Gujarat High Court
Bi vs Bhupat on 29 March, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/391/2010 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 391 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BI
COLOUR BALLPEN COMPANY PVT LTD - Petitioner(s)
Versus
BHUPAT
L VYAS - Respondent(s)
=========================================================
Appearance
:
MR
JV JAPEE for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/03/2010
ORAL
JUDGMENT
Heard learned Advocate Mr. JV Japee for petitioner. Petitioner has challenged award passed by Labour Court, Bhavnagar in Reference No. 265 of 1999 Elxh. 47 dated 8th September, 2009. Labour Court, Bhavnagar has granted reinstatement with continuity of service with full back wages for interim period with costs Rs.2000.00. On 25.2.2010, request was made by learned Advocate Mr. Japee for ascertaining as to whether Model Standing Certified Order is applicable or not. Therefore, matter was adjourned to 5.3.2010. Today, when matter is taken up, learned Advocate Mr. Japee made clear statement before this Court that there is no Standing Order made applicable to petitioner establishment. According to him, petitioner establishment is closed since 2004. However, these facts have not been brought on record by petitioner before labour court, Bhavnagar. He submits that in appointment order page 28itself, condition was incorporated and accepted by workman while giving appointment on 8th December, 1993 that his services can be transferred either at Chitra village or Bombay Company at Nasik. He submits that these terms and conditions of appointment order were accepted by respondent workman and, therefore, on that basis, services of respondent workman were transferred in Bombay Company at Nasik wherein he has not reported and raised an industrial dispute which has been adjudicated by labour Court, Bhavnagar. He relied upon written statement filed before labour court which is at annexure C (page 18). In written statement, facts have been admitted by petitioner that respondent workman was working in the post of machine operator for more than five years and he was having experience, for that, there is no dispute raised by petitioner. He submitted that because of lay-off for shortage of raw material, bona fide efforts were made by petitioner while transferring him at Nasik. Allegations made by workman have been denied in written statement and it is also made clear by petitioner that service condition is not violated because of transfer of workman from Bhavnagar to Nasik. He also submitted that while transferring respondent workman at Nasik, company had given assurance to increase additional allowance of Rs.100.00 to Rs.250.00. Over and above that, assurance was also given by petitioner to bear expenditure of monthly pass of train or bus from the place of residence to the place of factory (Dahisar Station) and company will make proper arrangement for providing accommodation facility to respondent workman at Mumbai. He further submitted that petitioner was also ready to bear expenditure of one time food in a day while on duty. In short, his submission is that all care has been taken by petitioner while transferring respondent workman from Bhavnagar to Nasik to see that respondent workman may not be put to any inconvenience or difficulty. He also submitted that respondent workman is experienced workman and his presence is required in Bombay Company at Nasik and, therefore, affidavit from Director of Company Shri Sanghavi has been filed to justify transfer of respondent workman. Work which was carried out at Bombay, for that work, respondent workman was having experience and, therefore, he was transferred. He relied upon decision reported in 1954-II-LLJ page 317 and 1960-II-LLJ page 125. In short, his submission is that the transfer was not made with mala fide intention and there was no any ulterior oblique motive in transferring by petitioner. He relied upon cross examination of workman made by advocate for petitioner before labour court vide Exh. 8 where he denied his signature in Exh. 6/6 and 6/7 and even in statement of claim Exh.5 and 3. However, in re-examination, he admitted signature in Vakalatnama and also admits signature in statement of claim. This cross examination is dated 9th September, 2003. While relying upon this cross examination, he submitted that workman has denied his signature in almost all documents and, therefore, labour court has committed gross error in setting aside transfer order and granting relief of reinstatement with full back wages while holding that it amounts to retrenchment/termination of service of respondent workman and, therefore, present petition is filed by petitioner. Order of transfer dated 25.1.1999 whereby petitioner was transferred and given four days time informing him to join on 30.1.1999. Respondent workman has also been informed that he should submit his joining report to administrative officer at Mumbai at address A/3, Mira Industrial Estate, Near Milton Factory, Dahisar, Mumbai 401104. Before labour court, statement of claim was filed by workman where allegation is made by workman that management transferred him because