Rajni Manchanda vs P.O. Labour Court ???I And Anr.
2013 Latest Caselaw 3925 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 6187/1999
                                              Decided on 4th September, 2013

       RAJNI MANCHANDA                                  ..... Petitioner
                   Through             : Mr. M.R. Chawla, Adv.

                          versus

       P.O. LABOUR COURT -I AND ANR.             ..... Respondents
                     Through  : Mr. H.L. Raina, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. Facts as unfolded are that the petitioner was working with respondent

no. 2 as Senior Tour Executive since 1st December, 1963. She was drawing

wages of `1550/- (Rupees One Thousand Five Hundred Fifty Only) at the

time of her termination. Respondent no. 2 alleged that she objected to

certain irregularities in the office at which she was asked to resign and when

she refused, she was transferred to Bangalore by way of punishment. On

refusal to accept the transfer she was dismissed from the service on 6th May,

1985 after holding a sham and fictitious enquiry report submitted by the

Enquiry Officer. Petitioner alleged that the principles of natural justice were

violated during the enquiry, inasmuch as her transfer was punitive in nature.

Petitioner claimed reinstatement with all consequential benefits.

2. Secretary (Labour) referred the disputes to Labour Court-I, Tis Hazari

Courts, Delhi for adjudication in the following terms:-

"Whether the termination of services of Smt. Rajni Manchanda is illegal and/or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. Petitioner filed a statement of claim alleging therein the facts as

narrated in para 1 hereinabove.

4. Respondent no. 2 contested the claim and filed written statement

alleging therein that petitioner was transferred to Bangalore in view of

administrative exigencies, since the management urgently required a Senior

Tour Executive at Bangalore office to handle the influx of incoming tours

due to high season. Transfer was made for bonafide trade reasons and under

the terms of contract of the employment and was not punitive. Petitioner

was liable to be transferred anywhere in the country, as such she could not

have refused to join at Bangalore after having been transferred there. It was

denied that petitioner was asked to resign. It was also alleged that on failure

of petitioner joining at Bangalore on transfer, an enquiry was held wherein

petitioner participated. Enquiry was held in accordance with law and all the

principles of natural justice were followed during the enquiry. Since

petitioner refused to join at Bangalore she committed an act of gross

misconduct by disobeying the lawful orders of her superiors. Enquiry

Officer found the petitioner guilty of charges. On the basis of report

submitted by the Enquiry Officer services of petitioner were terminated.

5. Petitioner filed rejoinder whereby she denied allegations levelled in

the written statement and reiterated the averments made in the statement of

claim.

6. On the pleadings of parties following issues were framed on 12 th

August, 1988 by the Industrial Adjudicator.

"i). Whether the domestic enquiry held by the management is illegal and improper?

ii). What is the effect of non-signing of the claim statement by the workman?

iii). As in terms of reference."

7. Parties were afforded opportunities to lead evidence. Upon scrutiny

of evidence led by the parties, Industrial Adjudicator has held that in terms

of the letter of appointment petitioner could have been transferred anywhere

in the country or abroad. Therefore, she could have been transferred to

Bangalore. She was asked to report at Bangalore by the 20th December,

1984. When she failed to join duties at Bangalore, an enquiry was held in a

fair and proper manner, inasmuch as principles of natural justice were

followed. She participated in the enquiry. Dismissal order was passed on

the basis of reasoned enquiry report. Respondent no. 2 needed a Senior

Executive at Bangalore office, thus, was transferred there due to exigencies

of administration. Assistant Manager, Bangalore, had requested for

deputing an executive to handle ticketing, travel and other general duties

since it was difficult for him to handle the groups coming to Bangalore in

absence of a Senior Executive having experience in this field. Petitioner

was having requisite experience, thus, was transferred there due to this

exigency. Refusal of petitioner to join duties at Bangalore amounted to

misconduct. For arriving at a conclusion that enquiry was held in a fair and

proper manner, enquiry report Ex. MW1/1 was relied upon by the Industrial

Adjudicator. It has been further noted that petitioner had not challenged the

enquiry proceedings recorded in the domestic enquiry. Only case of the

petitioner, in her deposition was that action taken by the management was

for malafide reasons and was punitive in nature. On the basis of evidence

adduced before him, the Industrial Adjudicator also arrived at a finding that

post which the petitioner was occupying, was transferable in view of Clause

(iv) of the contract of service Ex. M-1. It was contended before the

Industrial Adjudicator that enquiry was a farce and respondent no. 2 had pre-

decided to dismiss the petitioner, which was reflected from the fact that she

was suspended on 20th December, 1984 even that the date of joining was

also 20th December, 1984. Industrial Adjudicator has negated this

contention.

