Delhi District Court
Bombay Union Of Journalists And Ors. vs . The 'Hindu' on 16 May, 2008
-:1:-
I.D. NO. 167/01.
IN THE COURT OF SH. GURDEEP KUMAR
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF
M/s. Sawhney Rubber Industries,
B-1, B-2, Indl. Area,
G.T. Road, Jhilmil,
Shahdara,
Delhi - 95.
...Management
Versus
Its workman as represented by
Sawhney Rubber Industries Mazdoor Union,
E-59/704, Kalender Colony,
Dilshad Garden, Shahdara,
Delhi - 95.
...Workman
A W A R D :-
Date of institution of case : 29.06.2001.
Date on which the judgment
has been reserved : 12.05.2008.
Date on which the judgment
has been delivered : 16.05.2008.
Contd...
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I.D. NO. 167/01.
Secretary (Labour), Government of National Capital
Territory of Delhi has referred the dispute arising between the
parties named above for adjudication vide its order No. F. 24
(683) / 2001 / Lab. / 13098 - 102 dated 22.06.2001 u/s
10(1)(d) and 12(5) of the I.D. Act, 1947 with the following terms
of reference:-
"Whether the transfer of Sh. Om
Prakash S/o Sh. Kishori Lal from
factory at Jhilmil Industrial Area,
Shahdara to Rama Road Indl.
Area, Najafgarh, New Delhi is illegal
and / or unjustified and if so, what
relief is he entitled and what
directions are necessary in this
respect?"
Workman's case in brief is that he was employed with the
management since 26.04.1995 in Tube A First Section and was
doing the work of Chappi Machine Operator; that his last drawn
wages were Rs. 2419/- per month as against 2843/- per month
fixed by the Delhi Government under the Minimum Wages Act.
Contd...
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I.D. NO. 167/01.
2. It is further averred that the main business of the
management has been manufacturing of cycle and rickshaw
tyres and for that purpose prior to July, 1995, the management
had employed 2200 employees in its factory. All those
employees were employed in unskilled category and were not
given the status of skilled or semi-skilled workers. The
employees were not given their designation according to their
work nor they were paid wages according to the work being
performed by them. The employees, through their union,
raised an industrial dispute before the Conciliation Officer vide
Notification dated 21.03.2000 which was still pending before the
Labour Court. It is further averred that in order to pressurize
the workers, the management vide its letter dated 04.12.2000,
transferred him along with other workers from Shahdara
Factory to Rama Road Factory. It is contended that the said
order of his transfer from Shahdara Factory to Rama Road
Factory is illegal and unjustified for the reasons :-
Contd...
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I.D. NO. 167/01.
(i).That the management did not have the powers to transfer
him as at the time of his appointment, the management had
no unit at Rama Road and, therefore, it could not transfer
him to Rama Road Factory.
(ii).That the management factory at Rama Road is not
registered under the Factories Act or Shops and
Establishments Act and, therefore, to work in the factory and
operating said factory is illegal.
(iii).That the work that management wanted to take from him,
was never done by the workman before and the work he used
to do, was not there at the transferred place. Besides, the
management could not affect changes in the nature of his
work without serving him the notice required under Section 9
- A of the Industrial Disputes Act, 1947.
(iv).That the management was paying to the workman minimum
wages of unskilled workman and the management had failed
to express / explain as to why it has transferred an unskilled
workman.
Contd...
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I.D. NO. 167/01.
(v).That the Hon'ble Apex Court had ordered the closure of 168
polluting industries w.e.f. 30.11.1996 and the establishments
which were directed to close their factories were required to
pay additional compensation to their workmen equal to six
years wages in case they close down or shift from Delhi to
some other place, compensation equal to one year wages
was required to be paid. The management transferred the
workman to safeguard itself from the said orders of the
Hon'ble Apex Court in case it closes its factory.
(vi).That the management had transferred him to break up the
union and to get the factory run from the contract workers
which amounts to unfair labour practice.
(vii).That the management has transferred him not on any
administrative ground but with a revengeful intention to break
up the union.
It is further averred that in order to evade payment of
compensation equivalent to six months pay in case of closure
or paying one year wages in case of shifting of the
establishment, the management prior to the deadline of
Contd...
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I.D. NO. 167/01.
30.11.1996 obtained resignation letters of 1700 workers. In
pursuance of the orders by the Hon'ble Apex Court in a writ in
that regard, 400 workers were sent back for duty on
01.09.1997. On 28.09.1992 six lady workers were removed
from the service during pendency of enquiry proceedings. On
28.10.1997 during pendency of the enquiry proceedings 29
workers were terminated from the services. Another 27
employees were removed on 11.08.1998 during the pendency
of the enquiry proceedings. Another 44 workers were removed
from services during the pendency of the enquiry proceedings
on 17.08.1999 and seven others were also removed from
services. Another set of 04 employees was removed from the
services in December, 1999. Forty Six other employees were
transferred outside in the sales office. Workers namely, Munna
Prasad and Satnam Vishwakarma were dismissed from
services whereas one Ali Chand worker was prematurely
retired. Two other workers, namely, Satender Mishra and Raja
Contd...
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I.D. NO. 167/01.
Ram were terminated on 23.12.1999 during pendency of their
enquiry proceedings. On 09.02.2000, Mr. Nirmal Dubey,
President of the union was compelled to leave Delhi after
settling his accounts. The office bearers of the union and other
workers were threatened to be implicated in false cases.
3. It is further averred that the workman is a member of the
workers union, namely, Sawhney Rubber Industries Union. The
said union has passed a resolution in its meeting to file an
industrial dispute regarding transfer of workman before the
Conciliation Officer. It is further averred that order of his
transfer from Shahdara Factory to Rama Road Factory is
illegal, unjustified and liable to be set aside with directions to
the management to reinstate him and to give him all benefits
alongwith back wages besides interest @ 18% per month.
4. The management has filed a written statement taking
Contd...
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I.D. NO. 167/01.
preliminary objections that neither workman nor union known as
Sawhney Rubber Industries Mazdoor Union has properly
espoused the cause of the workman before raising an industrial
dispute before the Conciliation Officer; that the vast majority of
the workmen is not the members of the said union and never
authorized the union to raise the dispute and, therefore, the
said union has no locus standi either to raise or espouse the
cause of the workmen; that the transfer of workman is an
incidence of service and he has been transferred as per
exigency of work. The management due to certain
administrative reasons wanted to shift certain process to its
factory at Rama Road so it became necessary to transfer
workmen from its Shahdara Factory. The workman joined his
duty at the place of transfer on 31.08.2001 and the
management has taken him on duty. Thus, after his joining duty
at the place of transfer, the present dispute becomes
infructuous. However, the workman did not report for duty
Contd...
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I.D. NO. 167/01.
w.e.f. 01.09.2001 on instruction of the management to report for
duty in shift. Thus, the workman is absent from duty after
01.09.2001 at Rama Road Factory of the management. On
merits, it is denied that the workman was doing the work of
Chappi Machine Operator in Tube A Section. According to the
management he is an unskilled worker and he was being paid
minimum wages as notified by the Govt. of NCT of Delhi to his
category. It is denied that the management has kept all the
workmen as unskilled workmen and that they are not given
wages as per their work and designation. The management
admitted that the workmen through their union has raised the
dispute claiming that all the workmen employed in the factory
are unskilled workmen and doing skilled job. In fact the dispute
was raised to attract the provisions of Section 33 of I.D. Act and
thus the dispute was raised with mala fide intention to harass
the management. It is further averred that transfer of the
workman is legal is legal, proper and justified as per the
Contd...
