M/S. Economic Transport ... vs Dharmendra Mishra And Ors.
2014 Latest Caselaw 2301 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Judgment Reserved on March 18, 2014
                                    Judgment Delivered on May 07, 2014
+                             W.P.(C) 6353/1999
M/S. ECONOMIC TRANSPORT ORGANIZATION                         ..... Petitioner

                     Represented by:    Mr. Jitesh Pandey, Advocate

                     versus

DHARMENDRA MISHRA AND ORS.                                ..... Respondents

                     Represented by:    Ms. Monica Kapoor, Advocate

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.

1. The challenge in this writ petition is to the award dated July 08, 1999 passed by the Labour Court in I.D. No. 796/94 wherein, the Labour Court had answered the reference in favour of the respondent No. 1 herein, by holding that he has not abandoned the job, but, it is a case where the petitioner had refused him duties in Delhi and whereby, the petitioner was directed to provide him duties in Delhi with full back wages and continuity of service.

2. The award was passed pursuant to a reference made by the appropriate Government on the following terms:

"Whether Sh. Dharmendra Mishra has abandoned his job or refusal of duties by the management at Delhi office amount to illegal and unjustified termination of his services and if so, to what relief including consequential benefits is he entitled and what directions are necessary in this

respect".

3. It was the case of the respondent No. 1 that he detected a fraud to the tune of Rs. 68 lakhs and reported to the police on the basis of which, an FIR was registered. It was his case that he has been continuously working with the petitioner since 1969. He was transferred to Bangalore in 1987. The Bangalore office gave a letter of transfer that he should now go and report to Delhi office. He was prohibited from coming to office in Bangalore. He came to Delhi with that letter, but the Delhi office deliberately told him to come on the next day. Even on the next day, he was not allowed to join. This process continued despite the respondent No. 1 was ready and willing to do his work. It was his case that when he was posted in Bangalore, the petitioner had sent undesirable employees of the company to harass him. He was physically attacked and told immediately to leave the place. He reported the incident to the police. It was only with the intervention of police, he was allowed to put in attendance. His prayer in the claim petition was, he should be taken on duty in Delhi with full back wages and consequential benefits.

4. The petitioner contested the claim petition by filing a reply wherein, it was its stand that the respondent No. 1, at the relevant point of time, was working as an Inspector and was discharging duties in a supervisory capacity and the Labour Court lacked the jurisdiction to try the reference. It was its case that the respondent No. 1 himself left/abandoned the job and did not report for duty, and thus, he is not entitled for reinstatement, as claimed by him. The petitioner admits that the respondent was transferred in December, 1987 to Bangalore office, which he joined in the month of August, 1988. According to the

petitioner, the respondent No. 1, while working with the petitioner at Delhi had seen some irregularities in accounts, whereby an FIR was registered at the police station Paharganj and the respondent No. 1 is the complainant in the said case. According to it, he had come to Delhi in September, 1998 in connection with that FIR and other matters concerning the complaint written by him to the police authorities in Delhi. In other words, it is the case of the petitioner that the respondent No. 1 has never been transferred in Delhi by the petitioner and he was asked to go and join his duties in Bangalore.

5. The Labour Court framed three issues; (1) as per terms of reference, (2) whether Delhi Administration is not the appropriate Government to referred the dispute, and (3) whether the petitioner is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (Act in short).

6. Insofar as the issue No. 2 is concerned, the Labour Court was of the view that the apprehension expressed by the respondent No. 1 in his letter Ex.WW1/41 to which no reply was received nor any assurance was given to the respondent No. 1 that he will be protected if he reports for duty in Bangalore, was justified and in these circumstances, the respondent No. 1 did not go to Bangalore and the dispute thus has arisen in Delhi, so the erstwhile Delhi Administration is the appropriate Government to refer the dispute.

7. On issue No. 3, the Labour Court was of the view that the respondent No. 1 is a workman within the meaning of Section 2(s) of the Act.

8. On the issue concerning the reference, the Labour Court was of view that there were strong and bona fide reasons for the respondent No.

