Delhi District Court
Journalists And Ors. vs . The Hindu, Bombay And Anr. 1961 on 19 April, 2008
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I.D. No. 238/01.
IN THE COURT OF SH. GURDEEP KUMAR
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF
M/s. S.N. Sudershan & Co.,
1, Deshbandhu Gupta Road,
Post Box No. 5713,
New Delhi.
...Management
Versus
Its workman as represented
By Delhi Labour Union,
Aggarwal Bhawan,
G.T. Road, Tis Hazari,
Delhi-2.
...Workman
A W A R D :-
Date of institution of case : 03.07.2001.
Date on which the judgment
has been reserved : 16.04.2008.
Date on which the judgment
Contd...
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I.D. No. 238/01.
has been delivered : 19.04.2008.
Secretary (Labour), Government of National Capital
Territory of Delhi has referred the dispute arising between the
parties named above for adjudication vide its order No. F. 24
(879) / 2001 / Lab. / 14028 - 32 dated 25.06.2001 u/s 10(1)(d)
and 12(5) of the I.D. Act, 1947 with the following terms of
reference:-
"Whether the transfer of Sh. Dev
Saran Singh by the management
from Delhi office to Katni ( Madhya
Pradesh) is illegal and / or
unjustified and if so, what relief is he
entitled and what directions are
necessary in this respect?"
Workman's case in brief is that he has been in the
employment of the management as a Peon since 02.11.1981.
Initially, he was appointed on six months probation and after
completion of probation period, he was confirmed in service
w.e.f. 02.05.1982 vide letter dated 29.04.1982. His last drawn
Contd...
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wages were Rs. 2419/- per month i.e. minimum wages fixed
under the Minimum Wages Act. He has unblemished and
uninterrupted record of service to his credit.
2. Although, he was a regular, permanent and confirmed
employee, he was paid only minimum wages as fixed and
revised from time to time under the Minimum Wages Act by the
appropriate government. He is not being allowed any other
allowance as available to confirmed employees in the industry.
He was getting 20% Bonus till 1997-98 but he was paid only
8.33% Bonus for the year 1998-99 while other employees were
given 20% Bonus. It is further averred that he was also not
allowed uniform for the year, 1999 while other Peons were
given Uniform. He was asked to perform four hours extra duty
for which no overtime wages were given to him. He has been
repeatedly asking the management for increments, bonus,
Contd...
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I.D. No. 238/01.
uniform and overtime wages which caused annoyance to the
management. The management asked him to resign from the
work and further threatened him to transfer him to a far off
place in case he did not resign. When the workman declined to
resign from the job, the management ultimately transferred him
from Delhi to Katni, Madhya Pradesh with immediate effect vide
order dated 26.06.2000. The said order is illegal, bad, unjust,
mala fide, arbitrary, discriminatory, punitive and in violation of
the principles of natural justice and amounts to unfair labour
practice and victimization for the reasons that he is a lowest
paid employee and the management is well aware that he will
not be able to survive in Madhya Pradesh with his family of 6
members; that the management has issued the transfer orders
to pressurize him so that he leaves the job of his own being;
that the job being performed by him is still continue and very
much available in the Delhi and the management has retained
Contd...
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I.D. No. 238/01.
Peons junior to him; that he has been transferred because of
legitimate demands of yearly increments, bonus, uniform and
overtime wages.
3. It is further averred that he is unemployed since he was
transferred from Delhi to Katni (Madhya Pradesh). He had
served a demand notice upon the management through union
by registered post vide communication dated 19.07.2000 but
no reply has been received from the management. Thereafter
an industrial dispute was raised by filing statement of claim
before the Conciliation Officer. However, conciliation
proceedings resulted in failure because of adamant and non
cooperative attitude of the management. The workman has
sought to declare the order of transfer illegal, unjustified and to
hold him to be entitled to work at Delhi with continuity of
service and full back wages and consequential benefits along
Contd...
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with cost of litigation provided under Section 11(7) of the
Industrial Disputes Act, 1947.
