Allahabad High Court
M/S Super Cassettes Industries Pvt. ... vs State Of U.P. And 2 Others on 5 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 339
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 38 Reserved A.F.R. Case :- WRIT - C No. - 52897 of 2017 Petitioner :- M/S Super Cassettes Industries Pvt. Ltd. Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Diptiman Singh Counsel for Respondent :- C.S.C.,Shekhar Srivastava Hon'ble J.J. Munir,J.
1. This writ petition is directed against an award of the Presiding Officer, Labour Court, U.P., NOIDA, Gautam Budh Nagar, dated 02.08.2017 (published on 04.10.2017) passed in Adjudication Case no.35 of 2008. The aforesaid Adjudication Case commenced on the determination of Conciliation proceedings by the Additional Labour Commissioner, Ghaziabad vide order dated 08.07.1996 made in C.P. Case no.155 of 1996. Based on the said order made by the Additional Labour Commissioner, an industrial dispute, under Section 4-K of the U.P. Industrial Disputes Act, 1947 (for short, the Act) in the following terms was referred vide order dated 08.07.1996 to the adjudication of the Labour Court, Ist, Ghaziabad:
Whether act of the Employers in terminating the services of their workman, Shailesh Rai son of Sri O.P. Sangram, Operator w.e.f. 10.02.1996 is lawful and/ or valid? If not, to what benefit/ compensation/ relief is the concerned workman entitled; with what other particulars and with effect from what date?
2. Upon receipt of reference by the Labour Court, the case was registered as Adjudication Case no.258 of 1997 on the file of the Labour Court, Ghaziabad. The case aforesaid was registered between the third respondent, Shailesh Rai, represented by the Secretary of the Workers' Union (hereinafter referred to as the workman) and the petitioner here, that is to say, M/s. Super Cassettes Industries Private Limited (hereinafter referred to as the Employers). Notice was issued to both parties, whereupon the workman filed his written statement, dated 01.09.1997. The Employers filed their written statement, a copy of which is on record as Annexure-8 to the writ petition.
3. The course of proceedings show that rejoinder statement, dated 26.10.1998 was filed on behalf of the workman, and likewise, a rejoinder statement was filed on behalf of the Employers, dated 16.12.2002. The workman filed documents in support of his claim, numbering nineteen through a list of documents, dated 02.12.1998. The Employers for their part also filed documents through a list dated 06.05.2003, bearing paper no. 10-B(i), carrying eight documents with the list aforesaid, including a mention that the Employers seek leave of the Court to file additional documents at any stage of the proceedings. An undertaking was also made part of the list of documents that the original/ carbon copies of the documents would be produced at the stage of evidence, or as and when required/ directed by the Court.
4. The workman in support of his case examined himself as a witness, WW-1 on 25.08.2006 and was cross-examined by the Employers' representative. The workman was further cross-examined after an adjournment by the Employers' representative. It appears that after the workman's cross-examination was over, the Employers served a notice of closure of their Unit, where the workman was employed, that is to say, the Employers' Unit at C-26-27, Sector III, NOIDA, District Gautam Budh Nagar, U.P. upon the State Government through the Secretary in the Department of Labour Welfare, the District Magistrate, Gautam Budh Nagar, U.P., the Labour Commissioner, U.P., Kanpur, the Deputy Labour Commissioner, NOIDA, U.P., the Director of Factories, U.P., Kanpur, besides a host of other Authorities. They also pasted the closure notice on their Notice-Board. About this time, another development that took place was that the proceedings of Adjudication Case no.258 of 1997, that were in progress before the Labour Court-I, U.P., Ghaziabad were transferred to the Labour Court, NOIDA, Gautam Budh Nagar. Before the Labour Court, U.P., NOIDA, Gautam Budh Nagar, Adjudication Case no.258 of 1997 was renumbered as Adjudication Case no.35 of 2008. A notice in this regard was issued to the parties by the Labour Court, dated 22.10.2008 directing the parties to appear before the Labour Court at NOIDA, Gautam Budh Nagar for further proceedings on 17.11.2008.
5. The Employers in the resumed proceedings before the Labour Court, NOIDA, Gautam Budh Nagar, examined one Puneet Jain, Deputy General Manager (P&A) of the Employers' Unit at Gautam Budh Nagar in support of their case, who was examined as EW-1 on 02.12.2008. He was cross-examined on 02.12.2008 by the workman's authorized representative. The cross-examination was deferred and concluded on an adjourned date. In view of the closure of the Factory/ Unit where the workman was employed, the Employers moved an application seeking amendment to their written statement by adding paragraph 20 thereto, in the following terms:
"20. That the factory had been closed down finally w.e.f. 26.12.2007 and there is neither any activities of production and no dues payable to ex-employee."
6. The aforesaid amendment was sought under Rule 12-E of the U.P. Industrial Disputes Rules, 1957. Also, along with the affidavit accompanying the application was annexed as Annexure-A, a copy of the notice of closure, dated 26.12.2007, that the Employers sought to bring on record as a document in support of the amended plea.
7. The Labour Court by means of its impugned judgment and award answered the reference in favour of the workman holding that termination of his services by the Employers w.e.f. 10.02.1996 was unlawful. It was further awarded that the workman is entitled to reinstatement, together with back-wages with effect from the date of his unlawful termination and other consequential benefits.
