Tobu Enterprises Limited vs Presiding Officer, Industrial ...
2008 Latest Caselaw 1987 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     WRIT PETITION (CIVIL) 6840 OF 2001

                              Reserved on :       6th August, 2008

                          Date of Decision :10th November, 2008

      TOBU ENTERPRISES LIMITED                        ..... Petitioner

                           Through:   Mr. Inderjit Singh, Adv.

                    versus

      PRESIDING OFFICER, INDUSTRIAL TRIBUNAL & OTHERS

                                                   ..... Respondents

                           Through:   Mr. Harvinder Singh with
                                      Mr. Mohit Gupta and Ms. Bhawna
                                      Chopra Rustagi, Advs. for the
                                      respondent/workmen.

%     CORAM:
      HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

      1.     Whether reporters of local papers may be allowed to see
             the judgment?                                     Yes.
      2.     To be referred to the Reporter or not?            Yes.
      3.     Whether the judgment should be reported           Yes.
             in the Digest?


                              JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present writ petition under Article 226 of the Constitution

of India prays for, inter alia, a direction to quash the Award dated 12th

September, 2000 passed by the Industrial Adjudicator whereby the

petitioner(management) has been directed to reinstate the respondent

(workmen) and also pay them entire backwages without causing

prejudice to the latters‟ right to continue in service on the terms and

conditions as were applicable to them before their transfer.

2. The factual matrix giving rise to the present writ petition and

relevant for the purpose of the adjudication of the writ petition is as

follows:

(a) That the management had employed the workmen for

doing manual work, to wit Sh. Rajit Kumar, Sh. Ram Asrey

and Sh. Vinod Kumar as Electricians, Sh. Ram Kumar

Sharma as a Helper, Sh. Ramesh Kumar as a Spray

Painter and Sh. Gupteshwar as a Press Man in sheet

metal.

(b) Each of the workmen had been issued appointment letters

wherein it was specifically mentioned that the said

workmen would be governed by the rules and regulations

and Standing Orders of the management.

(c) The duly certified Standing Orders in existence in relation

to the management since 27th May, 1978 under the

Industrial Employment (Standing Orders) Act, 1946,

Clause I (i) are as under:

"A workman shall be liable to be transferred from one job to another or from one department/section to another or from one Unit to another (existing or future) of the Company provided his transfer does not adversely affect the conditions of his employment."

(d) According to the management on account of continuous

losses sustained as a consequence of cut throat

competition, hike in electricity charges, exorbitant rent,

regular power cut and no chance of further expansion for

many years coupled with the factum of two of the rented

premises wherein the management had run its operations

been got vacated by landlord, the management was forced

to shift its project from New Delhi to Bhiwadi (Alwar).

(e) According to the management in terms of the decision

taken by it after due consultation, permission and

intimation to the Government of India, Ministry of

Industries, almost entire productive units of the

management were shifted to Bhiwadi, after due intimation

from time to time to the Labour Authorities.

(f) According to the management on account of shifting of the

project from New Delhi to Bhiwadi, the transfer of the

staff including the workmen became necessary, and

consequently to utilize the services of the workmen more

profitably, the latter were ordered to be transferred vide

separate but identical transfer orders.

(g) According to the management the said workmen not only

refused to obey the said transfer orders, some of them

even refused to accept service thereof, but also tried to

give it a false colour of victimization.

(h) According to the management the said workmen had been

assured in writing that their transfer to Bhiwadi would not

adversely affect their continuity of service or adversely

affect the conditions of their employment, and further a

free single unit accommodation each was organized for

the said workmen at Bhiwadi.

(i) However, the said workmen did not obey or carry out the

said transfer orders and instead of joining their duties at

Bhiwadi, the workmen openly flouted the said transfer

orders. Consequently, the management in terms of the

Standing Orders deemed the workmen to have abandoned

their employment and terminated their services in terms

of Clause -C under head note I of the Standing Orders,

which provides as under:

"If the worker remains absent beyond the period of leave originally granted, he shall be liable to be discharged from the service of the company with effect from the date on which the leave granted to him expired unless (1) he returns within 8 consecutive days of the expiry of his leave and (2) gives an explanation to the satisfaction of the Manager of his inability to return on the expiry of the leave granted to him."

(j) At the behest of the workmen the appropriate authority

proceeded to make a reference to the Industrial

Adjudicator in the following terms.

"Whether the transfer of Sarvshri Ranjit Kumar, Ram Asre, Raj Kumar, Ramesh Kumar, Vinod Kumar, and Gupteshwar from Delhi to Bhiwadi by the management is illegal, and/or unjustified, and if so, to what relief they are entitled and what directions are necessary in this respect."