4. The claim is contested by the management who has filed
a written statement taking preliminary objections that the
dispute is not covered under Section 2-A of the Industrial
Disputes Act, 1947 as Delhi Labour Union has no
representative of character qua the workmen of the
establishment; that the dispute has, even otherwise, not been
validly and properly espoused to take the character of an
industrial dispute and, therefore, order of reference is
incompetent and bad in law; that the workman has been in the
employment of the management at New Delhi and after he was
transferred vide orders dated 26.06.2000, he ceased to be in
the employment at New Delhi and in the light of this, the
appropriate government, if any, to refer the dispute for
Contd...
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adjudication is the Government of Madhya Pradesh and not
Government of NCT of Delhi.
5. On merits, the factum of employment, the date of his
confirmation are not disputed by the management. It is averred
that in addition to minimum wages as per Minimum Wages Act,
the workman has also been extended the benefit of Provident
Fund as well as Bonus in accordance with law. It is denied that
the workman was denied any other allowance paid to the
employees similarly situated. It is further averred that the
workman was paid Bonus in accordance with the provisions of
Payment of Bonus Act, 1965 in the same manner as paid to
other employees and the allegations of the workman regarding
his discriminatory are without any truth or substance. It is also
denied that the workman was not given Uniform for the year,
1999. It is also denied that the workman has been asked to
Contd...
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I.D. No. 238/01.
perform four hours extra duty without any overtime wages. It is
also denied that the workman has been repeatedly representing
regarding grant of increments, bonus, uniform, overtime wages
etc. It is also denied that the management had threatened him
to resign. However, it is admitted that he was transferred from
Delhi to Katni, Madhya Pradesh vide letter dated 26.06.2000.
6. It is further averred that the respondent management is a
a partnership concern having its Head Office at 1 Desh Bandhu Gupta Road, New Delhi and it has works at Katni in Madhya Pradesh and branches at various places in the country and shops / retail outlets at various locations in Delhi. The company was, inter-alia, engaged in the retail business of Cement, Paints, Abrasives, Sanitary, Fittings, Telecom, Cleaning Aids etc in various shops / retail outlets at Delhi. The workman Dev Saran Singh was appointed as Peon by the Contd...
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company at Delhi. On account of trade recession and a variety of other reasons, the company was constrained to close down the shops / retail outlets at Delhi and several branches outside Delhi. The management would have been fully justified in terminating his services on closure of the shops / retail outlets in accordance with law. His services were, however, not terminated and in order to adjust him, his services were utilized in the Head Office of the Company at Desh Bandhu Gupta Road, New Delhi. With decline in business, the work in the Head Office was also considerably reduced. The strength of the employees there, which was about 60 a few years back, has now been reduced to 12. In view of this, services of the workman could not be utilized even in the Head Office of the Company at New Delhi. His services were transferred in accordance with terms and conditions of his employment and the relevant part of the letter of appointment dated 02.11.1981 Contd...
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issued to the workman is as under :-
"During the period of your employment you are liable to be transferred to any place of business of the company in India whether existing or acquired later on. By such transfer your wages will not be adversely affected."
7. It is further averred that services of the workman could be utilized in the works of the company at Katni in Madhya Pradesh and, therefore, the workman was transferred there with immediate effect in accordance with the terms and conditions of his employment. However, he has been unauthorizedly absenting from the place of his work at Katni. A chargesheet dated 04.11.2000 regarding his refusal to comply with the orders of transfer and his unauthorized absence from 03.07.2000 was issued to him. It is further averred that transfer is a normal incident of employment where an organization has establishments at more than one place. Some Contd...
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inconvenience results on account of transfer. It is further averred that school education in the school of Madhya Pradesh is free. Not only this, the management has provided free accommodation to the workman at Katni. It is denied that order of transfer is either malafide or to get rid of the workman. It is also denied that the order of transfer is punitive. It is further averred that his contention that Peons junior to him are retained is misconceived and baseless. It is also denied that transfer of the workman is malafide and it amounts to unfair labour practice. Receipt of demand notice is admitted. However, it was not replied as it was not necessary. Rest of the averments are denied in toto. It is denied that the workman is entitled to any relief whatsoever.
8. The workman filed rejoinder denying averments in the written statement and reiterating the facts stated in the Contd...
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statement of claim.
9. On the above facts / pleadings, following issues were settled by my ld. Predecessor on 20.08.2002 :-
1. Whether the cause of the workman has been duly espoused? OPW.
2. Whether the transfer of the workman from Delhi office to Katni (Madhya Pradesh) is illegal and unjustified?
OPW.