he started union activities and because of that, management wants to transfer him or to terminate his services. So, according to workman, intention of management is not to transfer him but to retrench him because it was well within the knowledge of Management that an employee in Class III or IV who is receiving daily wage of Rs.63.00 would never go to Mumbai for doing service and, therefore, Management has issued order of transfer with an object to get rid of the respondent. According to workman, in Bhavnagar, he is having responsibility of whole of his family, having his own house in Bhavnagar and yet, with great difficulty, he has been able to maintain the same and in view of that, how he will be able to maintain in a city like Mumbai, where he will reside, if he is going to Mumbai, then, in a city like Mumbai, where he will not be able to get house on rent for Rs.100.00 which amount is assured by Management, to be given to him as an additional allowance? It is also alleged by workman in his statement of claim filed before labour court that there is no requirement or justification for transfer of respondent workman because at Bhavnagar Plant, manufacturing process is going on well. Not only that, company is doing production by engaging additional persons of contractor and in such circumstances, what is the reason for transferring permanent workmen from Bhavnagar to Mumbai and this shows that behind this transfer, intention of management was only to retrench him and his post is not such that any special skill would be required and such workmen would not be available in a city like Mumbai. It is also alleged by respondent workman in his statement of claim filed before labour court that if at all there was necessity to make transfer, then why respondent workman alone has been transferred keeping aside other workmen at Bhavnagar who are performing duties as junior to him and senior to him. It was also alleged that when he joined service at Bhavnagar, at that time, he was not having knowledge that company is also having Branch in Mumbai and looking to order of transfer passed by Management, it appears that in order of transfer, name of the company in which he has to perform duties at Mumbai has not been written. According to workman, no opportunity of hearing was given to him and no notice pay was paid and no retrenchment compensation was paid and, therefore, such transfer is basically and in its real sense amounts to termination because such daily wager cannot be transferred out side Bhavnagar District and at Mumbai, out side State because it is very difficult for workman to maintain himself while receiving daily wage of Rs.63.00 at Bhavnagar. The salary daily wage has not been increased by petitioner and, therefore, prayer was made in statement of claim that order of transfer is not really an order of transfer but it amounts to termination and, therefore, same is required to be set aside. As against that, written statement was filed by petitioner before labour court as referred to above denying allegations made by workman in his statement of claim. Annexure D page 28 is also produced on record which is dated 8.12.1993 with attached conditions where condition no. 6 suggests company is having branch one at Chitra and another is at Nasik having similar type of business and, therefore, management is having right to transfer from Bhavnagar to Mumbai when necessity arise. According to petitioner, these terms and conditions were accepted by workman. Except that, no any other documents are annexed except award in question which is challenged by petitioner. Learned Advocate Mr. JV Japee has relied upon cross examination made by advocate for petitioner as referred to above. Except that, no decision is relied upon by learned Advocate Mr. Japee and no further submission is made except those which are recorded above.
In light of submissions made by learned Advocate Mr. Japee for petitioner and documents which have been produced by petitioner before this court, I have considered it and have also perused award passed by Labour Court, Bhavnagar. An industrial dispute was referred to for adjudication by Assistant Labour Commissioner on 16.2.1995.Respondent workman was working as Machine Operator since more than five years in company of petitioner at Bhavnagar and was receiving Rs.63.50 per day. Lay Off was given since last two years and thereafter, management had started to give memo and charge sheets to workman and thereafter, started to take work of lower category from workman by entrusting work of packing, collection of refill etc. of the category of helper though respondent workman was machine operator and respondent workman was doing it because of his financial poor condition. According to workman, as they had formed union, therefore, management was resorting to these tactics with a view to harass them. Though he is having 55 per cent disability, by letter dated 25.1.99, he has been ordered to be transferred to Mumbai. Intention of the Management was not to transfer him but to terminate his service and, thereby, to get rid of the workman. Workman belongs to Class III/IV cadre of employee working with petitioner.
