Delhi District Court
Lir No. 3782/16 T.K. Chakraborty & Ors. vs . Itc Maurya Purt Lounge Page 1/25 on 11 May, 2022
IN THE COURT OF SHRI RAJ KUMAR
PRESIDING OFFICER : LABOUR COURT- III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
LIR No. 3782/2016 (Old no. 1376/11)
CNR No. DLCT13-000828-2011
Sh. T.K. Chakraborty
S/o Late Sh. B.N. Chakraborty
and 11 Ors.
Through Hotel Workers Union (R),
BTR Bhawan,
13-A, Rouse Avenue,
New Delhi - 110 002.
... Workmen
Versus
The Management of
M/s. ITC Maurya Purt Lounge,
IGI Airport,
New Delhi - 110 037
Head Office : Diplomatic Enclave,
New Delhi - 110 021.
... Management
Date of Institution : 16.08.2011
Date of Arguments: 03.03.2022
Date of Judgement : 11.05.2022
JUDGEMENT
1. This reference was sent by the Govt. of the National Capital Territory of Delhi by the Deputy Labour Commissioner (District South-West), DTC Colony, Pratap Nagar, Hari Nagar, Delhi-110064 under Section 12 (4) of the Industrial Disputes Act, 1947, in exercise of powers conferred by Section 10 (1) (c) and 12 (5) of the said act vide Order No. F.24 (268)/11/SWD/Lab./4629-4633 Dated 13.07.2011 with the LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 1/25 following terms:-
"Whether transfer of Sh. T.K. Chakraborty S/o Late Sh. B.N. Chakraborty and 11 Ors. workmen whose details are given at Annexure "A" is a change in service condition and if so, to what relief are they entitled and what directions are necessary in this matter?"
2. It is pertinent to mention here that Sh. S.S. Panwar, Ld. AR on behalf of the workman vide his separate statement recorded on 29.11.2021 stated that originally, the claim was filed for 12 workmen but, he was pressing this claim only for the workman namely Sh. T.K. Chakraborty and Sh. Madan Lal as the rest of the workmen were already pursuing their separate remedies and as such, the claim on behalf of rest of the workmen was not being pressed.
3. The facts, in brief, necessary for the disposal of the present claim, as disclosed by the workmen in their statement of claim are that 12 workmen as per Anneuxre A had been working with the management for more than 20 years in various departments and their last drawn wages are mentioned as per Annexure A and they are the active members of the Hotel Workers Union.
4. It has been further stated that the workmen during their entire service period worked with sincerity, honestly, punctuality and no complaint, charge-sheet or notice etc. were ever issued to them by the management. It has been further stated that they are living in Delhi with their families since the date of their appointment at the establishment and most of their children are teenagers and getting eduction in Delhi. It has been further stated LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 2/25 that the management had deputed them at Port Lounge situated at Indira Gandhi International Airport, New Delhi, where, workmen have been working continuously for more than 16 to 20 years.
5. It has been further stated that from the month of March, 2010, workmen were reporting everyday at the establishment but no proper work was taken from them. It has been further stated that from April, 2010, the management was paying their salaries without assigning any work to them and therefore, the workmen served the demand letters to the management dated 18.11.2010, 06.12.2010, 14.12.2010, 04.01.2011 and 14.01.2011.
6. It has been further stated that the management stopped the salaries of the workmen from the month of December, 2010 without any reason, without any further information or notice with the malafide intention to harass the workmen. It has been further stated that the management also banned the entry of the workmen in the premises of the management as a result of which, the workmen filed a complaint against the management before the Dy. Labour Commissioner (South-West) which is through union i.e. the Hotel Workers Union with the request to pay their salaries due from December, 2010 and to allow them to work in the establishment. It has been further stated that the management appeared before the Dy. Labour Commissioner and the management undertook to pay the salaries of the workmen till 17.02.2011 but the commitment which was undertaken by the management was not fulfilled. It has been further stated that out of vengeance, the management transferred the workmen outside Delhi with the malafide intention during the pendency of the LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 3/25 dispute before the Conciliation Officer without seeking any permission from the competent authority under Section 33 and 33 A of the ID Act.
