Shishu Pal Singh Chauhan vs Secretary (Labour), Govt. Of ...
1997 Latest Caselaw 974 Del

JUDGMENT

Cyriac Joseph, J.

1. When this case came up for consideration on 29th August, 1997, Mr. Anil Gover accepted notice for respondent No.1 and Mr. Tarun Sharma accepted notice for respondent No. 2. The respondents were directed to file counter-affidavit within four weeks. Respondent No. l has filed counteraffidavit. Respondent No. 2 has not filed any counter-affidavit. Learned Counsel for the petitioner submits that no reply is required in response to the counter-affidavit of respondent 1. Pursuant to the direction contained in the order dated 29.8.1997 Counsel for the respondent No. 1 has brought the relevant files to the Court. I have perused the files and heard the learned Counsel for the petitioner and respondent No.1. There is no representation for respondent No. 2.

2. Admittedly the impugned order Annexure A dated 19.10.l995 transferring the case from Labour Court IV to Labour Court VII was passed by respondent No.1 on the basis of a representation made by respondent No. 2, the management. It is also admitted that the petitioner/workman was not heard before transferring the case. In the judgment of the Hon'ble Supreme Court in M/s. M.S. Nally Bharat Engg. Co. Ltd. Vs. State of Bihar & Ors., 1990 SCC (L & S) 180, it was held that the opposite party was entitled to be heard before granting the request of a party for transfer of the case from one Labour Court to another. It was also held that the denial of such opportunity vitiated the order transferring the case in exercise of the power under Section 33B of the ID Act. In the light of the above judgment of the Hon'ble Supreme Court the impugned order is liable to be quashed.

3. It is seen from the relevant files that the only reason stated by the management/respondent No. 2 for transfer of the case was that the management apprehended that justice would not be forth coming from the Labour Court and that the presiding officer gave the impression of favouring the workman. A case cannot be transferred from a Court merely on the ground that one of the parties has some apprehension or has got some impression. The basis for the alleged apprehension and impression is not stated in the representation of the management. The management has not pointed out any specific instance which is capable of creating an impression that the presiding officer was favouring the workman. It is true that respondent No.1 had forwarded the representation to the presiding officer of Labour Court IV but no reply/comments were sent by the presiding officer. I am of the view that the presiding officer cannot be found fault with for not sending his reply to such baseless and wild allegations. Merely because the presiding officer did not send any remarks the Government should not have allowed the transfer of the case. The Government ought to have considered the request of the management on merits after hearing the workman also. There was absolutely no material before the Government to justify the transfer of the case. There was total absence of application of mind by respondent No. 1. Hence the transfer of the case was unjustified and illegal.

4. Learned Counsel for respondent No. 1 pointed out that though the impugned order was passed on 10.10.1995 the writ petition was filed only in January 1997. Learned Counsel for the petitioner submitted that the delay was mainly due to the delay in getting the copy of the impugned order of transfer. She also submitted that prior to the transfer the workman's evidence had been recorded by Labour Court No. IV and that after the transfer the case has not progressed before Labour Court VII. Even after the transfer of the case to the new Labour Court management has not adduced evidence so far. Learned Counsel also submitted that Shri Naipal Singh against whom the management had complained is no more the presiding officer of Labour Court IV and hence respondent No. 2 cannot in any way be aggrieved by the quashing of the impugned order of transfer. Even otherwise it is necessary to discourage and disapprove the tendency transfer cases without sufficient justification merely on the request of one party. It is also necessary to ensure that a party is not allowed to choose his Court. Hence I am not inclined to deny relief to the petitioner on the ground of delay in filing the writ petition.

5. Accordingly the impugned order is set aside. The case ID No. 523/88 will remain with Labour Court No. IV. The parties are directed to appear before Labour Court IV for further proceedings on 1st December, 1997.