Deepak Kumar Bali vs M/S. Hmt Limited
2009 Latest Caselaw 247 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Reserved on : 15.01.2009
%                                            Date of decision : 23.01.2009

+                        LPA No.2031 of 2006


DEEPAK KUMAR BALI                                    ...APPELLANT
                            Through:     Appellant in person.


                                   Versus


M/S. HMT LIMITED                                     ...RESPONDENT
                            Through:     Mr. Sudhir Nandrajog, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?              Yes

2.        To be referred to Reporter or not?               Yes

3.        Whether the judgment should be
          reported in the Digest?                          Yes


SANJAY KISHAN KAUL, J.

1. The appellant joined the services of the respondent in

September 1978 as a Service Mechanic and his terms of

appointment entitled the respondent to transfer the

appellant as an incidence of service. The appellant worked

at various locations and was serving in the Delhi Marketing

& Service Office when on 17.9.1987 he was transferred to

Pinjore and was required to report for duty. The appellant

was relieved from his service at Delhi on 30.9.1987. The

appellant, however, did not join at Pinjore. It is the case of

the respondent that the appellant refused to accept the

transfer order and submitted representations dated

2.10.1987 & 21.10.1987 against the transfer. The

representation dated 2.10.1987 is by way of telegram while

the second one dated 21.10.1987 is in the form of a letter

and read as under:

"Dt. 2.10.87

HINDTOOLS CHANDIGARH

GMG DELHI HMTL OFFICIALS HARASSED ME TO RECEIVE RELIVING ORDERS WHEN JOINED 30.9.87 AFTER SICK LEAVE (.) ISSUED RELIVED ORDERS(.) SITTING AT HOME() NOT JOINING PINJORE () REQUEST SEND ADHOC AND SEPTEMBER SALARY MY RESIDENCE IS REGARDS."

.... .... .... .... .... .... .... .... ....

"Dt. 21.10.1987

Dear Sir

I refer to your letter No.PD/18.10./6295 dt. 14.10.1987. In this regard I would like to inform you that I already informed to General Manager, Pinjore on dt. 2.10.1987 and 6.10.1987 by Telegraphically that I am not joining Pinjore, the reason of not joining I enclosed the photocopy of my letter, which is addressed to Dy. General Manager Marketing, Chandigarh for your information and clarification. In my both telegraphs I also requested to G.M. since I am not joining, Pinjore kindly arrange to send my September 87 salary and Adhoc payment to my residence as Delhi office refused to pay the same payments, but till today I did not receive the same. I request you again kindly the above mentioned payments to my residence as earlier as possible."

2. The appellant stated that he did not join duties for personal

reasons while the stand of the respondent Management

was that the transfer to Pinjore was a consequence of the

appellant himself wanting duty at a place where frequent

journeys were not required to be done by the appellant.

The appellant was served with letters dated 14.10.1987 &

11.11.1987 to report for duty at Pinjore as per specified

dates but to no avail. This resulted in charge sheets being

issued to the appellant dated 29.12.1987 & 5.1.1988.

Departmental inquiries were initiated thereafter and on

inquiry it was found that the charge of unauthorized

absence from duty and disobedience was proved against

the appellant. The appellant, possibly apprehending an

action, tendered his resignation on 4.4.1988. This

resignation was accepted vide letter dated 10.5.1988. The

appellant accepted the same and vide legal notice dated

9.7.1988 sought settlement of his dues on account of his

resignation. The dues of the appellant were settled and the

details informed vide letter dated 15.11.1988. The

resignation thus induced the respondent to drop the

disciplinary proceedings.

3. The appellant seems to have had a second thought when

on 21.2.1989 a complaint was made by him to the

Conciliation Officer stating that the resignation letter was

not voluntary but was on account of compulsion and

pressure put on him by his superior Shri J.P. Saxena.