After considering reply filed by petitioner before labour court, labour court has considered decision of Punjab & Haryana High Court in case of Abhey Raj Singh and Labour Court, Ludhiana and others, reported in 1998 (1) LLN 668. Labour Court has also considered other decisions on the subject from page 36 to 53. Issues have been raised by labour court, Bhavnagar and labour court considered issue whether such transfer is amounting to termination or not and whether workman is entitled to relief of reinstatement with full back wages for interim period or not. Such dispute is covered by definition of section 2(k) of ID Act, 1947 and, therefore, labour court has come to conclusion that dispute raised by workman is satisfying requirement of section 2(k) of ID Act, 1947. Labour Court has considered appointment order. Labour Court also considered warning given by management in transfer order to the effect that within two days, workman must have to report at Mumbai, otherwise, management will take disciplinary action against respondent workman. Labour Court has considered medical certificate produced by workman at Exh. 7/1 which is issued by civil hospital where workman is having 55 per cent disability for body as a whole and he is not able to travel without assistance of one person and for that purpose, identity card has been issued by management that as respondent workman is handicapped, he is requiring assistance of one person to travel. From perusal of award, it appears that vide Exh. 7/7, letter was written by company on 19.7.97 to union representative that respondent workman Bhupatbhai has studied only upto Std.6, accordingly, he has been entrusted work by petitioner and normal work of refill, tanning, plastic nuts etc. has been entrusted to him by petitioner and some time when main person of machine has not come, then, for continuing production on machine, he was entrusted to work on machine where he was not able even to stand for eight hours and, therefore, in light of this physical condition and educational back ground of 6th Standard pass, only small work was being entrusted to him and also keeping in mind 55 per cent disability as per certificate, he has not been entrusted work on machine because he has not been able to stand for eight hours on machine. Before labour court, workman was examined at Exh. 8 wherein it was deposed by workman in his examination in chief that he is physically handicapped, receiving daily wage of Rs.63.50 ps. and he was given appointment in Bhavnagar. He was not given appointment order in writing. He was cross examined by advocate for petitioner before labour court. Reference has been made by Assistant Commissioner of Labour. Reference Court has considered that merely because workman has denied his signature in his cross examination, on such technical stand, reference cannot be rejected by labour court. Therefore, labour court has considered substance and real dispute between the parties which is required to be adjudicated. Before labour court, contention was raised by advocate for petitioner that as concerned workman is denying his signature in statement of claim, therefore, reference is liable to be rejected. While considering that contention, labour court has considered that on such technical ground, reference cannot be rejected because reference is made by Government, therefore, even if statement of claim is not bearing signature, then also, decision has to be given on merits. Thereafter, labour court has considered condition incorporated in transfer order including appointment order and came to conclusion that in cross examination, not a single question was asked by advocate for petitioner in respect to transfer of workman. Class III and IV employees having lower standard education cannot be transferred out side State when he was working as daily wager. Thereafter, labour court has considered certain decisions and came to conclusion that it is not merely transfer order but in fact, it is termination order because workman has initiated union activities and due to that, he had received certain memos and charge sheet from petitioner establishment and, therefore, keeping juniors and seniors both at Bhavnagar, workman has been transferred from Bhavnagar to Mumbai. Labour Court has also considered physical condition of respondent workman who is having 55 per cent disability who is unable to travel without assistance of one person has been transferred from Bhavnagar to Mumbai out side State. Labour Court has also considered decision of this Court in case of in case of M/s. Automotive Manufactures Ltd. Versus Nanalal Panachand Vakharia and another, 1977 Lab IC 1188, where this Court has considered that in private company, normally, Class III and IV employees cannot be transferred out side branch and beyond city area where he was appointed. Relevant observations made by this Court in para 2 of said decision are quoted as under:
2. Now, admittedly transferability out of the city was not an express condition of service. Can it then be imposed on an employee by ascribing it to him under the doctrine of an implied term of service? It can be read into the contract as an implied term if there is some compulsion to read it into a contract of service by necessary implication having regard to the very nature of the employment. Not otherwise. One must be able to say:what is obvious need not be explicitly stated and may be taken to have been understood by both the sides. To hold that it was an implied condition would be to attribute to the employee a deliberate desire to subject himself to transferability. He was occupying a house on Rs.20.00 per month in Rajkot presumably because of the Rent Act. In Ahmedabad, he would not be able to secure a house for possible less than Rs.200/- rent cost as percentage of his income might rise from 10 % to 50%. Education of children would suffer for want of admission at transferred place. Some of members of his family might be employed in his home town and they would have to remain back and maintain a separate household. His whole family would be disrupted. One cannot ascribe to the respondent, a lowly paid employee, such a desire to subject himself to transfer to a branch outside the city in which he secured employment as it would have disastrous consequences on his economic and family life. The Labour Court by a well considered judgment has decided the pivotal issue against the petitioner. Other points indicated in the petition were not even argued in the Labour Court. The petitioner cannot be permitted to raise these points (which even otherwise are devoid of substance) in this petition under Article 227 of the Constitution of India. No error apparent on the face of the record is shown. The petition is, therefore, summarily dismissed.
