Kanhaya Lal vs The Management Of M/S Swantantra ...
2016 Latest Caselaw 2209 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                        Judgment delivered on: March 21, 2016


%        W.P.(C) No. 5325/2004

          KANHAYA LAL                                         ..... Petitioner
                              Through:     Mr. Sanjoy Ghose, Advocate with Ms.
                                           Pratishtha Vij, Advocate.


                              versus

          THE MANAGEMENT OF M/S SWANTANTRA BHARAT MILL
                                                ....Respondent
                     Through: Mr. Harvinder Singh, Advocate with
                               Ms. Laxmi Kumari, Advocate.


          CORAM:
          HON'BLE MR. JUSTICE I.S. MEHTA

                                    JUDGMENT

I. S. MEHTA, J.

1. Instant is a Writ Petition under Article 226 and Article 227 of

the Constitution of India, espoused by the Kapra Mazdoor Lal Jhanda

Union for setting aside the impugned Award dated 06.11.2003 passed

by the Presiding Officer, Industrial Tribunal-I, Delhi (hereinafter

referred to as the „learned Labour Court/Industrial Adjudicator‟) in

I.D. No. 167/1994.

2. The brief facts stated are that the petitioner-workman, i.e., Shri

Kanhaya Lal, and two other employees, i.e., Shri Ram Sumer and Shri

Babu Lal, were in the employment of the respondent-management on

monthly wages of Rs. 1500/- per month. The petitioner-workman was

deputed on winding machine and was working on the said section of

the respondent-management for the last 19 years. As per the certified

standing orders of the respondent-management, there are four

categories of workmen, namely, permanent workman, temporary

workman, badli workman and probationer. The petitioner-workman

along with two other employees, i.e., Shri Ram Sumer and Shri Babu

Lal, were working on the permanent post. However, the respondent-

management who was indulging in unfair labour practice had shown

them in the category of badli workers so that at any point of time they

could be disengaged/assigned any further work by the respondent-

workman.

3. Earlier there were 6000 employees working with the

respondent-management. However, around 1200 employees were left

out, and the rest of the employees were permanently retired by the

respondent-management after giving ex-gratia compensation only.

The respondent-management who was indulging in unfair labour

practice got transferred the petitioner-workman from winding

department to the doubling-winding department without prior notice as

required under Section 9A of Industrial Disputes Act, 1947 ignoring

the different nature of work at the transferee post, i.e., doubling-

winding department. The respondent-management further did not care

to look into the records of the petitioner-workman who was not having

the skill to work at the said department and the respondent-

management did not provide any training to the petitioner-workman.

The petitioner-workman intended to bring it to the notice of the

respondent-management regarding requirement of skill/training but the

respondent-management did not gave heed to this fact.

4. Consequently, the petitioner-workman brought this fact to the

notice of the executive committee of the Kapra Mazdoor Lal Jhanda

Union to which the petitioner-workman is a member for conciliation.

The executive committee raised a demand from the respondent-

management to cancel the transfer so made, but the respondent-

management did not agree, as a result the executive committee

espoused the cause of the petitioner-workman, being member of the

union, and raised an Industrial Dispute under Section 10 of the

Industrial Disputes Act, 1947. The petitioner-workman is unemployed

till date and the transfer order dated 02.11.1992 is an attempt to

victimise the petitioner-workman by adopting unfair labour practice

and change of service condition, which is illegal and unjustified and is

liable to be set aside. The petitioner-workman be reinstated to the

winding section along with full wages from the date of the transfer

order.

5. The respondent-management filed its reply and stated that the

petitioner-workman was in the employment of the respondent-

management w.e.f. 05.03.1976 as substitute worker, i.e., badliwala

worker, and not as a permanent workman. Therefore, he has no right

to ask for a permanent work to be assigned to him with the

respondent-management. The respondent-management had

restructured the activities of the remaining workers and their services

to be utilized in best manner as per exigencies and requirements of

business of the Mill. Therefore, to avoid hardships, the workers were

directed to perform alternative work in doubling-winding section

where they have to work over the similar types of machines, without

effecting wages and other condition of services. However, it is the

petitioner-workman who has refused to perform at the assigned place

illegally and unjustifiably and the cause of the petitioner-workman has

not been espoused by the executive committee, i.e., Kapra Mazdoor

Lal Jhanda Union.

