Management Of M/S Rajasthan ... vs Jasod Singh
2012 Latest Caselaw 7075 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 11th December, 2012

+                                 LPA No.803/2012

       MANAGEMENT OF M/S RAJASTHAN
       PATRIKA LTD.                          ..... Appellant
                      Through: R Aruneshwar Gupta, Mr.
                               Manish Raghav & Mr. Nikhil
                               Singh, Advs.
                                      Versus
       JASOD SINGH                                             ..... Respondent

                           Through:      None.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the judgment dated 4 th July, 2012 of

the learned Single Judge of dismissal of W.P.(C) No.6621/2005 preferred by

the appellant employer. The said writ petition was preferred impugning the

award dated 20th May, 2004 of the Industrial Adjudicator on the following

industrial dispute raised by the respondent workman:-

"Whether the transfer of Sh. Jasod Singh from Delhi office to Jaipur is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

and holding the transfer to be not justified and illegal and directing the

appellant employer to treat the respondent workman as employee at Delhi

from the date of transfer and to grant him all consequential benefits.

2. The appeal is accompanied with an application for condonation of 83

days delay in re-filing thereof. We have however without entering into the

technicalities, heard the counsel for the appellant employer on the merits of

the appeal.

3. The Industrial Adjudicator, on the basis of the evidence led before

him, has found/observed/ held:-

(a). that the respondent workman was a resident of Delhi and was

employed by the appellant employer at Delhi as a

chaprasi/peon;

(b). that he was transferred from Delhi to Jaipur "due to

administrative exigencies";

(c). that the respondent workman had represented against the said

transfer pleading his inability to shift to Jaipur;

(d). that no letter of appointment had been issued to the respondent

workman and at the time of appointment no service conditions

were informed to the respondent workman;

(e). that the respondent workman is not a skilled workman;

(f). that the Standing Orders of the appellant employer had been

certified at Rajasthan, after the appointment of the respondent

workman;

(g). that the said Standing Orders were never brought to the

knowledge of the respondent workman;

(h). that though the respondent workman had been transferred "due

to administrative exigencies" but the appellant employer had

after transferring the respondent workman appointed a new

person as chaprasi/peon at Delhi;

(i). that the time for the respondent workman to join at Jaipur had

been extended from time to time;

(j). that there was no administrative exigency to transfer a

chaprasi/peon from Delhi to Jaipur;

(k). that there was no reason for the transfer except annoyance of

the appellant employer with the respondent workman;

(l). there cannot be any legal or valid purpose and administrative

exigency to transfer the respondent workman engaged as

chaprasi/peon to Jaipur and to take a new entrant in his place.

4. The learned Single Judge has dismissed the writ petition challenging

the aforesaid award, holding:-

(i). that in the absence of an appointment letter there was no

express agreement whereunder the appellant employer had a

right to transfer the respondent workman from one office to

another;

(ii). that the Standing Orders did not come to the rescue of the

appellant employer in this regard since the same were certified

four years after the appointment of the respondent workman;

(iii). that the decision of the Industrial Adjudicator that the Standing

Orders did not apply to the respondent workman since the same

were not made known to him cannot be said to be perverse,

justifying any interference by this Court in writ jurisdiction;

(iv). that right to transfer an employee is not implicit in every

contract of service. Reliance in this regard was placed on

Kundan Sugar Mills Vs. Ziyauddin AIR 1960 SC 650 and

Priscy D'Souza Vs. Indamer Company (Pvt.) Ltd. 2003 LLR

5. The counsel for the appellant employer has contended that the

reasoning given by the learned Single Judge of the Standing Orders being

not applicable to employees who had joined the employment prior to the

certification thereof causes serious prejudice to the appellant employer,

especially qua other employees who may also so claim to be not bound by

the Standing Orders. He has referred to Agra Electric Supply Co. Ltd. Vs.

Sri Alladdin (1969) 2 SCC 538 and Bharat Petroleum Corporation Ltd. Vs.

Maharashtra General Kamgar Union (1999) 1 SCC 626 in this regard. It is

further contended that since the learned Single Judge has confined his

judgment to the said aspect only, after setting aside the said finding the

matter be remanded to the learned Single Judge for decision on the other

challenges to the award of the Industrial Adjudicator made in the writ

petition.