7. It has been further stated that the management again appeared before the Conciliation Officer and undertook to release the salaries of the workmen by 24.02.2011 but of no use. It has been further stated that the workmen filed their claim against the management against their illegal, unfair and unjust transfer on 03.03.2011 and the Conciliation Officer issued the notice to the management. It has been further stated that the Conciliation Officer advised the management not to take any action till 07.04.2011 and to take back all the workmen at Hotel Maurya ITC, Sardar Patel Marg, New Delhi in their services. It has been further stated that however, on 06.05.2011, the management again appeared before the Conciliation Officer and the management had handed over fresh transfer letters to the workmen which were accepted by the workmen under protest. It has been further stated that the workmen replied the management about their illegal transfer letters by speed post on 11.05.2011. It has been further stated that workmen joined their duties at the transferred places but under protest. It has been alleged that however, the management failed to release their pending salaries and other legal dues.
8. It has been further stated that the union of the workmen again filed a complaint against the management on 08.06.2011 for violation of the commitment done by the management. It has been further stated that the management appeared before the Labour Officer on 11.07.2011 and undertook the release the LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 4/25 salaries of the workmen for the months of March, April, May and June, 2011 by assuring that the salaries shall be credited to the bank accounts of the workmen.
9. The workmen have alleged that their transfers are illegal and unconstitutional and the same have been issued with a view to deprive the workmen of their legal rights.
10. On the basis of the above said allegations, the workmen have prayed that the management be directed to withdraw their illegal orders of transfers and to allow them to work at Purt Lounge, IGI Airport, New Delhi or at Hotel ITC Maurya, New Delhi - 110 021 by compensating them for every loss made to them by the company.
11. Written statement has been filed on record by the respondent/management to the statement of claim of the workmen stating therein that the claimants as detailed in Annexure A have been working with the management in terms of conditions of services mentioned in the respective letter of appointments, which have been duly received and accepted by the claimants and Clause 2 of the Annexure A to the appointment letter reads as under :
(2)It should be clearly understood that you may from time to time be transferred to any of the Company's divisions and branches or any other Company allied or subsidiary to or associated with the Company in India or Abroad.
12. It has been further stated that in view of the said Clause 2 in as much as the transfer of employees from one place to another is clearly provided in the letter of appointment. It has LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 5/25 been further stated that the claimants after having been transferred to different locations on account of exigency of service and administrative requirement in accordance with the conditions of employment, have joined their duties at the respective transferred place as advised vide transfer issued by the management and the claimants have already joined at the transferred place and are working there. It has been further stated that the claimants who have been working at the Airport Lounges at Old International Terminal, Terminal 1 A and 1 B where the operations of the management have stopped due to the shifting of the airlines department and arrival to the new Terminal 3, the jobs of the claimants became redundant, though, there is no vacancy available for the claimants in the NCR. It has been further stated that the management as a model employer to ensure that the claimants do not get effected, accommodated them and transferred them to different locations, wherever the vacancies were available.
13. It has been further stated that the present claim of the workmen is not maintainable because the same has not been properly espoused as required under the provisions of the ID Act.
14. It has been further stated that the claimants have failed to issue a proper and valid demand notice before approaching this court and have not complied with the procedure, required to be adopted as an essential ingredient and that the transfers have been done in accordance with the conditions of the employment and the same is legal, valid and justified in all respects and that the appropriate Government has made the reference in a LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 6/25 mechanical manner without application of mind. It has been further stated that it is well settled that the jurisdiction to deal with the matter is only at the Labour Court/Tribunal at the respective place where the claimants have been transferred and the present reference before this court is bad in law being without jurisdiction.
15. It has been denied by the management in their written statement that the claimants are sincere, honest, punctual and that during entire service no memo, charge-sheet or notice etc. was ever issued by the management. It has been further stated that the claimants have been performing their duties and nothing extra ordinary was performed by them. It has been denied that the claimants were reporting every day at the establishment but no work was taken from them. However, it is an admitted fact that the claimants have been receiving their salaries from the management. It has been denied that the management stopped salaries of the claimants from the month of December, 2010 and that the management planned any strategy to force the claimants to leave employment under the pretext of VRS and that the management terminated their services or that the management banned their entry in the premises.
16. It has been specifically denied that Mr. Sandeep Lakra, Manager (HR), Mr. Amit Kaushik and Mr. S.C. Dhingra have given wrong and false assurances before the Conciliation Officer. It has also been denied that the management has not released their salaries. It has been denied that the provisions of Section 33 and 33 A of the ID Act are attracted in the present matter. It has been denied that the transfer of the claimants was LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 7/25 illegal, unfair and unjust. Rest of the contents of the claim have been denied and it has been prayed that the present claim petition be dismissed.
