Triveni Engineering And ... vs State Of U.P. And 3 Others
2023 Latest Caselaw 8117 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 9
 

 
Case :- WRIT - C No. - 19912 of 2021
 

 
Petitioner :- Triveni Engineering And Industries Limited
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Diptiman Singh
 
Counsel for Respondent :- C.S.C.,Gopal Narain Srivastava,Shobhna Srivastava
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Diptiman Singh, learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1 to 3 and Sri Gopal Narain Srivastava, learned counsel for the respondent no. 4.

2. This writ petition has been filed challenging the award dated 06.04.2001 passed by Labour Court, Saharanpur in Adjudication Case No. 1 of 2014, published on 02.07.2021.

3. Facts leading to the present petition, are that petitioner is a Company incorporated under the provisions of Companies Act, 1956 having its registered office at Deoband, Saharanpur. It has 7 sugar units in the State of U.P. and one such unit at Ramkola, District- Kushinagar. Respondent no. 4 was working as a Cane Inspector in the petitioner- Company since 01.01.1997. By the order dated 13.06.2009, he was sent on deputation to Ramkola unit of Company for a period of one year. He was required to join at Ramkola unit on 19.06.2009. respondent-workman challenged the order of deputation through Civil Misc. Writ Petition No. 36593 of 2009 before this Court which was dismissed by order dated 28.07.2009. Thereafter, respondent-workman filed Original Suit No. 232 of 2009 before the court of Civil Judge (Senior Division), Deoband, Saharanpur challenging the order of deputation. A temporary injunction application 6C2 was also moved which was rejected by order dated 03.02.2010. The suit was however dismissed on 17.10.2016. However, during the pendency of the suit, the respondent-workman approached the State Government for referring the dispute to Labour Court and on 26.12.2013, the State Government exercising power under Section 4-K of the Industrial Disputes Act referred the matter to the Labour Court, Saharanpur which was registered as Adjudication Case No. 1 of 2004. The reference order reads as under:-

"क्या मै0 त्रिवेणी इंजीनियरिंग एण्ड इण्डस्ट्रीज लि0, शुगर यूनिट, देवबन्द, सहारनपुर के सेवायोजक द्वारा अपने कर्मचारी श्री संदीप कुमार पुत्र श्री ब्रहमपाल सिंह, गन्ना निरीक्षक की सेवायें दिनांक 13.06.2009 से समाप्त किया जाना उचित एवं अवैधानिक है। यदि नहीं तो संबंधित कर्मचारी किस आनुतोष को प्राप्त करने का अधिकारी है ?"

4. The petitioner filed a written statement stating therein that by order dated 13.06.2009 he was sent on deputation to Ramkola unit and by that order the service was not terminated. Further ground was taken that State Government had acted beyond its jurisdiction by referring the matter to the Labour Court on the ground that he has been terminated from service, though, no such termination letter was issued nor any termination order was passed. The Labour Court by award dated 06.04.2021 directed for reinstatement of the respondent-workman with 40% back wages and also awarded an amount of Rs.2,000/- as expenses. Hence, this writ petition.

5. Learned counsel for the petitioner submitted that prior to approaching the State Government for referring the matter to the Labour Court, respondent-workman had approached this Court by filing writ petition challenging his deputation order which was dismissed on 28.07.2009. Thereafter, a civil suit was filed wherein a temporary injunction application 6C2 was moved which was also dismissed. It was nowhere the case of respondent-workman that his services were terminated by order dated 13.06.2009 and all through the workman had challenged the transfer/deputation order. It was for the first time that after expiry of almost four years that the reference was made to the Labour Court on the ground that the services of the workman was terminated by order dated 13.06.2009. The Labour Court is a court of referred jurisdiction, it cannot travel beyond the terms of reference order. The reference made was in regard to termination of workman on 13.06.2009, though, he was sent on deputation on that date. According to him, the finding recorded by the Labour Court was patently illegal as the reference itself was bad as the services of the workman was never terminated and he was only sent on deputation by the order dated 13.06.2009. Reliance has been placed upon a decision of a co-ordinate Bench of this Court in case of M/s. Super Cassettes Industries Pvt. Ltd. vs. State of U.P. and 2 others, 2020 (3) AWC 2706, wherein a similar occasion arose where the workman was transferred, but the reference was sent to the Labour Court to adjudicate whether the termination of workman was lawful and valid.

