Delhi District Court
The vs The on 1 December, 2012
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No. 34/09
The Workman
Smt. Sunita W/o Sh. Surender
Represented by Readymade Garments Export Employees Union,
I-441, Karamapur,
New Delhi
Vs.
The Management
M/s Raman International,
T-1/88, Mangolpuri Industrial Area, Phase-I,
Delhi-83
Date of institution 02.01.2008
Date of reserving judgment 17.11.2012
Date of award 01.12.2012
Ref. No.: F.24 (1592)/06/Lab./5537-41 dated 08.12.2007 and Corrigendum
No. F-24/NWD/295/2006/(57)/Lab.298-303 dated 09.06.2009
AWARD
1. Workman has raised the present industrial dispute through
Union and on failure of conciliation proceedings, GNCT of Delhi referred
the dispute to this Tribunal for adjudication in following terms of
I.D. No. 34/09 Page 1 of 14
reference:-
''Whether services of Smt. Sunita W/o Sh.
Surender have been terminated illegally and/or
unjustifiably under the garb of transfer by the
management and if so, to what sum of money as
monetary relief along with other consequential
benefits in terms of existing Laws/Govt.
Notifications and to what other relief is she
entitled and what directions are necessary in this
respect?"
2. During the course of proceedings, workman got issued
corrigendum of terms of reference from Labour Department vide reference
No.F-24/NWD/295/2006/(57)/Lab.298-303 dated 09.06.2009 substituting
the following terms of reference :-
"Whether transfer of Smt. Sunita W/o Sh.
Surender by the management from Delhi unit to
Manesar, Haryana is illegal and or unjustified; if
yes, to what relief is she entitled and what
directions are necessary in this respect ?"
3. Statement of claim has been filed by the workman, wherein it is
stated that she was appointed with the management on 01.03.2000 as
Design Assistant at last drawn salary of Rs 2200/- per month. It is
alleged that the management got signed some blank papers from the
workman such as Appointment letter, Resignation, Vouchers, ESI form
and last settlement receipt etc. It is stated that an Industrial Dispute
I.D. No. 34/09 Page 2 of 14
between Union and the management was pending before Conciliation
Officer since 02.06.2006. It is further stated that during the pendency of
said dispute, management terminated the services of the workman on
10.06.2006, against which the workman through her union filed a
complaint before Labour Office where for the first time management
submitted that the workman has been transferred at its new place at
Manesar w.e.f. 10.06.2006. It is submitted that the said transfer is not
acceptable to the workman on the following grounds :-
(A) As per service conditions workman cannot be transferred without
giving notice under Section 9 of Industrial Disputes Act
(B) Management have no right to transfer the workman without her
consent as per Modal Standing Order.
(C) At the time of appointment there was no unit of the management
at Manesar.
(D) The said transfer had been made to pressurize the workman to
stop her union activities.
(E) No reason has been assigned to workman in respect of said
transfer.
(F) Transfer is illegal being violative of of Section 33 of Industrial
Disputes Act.
4. It is submitted that the management is not taking the workman on
duty, on the basis of said transfer, whereas workman after 10.06.2006 has
been reporting for duties with the management, till today. It is further
I.D. No. 34/09 Page 3 of 14
stated that workman is un-employed since 10.06.2006. It is prayed that
the said transfer be held illegal and workman be granted
reinstatement with full back wages along with interest @ 18% per
annum.
5. In the WS filed by the management, it is stated that workman
has left the services of the management on her own on getting better
service and emoluments. It is further stated that as per service conditions
workman is bound to serve with the management, wherever it required. It
is also stated that the management is still willing to employ the workman
if she so desires but the workman is not ready for the same. It is stated
that workman is gainfully employed.
6. Workman has filed rejoinder to WS of the management, wherein
she has denied all the averments made in the WS and has reiterated the
stand taken in her claim.
7. On the basis of pleadings of the parties, following issues were
framed by Ld. Predecessor on 01.05.2009 :-
(1) Whether the workman had left the services of the management on
her own?
(2) Whether the Workman is entitled to reinstatement with
consequential benefits ?
I.D. No. 34/09 Page 4 of 14
(3) As per terms of reference.
8. Sh. Ramesh Kumar, Member of workman union has been
examined as WW 1. In his affidavit, he has stated that he has complete
knowledge of the facts of the present case and he has reiterated the facts as
mentioned in statement of claim. Since nobody was present on behalf of
the management when WW 1 was examined on 15.04.2010, the witness
was discharged without being cross-examined.
9 Thereafter, after hearing arguments from Sh. Neeraj Chaudhary,
Ld. AR for the workman about the reference being infructuous after change
of terms of reference, an award dated 02.02.2011 was passed against the
workman. The operative portion of the said award is as under:-
During the course of arguments, it has been submitted for
workman that workman has been transferred only and his
services have not been terminated. If this be so, the relief
of reinstatement with full back wages alongwith interest
has become infructuous. The question of relief of
reinstatement will arise only in case of alleged termination
of service. Moreover, the question of full back wages does
not arise in cases of transfer only. That question will arise
in a case of termination of service. Hence, workman is
not entitled to any relief.