17. Rejoinder has been filed by the workmen to the written statement filed by the management reiterating and reaffirming the stand as taken by the workmen in their statement of claim and denying the contents of the written statement filed by the management.
18. Out of the pleadings of parties, the following issues were framed by the Ld. Predecessor of this court on 15.05.2012 :
1. As per terms of reference.
2. Whether the present reference is against the terms of employment/appointment letter of the claimant? OPM.
3. Whether the present claim is bad because of non espousal?
OPM.
4. Whether the operations of the management has shifted to new Terminal 3 of the IGI Airport? OPM.
5. Relief.
19. Now, coming to the evidence, the workman/claimant Sh. Pawan Singh Negi has examined himself as WW-1 and in his evidence by way of affidavit Ex.WW1/A on record, he has reiterated and reaffirmed the stand as taken by the WW-1 in the statement of claim. He has filed on record copy of the letter dated 03.05.2011 as Ex.WW1/1, copy of Annexure D as Ex.WW1/2, copy of reply dated 11.05.2011 as Ex.WW1/3 (colly) and copy of complaint dated 08.02.2011 as Mark A. LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 8/25
20. The workman/claimant Sh. Al Umar Qureshi has examined himself as WW-2 and in his evidence by way of affidavit Ex.WW2/A on record, he has reiterated and reaffirmed the stand as taken by the WW-2 in the statement of claim. He has filed on record copy of letter dated 03.05.2011 and Contract of Probationary employment dated 12.01.1995 as Ex.WW2/1, copy of reply dated 11.05.2011 as Ex.WW2/2 and he has also relied upon the documents which have already been exhibited as Ex.WW1/2 and marked as Mark A in the statement of WW-1.
21. The workman/claimant Sh. Nand Lal Yadav has examined himself as WW-3 and in his evidence by way of affidavit Ex.WW3/A on record, he has reiterated and reaffirmed the stand as taken by the WW-3 in the statement of claim. He has filed on record copy of letter dated 03.05.2011 as Ex.WW3/1 and copy of reply dated 11.05.2011as Ex.WW3/2 and he has also relied upon the document which has already been exhibited as Ex.WW1/1 in the statement of WW-1.
22. The workman/claimant Sh. Ratan Ram Arya has examined himself as WW-4 and in his evidence by way of affidavit Ex.WW4/A on record, he has reiterated and reaffirmed the stand as taken by the WW-4 in the statement of claim. He has filed on record copy of letter dated 03.05.2011 as Ex.WW4/1 and copy of reply dated 11.05.2011 as Ex.WW4/2 and he has also relied upon the documents which have already been exhibited as Ex.WW1/2 and marked as Mark A in the statement of WW-1.
23. The workman/claimant Sh. Diwan Ram has examined himself as WW-5 and in his evidence by way of affidavit LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 9/25 Ex.WW5/A on record, he has reiterated and reaffirmed the stand as taken by the WW-5 in the statement of claim. He has filed on record copy of letter dated 03.05.2011 as Ex.WW5/1 (also exhibited as Ex.WW5/M3) and copy of reply dated 11.05.2011 as Ex.WW5/2 and he has also relied upon the documents which have already been exhibited as Ex.WW1/2 and marked as Mark A in the statement of WW-1.
24. The workman/claimant Sh. Vikas Khanna has examined himself as WW-6 and in his evidence by way of affidavit Ex.WW6/A on record, he has reiterated and reaffirmed the stand as taken by the WW-6 in the statement of claim. He has filed on record copy of letter dated 03.05.2011 as Ex.WW6/1 and copy of reply dated 11.05.2011 as Ex.WW6/2 and he has also relied upon the documents which have already been exhibited as Ex.WW1/2 and marked as Mark A in the statement of WW-1.
25. The workman/claimant Sh. Jitender Gupta has examined himself as WW-7 and in his evidence by way of affidavit Ex.WW7/A on record, he has reiterated and reaffirmed the stand as taken by the WW-7 in the statement of claim. He has filed on record salary slip of June, 2012 as Ex.WW7/1, salary slip of May, 2012 as Ex.WW7/2 and offer of training letter dated 28.11.1994 as Ex.WW7/3.
