Delhi District Court
Workman Sh. Sudhir Kumar Mathur Raised ... vs Ram Kumar on 6 January, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 158/2000
B E T W E E N
The workman Sh. Sudhir Kumar Mathur
S/o Sh. S.B. Mathur
H7/A, Saket,
New Delhi 110 055.
A N D
The Management of M/s K.G. Khosla Compressor Ltd.
2/1, Desh Bandhu Gupta Road,
Pahar Ganj, P.N.B. Building,
New Delhi110 055.
Ref.: F.(898)/00/Lab./1695559 dated 24.4.2000.
A W A R D
1. Workman Sh. Sudhir Kumar Mathur raised an
industrial dispute against his illegal termination from services,
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which was referred to this court for adjudication by the
Secretary (Labour), Government of National Capital Territory
of Delhi, in the following terms of reference :
"Whether Sh. Sudhir Kumar Mathur has voluntarily
accepted his full and final settlement amount or his
services have been terminated illegally and/or
unjustifiably by the management by way of
transferring him to Madras, and if so, to what relief
is he entitled and what directions are necessary in
this respect?"
2. Brief facts of the case as made out from the record
are that the workman was employed with the management as
telephone operatorcumtypist (receptionist) with effect from
11.12.78. He had unblemished record of service and never gave
any cause of complain to the management. He was designated
as sales executive since last five years and was posted at Delhi.
His last drawn wages were Rs. 6,749/ per month. The
management is engaged in manufacturing of air compressors.
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The management decided to reduce its manpower and, therefore,
made many workers to resign by using harassment and threats.
It is alleged that on 24.8.99, the workman was called at
Faridabad from Delhi and was asked by the Deputy General
Manager (Human Resources Department) to submit his
resignation but the workman refused. On 25.8.99, he was issued
a show cause notice alleging misconduct for not reporting for
duty on transfer at Madras. However, the workman was never
handed over any transfer order nor any money was paid to him
for shifting. It is alleged that the transfer order, if any, is
malafide as it was passed on refusal of the workman to submit
his resignation. On 27.8.99, the workman was informed that
his services have been transferred to somewhere and, as such, he
should not sit in the office. The workman was given a show
cause notice which was replied to by him on 2.9.99. Workman
again reported for duty on 28.8.99 but was not allowed to enter
the office. On 7.9.99, he was again issued a letter directing him
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to report for duty at Madras by 15.9.99 which was also replied
by him. On 16.9.99, services of the workman were terminated
without any notice, notice pay or retrenchment compensation.
He was not given any chargesheet nor any inquiry was
conducted. It is alleged that section 25 K of the Industrial
Disputes Act (hereinafter to be referred as the 'Act') has to be
followed as the management is an industrial undertaking,
employing around eight hundred workers. Thereafter, workman
issued a demand notice to the management seeking
reinstatement with full back wages and consequential benefits
but to no use. Thereafter, the workman raised an industrial
dispute before the conciliation officer but the same could not be
settled and ultimately came to be referred to this court in the
above terms of reference. It is claimed that the workman is
unemployed since the date of his termination. It is prayed that
since his termination is illegal, he is entitled to reinstatement
with all consequential benefits including continuity of service
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and full back wages.
3. Management contested the claim and filed its
written statement taking a preliminary objection that claimant is
not a 'workman' as he was working as 'sales executive'. It is
admitted that he was employed with management with effect
from 11.12.78 as telephone operatorcumtypist (receptionist) as
per appointment letter dated 22.12.78. His services were liable
to be transferred to any where in India at the factory/office of
the management. It is claimed that he was promoted as sales
executive. It is denied that he had unblemished record of
service. It is denied that he was called to office by Deputy
General Manager on 24.8.99 and was asked to resign. It is
claimed that he was transferred to Madras and was tendered
transfer letter dated 24.8.99 but he refused to accept the same.
When the workman did not accept the transfer letter dated
24.8.99, he committed a misconduct as this amounts to
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disobedience of lawful and reasonable orders of the
management. He was given another opportunity vide letter
dated 7.9.99 but he still did not join. In view of this, the
management was constrained to terminate his services. As his
termination was by way of punitive action, no notice was
required to be given to him. It is repeatedly claimed that the
workman refused to obey the transfer order and, as such, has
been rightly terminated. It is denied that the management is an
industrial undertaking and section 25K of the Act has been
violated. It is claimed that chapter V(B) of Act is not applicable
as the office of the management is a commercial establishment.
Other allegations contained in the statement of claim have also
been denied and it is prayed that his claim may be dismissed as
the workman has been terminated as per law for refusal to obey
the transfer order passed as per service conditions.