3. Terms of reference.
10. The parties were directed to adduce their evidence. Workman examined himself as WW1 wherein he tendered his affidavit dated 05.05.2003 duly attested by an Oath Commissioner appointed by the Hon'ble High Court of Delhi. He also relied upon documents Ext. WW1/1 to WW1/22. WW1/1 is copy of the demand notice, Ext. WW1/2 is the postal receipt, Ext. WW1/3 is the A.D card, Ext. WW1/4 is the copy of Contd...
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the statement of claim filed before the Conciliation Officer, Ext. WW1/5 is a reply filed by the management during proceedings before the Conciliation Officer, Ext. WW1/6 is the copy of rejoinder filed by the workman, Ext. WW1/7 is the copy of the resolution passed by Delhi Labour Union, Ext. WW1/8 is the letter whereby the workman was confirmed as Peon, Ext. WW1/9 is the copy of the appointment letter, Ext. WW1/10 is the copy of the ESI card, Ext. WW1/11 is the EPF statement, Ext. WW1/12 is the copy of the letter issued by Sri Aurobindo Education Society, Ext. WW1/13 is the letter written by the management authorizing the workman to deliver the articles on behalf of the management, Ext. WW1/14 is a letter by the management authorizing the workman to collect cheque book on their behalf, Ext. WW1/15 is the copy of a notice, Ext. WW1/16 is the order of transfer, Ext. WW1/17 is the letter by the management to the workman asking him to comply the Contd...
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transfer order, Ext. WW1/18 is the reply to Ext. WW1/17, Ext. WW1/19 is a postal receipt, Ext. WW1/20 is the letter by the management asking the workman to comply the transfer orders and Ext. WW1/21 is a letter by the workman to the management to allow him to join duty in Delhi Office.
11. On the other hand, the management examined MW1 - Mr. Anil Kumar Johar. He also tendered his affidavit dated 10.02.2004 in evidence duly attested by an Oath Commissioner appointed by the Hon'ble High Court of Delhi. He also relied upon documents Ext. MW1/1 to MW1/4.
12. I have heard A.R for both the parties. I have considered the submissions made by them. I have also gone through the case law relied upon by the parties. I have also carefully gone through the brief notes of arguments submitted on behalf of the Contd...
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management.
My findings on the issues are as under:- ISSUE NO. 1
13. Admittedly, the dispute is not covered by the provisions of Section 2 - A of the Industrial Disputes Act, 1947. Ld. A.R for the management has argued that to take character of an industrial dispute within meaning of Section 2 - A of the Industrial Disputes Act, 1947, the same have to be validly and properly espoused. A.R for the management has further argued that Delhi Labour Union has no locus standi or representative character to espouse the present dispute for the simple reasons that no other workman of the management is a member of Delhi Labour Union. The other members of the said Contd...
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union, who are not the employees of the establishment, have no community of interest and their support does not confer any locus standi or representative character upon the Delhi Labour Union to espouse the dispute of the workman in the present case. Therefore, the dispute referred for adjudication stated to have been espoused by the Delhi Labour Union does not constitute an industrial dispute. It has been further argued by the management that even otherwise also the workman has not brought on record any documents whatsoever to prove that dispute has been validly and properly espoused by the Delhi Labour Union. In the absence of any relevant documentary evidence, simply filing of copy of resolution Ext. WW1/7 would not constitute a valid and proper espousal. Reliance in that regard is placed upon case law reported as Bombay Union of Journalists and Ors. Vs. The Hindu, Bombay and Anr. 1961 II LLJ at page 436, Workers of Dharampal Premchand Contd...
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(Saughandhi) Vs. Dharampal Premchand (Saughandi) 1965 I LLJ 558, The workmen of Indian Express Newspaper Private Ltd. 1970 (20) FLR 157, JH Jadhav Vs. M/s. Forbes Gokak Ltd. 2005 (104) FLR 1005.
14. The Hon'ble Apex Court in Bombay Union of Journalists and Ors. Vs. The Hindu, Bombay and Anr. (supra) has held as under :-
"The principle that the person who seek to support the cause of a workman must themselves be directly and substantially interested in the dispute in our view applies to this class of cases also; persons who are not employees of the same employer cannot be regarded as so interested, that by their support they may convert an individual dispute into an industrial dispute. The mere support to his cause by the Bombay Union of Journalists cannot therefore assist the claim of Salivateeswaran so as to convert it into an industrial dispute."
