Madras High Court
Management Of Eagle Flasks Industries ... vs Presiding Officer And Anr. on 3 August, 2001
Equivalent citations: [2002(93)FLR907], (2002)IILLJ973MAD
JUDGMENT K.P. Sivasubramaniam, J.
1. In this writ petition, the petitioner seeks to issue a writ of certiorari to quash the order of the first respondent in I.D. No. 964 of 1992 dated December 12, 1994.
2. According to the petitioner/ management, they are involved in manufacturing of vaccum flasks and refills and the second respondent was working as a turner from October 1, 1983, on a salary of Rs. 750. He was provided with all incidental benefits. The petitioner-firm used to transfer the employees from one branch to another in accordance with the necessity arising in the respective branches. The second respondent while joining the firm had accepted the condition that his services are liable to be transferred from one branch to another. He was, originally engaged by the management as a trainee turner by order dated October 1, 1983. His services were subsequently confirmed and with effect from October 1, 1984, he was appointed as turner. During 1991, efficient and trained turners were required at the head office at Talegaon, Pune. Taking into consideration the services of the second respondent, he was deputed to the head office, vide letter dated September 9, 1991. He was required to report to duty at the transferred place on or before September 18, 1991. He was also informed that he would be designated as a senior turner on an enhanced salary of Rs. 1,300 per month and that he would be provided with free accommodation. However, the second respondent replied by saying that he was not in a position to obey the transfer order due to his personal reasons. He had stated that his testicles had been removed and, therefore, he suffers from fever very often. His wife was a deaf person and his mother was suffering from tuberculosis and facing the last days. His two children were studying and, therefore, he was not prepared to work in a place where he had no relations and he also did not know the language there and, therefore, he may be permitted to work in the Madras factory. Therefore, the second respondent was discharged from service with effect from September 25, 1991, on humanitarian grounds considering the physical conditions as represented by the petitioner himself. The management also decided to pay retrenchment compensation of Rs. 3,000, pay equivalent to one month notice, ex-gratia amount of Rs. 3,000, gratuity and other benefits. The order was duly communicated along with a demand draft for a sum of Rs. 10,414.35 towards the said amounts. Though the second respondent received the latter, he returned it with a request to the management to withdraw the order of termination. The management expressed their inability to withdraw the order of termination,
3. Hence the second respondent approached the conciliation officer and as a result of the failure of the conciliation, the present industrial dispute came to be referred to the Presiding Officer. The Presiding Officer, Labour Court, by virtue of the impugned order held that the termination of the second respondent was not valid. Hence, the order of termination was set aside. Therefore, the management has come forward with the present writ petition.
4. Learned counsel for the petitioner submits that the order of termination was passed only on humanitarian grounds considering the request and representation of the second respondent himself as suffering from illness and fever and the other reasons given by him, namely, that his wife was a deaf person and his mother was also suffering from tuberculosis. Learned counsel also, relies on the agreement executed by the second respondent and clause 10 is as follows:
"10. Upon your confirmation, the company may terminate your services by giving one month's notice or salary in lieu of notice provided, however, that no notice or salary in lieu of notice will be given in case your services are terminated for any misconduct. Should you, however, desire to sever your connections with the company, after confirmation, it will be necessary for you to give one month's notice to the company of your intention to do so or allow the company to deduct one month's salary in lieu of notice, if such a notice is not given by you in advance."
5. Therefore, since the second respondent was found to be medically unfit on his own statement, the management has rightly invoked clause 10 and terminated his service.
6. On the other hand, the Labour Court has proceeded on a wrong basis and held that the order of termination on humanitarian point as expressed in exhibit M-5 cannot be taken into consideration. It was also erroneous on the part of the Labour Court who had assumed that such termination could be done only through proper check up by a doctor.
7. In the context of transfer, the right of the management to transfer, learned counsel for the petitioner relies on the judgment of the Supreme Court in Madhuband Colliery v. Their Workmen, 1966-I-LLJ-738.
8. Further reference is also made to the judgment of the Supreme Court in Bombay Union of Journalists v. State of Bombay, in support of his contention that in the context of Section 25-F of the Industrial Disputes Act, there was no condition precedent that Clause (c) should be complied with.
9. To the same effect is the judgment of the Punjab and Harayna High Court in Om Parkash v. Presiding Officer, Industrial Tribunal-Gum-labour Court, 1998-II-LLJ-542. I have considered all the submissions of learned counsel for the petitioner. The contention of the management that the second respondent was unfit to work in Madras, has not been substantiated by any evidence. In fact, in the affidavit itself, the writ petitioner/ management has stated that in his letter the petitioner has stated that he was prepared to work in Madras. Therefore, whatever the reasons which were given by the second respondent for not joining at the transferred place, cannot be cited against him as proving the petitioner's inability to work in Madras. In his letter dated September 14, 1991, all that the second respondent has stated is that he would not be able to move out of Madras due to certain reasons. In the event of the management having come to the conclusion that he was medically unfit then the management should have referred the worker to a properly constituted Medical Board, only after giving proper opportunity to the second respondent, and found the worker medically unfit. Therefore, mere reliance placed on the letter of the second respondent to hold that he was medically unfit to be employed in Madras, cannot be sustained.
10. Inasmuch as there is no dispute over the question of the right of the management to transfer the employees, there is no purpose in referring to the judgment of the Supreme Court in Madhuband Colliery v. Their Workmen (supra)
11. Learned counsel also contended that the condition under Section 25-F had also been complied with and he would also state that the fact that notice has not been served on him, cannot result in invalidating the order passed under Section 25-F. In the context the management having referred to Section 25-F, it is seen that this is not a case of retrenchment. Section 2(oo) makes it clear that the expression "retrenchment" will not include termination of the service of workman on the ground of continued ill-health. Therefore, in the present case, the termination of service having been effected on his ill-health, the expression retrenchment cannot be resorted to by the management.
12. Therefore, I do not find any error in the order passed by the Labour Court and the same is confirmed.
13. In the result, the writ petition is dismissed. No costs.