8. Aggrieved, the Employers have instituted the present writ petition.
9. A perusal of the workman's case set out in the written statement shows that he claims that the Employers are an electronics industry who own a number of factories/ units at NOIDA, Greater NOIDA. The Employers for the purpose of activities of production and sale employ workmen of various categories in large numbers. The workman has pleaded that he was employed by an oral order w.e.f. 01.08.1990 on the post of AC Operator on a permanent basis. During the period of his service, his work and conduct were appreciated by the Employers. The workman, however, protested against illegal reduction in the available facilities, like free tea, provision of some food and free transport etc., and, in furtherance of his protest, participated in a lawful strike. The Employers on that account are claimed to have harboured malice and ill-will against the workman. It is the workman's further case that the Employers mala fide demanded the workman's resignation from his permanent service; and, on protest by the workman, they suspended him on baseless, false and trumped up charges, all of which were contrary to the record and evidence. In the disciplinary proceedings that ensued, the charges could not be established. Thereupon, the Employers again demanded the workman's resignation. The workman declined to resign. Since the charges were not established at the inquiry, the Employers revoked the workman's suspension, but did not permit him to join or assign him duties. When the workman protested, the Employers transferred him unlawfully to a very distant Unit of theirs, located at Golden Chariot Studio, Plot No.B-14, New Link Road, Behind Oshiwada, Andheri (West), Bombay-400058; and, through this unlawful transfer, they terminated the workman's services with effect from 10.02.1996.
10. It is also pleaded that the workmen who are juniors have been retained in regular service and fresh recruitment to the workman's post has been made illegally. It was also pleaded that the Employers have work available with them, that the workman was earlier discharging. It is also asserted that the Employers before terminating the workman's services did not serve him any notice or tender him notice pay, or retrenchment allowance. There is a specific plea that despite effort to secure suitable employment, the workman has been unsuccessful at it.
11. The Employers in their written statement pleaded that they are an industrial establishment registered under the Factories Act, and are engaged in manufacture as well as sale of electronic products. It is acknowledged that the workman was appointed as an Operator AC Plant w.e.f. 01.08.1990. The Employers in paragraphs 3 to 11 have raised preliminary objections, variously said, but the substance of it all is that there was no industrial dispute in existence on 10.02.1996, that could be referred to the Labour Court. It is asserted that there was no cause of action on 10.02.1996 which the order of reference regards as an industrial dispute, inasmuch as, on the said date the relationship of master and servant between the Employers and workman was subsisting. The reference order made was, therefore, infructuous and void. The basis of this preliminary objection, on facts is set out in paragraph 9 of the written statement, that reads to the following effect:
"(9) That the Opposite Party never terminated the services of the applicant. In fact the Opposite Party in order to reorganise/ restructive the working of the other Units/ branches the services of the experienced persons were required. Thus applicant being are of the experienced persons was accordingly deputed to another unit/ branch of the Opposite Party namely M/s. Super Cassettes Industries, Golden Chariot, Plot No. B-14, New Link Road, Behind Oshiwada, Andheri West Bombay (Mumbai) as per the requirements of business and administrative exigencies, vide letter dated 10.02.1996. The applicant was required to report at the assigned place of working on 19.02.1996 after availing the joining time. The letter dated 10.02.1996 was duly received by the applicant on 16.02.1996 without any objection or demur. Thus the question of termination of services on 10.02.1996 did not arise at all. The reference as such is bad in law, hence not maintainable."
12. It is on the merits pleaded by the Employers that due to administrative exigencies and requirement of work/ business, the workman was deputed to another Unit/ Factory of the Employers vide letter dated 10.02.1996. The workman vide the aforesaid letter was assigned his place of work at Bombay (Mumbai), where he was required to report on 19.02.1996, after availing joining time. It is also asserted that the workman apart from his monthly salary was also offered outstation allowance at the rate of Rs.250/- per month, besides travelling expenses/ train fare, in order to enable him to report for duty at the assigned place at Bombay (Mumbai). Also, the Employers' case is that the workman received the letter dated 10.02.1996 without any objection or demur, on 16.02.1996. It is pleaded that the relationship of master and servant was, thus, existing between the Employers and the workman on 10.02.1996, and even thereafter. It is also the Employers' case that they never terminated the workman's services on the alleged date or thereafter. It is asserted that to the contrary, in disregard of the bona fide and lawful orders of the Employers, the workman failed to report for duty at the station of transfer/ assigned place of work. It is pleaded also, that the workman has raised this industrial dispute against the Employers alleging termination of his services with effect from 10.02.1996, under some foul advice, as on that date he was in employment. It is also claimed on behalf of the Employers that they have reasons to believe that the workman is gainfully employed elsewhere and is pursuing this industrial dispute under some foul advice, by resort to abuse of process of law.
13. The workman in his rejoinder statement has claimed this transfer to be a contrivance and a device to terminate his services. He claims the transfer to be an instance of unfair labour practice which the Employers took resort to, in order to get rid of him in an insidious manner. The Employers, according to the workman, harboured malice and ill-will against him for his activities in the trade Union. On this account by a stratagem of transferring him to a station as far off as Mumbai, for a low paid workman like him domiciled in Gautam Budh Nagar, they have effectively terminated his services. The transfer, vide order dated 10.02.1996, has been impeached by the workman as unlawful. It appears also that the workman urged before the Labour Court that in the Certified Standing Orders of the Employers, that are said to be certified under the Industrial Employment (Standing Orders) Act, 1946 (for short, the Act of 1946), there is provision for transfer of a workman, but under the Model Standing Orders framed under the Act of 1946, there is no provision for the transfer of a workman from one State to another without his consent. It was also urged before the Labour Court on behalf of the workman that if any provision about 'transfer' has been incorporated in the Certified Standing Orders of the Employers, it would be illegal and not binding on the workman. He relied on authority also in support of the said proposition.
