Dr. Anil Kumar Jain, Partner Jain ... vs Govt. Of Nct Of Delhi And Ors.
2006 Latest Caselaw 1253 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This writ petition has been filed challenging the order of respondent No. 1 dated 9th October, 2005 whereby respondent No. 1 had withdrawn reference pending before Labour Court No. 5 of Shri S.S. Handa and transferred the same to Labour Court No. 9 presided over by Shri R.K. Jain.

2. Fact relevant for deciding this writ petition are that two references of industrial disputes between the workmen and the petitioner were assigned to two different Labour Courts, one to Labour Court No. 5 and other to Labour Court No. 9. AR of the workmen made application to the Government for assigning the two cases to anyone of the Labour Courts for disposal to avoid different treatment between the similarly placed workmen. On the request of AR of the workmen, without any notice to the petitioner, reference pending before the Labour Court No. 5, was withdrawn from Labour Court No. 5 and transferred to Labour Court No. 9 where the other reference was pending.

3. The writ petitioner has challenged this transfer order on the ground that the order was made without following the principles of natural justice and therefore, transfer was bad.

4. It is argued by the counsel for the petitioner that issuance of notice of application to petitioner and giving hearing to petitioner was mandatory before ordering transfer of reference to the other Labour Court. As the transfer of reference was made in violation of principles of natural justice, the order of transfer should be declared null and void.

5. I consider that the petition is misconceived. The power of transfer of the proceedings pending before a Labour Court to other Labour Court, are vested in respondent No. 1 by virtue of Section 33(B) which reads as under:

33.B. Power to transfer certain proceedings. (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceedings under this Act pending before a Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceedings and the Labour Court, Tribunal or National Tribunal to which the proceedings is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred:

Provided that where a proceeding under Section 33 of Section 33A is pending before a Tribunal or National Tribunal, the proceedings may also be transferred to a Labour Court.

(2) Without prejudice to the provisions of Sub-section (1), any Tribunal or National Tribunal, if so authorized by the appropriate Government, may transfer any proceedings under Section 33 or Section 33A pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette and the Labour Court to which the proceeding is so transferred shall dispose of the same.

6. It is undisputed that the two references were pending before the two different Tribunals against the same petitioner involving different workmen. The evidence and basic question whether the dismissal was justified and legal was involved in both the references. Since the workman belonged to same management, these references should have been sent to the same Tribunal to enable the workmen to lead evidence jointly in two cases, but two cases were marked to two different Labour Courts. Sending them to the same Tribunal for adjudication, is not going to cause prejudice to the petitioner in any manner. The workmen had not made application making allegations against any of the presiding officers of two Tribunals nor the workmen had given any preference for any of the Tribunal out of the two. AR simply requested that the two cases be sent to one of the two Tribunals. I consider that in such a case, it was not necessary for the respondent No. 1 to serve notice upon the petitioner before transferring the case. The power exercised by the respondent No. 1 under Section 33(B) was administrative in nature. The power would have been a quasi judicial in nature, if respondent No. 1 had been called upon to transfer the cases because of any other reason except the one for which it was transferred. Because in that case, the administration would have to call comments from the presiding officer and hear the opposite party on the grievance of the workmen, but in this case, since the workmen simply wanted that the two cases be transferred to any of the two Tribunals, I consider that there was no necessity for the respondent No. 1 to serve upon notice of the application and hear the respondent. The principles of natural justice are required to be adhered to when any order adversely affecting the party is to be passed by an authority. When an authority has not to pass any order which adversely affects or causes any prejudice to the parties, it is not necessary that the parties should be heard. In a similar situation a Division Bench of High Court of Allahabad in Hindustan Lever Ltd. v Government of Uttar Pradesh 1978 Lab IC 864 held that before passing an order of transfer a reference from one Tribunal to other Tribunal adhering to principles of audi alterm partem was not an absolute preposition of law and observed that the question of giving opportunity to the other party before transferring the proceedings from one Tribunal to another always depends upon the facts of each case. For instance, if the necessity for transfer of proceedings has arisen on account of abolition of any Tribunal or any other similar administrative exigency, there will be no question of giving an opportunity to the parties before the transfer of the proceedings. However, if the proceedings are transferred after the trial has commenced, on account of any allegation of bias or prejudice against the presiding officer, the principles of natural justice would be attracted and it would be necessary to give an opportunity to the parties before the order of transfer is made.

7. I am in agreement with the Division Bench of Allahabad High Court and I consider that in the circumstances of the present case when transfer order of transferring a case from one Tribunal to other Tribunal was made because of pendency of two cases of workmen before two Tribunals, the employer was not entitled to any opportunity of being heard.

8. I find no merits in the petition. The petition is hereby dismissed with cost as it seems to have been filed merely to harass the workmen to delay the proceedings. Cast is quantified at Rs. 5000/-.