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I.D. NO. 167/01.
conditions of employment. It is denied that the management
does not have the factory licence at the place where the
workman has been transferred. Since the workman has been
transferred as per terms of his employment, he has to obey the
transfer order. It is denied that the workman has not done the
work which the managements want him to do at the place of
transfer. He is an unskilled worker and he will be given the
same work at the place of his transfer. Transfer as per the
terms of employment does not attract the provisions of Section
9-A of the Industrial Disputes Act and is legal and justified. The
management admitted that Hon'ble Apex Court had ordered the
closure of 168 polluting industries w.e.f. 30.11.1996 and the
establishments which were directed to close their factories,
were required to pay additional compensation to the workmen
equal to 6 years wages in case they close down or to pay
compensation equal to one year wages in case they shift from
Delhi to some other place. However, it is averred that the said
Contd...
-:11:-
I.D. NO. 167/01.
judgment is not applicable to the management factory as the
Hon'ble Supreme Court of India gave permission to the
management to continue its operation in Delhi. It is denied that
management forced any workman to leave the services during
the period of suspension. In fact, after the said orders for
closing the industries w.e.f. 30.11.1996, the Hon'ble Apex Court
passed an order dated 04.12.1996 directing the management
factory to continue its operation by fulfilling the requirements of
law relating to pollution. Thus, after the order of the Hon'ble
Apex Court, the management was neither bound to close its
establishment nor was required to shift from Delhi to some
other places. Thus the workmen of the management were not
entitled to additional compensation equal to six years wages or
one year wages as the case may be. The workmen of the
management approached the Hon'ble Apex Court for payment
of additional compensation equal to six years wages but Their
Lordships ordered them to report for duty. The management
Contd...
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I.D. NO. 167/01.
continued to pay full wages to the workmen who reported for
duty from 01.09.1997 and thereafter till the start of the operation
of the factory. Attendance of the workmen was monitored by
the authorities of the Labour Department of the Govt of Delhi
during the period. It is further denied that transfer of the
workman was for the reason that the management wanted to
break the union or wanted to run the factory on contract basis.
It is further averred that management has transferred the
workman on account of administrative exigency and not on
account of victimization or with any intention to break the union.
It is denied that the management forced any workmen to leave
services during the period of suspension of work. It is further
averred that the management suspended a few workmen
pending enquiry but it happened due to serious charges against
those workmen and, therefore, suspension was legal and
justified. It is further averred that workmen were involved in the
acts of violence / rioting and were charge sheeted and fair and
Contd...
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I.D. NO. 167/01.
proper domestic enquiry was held against them, whereas they
were found guilty by the Enquiry Officer, their services were
terminated after due process. It is further averred that the
management transferred some of the the workmen to their
sales depot but it was done due to exigency of work. As
regards Munna Prasad workman, it is averred that his services
were terminated due to his ill health which incapacitated him to
perform his work normally. Workman Satnam Vishwakarma
was absent from duty and Duli Chand workman was retired as
per terms of employment.
5. It is averred that the management has no knowledge
about the meeting of the union whereas resolution was passed
authorizing the union to raise the present dispute. However, it
is averred that the dispute has not been properly espoused, so,
is not maintainable. It is denied that order of transfer is illegal,
improper and unjustified.
Contd...
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I.D. NO. 167/01.
6. The workman filed rejoinder denying averments in the
written statement and reiterating the facts stated in the
statement of claim.
7. On the above facts / pleadings, following issues were
settled by my ld. Predecessor on 10.07.2002 :-
1. Whether the workman has espoused
its cause? OPW.
2. Whether the transfer of the workman
is illegal or unjustified. OPW.
3. As per terms of reference.
8. Both the parties were directed to adduce their evidence.
Workman examined himself as WW1 wherein he tendered his
affidavit duly attested by an Oath Commissioner appointed by
the Hon'ble High Court of Delhi. Workman also examined
WW2 - Sukhveer Singh who also tendered his affidavit. He
also relied upon the documents Ext. WW2/1 to WW2/246. In
Contd...
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I.D. NO. 167/01.
his cross examination he admitted that on 30.11.1996
management had to suspend the work due to air pollution but
production work was restarted from July, 1998. He also
admitted that the Hon'ble Apex Court has not passed any order
for closing down its factory after 1998. He also admitted that
during the suspension of the production proceedings as per the
order of Hon'ble Apex Court the payment was made to the
workman. In his further cross examination WW2 - Sukhveer
Singh denied that no meeting of the union took place to
espouse the cause of the workman. He further denied that the
meeting of the union had taken place contrary to the
constitution of the union.
9. On the other hand, the management examined MW1 -
Mr. Anoop Kumar Sethi who tendered his affidavit dated
07.01.2004 in evidence duly attested by an Oath
Commissioner appointed by the Hon'ble High Court of Delhi
Contd...
-:16:-
I.D. NO. 167/01.
and relied upon the documents Ext. MW1/1 to MW1/14. In his
cross examination he denied that the workman was working as
Chappi Machine Operator with the management in Tube
Section. He also denied that the workers were not given the
designation as per their designation in the factory of the
management. However, he admitted that a dispute is pending
before the Industrial Tribunal - I with regard to the designation
as per law to which workman herein is a party. He further
stated that workman was transferred to Rama Road for similar
work in the Bead Wire Section. He denied that the premises
at Rama Road is not sufficient for running the factory and for
working 97 workers. He admitted that the workman had been
acquitted in the complaint filed to the police with regard to
allegations contained in Ext. MW1/3. However, he stated that
acquittal was done after injured entered into a settlement with
the accused. He further denied that the workman was
transferred to Rama Road as he was actively participating in
Contd...
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I.D. NO. 167/01.
the functioning of the union.
10. Both the parties have addressed their arguments.
I have carefully considered the same. I have also carefully
gone through the evidence and documents placed on record.
My findings on the issues are as under:-
ISSUE NO. 1
11. It is not in dispute that the dispute referred to this tribunal
for adjudication is not covered within the ambit of Section 2 - A
of the Industrial Disputes Act, 1947. In order to bring it within
the definition of Section 2 - (k) of the Industrial Disputes Act,
1947, it is required to be proved that the cause of the workman
has been duly espoused by the union of workers or is taken up
Contd...
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I.D. NO. 167/01.
by substantial number of workers.
12. A.R for the management has argued that as the reference
is not that of any dismissal, discharge, retrenchment or
termination, thus, to be an industrial dispute, it has to fall under
the ambit of Section 2 - (k) of the Industrial Disputes Act,
1947. He has further argued that an individual dispute of a
workman with an employer (except that of discharge, dismissal,
retrenchment or termination) cannot be termed as industrial
dispute until and unless it is taken by a number of workmen or
union of the workmen of that employer. In that regard, he has
relied upon a decision by the Hon'ble Apex Court reported as
Bombay Union of Journalists and Ors. Vs. The 'Hindu'
Bombay and Anr. AIR 1963 S.C. 318 and a decision by our
own Hon'ble High Court in the case of Management of M/s.