14. On the other hand, the Employers appear to have urged before the Labour Court that there is no provision in the Model Standing Orders, appended to the Schedule to the Industrial Employment (Standing Orders) Central Rules, 1946 (for short, the Rules of 1946) on the subject of transfer, and, therefore, not lawful for the Employers to provide about it in their Certified Standing Orders. It was also urged that the subject of transfer would, therefore, be governed by terms of the order of appointment or by some other contract inter se the parties. Some authorities also appear to have been cited on behalf of the Employers, that transfer is a general incident of service, that can always be invoked. It must be remarked here that the workman was somewhat confounded about the provision regarding transfer, in the Certified Standing Orders of the Employers, evident from his stand before the Labour Court. Likewise, the Employers too were confounded about their stand regarding the provision about transfer in the Certified Standing Orders applicable to them, as also that provided under the Model Standing Orders, on the subject. But, this confusion was not reflected in the parties' stand before this Court. It was all confined to proceedings before the Labour Court.
15. Heard Shri Diptiman Singh, learned Counsel for the Employers and Shri Shekhar Srivastava, learned Counsel for the workman.
16. A perusal of the impugned award shows that the Labour Court has looked into the evidence to conclude in substance that the Employer, in the first instance, suspended the workman vide order dated 27.04.1995 on charges, and, initiated disciplinary proceedings against him. However, in the disciplinary proceedings, those charges could not be established. The Employer, thereafter reinstated the workman in service vide order dated 10.02.1996, considering that the charges could not be established, and also adopting a benevolent approach in consideration of the workman's good service record. The Labour Court has, however, held that by an order of the same day i.e 10.02.1996 when the workman was reinstated, the Employers transferred him to a unit located far away from Noida at Mumbai; that the Labour Court upon evaluation of the two orders dated 10.02.1996, one revoking the workman's suspension, and the other transferring him to a far off unit, located at Mumbai, concluded that the Employers have been persecuting the workman, now and then. They suspended him on charges and initiated disciplinary proceedings. But, when they could not establish the charges in disciplinary proceedings, they revoked the workman's suspension ordered pending inquiry, and contemporaneously with the revocation of suspension, transferred the workman to a distant Unit at Mumbai. The Labour Court has held this act of the Employers to be unfair labour practice within the meaning of Section 2(ra) read with item 7 of the Fifth Schedule of the Industrial Disputes Act, 1947.
17. It is recorded by the Labour Court that the Employers have also said that by not complying the transfer order, the workman has abandoned his post. About this stand, the Labour Court has held that it is not at all tenable. It has also been remarked by the Labour Court that the Employers have not brought to its notice any rule or provision in the Act, to show that the transfer is a part of the workman's service conditions. It has also been held that contrary to the Employers' stand, the Model Standing Orders, 1991 vide Clause 13(6) clearly provide that without the workman's consent, he cannot be transferred from one State to another. It has been concluded, therefore, that the workman's transfer is an instance of unfair labour practice, contrary to law and the rules, where the workman has been illegally transferred by the Employers to a far off unit located at Mumbai. It has also been held that the act of the Employers in not passing a speaking order on the workman's representation against the transfer, the Employer's refusal to take the workman back in employment, the Employer's failure to give the workman a warning to present himself for duties, or to seek his explanation followed by the disciplinary proceedings on charges of unauthorized absence, and, taking the workman's stand about his transfer to be an abandonment of service, amounts to retrenchment with effect from 10.02.1996.
18. It has, particularly, been emphasized by the Labour Court in its findings that the Employer's act in taking the workman to have abandoned service without calling for an explanation, or serving him a chargesheet, or subjecting him to disciplinary proceedings, constitutes illegal retrenchment. It has also been noted by the Labour Court that during the conciliation proceedings, or the hearing before the Labour Court, no proposal has been put forward by the Employers to take back the workman in service. Relying upon an authority of this Court in Jeevan Prasad vs. Labour Court, Kanpur 1999(76) FLR 110 and the decision of their Lordships of the Supreme Court in D.K. Yadav vs. J.M.A. Industries Limited 1993 (67) FLR 111 (SC), it has been held that absence from duty cannot lead to an inference of abandonment. The Labour Court has further held that to infer abandonment would be contrary to the principles of natural justice, and would fall squarely within the definition of retrenchment. The Labour Court has also held that the workman was not engaged in any gainful employment and his casual exertions to earn his livelihood, cannot be equated with gainful employment.
19. The submission of learned counsel for the Employers that after the closure of the unit, where the workman was employed, he cannot be given any relief, has been rejected by the Labour Court, holding that the closure notice on its own terms shows that 23 workman employed in the unit have been adjusted in another unit. There is no justification for the Employers not to do so in the workman's case. The Labour Court has concluded that the services of the workman have been illegally terminated that falls within the definition of retrenchment, and that it has been done in violation of Section 6N of the Act. It has further been held that the workman was not gainfully employed elsewhere, and, that notwithstanding the closure, he is entitled to relief. In accord with these findings, the Labour Court answered the reference in favour of the workman, and, made an award in terms already detailed.
20. The principal issue on which the parties have addressed this Court is: whether in the garb of a transfer order, the services of a workman can be terminated in violation of the Certified Standing Orders?
21. It is submitted by Sri Diptiman Singh, learned Counsel for the Employers that the workman was appointed as an Operator (A.C. Plant), vide appointment letter dated 01.08.1990, drawn up in accordance with the Certified Standing Orders of the Employers. Clause 5 of the appointment letter clearly provides for transfer to any unit of the Employers, wherever it may be located. It is contented on behalf of the Employers that the workman duly received the letter of appointment and did not protest or object to the transfer clause that is an integral part of the workman's conditions of service, spelt out by the letter of appointment.
22. It is submitted further that it is not that the Certified Standing Orders have introduced a service condition about transfer unauthorisedly. Transfer is one of the conditions of service postulated under clause (4) of the 'MODEL STANDING ORDERS ON ADDITIONAL ITEMS APPLICABLE TO ALL INDUSTRIES', detailed in Schedule 1-B to the Rules of 1946. It is pointed out by the learned Counsel for the Employers that the only restriction under clause (4) of the Model Standing Orders, carried in Schedule 1-B, last mentioned is that such transfer, in case of an inter-State transfer, can either take place with the consent of the workman, or in case there is a specific provision to that effect in the workman's appointment letter. The transfer when made in either of two contingencies is also subject to reasonable notice to the workman and allowance of reasonable time to join at the other station. The workman is also entitled to receive travelling allowance, including transport charges etc.