8. There is no gainsaying that powers of High Court of judicial review

under Article 226 of the Constitution of India against the Award are limited

in the sense that a different view cannot be taken on re-appreciation of

evidence than what has been taken by the Industrial Adjudicator. In New

India Flour Mills and another vs. Sixth Industrial Tribunal, West Bengal and

others 1963 1 LLJ 745, a Single Judge of Calcutta High Court has observed

thus, "It is difficult for me, sitting in constitutional writ jurisdiction, to

interfere with a finding of fact, even though the finding may have been

arrived at on a wrong evaluation of evidence." The High Court can interfere

only if it is shown that the Award suffers from manifest error of law or

jurisdiction or is based on no evidence. In case Award is based on

no evidence, the High Court would step in. In case award is based on some

evidence the High Court will refrain from interfering the same. A Single

Judge of this court in NDMC vs. Secy. (Labour) NCT of Delhi & Ors. 2008

(4) AD (Delhi) 382 held thus:-

"Therefore, the findings of the Industrial Adjudicator are based on appreciation of evidence produced by the parties before it. The High Court in the exercise of jurisdiction under Article 226 of the Constitution of India interferes with the order of the inferior Tribunal in a writ of certiorari, only if the order assailed suffers from an error of jurisdiction or from breach of principles of natural justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling this court to reappraise evidence as in an appeal and draw conclusions on questions of fact while exercising writ jurisdiction. The findings of fact recorded by which Authority duly constituted for the purpose and, which ordinarily should be considered to have become final, cannot be disturbed, so long as they are based upon some material relevant for the purpose. The High Court ought not to re-adjudicate upon questions of acts decided by the Industrial Adjudicator unless the circumstances indicate that the Tribunal has snatched jurisdiction, not vested in it".

9. Learned counsel has vehemently contended that at the time of joining

by the petitioner Bangalore office was not in existence even though there

was a clause regarding transfer in the contract of service. This clause was

not applicable to the petitioner since Bangalore office was not in existence

and was opened later. It is further contended that transfer of the petitioner

was punitive and was not sustainable. Transfer cannot be made by way of

punishment and if it is with the intent to victimize the workman, same would

be illegal. It is further contended that respondent no. 2 was determined to

dismiss the petitioner since she had objected to the style and functioning of

Manager namely, Ms. Manjula Berry who even issued memos to petitioner.

Accordingly, petitioner was transferred to Bangalore. Thus, her transfer was

punitive. Reliance has been placed on National Radio Corporation vs. Their

Workmen 1963 1LLJ 282, Kundan Sugar Mills vs. Ziya Uddin and Others

1960 1 LLJ 266 and New India Flour Mills (supra). I do not find any force

in the above contentions of the learned counsel. Judgments relied upon by

the learned counsel are in the context of different facts. It is not the case that

petitioner was transferred to some other establishment, acquired by the

respondent no. 2 subsequent to her joining. It is also not the case that

respondent no. 2 was having its office only at Delhi at the time of

petitioner's joining the respondent no.2. It is also not a case that petitioner

was transferred to some other establishment. Terms of contract of service

envisaged transfer anywhere in the country under Clause (iv), which was

duly accepted by the petitioner. Thus, it cannot be said that respondent no. 2

could not have transferred to the other branches of respondent no.2. As

regards contention of learned counsel for the petitioner that enquiry was

only a farce, also cannot be accepted. Admittedly, petitioner did not join the

duties at Bangalore on 20th December, 1984, inasmuch as had been resisting

to go to Bangalore and had sent communications to this effect. It is not the

case that petitioner was suspended prior to the last date of joining. If that is

so, then it cannot be said that suspension of the petitioner on the last date of

her joining at Bangalore indicated that respondent no. 2 was determined to

dismiss the petitioner. If it was so, the petitioner could have been dismissed

on 20th December, 1984 itself. Facts narrated hereinabove indicate that

respondent no. 2 had acted in a fair manner and conducted the departmental

enquiry wherein petitioner participated, inasmuch as petitioner had failed to

show before the Industrial Adjudicator that there was any violation of

principles of natural justice. During the proceedings before the Industrial

Adjudicator main contention of the petitioner was that her transfer was by

way of victimization and punitive, thus, was not sustainable.

10. In Kundan Sugar Mills (supra), the petitioner had purchased a new

sugar factory at some other place and transferred the workmen to the said

factory and in these facts it was held thus "in the absence of any evidence to

show that at the time when the concerned workmen were employed, the

employer had the intention to purchase sugar factories at other places or to

extend their activities in the same line at different places or that the

concerned workmen were aware of such intention, it would not be right to

contemplate any implied term. In the circumstances, to impose such a term

conferring a right on the employer to transfer the concerned workmen to a

different concern would be really making a new contract between them." In

National Radio Corporation (supra), it was held that workmen were

transferred on account of hostility of the management towards them and the

union of which they were members, thus, was not bonafide. In New India

Flour Mills (supra) also it was held that transfer must not be made by way of

punishment, that is to say, there must not be a colourable exercise of the

power of transfer of a workman so as to victimize him.

11. In this case, Industrial Adjudicator has considered the matter in detail

and upon scrutiny of the evidence threadbare has returned a categorical

finding that enquiry was held in a fair and proper manner; there was nothing

to suggest that enquiry was farce, inasmuch as transfer was in terms of

contract of service. Petitioner could have been transferred anywhere in the

country, inasmuch as she was transferred due to administrative exegencies

since an experienced hand was required to deal with the tourists influx at

Bangalore during the high trade season and Bangalore office had made a

request to provide an experienced hand at Bangalore. I do not find the

findings returned by the Industrial Adjudicator to be based on no evidence

inasmuch as same do not suffer from any manifest error of law or

jurisdiction.

12. For the foregoing reasons, writ petition is dismissed.

A.K. PATHAK, J SEPTEMBER 04, 2013 rb