(k) Before the Industrial Adjudicator, statement of claim on

behalf of the workmen was filed by Shri Rajith Kumar

M.K., General Secretary, Tobu Mazdoor Sangh on 24.5.95.

The case of the workmen, in brief is that the management

was employing about 500 workers in its three factories at

New Delhi area only; that there was no factory outside

Delhi territory at the time when the workmen were

appointed; that appointment letters were issued to the

workers wherein there was no stipulation that they were

liable to be transferred out of Delhi; that the wages and

other working conditions of the workers were far from

satisfactory and consequently they formed a union by the

name of Tobu Mazdoor Sangh and got it registered in

December, 1998; that the union submitted a charter of

demand to the management on behalf of the workmen and

thereafter the General Secretary and other office bearers

and members of the union were removed from service;

that after protracted correspondence and agitation by the

workers, the management reinstated the workers except

some of them who were not so reinstated and whose

disputes are pending in labour courts; that the

management recognized the union and also entered into a

settlement with them; that the management after the

settlement initially implemented the same but after

sometime withheld implementation of its provisions; that

the management has illegally and without prior

permission of the appropriate Government closed down

certain department completely and some departments

partially and removed the workers from service; that the

management closed down one of the three factories at

New Delhi in utter violation of Section-25(O) of the

Industrial Disputes Act and also started selling various

machines to reduce the strength of workers without

obtaining permission for retrenchment from the

appropriate Government; that on 24.2.94, the union wrote

to the management protesting against the selling of

injection moulding machine and expressed its anxiety

about the fate of the workers to which management

replied that no retrenchment would be affected by selling

the machines; that on the same date on 24.2.94, transfer

orders were issued to Shri Rajith Kumar M.K. and others

mentioned in the reference order to a newly established

factory at Bhiwadi(Rajasthan), where there is no dearth of

labour and particularly when there was no condition in

appointment letters that they are liable to be transferred

outside Delhi; that the transfer orders are a colourful

exercise of the powers of the management in a malafide

manner with a view to disturb the established workers of

Delhi units of the management who are not legally bound

to be transferred out of Delhi, as there is no such

condition in their appointment letters or in the standing

orders of the company or under the model standing

orders; and that the transfer orders are illegal and

malafide to victimize the workmen. It was, accordingly,

prayed that award be passed holding the transfers as

illegal and unjustified and the workers be ordered to be

granted full back wages for the illegal refusal by the

management to allow them duty at New Delhi.

(l) The management contested the claim of the workmen

before the Industrial Adjudicator by filing written

statement. Preliminary objections were taken that the

concerned workmen namely, Rajith Kumar M.K., and five

others were transferred to Bhiwadi(Rajasthan) from Delhi

due to exigency of work/Admn. grounds and in the interest

of business, as provided under Section-I(1) and standing

orders of the management, as well as also provided under

Clause-4(b) of letter of appointment of respective

workmen, and therefore the Industrial Adjudicator ought

not to interfere with the orders of transfer of workmen

issued by the management; that the General Secretary of

the union was neither elected nor authorized to sign the

claim of the workmen in respect of transfer and, hence,

the claim of the workmen is not maintainable, that the

union has no locus-standi to represent the cause of the

workmen in respect of transfer; and that there is no

proper espousal for and on behalf of the union. On merits

it was pleaded that Tobu Enterprises Ltd., Delhi and Tobu

Enterprises Ltd, Bhiwadi are one and the same

establishments owned by the same management; that the

workmen concerned accepted the terms and conditions of

appointment letter which includes clause of transfer; that

the Government of India and Ministry of Industry,

permitted the management vide letters dated 14.9.94 and

1.11.94 to shift the location of manufacturing and

injection moulding and blow moulding components from

Kirti Nagar Industrial Area, Delhi to Bhiwadi, District

Alwar(Rajasthan); and that the transfer orders issued by

the management are legal and valid and justified and

bonafide. It was, accordingly, prayed that the claim of the

workmen be dismissed.

(m) In rejoinder, filed on behalf of the workmen by the

General Secretary of the union on 17.1.96, the averments

made by the management in their written statement were

controverted and the contents of the statement of claim

were reiterated.

(n) On the pleadings of the parties, the Industrial Adjudicator

framed the following issues:

(i) Whether general Secretary of Union is authorized to sign statement of claim? If not, its effect?

(ii) Whether the Union has locus standi to represent the cause of workman concerned? If not its effect?

(iii) As in terms of reference.