23. It is pointed out by Sri Diptiman Singh, learned counsel for the Employers that the transfer order was duly received by the workman on 16.02.1996. The transfer order dated 10.02.1996 is in keeping with the provisions of Clause (4) of the Model Standing Orders set out in Schedule 1-B to the Rules of the 1946, inasmuch as the letter of appointment of the workman specifically provides for a transfer to any unit of the Employers, at whatever place located. Also, the Certified Standing Orders of the Employers provide for an inter-State transfer in keeping with the Model Standing Orders, last mentioned. It is submitted, therefore, that the workman cannot really say that he has an industrial dispute to raise about his transfer.
24. It is also urged on behalf of the Employers that no dispute regarding the validity of transfer was referred to the Labour Court. Instead, the workman moved an application under Section 2-A of the Act before the Conciliation Officer, dubbing his transfer as retrenchment. In this connection, learned Counsel for the Employers has drawn the attention of the Court to the workman's application, dated 29.03.1996, which is on record as Annexure-5 to the writ petition. It is pointed out that in paragraph 1-ग it is categorically urged that the workman's services have been terminated by way of retrenchment with effect from 10.02.1996, which in fact is the date of the workman's transfer.
25. It is submitted that reference has been made under Section 4-K of the Act vide order dated 08.07.1996, relating to termination of the workman's services by the Employers on 10.02.1996. The reference order does not at all speak about the validity of transfer to be the subject matter. In this connection, learned Counsel for the Employers has drawn the attention of the Court to the workman's written statement, particularly, the averments in paragraphs 4 and 5, about which it is said that the case pleaded by the workman is one of illegal transfer.
26. It is also submitted by the learned Counsel for the Employers that they raised a preliminary objection in their written statement regarding the maintainability of the reference on ground that the workman's services were never terminated. They averred that the master and servant relationship continued between the Employers and the workman on 10.02.1996 and even thereafter, inasmuch as, on 10.02.1996 the workman was transferred, but not retrenched, or his services terminated. In this connection, it must be remarked that the relevant paragraph being no.9 of the written statement filed by the Employers has been extracted hereinabove, on the basis of which in the togetherness with pleadings in paragraphs nos.3, 4, 5, 6, 7 & 8 of the written statement aforesaid, the Employers have come up with this plea that the reference is infructuous and void; or so to speak, there was no industrial dispute in existence when the reference was made.
27. In support of the aforesaid contention, Sri Diptiman Singh, learned Counsel for the Employers has relied upon an unreported decision of this Court in Writ - C No.689 of 2012, M/S Triveni Engineering and Industrial Ltd. vs. State of U.P. and others, decided on 30.01.2013. He has relied upon the principle in that case and referred to the following paragraph in the judgment:
"From the aforesaid admission of the workman concerned, it is undisputed position that even after alleged oral termination on 29th February, 2008, the employee concerned was called for duty as seasonal clerk in the employment of the petitioner industry and he had actually worked in the crushing season 2008-09 i.e. season following the order dated 29th February, 2008. It is therefore apparent that the services of the workman were not actually terminated on 29th February, 2008. He had been invited to work and he had worked in the crushing season 2008-09. Therefore there being no actual termination of the services of the workman on 29th February, 2008, the reference itself was bad."
28. He submits on the principle of the decision in M/s Triveni Engineering and Industrial Ltd. (supra) that in the present case there was no termination of service ordered by the Employers with effect from 10.02.1996. On the said date, a transfer order alone was passed that was received by the workman on 16.02.1996 requiring him to proceed to Mumbai and join at the station of transfer. Thus, the reference to the effect that termination of service of the workman with effect from 10.02.1996 was unlawful, is bad in law.
29. Learned counsel for the Employers has further placed reliance upon a decision of the Supreme Court in Addisons Paints & Chemicals Ltd. vs. Workmen represented by the Secretary (A.P. & C.) Assistants' Association and another, (2001) 2 SCC 289, in support of an obligation on the workman to have joined the station of transfer, and then raised an industrial dispute about it. He submits that the workman could not have declined to join. Learned counsel for the Employers has placed reliance upon paragraph 6 of the report in Addisons Paints & Chemicals Ltd. (supra), where it is held:
"6. We have heard the parties, read the impugned judgment as well as the judgment of the Single Judge and the award of the Tribunal. In our view, there is no infirmity either in the award or in the judgment of the Single Judge or in the judgment of the Division Bench. The employee Nagarajan had refused to accept the transfer order and refused to report for duty after his transfer. We see no substance in the contention that he was entitled not to join. In our view the dispute could have been raised and agitated even after joining. There was no justification for not reporting for duty. In spite of Nagarajan not having worked he has been awarded 25% of back wages. This was within the discretion of the Court and we see no reason to interfere. At the request of the appellants in CA No. 392 of 1997, they are granted time of eight weeks from today to pay 25% of the back wages."