Hotel Samrat Vs. Govt. of NCT 2007 LLR 386.
Contd...
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I.D. NO. 167/01.
13. On the other hand, A.R for the workman has argued that
workman has adduced evidence in the form of deposition of
WW2 - Sukhveer Singh and the document Ext. WW2/1 to
prove espousal of his cause by the workers union, namely,
Sawhney Rubber Industries Mazdoor Union.
As held by our own Hon'ble High Court in the case of
Management of M/s. Hotel Samrat Vs. Govt. of NCT (supra),
the expression 'espousal' means dispute of individual workman
is adopted by union as its own dispute or large number of
workmen give support to cause of individual workman. It was
further held by their Lordships that the issue of espousal is not
merely a technicality and once the Industrial Tribunal decides
the issue of espousal against the workman, it lost its jurisdiction
to adjudicate dispute, since no industrial dispute existed. The
Hon'ble Apex Court in Bombay Union of Journalists and
Ors. Vs. The 'Hindu' Bombay and Anr. (supra) has laid down
that in each case in ascertaining whether an individual dispute
Contd...
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I.D. NO. 167/01.
has acquired the character of an industrial dispute the test is
whether at the date of the reference the dispute was taken up
as supported by the Union of the workmen of the employer
against whom dispute is raised by an individual workman or by
an appreciable number of workmen.
14. Admittedly, the dispute sent to this Tribunal for
adjudication is an individual dispute of a workman with the
employer being not case of discharge, dismissal, retrenchment
or termination. Therefore, as laid down by the Hon'ble Apex
Court in Bombay Union of Journalists and Ors. Vs. The
'Hindu' Bombay and Anr. (supra), it cannot be termed as
industrial dispute until and unless it is proved to have been
taken up by the union of the workmen of the management or by
a substantial number of workmen of that management.
Onus is on the workman to plead and prove that his cause
has been duly espoused by the union of the workmen employed
Contd...
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I.D. NO. 167/01.
with the management or by a substantial number of workers of
the management. The only evidence brought on record is the
oral deposition of WW2 - Sukhveer Singh and resolution Ext.
WW2/1, which is the copy of the espousal by the union. WW2
- Sukhveer Singh has proved Ext. WW2/41, which is
Constitution of the union. He has also deposed that Ext.
WW2/1 is the resolution passed by the workers union
espousing the cause of the workman.
It is noticed that as per clause VII of the said Constitution
Ext. WW2/41, at least five days noticed for Executive
Committee Meeting is necessary. For an urgent Executive
Committee Meeting, at least two days notice is necessary. The
notice is also required to be in writing spelling out the agenda
also. Ext. WW2/1 reveals that it was a normal Executive
Committee Meeting, for which, as per clause VII of the
Constitution, five days written notice spelling out agenda is
mandatory. Ext. WW2/1 also shows that resolution was passed
Contd...
-:22:-
I.D. NO. 167/01.
on 06.12.2000 and the date of transfer under challenge is of
04.12.2000. That means there is not even two days notice of
the Executive Committee Meeting against five days notice as
required under the Constitution Ext. WW2/41. The workman
has also not placed and proved on record any agenda of the
meeting allegedly held on 06.12.2000.
Ext. WW2/1 further reveals that it is signed by 13 workers
only. It does not spell out the presence of the workman in
question in the said meeting. The workman has not produced
the original minutes book containing resolution, copy of which is
Ext. WW2/1. In the absence of the original minutes book
containing minutes of the meeting allegedly held on
06.12.2000, Ext. WW2/1 cannot be said to have been proved
in evidence as required under the law of evidence.
In Bombay Union of Journalists and Ors. Vs. The
'Hindu' Bombay and Anr. (supra), a copy of the resolution of
the union was placed on record. The agenda of the meeting
Contd...
-:23:-
I.D. NO. 167/01.
on which reliance was placed was not filed. No minutes of
General Body Meeting were maintained. In the light of these
facts, the Hon'ble Apex Court held as under :-
"There is no evidence that the notice
for a General Body Meeting of the
time prescribed under Clause 7 was
given to the members, and the
Secretary had made a startling
statement that he did not maintain any
minutes of the meeting, but had
copied out the resolution on a loose
sheet of paper.
The documentary evidence which
should normally have been in
existence if the case that union
passed a resolution on April 17, 1998
was true has not been produced on
the plea either that it was not
maintained or that it was destroyed.
..........By the mere passing of a
resolution by other members of the
union the case of the appellants that the
claim of Salivateeswaran was
supported by Venkateswaran cannot be
supported."
In the light of the facts narrated above, proposition of law
laid down by the Hon'ble Apex Court in Bombay Union of
Contd...
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I.D. NO. 167/01.
Journalists and Ors. Vs. The 'Hindu' Bombay and Anr.
(supra) is squarely applicable to the facts of this case. So, it is
held that mere passing of resolution Ext. WW2/1 does not
prove espousal of workman cause. Otherwise also, the
workman has failed to produce in the Court the original minutes
book in order to show that meeting of the union was held on
06.12.2000 and any such resolution was passed by the union
on the said date.
As mentioned above, as per Ext. WW2/1 a meeting was
held on 06.12.2000 after the transfer order had been issued
on 04.12.2000. As per clause VII of the Constitution Ext.
WW2/41, at least five days notice for normal Executive
Committee Meeting and two days notice for an urgent Meeting
of Executive Committee besides, spelling out agenda of the
meeting, are must. As mentioned earlier no agenda of the
said meeting is proved. There is no evidence on record to
show that meeting on 06.12.2000 was preceded by five days
Contd...
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I.D. NO. 167/01.
notice disclosing the agenda and, therefore, it cannot be said
that meeting, if held at all on 06.12.2000, was legal and proper
as per the Constitution Ext. WW2/41. Ext. WW2/1 cannot be
taken into consideration for want of production of original
minutes books and the agenda of the meeting. In the absence
of original minutes book and the agenda, document Ext. WW2/1
cannot be believed to be authentic and beyond any doubt.
Therefore, practically except bare and bald deposition of WW2
- Sukhveer Singh, there is no iota of evidence on behalf of the
workman to prove espousal of his cause by the workers union
or substantial number of workers of the management as
required under the law. In other words, the workman has failed
to discharge the initial burden and to prove that his cause has
been espoused as required under the law to convert his
individual dispute with the management into an industrial
dispute to bring it within the ambit of Section 2 - (k) of the
Industrial Disputes Act, 1947. The issue is accordingly decided
Contd...
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I.D. NO. 167/01.
against the workman and in favour of the management.
ISSUES NO. 2 & 3.
15. A.R for the management has argued that onus / burden is
always upon the workman to plead and prove that his transfer
is illegal or unjustified. In that regard he has relied upon the
case law reported as Shankar Chahravati Vs. Britania
Biscuit Co. Ltd. and another 1979 FLR (39) page 70. In that
regard he has also relied upon the case law in Regional
Manager, S.B.I Vs. Rakesh Kumar Tiwari 2006 LLR 209 and
M/s. J.K. Iron and Steel Company Ltd. Vs. The Iron and
Steel Mazdoor Union Kanpur (1955) 25 CR 1315. A.R for
the management has further argued that it is prerogative and
discretion of the management to transfer a workman in the
exigency of work. In that regard he has relied upon a decision
by our own Hon'ble High Court reported as General Marketing
Contd...
