The Management Of M/S Ece ... vs Sh. Kamal Kumar Puri
2010 Latest Caselaw 1096 Del

                  *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.5833/1999

%                                       Date of decision: 24th February, 2010

THE MANAGEMENT OF M/S ECE
INDUSTRIES LTD.                               ..... Petitioner
                Through: Mr. Sudhir Kulshreshtha, Advocate

                                      Versus
SH. KAMAL KUMAR PURI                                        ..... Respondent
                Through: None.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?             No

2.        To be referred to the reporter or not?      No

3.        Whether the judgment should be reported     No
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner / management seeks quashing of the award dated 5 th April, 1999 of the Labour Court holding the termination by the petitioner of the services of the respondent/ workman to be illegal and unjustified and further holding that the respondent / workman was never transferred from Delhi to Meerut as accounts staff and directing reinstatement with full back wages and continuity of service with all benefits to the respondent/workman.

2. Notice of the writ petition and the application for interim relief was issued to the respondent/workman. Though a reply to the petition has been filed but the respondent/workman thereafter stopped appearing in this proceeding. This Court, vide detailed ad-interim order dated 19th February, 2002 also made in the absence of the respondent, stayed the operation of the award during the pendency of this petition and issued Rule. The writ

petition came up for regular hearing on 8th September, 2006 and has thereafter been listed on numerous dates when also none appeared for the respondent/workman. None appeared for the petitioner also on 30th November, 2007 when the petition was dismissed in default for non- prosecution. CM No.17544/2007 was filed by the petitioner / management for restoration of the writ petition. Notice thereof was ordered to be issued to the respondent/workman. However, the notice could not be served and ultimately on 27th January, 2009 substituted service by publication was ordered and it has been carried out. The respondent/workman still failed to appear and has not appeared today also. The respondent/workman is accordingly proceeded against ex parte.

3. It is the case of the petitioner that as per the terms of appointment, the job of the respondent/workman was transferrable and the respondent / workman was in the past also transferred from one place to another and was last transferred to Meerut but failed to join duties at Meerut and raised a mala fide dispute. Subsequently the reference so made was amended as under:-

"Whether the services of Sh. Kamal Kumar Puri have been transferred from Delhi to Meerut or his services have been terminated illegally and or unjustifiably and if so, to what relief is he entitled and what directions are necessary in this regard."

4. The Labour Court did not believe the version of the petitioner/ management of the order of transfer of the respondent/workman and found the said plea to have been taken by the petitioner / management as an afterthought, only upon dispute being raised by the respondent/workman. The Labour Court further found the order of transfer to be bad as it amounted to change of service conditions of the respondent/workman. It was held that the respondent/workman had been employed as an Accounts

Assistant and transfer as a Store Keeper at Meerut amounted to change in his service conditions.

5. Ordinarily this Court in exercise of the writ jurisdiction would not interfere with the findings of fact of the Labour Court, unless the same are shown to be perverse or based on no evidence or on evidence not admissible in law. However, in the present case, it is found that the petitioner even when the matter was pending before the Conciliation Officer offered to the respondent/workman to join at Meerut. The respondent/workman however did not agree to the same. Even if it were to be held that the order of transfer had not been earlier served by the petitioner/management on the respondent/ workman as held by the Labour Court, the job of the respondent/workman being admittedly transferrable, the refusal of the respondent/workman at the stage of conciliation proceedings certainly shows that the respondent/ workman was not interested in joining duty at Meerut. Reference in this regard may be made to Trina Engineering Co. (P) Ltd. Vs The Secretary (Labour) MANU/DE/0992/2005 where upon such offers being made before the Conciliation Officer, this Court held the same as evidence of the management being interested in providing duty to the workman and the conduct of the workman in not responding to the same was held to be indicative of him being not interested in joining.

6. As far as the plea of the respondent/workman of the transfer being a change in his service conditions is concerned, it is found that the petitioner / management was unable to find a Store Keeper at Meerut and the transfer was by way of an exigency of service. The salary and pay scale of the workman was fully protected and thus there was no reason for the respondent/workman to protest. It is also found that the job earlier being done by the respondent / workman as Accounts Assistant was also ancillary to the stores. The Supreme Court recently in Ashok K. Jha Vs. Garden Silk Mills (2009) 10 SCC 584 has held that the onus is on the workman to

prove/establish that there was any difference in the work in the two departments of the same establishment or that the work at the transferred post is different, particularly when there is no change in the pay scales. I find that there is no such foundation laid by the respondent / workman in the present case. The said finding of the Labour Court is thus found to be without any basis.

7. The respondent/workman having failed to appear before this Court since the year 2001 and having even failed to file any application under Section 17B of the Industrial Disputes Act in this period shows that the respondent/ workman since then is not interested in reinstatement or in any other relief. In the circumstances, the award if allowed to stand will cause prejudice to the petitioner/management.

8. The writ petition thus succeeds, the Rule earlier issued is made absolute, the award impugned in this petition is quashed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 24th February, 2010 gsr