6. The petitioner-workman filed its replication wherein the

petitioner-workman denied the allegation alleged in the reply by the

respondent-management and reaffirmed the averments made in the

statement of claim. After completing the pleadings, issues were

framed and both the parties led their evidences on the respective issues

and thereafter the learned Industrial Adjudicator passed the impugned

Award dated 06.11.2003.

7. The learned counsel for the petitioner-workman has submitted

that the petitioner-workman was engaged with the respondent-

management for more than 19 years on the date when the industrial

dispute was raised by the Kapra Mazdoor Lal Jhanda Union, i.e.,

06.05.1994.

8. The learned counsel for the petitioner-workman has further

submitted that the Mill, i.e., Swantantra Bharat Mill, in which the

petitioner-workman was engaged, there were four types of workmen,

i.e., permanent workman, temporary workman, badli workman and

probationer, with the respondent-management who was indulging in

unfair labour practice and had thrown out the petitioner-workman out

of the Mill without any reasonable cause and did not pay ex-gratia

compensation in favour of the petitioner-workman.

9. The learned counsel for the petitioner-workman has further

submitted that on 02.11.1992, the respondent-management issued a

transfer order to the petitioner-workman who was employed

permanently in the winding section to the doubling-winding section

without giving prior training to the petitioner-workman for such

machine, i.e., doubling-winding machines, and a notice under Section

9A of the Industrial Disputes Act, 1947.

10. The learned counsel for the petitioner-workman has further

submitted that junior employees, i.e., Shri Kashi Nath, Shri Sukh Ram,

Shri Jai Nath, Shri Kapil Dev, etc. were retained by the respondent-

management in the winding section and they are still working in the

same section, whereas the petitioner-workman was picked up by the

respondent-management by adopting unfair labour practice and

victimised him by transferring him to the doubling-winding section

where he was inefficient to work for want of requisite training/skill.

Therefore, the transfer order dated 02.11.1992 be stayed and the

impugned Award dated 06.11.2003 be set aside. The learned counsel

for the petitioner-workman has placed reliance on the following

judgments, i.e, Sudarshan Rajpoot vs. U.P. State Road Transport

Corporation, (2015) 2 SCC 317, GSRTC vs. Workmen of S T

Corporation, (1999) (2) LLJ 1363 Guj, Lokmat Newspapers Pvt. Ltd.

vs. Shankar Prasad, AIR 1999 SC 2423 and State of U.P. vs. Charan

Singh, (2015) 8 SCC 150.

11. On the other hand, the learned counsel for the respondent-

management has submitted that in both the sections of the Mill, i.e.,

winding section and doubling-winding section, they were having

similar machines, had the petitioner-workman joined the place of

transfer he would have come to know that the machines were the

same. It is further pointed out, that, moreover, the petitioner-workman

was a substitute worker and has no right to claim to work on a

particular machine by virtue of his job condition. He could be assigned

duty on any post on any section depending upon the availability of

work and other administrative considerations. Therefore, there was no

requirement of issuing any notice under Section 9A of the Industrial

Disputes Act, 1947. The learned counsel for the respondent-

management has placed reliance upon the following judgments, i.e.,

Syeed Yakoob vs. K. S. Radhakrishanan and Others, AIR 1964 SC

477, Bombay Union of Journalist and Others vs. The "Hindu",

Bombay and Another, 1960 I LLJ 110, State of Punjab vs. The

Gandhara Transport Company (P) Ltd. and Others, (1975) 4 SCC

838, Shri Kripa Printing Press vs. Labour Court and Another, AIR

1960 AP 489, Regional Manager, State Bank of India vs. Raja Ram,

(2004) 8 SCC 164, Tirloki Nath (Shri) vs. Shri Dharam Paul Arora

& Anr, 2006 LLR 1043 and Rajendra Roy vs. Union of India and

Another, (1993) 1 SCC 148.