6. Per contra, Sri Gopal Narain Srivastava, learned counsel appearing for workman invited the attention of the Court to para 8 of the written statement filed by employer/petitioner. He contended that petitioner himself had averred in the written statement before the Labour Court that petitioner was not the employer of respondent-workman w.e.f. 14.06.2009 as he was not under the control of management of Triveni Engineering and Industries Limited, Deoband. He then submitted that once the respondent-workman had not joined at the place of deputation, his services stood terminated and the Labour Court while dealing with the reference which recorded a categorical finding that the order of deputation itself was against the standing order and once it goes the order of termination also goes. Reliance has bee placed upon a decision of Apex Court in case of State of Punjab and others vs. Inder Singh and others, (1997) 8 SCC 372, wherein the Apex Court had dealt with concept of deputation. Relevant para 18 is extracted hereasunder:-

"18. The concept of "deputation" is well understood in service law and has a recognised meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be."

7. According to respondent counsel, the concept of deputation finds place in service law and not in labour matters. According to him, once the order dated 13.06.2009 was not complied with and workman did not join at Ramkola, his services stood terminated. Reliance has also been placed upon a decision of Apex Court in case of Umapati Choudhary vs. State of Bihar, (1999) 4 SCC 659. Relevant para 8 is extracted hereasunder:-

"8.Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled. The University, the parent department or lending authority, the Board, the borrowing authority and the appellant, the deputationist, had all given their consent for deputation of the appellant and for his permanent absorption in the establishment of the borrowing authority. There is no material to show that the deputation of the appellant was not in public interest or it was vitiated by favouritism or mala fide. The learned Single Judge in the previous writ petition had neither quashed the deputation order nor issued any direction for its termination. Indeed the learned Single Judge had dismissed the writ petition. No material has been placed before us to show that between November 1987 when the judgment of the Single Judge was rendered and December 1991 when the Division Bench disposed of the writ petition filed by the appellant the petitioners of the previous case had raised any grievance or made any complaint regarding non-compliance with the directions made in the judgment of the learned Single Judge. In these circumstances the Division Bench was clearly in error in declining to grant relief to the appellant. Further, the appellant has, in the meantime, retired from service, and therefore, the decision in the case is relevant only for the purpose of calculating his retiral benefits."

8. Similarly, on the question of deputation, reliance has also been placed upon a decision of Division Bench of this Court in case of Sudarsha Avasthi vs. Bank of India, 2002 (92) FLR 254. Learned counsel while trying to clarify the term "termination" has relied upon a decision of Apex Court in case of State Bank of India vs. Shri N. Sundara Money, (1976) 1 SCC 822. Relevant para 9 is extracted hereasunder:-

"9. A breakdown of Section 2(oo) unmistakably expands the semantics of retrenchment. Termination ... for any reason whatsoever are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employee's service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. Maybe, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25-F and Section 2(oo). Without speculating on possibilities, we may agree that "retrenchment" is no longer terra incognita but area covered by an expansive definition. It means "to end, conclude, cease". In the present case the employment ceased, concluded, ended on the expiration of one year ten months nine days -- automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from Section 25-F(b) is inferable from the proviso to Section 25-F(1) [sic 25-F (a)]. True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25-F and automatic extinguishment of service by effluxion of time cannot be sufficient. An English case R. v. Secretary of State [(1973) 2 All ER 103] was relied on, where Lord Denning, M.R. observed:

"I think that the word ''terminate' or ''termination' is by itself ambiguous. It can refer to either of two things -- either to termination by notice or to termination by effluxion of time. It is often used in that dual sense in landlord and tenant and in master and servant cases. But there are several indications in this para to show that it refers here only to termination by notice."

Buckley, L.J. concurred and said:

"In my judgment the words are not capable of bearing that meaning. As Counsel for the Secretary of State has pointed out, the verb ''terminate' can be used either transitively or intransitively. A contract may be said to terminate when it comes to an end by effluxion of time, or it may be said to be terminated when it is determined at notice or otherwise by some act of one of the parties. Here in my judgment the word ''terminated' is used in this passage in para 190 in the transitive sense, and it postulates some act by somebody which is to bring the appointment to an end, and is not applicable to a case in which the appointment comes to an end merely by effluxion of time."

Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened, we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision."

9. Lastly, reliance was placed upon a recent judgment of the Apex Court in case of Caparo Engineering India Ltd. vs. Ummed Singh Lodhi and another, 2021 SCC OnLine SC 973.

10. I have heard respective counsel and perused the material on record.

11. The sole controversy which needs adjudication in the present case is as to whether the reference made to the Labour Court using the term "termination" in place of transfer/deputation order can sustain the award made by Labour Court awarding reinstatement with back wages to the extent of 40% to respondent-workman.