(o) In support of case of the workmen, seven witnesses were

examined. WW-1 Shri Rajith Kumar M.K. tendered in

evidence his affidavit EX.WW1/1. He also proved on

record letter of authority signed by S/Shri Vinod Kumar

and Ramesh Kumar, the concerned workmen, in favour of

the Union as EX.WW1/A; his transfer order dated 24-2-94

from Delhi, to Bhiwadi(Rajasthan) EX.WW1/B; and his

reply dated 2-3-94 to the transfer order as EX.WW1/C.

WW-2 Shri Vinod Kumar has tendered in evidence his

affidavit EX.WW2/1. He also proved on record letter of

authority dated 2-4-1994, executed by him in favour of the

Union and signed by him at point „A‟ as EX.WW2/2; and

his reply to the management regarding his transfer from

Delhi to Bhiwadi as EX.WW2/3. WW-3 Shri Ram Asrey

Pandey, tendered in evidence his affidavit EX.WW3/A. He

also proved on record letter of Authority executed by him

in favour of the Union and signed by him at point „A‟ as

EX.WW3/B; and his letter dated 2-3-94 sent to the

management regarding his transfer as EX.WW3/C. WW-4

Shri Raj Kumar Sharma, tendered in evidence his affidavit

EX.WW4/A. He proved on record letter of Authority

executed by him in favour of the Union and signed by him

at point „A‟ as EX.WW4/B; and copy of his letter dated 2-3-

94, sent by him to the management regarding his transfer

as Ex.WW4/C. WW-5 Shri Ramesh Kumar tendered in

evidence his affidavit EX.WW5/A. He also proved on

record copy of letter dated 2-3-94 sent by him to the

management regarding his transfer as EX.WW5/B; and the

authority letter given by him to the Union signed by him at

point „C‟ as EX.WW5/C. WW-6 Shri Gupteshwar tendered

in evidence his affidavit EX.WW6/A. He also proved on

record copy of letter dated 31-3-94 sent by him to the

management against his transfer from Delhi to Bhiwadi as

Ex.WW6/B; and the authority letter executed by him in

favour of the union as EX.WW6/C. WW-7 Shri Raj Kumar

Gupta tendered in evidence his affidavit EX.WW7/A along

with copies of documents Marked W-1 and W-2.

(p) The management, in defence, examined their Personnel

Officer Shri Prabhakar Mishra as MW-1. He tendered in

evidence his affidavit EX.MW1/A alongwith the copies of

documents EX.MW1/1 to EXMW1/8.

(q) The Industrial Adjudicator having heard learned

authorized representatives of the parties, and carefully

perusing the material on record, and after giving

thoughtful consideration to the rival contentions of the

parties arrived at findings on the above Issues as under:

(r) With regard to issue no.1 after considering the unrebutted

testimony of the workmen in their respective affidavits

Ex.WW2/A to Ex. WW7/A the Industrial Adjudicator found

that the workmen had proved that the General Secretary

had been duly authorized by them to sign the statement of

claim on their behalf. Issue no.1 was accordingly decided

in favour of the workmen concerned and against the

management.

(s) With regard to issue no.2 after considering the testimony

of the President of the Union who alongwith his affidavit

Ex.WW7/A provided a list of workmen

transferred/terminated including those concerned with the

present reference as Ex.WW7/1 as well as a copy of an

order issued by Ashok Aggarwal, General Manager of the

management, whereby the management recognized the

union, which evidence was not rebutted by any material

on behalf of the management to support their contention

that there was no proper espousal by the union in the

matter under adjudication, the Industrial Adjudicator

came to a finding that there was sufficient material on the

record to prove that the cause of the workmen had been

validly and legally espoused by their union. Accordingly

this issue was also decided in favour of the workmen and

against the management.

(t) With regard to issue no.3 the short question that was

considered by the Industrial Adjudicator was whether the

management had the authority to transfer the workmen

concerned. After considering the Industrial Employment

Standing Orders of the management the Industrial

Adjudicator came to the finding that although the

management did have the authority to transfer employees

from one unit to another yet it could not be said that the

transfers in this case did not adversely affect the

conditions of the workmen‟s employment. The Industrial

Adjudicator relying on the decisions of the Supreme Court

in Kundan Sugar Mills v. Ziyauuddin and others; AIR 1960

Supreme Court 650, where it had been observed that "an

employer has no inherent right to transfer his employee to

another place where he chooses to start a business

subsequent to the date of the employment", came to the

conclusion that in the absence of an express term of

contract of service between the employer and an

employee that the latter should serve in any future

concern which the former might acquire or start, a person

employed in a factory cannot be transferred to some other

independent concern started by the same employer at

another place at a stage subsequent to the date of his

employment. The Industrial Adjudicator, therefore, held

that no Clause in the contract of service came to the

rescue of the management so as to justify the transfer of

the workmen concerned from Delhi to Bhiwadi where the

unit was admittedly started subsequent to the employment

of the workmen concerned with the management.