4. Workman filed rejoinder to the written statement,
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wherein he denied the allegations contained in the written
statement and reasserted the averments made in the statement of
claim.
5. On the pleadings of the parties, following issue was
settled for trial by my learned predecessor vide orders dated
19.1.2004 :
"As per terms of reference."
6. In support of his case workman has examined
himself as WW1, and has placed on record his own affidavit
Ex.WW1/A, along with documents Ex.WW1/1 to 16.
7. On the other hand, management has examined two
witnesses. MW1 is Sh. Mool Chand Sharma, who has placed on
record his affidavit Ex.MW1/A, along with documents
Ex.MW1/1 to 11.
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8. MW2 is Sh. A.N. Shukla, who has placed on record
his affidavit Ex.MW2/A.
9. I have heard the arguments at the bar and have
carefully gone through the file.
10. My findings of the issue are as under :
11. It is submitted by learned authorized representative
(Ld. AR) for the workman that the workman has been
terminated illegally without any chargesheet or inquiry. The
transfer order was not given to him and the transfer order is
malafide. It is repeatedly claimed that he was terminated
because he refused to resign. It is claimed that workman was
performing the job of clerical nature and was never performing
the job of a 'sales executive'. It is claimed that the workman is
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unemployed since the date of his termination. It is repeatedly
claimed that the workman had been victimized as no transfer
order was given to him and the transfer order which was later
on given to him was not legible and, as such, it could not have
been complied with. It is submitted that the termination may be
set aside. My attention has been invited to the following
authorities :
I) Municipal Corporation of Delhi Vs. Ram Kumar
& Anr. 132 (2006) DLT 415 (DB)
II) Emsons Radio Corporation & Anr. Vs. Secretary
(Labour) Government of NCT, Delhi & Anr. 2006
LLR 1040
12. On the other hand, Ld. AR for the management
submitted that claimant is not a 'workman' as he was performing
the duties of 'sales executive'. It is also submitted that the
claimant has been transferred as per terms and conditions of the
employment as well as rules of the management but he refused
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to accept the transfer order and despite being asked twice he did
not report for duty and, as such, his termination is justified. It is
also submitted that no chargesheet or inquiry was required in
this case as the claimant was given two opportunities to join the
duties at Madras but he did not join the same nor submitted any
explanation for not joining there. It is repeatedly submitted that
his termination is legal and justified. My attention has been
invited to the following authorities :
I) U.P. State Brassware Corpn. Ltd. & Anr. Vs.
Uday Narain Pandey (2006) 1 SCC 479.
II) N. Ameetha Begam Vs. Commissioner,
Marungapuri Panchayat Union, Tirchy & Anr.
2005 LLR 351
III) State of Punjab Vs. Joginder Singh Dhatt AIR
1993 SC 2486
IV) Range Forest Officer Vs. S.T. Hadimani (2002) 2
SCC 25
V) Rajesh Talwar Vs. State Trading Corporation
Ltd. 2000 LLR 105
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VI) Burn & Co. Ltd. Vs. Their Employees 1957 I LLJ
SC 226
VII) Ramkishan Singhal Vs. The Presiding Officer,
Industrial Tribunal No. III Civil Writ Petition
3835/2003 decided vide order dated 18.11.2006 by
Hon'ble Mr. Justice Sh. Shiv Narayan Dhingra,
Delhi High Court
13. The first question is : whether the claimant is a
'workman' or not? It is claimed by the management that he was
performing duties of managerial nature and, as such, is not a
'workman' under the Act.
14. Section 2(s) of the Act, defines "workman" as
under :
"Workman" means any person (including
an apprentice) employed in any industry to
do any manual, unskilled, skilled, technical,
operational, clerical, or supervisory work
for hire or reward whether the terms of
employment be express or implied, and for
: 11 : (RC)
the purposes of any proceeding under this
Act in relation to an industrial dispute,
includes any such person who has been
dismissed, discharged or retrenched in
connection with, or as a consequence of,
that dispute, or whose dismissal, discharge
or retrenchment has led that dispute, but
does not include any such person :
(i) who is subject to the Air Force
Act, 1950, or the Army Act, 1950, or the
Navy Act, 1957; or
(ii) who is employed in the police
service or as an officer or other employee of
a prison; or
(iii) who is employed mainly in a
managerial or administrative capacity; or
(iv) who, being employed in a
supervisory capacity, draws wages
exceeding one thousand six hundred rupees
per mensem or exercises, either by the
nature of the duties attached to the office or
by reason of the powers vested in him,
functions mainly of a managerial nature"
15. In an authority reported as G.M. Pillai Vs. A.P.
Lakhanikar & Ors. 1998 I CLR 281, Hon'ble Bombay High
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Court while dealing with the question whether a person is a
"workman" or not, observed as under :
".....................................................................
