* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) 6840 OF 2001
Reserved on : 6th August, 2008
Date of Decision :10th November, 2008
TOBU ENTERPRISES LIMITED ..... Petitioner
Through: Mr. Inderjit Singh, Adv.
versus
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL & OTHERS
..... Respondents
Through: Mr. Harvinder Singh with
Mr. Mohit Gupta and Ms. Bhawna
Chopra Rustagi, Advs. for the
respondent/workmen.
% CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be allowed to see
the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported Yes.
in the Digest?
JUDGMENT
SIDDHARTH MRIDUL, J.
1. The present writ petition under Article 226 of the Constitution of India prays for, inter alia, a direction to quash the Award dated 12th September, 2000 passed by the Industrial Adjudicator whereby the petitioner(management) has been directed to reinstate the respondent (workmen) and also pay them entire backwages without causing prejudice to the latters‟ right to continue in service on the terms and conditions as were applicable to them before their transfer. WRIT PETITION (CIVIL) 6840/2001 Page 1 of 19
2. The factual matrix giving rise to the present writ petition and relevant for the purpose of the adjudication of the writ petition is as follows:
(a) That the management had employed the workmen for doing manual work, to wit Sh. Rajit Kumar, Sh. Ram Asrey and Sh. Vinod Kumar as Electricians, Sh. Ram Kumar Sharma as a Helper, Sh. Ramesh Kumar as a Spray Painter and Sh. Gupteshwar as a Press Man in sheet metal.
(b) Each of the workmen had been issued appointment letters wherein it was specifically mentioned that the said workmen would be governed by the rules and regulations and Standing Orders of the management.
(c) The duly certified Standing Orders in existence in relation to the management since 27th May, 1978 under the Industrial Employment (Standing Orders) Act, 1946, Clause I (i) are as under:
"A workman shall be liable to be transferred from one job to another or from one department/section to another or from one Unit to another (existing or future) of the Company provided his transfer does not adversely affect the conditions of his employment."
(d) According to the management on account of continuous losses sustained as a consequence of cut throat competition, hike in electricity charges, exorbitant rent, regular power cut and no chance of further expansion for many years coupled with the factum of two of the rented WRIT PETITION (CIVIL) 6840/2001 Page 2 of 19 premises wherein the management had run its operations been got vacated by landlord, the management was forced to shift its project from New Delhi to Bhiwadi (Alwar).
(e) According to the management in terms of the decision taken by it after due consultation, permission and intimation to the Government of India, Ministry of Industries, almost entire productive units of the management were shifted to Bhiwadi, after due intimation from time to time to the Labour Authorities.
(f) According to the management on account of shifting of the project from New Delhi to Bhiwadi, the transfer of the staff including the workmen became necessary, and consequently to utilize the services of the workmen more profitably, the latter were ordered to be transferred vide separate but identical transfer orders.
(g) According to the management the said workmen not only refused to obey the said transfer orders, some of them even refused to accept service thereof, but also tried to give it a false colour of victimization.
(h) According to the management the said workmen had been assured in writing that their transfer to Bhiwadi would not adversely affect their continuity of service or adversely affect the conditions of their employment, and further a free single unit accommodation each was organized for the said workmen at Bhiwadi.
WRIT PETITION (CIVIL) 6840/2001 Page 3 of 19
(i) However, the said workmen did not obey or carry out the said transfer orders and instead of joining their duties at Bhiwadi, the workmen openly flouted the said transfer orders. Consequently, the management in terms of the Standing Orders deemed the workmen to have abandoned their employment and terminated their services in terms of Clause -C under head note I of the Standing Orders, which provides as under:
"If the worker remains absent beyond the period of leave originally granted, he shall be liable to be discharged from the service of the company with effect from the date on which the leave granted to him expired unless (1) he returns within 8 consecutive days of the expiry of his leave and (2) gives an explanation to the satisfaction of the Manager of his inability to return on the expiry of the leave granted to him."
(j) At the behest of the workmen the appropriate authority proceeded to make a reference to the Industrial Adjudicator in the following terms.
"Whether the transfer of Sarvshri Ranjit Kumar, Ram Asre, Raj Kumar, Ramesh Kumar, Vinod Kumar, and Gupteshwar from Delhi to Bhiwadi by the management is illegal, and/or unjustified, and if so, to what relief they are entitled and what directions are necessary in this respect."