-:27:-
I.D. NO. 167/01.
and Manufacturing Company Ltd. and Presiding Officer
and Others 2000 (2) LLR 591. A.R for the management has
further argued that it is actually not a case of transfer of the
workman, rather it is a case of shifting of one whole unit of
Bead Wire Section from Jhilmil Industrial Area to Rama Road
Industrial Area, for which, the management has full discretion
and is a Fundamental Right under Article 19 (1) (g) of the
Constitution and there is no statutory restriction on its right to
shift any unit which is also included in right to do business.
16. In Shankar Chahravati Vs. Britania Biscuit Co. Ltd.
and another (supra), the Hon'ble Apex Court has held as
under:-
".................A contention to
substantiate which evidence is
necessary has to be pleaded if there
is no pleading raising a contention
there is no question of substantiating
such non-existing contention by
evidence. It is well settled that
Contd...
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I.D. NO. 167/01.
allegation which is not pleaded even
if there is evidence in support of it
cannot be examined because the
other side has no notice of it and if
entertained it will tantamount to
granting an unfair advantage to the
first mentioned party. We are not
unmindful of the fact that pleadings
before such bodies have not to be
read strictly, but it is equally true that
the pleadings must be such as to give
sufficient notice to the other party of
the case it is called upon to meet.
This view expressed in Tin Printers
(Private) Ltd. Vs. Industrial Tribunal
20, command to us. The rule of fair
play demand where a party seeks to
establish a contention which if proved
would be sufficient to deny relief to the
opposite side, such a contention has
to be specifically to deny relief to the
other side, such a contention has to
be specifically pleaded and then
proved. But if there is no such
pleading there is no question of
proving something which is not
pleaded. This is very elementary.
Can it for a moment be suggested that
this elementary principle does not
inform industrial adjudication? The
answer must be emphatic 'no'."
Contd...
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I.D. NO. 167/01.
In Regional Manager, S.B.I Vs. Rakesh Kumar Tiwari
(supra), the Hon'ble Apex Court has laid down that if the plea is
not put forward such an opportunity is denied, quite apart from
the principle that no amount of evidence can be looked into
unless such a plea is raised. In M/s. J.K. Iron and Steel
Company Ltd. Vs. The Iron and Steel Mazdoor Union
Kanpur (supra), the Hon'ble Apex Court has held that even
though the Industrial Tribunals are not bound by all the
technicalities of civil courts, they must nevertheless follow the
same general pattern. Now the only point of requiring
pleadings and issue is to ascertain the real dispute between the
parties, to narrow the area of conflict and to see just where the
two sides differ. It is not open to the tribunals to fly off at a
tangent and disregarding the pleadings, to reach any
conclusion that they think are just and proper.
17. A.R for the workman does not controvert the aforesaid
Contd...
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I.D. NO. 167/01.
case law relied upon by A.R for the management. However, he
has argued that transfer order issued against the workman is
mala fide and amounts to victimization; that transfer order was
issued in order to break the union of the workers. He has
further argued that the transfer order is actuated by the
consideration to evade liability under the orders by the Hon'ble
Apex Court on closure of 168 polluting establishments in Delhi.
He has further argued that the place at Rama Road Factory is
too small for 96 workers to sit and work and that there are no
machines installed there at Rama Road Factory.
I have gone through the case law relied upon by the
management i.e. Shankar Chahravati Vs. Britania Biscuit
Co. Ltd. & another (supra), Regional Manager, S.B.I. Vs.
Rakesh Kumar Tiwari (supra) and M/s. J.K. Iron Steel
Company Ltd. Vs. The Iron and Steel Mazdoor Union
Kanpur (supra). The proposition of law laid down by Their
Lordships therein is that the allegation which is not pleaded
Contd...
-:31:-
I.D. NO. 167/01.
even if there is evidence in support of it, it cannot be examined
because the other side has no notice of it and if entertained it
will tantamount to granting an unfair advantage to the first
mentioned party. If the plea is not put forward such an
opportunity is denied quite apart from the principle that no
amount of evidence can be looked into unless such a plea is
raised.
18. It is settled law that onus of establishing mala fides or
victimization is on the employee. Allegations of mala fides or
victimization by employee against the employer must be
properly and adequately pleaded giving full particulars upon
which the charge is based to enable the management to meet
them. The allegations of mala fides or victimization should not
be vague or indefinite. Mere allegations, vague suggestions
and insinuations are not enough to discharge that onus. This
view is fortified by the law laid down by the Hon'ble Apex Court
Contd...
-:32:-
I.D. NO. 167/01.
in the case law reported as Bharat Iron Works and
Bhagubhai Balubhai Patel & Ors. 1976 (32) FLR 72. Therein
Their Lordships have held as under :-
"A word of caution is necessary.
Victimization is a serious charge by
an employee against an employer,
and, therefore, it must be properly
and adequately pleaded giving all
particulars upon which the charge is
based to enable the employer to fully
meet them. The charge must not be
vague or indefinite being as it is an
amalgam of facts as well as
inferences and attitudes.
The onus of establishing a plea of
victimization will be upon the person
pleading it. Since a charge of
victimization is a serious matter
reflecting, to degree, upon the
subjective attitude of the employer
evidence by acts and conduct, these
have to be established by safe and
sure evidence. Mere allegations,
vague suggestions and insinuations
are not enough. All particulars of the
charge brought out, if believed, must
be weighed by the Tribunal and a
conclusion should be reached on a
totality of the evidence produced."
Contd...
-:33:-
I.D. NO. 167/01.
The Hon'ble Apex Court in the case law reported as The
Hindustan Liver Ltd. Vs. The Workmen 1974 I LLJ 94 has
held as under :-
"The transfer was prima facie valid.
Burden lay on the workmen to show
that it was in fact invalid. In view of
Labour Court's finding, it cannot be
urged by the workmen that P.P. Jude
was transferred from the former to the
latter section as a measure of
victimization for trade union activities.
There is no adverse finding against
the appellant's good faith in ordering
his transfer, nor is there any finding
that the transfer of P.P. Jude was an
act of unfair labour practice."
The Hon'ble Apex Court in the case law reported as
Union of India & Anr. Vs. N.P. Thomas 1993 I LLJ 1063 has
held as under :-
"In the present case, it cannot be said
that the transfer order of the
respondent transferring him out of
Kerala Circle is violative of any statutory rule or that the transfer order Contd...
-:34:-I.D. NO. 167/01.
suffers on the ground of mala fide.
The submissions of the respondent that some of his juniors are retained in Kerala Circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post has no vested right to remain in the Kerala Circle itself and cannot claim, as a matter of right, the posting in that Circle even on promotion."
Our own Hon'ble High Court in the case of G. Srinivasan Vs. National Thermal Power Corporation, Ltd. 2004 (4) LLN 293 has laid down as under :-
"Having heard the petitioner and learned counsel for respondent and perused the documents as pointed out, I find that no case for mala fide or discrimination against the petitioner is made out. It may be so that there are number of officers who have like the petitioner stayed at a station for 14 years or there are others who have not been moved for more than 14 years. Posting of officers and their optimum utilization is the prerogative of the management. The Court does Contd...-:35:-
I.D. NO. 167/01.
not interfere unless mala fide or arbitrariness is writ large on the record.