Labour Court has also considered decision of Allahabad High Court in case of Mashooq Ahmad versus Manager (p & l) Bharat Pumps and Compressors Ltd., Allahabad reported in 2000-II-CLR 573, wherein it has been held that transfer of a class III or class IV employee of a public sector undertaking from a middle size town like Allahabad to a far away big city like Bombay is arbitrary as it fails to take into consideration the fact that such an employee cannot in these hard days of inflation survive in such a far away big city. According to my opinion, in light of facts of this case wherein respondent workman who is having 55 per cent disability for body as a whole and unable to travel without assistance of a person, has been transferred from Bhavnagar to Mumbai at Nasik, such transfer of respondent workman amounts to legal victimization and unfair labour practice, with a view to get rid of workman. Labour court has also considered that as per condition incorporated in appointment order, in case of necessity, management is entitled to transfer any employee who is working at Bhavnagar to Mumbai at Nasik but before labour court, no evidence was produced by petitioner and no witness was examined by petitioner to justify order of transfer passed by petitioner transferring respondent from Bhavnagar to Mumbai at Nasik. Petitioner has not examined Manager or Director of company in support of its defence for justifying requirement of respondent workman at Mumbai Not only that, no person from office at Mumbai has been examined by petitioner before labour court to justify necessity of workman at Mumbai from Bhavnagar. Therefore, in light of this back ground and also considering that his physical condition and 55 per cent disability for body as a whole, workman has not reported for duty at Mumbai because he was compelled to do so and, therefore, it amounts to termination of his service and cannot be considered as mere transfer. Labour Court has also considered that looking to order of transfer, respondent workman who has studied upto Std.6 and who has been having 55 per cent medical disability and not having any experience to run machine and management had entrusted only small kind of work and even though wrongly mentioned by petitioner before labour court that it was a necessity for petitioner to transfer workman from Bhavnagar to Mumbai. Labour Court has also considered that no opportunithy was given to workman before transferring him from Bhavnagar to Mumbai. Labour Court has also considered condition incorporated in transfer order that within two days, workman must have to report for work at Mumbai, otherwise, he has to face disciplinary action. Considering all such aspects of the matter, labour court has ultimately come to conclusion that it is not in real sense a transfer order but it amounts to victimiziation by way of issuing order of transfer which is really terminating service of an employee from establishment. Therefore, labour court has come to conclusion that this transfer order is amounting to termination which has not been justified by petitioner and therefore, quashed it and directed petitioner to reinstate respondent workman with full back wages for an interim period.
I have considered submissions made by learned Advocate Mr. Japee. According to my opinion, decision of this Court reported in 1977 Lab IC page 1988 is squarely covering the issue where such class III/IV employee has been transferred and such transfer has been challenged by workman and accordingly this court has considered that because of such transfer, normal life of workman has been disturbed and due to handicapped physical condition, it is also equally difficult for workman to report for duty at Mumbai or Nasik. Labour Court has also considered decision of Allahabad High Court reported in 2000-II-CLR
570. No departmental inquiry was initiated by petitioner against workman. Considering income per day wage of Rs.63.50 received by workman, it is very difficult for workman to maintain family while working at Bombay and, therefore, he has been compelled and not reported at Mumbai, therefore, labour court has rightly come to conclusion that it is a clear case of victimization and unfair labour practice adopted by petitioner establishment by transferring workman from Bhavnagar to Mumbai. Workman made attempt to resist such an order of transfer because he is unable to attend and report at Mumbai looking to his physical handicap condition and lowly paid employee working in private establishment. Merely because appointment order is having condition that workman can be transferred in another branch working in Mumbai at Nasik, that itself would not justify such transfer of daily rated workman receiving Rs.63.50 working at Bhavnagar in a pick and choose manner ignoring senior of such employee and pick up workman who is found to be handicapped and not able to work on machine. There is no justification given by petitioner before labour court that why senior has not been considered and similarly why junior has not been considered and why petitioner alone has been considered for such transfer from Bhavnagar to Mumbai. Reason is that allegations which have been made against workman about union activities carried out by him, some memos have been issued and charge sheet also served on workman and respondent workman was an eyesore for management and management wanted to get rid of workman by hook or crook and that is why, transferred workman from Bhavnagar to Mumbai