In the case of Workers of Dharampal Premchand Contd...
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(Saughandhi) Vs. Dharampal Premchand (Saughandi) (supra), the Hon'ble Apex Court has held as under :-
"But in a given case, it is conceivable that the workmen of an establishment have no union of their own, and some or all of them join the union of another establishment belonging to the same industry. In such a case, if the said union takes up the cause of the workmen working in an establishment which has no union of its own, it would be unreasonable to hold that the dispute does not become an industrial dispute because the union which has sponsored it is not the union exclusively of the workmen working in the establishment concerned.
Industry has been defined by S. 2(j) of the Act and it seems to us that in some cases the union of workmen working in one industry may be competent to raise a dispute about the wrongful dismissal of an employee engaged in an establishment belonging to the same industry where workmen in such an establishment have no union of their own, and an appreciable number of such workmen had joined such other union before their dismissal. In fact, the object of trade union movement is to encourage the formation of larger and Contd...-:19:-
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bigger unions on healthy and proper trade union lines and this object would be frustrated if industrial adjudication were to adopt the rigid rule that before any dispute about wrongful dismissal can be validly referred under S. 10(1) of the Act it should receive the support of the union consisting exclusively of the workmen working in the establishment concerned."
The Hon'ble Apex Court in Workmen of Indian Express Newspaper Private Ltd. (supra) has laid down as under :-
"The Bombay Union of Journalists not being a union of the employees of the Hindu, Bombay, but a union of all employees in the industry of journalism in Bombay its support of the cause of the workman concerned would not convert the individual dispute into an industrial dispute. The members of such a union cannot be said to be persons substantially and directly interested in the dispute between the workman concerned and his employer, the Hindu Bombay. But in Worken Vs. M/s. Dharampal Premchand (4) this Court, after reviewing the previous decisions, distinguished the case of Hindu, Bombay and held that notwithstanding the width of the words used in Section 2(k) of the Act a dispute Contd...-:20:-
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raised by an individual workman cannot become an industrial dispute unless it is supported either by his union or in the absence of a union by a number of workmen, that a union may validly raise a dispute though it may be a minority union of the workmen employed in an establishment, that if there was no union of workmen in an establishment a group of employees can raise the dispute which becomes an industrial dispute even though it is a dispute relating to an individual workman, and lastly, that where the workmen of an establishment have no union of their own and some or all of them have joined a union of another establishment belonging to the same industry, if such a union takes up the cause of the workman working in an establishment which has no union of its own, the dispute would become an industrial dispute if such a union can claim a representative character in a way that its support would make the dispute an industrial dispute."
The Hon'ble Apex Court in the case of JH Jadhav Vs. M/s. Forbes Gokak Ltd. (supra) has held as under :-
"The locus classicus is the decision in Workmen of M/s. Dharampal Premchand Contd...-:21:-
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(Saughandi) Vs. M/s. Dharampal Premchand (Saughandi) where it was held that for the purposes of section 2(K) it must be shown that (1) the dispute is connected with the employment or non employment of workman, (2) the dispute between a single workman and his employer was sponsored or espoused by the union of workmen or by a number of workmen. The phrase 'the union' merely indicates the union to which the employee belongs even though it may be a union of a majority of the workmen (3) the establishment had no union on its own and some of the employees had joined the union of another establishment belonging to the same industry. In such a case it would be open to that union to take up the cause of the workmen if it is sufficiently representative of those workmen, dispute the fact that such union was not exclusively of the workmen working in the establishment concerned. An illustration of what had been anticipated in Dharampal's case is to be found in the workmen of Indian Express Newspaper (Pvt.) Ltd. Vs. Management of Indian Express Newspaper Private Ltd. where an outside union was held to be sufficiently representative to espouse the cause."
Contd...