12. The reference sent to the learned Industrial Adjudicator, vide

notification No. F.24(77)/94-Lab./20897-902 dated 06.05.1994, is as

under:-

"Whether the transfer of S/Shri Ram Sumer, Kanhaya Lal and Babu Lal from winding section to doubling

section is illegal and/or unjustified and if so, what directions are necessary in this respect?"

13. The transfer of an employee ordinarily means a change of place

of employment within an organization which is arising out of

administrative exigencies to meet the administrative reasons through

bonafide action on behalf of the management/employer/organization.

Generally, the transfer so made of an employee by the

management/employer/organization should not be interfered with

unless the transferee/employee is subjected to victimisation in the

hands of the management/employer/organization.

14. Instant is a case where the petitioner-workman has claimed that

he was transferred on 02.11.1992 from winding section to the

doubling-winding section of the respondent-management, i.e.,

Swantantra Bharat Mill, without any reasonable cause and the transfer

so made by the respondent-management is nothing but victimisation to

attain the goal of retrenchment of the petitioner-workman.

15. The contentions of the learned counsel for the petitioner-

workman that the respondent-management was indulging in unfair

labour practice by not making substitute worker to be a permanent

worker even after working with the respondent-management for 19

years, which amounts to unfair labour practice, does not seem to be

convincing as the dispute between the parties was ""Whether the

transfer of S/Shri Ram Sumer, Kanhaya Lal and Babu Lal from

winding section to doubling section is illegal and/or unjustified and if

so, what directions are necessary in this respect?" and it was not a

matter incidental to the terms of reference.

16. The petitioner-workman during the cross examination has

admitted that he was given the printed attendance card of badliwala

and it is further admitted that the petitioner-workman neither made any

complaint in writing nor raised any dispute regarding removal of

designation as badliwala. Further, he did not raise any dispute with the

respondent-management to make him permanent and also admitted

that he was never refused duties and was given employment on all

days as attended. It is further admitted that he had no knowledge that if

there was any terms of service in writing that he would be given duty

in only one particular department.

17. What was the dispute hinging around before the learned

Industrial Adjudicator was whether the transfer so made qua against

the petitioner-workman was the result of malafide action taken against

the petitioner-workman to victimise him to achieve the retrenchment

goal of the respondent-management.

18. The aforesaid admission on part of the petitioner-workman

leaves no doubt that the transfer so made by the respondent-

management dated 02.11.1992 is not malafide.

The facts on record indicate that the respondent-management

has never refused to give duty at any point of time during the course of

employment to the petitioner-workman till the date of the alleged

transfer.

19. The contention of the learned counsel for the petitioner-

workman that the respondent-management changed the service

condition of the petitioner-workman and subsequently issued the

transfer order dated 02.11.1992 without giving notice under Section

9A of the Industrial Disputes Act, 1947, which is mandatory, and non

compliance of the mandatory requirement makes the transfer order

ineffective, too, does not seem to be correct as the petitioner-workman

never joined the transferee place, i.e., the doubling-winding section,

rather he refused to comply with the transfer order dated 02.11.1992.

20. The petitioner-workman has admitted that his attendance was

recorded at the work place and he was given the printed attendance

card in which he was shown to be a substitute worker, i.e., badliwala.

Further, he has also admitted that he has not raised any dispute with

the respondent-management to make him permanent and further he

has also admitted that he was never refused duty and has been given

employment on all the days when he attended and further it is a fact on

record that he has not joined the transferee place, i.e., the doubling-

winding section, which does not show that the respondent-

management changed the services condition of the petitioner-

workman. The said admissions are reproduced as under:

"...It is also correct that it was printed on such attendance card that the workman is "badliwala"...