4. The dispute raised by the appellant as a workman was

referred to the Labour Court under Section 10 of the

Industrial Disputes Act 1947 (hereinafter referred to as the

said Act). The terms of reference required the Labour Court

to examine whether the appellant resigned from his

services under duress or his services have been terminated

wrongfully or unjustifiably and in case the same was

answered in the affirmative as to what relief the appellant

would be entitled to. The Presiding Officer of the Labour

Court considered the evidence and examined the principal

contention of the resignation being under duress. He noted

that in order to constitute a resignation it must be

unconditional with intent to operate as such. The Tribunal

held that the termination on the basis of resignation letter

was illegal and unjustified but did not find it appropriate to

direct re-instatement. Instead under Section 11A of the

said Act, compensation of Rs.3.00 lakh in lieu of re-

instatement, back wages and all other legal benefits was

granted.

5. The appellant and the respondent were both aggrieved by

the said order and filed two separate writ petitions. These

writ petitions have been dealt with in the elaborate

impugned order dated 23.8.2006. The learned single Judge

has allowed the writ petition of the respondent

Management and held that the resignation was not under

any duress or pressure and consequently there was no

question of grant of any damages to the appellant.

6. We have heard the appellant in person and learned counsel

for the respondent.

7. We consider it appropriate to first note the very basis of the

conclusion of the Labour Court. The conclusion is contained

in just one paragraph, which reads as under:

"23. Now applying this principle laid down by the Supreme Court in abovesaid cases, in the present case. It is admitted case of the parties that workman was transferred from Delhi to Pinjore on 17.9.1987, he never joined at Pinjore. It is further admitted case of the parties that at the time of transfer the workman was residing at the flat in Janakpuri which belongs to uncle of MW2, Shri J.P. Saxena. The workman in the statement of claim in so many paras alleged the role of Shri J.P. Saxena in respect of his

transfer from Delhi. In the written statement there is no specific denial of the allegations against Shri J.P. Saxena. In the cross examination, allegation against Shri J.P. Saxena when appeared in the witness box admitted that as per advice of the Chief these were not denied but mentioned in the affidavit. In my opinion, in the circumstances, where the workman is residing in a flat rented by such a higher official of the management and who is in authority to get job transferred of the workman, then in my opinion, the higher official can create such circumstances which lead to eviction of the rented accommodation as well as in other circumstances which may result in failing the wishes of the superiors. In my considered opinion, in the backdrop of the circumstances as admitted on record that Shri J.P. Saxena was having such powers that he was able to get transferred the workman from Delhi to Pinjore and ultimately the workman had to give resignation letter on 4.7.1988. It is further admitted on record that the workman was ill at the time/relevant period. In my opinion, the cumulative effect of the exercise of power by Shri J.P. Saxena was such that workman had no other option but to resign from the job. In my considered opinion, the resignation letter although, it was after six months of the transfer order but it was a heat which diminished the intention or voluntary intention or expression of resignation of the workman. In my considered opinion, the law stated by AR for the workman especially the judgement of Dr. Prabha Atri (supra) in the present facts and circumstances also established that the circumstances participated against the workman resulted in tendering resignation.

On the basis of the above observations and discussion, the issue is decided in favour of the workman and again the management."

8. In our considered view, the Labour Court completely

misconstrued the legal position in the given facts of the

case. Insofar as the aspect of the resignation being under

duress or pressure is concerned we fail to appreciate as to

what is the relevance of the residence of the appellant in a

flat of a higher officer of the management. It was for the

appellant to make arrangement for his residence and he

took the rented accommodation, which was owned by Shri

J.P. Saxena. It can hardly be said that because the

appellant was residing in such a residence, it has to be

presumed that Shri J.P Saxena has power to influence his

decision about the resignation.

9. The Labour Court has relied upon the judgement of the

Supreme Court in Dr. Prabha Atri Vs. State of Uttar Pradesh

& Ors. 2003 (1) SCC 701. In the facts of that case the

concerned employee in a letter stated as under:

"Your letter is uncalled for and should be withdrawn. I have been working in this hospital since 10.5.1978 and have always worked in the best interest of the patients. It is tragic, instead of taking a lenient view of my sickness you have opted to punish me."

10. It is in view thereof that the resignation letter was

considered as not spontaneous. In the present case it is

not in dispute that the job of the appellant was transferable.