The proposition of law laid down by Their Lordships in Bharat Iron Works and Bhagubhai Balubhai Patel & Ors.
(supra), Union of India & Anr. Vs. N.P. Thomas (supra) and G. Srinivasan Vs. National Thermal Power Corporation, Ltd. (supra) is squarely applicable to the case in hand.
19. According to the management, the workman was employed by them on the basis of the terms and conditions as contained in a letter of appointment Ext. WW1/M5. Workman deposing as WW1, in his cross examination admitted his signatures on Ext. WW1/M5 in token of having accepted the terms and conditions of employment as contained therein. However, he further deposed that he was not given copy of the said appointment letter nor was allowed to read its contents relating to terms and conditions of his employment. The latter Contd...
-:36:-I.D. NO. 167/01.
part of his statement does not inspire confidence. There is nothing on record by the workman to prove that he ever complained to the Labour Office and even to the management stating that he had been made to sign the said appointment letter without allowing him to read the terms and conditions contained therein and also that he was not given copy of the said letter of appointment. Therefore, there is no substance in the said contention of the workman. MW1 - Anoop Kumar Sethi, deposing on behalf of the management stated that workman was issued a letter of appointment which is Ext. WW1/M5. He has identified signatures of the workman on the said letter of appointment. It is noticed that his statement in that regard has not been challenged in his cross examination by A.R for the workman and, therefore, it goes in rebutted and unchallenged and there are no grounds to disbelieve the same. This goes to prove that the workman was employed with the management as labourer vide appointment letter Ext. WW1/M5 Contd...
-:37:-I.D. NO. 167/01.
on the terms and conditions contained therein.
As per clause X in that letter of appointment, services of the workman were transferable to any other factory or sales depot in or outside Delhi. In the light of appointment letter Ext. WW1/M5 and clause X in particular as contained therein, there can be no dispute that the transfer is the prerogative and discretion of the management.
20. At the same time it is also not in dispute that a transfer order can be challenged on account of mala fide or victimization. The workman claims that his transfer is mala fide and amounts to victimization on various grounds which are being taken up one by one;
(i).First contention of the workman is that the management did not have the powers to transfer the workman to Rama Road Factory as at the time of his appointment, there was no unit of the management there at Rama Road; that the management do not have the power to transfer at the place which was not Contd...
-:38:-I.D. NO. 167/01.
in existence at the time of his appointment and, thus his transfer is illegal and unjustified.
A similar question came up before our own Hon'ble High Court in the case reported as General Marketing and Manufacturing Company Ltd. Vs. Presiding Officer and Others 2000 (2) LLR 591. Therein Their Lordships have held as under :-
"According to the aforesaid stipulation in the appointment letter and conditions of appointment letter and conditions of appointment, it is clear that the services of the petitioner workman were liable to be transferred to anywhere in India or any department. It is further stipulated in these conditions that management is at liberty to utilize service from time to time in any department or any section / branch of the company in India. Once these are the service conditions, relating to transfer it cannot be said that workman could not be transferred to particular branch which was opened after the appointment of the workman. If the Contd...
-:39:-I.D. NO. 167/01.
contention of the workman is accepted it would mean that workman can be transferred to any of the branches / departments anywhere in India which were in existence as on the date of her appointment only but not to those branches or departments which were opened by the management after her appointment. Such a position cannot be accepted in law and it would make the very condition of service regarding transferability to any department / section branch anywhere in India redundant."
As already mentioned above, the management has proved in evidence letter of appointment Ext. WW1/M5 which also contains the terms and conditions of his employment and an acceptance by the workman of those terms and conditions of his employment. Bare perusal of clause X of Ext. WW1/M5 reveals that the management had a right to transfer the workman to another factory or sale depot by them in as well as outside Delhi and the workman would not have a right to object Contd...
-:40:-I.D. NO. 167/01.
to the same. Once these are the service conditions relating to his transfer, it cannot be said that the workman could not be transferred to Rama Road Factory which was opened after his appointment with the management. If the said contention of the workman is accepted, it would mean that he can be transferred to any other factory or sale depot of the management anywhere in Delhi or outside Delhi which was in existence as on the date of his appointment but not to the factory / factories which were set up by the management after his appointment. Such a position cannot be accepted in law and it would make the very condition of the service regarding transferability to any other factory or sale depot in and outside Delhi redundant. The proposition of law laid down by our own Hon'ble High Court in General Marketing and Manufacturing Company Ltd. Vs. Presiding Officer and others (supra) is squarely applicable to the facts of this case. Applying the same, it is held that the management had full legal right / power to transfer the workman Contd...
-:41:-I.D. NO. 167/01.
to Rama Road Factory even though it was not there at the time of workman's appointment. In other words, there is no substance in this contention of the workman.
21. The next contention of the workman is that the management's factory is not registered under the Factories Act or the Shops and Establishments Act and to work in the factory and operating such factory is illegal. The management has brought on record document Ext. MW1/14 which reveals that the management already applied to the concerned authority for registration under the Factories Act. There is nothing on record by the workman to rebut the same and, therefore, there are no grounds to disbelieve that evidence adduced by the management. Otherwise also, the transfer of the workman does not have any relation with the registration of the management factory under the Factories Act or Shops and Establishments Act. There is nothing on record that his working Contd...
-:42:-I.D. NO. 167/01.
there at Rama Road factory would be illegal. There is no substance in this contention.
The third contention raised by the workman is that the work, which the management wanted to take from him at Rama Road factory, was never done by him before, and the work which he used to do at Jhilmil Industrial Area, is not there at transferred place i.e. Rama Road Factory, thus, without giving notice under Section 9 - A, the management wanted to change the nature of the work of the workman which is illegal and, thus, transfer is illegal and unjustified. Workman's case is that he was doing the work of tube packing. His affidavit is in the same tune. On the other hand, management plea is that the workman is an unskilled workman and he was asked to do the same work at the place of his transfer i.e. Rama Road Factory and, therefore, no change in the nature of his work was contemplated and thus, the provisions of Section 9 - A of the Industrial Disputes Act, 1947 were not available to the Contd...
-:43:-I.D. NO. 167/01.
workman.
In the case of Range Forest Officer Vs. S.T. Hadimani 2002 I LLJ 1053, it was held by the Hon'ble Apex Court as under :-
"It was the case of the claimant that he had so worked but this claim denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filling of an affidavit is only his own statements in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year."
The initial burden lies upon the workman to prove that he had been employed and had been working as Chappi Machine Operator and not as a labourer as claimed by the management. In his own cross examination, workman admitted that he does not have any ITI diploma or technical qualification. He also admitted that he was being paid the wages of a labourer and Contd...
-:44:-I.D. NO. 167/01.
not of a Chappi Machine Operator. In his further cross examination, the workman also admitted that the management never issued him any letter or orders stating that he was working as Chappi Machine Operator. Vide transfer letter Ext. WW1/M1, management had transferred him from Jhilmil Industrial Area to Rama Road Industrial Area to work as a labourer. It is his own case that he had submitted a reply to the management to the transfer letter and the same is Ext. WW1/M3. Perusal of the said reply Ext. WW1/M3 reveals that therein the workman did not allege that he was working as Chappi Machine Operator and not as a labourer in the Bead Wire Section. There is nothing on record by the workman to show that he ever complained to the management that he was doing the work of Chappi Machine Operator but was being paid a salary of labourer and had also not been given designation of Chappi Machine Operator. In the appointment letter Ext. WW1/M5, his designation has been mentioned as Contd...