12. From perusal of deputation order dated 13.06.2009, it is clear that respondent-workman was sent to Ramkola unit for a period of one year. He was required to join on 19.06.2009. The order was challenged before this Court by respondent-workman by filing a writ petition which was dismissed on 28.07.2009. Thereafter, an original suit was filed before the Civil Judge (Senior Division) challenging the order of deputation and simultaneously a temporary injunction application 6C2 was also filed. The trial court refused to grant temporary injunction and rejected the application 6C2. The original suit remained pending which was ultimately dismissed on 17.10.2016 and is not disputed to either of the parties. It was during the pendency of the civil suit that the matter was referred to the Labour Court on the application made by workman. The reference which was sent clearly states that whether the termination of services of workman dated 13.06.2009 is valid or not.

13. The Labour Court had dealt on the issue that the standing order provides that an employee cannot be sent to deputation unless the request has been made to the unit to which it was sent and secondly the consent of the employee was taken. The Labour Court further found that as the deputation order was illegal the termination order was bad and ordered for reinstatement.

14. This is case where the workman had not complied the deputation order and had challenged the same before two forums. On both counts he met with rejection and lastly he approached the State Government for referring it to the Labour Court as on record there is no order of termination and the petitioner has subsequently come with a case that the workman was not under his control after 13.06.2009 as he was to join at Ramkola which he failed to do so. The averment made in para 8 in the written statement filed by employer cannot be read as termination order as suggested by respondent counsel.

15. Moreover, the workman till 2013 had been litigating on the ground that he cannot be sent on deputation to Ramkola unit and had never come with a case that his services were terminated.

16. It is a well settled law that concept of deputation finds place in service law. An employee or workman who is sent on deputation should be with his consent as held by Apex Court in case of Inder Singh Singh (supra) and Umapati Choudhary (supra). In the instant case, the order dated 13.06.2009 sending the respondent-workman on deputation was challenged through writ petition and by filing an original suit before the same reached the Labour Court through reference. The reference order outplaces the word "deputation" by "termination" which on record is not available.

17. The interpretation afforded by respondent counsel that non joining at the transferred place by workman amounted to termination cannot be accepted as the order under challenge is the deputation order throughout i.e. before the High Court, Civil Court and also before the Labour Court. The Labour Court while making the award had in the part held the deputation order to be bad and thereafter proceeded to hold that the order terminating the services on 13.06.2009 was illegal and the same was set aside is against the material on record.

18. In Super Cassettes Industries Pvt. Ltd. (supra), a similar controversy arose and the co-ordinate Bench of this Court found that industrial dispute in the terms it was referred was completely non-existent. The Labour Court being a court of referred jurisdiction, could not have gone beyond or behind the terms of reference in which the industrial dispute sent to it was cast. Relevant para 45 is extracted hereasunder:-

"45. Unfortunately for the workman here, the reference in the terms made does not clothe the Labour Court with jurisdiction to look into the validity of the order of transfer, dated 10.02.1996. The industrial dispute here has been referred in most callously worded terms dubbing a transfer order as one of termination, rendering the entire exercise before the Labour Court a nullity, whatever be the merits of the parties' case. Here, the Authority empowered under Section 4-K of the Act has utterly failed to refer what on its plain terms was an industrial dispute, relating to the validity of the transfer order dated 10.02.1996. If the dispute that actually arose between the parties were referred, depending upon the finding of the Labour Court about the validity of the order of transfer, the logical incidents of it would flow, to whichever parties' gain or prejudice it might have been. About this reference, this Court has no hesitation to hold that it is without any basis, and on the date it was made or with reference to the Employers' order that it was made, there was no termination of services for the workman. The industrial dispute in the terms it was referred was completely non-existent. The Labour Court being a Court of referred jurisdiction, could not have gone beyond or behind the terms of reference in which the industrial dispute sent to it was cast."

19. In the instant case also the reference made on 26.12.2013 was totally non-existent and only the workman was sent on deputation, and the Labour Court acting on the said reference had gone beyond the terms of reference and made the award.

20. Considering the facts and circumstances of the case, I find that the award made by the Labour Court on 06.04.2021 cannot be sustained in the eyes of law and the same is hereby quashed.

21. The State Government or such other authority as may be competent in this behalf shall, however, make reference afresh appropriately framed, within a period of two months of the receipt of certified copy of this judgment.

22. Writ petition succeeds and is allowed. However, no order as to costs.

Order Date :- 21.3.2023

V. S. Singh