26. The workman/claimant Sh. Putal Mandal has examined himself as WW-8 and in his evidence by way of affidavit Ex.WW8/A on record, he has reiterated and reaffirmed the stand as taken by the WW-8 in the statement of claim. He has filed on record contract of probationary employment dated 18.09.1987 as LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 10/25 Ex.WW8/1 (colly), salary slip of February, 2014 as Ex.WW8/2, salary slip of August, 2010 as Ex.WW8/3, letter dated 03.05.2011 as Ex.WW8/4, Reply dated 11.05.2011 as Ex.WW8/5 and letter of confirmation in service dated 30.03.1988 as Ex.WW8/6.
27. The workman/claimant Sh. Madan Lal has examined himself as WW-9 and in his evidence by way of affidavit Ex.WW9/A on record, he has reiterated and reaffirmed the stand as taken by the WW-9 in the statement of claim. He has filed on record salary slip of June, 2013 as Ex.WW9/1, salary slip of July, 2013 as Ex.WW9/2, salary slip 2010 as Ex.WW9/3 and contract of probationary employment dated 01.09.1981 as Ex.WW9/4.
28. The workman/claimant Sh. Lok Bahadur has examined himself as WW-11 and in his evidence by way of affidavit Ex.WW11/A on record, he has reiterated and reaffirmed the stand as taken by the WW-11 in the statement of claim. He has filed on record contract of temporary employment for a fixed term dated 08.09.1986 as Ex.WW11/1, contract of probationary employment dated 08.03.1987 as Ex.WW11/2 (colly), letter of confirmation in service dated 08.09.1987 as Ex.WW11/3, letter dated 01.04.1988 as Ex.WW11/4 (colly) and certificate dated 09.02.1995 as Ex.WW11/5.
29. Though, the affidavit of the workman Sh. T.K. Chakraborty is there on record but he has neither tendered his evidence by way of affidavit nor he has been cross-examined. I have gone through the order-sheets passed by the Ld. Predecessor of this court also which reflect that the evidence on LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 11/25 behalf of the workmen was closed on 01.09.2014 by the statement of Sh. Vaibhav Saha, Ld. AR on behalf of the workmen which was recorded by the Ld. Predecessor of this court on 01.09.2014.
30. The management examined its HR Executive of the company Mr. Ashish Gupta as MW-1 and in his evidence by way of affidavit Ex.MW1/A on record, he has reiterated and reaffirmed the stand as taken by the management in the written statement.
31. The management again examined its HR Executive of the company Mr. Ashish Gupta as MW-1 and in his additional evidence by way of affidavit Ex.MW1/B on record, he has reiterated and reaffirmed the stand as taken by the management in the written statement. He has filed on record copy of contract of probationary employment dated 08.12.1998 of Pawan Singh Negi as Ex.WW1/M-1, copy of letter of confirmation in service dated 08.06.1999 of Pawan Singh Negi as Ex.WW1/M-2 (copy of contract of probationary employment dated 01.04.1994 of Vikas Khanna as Ex.WW1/M-2), copy of letter dated 06.05.2011 written to the management regarding request of imprest money on account of transfer of Pawan Singh Negi as Ex.WW1/M-3, copy of contract of probationary employment dated 12.01.1995 of Al Umar Qureshi as Ex.WW2/M-1, copy of letter of confirmation in service dated 12.10.1995 of Al Umar Qureshi as Ex.WW2/M-2, copy of letter dated 06.05.2011 written to the management regarding request of imprest money on account of transfer of Al Umar Qureshi as Ex.WW2/M-3, copy of contract of probationary employment dated 29.03.1993 of Nand Lal LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 12/25 Yadav as Ex.WW3/M-1, copy of letter of confirmation in service dated 29.09.1993 of Nand Lal Yadav as Ex.WW3/M-2, copy of letter dated 06.05.2011 written to the management regarding request of imprest money on account of transfer of Nand Lal Yadav as Ex.WW3/M-3, copy of contract of probationary employment dated 18.09.1987 of Ratan Ram Arya as Ex.WW4/M-1, copy of letter of confirmation in service dated 18.03.1988 of Ratan Ram Arya as Ex.WW4/M-2, copy of letter dated 06.05.2011 written to the management regarding request of imprest money on account of transfer of Ratan Ram Arya as Ex.WW4/M-3, copy of contract of probationary employment dated 28.02.1987 of Diwan Ram as Ex.WW5/M-1, copy of letter of confirmation in service dated 28.08.1987 of Diwan Ram as Ex.WW5/M-2, copy of letter dated 06.05.2011 written to the management regarding request of imprest money on account of transfer of Diwan Ram Arya Ex.WW5/M-3, copy of contract of probationary employment dated 23.11.1993 of Vikas Khanna as Ex.WW6/M-1, copy of contract of probationary employment undated of Vikas Khanna as Ex.WW6/M-2, copy of letter dated 03.05.2011 of Vikas Khanna as Ex.WW6/M-3 etc.