I.D. No. 34/09 Page 5 of 14
10 Against the said award, workmen preferred an appeal before
Hon'ble High Court vide W.P. (C) No.2658/2011, whereby the present case
was remanded back to this Tribunal vide order dated 17.08.2011, for fresh
adjudication. Operative portion of the said order of Hon'ble High Court is
reproduced as under:-
Accordingly, impugned Awards are hereby set aside.
The respective reference in each petition is remanded to
the Tribunal for a fresh adjuciation in accordance with
law. The respective refeence will now be restored to
files of the Tribunal and will be listed for directions on
26th September 2011. The Tribunal is directed to once
again issue fresh notice Respondent management at E-
2/77-78, Sita Puri, Janakpuri, Delhi through its authorized representative.
11 After remand back of this case to this Tribunal, workman examined Sh. Ramesh Kumar, Secretary of the Union for workman as WW
1. In his affidavit filed by way of his examination-in-chief, he has reiterated the contents of his statement of claim. No cross-examination of WW 1 was conducted for management despite the opportunity given for the purpose. 12 Workman examined herself as WW 2. In his affidavit filed by way of his examination-in-chief, she has reiterated the contents of her statement of claim. In her cross-examination, she has denied that she is not the member of the Union. WW 1 has denied the suggestion of management to the effect that management had neither transferred nor retrenched her. She has denied that she is gainfully employed.
I.D. No. 34/09 Page 6 of 14 13 No evidence has been led for management despite several opportunities given for the purpose.
14 I have heard arguments from Sh. Ajit Singh, Ld. Counsel/AR for workman. None appeared for management to advance arguments. I have perused the written arguments filed on behalf of workman and entire case record. My findings on the issues are as under:-
15 Findings on issue no.1 Issue no.1 is : Whether the workman had left the services of the management on her own?
16 In Delhi Cloth and General Mills Co. Ltd. and Workmen and others, 1969, AIR SC 243. In that judgment Hon'ble Supreme Court observed as follows:-
From the provisions of Section 10 (1) (a) and 10 (4) of the Act it appears that while it is open to the appropriate government to refer the dispute or any matter appearing to be connected therewith for adjudication. The Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the dispute referred to it but must confine its attention to the point specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary;
"happening or likely to happen as a result of or in connection, with something more important; being an incident; casual, hence, secondary or minor, but usually associated."
"Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associate with the dispute. The dispute is the I.D. No. 34/09 Page 7 of 14 fundamental thing, while something incidental thereto is an adjunct to it. Something, incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct.
17 As per above proposition of law, this Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. Vide present reference order, only issue of legality of transfer of workman has been referred to this Tribunal. No issue of abandonment of services by workman has been referred. I am of the considered view that issue no.1 regarding abandonment is not incidental to the issue contained in terms of reference. Hence, this issue becomes irrelevant for the present dispute and accordingly, cannot be gone into. Issue no.1 is disposed of accordingly. 18 Findings on issue no.2 Issue no.2 is Whether the Workman is entitled to reinstatement with consequential benefits ?
19 Workman has relied upon letter Ex. WW1/3, written by the management to Asst. Labour Commissioner, wherein management has stated that they have shifted their organisation to NCR Haryana. In the present case, workman has challenged his transfer to Manesar, Haryana, meaning thereby she is not willing to work in Haryana. Since, the management has shifted to Haryana, as is clear from letter Ex. WW1/3 relied upon by the workman, there is no logic to grant reinstatement to the workman in Haryana, where I.D. No. 34/09 Page 8 of 14 workman is not ready to work. Hence, the issue no.2 becomes irrelevant and is disposed of accordingly.
20 Findings on issue no.3 Issue no.3 is : As per terms of reference. Terms of reference are "Whether transfer of workman by the management from Delhi unit to Manesar, Haryana is illegal and or unjustified; if yes, to what relief is she entitled and what directions are necessary in this respect ?" 21 Workman has challenged his transfer on the following grounds :-
(A) As per service conditions workman cannot be transferred without giving notice under Section 9A of Industrial Disputes Act (B) Management have no right to transfer the workman without his consent as per Modal Standing Order.
(C) At the time of appointment there was no unit of the management at Manesar.
(D) The said transfer had been made to pressurize the workman to stop his union activities.
(E) No reason has been assigned to workman in
respect of said transfer.
(F) Transfer is illegal being violative of Section 33
of Industrial Disputes Act.