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15. A.R for the workman has not cited any case law contrary to the aforesaid case law being relied upon by the management. The proposition of law laid down by Their Lordships in the aforesaid case law is squarely applicable to the facts of this case. Admittedly, the union, namely, Delhi Labour Union is not the union of the workers of the management in this case. It is also admitted by the workman in his cross examination that no other worker of the management is a member of the said Delhi Labour Union. In the light of this, it cannot be said that Delhi Labour Union has locus standi or representative character to espouse the cause of the workman. It further goes to show that Delhi Labour Union cannot be said to be directly and substantially interested in the dispute which is essential to convert an individual dispute into an industrial dispute. Mere support to workman's cause by Delhi Labour Union cannot, therefore, espouse the cause of the workman so Contd...
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as to convert his individual dispute into an industrial dispute. Therefore, Delhi Labour Union has no locus standi to espouse the workman's cause.
16. Otherwise there is no cogent and authentic evidence by the workman to prove espousal of his cause by Delhi Labour Union. As borne out from the record, the only document in that regard brought on record by the workman is Ext. WW1/7. In the case of Bombay Union of Journalists and Ors. Vs. The Hindu, Bombay and Anr. (supra) a copy of the resolution of the union was placed on record. The agenda of the meeting on which the reliance was placed was not filed. No Minutes of General Body Meeting were maintained. In the light of the facts, the Hon'ble Apex Court held as under :-
"There is no evidence that the notice for a General Body Meeting of the time prescribed under Clause 7 was given to the members, and the Secretary had Contd...-:24:-
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made a startling statement that he did not maintain any minutes of the meeting, but had copied out the resolution on a loose sheet of paper.
The documentary evidence which should normally have been in existence if the case that union passed a resolution on April 17, 1998 was true has not been produced on the plea either that it was not maintained or that it was destroyed.
..........By the mere passing of a resolution by other members of the union the case of the appellants that the claim of Salivateeswaran was supported by Venkateswaran cannot be supported."
As mentioned earlier, Ext. WW1/7 is the only document brought on record on behalf of the workman to prove espousal of his cause by Delhi Labour Union. The proposition of law laid down by the Hon'ble Apex Court in Bombay Union of Journalists and Ors. Vs. The Hindu, Bombay and Anr. (supra) is squarely applicable to the present case. The workman has not produced the original resolution, allegedly, Contd...
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passed by Delhi Labour Union to espouse the cause of the workman. The workman has also not placed and proved on record copy of the Constitution of Delhi Labour Union. The minutes book of any such meeting, in which, any such resolution was passed, has also not been brought on record by the management. While deposing as WW1, workman in his cross examination, has deposed that he can produced the record of the union regarding espousal. Despite opportunity given, he did not produce any such record. Even the original resolution, copy of which is Ext. WW1/7, has not been produced by the workman. Signatory to the resolution Ext. WW1/7 has also not been examined by the workman. The said resolution is not signed by the workman and, therefore, workman deposing as WW1 could not have proved the contents of that document / resolution. The workman has withheld the primary evidence by withholding the original of the resolution and by not examining Contd...
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the signatory of that resolution. In the light of this, it cannot be said that contents of the resolution have been proved as required under the law and, therefore, Ext. WW1/7 cannot be read in evidence.
17. As a result, except bare and bald deposition of the workman by way of his self serving affidavit, there is no iota of evidence to prove that his cause has been duly espoused by the Delhi Labour Union or by sufficient number of workers of the management. In the light of the above facts, it is held that the workman has failed to prove that Delhi Labour Union has a locus standi or representative character to espouse the dispute on his behalf. The dispute referred in this reference does not constitute an industrial dispute as defined under Section 2(K) of the Industrial Disputes Act, 1947. Otherwise also, the workman has failed to prove any documentary evidence to establish that Contd...
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his dispute is validly and properly espoused by Delhi Labour Union or by sufficient number of workers of the respondent management. The issue is accordingly decided against the workman and in favour of the management. ISSUE NO. 2.
18. Admittedly, the workman was employed by the management on the terms and conditions as contained in letter of appointment Ext. WW1/9. The said letter of appointment and the terms and conditions of employment as contained therein are not disputed by the workman. As per Clause 10 in that letter of appointment, services of the workman were transferable to any place of business of the company in India whether existing, or acquired later on. In the light of admitted facts, it is not in dispute that transfer is management's Contd...
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prerogative and function of the management. At the same time, it is also not in dispute that transfer can be challenged on account of mala fide or victimization. The workman has challenged the transfer orders on the grounds, namely, :-
1.That he was getting 20% Bonus till 1997-98 but was paid only 8.33% Bonus in the year, 1998-99 while other employees were given 20% Bonus.