32. Both the parties have filed on record their written final arguments. I have carefully gone through the entire material available on record including the written final arguments filed on record by both the parties. I have also heard the final arguments addressed at bar by both the parties.
33. My findings upon the issues as framed by the Ld. Predecessor of this court on 15.05.2012 are as under :
Issue No. 1 and 2 :LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 13/25
34. Both these issues are taken up together as the same are connected inter-se and overlap each other.
35. In the written final arguments filed on record by the workmen, it has been argued that the transfer of the workman Sh. T.K. Chakraborty from Delhi to Aurangabad in 2011 was by way of victimization, though, in April, 2013, the workman Sh. T.K. Chakraborty was again transferred to Dwarka, New Delhi. It has been further stated that the workman Sh. T.K. Chakraborty has retired in November, 2017. It has been further argued that the transfers of the workmen were done by the management with the malafide intention to harass the workmen and with a view to force the workmen to leave the employment under the pretext of taking voluntary retirement scheme. It has been further argued that the workmen were never transferred from Hotel Maurya, ITC Diplomatic Enclave, Delhi since the dates of their appointments and the transfers which were done were with the malafide intention with a view to terminate the services of the workmen. It has been further argued that certain benefits have not been given by the management to the workmen. The workmen in the written final arguments have claimed the amount of Rs.2,23,200/- on account of Annual Increment with effect from April 2010 to November 2017, Rs.40,000/- (Rs. 500/- per month x 80 months) on account of Variable Dearness Allowance (VDA) from April, 2011 to November, 2017, Rs.3,24,000/- on account of Long Term Agreement (LTA) (Rs.4,000/- per month x 81 months) from March, 2011 to November, 2017, Rs.5,000/- on account of Imprest Money (When transferred to Aurangabad) as they deducted from salary, Rs.42,000/- (Rs.6,000/- x 7 years) on account of LTA (Leave Travel Allowance, Rs.1,80,000/-
LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 14/25(Rs.1,500/- per month an average x 120 months as it depend on Sales which is distributed away staff) on account of Service Charges 10% may not be given from 2008 to 2017, Rs.35,000/- (Rs.5,000/- per year x 7 years) on account of Leave Encashment (differences) from 2011 to 2017, Rs.25,000/- (Even experience certificate is also not issued for 30 years) on account of Long Service Award, Rs.2,00,000/- on account of Final Settlement approx., Appraisal also not given, 2010-2014, Increment letter also not given from 2010 to 2017 and thus, the workman Sh. T.K. Chakraborty has claimed the amount of Rs.10,99,200/- in total.
36. Whereas, on the other hand, the management in the written final arguments filed on record, has argued that Clause II of the Annexure A to the appointment letter categorically states that the job of the workmen was transferable either in India or abroad and the workmen were working with the management in terms of the contract of the employment which has been categorically admitted by the claimants. It has been further argued that the claimants were transferred in accordance with the contract of the employment duly agreed upon and accepted by them and there was no change in the condition of service of the claimants. It has been further argued that the Labour Court cannot travel beyond the terms of reference. It has been further argued that the claim filed by the workmen is not maintainable at all.
37. First of all, it has to be seen that Sh. S.S. Pawar, Ld. AR on behalf of the workmen got his statement recorded on 29.11.2021 mentioning therein that initially, the claim was filed for 12 LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 15/25 workmen but he was pressing his claim for the two workmen only namely Mr. T.K. Chakraborty and Mr. Madan Lal and rest of the workmen were already pursuing their separate claims. On the same date i.e. on 29.11.2021, Mr. Vikas Khanna, who was originally one of the claimants also got recorded his statement to the effect that he was withdrawing his claim against the management and his claim be dismissed as withdrawn. Consequently, the claim of Mr. Vikas Khanna was dismissed as withdrawn.