......................................................................
In determining the question whether a person employed by the employer is workman under Section 2(s) of the Industrial Disputes Act or not, the Court has principally to see main or substantial work for which the employee has been employed and engaged to do. Neither the designation of the employee is decisive nor any incidental work that may be done or required to be done by such employee shall get him outside the purview of workman, if the principal job and the nature of employment of such employee is manual, technical or clerical. In hierarchy of employees, some sort of supervision by the employees over the employees of lower ladder without any control may not by itself be sufficient to bring that employee in the category of supervisor, yet if the principal job of that employee is to oversee the work of employees who are in the lower ladder of the hierarchy and he has some sort of independent discretion and judgment, obviously such employee would fall within the category of supervisor. Each case would depend on the nature of the duties : 13 : (RC) predominantly or primarily performed by such employee and whether such function was supervisory or not would have to be decided on facts keeping in mind correct principles. In John Joseph Khokar V. B.S. Bhadange & two others, 1997 II CLR 921. I observed, "where the employee possess the power of assigning duties and distribution of work such authority of employee may be indicative of his being supervisor doing supervision. In a broad sense supervisor is one who has authority over others : someone who superintends and direct others. An employee who in the interest of the employer has responsibility to directly control the work done by the other workers and if the work is not done correctly to guide them to do it correctly in accordance with norms shall certainly be a supervisor. A supervisory work may be contradistinguished from managerial and administrative work, and so also a supervisor from manager and administrator. Supervisor's predominant function is to see that work is done by workers under him in accordance with the norms laid down by the management : he has no power to take any disciplinary action......................................... ....................................................................."
16. Similarly, in another authority reported as Union Carbide India Ltd. Vs. D. Samuel & Ors. 1998 II CLR 736, : 14 : (RC) Hon'ble Bombay High Court observed in paragraphs 8 & 9 as under: "8. From a consideration of the aforesaid judgments a supervisor other than one who is not exercising either by nature of duties attached to the office or by reasons of powers vested in him functions mainly of a managerial nature must exercise supervisory functions and draw wages exceeding Rs.1,600/ per mensem. The laws as laid down, thus can be summarised as under : (1) Designation is not material but what is important is the nature of work.
(2) Find out the dominant purpose of employment and not any additional duties the employee may be performing.
(3) Can he bind that Company/employer to some kind of decisions on behalf of the Company/employer.
(4) Has the employee power to direct or oversee the work of his subordinates.
(5) Has he power to sanction leave or : 15 : (RC) recommend it; and (6) Has he the power to appoint, terminate or take disciplinary action against workmen.
From the judgments of this Court and the other High Court some of the tests apart from what the Apex Court has stated are :
(a) Whether the employee can examine the quality of work and whether such work is performed in satisfactory manner or not;
(b) Does the employee have powers of assigning duties and distribution of work;
(c) Can he indent material and distribute the same amongst the workmen;
(d) Even though he has no authority to grant leave does he have power to recommend leave;
(e) Are there persons working under him;
(f) Has he the power to supervise the work of men and not merely machines
(g) Does he mark the attendance of other employees;
(h) Does he write the confidential reports : 16 : (RC) of his subordinates
9. These tests are not the only tests. There can be a situation where there may be other tests to indicate whether the person is doing supervisory work or not. However, what is material is to note is that a supervisor must be in a position to bind his employer in respect of the decisions that he has taken or in exercise of such power have control on them. It is true that this test to some extent may indicate functions which are managerial or administrative in nature. However, this was the test applied by a learned Single Judge of the Calcutta High Court in Mcleod & Co. (Supra) and approved by the Apex Court in National Engineering Industries Ltd. V. Shri Kishan Bhageria & Ors. AIR 1988 SC 329. The Apex Court therein noticed the distinction between expression 'supervisory', 'managerial' and 'administrative'. The Apex Court has also noted that these terms or expression cannot be put in a water tight compartment. However, the Apex Court has observed that on must always look into the main work and that must be found out from the main duties. A supervisor is one who could bind the company to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for : 17 : (RC) the purpose of reporting was not a supervisor. The Court therefore will have to bear in mind these tests while examining, as to what is the main work of an employee."