2.That he was not provided Uniform for the year 1999 while other peons were provided the same and
3.That he was asked to perform four hours extra duty for which no extra payment was given to him.
19. While appearing in the witness box as WW1, workman has deposed that he repeatedly requested the management to give him increments, bonus, uniform and overtime wages and on that account the management got annoyed and for this reason he was transferred from Delhi to Katni in Madhya Contd...
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Pradesh. He has further deposed that his transfer is illegal and unjustified because management has retained at Delhi the peons juniors to him.
20. It is settled law that onus of establishing mala fides or victimization is on the employee. Allegations of mala fides or victimization by employee against the employer must be properly and adequately pleaded giving full particulars upon which the charge is based to enable the management to meet them. The allegations of mala fides or victimization should not be vague or indefinite. Mere allegations, vague suggestions and insinuations are not enough to discharge that onus. This view is fortified by the law laid down by the Hon'ble Apex Court in the case law reported as Bharat Iron Works and Bhagubhai Balubhai Patel & Ors. 1976 (32) FLR 72. Therein Their Lordships have held as under :-
Contd...-:30:-
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"A word of caution is necessary. Victimization is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes.
The onus of establishing a plea of victimization will be upon the person pleading it. Since a charge of victimization is a serious matter reflecting, to degree, upon the subjective attitude of the employer evidence by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced."
The Hon'ble Apex Court in the case law reported as The Hindustan Liver Ltd. Vs. The Workmen 1974 I LLJ 94 has held as under :-
Contd...-:31:-
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"The transfer was prima facie valid. Burden lay on the workmen to show that it was in fact invalid. In view of Labour Court's finding, it cannot be urged by the workmen that P.P. Jude was transferred from the former to the latter section as a measure of victimization for trade union activities. There is no adverse finding against the appellant's good faith in ordering his transfer, nor is there any finding that the transfer of P.P. Jude was an act of unfair labour practice."
The Hon'ble Apex Court in the case law reported as Union of India & Anr. Vs. N.P. Thomas 1993 I LLJ 1063 has held as under :-
"In the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala Circle is violative of any statutory rule or that the transfer order suffers on the ground of mala fide. The submissions of the respondent that some of his juniors are retained in Kerala Circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post Contd...-:32:-
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has no vested right to remain in the Kerala Circle itself and cannot claim, as a matter of right, the posting in that Circle even on promotion."
Our own Hon'ble High Court in the case of G. Srinivasan Vs. National Thermal Power Corporation, Ltd. 2004 (4) LLN 293 has laid down as under :-
"Having heard the petitioner and learned counsel for respondent and perused the documents as pointed out, I find that no case for mala fide or discrimination against the petitioner is made out. It may be so that there are number of officers who have like the petitioner stayed at a station for 14 years or there are others who have not been moved for more than 14 years. Posting of officers and their optimum utilization is the prerogative of the management. The Court does not interfere unless mala fide or arbitrariness is writ large on the record.
21. The proposition of law laid down by Their Lordships in the aforesaid case law is squarely applicable to the case in hand.
One of the contentions of the workman is that he was paid Contd...-:33:-
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Bonus at the rate of 8.33% in the year 1998-99 while other employees were given 20% Bonus. In his cross examination, the workman admitted that in the year, 1999-2000 he got Bonus at the rate of 8.33% at the time of transfer. He further admitted that he received Bonus every year but in the last two years he got Bonus at the rate of 8.33%. He further admitted that he does not have any document to show that other employees were paid the Bonus at the rate of 20% during the relevant period. Therefore, except his bare and bald deposition by way of his self serving affidavit, there is no evidence by the workman to prove and substantiate his plea.
In his cross examination MW1 - Anil Kumar Johar, also the workman has failed to elicit anything to prove his said plea.
Except bare, bald and vague suggestion that he was discriminated and was paid Bonus at the rate of 8.33% as compared to other workers, nothing material was put to the Contd...-:34:-
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witness. Vague and bald suggestion to the management witness do not constitute legal evidence and, therefore, the workman has failed to substantiate his plea in that regard.