30. Learned counsel for the Employers has also referred to the decision in Tata Iron and Steel Company Limited vs. State of Jharkhand and others, (2014) 1 SCC 536, in support of his contention that the Labour Court never had a dispute about the validity of the transfer order referred to it, entitling it to decide that dispute. The Labour Court had a dispute referred to it about the validity of the workman's termination, with effect from 10.02.1996 and nothing more. Learned counsel for the Employers has referred to paragraph nos. 11, 16 and 18 of the report in Tata Iron and Steel Company Limited (supra), where it is held:
"11. Having said so, we are of the opinion that the terms of reference are not appropriately worded inasmuch as these terms of reference do not reflect the real dispute between the parties. The reference presupposes that the respondent workmen are the employees of the appellant. The reference also proceeds on the foundation that their services have been "transferred" to M/s Lafarge. On these suppositions the limited scope of adjudication is confined to decide as to whether the appellant is under an obligation to take back these workmen in service. Obviously, it is not reflective of the real dispute between the parties. It not only depicts the version of the respondent workmen, but in fact accepts the same viz. they are the employees of the appellant and mandates the Labour Court/Industrial Tribunal to only decide as to whether the appellant is required to take them back in its fold. On the contrary, as pointed out above, the case set up by the appellant is that it was not the case of transfer of the workmen to M/s Lafarge but their services were taken over by M/s Lafarge which is a different company/entity altogether. As per the appellant they were issued fresh appointment letters by the new employer and the relationship of employer-employee between the appellant and the workmen stood snapped. This version of the appellant goes to the root of the matter. Not only it is not included in the reference, the appellant's right to put it as its defence, as a demurer, is altogether shut and taken away, in the manner the references are worded.
16. The Industrial Tribunal/Labour Court constituted under the Industrial Disputes Act is a creature of that statute. It acquires jurisdiction on the basis of reference made to it. The Tribunal has to confine itself within the scope of the subject-matter of reference and cannot travel beyond the same. This is the view taken by this Court in a number of cases including in National Engg. Industries Ltd. v. State of Rajasthan [(2000) 1 SCC 371 : (2007) 2 SCC (L&S) 264] . It is for this reason that it becomes the bounden duty of the appropriate Government to make the reference appropriately which is reflective of the real/exact nature of "dispute" between the parties.
18. It follows from the above that the reference in the present form is clearly defective as it does not take care of the correct and precise nature of the dispute between the parties. On the contrary, the manner in which the reference is worded shows that it has already been decided that the respondent workmen continue to be the employees of the appellant and further that their services were simply transferred to M/s Lafarge. This shall preclude the appellant to put forth and prove its case as it would deter the Labour Court to go into those issues. It also implies that by presuming so, the appropriate Government has itself decided those contentious issues and assumed the role of an adjudicator which is, otherwise, reserved for the Labour Court/Industrial Tribunal."
31. Sri Shekhar Srivastava, learned Counsel appearing for the workman has urged that the workman has been transferred mala fide in the guise of following the management's policy regarding transfer.
32. Sri Shekhar Srivastava, learned Counsel appearing on behalf of the workman submits that the workman's services could not be terminated in effect, in the garb of a transfer order, when there was no authority with the Employers to transfer the petitioner outside State without his consent, in the absence of a provision to that effect in the Certified Standing Orders applicable to the Employer-establishment, or the presence of a provision in the workman's appointment letter, authorizing such a transfer. He has referred to a decision of the Delhi High Court in Tobu Enterprises Limited vs. Presiding Officer, Industrial Tribunal, (2009) 122 FLR 71, where it was held:
"6. I find considerable force in the submissions made on behalf of the workmen. In the present case it is seen that (a) there was no unit outside Delhi when the workmen were appointed, (b) there was no stipulation in the appointment letters that the workmen could be transferred outside Delhi, and (c) the management closed down its unit in Delhi in violation of the relevant provisions of the ID Act. It is, therefore, seen that although the certified Standing Orders of the management provided that the workmen could be transferred from one job to another or from one department/section to another or from one unit to another, as observed by the Single Judge in Civil Writ No. 3861 of 2000, the appointment letter did not give any indication that the workmen could be transferred outside Delhi, and that, therefore, in terms of the decision of the Supreme Court inKundan Sugar Millsv.Ziyauddin(supra), which clearly holds that there was no inherent right in an employer to transfer his employee to another place where he chooses to start a business subsequent to the date of employment in the absence of an express term in this behalf in the contract of service, the workmen employed with the management in the instant case could not be transferred to some other independent concern started by the same management at Bhiwadi (Alwar) at a stage subsequent to the date of the employment. Also, insofar as, the contention of the management in respect of the workmen not being entitled to any relief on account of having refused to carry out the transfer orders is concerned, it is seen that under the provision of Rule 14(3)(a) of the Industrial Employment (Standing Orders) Central Rules, 1946, a wilful disobedience amounts to misconduct only if workman disobeys a lawful and reasonable order of his superior, which order in the present case has been held by the Industrial Adjudicator to be neither legal nor justified."
33. Reliance has also been placed by the learned counsel for the workman upon a decision of this Court in Hamdard (Waqf) Laboratories vs. State of U.P. and others 2014(1) AWC 367 and also on a decision of their Lordship of the Supreme Court in Kundan Sugar Mills vs. Ziyauddin AIR 1960 SC 650. Learned counsel for the workman has referred to paragraph no. 7 of the report in Kundan Sugar Mills (supra), where their Lordships have held:
"7. We have referred to the decisions only to distinguish them from the present case, and not to express our opinion as to the correctness of the decisions therein. It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization. None of these decisions deals with a case similar to that presented in this appeal, namely, whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment. None of these cases holds, as it is suggested by the learned counsel for the appellant, that every employer has the inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondents either express or implied that the employer has the right to transfer them to a new concern stared by him subsequent to the date of their employment."