(u) Furthermore, the Industrial Adjudicator considering the

past conduct of the management whereby transfer orders

were enforced only against the workmen concerned

because they were active members of the union whereas

the management had withdrawn the transfer orders in

respect of the other employees, came to a conclusion that

the action of the management was malafide and the

refusal of duty in case of the workmen concerned

amounted to termination of their services in violation of

principles of natural justice and consequently illegal. The

Industrial Adjudicator came to the irresistible conclusion

that the transfer orders passed in respect of concerned

workmen were in contravention of the Standing Orders

applicable to the workmen, proved by the management

themselves as Ex.MW1/8, and accordingly held that the

transfer of S/Sh. Rajith Kumar M.K., Ram Asrey, Raj

Kumar, Ramesh Kumar, Vinod Kumar and Gupteshwar

from Delhi to Bhiwadi was illegal and unjustified.

3. Counsel for the management urged that the Industrial

Adjudicator failed to appreciate that the workmen had been issued

appointment letters wherein it was specifically mentioned that they

would be governed by the rules and regulations and Standing Orders

of the management; and that it was clearly specified in the certified

Standing Orders that a workman was liable to be transferred from one

job to another or from one department/section to another or from one

unit to another (existing or future), provided the transfer did not

adversely affect the conditions of employment; and further that the

workmen had been assured in writing that the transfer to Bhiwadi

would not adversely affect the conditions of their employment, and

that, therefore, the impugned award was perverse, insofar as, it held

that the transfer to Bhiwadi was adverse to the conditions of service

of the workmen.

4. Counsel for the management next urged that since the workers

refused to carry out the transfer orders, no relief could be given to

them. Counsel for the management lastly urged that since the workers

had been transferred to Bhiwadi, the Industrial Adjudicator in Delhi

did not have territorial jurisdiction to entertain the industrial dispute

relating to the legality or justifiability of the transfer and as such the

reference itself was bad.

5. Per contra, counsel for the workmen submitted that the

Standing Orders relied upon by the management did not provide for

transfer of the workmen to any unit anywhere in India, and

consequently in terms of the Model Orders applicable on additional

items, moving from one State to another of the workmen without his

consent or without the appointment letter providing therefor in

express terms was not permissible. Counsel for the respondent also

relied on the decision of the Supreme Court in Kundan Sugar Mills

vs. Ziyauddin and others; AIR 1960 SC 650, to urge that there was

no inherent right in the management to transfer the workman to

another place where the former chooses to start a business

subsequent to the date of employment, in the absence of an express

term in this behalf in the contract of service, and that a workman

employed in a management cannot be transferred to some other

independent concern started by the same management at another

place at a stage subsequent to the date of his employment. Counsel

for the workmen further urged that a Single Judge of this Court in a

matter relating to the same management had observed as follows:

"...... The only question for consideration is whether the Respondent/workman could at all have been transferred outside Delhi.

Learned counsel for the Petitioner relies upon the use of the words "existing or future" appearing in parenthesis in paragraph I(i) of the Standing Orders. His submission is that the Petitioner was entitled at any time to open up another unit outside Delhi and that is done,

the Respondent-workman could have been transferred to that unit outside Delhi. The Labour Court considered this aspect of the matter but was not satisfied that the Petitioner has the power to transfer the Respondent/workman outside Delhi. In this context, reliance was also placed on the appointment letter which also does not give any indication that the job of the Respondent/workman is transferable outside Delhi."

to contend that in view thereof the management could not transfer the

workmen to Bhiwadi. Counsel for the workmen also urged that the

purported permission to shift the factory from Delhi to Bhiwadi was

only applied for on 12th November, 1994 whereas the transfer order

issued to the workmen was prior to the said application and was dated

24th February, 1994 and that, therefore, the permission to transfer the

unit if at all was of no avail as it was subsequent to the date of the

impugned transfer.

6. Counsel for the respondent finally submitted that the Industrial

Adjudicator justifiably came to the conclusion that the transfer was

malafide, inasmuch as, the management struck off the names of the

workmen from the rolls after about one week of transfer outside Delhi

without issuing any chargesheet or conducting any inquiry or offering

any retrenchment compensation to any of the workmen before

striking off their names from the rolls of the management at Delhi.