38. As such, the fact remains that the present claim is being considered only for two of the workmen namely Mr. T.K. Chakraborty and Mr. Madan Lal.
39. As stated hereinabove, though, the affidavit of Mr. T.K. Chakraborty is already there on record but he has neither tendered his evidence by way of affidavit nor he has been cross- examined. As such, there is no evidence on behalf of the claimant namely Mr. T.K. Chakraborty. So far as the other claimant Mr. Madan Lal is concerned, he has examined himself as WW-9. The claimants have examined as many as ten witnesses in support of their claim, who are none other but the claimants themselves. As such, I would like to discuss the evidence led by the claimant namely Sh. Pawan Singh Negi, who has examined himself as WW-1 and the claimant Sh. Madan Lal, who has examined himself as WW-9.
40. I have gone through the testimonies of all the witnesses examined in the present matter and the affidavits and cross- examinations of all the workmen are on the same lines.
LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 16/2541. The claimant Sh. Pawan Singh Negi, in the cross- examination, has admitted that he was issued letter of appointment by the company at the time of his appointment. He further admits that he had been provided ESI, PF and all other facilities by the company. He further admits that he was also provided the leave facilities by the company. He has admitted his appointment letter which has been exhibited as Ex.WW1/M1. He has admitted that he had received the letter of transfer dated 03.05.2011 from the management before the Labour Department. He has again admitted that he had written his request for imprest money in his account vide letter dated 06.05.2011 Ex.WW1/3 on record which bears his signatures at point A. He again admits that he has been performing his duties at the transferred place and he has been getting his salary and wages. He admits it to be correct that he had filed proceedings before the Labour Department regarding the non-receipt of salary. He admits it to be correct that in the year 2011, the operations of Terminal 1 were shifted to Terminal 2. He further states that he does not know as to what has been written in his affidavit Ex.WW1/A.
42. He further states that he cannot tell if his services were transferred in accordance with the terms and conditions of the employment mentioned in the letter of appointment Ex.WW1/M1 issued to him by the company. He admits it to be correct that on 25.04.2011, he had agreed to join at the above transferred placed, if the joining time and imprest money to meet the travel expenses were given to him. He admits it to be correct that the company had paid him his due salary. He admits it to be correct that his services were transferred from Delhi to Badodra and Jaipur and that his services wee never terminated by the LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 17/25 management.
43. Similarly, the claimant Sh. Madan Lal, in the cross- examination, admits that he was issued the appointment letter dated 01.09.1981 exhibited as Ex.WW9/4. He also admits that he was provided the ESI, PF and other facilities by the company. He also admits that he was provided leave facilities as well by the company. He admits that he had received the letter of transfer dated 03.05.2011 from the management before the Labour Department. He admits it to be correct that he had written his request for transfer of imprest money in his account vide letter dated 06.05.2011 exhibited as Ex.WW9/M1. He admits it to be correct that he had been performing his duties at the transferred place and had been getting his salary and wages. He admits it to be correct that he filed the proceedings before the Labour Department with regard to the non-receipt of his salary. He admits it to be correct that in the year 2011, the operations of Terminal 1 were shifted to Terminal 2.
44. He further states that he cannot tell if his services were transferred in accordance with the terms and conditions of employment mentioned in the letter of appointment Ex.WW8/4 issued to him by the company. He admits it to be correct that on 25.04.2011, he had agreed to join his duties at the transferred place, if the joining time and imprest money to meet the travel expenses were given to him. He admits it to be correct that his services were transferred from Delhi to Baroda and that his services were never terminated by the management.
45. As stated hereinabove, the cross-examination of all the LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 18/25 rest of the claimants is also on the same lines verbatim on record.
46. All the workmen have categorically admitted their letters of appointment and their letters of confirmation in services. WWW1/M1, which is the letter of appointment of the claimant Sh. Pawan Singh Negi, is there on record. Clause 2 of the Annexure A to the above said letter Ex.WW1/M1 on record states as under :
2. It should be clearly understood that you may from time to time be transferred to any of the Company's divisions or branches or any other Company allied or subsidiary to or associated with the Company in India or Abroad.