34. Expositing the same principle that the authority relied upon by Sri Shekhar Srivastava lays down, this Court has noticed a decision of the Gauhati High Court in Woman of Bijlibari Tea Estate vs. Management of Bijlibari Tea Estate, (2010) 4 Gauhati Law Reports 849, where considering the question of validity of dismissal from service of the workman on his refusal to accept an unlawful transfer, it was held by B.P. Katakey, J:
"14. In the instant case, it is evident from the domestic enquiry proceeding (Exhibit-1) conducted against the concerned workman, relating to the charge levelled against him that the workman had participated in such proceeding and the reasonable opportunity of being heard was given. There is no allegation of victimisation or unfair labour practice as well as the allegation against the management that it had not acted in good faith. It appears that the case of the Union is that the domestic enquiry is not fair and valid as no finding has been recorded into the charge of misconduct levelled against the workman and no reason has also been recorded, inasmuch as, the Enquiry Officer did not go into the aspect as to whether by the order of transfer the conditions of employment has been violated. According to the Union, disobedience of a transfer order which is lawful and reasonable, only amounts to the misconduct under clause 10 of the standing order in force and in the instant case, as the workman was engaged in Bijlibari Tea Estate, he cannot be transferred out of the said Tea Estate and to a new venture/Tea Estate, which was not in existence at the time of his appointment. The further case, as it appears from the evidences adduced before the labour court, is that in any case, he cannot be transferred out of Dibrugarh district and the transfer order amounts to depriving him from the enjoyment of other benefits attached to his service like housing facilities, etc.
15. The Enquiry Officer though in his report had rejected the contention of the workman that he cannot be transferred out of Dibrugarh district and also relating to deprivation from enjoyment of certain benefits, had not, however, recorded any finding relating to the plea of the workman that since he was appointed in respect of Bijlibari Tea Estate only, he cannot be transferred to any other Tea Estate subsequently established by the management, while recording the finding that the lawful order of transfer has been disobeyed by the concerned workman, which amounts to misconduct, without, however, considering as to whether the order of transfer is lawful as the concerned workman was appointed only in respect of Bijlibari Tea Estate. That aspect of the matter has also not been gone into by the labour court.
16. Clause 10 of the standing order in force provides the acts or omissions of the workman constituting gross misconduct. Clause 10(a)(1) of the standing order provides that the wilful insubordination or disobedience of only a lawful or a reasonable order of a superior constitutes gross misconduct. In the case in hand, the charge against the concerned workman was that he did not obey the order of transfer, which was the basis for taking disciplinary action against the concerned workman. The management, therefore, has to prove that the order of transfer is lawful and reasonable so as to constitute misconduct within the meaning of clause 10 of the standing order. The concerned workman, as noticed above, has all along pleaded that he being appointed in Bijlibari Tea Estate, he cannot be transferred out of the said Tea Estate. If such plea is accepted then he cannot be transferred out of Bijlibari Tea Estate and in that case the order of transfer would not be lawful and consequently, the concerned workman cannot be punished for not carry out such an order, the same having not constituted misconduct within the meaning of clause 10 of the standing order in force.
17. As discussed above, the Enquiry Officer did not record any finding on the vital aspect of the matter as to whether the workman could be transferred out of Bijlibari Tea Estate, his appointment being in respect of Bijlibari Tea Estate only. It has not been disputed by the learned senior counsel for the management that the concerned workman was appointed in respect of Bijlibari Tea Estate and there was no other venture of the management at the point of time when the concerned workman was appointed. It is also not in dispute that by the order dated 8.8.1994, he was sought to be transferred to a new venture, which according to the management, is the out garden. The domestic enquiry held against the concerned workman, therefore, cannot be held to be fair and valid so as not to go into the merit of the case by the labour court, as has been done in the instant case, as the Enquiry Officer did not go into the vital aspect of the matter, as noticed above, which amounts to violation of the principles of natural justice.
22. It appears from the order of transfer dated 8.8.1994 that the pay and other benefits of the concerned workman had not been disturbed. The management by, proving the communication dated 7.9.1994 (Exhibit-6) has proved that all his service benefits including the salary and other incentives would be paid and he would be provided with rental housing facility or house rent commensurate to his status. That being the position, the concerned workman's salary, other incentives and the housing facilities etc. were not disturbed and he would continue to enjoy the same, which he was enjoying in Bijlibari Tea Estate. The plea of the concerned workman that he cannot be transferred out of Dibrugarh district was also rightly found to be not acceptable by the Enquiry Officer in his report. However, it is an admitted position of fact that the concerned workman was appointed initially as trainee and thereafter, as Hazira Maharar for Bijlibari Tea Estate only. It is also not in dispute that by the order of transfer dated 8.8.1994, the workman was sought to be transferred to a proposed new venture at Margherita, which naturally was not in existence while the concerned workman was appointed. Unless there is a specific condition in the order of appointment that he can be transferred out of the Tea Estate, where he was appointed and even to a new venture, the management in exercise of its right of transfer of its workman cannot transfer such workman to a new venture, as such right of the management cannot be implied as conditions of service. If a workman is appointed in respect of one Tea Estate, he cannot be transferred to another Tea Estate, as it would be the violation of his conditions of employment he being appointed in respect of a particular Tea Estate only. In the case in hand, as noticed above, there is no dispute that the concerned workman was appointed in respect of Bijlibari Tea Estate only and hence, he cannot be transferred out of Bijlibari Tea Estate, even though the new venture is under the same management, but he can definitely be transferred to another section or to any other transferable post within the tea estate. The management though has taken the plea that the said new venture is nothing but an extension of Bijlibari Tea Estate, did not produce any evidence before the labour court in that regard. The order of transfer reveals that the concerned workman was transferred to a new venture proposed to be started.
23. The Apex Court in Kundan Sugar Mills, (supra) while considering almost the similar facts involved in the case in hand, has held that the employer has no inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment, when there was no condition of service of employment of the employee either express or implied that the employer has the right to transfer to such new venture started or proposed to be started subsequent to the date of his employment. The Apex Court in that case has uphold the judgment of the labour Appellate Tribunal holding that the management had no right to transfer the workman to a new factory and hence, the order dismissing him from service was illegal, based on the fact that such workman employed in a factory owned by the management was sought to be transferred to a new venture. The Single Bench decision of this court in Kakodanga Tea Estate (P.) Ltd., (supra), on which the learned senior counsel for the management places reliance, cannot be applied in the case in hand, in view of the aforesaid discussion and as in that case, the concerned workman was transferred from a post in the tea garden to the Head Quarter of the Tea Company."