(k) Before the Industrial Adjudicator, statement of claim on behalf of the workmen was filed by Shri Rajith Kumar M.K., General Secretary, Tobu Mazdoor Sangh on 24.5.95. The case of the workmen, in brief is that the management was employing about 500 workers in its three factories at WRIT PETITION (CIVIL) 6840/2001 Page 4 of 19 New Delhi area only; that there was no factory outside Delhi territory at the time when the workmen were appointed; that appointment letters were issued to the workers wherein there was no stipulation that they were liable to be transferred out of Delhi; that the wages and other working conditions of the workers were far from satisfactory and consequently they formed a union by the name of Tobu Mazdoor Sangh and got it registered in December, 1998; that the union submitted a charter of demand to the management on behalf of the workmen and thereafter the General Secretary and other office bearers and members of the union were removed from service; that after protracted correspondence and agitation by the workers, the management reinstated the workers except some of them who were not so reinstated and whose disputes are pending in labour courts; that the management recognized the union and also entered into a settlement with them; that the management after the settlement initially implemented the same but after sometime withheld implementation of its provisions; that the management has illegally and without prior permission of the appropriate Government closed down certain department completely and some departments partially and removed the workers from service; that the management closed down one of the three factories at New Delhi in utter violation of Section-25(O) of the WRIT PETITION (CIVIL) 6840/2001 Page 5 of 19 Industrial Disputes Act and also started selling various machines to reduce the strength of workers without obtaining permission for retrenchment from the appropriate Government; that on 24.2.94, the union wrote to the management protesting against the selling of injection moulding machine and expressed its anxiety about the fate of the workers to which management replied that no retrenchment would be affected by selling the machines; that on the same date on 24.2.94, transfer orders were issued to Shri Rajith Kumar M.K. and others mentioned in the reference order to a newly established factory at Bhiwadi(Rajasthan), where there is no dearth of labour and particularly when there was no condition in appointment letters that they are liable to be transferred outside Delhi; that the transfer orders are a colourful exercise of the powers of the management in a malafide manner with a view to disturb the established workers of Delhi units of the management who are not legally bound to be transferred out of Delhi, as there is no such condition in their appointment letters or in the standing orders of the company or under the model standing orders; and that the transfer orders are illegal and malafide to victimize the workmen. It was, accordingly, prayed that award be passed holding the transfers as illegal and unjustified and the workers be ordered to be WRIT PETITION (CIVIL) 6840/2001 Page 6 of 19 granted full back wages for the illegal refusal by the management to allow them duty at New Delhi.
(l) The management contested the claim of the workmen before the Industrial Adjudicator by filing written statement. Preliminary objections were taken that the concerned workmen namely, Rajith Kumar M.K., and five others were transferred to Bhiwadi(Rajasthan) from Delhi due to exigency of work/Admn. grounds and in the interest of business, as provided under Section-I(1) and standing orders of the management, as well as also provided under Clause-4(b) of letter of appointment of respective workmen, and therefore the Industrial Adjudicator ought not to interfere with the orders of transfer of workmen issued by the management; that the General Secretary of the union was neither elected nor authorized to sign the claim of the workmen in respect of transfer and, hence, the claim of the workmen is not maintainable, that the union has no locus-standi to represent the cause of the workmen in respect of transfer; and that there is no proper espousal for and on behalf of the union. On merits it was pleaded that Tobu Enterprises Ltd., Delhi and Tobu Enterprises Ltd, Bhiwadi are one and the same establishments owned by the same management; that the workmen concerned accepted the terms and conditions of appointment letter which includes clause of transfer; that the Government of India and Ministry of Industry, WRIT PETITION (CIVIL) 6840/2001 Page 7 of 19 permitted the management vide letters dated 14.9.94 and 1.11.94 to shift the location of manufacturing and injection moulding and blow moulding components from Kirti Nagar Industrial Area, Delhi to Bhiwadi, District Alwar(Rajasthan); and that the transfer orders issued by the management are legal and valid and justified and bonafide. It was, accordingly, prayed that the claim of the workmen be dismissed.
(m) In rejoinder, filed on behalf of the workmen by the General Secretary of the union on 17.1.96, the averments made by the management in their written statement were controverted and the contents of the statement of claim were reiterated.
(n) On the pleadings of the parties, the Industrial Adjudicator framed the following issues:
(i) Whether general Secretary of Union is authorized to sign statement of claim? If not, its effect?
(ii) Whether the Union has locus standi to represent the cause of workman concerned? If not its effect?
(iii) As in terms of reference.