47. A perusal of the above said Clause 2 of the appointment letter which has been categorically admitted by all the claimants does not leave an iota of doubt in the mind of the court that it was one of the service conditions of the workmen that he was liable to be transferred from time-to-time to any of the companies, divisions or branches or any other company allied or subsidiary to or associated with the company not only in India but abroad also. As stated hereinabove, the cross-examination of WW-1 and WW-9 as well clearly bring home the point that the above said transfer letters and the confirmation letters have been categorically admitted by the workmen. The workmen themselves have written the letters to the management to deposit imprest money in their accounts on account of the transfers. The workmen again categorically admitted that they were working at the transferred places and they were getting not only their salaries but their wages also. The workmen do not deny that their services were transferred in accordance with the terms and conditions of employment mentioned in their respective letters of LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 19/25 appointment. As such, I have no hesitation to hold that the cross- examination of workmen themselves is sufficient in itself to demolish the entire case of the workmen.
48. Furthermore, it has to be seen that MW-1 Sh. Ashish Gupta, who is Manager (HR) of the management has placed on record the Standing Orders in the form of Ex.MW1/W1. The Standing Orders are binding upon the management and the workmen also as is the settled law. Clause 38 of the Standing Orders states as under :
"38. A workman may be transferred according to exigencies of work from one shop or department to another or from one station to another or from one establishment to another under the same employer.
Provided that the wages, grade, continuity of service and other condition of service of the workman are not adversely affected by such transfer.
Provided further that a workman is transferred from one job to another, which is capable of doing, and provided also that where the transfer involves moving from one State to another or going for abroad such transfer shall take place, either with the consent of the workman or where there is specific provision to that effect in the letter of appointment, and provided also that (i) reasonable notice is given to such workman and (ii) reasonable joining time is allowed in case of transfers from one station to another. The workman concerned shall be paid travelling allowance including the transport charges, and fifty percent thereof to meet incidental charges."
49. A perusal of the above said Clause 38 of the Standing Orders Ex.MW1W1 clearly stipulates that the workmen may be transferred according to the exigencies of work from one shop or department to the other or from one station to the other or from one establishment to the other under the same employer. As such, LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 20/25 I have no hesitation to hold that the transfer clause was a service condition of the workmen and it cannot be said that the transfer of the workmen from Delhi to other places was by way of victimization or by way of punishment.
50. MW-1, in the cross-examination, has reiterated that the transfer of the eleven persons from this place to different locations was done in accordance with the transfer policy of the management. During the entire cross-examination of MW-1, to my mind, nothing has come out so as to discredit the case of the management.
51. It has to be seen that in the judgement titled as Mukand Ltd. vs. Mukand Staff & Officers Association cited as III (2004) SLT 620, wherein, the Hon'ble Supreme Court of India in Para No. 23 has held as under :
"23. We have already referred to the orders of Reference dated 17.02.1993 in paragraph supra. The dispute referred to by the orders of Reference is only in respect of workmen employed by the appellant-Company. It is, therefore, clear that the Tribunal, being a creature of the Reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the orders of Reference."
52. On the basis of the ratio of the above said judgement and other judgements also, Ld. AR on behalf of the management has argued that the Labour Court cannot travel beyond the terms of reference. I am of the opinion that there is considerable force in the above said submissions of the Ld. AR on behalf of the management.
LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 21/2553. In the case in hand, the reference was received on 07.07.2011 with the terms of reference mentioned hereinabove. The terms of reference squarely states that whether the transfer of Sh. T.K. Chakraborty and eleven others whose details were given in Annexure A was a change in the service condition and if so, to what relief were the workmen entitled and what directions were necessary in this respect.
54. Annexure A to the reference contains the name, father's name, designation, date of joining and the salary of the workmen only. The Corrigendum has also been received on 18.10.2011 which pertains to the rectification in the date of the appointment of the claimant namely Sh. T.K. Chakraborty to the effect that his date of joining be read as 01.01.1988 which was wrongly mentioned as 01.01.2008.
55. As such, the reference pertains only to the salary aspect of the workmen and not to the other aspects. In the claim petition which has been placed before this court, the workmen have mentioned that they have not been paid their pending salaries and other legal dues. In the evidence by way of affidavit of Sh. Madan Lal, who has examined himself as WW-9 and in the evidence by way of affidavits of the other claimants also, break- up of the alleged other dues has not been given or mentioned at all. For the first time, in the written final arguments, the claimants have mentioned that they are entitled for an amount of Rs.10,99,200/- on account of annual increment, variable dearness allowance, long term agreement, imprest money, leave travel allowance, service charges, leave encashment, long service award and final settlement etc. LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 22/25
56. I am of the opinion that the above said claim on account of the above said details is not maintainable at all because nowhere prior to the written final arguments, the break-up of the claim has been given by the claimants and moreover, the same is beyond the terms of reference.