35. This Court has keenly considered the matter urged on behalf of both sides.
36. There is much debate on both sides about the issue whether the workman could be transferred, given the provisions of the Model Standing Orders framed by the Government, called, 'The Uttar Pradesh Industrial Employment Model Standing Orders, 1991'. The aforesaid Standing Orders shall hereinafter be called the 'Model Standing Orders, 1991'.
37. The attention of the Court has been drawn to the Model Standing Orders, 1991, framed by the State Government in exercise of their powers under Clause (b) of sub-Section (2) of Section 15 of the Act of 1946 read with Section 21 of the General Clauses Act, 1897. It has been impressed upon the the Court under that Clause 13(6) of the Model Standing Orders, 1991, there is an absolute prohibition on transfer of a workman outside the State without his prior consent, if the Employers have some of their units outside the State. It has also been argued that the Model Standing Orders appended to Schedule I-B of the Rules of 1946 must give way to the Model Standing Orders, 1991 considering the definition of 'appropriate Government', under Section 2(b) of the Act of 1946, which in the case of the Employers would be the State Government. It has also been brought to the notice of this Court that there are Certified Standing Orders approved for the Employers by the Certifying Officer for Standing Orders and the Additional Labour Commissioner, Ghaziabad Region, Ghaziabad, certified on 16th August, 1993, where after an amendment directed in Clause 41 of the Certified Standing Orders governing the Employers' establishment, their workmen can be transferred to any place or any unit of theirs, but within NOIDA or Greater NOIDA.
38. It may be true or otherwise that under the Certified Standing Orders, the Employers have power to transfer the workman away to the unit at Mumbai. The Model Standing Orders, 1991, if they apply in preference to the Certified Standing Orders, may or may not permit a transfer for the workman outside the State without his consent. This Court, however, would refrain from expressing any opinion about the issue. The reason is that the Labour Court is a Court of referred jurisdiction and a creature of the statute. Its jurisdiction is limited to answering questions that are expressly referred to it under Section 2-K of the Act. It may, however, go into incidental questions while answering the reference.
39. The very persuasive submission of Sri Shekhar Srivastava urging this Court to take the view that the order of transfer, dated 10.06.1996 is in fact an order of termination, that is camouflaged as a transfer order, cannot be regarded as an incidental issue to the reference made. The reference is express in its terms and speaks about an order of termination dated 10.02.1996. It does not speak about the validity of the transfer order, dated 10.02.1996. In fact, there is no order of termination from service passed on 10.02.1996. Even if the order of transfer were a camouflage to terminate the workman's services, and that too unlawful, consistent judicial opinion confines the Labour Court in its jurisdiction to answer whatever is referred to it by the appropriate Government. Unlike a Court of general jurisdiction or a Court of superior jurisdiction, it does not have authority to determine its own jurisdiction. Its jurisdiction flows from the terms of the order of reference, and in no way can the Labour Court travel beyond its terms. Incidental questions are quite different and these could be like the date from which wages are to be granted in the case of termination, that is declared unlawful, but would not include the rate of wages in a case where the reference is against the validity of an order of termination. Rate of wages can be decided if that is the subject matter of reference to the Labour Court; not otherwise. This would well illustrate the difference between incidental questions and those that are substantial, but not referred to adjudication. This principle is most eloquently expressed in the decision of their Lordships in Tata Iron and Steel Company Limited (supra) and also by this Court in M/s Triveni Engineering and Industrial Ltd. (supra).
40. The decision of the Delhi High Court in Tobu Enterprises Limited (supra) relates to a cause of action where the workmen were transferred outside Delhi by the Employers when they shifted their units to Bhiwadi due to dwindling business prospects in Delhi. The workmen flouted the orders of transfer and were held by the Employers to have abandoned employment in terms of a certain Clause-C, under Head Note-I of the Standing Orders. The workmen' services were, therefore, terminated in terms of Clause-C under Head Note-I of those Standing Orders. In those circumstances, the following reference was made to the Industrial Adjudicator, under the Industrial Disputes Act, 1947 [quoted verbatim from the report of the judgment in Tobu Enterprises Limited (supra)]:
"Whether the transfer of Sarvshri Ranjit Kumar, Ram Asrey, Raj Kumar, Ramesh Kumar, Vinod Kumar, and Gupteshwar from Delhi to Bhiwadi by the management is illegal, and/ or unjustified, and if so, to what relief they are entitled and what directions are necessary in this respect."
41. It was in the context of the aforesaid reference, that the Delhi High Court held the award of the Industrial Adjudicator ordering reinstatement to be valid, when challenged by the Employers. Here, it would seen that what was referred for adjudication to the Industrial Adjudicator was the validity of the transfer order, of which termination was but a consequence. The termination was not referable to any other cause, act or misconduct, but the workmen' refusal to obey the order of transfer. The fact, therefore, that it was the transfer that was subject matter of reference to the Industrial Adjudicator, its validity was adjudged by the Court to be rightly held bad. In the present case, as already said, the reference is one thoughtlessly made, to say least. If anything had to be referred to the Labour Court for adjudication of its validity, it was the validity of the transfer order, the incidents of which, including abandonment of service, termination could then well have been gone into by the Labour Court. The decision in Hamdard (Waqf) Laboratories (supra) has little bearing on the facts of the case here. However, so far as the decision of their Lordships of the Supreme Court in Kundan Sugar Mills (supra) relied upon by the workmen to support the impugned award is concerned, it does show that for the violation of a transfer order from the sugar mill of the Employer at Kichha to a new sugar mill of the Employer at Bulandshahr, they were held guilty of misconduct and dismissed from service vide order dated 2nd February, 1955. It was in those circumstances, that a reference was made to the State Industrial Tribunal for U.P. at Allahabad in the following terms [quoted verbatim from the report of the judgment in Kundan Sugar Mill (supra)]:
"Whether the employers have wrongfully and/ or unjustifiably terminated the services of Sarva Shri Zia Uddin, Raisuddin, Shafiquddin and Ahmed Bux for refusal to obey the orders of transfer to M/s. Pannijee Sugar and General Mills Co. Bulandshahr. If so, to what relief are the workmen entitled."