(o) In support of case of the workmen, seven witnesses were examined. WW-1 Shri Rajith Kumar M.K. tendered in evidence his affidavit EX.WW1/1. He also proved on record letter of authority signed by S/Shri Vinod Kumar and Ramesh Kumar, the concerned workmen, in favour of the Union as EX.WW1/A; his transfer order dated 24-2-94 from Delhi, to Bhiwadi(Rajasthan) EX.WW1/B; and his WRIT PETITION (CIVIL) 6840/2001 Page 8 of 19 reply dated 2-3-94 to the transfer order as EX.WW1/C. WW-2 Shri Vinod Kumar has tendered in evidence his affidavit EX.WW2/1. He also proved on record letter of authority dated 2-4-1994, executed by him in favour of the Union and signed by him at point „A‟ as EX.WW2/2; and his reply to the management regarding his transfer from Delhi to Bhiwadi as EX.WW2/3. WW-3 Shri Ram Asrey Pandey, tendered in evidence his affidavit EX.WW3/A. He also proved on record letter of Authority executed by him in favour of the Union and signed by him at point „A‟ as EX.WW3/B; and his letter dated 2-3-94 sent to the management regarding his transfer as EX.WW3/C. WW-4 Shri Raj Kumar Sharma, tendered in evidence his affidavit EX.WW4/A. He proved on record letter of Authority executed by him in favour of the Union and signed by him at point „A‟ as EX.WW4/B; and copy of his letter dated 2-3- 94, sent by him to the management regarding his transfer as Ex.WW4/C. WW-5 Shri Ramesh Kumar tendered in evidence his affidavit EX.WW5/A. He also proved on record copy of letter dated 2-3-94 sent by him to the management regarding his transfer as EX.WW5/B; and the authority letter given by him to the Union signed by him at point „C‟ as EX.WW5/C. WW-6 Shri Gupteshwar tendered in evidence his affidavit EX.WW6/A. He also proved on record copy of letter dated 31-3-94 sent by him to the management against his transfer from Delhi to Bhiwadi as WRIT PETITION (CIVIL) 6840/2001 Page 9 of 19 Ex.WW6/B; and the authority letter executed by him in favour of the union as EX.WW6/C. WW-7 Shri Raj Kumar Gupta tendered in evidence his affidavit EX.WW7/A along with copies of documents Marked W-1 and W-2.
(p) The management, in defence, examined their Personnel Officer Shri Prabhakar Mishra as MW-1. He tendered in evidence his affidavit EX.MW1/A alongwith the copies of documents EX.MW1/1 to EXMW1/8.
(q) The Industrial Adjudicator having heard learned authorized representatives of the parties, and carefully perusing the material on record, and after giving thoughtful consideration to the rival contentions of the parties arrived at findings on the above Issues as under:
(r) With regard to issue no.1 after considering the unrebutted testimony of the workmen in their respective affidavits Ex.WW2/A to Ex. WW7/A the Industrial Adjudicator found that the workmen had proved that the General Secretary had been duly authorized by them to sign the statement of claim on their behalf. Issue no.1 was accordingly decided in favour of the workmen concerned and against the management.
(s) With regard to issue no.2 after considering the testimony of the President of the Union who alongwith his affidavit Ex.WW7/A provided a list of workmen transferred/terminated including those concerned with the WRIT PETITION (CIVIL) 6840/2001 Page 10 of 19 present reference as Ex.WW7/1 as well as a copy of an order issued by Ashok Aggarwal, General Manager of the management, whereby the management recognized the union, which evidence was not rebutted by any material on behalf of the management to support their contention that there was no proper espousal by the union in the matter under adjudication, the Industrial Adjudicator came to a finding that there was sufficient material on the record to prove that the cause of the workmen had been validly and legally espoused by their union. Accordingly this issue was also decided in favour of the workmen and against the management.
(t) With regard to issue no.3 the short question that was considered by the Industrial Adjudicator was whether the management had the authority to transfer the workmen concerned. After considering the Industrial Employment Standing Orders of the management the Industrial Adjudicator came to the finding that although the management did have the authority to transfer employees from one unit to another yet it could not be said that the transfers in this case did not adversely affect the conditions of the workmen‟s employment. The Industrial Adjudicator relying on the decisions of the Supreme Court in Kundan Sugar Mills v. Ziyauuddin and others; AIR 1960 Supreme Court 650, where it had been observed that "an employer has no inherent right to transfer his employee to WRIT PETITION (CIVIL) 6840/2001 Page 11 of 19 another place where he chooses to start a business subsequent to the date of the employment", came to the conclusion that in the absence of an express term of contract of service between the employer and an employee that the latter should serve in any future concern which the former might acquire or start, a person employed in a factory cannot be transferred to some other independent concern started by the same employer at another place at a stage subsequent to the date of his employment. The Industrial Adjudicator, therefore, held that no Clause in the contract of service came to the rescue of the management so as to justify the transfer of the workmen concerned from Delhi to Bhiwadi where the unit was admittedly started subsequent to the employment of the workmen concerned with the management. (u) Furthermore, the Industrial Adjudicator considering the past conduct of the management whereby transfer orders were enforced only against the workmen concerned because they were active members of the union whereas the management had withdrawn the transfer orders in respect of the other employees, came to a conclusion that the action of the management was malafide and the refusal of duty in case of the workmen concerned amounted to termination of their services in violation of principles of natural justice and consequently illegal. The Industrial Adjudicator came to the irresistible conclusion WRIT PETITION (CIVIL) 6840/2001 Page 12 of 19 that the transfer orders passed in respect of concerned workmen were in contravention of the Standing Orders applicable to the workmen, proved by the management themselves as Ex.MW1/8, and accordingly held that the transfer of S/Sh. Rajith Kumar M.K., Ram Asrey, Raj Kumar, Ramesh Kumar, Vinod Kumar and Gupteshwar from Delhi to Bhiwadi was illegal and unjustified.