57. In the light of the above said discussion, I have no hesitation to hold that the management has been able to prove Issue No. 2 in its favour and accordingly, Issue No. 2 is decided in favour of the management and against the workmen. So far as Issue No. 1 is concerned, the reference is answered accordingly against the workmen.
58. Issue No. 3 :
The onus to prove this issue has been placed upon the management. The management has argued that the present claim is not covered under Section 2 A of the ID Act because there is no espousal. The management in this respect has relied upon the ratio of the authority titled as Hira Singh Etc. Vs. Management M/s. Hotel Samrat & Ors. in LPA No. 171 & LPA No. 172 of 2007 decided in May, 2008, wherein the Hon'ble Delhi High Court has held in Para 16 as under :
"16. Under Section 10 of the Industrial Dispute Act, an appropriate Government may refer the industrial dispute to a Labour Court or an Industrial Tribunal.
LPA 171 & LPA 172 OF 2007 Page 12 The necessary pre-requisite is that there has to be an industrial dispute before it is referred. Industrial dispute is defined in Section 2(k) of the Industrial Disputes Act. These disputes before the same could be referred, require espousal. Only exception is provided in respect of those industrial disputes which are governed by Section 2 A of LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 23/25 the Industrial Disputes Act.
It was a common case of the parties that the issue of regularization is not covered by Section 2 A of the Industrial Disputes Act and therefore, it needed espousal of the Union. The moment we come to the conclusion that there was no proper espousal, the Tribunal will not have necessary jurisdiction to adjudicate such a dispute as in the eyes of law there would not be any industrial dispute and, therefore, reference itself was bad in law. It was, therefore, not even proper on the part of the Labour Court to proceed further and hold that the appellant was entitled to be regularized. That Award is clearly without jurisdiction."
59. It has to be seen that the workmen in the present claim have stated that they were transferred outside Delhi by way of victimization and by way of punishment with a view to terminate their services. It has been argued that there was no need of any espousal in the facts and circumstances of the present matter. The Hon'ble Supreme Court of India in the authority titled as Chemicals and Fibres of India Ltd. Vs. D.G. Bhoir & Ors. cited as (1975) INSC 126, has held as under :
"It was to deal with the contingency that section 2A was enacted. We would therefore be justified in concluding that in enacting section 2A the intention of the legislature was that an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated should be given relief without it being necessary for the relationship between the employer and the whole 419 body of employees being attracted to that dispute and the dispute becoming a generalised one between labour on the one hand and the employer on the other. If this point of view is kept clear in the solution of the problem before us becomes simple".
60. In the light of the ratio of the above said authority of the Hon'ble Supreme Court of India, I am of the opinion that the LIR No. 3782/16 T.K. Chakraborty & Ors. Vs. ITC Maurya Purt Lounge Page 24/25 case of claimants as per the allegations as contained in the claim petition is maintainable as the same cannot be said to be bad because of non-espousal. Accordingly, Issue No. 3 is decided against the management.
Issue No. 4 :
61. The onus to prove this issue has been again placed upon the management. It has to be seen that in the cross-examination, the workmen have admitted that in the year 2011, the operations of the management at Terminal no. 1 were shifted to the Terminal No. 2.
62. As such, in view of the admissions as contained in the cross-examination of the workmen, to my mind, the management has been able to prove this issue. Accordingly, Issue No. 4 is decided in favour of the management.
63. Issue No. 5 i.e. Relief :
In the light of my findings upon Issue No. 1 and Issue No. 2, the claim of the claimants is hereby dismissed. Reference is answered accordingly.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and the Judicial File be consigned to Record Room as per rules.
ANNOUNCED IN OPEN COURT Digitally signed
RAJ
on 11th day of May, 2022
by RAJ KUMAR
KUMAR Date: 2022.05.13
12:47:50 +0530
(Raj Kumar)
Presiding Officer, Labour Court-III
Rouse Avenue Courts, New Delhi.
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