keeping aside all of his seniors and juniors without following necessary procedure and also without complying with the principles of natural justice but adopted shortcut and for removing workman, transferred him from place of work and therefore way has been found out to transfer him which was next to impossible for workman to report at Mumbai because of meager amount of daily wage Rs.63.50 ps. received by him at Bhavnagar from which he was maintaining his family at Bhavnagar and, therefore, it was a pre-plan managed and arranged by petitioner to get rid of workman who was, according to management, disturbing and polluting atmosphere of Bhavnagar factory establishment and, therefore, in light of this back ground, employer means petitioner has not established necessity to transfer workman or not justified transfer of workman from Bhavnagar to Mumbai and in absence of evidence from petitioner, according to my opinion, labour court has rightly examined matter based on appreciation of documents on record and prima facie, apparently, it found to be mala fide action initiated with an ulterior oblique motive which amounts to legal victimization which is found to be malice in law, therefore, in such a case, if the action of management is approved by court of law, then, it is very difficult for any workman to work with such private management without fear and, therefore, according to my opinion, labour court has rightly considered such circumstances and surrounding factors looking to physical handicap of 55% and daily wage of Rs.63.50 ps. Against which relief which has been suggested by management is having no bearing or helpful looking to harassment or hardship which has been caused to workman because of his transfer from Bhavnagar to Mumbai at Nasik. There is no suggestion from employer to increase daily wage of workman.The petitioner has not challenged order of reference made by Assistant Commissioner of Labour to Labour Court, Bhavnagar before higher forum. It is necessary for management to establish that such an action taken by management is bona fide and not mala fide when specific allegation is made by workman against employer that such an action is tainted by mala fides with a view to get rid of workman. For that, it is necessary for management to led evidence in rebuttal for controverting such allegation of workman which has not been done by management in present case and, therefore, according to my opinion, labour court has rightly relied upon evidence on record as well as medical certificate of disability of 55 per cent produced by workman and labour court has rightly considered the same. It is necessary to note that Central Government has enacted law for protection of persons having disabilities namely The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, so that the persons having disability working with management may not be disturbed or they may not be victimized by Management. Section 47 of said Act no doubt may not be applicable to private establishment but object of section 47 can be considered by this court that if any employee, if he has become permanently disabled or received permanent disability, then, on that ground alone, his services cannot be terminated but instead of that, he should have to be provided such work which he may be able to do without reducing his salary and even promotion also cannot be denied to such a person having disability, on the ground of disability received by such person during the course of employment. Therefore, according to my opinion, contentions raised by learned Advocate Mr. Japee cannot be accepted because it is a clear case of legal victimization by employer against lowly paid employee who was receiving small amount of Rs.63.50 ps. as daily wage and, therefore, labour court has rightly held that it is not mere transfer but it amounts to termination of services of workman by way of transfer which has been found to be with ulterior oblique motive because against allegations made by respondent workman, no rebuttal evidence has been produced by petitioner before labour court to justify bona fide transfer of workman.
Petitioner establishment has not established gainful employment of respondent workman during interim period. In Exh.8, specific statement was made by workman o n oath that after termination, he has remained unemployed and has not been gainfully employed and in case if petitioner is prepared to reinstate him at Bhavnagar, he is prepared to report for work at Bhavnagar. As against such evidence of workman, petitioner has not established that respondent is gainfully employed during interim period and no rebuttal evidence has been produced about gainful employment of workman and, therefore, considering such evidence on record, labour court has rightly granted relief of reinstatement with full back wages for interim period. Therefore, contentions raised by learned Advocate Mr. Japee cannot be accepted and same are therefore rejected. No error has been committed by labour court while deciding reference made by Assistant Labour Commissioner and there is no error which would require interference of this court in exercise of powers under Article 227 of the Constitution of India. Labour Court, Bhavnagar has rightly applied mind and in doing so, labour court has not committed any error. Therefore, there is no substance in this petition and same is required to be dismissed.
Therefore, for reasons recorded above, this petition is dismissed.
(H.K.Rathod,J.) Vyas Top