-:45:-I.D. NO. 167/01.
labourer. There is no iota of evidence by the workman either in his own evidence or in the cross examination of management witness that he had ever submitted any written complaint to the management or to the Labour Department alleging that he had been employed as Chappi Machine Operator and had been performing duties as such, but his designation in the letter of appointment was wrongly mentioned as labourer. All these facts clearly point out that contention of the workman that he was employed as Chappi Machine Operator and not as a labourer as mentioned in the appointment letter Ext. WW1/M5, is an after thought and is without any substance. As per appointment letter Ext. WW1/M5, he was employed as labourer. Vide transfer letter Ext. WW1/M1, he was transferred to Rama Road Factory to work as labourer in Bead Wire Section which was shifted from Jhilmil Industrial Area to Rama Road and thus it was not a case of change in the nature of his duties. Thus, the provisions of Section 9 - A of the Industrial Contd...
-:46:-I.D. NO. 167/01.
Disputes Act, 1947 were not attracted against the management. The contention raised by the workman in that regard is an after thought and without any substance.
22. Another contention of the workman is that the management was paying him minimum wages of unskilled workman and the management had failed to express as to why the management transferred him to Rama Road Factory. This contention is devoid of any merits and substance. The workman has not brought on record any evidence to show that he could not be transferred being unskilled workman. As mentioned earlier, as per terms and conditions of letter of appointment Ext. WW1/M5, the management had every right to transfer him as labourer to any other factory or sales depot in and outside Delhi during tenure of his employment with the management. He has not brought to the notice of this Tribunal any legal bar to his transfer being an unskilled workman to Contd...
-:47:-I.D. NO. 167/01.
another factory of the management. Therefore, his contention in that regard is devoid of any merits.
Next plea of the workman is that the management has transferred him to safeguard itself from the orders of the Hon'ble Apex Court that in case the management closes its factory, it will have to pay six years wages as compensation to the workman. It is not in dispute that the Hon'ble Apex Court had ordered closure of 168 polluting industries w.e.f. 30.11.1996 and the establishments which were directed to close their factories, were required to pay additional compensation to the workman equal to six years of wages in case they close down or to pay compensation equal to one year wages in case those establishments shift from Delhi to some other places. The contention of the management is that the said orders by the Hon'ble Apex Court were not applicable to the management factory as the Hon'ble Apex Court has already granted them permission to continue its operations in Delhi.
Contd...
-:48:-I.D. NO. 167/01.
The management has placed on record order dated 04.12.1996 Ext. MW1/4 passed by the Hon'ble Apex Court whereby the management of Sawhney Rubber Industries has been allowed to continue its operation by fulfilling the requirements of law relating to pollution. Thus, after the said orders by the Hon'ble Apex Court, the management was neither bound to close its establishment nor was required to shift from Delhi to some other place. Thus, the workmen of the management were not entitled to additional compensation equal to six years wages or one year wages as the case may be. Further contention of the management is that the workmen of the management have approached the Hon'ble Apex Court for payment of additional compensation equal of six years wages, but Their Lordships ordered them to report for duty. In terms of those orders, the management continued to pay full wages to the workmen who reported for duty from 01.09.1997 and thereafter till the start of the operation of the factory. The attendance of the workmen Contd...
-:49:-I.D. NO. 167/01.
was monitored by the authorities of the Labour Department of the Government of Delhi in terms of those orders during the period.
23. WW2 - Sukhveer Singh, in his cross examination has admitted that on 30.11.1996 the management had to suspend the work due to air pollution but the production work was re- started from July, 1998. He also admitted that the Hon'ble Apex Court has not passed any order for closing down the establishment at Shahdara Factory after 1998. He also admitted that during the suspension of the production proceedings as per the orders by the Hon'ble Apex Court, payment was made to the workman. He also admitted that the union had been continuously pursuing and pressuring the management to pay the compensation equal to the wages of six years as per the orders of the Hon'ble Apex Court in the case of any termination / retrenchment of workmen or on the closure of Contd...
-:50:-I.D. NO. 167/01.
manufacturing process.
24. MW1 - Mr. Anoop Kumar Sethi in his affidavit by way of evidence deposed that the Hon'ble Apex Court vide orders dated 08.07.1997 Ext. MW1/3 had directed the closure of 168 industries including the respondent management w.e.f. 30.11.1996. The work in the factory of the management was suspended as per the said directions by the Hon'ble Apex Court w.e.f. 30.11.1996. He further deposed that the Hon'ble Apex Court has further directed the establishments, which were directed to close, were required to pay to the workmen, on account of this closure, compensation equal to six years wages and in case of shifting of the factory from outside Delhi, a compensation equal to one year wages. He further deposed that thereafter the management moved an application in the Hon'ble Apex Court to allow it to continue the operation of the management factory after observing the necessary compliance Contd...
-:51:-I.D. NO. 167/01.
as per the specifications of Delhi Pollution Control Board and the management got permission to run its factory in Delhi vide orders dated 04.12.1996 which is Ext. MW1/6 by the Hon'ble Apex Court. He further stated that vide orders dated 27.07.1998, which is Ext. MW1/7, the Hon'ble Apex Court permitted the management to commence the trial production for the period of six weeks which was subsequently affirmed to carry production as per order dated 03.11.1999 which is Ext. MW1/8. He further stated that, thus, the management was not bound to pay compensation to the workmen as per directions of the Hon'ble Apex Court in its order dated 08.07.1996 Ext. WW1/5.
The above deposition of MW1 - Anoop Kumar Sethi has not been challenged in his cross examination conducted by A.R for the workman. Therefore, there are no grounds to disbelieve the same. The said evidence brought on record by the management, coupled with the aforesaid admissions by Contd...
-:52:-
I.D. NO. 167/01.
WW2 - Sukhveer Singh in his cross examination, goes to show that the workman's contention of having transferred the workman to safeguard itself from the orders dated 08.07.1996 passed by the Hon'ble Apex Court, is without any substance.
25. Another contention of the workman is that the management has transferred him to break the workers union and to get the factory run from contract workers which amounts to unfair labour practice. A.R for the management has argued that mere transfer of the workman from Jhilmil Industrial Area to Rama Road Industrial Area could not break the workers union. Besides, the management in no way is bound to see that the union activity should go well though the business of the management gets affected. No doubt, trade union activity has universal recognition and it has a twin objective viz safeguarding the interest of the workers and working industrial place. For whatever reason the management may have Contd...
-:53:-I.D. NO. 167/01.
deemed fit or conducive to grant duty relief the legal status of the act is only that of a concession and not a matter pertaining to the condition of services. It has relied upon the case law reported as Kishori Lal Verma Vs. Hindustan Zinc Ltd. & Anr. 1995 II LLJ 35 and a decision by our own Hon'ble High Court reported as G.S. Puri Vs. Indian Oil Corporation 1996 (II) LLJ 573.