22 As regards objection (A), Section 9A of Industrial Disputes Act is
reproduced as under:-
No, employer, who proposes to effect any change in the conditions of service applicable to any workman in respect I.D. No. 34/09 Page 9 of 14 of any matter specified in the Fourth Schedule, shall effect such change-
(a) without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposes to be effected; or
(b) within twenty-one days of giving such notice:
23 As per section 9A of I.D. Act, management is required to give notice to the workman before changing its service condition. In the present case, workman has not shown his service condition by filing his appointment letter or any other document. For showing violation of section 9A, production of service condition is pre-requirement to reach at the conclusion that whether or not the service conditions have been changed. Since, the service conditions have not been produced on record by the workman, the violation of Section 9A cannot be ascertained. Hence, objection (A) of the workman cannot be entertained.
24 As regards objection (B), the same has been dealt with in the later part of the award while discussing Rule 4 of Model Standing Orders of Schedule 1B of the Industrial Employment (Standing Orders) Central Rules, 1946. As regards objection (C), it may be mentioned that though it may be correct that there was no unit of management at Manesar at the time of appointment of workman, however, it is the right of management to transfer its establishment anywhere as per law. Hence, objection (C) is not relevant.
As regards objection (D), it is worth noting that this Tribunal is not I.D. No. 34/09 Page 10 of 14 supposed to give findings on this objection because as per Section 10(4) of Industrial Disputes Act, the adjudication has to be confined only upto the dispute referred to this Tribunal and the matters incidental thereto and the issue as contained in objection (D) is neither referred to this Tribunal nor incidental to the terms of reference. Hence this objection is rejected. As regards objection (E), it may be noted that the management has been shifted to Manesar, Haryana and this is a clear reason for transfer of workman to Manesar. As regards objection (F), it is worth noting that for violation of Section 33 of Industrial Disputes Act, a complaint u/s 33A should be moved separately. Hence, this objection cannot be entertained in this case. 25 Workman has been transferred from Delhi to Manesar, Haryana i.e. from one state to another. Hence, Rule 4 of Model Standing Orders of Schedule 1B of the Industrial Employment (Standing Orders) Central Rules, 1946 regarding 'Transfer" becomes relevant for this purpose. Said Rule 4 is reproduced as under:-
A workman may be transferred according to exigencies of work from one shop or department to another or from one station to another or from one establishment to another under the same employer;
Provided that the wages, grade, continuity of service and other conditions of service of the workman are not adversely affected by such transfer:
Provided further that a workman is transferred from one job to another, which he is capable of doing, and provided also I.D. No. 34/09 Page 11 of 14 that where the transfer involves moving from one State to another such transfer shall take place, with the consent of the workman or where there is a specific provision to that effect in the letter of appointment, and provided also that (i) reasonable notice is given to such workman, and (ii) reasonable joining time is allowed in case of transfers from one station to another. The workman concerned shall be paid travelling allowance including the transport charges, and fifty per cent thereof to meet incidental charges.
26 The above proposition of law shows that the main condition precedent to transfer of a workman from one state to other is consent of the workman or any specific provision in the appointment letter, in this regard. 27 No consent of the workman to the said transfer has been shown by the management. No specific provision to this effect has been shown by the management in the appointment letter of the workman. Accordingly, it is clear that in the present case, the condition provided in Rule 4 (Supra) has not been fulfilled by the management in transferring the workman from one state to other i.e. from Delhi to Manesar, Haryana. Therefore, in my considered opinion, it is a clear violation of Rule 4 of Model Standing Orders as provided in Schedule 1B of the Industrial Employment (Standing Orders) Central Rules, 1946.
28 In view of above discussion, it is held that transfer of workman by the management from Delhi unit to Manesar, Haryana is illegal. 29 Since the transfer of workman has been held to be illegal and she I.D. No. 34/09 Page 12 of 14 is not in job as on date, workman is entitled to be considered for reinstatement and back wages. However, reinstatement of the workman is not possible for the reason that as per letter of management Ex. WW1/3, relied upon by the workman, the establishment of the management has been shifted to Manesar, Haryana, where workman is not ready to work. Hence, workman shall be entitled to back wages only.
30 For deciding the quantum of back wages, the facts need to be taken into consideration are that present is not a case of total termination of service of workman, but only of transfer. However, the transfer by the management is illegal, as held above.
31 Keeping in view the above facts and circumstances, in my considered opinion, back wages @ 80% of last drawn salary of the workman i.e. Rs.2200/- w.e.f. 10.6.06 i.e. date of transfer till the date of award i.e. 1.12.12 would meet the ends of justice. Since, back wages in this case is not pre-existing right of the workman, she is not entitled to interest. Issue no.3 is decided accordingly.
32 In view of above discussion, it is held that workman is entitled to back wages @ 80% of his last drawn salary i.e. Rs.2200/- w.e.f. 10.6.06 till the date of award i.e. 1.12.12. Award is passed accordingly and reference is answered in the above terms.
I.D. No. 34/09 Page 13 of 14 33 Copy of the award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court
on 01.12.2012 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi
I.D. No. 34/09 Page 14 of 14