The appellant was transferred to Pinjore but refused to join

the new station and instead made representations against

the same. Since the appellant did not join there was no

option left with the respondent Management but to start

disciplinary proceedings. A very important fact to be noted

is that at no stage the appellant challenged the transfer

order in any legal proceedings. At the stage when the

disciplinary proceedings were reaching a conclusion against

the appellant, the appellant in his wisdom thought it

appropriate to resign and go out of service. It was the

option with the appellant to either challenge the transfer

order or to contest the disciplinary proceedings but instead

of challenging the transfer order he chose to resign. His

resignation was accepted as the Management also in its

wisdom thought it appropriate to let go of him and all his

dues were paid. The dues sent by the respondent

Management were appropriated by the appellant. The

appellant having appropriated the dues, thereafter sought

to rake up the issue of the resignation being under duress

or pressure.

11. We are in full agreement with the view of the learned single

Judge contained in para 29 of the impugned order as under:

"29. From the facts noticed above, it is not possible to hold that the workman was compelled or the resignation letter was not of the volition of the petitioner. Even if the petitioner felt uncomfortable and therefore tendered the resignation, he had sufficient opportunity to ponder over his actions and their consequences before the resignation was accepted. The petitioner opted to stand by his resignation letter. In this view of the matter, I have no hesitation in holding that respondent/workman, in the instant case, had sought to bring his employment to an end by his letter dated 4th April, 1988 and sought payment pursuant thereto. The workman thereafter has deliberated and demanded payments from his employer. When ordered, he has voluntarily accepted the payments made by the petitioner and consequently cannot assail the same on purported grounds of the resignation letter being involuntary or having been given in duress. The allegations of the petitioner do not inspire any confidence."

12. We may note that a second aspect dealt with both by the

Labour Court and the learned single Judge has arisen from

an objection raised by the respondent Management to the

territorial jurisdiction as it is the case of the respondent that

the appellant having been transferred to Pinjore, the

appellant being the aggrieved employee could have only

invoked the jurisdiction of the concerned administration for

reference of disputes to the Labour Court at Pinjore.

13. The Labour Court was of the view that the grievance of the

appellant workman arose at Delhi when he was aggrieved

by the transfer order and secondly when he resigned. The

appellant had worked lastly at Delhi.

14. The respondent Management, however, contended that the

appellant was relieved from Delhi but failed to join at

Pinjore and the consequent disciplinary proceedings were

conducted at Pinjore. The resignation letter was also

accepted at Pinjore where the order terminating the

services of the appellant pursuant thereto was passed. The

resignation letter dated 4.4.1988 was also addressed to

Pinjore.

15. We may note that undoubtedly the appellant was working

at Delhi when he was transferred to Pinjore. However, the

appellant did not challenge the transfer order for which the

jurisdiction would have been at Delhi. Instead the appellant

permitted the proceedings to go on at Pinjore and finally

addressed a letter of resignation to the address at Pinjore,

which was duly accepted at Pinjore.

16. The learned single Judge has referred to the Full Bench

judgement of the High Court Judicature at Patna in Paritosh

Kumar Pal Vs. State of Bihar 1985 (33) BLJR 150 where it

was held that the well established test of jurisdiction in

such a case would be dependent on the subject matter of

dispute having substantially arisen within the jurisdiction of

that Court. Thus, the question would be as to what is the

dispute.

17. The learned single Judge has found that the situs of the

workman is at Pinjore. The dispute is not whether the

transfer order of the petitioner was legal since the same

was never challenged but whether on the transfer order

having been made and the appellant not having joined, the

subsequent letters sent by the appellant of resignation

were under duress or pressure since the disciplinary

proceedings were being carried on at Pinjore where the

resignation letter was sent and accepted, its reference in

Delhi was without jurisdiction. The mere receipt of order of

termination of services was held not to create jurisdiction.

The learned single Judge also noticed the doctrine of forum

conveniens as enunciated in Kusum Ingots & Alloys Ltd. Vs.

Union of India & Anr. (2004) 6 SCC 254.