3. Counsel for the management urged that the Industrial Adjudicator failed to appreciate that the workmen had been issued appointment letters wherein it was specifically mentioned that they would be governed by the rules and regulations and Standing Orders of the management; and that it was clearly specified in the certified Standing Orders that a workman was liable to be transferred from one job to another or from one department/section to another or from one unit to another (existing or future), provided the transfer did not adversely affect the conditions of employment; and further that the workmen had been assured in writing that the transfer to Bhiwadi would not adversely affect the conditions of their employment, and that, therefore, the impugned award was perverse, insofar as, it held that the transfer to Bhiwadi was adverse to the conditions of service of the workmen.
4. Counsel for the management next urged that since the workers refused to carry out the transfer orders, no relief could be given to them. Counsel for the management lastly urged that since the workers had been transferred to Bhiwadi, the Industrial Adjudicator in Delhi WRIT PETITION (CIVIL) 6840/2001 Page 13 of 19 did not have territorial jurisdiction to entertain the industrial dispute relating to the legality or justifiability of the transfer and as such the reference itself was bad.
5. Per contra, counsel for the workmen submitted that the Standing Orders relied upon by the management did not provide for transfer of the workmen to any unit anywhere in India, and consequently in terms of the Model Orders applicable on additional items, moving from one State to another of the workmen without his consent or without the appointment letter providing therefor in express terms was not permissible. Counsel for the respondent also relied on the decision of the Supreme Court in Kundan Sugar Mills vs. Ziyauddin and others; AIR 1960 SC 650, to urge that there was no inherent right in the management to transfer the workman to another place where the former chooses to start a business subsequent to the date of employment, in the absence of an express term in this behalf in the contract of service, and that a workman employed in a management cannot be transferred to some other independent concern started by the same management at another place at a stage subsequent to the date of his employment. Counsel for the workmen further urged that a Single Judge of this Court in a matter relating to the same management had observed as follows:
"...... The only question for consideration is whether the Respondent/workman could at all have been transferred outside Delhi.
Learned counsel for the Petitioner relies upon the use of the words "existing or future" appearing in parenthesis in paragraph I(i) of the Standing Orders. His submission is that the Petitioner was entitled at any time to open up another unit outside Delhi and that is done, WRIT PETITION (CIVIL) 6840/2001 Page 14 of 19 the Respondent-workman could have been transferred to that unit outside Delhi. The Labour Court considered this aspect of the matter but was not satisfied that the Petitioner has the power to transfer the Respondent/workman outside Delhi. In this context, reliance was also placed on the appointment letter which also does not give any indication that the job of the Respondent/workman is transferable outside Delhi."
to contend that in view thereof the management could not transfer the workmen to Bhiwadi. Counsel for the workmen also urged that the purported permission to shift the factory from Delhi to Bhiwadi was only applied for on 12th November, 1994 whereas the transfer order issued to the workmen was prior to the said application and was dated 24th February, 1994 and that, therefore, the permission to transfer the unit if at all was of no avail as it was subsequent to the date of the impugned transfer.
6. Counsel for the respondent finally submitted that the Industrial Adjudicator justifiably came to the conclusion that the transfer was malafide, inasmuch as, the management struck off the names of the workmen from the rolls after about one week of transfer outside Delhi without issuing any chargesheet or conducting any inquiry or offering any retrenchment compensation to any of the workmen before striking off their names from the rolls of the management at Delhi.
