is the management's call and when the plaintiff herself has worked for 29 years in Delhi, others too have a right to work in the National Capital just like the plaintiff. It is not as if the plaintiff has the sole claim/right to the post at Delhi. Having agreed, in her appointment letter, to be transferred at any office of the defendant, she has no reasons to be aggrieved, more so when the transfer has come for the first time in 29 years.
10. I order accordingly.
11. Decree sheets be prepared in CS No. 286/23 and CS No. 285/23.
12. Files be consigned to record room after necessary compliance.
Announced in the open Court on 12th October 2023 (Gaurav Rao) ADJ-03/New Delhi District, Patiala House Courts, Delhi CS 286/23 & 285/23 Indukant Dixit Vs. PTI & Renu Sinha Vs. PTI 45/45