I have gone through the said case law. In the case of G.S. Puri Vs. Indian Oil Corporation (supra) our own Hon'ble High Court has held that court cannot interfere with an order of transfer unless it is vitiated by mala fides or made in violation of any statutory provision; that an active worker of a trade union has no special rights against a transfer so long as it is not motivated; that transfer is a normal incidence and personal difficulties are matters for consideration of the employer; that no vested right could be claimed by an employee against transfer.
In Kishori Lal Verma Vs. Hindustan Zinc Ltd. & Anr.
Contd...
-:54:-I.D. NO. 167/01.
(supra) Division Bench of Hon'ble Rajasthan High Court held as under :-
Transfer of a trade union leader does not ipso facto imply that the transfer is an act of victimization. Trade union activities performed by the office bearers of the union are solely for the benefit and welfare of the workmen and not connected with the establishment itself or the members of the public whose interest the establishments are intended to serve. The duties rendered by the office bearers of the union are not part of the duties rendered to the establishment. The establishment can function without the union but the union cannot function without the establishment. The prime duty of the employee is to serve the establishment and then only the union. No doubt, trade union activity has won universal recognition and it has a twin objective, viz., safeguarding the interests of the workers and ushering industrial peace. For whatever reasons the management may have deemed it feet or conducive to grant duty relief the legal status of that act is only that of a concession and not a matter pertaining to the condition of service.
Contd...-:55:-
I.D. NO. 167/01.
It was further held by Their Lordships that the petitioner as active worker of union has no special rights against transfer so long as his transfer is not motivated. It is not the case of the workman that he is an active worker of trade union of Sawhney Rubber Industries Mazdoor Union. Even if, he had been an active worker of the said trade union, he has no special rights against his transfer from the present place of posting to Rama Road because as per letter of appointment Ext. WW1/M5 his transfer is a normal incidence and a condition of service. There is nothing in the pleadings nor in the evidence to attribute any motive to the management to transfer him to Rama Road Factory and, therefore, his transfer to Rama Road Factory cannot be said to be mala fide or an act of victimization.
Besides, he has no vested rights against his transfer from one factory to another as it is a normal incidence of his service besides, being prerogative of the management to transfer the workman to the place of their choice keeping in view the Contd...-:56:-
I.D. NO. 167/01.
exigency of work. The proposition of law laid down by our own Hon'ble High Court in G.S. Puri Vs. Indian Oil Corporation (supra) and by the Hon'ble Rajasthan High Court in Kishori Lal Verma Vs. Hindustan Zinc Ltd. & Anr. (supra) is squarely applicable to the facts of this case. Therefore, this contention raised by the workman is also without any merits and any substance.
26. In para seven of his statement of claim, the workman has referred to certain acts of the management, which, according to the workman, are examples of all attempts by the management to break a union. One of the facts mentioned is that in order to avoid payment of six years wages in case of closure or one year wages in case of shifting in compliance of orders by the Hon'ble Apex Court in July, 1996, the management had obtained resignation of about 1700 labourers forcibly. On the basis of a writ filed by those workers in the Hon'ble Apex Court, Contd...
-:57:-I.D. NO. 167/01.
400 were taken back on duty from September, 1997. There are no merits in this contention. As already discussed above, the management after having suspended production activities in compliance of the said orders by the Hon'ble Apex Court, had been permitted by Their Lordships vide an order dated 04.12.1996 directing the management factory to continue its production by fulfilling the requirements as per law relating to pollution. In the light of this, the management was not bound to close its establishment nor was required to shift from Delhi to some other place and hence question of payment of six years wages or one year wages as the case may be does not arise. As admitted by WW2 - Sukhveer Singh, in his cross examination, during the suspension of the production proceedings as per the said orders by the Hon'ble Apex Court, the payment was made to the workman. The workers, who reported for duty in terms of the said orders by the Hon'ble Apex Court, were marked presence by the officials of the Contd...
-:58:-I.D. NO. 167/01.
Labour Department and they were duly paid their wages for the intervening period. This goes to show that there is no merits in the said contention of the workman.
Another contention of the workman is that on 28.09.1992 six workers, namely, Kailashwati, Poonam, Vimla, Krishna, Munni and Bhagwati were suspended during domestic enquiry conducted by the management. On 28.10.1997 another 29 employees were suspended during the domestic enquiry proceedings. Another 27 workers were suspended on 11.08.1998 during pendency of the domestic enquiry. Another 44 workmen were placed under suspension during enquiry on 17.08.1999. As per the own case of the workman, the said employees were placed under suspension and domestic enquiry was conducted against them. That means, the management has been following the principles of natural justice before suspending its workmen for the alleged misconduct committed by them. In the light of this, no fault lies on the part Contd...
-:59:-I.D. NO. 167/01.
of the management. The workman has not adduced on record any evidence whatsoever to prove that all these employees were placed under suspension in order to take revenge and to break the workers union.
The workman has referred to some criminal attack attributing the same to the management / owners of the management. In this regard, it is noticed that the workman has not brought on record any evidence whatsoever to substantiate the same. None of the concerned workman has been examined by the workman and, therefore, all the contentions in that regard as contained in para 7 of the statement of claim are devoid of any merits.
27. Another contention of the workman is that the management has not done his transfer on any administrative ground and, therefore, the transfer is illegal and liable to be set aside.
Contd...
-:60:-I.D. NO. 167/01.
The contention of the management is that management has restarted the production in the factory after installing the required machine with the permission of the authorities dealing with the pollution and also with the consent of the Hon'ble Apex Court granted by Their Lordships vide orders dated 04.12.1996. The management has to close its few operations at its factory at Shahdara and has also wanted to shift few operations to its factory at Rama Road for administrative reasons as it was very difficult to continue all the processes / operations at its factory at Shahdara.
MW1- Anoop Kumar Sethi has also deposed that the management due to administrative reasons, decided to shift the Bead Wire Section from its Shahdara Factory to its factory at Rama Road and, therefore, transferred the workman working in Bead Wire Section and few others to its factory at Rama Road. He further deposed that work in Bead Wire Section is purely manual and unskilled in nature.
Contd...
-:61:-I.D. NO. 167/01.
The said statement of MW1 - Anoop Kumar Sethi has not been challenged in his cross examination conducted by A.R for the workman and, therefore, there are no grounds to disbelieve the same. Besides, it is the sole discretion of the management to decide how to run the business. The management wanted to expand its business in Bead Wire Section and, therefore, transferred the workmen working in the Bead Wire Section and few others to its factory at Rama Road. There is nothing on record by the workman to show that any motive can be attributed to the management in expanding its business in Bead Wire Section and transferring the workman along with other workmen working in the Bead Wire Section to its factory at Rama Road. The Hon'ble Apex Court in the case of State of U.P. And others Vs. Gobardhan Lal 2005 S.C.C (L & S) 55 has held that the transfer is prerogative of the authorities concerned and court should not normally interfere therewith, except when (1) transfer order shown to be vitiated by mala Contd...