7. I find considerable force in the submissions made on behalf of the workmen. In the present case it is seen that (a) there was no unit outside Delhi when the workmen were appointed, (b) there was no stipulation in the appointment letters that the workmen could be transferred outside Delhi and (c) the management closed down its unit in Delhi in violation of the relevant provisions of the ID Act. It is, WRIT PETITION (CIVIL) 6840/2001 Page 15 of 19 therefore, seen that although the certified Standing Orders of the management provided that the workmen could be transferred from one job to another or from one department/section to another or from one unit to another, as observed by the Single Judge in Civil Writ No. 3861 of 2000, the appointment letter did not give any indication that the workmen could be transferred outside Delhi, and that, therefore, in terms of the decision of the Supreme Court in Kundan Sugar Mills vs. Ziyauddin and others (supra), which clearly holds that there was no inherent right in an employer to transfer his employee to another place where he chooses to start a business subsequent to the date of employment in the absence of an express term in this behalf in the contract of service, the workmen employed with the management in the instant case could not be transferred to some other independent concern started by the same management at Bhiwadi (Alwar) at a stage subsequent to the date of the employment. Also, insofar as, the contention of the management in respect of the workmen not being entitled to any relief on account of having refused to carry out the transfer orders is concerned, it is seen that under the provision of Rule 14(3)(a) of the Industrial Employment (Standing Orders) Central Rules, 1946, a willful disobedience amounts to misconduct only if workman disobeys a lawful and reasonable order of his superior, which order in the present case has been held by the Industrial Adjudicator to be neither legal nor justified.
8. Significantly, it is seen that the Industrial Adjudicator after considering the conduct of the management, whereby transfer orders were enforced only against the workmen concerned, because they WRIT PETITION (CIVIL) 6840/2001 Page 16 of 19 were active members of the union, whereas the management withdrew the transfer orders in respect of other employees, justifiably came to a conclusion that the action of the management was malafide, and that the termination of the services was in violation of the provisions of the Industrial Disputes Act and consequently illegal. The view taken by the Industrial Adjudicator, in my opinion, is a possible view and is certainly not perverse. It is not possible for this Court to substitute its opinion for that taken by the Industrial Adjudicator. Lastly, I come to the submission made by counsel for the management that since the workmen had been transferred to Bhiwadi the Industrial Adjudicator in Delhi had no territorial jurisdiction over the dispute that, therefore, the reference itself was bad on this account. This submission made on behalf of the management, does not hold water, in view of the decision of the Supreme Court in Bikash Bhushan Ghosh & Ors. vs. Novartis India Limited & Anr.; JT 2007 (6) SC 432, where it has been held that if the order of transfer is illegal and the services of the workman were terminated for not complying therewith, the legality of the orders of transfer would have a direct nexus with the order of termination, and would constitute cause of action according jurisdiction to the Industrial Adjudicator where termination was effected, as observed unequivocally by the Supreme Court in Om Prakash Srivastava vs. Union of India and Another; JT 2006 (7) SC 35. In the present case it is not disputed that the termination was effective in Delhi.
9. The scope of judicial review in a proceeding under Article 226 of the Constitution of India is no longer res integra. This Court under the WRIT PETITION (CIVIL) 6840/2001 Page 17 of 19 provisions of Article 226 of the Constitution of India cannot undertake the exercise of liberally reappreciating the evidence and drawing conclusions of its own on pure questions of fact. The findings of fact recorded by a fact-finding authority duly constituted for the purpose cannot be interfered with as long as they are based upon some material relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken.
10. In the present case the findings of the Industrial Adjudicator are based on the appreciation of evidence produced before it. I am of the view that the findings cannot be said to be based on no evidence at all, so as to, warrant a re-appreciation of evidence, by this Court. The limitations on the jurisdiction of this Court are well settled. A writ in the nature of certiorari may be issued only if the finding of the Industrial Adjudicator suffers from an error or jurisdiction or from a breach of principles of natural justice or is vitiated by a manifest or apparent error of law. No such issue has been established in the instant case on behalf of the management. The Court will not countenance the picking of holes here and there in the award on trivial points and attempting thereby to frustrate the entire adjudication process before the Industrial Adjudicator on hypertechnical grounds as is being sought to be done by the management in the present case.
11. For the foregoing reasons, I find no merit in the submissions made on behalf of the management. The findings of the Industrial Adjudicator are based on material constituting ample basis for the WRIT PETITION (CIVIL) 6840/2001 Page 18 of 19 findings recorded and the reasonable findings are unexceptionable. The Award does not suffer from any infirmity so as to warrant interference by this Court. As a result the writ petition fails and is accordingly dismissed, but, with no order as to costs.
SIDDHARTH MRIDUL, J.
November 10, 2008 mk WRIT PETITION (CIVIL) 6840/2001 Page 19 of 19