Gauhati High Court
Management Of Kitply Industries Ltd. vs Presiding Officer, Labour Court And ... on 26 April, 2007
Equivalent citations: 2007(3)GLT479
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT A.H. Saikia, J.
1. Heard learned Counsel for the parties.
2. By means of this writ petition, the petitioner has challenged the award dated 12.3.03 passed bythe learned Presiding Officer, Labour Court, Dibrugarh in Reference Case No. 22/01 holding that the petitioner/Management of Kitply Industries was not justified in transferring the workman/respondent No. 2 from Margherita Unit in the State of Assam to Rampur Unit which was situated in the State of Uttar Pradesh being two separate units, though owned by the same party and the workman was, therefore, entitled to continue in his service in the same capacity at the same place along with payment of back wages.
3. In arriving at the above finding, the Labour Court wholly relied upon the Standing Order of Margherita Unit. According to the Labour Court, since there was no provision for inter State transfer of the employees in the Standing Order of the Margherita Unit and the Standing Order of the Rampur Unit was not placed on record, the Management/petitioner could not make out a case for transfer of the respondent No. 2 from Margherita to Rampur.
4. Having carefully perused the entire materials available on record and the pleaded case of the petitioner as no affidavit has been filed on behalf of the respondent No. 2, it appears that the respondent No. 2 who was working as Slicer Supervisor' was initially appointed on 1.4.1989 at Margherita Unit and has been serving there in the said capacity. Thereafter, by the initial and first transfer order dated 7.4.98 he was advised to report Rampur Unit in the same capacity of Slicer Supervisor. However, against that transfer order, the workman preferred a representation on two different dates i.e., 13.4.98 and last one on 24.4.98. In the said representation/appeal dated 24.4.98, the workman narrated his grievance as follows:
To The Manager, Kitply Art Unit, Margherita Date: 24.4.98 Sir, With due respect, I make this request that due to the illness of my parents, I would not be able to go as per directions of the transfer order served by you. I have earlier informed of this. Therefore, I ask you to please stay the transfer order. If I am not faced with further house hold obligation, I may be able to comply with the transfer order later on.
I hereby request you to kindly stay my transfer order.
Yours faithfully, Madan Sharma.
5. Eventually, the Management by order dated 12.9.98 issued the final transfer order asking the petitioner to report at Rampur Unit which was also owned by the petitioner. By the transfer order in question, the workman/respondent No. 2 was given two increments in grade on joining duty at Rampur Unit and also was provided with free company accommodation subject to Company Rules.
6. Since the respondent No. 2 did not want to comply with the transfer order, the matter ultimately, raising a dispute, brought to the Government of Assam which by order dated 17.8.01 referred the matter to the Labour Court for adjudication on the following issues:
(i) Whether the Management of Kitply Industries Ltd. (Art. Unit), Margherita are justified in transferring the workman, Shri Madan Sharma from Margherita to Rampur Unit of the Industry?
(ii) If not, whether the workman is entitled to continue his service in the same capacity at the same places along with payment of back wages or any other relief in lieu thereof?
7. The Labour Court upon hearing both the parties arrived at the decision in favour of the workman, respondent No. 2 as already stated above.
8. Perused and considered the impugned award along with the entire materials made available on records. Also given anxious consideration to the submissions put forward by the learned Counsel representing the rival parties.
9. It transpires from the Standing Order of Margherita Unit so relied upon basically by the learned Counsel for the respondent No. 2 that save and except the transferring the workman in the shift duties, there is no mention as regards transfer of the workman from one Unit to other Unit as claimed by the petitioner. That being the position, the employer has every right to transfer its own employee and an employee cannot but only requries to comply with the order of the transfer if the same is not otherwise is vitiated by malafide or in any extraneous consideration. That apart, the observation made by the Labour Court that the Standing Order of the Margherita Unit and the Standing Order of Rampur Unit were independent and both the Units were being two separate entities in two different States, in the considered opinion of this case cannot be accepted because since both the Units were owned by the petitioner itself, those units cannot be said to be of separate entity.
10. The Standing Order basically is aimed to control the internal business of the company of the industrial unit. 'The Standing Order' has been defined under Section 2(g) of The Industrial Employment (Standing Orders) Act, 1946 (for short, 'the Act') which prescribes that the 'standing orders' means rules relating to matters set out in the Schedule which provides as under:
Matters to be provided in standing orders under this Act.:
1. Classification of workman, e.g., whether permanent, temporary, apprentices, probationers, or badlis.
2. Manner of intimating to workmen periods and hours of work, holidays, paydays and wages rates.
3. Shift working.
4. Attendance and late coming.
5. Conditions of, procedure in applying for, and the authority which may grant leave and holidays.
6. Requirement to enter premises by certain gets, and liability to search.
7. Closing and reopening of sections of the industrial establishment and temporary stoppages of work and the rights and liabilities of the employer and workmen arising therefrom.
8. Termination of employment, and the notice thereof to be given by employer and workmen.
9. Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.
11. A bare perusal of the schedule above mentioned, would clearly indicate that the matters so provided in the Schedule can only be the subject matter of the Standing Order and the transfer, being the incident of service, and the area where an employer has the sole right to transfer its own employee, has not been prescribed/or provided/or inserted in the Schedule. That apart, since the respondent No. 2 was transferred in same capacity as Slicer Supervisor and there being no indication as regards his change of service condition, the petitioner was fully justified and permitted to cause such transfer of the respondent No. 2. That being the legal position, this Court is of the considered view that the impugned award deserves interference and accordingly the same is set aside and quashed.
12. In the result, writ petition stands allowed. Considering the facts and circumstances of the case, there shall be no order as to costs.
Send down the LCRs immediately.