22. The other ground raised by the workman is regarding non providing of uniform to him in the year, 1999 while other workers were provided the same. It is noticed that the workman, in his cross examination admitted to have received Uniform against his signatures on 11.05.1999. This falsifies workman's plea in that regard.
23. The third contention of the workman is that he was asked to perform four hours extra duty for which no overtime wages were ever paid to him. It is noticed that except his bald statement by way of self serving affidavit, there is no evidence at all by the workman. The workman has not proved any Contd...-:35:-
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document on record to prove to have worked on overtime four hours a day. There is nothing on record by the workman to prove that he had written any letter to the management complaining that he was being asked to work four hours extra everyday but was never paid overtime for the same. As admitted by the workman in his cross examination, he did not file any complaint in that regard to the Labour Department prior to his transfer from Delhi to Katni, Madhya Pradesh. In the cross examination of MW1 - Anil Kumar Johar also workman failed to elicit anything to lend support to his plea in that regard. Therefore, practically there is no iota of evidence by the workman to prove and substantiate his plea in that regard.
As held by the Hon'ble Madras High Court in Special Officer, Vellore Co-operative Suger Mills, Ammundy Post, Vellore Vs. Presiding Officer, Labour Court, Vellore and Ors. 2005 LLR 653, whenever a claim for overtime allowance Contd...-:36:-
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is made by a workman, the burden of proof lies on the workman to prove by relevant evidence that he was ordered to work overtime and in fact he had worked overtime and was entitled for overtime allowance. The burden of proof is not on the management. The workman has failed to discharge that burden of proof which lies on him. Therefore, this contention of the workman is also without any substance.
24. Another contention of the workman is that the transfer order amounts to mala fide or victimization because peons junior to him have been retained in Delhi. This contention is also devoid of any merits because seniority of the employees is relevant consideration only in cases of retrenchment, but in cases of transfer, it is not a material consideration. It is not workman's case that by his transfer from Delhi to Katni in Madhya Pradesh, his seniority is affected in any manner Contd...-:37:-
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whatsoever. Since no such result is bound to occur, there cannot be any rhyme or reason in the alleged grievance. On this, I am fortified by the case law by Hon'ble Apex Court reported as National Hydro-Electric Power Corporation Ltd.
Vs. Shri Bhagwan and Another 2001 LLR 1222. Therein Their Lordships have held as under :-
"Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that rule 4.1.1 of the seniority rules interdicts any transfer of any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or Contd...-:38:-
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appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate no such result is bound to occur since the project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance."
The Hon'ble Apex Court in the case of State of U.P. Vs. Gobardhan Lal 2004 Lab. I.C. 1737 has held as under :-
"Unless the order of transfer is shown to be an outcome of mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made....This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, Contd...-:39:-
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unless, as noticed supra shown to be vitiated by mala fides or is made in violation of any statutory provision.
A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in that matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based or concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
25. During the course of the arguments, A.R for the workman has referred to the case law reported as :-
(1)T. Rajaih and Ors. Vs. Southern Roadways Ltd., Madurai, Contd...-:40:-
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& Anr. 1991 Madras 884.
(2)Dr. (Smt.) Pushpika Chatterjee Vs. State of West Bengal and Others 1973 AISLJ page 230.
(3)Tarekeshwar Pandey and Others Vs. General Manager, U.P. State Mineral Development Corp. Ltd. and Others 1995 (71) 642 and (4)R.K. Dubey Vs. M.P. State Agro Industries Development Corporation and Others 1992 II LLJ 182. I have gone through the said case law relied upon by the workman. In the case of T. Rajaih and Ors. Vs. Southern Roadways Ltd., Madurai, & Anr. (supra), it has been held by Their Lordships as under :-
"Thus, it becomes clear that there is a statutory prohibition engrafted in the Industrial Dispute 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 statue in favour Contd...-:41:-
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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 on the matter of effecting transfer of respondents. The obligation not to transfer a workman mala fide from one place to another under the guise of management policy was not recognized 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. 25-T of the Industrial Disputes Act read with item (7) of the Fifth Schedule.
In the case of Dr. (Smt.) Pushpika Chatterjee Vs. State of West Bengal and Others (supra), Their Lordships have held as under :-
"It is no doubt that orders of transfer of Government servants like any other Government Administrative or executive order are passed invariably for administrative purposes or in public interest. Such orders normally are outside the purview of examination by Contd...-:42:-
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court of law. It is also the law, as observed by this Court in Mihir Kumar Sarkar Vs. West Bengal, 75 C.W.N. 831 (46) that an executive decision or action or an administrative decision is liable to be struck down if it is used mala fide or fo collateral purpose."