18. We are conscious of the fact that in a dispute amongst the

management and the workman, the workman is a weaker

party and should not be displaced on grounds of jurisdiction

to a place where it would be difficult for the workman to

contest the proceedings. Thus, if a transfer was to be made

malafide or contrary to the policy and was thereafter

sought to be challenged, it would not be open for the

management to contend that it is only the place of transfer

which would have jurisdiction. However, in the present

case the transfer has not been challenged. The appellant

did seek to agitate the aspect of his transfer but never took

the challenge to its proper culmination by seeking to

challenge the same and that has formed the basis of the

impugned order.

19. In WP (C) No.1533/2008 titled Bisundhari Singh & Ors. Vs.

M/s. Dhillon Transport Agency decided 26.2.2008, one of us

(Sudershan Kumar Misra, J.) had an opportunity to look into

a similar situation. It was held that a workman cannot

create an artificial cause of action to raise a dispute at a

place wherever he has been transferred in violation of

transfer orders by incidentally questioning the order of

transfer. It was observed as under:

"In General Manager, N.E. Railway, Gorakhpur & Others Vs. Jamait Ram Khatnani & Others 1975 FLR 246 All, the following observations were made by Allahabad High Court :

"...............Once an employee is transferred and posted to a particular place acceptance of the transfer order by that employee is immaterial. Even though he may not join his duties or physically may not go to the new place of posting he will continue to be posted there in the eye of law. His place of posting cannot be deemed to have changed merely because he disobeys the transfer order...................".

Similarly, in Siemens Limited Vs. Presiding Officer, Additional Industrial Tribunal-Cum- Additional Labour Court, Hyderabad & Another 2003 (96) FLR 819 AP the following observations were made by the Andhra Pradesh High Court:

"40. ..........the situs of employment would become paramount in raising the industrial dispute. Since the situs of the employment of the workman was at Manipal with effect from 3.10.1994 as indicated in the order of transfer dated 19.9.1994 and notice dated 6.10.1994 and the same was treated as misconduct, by the office at Bangalore.

41. In other words he ceases to be an employee of Hyderabad Office with effect from 3.10.1994 and supposed to have born at the new station at Manipal, within the jurisdiction of Bangalore Office....... At the most his stay at Hyderabad is only illegal and as right pointed, the same amounts to absenting himself from attending the duties at the new station."

In Lohla Starlinger Ltd. and Anr. Vs. Government of NCT of Delhi and Ors. 2006 LLR 905, Delhi, a Single Bench of our High Court has observed as follows :

"36. .......... Mere continuation of stay at the place where the employee has been transferred does not create any legal right to adjudicate his grievance by his termination after the cessation of his employment at the office wherefrom he is transferred; his

continuous stay at such place is illegal and amounts to absenting himself from attending duties at the new station. Stay at the place wherefrom an employee is transferred must be for valid reasons.

37. A workman cannot create an artificial cause of action to raise a dispute at a place wherefrom he/ she has been transferred by incidentally questioning the order of transfer ......"

Similar observations have been made in Indian Express Newspaper (Bombay) Pvt. Ltd. and State of West Bengal and Others with Sampat B.G. Vs. Indian Express Newspaper (Bombay) Pvt. Ltd., 2005 (106) FLR 467 Cal., New Delhi General Mazdoor Union Vs. Government of Delhi and Others 2000 LLR 770.

5. I have repeatedly tried to explain to learned counsel for the petitioner that if his case is that the petitioner's service has been terminated under the garb of a transfer; it can only mean that the management has stopped the petitioners from working and had no intention of taking their services even at the place to which they were transferred. If that were so, it would have been quite easy for the petitioners to put the ball in the management's court by reporting for work at that place, or at least expressing their willingness to do so...."

20. We do not consider it appropriate to say anything more in

this behalf as, in our considered view, on the facts of the

case where the termination is voluntary and at the own

volition of the workman nothing more is required to be

examined.

21. The appeal is without any merit and is dismissed leaving

the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

JANUARY 23, 2009 SUDERSHAN KUMAR MISRA, J. b'nesh