7. I find considerable force in the submissions made on behalf of

the workmen. In the present case it is seen that (a) there was no unit

outside Delhi when the workmen were appointed, (b) there was no

stipulation in the appointment letters that the workmen could be

transferred outside Delhi and (c) the management closed down its

unit in Delhi in violation of the relevant provisions of the ID Act. It is,

therefore, seen that although the certified Standing Orders of the

management provided that the workmen could be transferred from

one job to another or from one department/section to another or from

one unit to another, as observed by the Single Judge in Civil Writ No.

3861 of 2000, the appointment letter did not give any indication that

the workmen could be transferred outside Delhi, and that, therefore,

in terms of the decision of the Supreme Court in Kundan Sugar

Mills vs. Ziyauddin and others (supra), which clearly holds that

there was no inherent right in an employer to transfer his employee to

another place where he chooses to start a business subsequent to the

date of employment in the absence of an express term in this behalf in

the contract of service, the workmen employed with the management

in the instant case could not be transferred to some other

independent concern started by the same management at Bhiwadi

(Alwar) at a stage subsequent to the date of the employment. Also,

insofar as, the contention of the management in respect of the

workmen not being entitled to any relief on account of having refused

to carry out the transfer orders is concerned, it is seen that under the

provision of Rule 14(3)(a) of the Industrial Employment (Standing

Orders) Central Rules, 1946, a willful disobedience amounts to

misconduct only if workman disobeys a lawful and reasonable order of

his superior, which order in the present case has been held by the

Industrial Adjudicator to be neither legal nor justified.

8. Significantly, it is seen that the Industrial Adjudicator after

considering the conduct of the management, whereby transfer orders

were enforced only against the workmen concerned, because they

were active members of the union, whereas the management

withdrew the transfer orders in respect of other employees, justifiably

came to a conclusion that the action of the management was malafide,

and that the termination of the services was in violation of the

provisions of the Industrial Disputes Act and consequently illegal. The

view taken by the Industrial Adjudicator, in my opinion, is a possible

view and is certainly not perverse. It is not possible for this Court to

substitute its opinion for that taken by the Industrial Adjudicator.

Lastly, I come to the submission made by counsel for the management

that since the workmen had been transferred to Bhiwadi the

Industrial Adjudicator in Delhi had no territorial jurisdiction over the

dispute that, therefore, the reference itself was bad on this account.

This submission made on behalf of the management, does not hold

water, in view of the decision of the Supreme Court in Bikash

Bhushan Ghosh & Ors. vs. Novartis India Limited & Anr.; JT

2007 (6) SC 432, where it has been held that if the order of transfer is

illegal and the services of the workman were terminated for not

complying therewith, the legality of the orders of transfer would have

a direct nexus with the order of termination, and would constitute

cause of action according jurisdiction to the Industrial Adjudicator

where termination was effected, as observed unequivocally by the

Supreme Court in Om Prakash Srivastava vs. Union of India and

Another; JT 2006 (7) SC 35. In the present case it is not disputed that

the termination was effective in Delhi.

9. The scope of judicial review in a proceeding under Article 226 of

the Constitution of India is no longer res integra. This Court under the

provisions of Article 226 of the Constitution of India cannot undertake

the exercise of liberally reappreciating the evidence and drawing

conclusions of its own on pure questions of fact. The findings of fact

recorded by a fact-finding authority duly constituted for the purpose

cannot be interfered with as long as they are based upon some

material relevant for the purpose or even on the ground that there is

yet another view which can reasonably and possibly be taken.

10. In the present case the findings of the Industrial Adjudicator are

based on the appreciation of evidence produced before it. I am of the

view that the findings cannot be said to be based on no evidence at

all, so as to, warrant a re-appreciation of evidence, by this Court. The

limitations on the jurisdiction of this Court are well settled. A writ in

the nature of certiorari may be issued only if the finding of the

Industrial Adjudicator suffers from an error or jurisdiction or from a

breach of principles of natural justice or is vitiated by a manifest or

apparent error of law. No such issue has been established in the

instant case on behalf of the management. The Court will not

countenance the picking of holes here and there in the award on

trivial points and attempting thereby to frustrate the entire

adjudication process before the Industrial Adjudicator on

hypertechnical grounds as is being sought to be done by the

management in the present case.

11. For the foregoing reasons, I find no merit in the submissions

made on behalf of the management. The findings of the Industrial

Adjudicator are based on material constituting ample basis for the

findings recorded and the reasonable findings are unexceptionable.

The Award does not suffer from any infirmity so as to warrant

interference by this Court. As a result the writ petition fails and is

accordingly dismissed, but, with no order as to costs.

SIDDHARTH MRIDUL, J.

November 10, 2008 mk