In the case of Tarekeshwar Pandey and Others Vs. General Manager, U.P. State Mineral Development Corp. Ltd. and Others (supra), Their Lordships have held as under :-
"The impugned transfer orders are arbitrary as there is no reason disclosed justifying transfers of the petitioners only when others have been retained in the background of the fact that the petitioners were the persons who retained in the regularized under Court's order after their termination was quashed by the High Court holding the action of the respondents to be mala fide. The respondents could not disclose any believable just cause or any reason for effecting the impugned transfers when admittedly various projects at Allahabad are functioning and several persons have been retained there and the petitioners have been transferred who were all regularized under the orders of the High Contd...-:43:-
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Court."
In the case of R.K. Dubey Vs. M.P. State Agro Industries Development Corporation and Others (supra), Their Lordships have held as under :-
"Order of transfer, like any other administrative or executive orders, are passed invariably for administrative purpose or in public interest. Such orders are normally outside the purview of examination by court of law. But an administrative decision is liable to be struck down if it is used mala fide or for a collateral purpose. Thus, the court is always reluctant to interfere in matters of transfer of a public servant, but if it appears that the order of transfer is lacking in bona fides, then for the sake of justice and fair play, the court can grant relief."
I have gone through the aforesaid case law relied upon by A.R for the workman. There is no dispute so far as the proposition of law laid down by Their Lordships in those cases concerned. However, with due respects to Their Lordships, Contd...
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these do not help the workman in any manner as the facts of those cases and the case in hand are entirely different.
26. The workman has tried to set up a case that he was employed in the lowest category and was being paid minimum wages and had four school going children. Therefore, his transfer from Delhi to Katni in Madhya Pradesh is illegal and unjustified. As already mentioned above, transfer is an incident of his employment with the management and transfer is the prerogative of the management. There is no doubt that some inconvenience or dislocation is invariably caused to an employee on account of transfer but the order of transfer cannot be interfered on account of some personal difficulties or dislocation in the family.
27. The workman deposing as WW1, in his cross examination, Contd...
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has admitted that he was earlier employed in various shops which have since been closed. His services were not terminated on account of closure of the said shops / retail outlets owned by the management but he was accommodated and transferred to Head Quarter. These facts are also admitted by the workman in his cross examination. While deposing as MW1 - Mr. Anil Kumar Johar, has deposed that on account of trade recession and a variety of other reasons, the company was constrained to close down the shops / retail outlets / godowns in Delhi and several branches outside Delhi. He has further deposed that with decline in business work in Head Quarter at Delhi, the work reduced considerably and as a result, number of employees who used to be around 60 in the Head Office have been reduced presently approximately to 13. This part of statement of MW1 - Anil Kumar Johar has not been challenged in his cross examination by the workman.
Contd...
-:46:-I.D. No. 238/01.
The workman has also not brought on record evidence of his own to disprove these facts and, therefore, there are no grounds to disbelieve the said deposition of MW1 - Anil Kumar Johar. In the light of this, workman's transfer from Delhi to Katni in Madhya Pradesh cannot be said to be mala fide or victimization.
As discussed above, workman has failed to bring on record any cogent and authentic evidence to prove that his transfer from Delhi to Katni in Madhya Pradesh is illegal and unjustified. He has failed to prove any of his contentions to prove that his transfer from Delhi to Katni in Madhya Pradesh is unfair labour practice, mala fide or it is a result of victimization. The issue is accordingly decided against the workman and in favour of the management. ISSUE NO. 3.
Contd...
-:47:-I.D. No. 238/01.
28. In view of the findings on issue No. 1 and 2 and for the detailed reasons given therein, the workman is not entitled to any relief or any directions from this tribunal.
The reference is answered accordingly. File be consigned to record room after due compliance by the Ahlmad.
(GURDEEP KUMAR) ANNOUNCED IN THE OPEN COURT PRESIDING OFFICER ON 19th Day of April, 2008. INDUSTRIAL TRIBUNAL II, K.K.D COURTS, DELHI Contd...