1 not to join the Bangalore office as he was physically beaten. The Labour Court was also of the view that despite writing the letter which is exhibited as Ex.WW1/42 to Mr. P.N.Arya and a copy thereof was sent to Mr.S.N.Arya., the petitioner did not take any action on the letter written by the respondent No.1 nor provided full protection to the respondent No. 1 in Bangalore if work was to be taken from the respondent No. 1 at that place. The Labour Court was of the view that since no evidence was led by the petitioner in rebuttal to the said evidence and no letter was written by the petitioner to the respondent No. 1 to report for duty in Bangalore, it held that it is not a case where the respondent No. 1 has abandoned his services. It was also the finding of the Labour Court that the respondent No. 1 had rightly come to Delhi where he was refused duties.

9. The learned counsel for the petitioner would contend that the reference itself was bad as the cause of action had arisen in Bangalore and not in Delhi. Further, on merits, he would contend that till such time the respondent No. 1 was transferred, no allegation was made by the respondent No. 1 of victimization. In fact, when the respondent No. 1 was transferred to Bangalore in December, 1987, he took almost nine months to join the place of posting inspite of the fact that on his request, the petitioner had agreed to delay the joining till March, 1988 so as to ensure that his son can appear in exams. According to him, immediately thereafter, the respondent No. 1, on the strength of letter dated September 17, 1988 written by the Bangalore office to the ETO, Jhandewalan wherein, it was mentioned that respondent No. 1 is coming to Delhi for the clarification in the matter related to him, came down to Delhi. He would further submit that the stand of the respondent No. 1

that in terms of the said letter dated 17.09.1988, he stood transferred to Delhi, is totally misconceived. In fact, after coming to Delhi, he never went back to Bangalore for joining his duties. Rather, he made false and frivolous claims before the Conciliation Officer in the month of December 1988. According to him, it is a case where the respondent No. 1 was not interested in joining the duties in Bangalore. During the conciliation proceedings, the respondent No. 1 was called upon to join the duties in Bangalore. In other words, the petitioner has never refused to take the respondent No. 1 on its roll in Bangalore. He would challenge the conclusion of the Labour Court which has held that because of the fact that the respondent No. 1 had been physically intimidated, he rightly not joined the office in Bangalore. He states that at no point of time, while the respondent No.1 was in Bangalore, such allegations have been made. He would state that the petitioner has denied the averments made by the respondent No. 1 in that regard. According to him, it is a case of abandonment of service inasmuch as the respondent No. 1 having been posted in Bangalore, was required to be in Bangalore and at no other place. Moreso when, he had come to Delhi and refused to go back to Bangalore. He would rely upon the following judgments in support of his contention:

(i) Lohia Starlinger Limited and Anr. Vs. Govt. of NCT of Delhi and Ors., (2006) ILR 1 Delhi 744.

(ii) Tej Pal Vs. Gopal Narain & Sons and Anr., 2007 LLR 342 Delhi

(iii) Diamond Toys Co.(P) Ltd. Vs. Toofani Ram and Anr., MANU/DE/7157/2007

(iv) Sonal Garments Vs. Trimbak Shankar Karve, 2002 (6)

BomCR 529, [2003 (96) FLR 498]

10. On the other hand, Ms. Monica Kapoor, learned counsel appearing for the respondent No. 1 would support the award of the Labour Court. She would submit that the communication dated September 17, 1988 was issued transferring the respondent No. 1 to Delhi. The said communication was issued by the office in Bangalore. Unfortunately, despite request of the respondent No. 1 to allow him to join the duties at Delhi, the petitioner did not permit the same. With the result, the respondent No. 1 remained without wages. She would state that the respondent No. 1 could not have joined back the office of the petitioner in Bangalore because the respondent No. 1 was ill-treated and physically beaten. She would state that the Labour Court has rightly held that in the absence of any response to the letter written by respondent No. 1 requesting for physical protection, the respondent No. 1 justified in not joining the office in Bangalore. She would also seek the implementation of the award as given by the Labour Court.

11. Having considered the pleas advanced by the learned counsel appearing for the parties, at the outset, on the issue of jurisdiction of the Labour Court in Delhi, it is true that the respondent No. 1 was neither transferred nor his services were terminated. His last posting was in Bangalore. The letter dated September 17, 1988 on the strength of which respondent No. 1 had come to Delhi, cannot be said to be an order of transfer. The language is very clear. It is addressed to the office of the petitioner at Delhi, informing the office about the coming of the respondent No. 1 to Delhi for certain clarifications in a case related to him.

