Abdul Hafeez S/O Shri H.M. Jaan vs Presiding Officer, Industrial ...
2004 Latest Caselaw 358 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner is aggrieved by an Award dated 26th October, 1977 passed by the learned Industrial Tribunal in Complaint ID No. 42/1974.

2. The Petitioner joined the services of the Respondent some time in1960. According to him, he worked till April, 1974 in the Block Department where he was required to work as a Mounter and was never asked to repair furniture etc. He says that on 11th April, 1974 he was suddenly transferred to the General Development and Maintenance Department as a Carpenter. Since the transfer was illegal, he refused to accept it.

3. On 12th April, 1974, the Respondent charge-sheeted the Petitioner because of his failure to accept the transfer order. The Petitioner is said to have refused to accept the charge-sheet for which refusal another charge-sheet was issued to the Petitioner on 12th April, 1974.

4. A domestic inquiry was held against the Petitioner in respect of both the charge-sheets and the Inquiry Officer submitted a report dated 28th June, 1974 holding that the charges were proved. On the basis of this report, the Petitioner was dismissed from service on 29th June, 1974.

5. On 23rd August, 1974, the Petitioner filed a complaint under Section 33A of the Industrial Disputes Act, 1947 (for short the Act) since it was alleged that a general dispute being ID No.2/1974 was pending in which the Petitioner was directly concerned

6. The learned Tribunal passed an order on 16th October, 1974 holding that the complaint was maintainable. By another order passed on 15th December, 1975 it was held that the domestic inquiry was vitiated. However, the Respondent was allowed an opportunity to lead evidence in support of the allegations of misconduct.

7. The Respondent examined two witnesses in support of its contention. As per these witnesses, the Petitioner was engaged as a Carpenter and that he had refused to accept the transfer order as well as the charge-sheet. The Petitioner entered the witness box and denied the allegations that he was engaged as a Carpenter. He reiterated his contention that he could not have been transferred to the General Development and Maintenance Department. In his cross-examination, the Petitioner deposed that he was not prepared to work as a Carpenter.

8. After examining the documentary and oral evidence on record, the learned Tribunal held that the Petitioner was in fact transferred by an order dated 11th April, 1974 which he refused to accept. The learned Tribunal held that there were no mala fides in the transfer. It was held that on this basis, the Petitioner had misconducted himself but it was felt that the punishment was disproportionate. Accordingly, the dismissal was set aside and the period from the date of dismissal till the date when the Award becomes enforceable was treated as period spent on suspension. It was directed that the Petitioner be reinstated in service.

9. Having heard learned counsel for the parties, I am of the view that there is no perversity in the order passed by the learned Tribunal. There is ample evidence on record to suggest that the Petitioner had refused to accept the transfer order. In fact, even when he entered the witness box, the Petitioner categorically stated that he was not inclined to work as a Carpenter in the General Development and Maintenance Department. This lends credence to the statement of the witnesses of the Respondent that the Petitioner was not inclined to work as a Carpenter. Quite clearly, the refusal of the Petitioner amounts to misconduct for which he was rightly found guilty by the learned Tribunal. To this extent, the Award of the learned Tribunal does not call from any interference.

10. Additionally, it was found that the Petitioner had refused to accept the charge-sheet which also amounted to a misconduct on his part. Regardless of whether the transfer order was valid or not, the Petitioner could not have refused to accept the charge-sheet served upon him. The finding of the learned Tribunal in this regard also does not call for any interference.

11. Another issue raised by learned counsel for the Petitioner was that the learned Tribunal should have gone into the question whether the transfer could at all have been effected.

12. It is submitted by learned counsel for the Petitioner that the learned Tribunal can decide incidental questions. This is not in doubt, but whether the validity of the transfer order is incidental to the industrial dispute is another question altogether.

13. The impugned Award shows that the learned Tribunal had applied its mind to this aspect of the case and had come to the conclusion that the question of transfer was beyond the scope of the terms of reference. The terms of reference are as follows:

i) Whether the action of the management is separating Dearness Allowance from basic wages in respect of the workman detailed in Annexure 'X' is illegal and/or unjustified and if so, what directions are necessary in this respect.

ii) In case the answer to the above is in affirmative, whether the workmen are entitled to any separate Dearness Allowance and if so, what should be the quantum thereof and what directions are necessary in this respect?

iii) In case the action of the management in separating Dearness Allowance is held to be legal and justified, whether there should be any increase in the existing quantum of Dearness Allowance and if so, to what extent and what directions are necessary in this respect?

14. The learned Tribunal felt that the question of transfer of the Petitioner was not an incidental question that could arise from the terms of reference and, therefore, the learned Tribunal declined to go into this question. But, liberty was granted to the Petitioner to raise an industrial dispute regarding the legality or justification of the transfer order. Learned counsel for the Petitioner informs me that the Petitioner did not thereafter raise any industrial dispute regarding this issue.

15. I am of the view that the learned Tribunal was quite right in concluding that the question of the transfer of the Petitioner from one department to another was not a matter that was incidental to the general disputes that had been raised and which for m a part of the terms of reference as above. An incidental point is one which would touch upon the terms of reference but the question of the Petitioner's transfer from one department to another is not even remotely connected to the question of the payment of Dearness Allowance to the workmen. I see no perversity in the order passed by the learned Tribunal.

16. The writ petition is, accordingly, dismissed. There will be no order as to costs.