17. Similarly, in a recent authority reported as Anand Regional Coop. Oil Seedsgrowers Union Ltd. Vs. Shaileshkumar Harshadbhai Shah 2006 III LLJ 767, Hon'ble Supreme Court while dealing with the case of an employee working as Assistant Executive in the Quality Control Department of the management, in which the issue was whether the claimant was "workman" or not observed in paragraphs 11 to 17 as under: "11. In the disciplinary proceeding while asserting that he did not take part, the Respondent in his evidence stated that he was the Head of the Department and there was no officer superior to him except the Managing Director. To a query made, whether the employees named by him were under his control; he, however, stated that : 18 : (RC) as a senior he gives guidance. He, however, did not state that he was authorized to initiate any departmental proceedings against his subordinates.
12. Section 2(s) of the Act, defines "workman" as under : "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led that dispute, but does not include any such person :
(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or : 19 : (RC)
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature"
13. The ingredients of the definition of 'workman' must be considered having regard to the following factors:
(i) Any person employed to do any skilled or unskilled work, but does not include any such person employed in any industry for hire or reward.
(ii) There must exist a relationship of employer and employee.
(iii) The persons inter alia excluded are those who are employed mainly in a managerial or administrative capacity.
14. For determining the question as to whether a person employed in an industry is a workman or not; not only the nature of work performed by him but also terms of the appointment in the job performed are relevant considerations.
15. Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the : 20 : (RC) essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being incharge of the Section alone and that too it being a small one and relating to quality control would not answer the test.
16. The precise question came up for consideration in Ananda Bazar Patrika (P) Ltd. vs. Workmen 1970 (3) SCC 248 :
1969IILLJ670 wherein it was held at p.671 of LLJ:
"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out : 21 : (RC) incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."
17. A person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion, etc. The work involves exercise of tact and independence."
18. In the instant case, claimant was admittedly appointed initially as telephone operatorcumtypist (receptionist). These type of jobs are apparently of clerical nature. The management has not specified as to what duties he was performing. The claimant has claimed in the cross examination that his main duties were of clerical nature and sometimes he was asked to deliver the letter to the customers.
MW1 Sh. Mool Chand Sharma as well as MW2 Sh. A.N. Shukla have not deposed as to what were the duties of the claimant. It is not clear as to what type of executive duties was he performing. When the initial appointment of the claimant was : 22 : (RC) for doing clerical duties, it was for the management to show as to what duties he got on his promotion as 'sales executive'. The fact whether a person is a 'workman' or not is to be decided by the nature of his substantive duties. In the written statement, the management has not mentioned his duties in detail except that he was to promote sales of company's products. At the same time, it is also claimed that he continued to be covered by the same terms and conditions as were laid down in his letter of appointment. It is not clear whether he was invested with any independent discretion and decision making power. As such, it cannot be said that the claimant was not a 'workman'.
19. The next contention is that the workman has been terminated illegally without any inquiry. Now, the question is:
whether a management can terminate a workman without any inquiry? The emphatic answer is that a management can terminate services of a workman after holing an inquiry, : 23 : (RC) defective inquiry or no inquiry at all. However, in the case of defective inquiry or no inquiry, the management would have to prove the misconduct in the court. More so, the inquiry is not necessary when it would not serve any purpose. In the instant case, the workman was given two opportunities to join the duties but he did not join the same at Madras. In an authority reported as Workmen of M/s Firestone Tyre and Rubber Company of India Ltd. Vs. The Management AIR 1973 SC 1227, Hon'ble Supreme Court observed in paragraphs 25, 26 & 27 as under : "25. This court in its recent decision in Delhi Cloth and General Mills Co. Ltd.
v. Ludh Budh Singh, (1972) 1 Lab LJ 180 = (AIR 1972 SC 1031) after a review of all the earlier cases, has summarised the principles flowing out of those decisions. It has been emphasised that when no enquiry has been held by an employer or when the enquiry held has been found to be defective, the employer has got a right to adduce evidence before the Tribunal justifying its action. The stage at which the : 24 : (RC) employer should invoke the jurisdiction of the Tribunal to allow him to adduce evidence before it, has also been discussed in the said decision.
26. We have exhaustively referred to the various decisions of this Court, as they give a clear picture of the principles governing the jurisdiction of the Tribunal when adjudicating disputes relating to dismissal or discharge.
27. From those decisions, the following principles broadly emerge : ...................................................................... ......................................................................
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. ...................................................................... ...................................................................."