12. In order to decide the issue of jurisdiction, what is relevant is, the

terms of reference and the reliefs claimed in the petition. The reference in this case is whether the respondent No. 1 had abandoned his duties and refusal to give duties in Delhi would amount to terminating the services of the respondent No. 1. It is a conceded position that while performing duties in Bangalore, the respondent No. 1 came to Delhi and had requested the petitioner for duties in Delhi, which request was refused. Even in the claim petition, the respondent No. 1 has sought a relief in the nature of a direction that he be taken on duty in Delhi with full back wages. Surely, refusal to allow the respondent No. 1 to join duties in Delhi, coupled with the prayer for a direction against the petitioner to give duties to him, would give a cause of action to the respondent No. 1 to raise an Industrial Dispute in Delhi. More-so, his presence in Delhi was authorized. It is not a case where the respondent No. 1 has challenged any action of the petitioner in Bangalore. The allegation that he was victimized in Bangalore, is the basis for seeking relief of grant of duties in Delhi, would not oust the jurisdiction of the Court in Delhi. The judgment of the learned Single Judge of this Court as relied upon by the learned counsel for the petitioner in Lohia Starlinger Limited's case (supra) would not be applicable in the facts of this case inasmuch as in the said case, the employee was appointed and posted in Delhi. The terms of appointment also stipulated that the same is a transferable post. While working in Delhi, she was transferred to Kanpur. She did not join the place of transfer at Kanpur. A charge sheet was issued to the employee and which culminated in the order of dismissal. The employee raised an Industrial Dispute in Delhi before the Conciliation Officer, pursuant thereto, which was referred to the appropriate Government for adjudication and the Industrial Dispute was

registered as I.D. No. 10/02. It was at that stage, the petitioner in the said case had approached this Court. The learned Single Judge of this Court has held that it is the authority at Kanpur, who has jurisdiction to deal with the complaint. Those are not the facts here. There is no transfer order. The presence of the respondent No. 1 being authorised, he sought duties in Delhi. Surely, cause of action, to seek duties has arisen in Delhi. Since the view of the Labour Court is a plausible one, I do not see any reason for this Court to interfere with the said finding at this stage of the proceedings, that too, when the Labour Court decided the issue in favour of the respondent No. 1.

13. I may state, at the outset, that this Court could not refer to the Lower Court record, which as per the report of the learned District and Sessions Judge, Karkardooma Courts, Delhi dated March 14, 2014, was weeded out on December 23, 2011.

14. On merits, the conclusion of the Labour Court was on the basis of Ex.WW1/42 and Ex.WW1/44. These letters have not been placed on record. No letter has been placed on record by the respondent No. 1 to show that he, at any point of time while posted in Bangalore, highlighted the victimization at the hands of the officers of the petitioner-company in Bangalore. The letters exhibited as referred above, on which reliance was placed, appears to have written by the respondent No. 1 after his coming to Delhi on October 04, 1988 and October 18, 1988 as can be seen from page 83 of the paper book. An incident like physical attack needs to be seriously taken by any person. In fact, a reasonable man would, at first instance, file complaint with the police authorities. In the present case, as stated above, there is nothing on record that the respondent No. 1 has highlighted the atrocities, if any against him while

in Bangalore. As also stated above, the respondent No. 1 had only after coming to Delhi, made such allegations. In fact, I note that the respondent No. 1 wrote letter dated August 26, 1988 (Exh.E collectively, at page 43 of the paper book), wherein, he refers to the fact of his joining his duties in the office in Bangalore. He also makes a reference with respect to the grant of his increments. He had also stated that the cost of living in Bangalore is higher than the Delhi. Meaningfully read, he was requesting the authorities to mitigate the high cost of living in Bangalore. In the reply filed by the petitioner, the allegations made by the respondent No. 1 about harassment and physical attack have been denied. Merely because that the petitioner had not responded to the letters written by the respondent No. 1 referred above, would not be a ground for the Labour Court to hold it against the petitioner and direct the petitioner to provide him duties in Delhi. In terms of the directions, the Labour Court has rewritten the service agreement between the petitioner and the respondent No. 1, whereby, he has been posted in Delhi. Such a direction would be contrary to the settled position of law that an employee has no indifisible right to seek a posting at a particular place and as such bad. It is the prerogative of an employer to post an employee in the exigencies of service. In this regard, I refer to the judgment of the Supreme Court in the matter reported as (1995) 2 SCC 532, Chief General Manager, (Telecom) N.E. Telecom Circle. Vs. Rajendra Ch. Bhattacharjee, wherein it was held as under:

"It is needless to emphasis that a government employee or any servant of a Public Undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed that the respondent holds a

transferable post and unless specifically provided in his service conditions, he has no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala, therefore, there was no justification for the Tribunal to set aside the respondent's transfer to Dimapur".