-:62:-I.D. NO. 167/01.
fides, or (2) in violation of any statutory provision, or (3) having been passed by an authority not competent to pass such an order. It has been further held by Their Lordships that allegations of mala fides must be based on concrete material and must inspire confidence of the Court. Same is the proposition of law laid down by the Hon'ble Apex Court in National Hydroelectirc Power Corporation Ltd. Vs. Shri Bhagwan & Shiv Prakash 2002 S.C.C (L & S) 21. Therein Their Lordships have held that transfer of the employee is not only an incidence but a condition of service. Unless shown to be an outcome of mala fide exercise of power or violative of any statutory provision, is not subject to judicial interference as a matter of routine. Courts or tribunals cannot substitute their own decision in the matter of transfer for that of the management.
Our own Hon'ble High Court in another case Inder Dev Yadav Vs. National Thermal Power Corporation Ltd. and Contd...
-:63:-I.D. NO. 167/01.
Anr. 2002 LLR 361 has held that it is not open for the employee to decide the place where he wants to work and choose the time he wants to join.
The Hon'ble Allahabad High Court in Smt. S.D. Tewari Vs. Chief Medical Superintendent, T.B. Sapru Hospital, Allahabad and others 2000 LLR 636 has held that even assuming that the impugned transfer order was mala fide yet in our opinion the petitioner has not been able to show any prejudice against her, because she has been transferred from one place in Allahabad city to a nearby place in Allahabad city.
The Hon'ble Calcutta High Court in Birla Corporation Ltd. Vs. First Industrial Tribunal and others 2006 LLR 569 has laid down that employer has an unfettered right to select his place of business according to his own choice. The employees cannot stand in the way in such decision making process of the employer so long as their condition of service are not affected by such shifting.
Contd...
-:64:-I.D. NO. 167/01.
In the case in hand, as already discussed above, there is nothing on record by the workman to show that the management has affected any changes in his conditions of service by his transfer from Jhilmil Industrial Area to Rama Road Factory. Hon'ble Kerala High Court in Chacko Samuel Vs. U.O.I and others 2003 LLR 459 has held that transfer of an employee is an incidence of service. Personal difficulty including that the employee is a chronic diabetic patient and undergoing treatment cannot be a ground to stall his transfer. The proposition of law laid in the aforesaid case law is squarely applicable to the facts of this case.
28. A.R for the workman has argued that the space available at Rama Road Factory is not sufficient for the workers transferred to do their duty there. It is not in dispute that the management had asked its workmen to report in three shifts for duty at Rama Road Factory. As stated by MW1 - Anoop Contd...
-:65:-I.D. NO. 167/01.
Kumar Sethi, total number of workers transferred to Rama Road Factory is around 97. In view of the fact that the said workmen have been asked to report for duty in three different shifts goes to show that the space available in the factory at Rama Road cannot be said to be inadequate.
Our own Hon'ble High Court in the case of Wings Wear (P) Ltd. Vs. Workmen as represented by Wings Wear Workers Lal Jhanda Union 1996 LLR 802 has held as under:-
"In the writ petition filed by the workers the decision of the tribunal on the third term of reference has been challenged. It is not disputed before me that the job is transferable from one establishment to the other and all that they done is to post them to the new factory site. Mr. Vohra contented since there is no work available, this transfer is mala fide and could not be justified while Mr. Birbal has pointed out that the factory is coming up over there and work is going to be made available. In any event, I have not been able to find anything wrong with the impugned award on this terms of reference. The employer has transferred in exercise of its power Contd...-:66:-
I.D. NO. 167/01.
under the contract of employment to transfer in Delhi, these workers from one establishment to the other. Even though employer is unable to furnish adequate work to his employees, unless and until the term of employment provide for such contingency the employer has to pay wages and is liable to pay wages so long as the employees are reporting for work and are available for the job.
Applying the proposition of law laid by our own Hon'ble High Court, it is held that even if there is no work available at the new establishment at Rama Road Factory or even if the space available there at Rama Road Factory is insufficient, the transfer of the workman cannot be said to be mala fide because the management is only liable to pay wages so long as the employees posted over there are reporting for duty.
Hon'ble Calcutta High Court in the case of Birla Corporation Ltd. Vs. First Industrial Tribunal and others (supra) has laid down as under :-
Contd...-:67:-
I.D. NO. 167/01.
"Here the management of the petitioner company has decided to shift the mill from the existing site to a place which about 40 km away from the existing site where the petitioner is running another mill, for economic viability. An employer who has taken a high risk by making huge investment in the business, has unfettered right to select the place of business according to his own choice. The employees cannot stand in the way of such decision making process of the employer, so long as their condition of service are not affected by such shifting. This court, thus, holds that shifting itself cannot constitute an industrial dispute. However, when shifting leads to a dispute relating to employment or non-
employment or the terms of employment or conditions of labour of any person, then such a dispute will constitute industrial dispute."
As discussed above in the case in hand, shifting from Jhilmil Industrial Area to Rama Road Factory has not affected any change in terms of employment of workman as he has been transferred with the same terms and conditions. I agree with A.R for the management that the union / workmen cannot Contd...
-:68:-I.D. NO. 167/01.
stand in the way of decision making process of the employer. Otherwise also, his transfer is due to shifting of a unit as such from Jhilmil Industrial Area, Delhi to Rama Road Industrial Area in Delhi and the same is within Delhi and the distance between the two is hardly of 15 kms.
Our own Hon'ble High Court in the matter of M.C.D. Vs. Chattarbhuj Bhushan Sharma 2007 LLR 32 has held that a workman cannot claim posting or right of work in a particular park. In that case the workman was transferred from Punjabi Bagh Garden to Pitampura Garden. The transfer of the workman was held to be bona fide.
29. It has been argued by A.R for the management that it is actually not a case of transfer of the workman, rather it is a case of shifting of one whole unit of Bead Wire Section from Jhilmil Industrial Area, Delhi to Rama Road Industrial Area, Delhi and for the same, the management has full discretion and Contd...
-:69:-I.D. NO. 167/01.
has Fundamental Right under Article 19(1)(g) of the Constitution and there is no statutory restriction on the right of the management to shift any unit (which is also included in right to do business).
Our own Hon'ble High Court in Rajesh Talwar Vs. State Trading Corporation & Ors 2000 LLR 105 has laid down that the law relating to transfer of an employee is well settled by catena of judgments, pronounced from time to time by the Hon'ble Apex Court, that the transfer is an incidence of service and an administrative function and the employer is the best judge about the requirement and posting of its employee. Who should be transferred where, is a matter for the appropriate authority to decide. It was further held by Their Lordships that Court can interfere with the discretion of the employer only under the exceptional circumstances. The said proposition of law laid by Their Lordships is squarely applicable to the facts of this case. In the light of this, I hold that the transfer of the Contd...
-:70:-I.D. NO. 167/01.
workman at the time of shifting of the whole unit of Bead Wire Section from Jhilmil Industrial Area, Delhi to Rama Road Industrial Area, Delhi cannot be said to be mala fide or an act of victimization. The contention raised by A.R for the management in that regard has got substance. The issues are accordingly decided against the workman and in favour of the management.
30. In view of the findings on issue No. 1, 2 and 3 and for the detailed reasons given therein, the workman is not entitled to any relief or any directions from this Tribunal.
The reference is answered accordingly. File be consigned to record room after due compliance by the Ahlmad.
(GURDEEP KUMAR) ANNOUNCED IN THE OPEN COURT PRESIDING OFFICER th ON 16 Day of May, 2008. INDUSTRIAL TRIBUNAL II, K.K.D COURTS, DELHI Contd...