20. Similarly, in another authority reported as Aligarh : 25 : (RC) Muslim University & Ors. Vs. Mansoor Ali Khan 2001 (91) FLR 28, Hon'ble Supreme Court while dealing with such an argument observed in paragraph 19 as under : "The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi Vs. State Bank of India, Sabyasachi Mukherji, J. (as he then was), also laid down the principle that not mere violation of natural justice but defacto prejudice (other than nonissue of notice) had to be proved. It was observed : quoting Wade Administrative Law (5th edition, pages 472 to 475) as follows (para 31) :
"It is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as to their scope and extent ... There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules : 26 : (RC) under which the Tribunal is acting, the subject matter to be dealt with and so forth."
21. It is contended by the workman that the transfer order was not served upon him and he was only asked to resign from his job. However, this submission of the workman appears to be not supported by the evidence on record. MW2 Sh. A.N. Shukla has deposed that transfer order was handed over to him in his presence and in the crossexamination there is nothing of any significance which could diminish the evidencery value of his statement. There is endorsement on the transfer order Ex.MW1/3 that the workman had refused to accept this order in his presence on 24.8.99. Thereafter, the workman was issued a show cause notice Ex.MW1/4 dated 25.8.99 and was again asked vide letter dated September 9, 1999, Ex.MW1/7 to join duties by 15.9.99. These letters were duly replied to by the workman. A bare perusal of these letters would indicate that the : 27 : (RC) workman had full knowledge of his transfer and he deliberately refused to accept the same and it cannot be said that the transfer order was not given to him and he was not aware as to where to report for duty.
22. It was next contended that the transfer order is malafide and the same may be set aside. However, clause 14 of appointment letter Ex.MW1/1 deals with transfer and reads as under : "Your services are liable to be transferred to HO, Factory or to any place in India."
23. Similarly, rule 20 of Rules and Regulations of the management, which are on record as Ex.MW1/9, reads as under: " Transfer Notwithstanding in what Department or Establishment of the : 28 : (RC) Company an employee is originally appointed, he shall be liable to be transferred anywhere in India to any other Department or Establishment or Factory of the Company whether in existence on the of his employment or coming into existence at any time thereafter.
Provided that on such transfer the employee shall be governed by the Rules and Regulations operating in the establishment to which he is transferred also with regard to salary, local allowance and hours of work etc. Provided further that refusal to comply with such transfer order shall be deemed to be disobedience of a lawful order and as such, subject to appropriate disciplinary action. The management may at its discretion treat it as repudiation of contract of contract of service by the employee and relinquishment of service by the employee and accordingly strike off his name from the rolls."
24. It is settled proposition of law that transfer is a normal incidence of service and a management is well empowered to transfer its employee from one place to another, : 29 : (RC) more so, when it is prescribed in its rules. In N. Ameetha Begam (Supra), Hon'ble Madras High Court dealt with the question of transfer of an employee and observed in paragraph 2 as under : "It is true law that unless there is a term to the contrary in the contract service, a transfer order is a normal incidence of service. In the absence of any term prohibiting transfer of the employee, prima facie, the transfer order cannot be called into question. Further, it is to be considered that if the employee does not comply with the transfer order, it may ultimately lead to termination of service. Therefore, a declaration that the transfer order is illegal and void, in act amounts to imposing the employee on the employer inspite of the fact that the employee allegedly does not obey order of his/her superiors in the management of the employer and such a relief cannot be granted, vide Pearlite Liners (P) Ltd. Vs. Manorama Sirsi, 2004 (100) FLR 797 (SC)."
25. There is no material on record which could suggest that workman was pressurized or harassed to tender his : 30 : (RC) resignation. He was transferred as per terms and conditions of his appointment to Madras but he did not report there despite being asked twice. He refused to accept the transfer order. in these circumstances, it is doubtful as to what he could have stated in his defence even if an inquiry was conducted.
Workman has failed to bring anything on record even remotely to suggest that the transfer order was malafide. It is an empty plea without any proper factual foundation.
26. As such, I find that the transfer order was passed as per Rules and Regulations of the management and service conditions of the workman and the same was duly conveyed to him but he deliberately did not comply with the same despite being asked twice by writing letters, which he admits to have received and replied to it.
27. The question as to whether chapter V(B) of the Act : 31 : (RC) applies to the instant case or not has not been pressed before me.
28. In these circumstances, workman is not entitled to any relief as he himself did not report at the place of transfer pursuant to a lawful transfer order. His termination is lawful and justified. The issue is accordingly decided in favour of the management and against the workman.
29. The reference is answered in the above terms and award is passed accordingly. Six copies of the award be sent to the appropriate government. File be consigned to record room.
Dated : 6.1.2007 (O.P. SAINI)
PRESIDING OFFICER, LABOUR
COURT NO. VII, DELHI.
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