15. Insofar as the judgments relied upon by the learned counsel for the petitioner are concerned, the ratio of Tej Pal's case (supra) would not be applicable in the facts of this case. In Tej Pal's case (supra), a reference was made whether the services of Sh. Tej Pal have been terminated illegally and/or unjustifiably by the management and what relief he is entitled to. It is noted that, the management had asked the workman to join the duties. The workman did not join the duties. It was in those facts, the learned Single Judge of this Court has held that no Industrial Dispute persists when the employer has written to the workman to join the duties but the workman failed to join. In the case in hand, the respondent No. 1 was seeking a direction for being given duties in Delhi. The request made to the respondent No. 1 i.e. workman was to join duties in Bangalore, which the respondent No. 1 was resisting for certain reasons. The ratio of the judgment is not applicable in the facts of this case.

16. In Diamond Toys Co.(P) Ltd.'s case (supra), I find that the ratio in the said case was that the onus to prove that workman's services were terminated illegally by the management is on the workman. Failure to discharge the onus would not entitle the workman of any relief. In the present case, the termination is a non-issue. Dispute was with regard to the grant of duties to the respondent No. 1 in Delhi. It has been the

consistent stand of the petitioner that it has not terminated the services of the respondent No. 1. So, the case of Diamond Toys Co.(P) Ltd. (supra) would not be of any help to the petitioner.

17. Insofar as the judgment in Sonal Garments' case (supra) is concerned, suffice to state that the ratio as laid down in the said case is well settled. Since the respondent No. 1 has declined to join his duties in Bangalore, even if the writ petition is dismissed, the back wages, if at all to be granted, can be restricted.

18. I note that during the pendency of the writ petition, on an application under Section 17-B of the Act, the petitioner had made a submission before this Court for a direction to the respondent No. 1 to report at Bangalore. I find that the respondent No. 1 did report to petitioner still in Bangalore. It was the stand of the respondent No. 1 that on his reporting in Bangalore, he was not assigned any duties. The said stand of the respondent No. 1 was disputed by the petitioner. Be that as it may, I find, during the pendency of the writ petition, the petitioner had shown desire to settle the matter on payment of Rs. 3,57,539/- to the respondent No. 1. The same was not acceptable to the respondent No. 1.

19. Having concluded that the order of the Labour Court directing the petitioner to give duties to the respondent No. 1 in Delhi as bad, the question which would arise is whether, in the facts, the respondent No. 1 has abandoned his services. Abandonment amounts to misconduct, which requires a proper inquiry.[Ref.:

MANU/DE/0541/2005,Shakuntala's Export House (P) Ltd. Vs. Secretary (Labour) & Ors., LPA No. 707/2005, decided on April 15, 2005], which has not been conducted in this case. So, abandonment is not proved. I

note, that the respondent No. 1 was in the employment of the petitioner since 1969. It is only after September, 1988, the differences have cropped up and the parties were in litigation since then. Given the nature of litigation and the allegations made by the respondent No. 1 against the officers of the petitioner, and keeping in view the fact that the petitioner had not terminated the services of the respondent No. 1, and has expressed its willingness to take the respondent No. 1 on rolls on several occasions, but in Bangalore, which the respondent No. 1 was not inclined to join, I am of the view, interest of justice demand, to put quietus to the litigation so as to enable the parties to part of peacefully, an amount of Rs. 5 Lakhs (Rupees Five Lakhs only) be given to the respondent No. 1 in full and final settlement of all his claims related to the service put in by respondent No. 1 since 1969.

20. In view of the aforesaid conclusion, the order of the Labour Court dated July 08, 1999 is set aside.

21. The writ petition is disposed of in terms of the directions in para 19 above.

22. No costs.

(V.KAMESWAR RAO) JUDGE

MAY 07, 2014 akb