Mrs. Arifa Nauman vs Govt. Of Nct Of Delhi And Ors.
2004 Latest Caselaw 803 Del

JUDGMENT

Manmohan Sarin, J.

1. Rule.

With the consent of parties writ petition is taken up for disposal.

2. This writ petition has been filed by Ms.Arifa Nauman, who is working with respondent No.3-Hamdard (Wakf) Laboratories, as a Stenographer. Petitioner in the prayer made in the writ petition has sought the following reliefs:-

"(a) issue a writ of mandamus or any other writ, order or direction, directing the respondent No.3 not to give effect to the transfer order dated 1.11.2003, issued to the petitioner as a same is illegal, mala fide, arbitrary, violative of the principles of natural justice and Articles 15 & 16 of the Constitution of India.

(b) Pass any other and further order as this Hon'ble Court may deem fit, and proper in the facts and circumstances of the case."

3. Notice to show cause was issued and as an interim measure, impugned order dated 1.11.2003 (Annexure P-7), transferring petitioner to Aurangabad was stayed. The impugned order of transfer is assailed by the petitioner as being wholly mala fide and arbitrary. It is stated that petitioner's husband is the General Secretary of the Workers' Union of respondent No.3. Respondent No.3, it is claimed, has unlawfully dismissed the petitioner's husband from service and now the petitioner is sought to be penalised for the crusade of petitioner's husband to get justice for workers. Mr.Pradeep Gupta, appearing on behalf of the petitioner, submits that petitioner has two minor children and she is sought to be transferred to Aurangabad, purely as an act of victimization, which commenced with the dismissal of the petitioner's husband from service.

4. Counter affidavit has been filed by respondent No.3. A preliminary objection has been raised by respondent No.3 on the maintainability of the writ petition. It is urged that there is an alternative efficacious remedy available under the Industrial Disputes Act, which the petitioner has failed to avail.

5. Mr.Gupta in support of his plea of petition being entertained by the Court, submits that this is a fit case for being entertained by the High Court as the petitioner's fundamental rights of earning and very livelihood to survive is sought to be infringed by this transfer. Secondly, he submits that the Industrial Tribunal does not have any power to grant any stay and as such it would be not an efficacious remedy.

6. Mr.S.N.Bhandari, Senior Advocate, for the Respondent denies the allegation of any mala fides. He submits that while it is true that petitioner's husband has been working as the General Secretary of Workers' Union, the action of the respondent has not emanated out of any malice or ill will. In fact, he submits that the management rather accommodated the petitioner by transfering her to Aurangabad as otherwise, her job was rendered surplus and she was liable to be retrenched. It is stated that respondent Nos.1 and 2 have been unnecessary imp leaded in an attempt to bring within the writ jurisdiction.

7. It is not necessary for me to go into this factual controversy or on merits of transfer being malafide or not. The question to be considered by this Court is whether petitioner has an adequate efficacious remedy and should the petitioner be relegated to the said remedy ? It is well settled that the bar of alternate remedy is not an absolute one. The Court has to examine whether there exists an efficacious alternate remedy, which can be conveniently exercised and availed of by the petitioner. My attention has been drawn to Section 25-T of the Industrial Disputes Act, 1947, which is as under:-

"No employer or workman or a trade union, whether registered under the Trade Union Act, 1926 or not, shall commit any unfair labour practice."

Section 2(ra) of the Act defines unfair labour practice as under:-

"Section 2(ra) "Unfair Labour Practice" means any of the practices specified in the Fifth Schedule."

Fifth Schedule of the Act specifies the various trade practices. S.No.7 of the said said Schedule is as under:-

"To transfer a workman mala fide from one place to another under the guise of following management policy."

8. It would thus be seen that transfer of a workman made mala fide under the guise of following management policy is an unfair labour practice in respect of which an industrial dispute can be raised. It is a statutory remedy specifically provided to deal with malafide transfers under the guise of management policies. Further, Section 25-T contains a prohibition on an employer for committing unfair labour practice. In the light of these statutory provisions, in my view, the Industrial Tribunal/Court would be vested with the inherent power to enforce the statutory provision, as given in Section 25-T. Accordingly, the submission that the Industrial Tribunal/Court would not have power to grant stay or transfer is misplaced and is devoid of merit. Reference at this stage may also be made to the following decisions of the Supreme Court, dealing with entertainment of writ petition, when the alternate remedy under the Industrial Disputes Act is available.

(i) Scooters India & Ors. Vs.Vijay E.V.Eldred reported at 1999 II CLR 231 In the cited case, an employee had remained absent from duty and the employer proceeded on the basis that with the absence of more than 10 days, the contract of service stood terminated and the name of the employee was struck off. The employee belatedly filed a writ petition under Article 226 of the Constitution of India, which was entertained by the Allahabad High Court and on facts allowed the writ petition, ordering reinstatement with back wages. The Supreme Court allowed the appeal, holding that "the above facts alone are sufficient to indicate that there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute, involving determination of disputed questions of fact for which remedy under Industrial Laws was available to the workman.

(ii) Chairman Coal India Ltd., and another Vs.Madan Prasad Sinha and Ors reported at .

In the cited case, the Court was concerned with the question, whether the respondents-workmen, could claim to be continued as workmen on nationalisation of coal mines. The Court noting several disputed questions of fact arise for adjudication held that, "the writ petitions under Article 226 of the Constitution of India were not maintainable and the remedy, if any, available to the respondents, was under the Industrial law, relating to the adjudication of an industrial dispute.

9. Further, reliance is placed on Federal Bank Ltd. Vs.Sagar Thomas & Ors. Reported at 2003 III CLR 801, wherein it was held that a Bank would not fall within the definition of "other authority" under Article 12. The Court observed that merely because the bank was carrying on business or commercial activity of banking, it cannot be said that discharging any public function or public duty so as to come within the ambit of Article 12. Writ petition was not maintainable as disciplinary action was sought to be taken against an employee. No statutory duty against the Bank was sought to be enforced. Lastly, reliance is placed on Premier Automobiles Ltd.Vs.Kamlakar Shantaram Wadke and others , wherein the Court held that an extensive machinery has been provided for settlement and adjudication of industrial disputes and resort should be had to the same for resolution of Industrial Disputes..

10. It is not in dispute that the present case also raises disputed questions of fact and the various allegations would require evidence and to be established before the appropriate forum.

11. At this stage, Mr.Gupta, counsel for the petitioner sought to raise the issue of CM.No.50/2004, which is an application for amendment of writ petition. After some arguments and deliberation, Mr.Gupta does not press the application, which is dismissed as withdrawn.

12. In view of the foregoing discussion, I am of the view that the dispute is such for which specific provision and relief is provided under the Industrial Disputes Act, 1947. Hence there is an efficacious alternate remedy and petitioner should be relegated to the same. However, the facts of this case are such that interim protection needs to be given to the petitioner to enable her to avail of the alternate remedy under the Industrial Disputes Act. The impugned order of transfer shall remain stayed for a period of two months from today to enable the petitioner to avail of the legal remedy under the Industrial Disputes Act.

The writ petition is dismissed with the aforesaid directions.