6. We are unable to agree. Even if there were to be merit in the

contention of the appellant employer as to the applicability of Standing

Orders to employees already in employment since prior to the certification

thereof, we in the facts of the present case find no merit in the challenge on

other grounds to the award of the Industrial Adjudicator. Though the counsel

for the appellant employer has contended that since the learned Single Judge

has not rendered findings on other aspects, the appellant employer be not

deprived of a decision thereon by the learned Single Judge, but it cannot be

lost sight of that the industrial dispute is already nearly 13 years old. The

challenge to the award remained pending before the learned Single Judge for

nearly seven years. We cannot keep the respondent workman of the level of

a chaprasi/peon so embroiled in litigation any further, merely for the sake of

technicalities. Moreover, a reading of the judgment of the learned Single

Judge does not show any other arguments than which have been dealt with,

to have been raised during the course of hearing. Had any other argument

been raised and had not been dealt with by the learned Single Judge, the

remedy of review/approaching the learned Single Judge would have been

availed. Merely because a different counsel is engaged in this appeal, does

not give any right to a litigant to a re-hearing. In this context, the reason

given for seeking condonation of delay in re-filing, of engagement of a new

counsel, also acquires significance. Though the new counsel had been

engaged and had filed the appeal but did not feel the need to approach the

learned Single Judge. The necessary inference has to be that no other

argument than on which findings have been returned by the learned Single

Judge were raised. The appellant employer cannot, to harass a workman,

invoke the technicalities of law to keep the litigation pending. Further, other

arguments challenging the award have been raised before us and in which

also as hereinafter mentioned we do not find any merit.

7. The Industrial Adjudicator has in the award spelled out cogent reasons

for holding the order of transfer to be unjustified and illegal. The said

reasons are based on evidence led before the Industrial Adjudicator. In fact,

most of the said reasons are based on admissions in the cross examination of

the witness of the appellant employer. The scope of interference in exercise

of jurisdiction under Article 226 of the Constitution of India, in such factual

findings of the Industrial Adjudicator is limited. Reference, if any required

in this regard, can be made to the recent dicta in Devinder Singh Vs.

Municipal Council, Sanaur (2011) 6 SCC 584. The counsel for the

appellant employer has in fact been unable to even argue that the reasoning

of the Industrial Adjudicator, of the order of transfer being not owing to any

administrative exigency and being mala fide is perverse. In the face of such

findings, there is no error in the award holding the transfer to be bad and

illegal.

8. The counsel for the appellant employer has then contended that there

was no plea even of the respondent workman of mala fide. We find the said

argument also to be factually incorrect. A perusal of the Statement of Claim

shows it to be the plea of the respondent workman that the order of transfer

was motivated, to punish the respondent workman for the dispute raised by

another workman introduced by the respondent workman herein. It was

further the plea of the respondent workman that the appellant employer had

earlier harassed him by deducting Rs.500/- per month from his wages and by

stopping the revision of his wages, blaming him for the monetary loss

caused by such other workman and ultimately by transferring him, all to

compel him to leave the employment of the appellant employer. It was

expressly pleaded that the action of the appellant employer was in colourable

exercise of power. Mala fide, is definitely a ground for interference with a

transfer order. Reference in this regard can be made to Rajendra Singh Vs.

State of U.P. (2009) 15 SCC 178, Somesh Tiwari Vs. Union of India

(2009) 2 SCC 592 and State of U.P. Vs. Gobardhan Lal (2004) 11 SCC

402.

9. We are entirely in agreement with the reasoning of the Industrial

Adjudicator of there being possibly no administrative exigency in

transferring a chaprasi/peon level employee from Delhi to Jaipur, especially

when the need for a chaprasi/peon at Delhi continued, as is evident from

engagement/employment of another chaprasi/peon at Delhi. The counsel for

the appellant inspite of our coaxing has been unable to tell as what was the

need for the services of the respondent workman at Jaipur.

10. It has been held in B. Varadha Rao Vs. State of Karnataka (1986) 4

SCC 131 that the principle, that continued posting at one station is not

conducive to good administration, is not applicable to Class III and Class IV

employees who stand on a different footing. Similarly, in State of Madhya

Pradesh Vs. Shankar Lal AIR 1980 SC 643 it was observed that in case of

employees getting small emoluments, the power of transfer is to be sparingly

exercised, only under some compelling exigencies and not as a matter of

course. It was further observed that to such employees, transfer will cause

tremendous problems and difficulties.

11. However to allay the fears expressed by the counsel for the appellant

employer that the impugned judgment on the aspect of applicability of

Standing Orders may come in the way of disputes if any of the appellant

employer with other employees, we clarify that we have not gone into that

question and leave the same open for adjudication, if arises in any future

dispute.

12. We therefore do not find any merit in this appeal and dismiss the

same. The appeal having been dismissed in limine on the very first date, no

order as to costs.

                                             RAJIV SAHAI ENDLAW, J


                                                        CHIEF JUSTICE


DECEMBER 11, 2012
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