42. This case is one where for the disobedience of a transfer order, the workman was dismissed from service and the validity of the dismissal for no other reason but disobedience to the transfer order was the subject matter of reference. It was in that context that their Lordships went into validity of the charge, that led to the workman's dismissal, and, that charge was whether the order of transfer was disobeyed unlawfully. The validity of the transfer order, therefore, that fell for consideration of the Supreme Court in Kundan Sugar Mill (supra) was both, a concomitant and an incident of the order of dismissal that was a subject matter of the reference. Unlike the case before their Lordships, here there was no order of termination from service, dated 10.02.1996, but a simple order of transfer that might have led to adverse consequences for the workman. Therefore, what was required to be referred by the State Government was the validity of the order of transfer dated 10.02.1996, with provision in the reference for incidental relief, that may flow from the transfer order being adjudged bad by the Labour Court, if that were so.
43. The decision of the Gauhati High Court in Workman of Bijlibari Tea Estate (supra) was also a case where the workman who was appointed to the aforesaid Tea Estate as a Hazira Maharar was transferred by the Employers to another tea garden, located near a place known as Margherita, where they had set up a new venture. The workman disputed the order of transfer on ground that it was violative of his conditions of service, as well as the Standing Orders, applicable to the Employers. He was charge sheeted for disobeying the order of transfer and after a domestic inquiry, dismissed from service. The reference that was made by the State Government to the adjudication of the Labour Court was in the following terms [quoted verbatim from the report of the judgment in Workman of Bijlibari Tea Estate (supra)]:
"(a) Whether the management of Bijlibari T.E., Hoogrijan, PO-Hoogrijan, Dist. Dibrugarh is justified in dismissing Sri Sankar Dutta, Hazira, Mohurrer from service or not?
(b) It not, is he entitled to reinstatement with full back wages or any other relief in lieu thereof?"
44. Here also, not much is required to be pondered over, for this to be said that the validity of the dismissal order was referred to the adjudication of the Labour Court, the underlying basis of which was the validity of the transfer order. It was in those circumstances that the validity of the transfer order was gone into by the Court and held to be bad.
45. Unfortunately for the workman here, the reference in the terms made does not clothe the Labour Court with jurisdiction to look into the validity of the order of transfer, dated 10.02.1996. The industrial dispute here has been referred in most callously worded terms dubbing a transfer order as one of termination, rendering the entire exercise before the Labour Court a nullity, whatever be the merits of the parties' case. Here, the Authority empowered under Section 4-K of the Act has utterly failed to refer what on its plain terms was an industrial dispute, relating to the validity of the transfer order dated 10.02.1996. If the dispute that actually arose between the parties were referred, depending upon the finding of the Labour Court about the validity of the order of transfer, the logical incidents of it would flow, to whichever parties' gain or prejudice it might have been. About this reference, this Court has no hesitation to hold that it is without any basis, and on the date it was made or with reference to the Employers' order that it was made, there was no termination of services for the workman. The industrial dispute in the terms it was referred was completely non-existent. The Labour Court being a Court of referred jurisdiction, could not have gone beyond or behind the terms of reference in which the industrial dispute sent to it was cast.
46. A number of other submissions were advanced by learned Counsel for the parties in challenge to and defence of the impugned award. But, those are not required to be gone into, looking to the conclusion of this Court about the validity of the reference.
47. Considering the fact that the workman is after all neither educationally or financially equipped to litigate and for the present, whatever be the merits of his case has come to suffer for the fault in good part of the Authority making the reference, and also in some part, of the Employers, in not challenging the reference at the threshold, that would have set the wrong right without the loss of all these years, this Court is of opinion that the sum of Rs.50,000/- paid to workman out of the sum of Rupees One Lakh deposited by the Employers with the Labour Court, U.P., NOIDA, District Gautam Budh Nagar, in compliance with the interim order dated 09.11.2017, shall not be recovered from the workman. However, the balance of Rs.50,000/- lying in deposit with the Labour Court ought to be refunded to the Employers forthwith.
48. In the result, the writ petition succeeds and is allowed. The impugned award dated 02.08.2017 (published on 04.10.2017) passed by the Presiding Officer, Labour Court, U.P., NOIDA, Gautam Budh Nagar in Adjudication Case no.35 of 2008 and the reference dated 08.07.1996 made by the Additional Labour Commissioner, Ghaziabad are hereby quashed. The State Government or such other Authority as may be competent in this behalf shall, however, make reference afresh appropriately framed, bearing in mind what has been said in this judgment, within a period of two months of the receipt of a certified copy of this judgment. It is further directed that out of the sum of Rupees One Lakh deposited by the Employers with the Labour Court, U.P., NOIDA, District Gautam Budh Nagar, in compliance with the interim order dated 09.11.2017, the sum of Rs.50,000/- already paid to the workman, shall not be recovered from him. However, the balance sum of Rs.50,000/- lying in deposit with the Labour Court, shall be refunded to the Employers forthwith.
49. There shall be no order as to costs.
Order Date :- 5.2.2020 Anoop/ BKM/-