...I was never refused duty and had been given employment on all days when I attended. It is correct that my attendance was marked in my attendance card. (Vold.) My attendance was also marked in attendance register...

...I have no knowledge if there were any terms of service in writing that I would be given work only in one particular deptt...

...I never went and/worked in doubling deptt. I cannot tell as to how many machines were there in that deptt. As I never visited that deptt..."

21. The aforesaid admissions of the petitioner-workman leads

towards the fact that there is no individual victimisation qua against

the petitioner-workman and the reference sent to the learnedIndustrial

Adjudicator was pertaining to the transfer of the three employees, i.e.,

Shri Kanhaya Lal, Shri Ram Sumer and Shri Babu Lal, out of which

two employees, i.e., Shri Ram Sumer and Shri Babu Lal, have already

settled the matter with the respondent-management. So far as the case

of the petitioner-workman is concerned, it is related to his transfer and

not of his claims other than transfer is a matter in dispute. The claim of

the petitioner-workman that the respondent-management was

indulging in unfair labour practice by giving ex-gratia payment to

outgoing employees and the respondent-management intended to

retrench the petitioner-workman through transfer order is factually

incorrect as the plea taken by the petitioner-workman is premature at

this stage qua against the interest of the petitioner-workman. This

allegation is nothing but the false plea taken by the petitioner-

workman.

22. So far as the requirement of issuance of the notice under Section

9A of the Industrial Disputes Act, 1947 is concerned, it has to be seen

whether such notice is required in the present case. Section 9A and

Schedule IV of the Industrial Disputes Act, 1947 is reproduced as

under:

"9A. Notice of change.- No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,--

(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected;

(b) within twenty- one days of giving such notice: Provided that no notice shall be required for effecting any such change--

(a) where the change is effected in pursuance of any 1 settlement or award]; or

(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.

THE FOURTH SCHEDULE (See Section 9-A)

CONDITIONS OF SERVICE FOR CHANGE OF WHICH NOTICE IS TO BE GIVEN

1. Wages, including the period and mode of payment ;

2. Contribution paid, or payable, by the employer to any provident fund or for the benefit of the workmen under any law for the time being in force ;

3. Compensatory and other allowances ;

4. Hours of work and rest intervals;

5. Leave with wages and holidays ;

6. Starting alteration or discontinuance of shift working otherwise than in accordance with standing orders;

7. Classification by grades ;

8. Withdrawal of any customary concession or privilege or change in usage;

9. Introduction of new rules of discipline, or alteration of existing rules except insofar as they are provided in standing orders;

10. Rationalisation, standardization or improvement of plant or technique which is likely to lead to retrenchment of workmen;

Any increase or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department of shift [not occasioned by circumstances over which the employer has no control]"

23. As per Section 9A of the Industrial Disputes Act, 1947, a notice

is only given to workmen/employees in the event of change of the

service condition carried out by the management. But in the instant

case, nothing came out to suggest that there was any change in the

service condition of the petitioner-workman at the time when the

transfer order dated 02.11.1992 was issued to attract Schedule IV of

the Industrial Disputes Act, 1947. Therefore, the notice in the present

case is not required. As such, the judgments relied upon by the

petitioner-workman, i.e., Lokmat Newspapers Pvt. Ltd. vs. Shankar

Prasad (Supra) and State of U.P. vs. Charan Singh (Supra) loses its

significance in the present context.

24. It is an admitted fact on record that petitioner-workman has not

joined duty in the transferee place, i.e., the doubling-winding section.

The petitioner-workman was transferred within the same complex of

the Swantantra Bharat Mill. The petitioner-workman was expected to

join the transferee place, i.e., the doubling-winding section. Without

joining the transferee place and taking false plea of the change of the

service condition ipso facto does not dispel his lawful duty towards the

respondent-management.

25. The petitioner-workman is expected to join the transferee place,

i.e., the doubling-winding section, unless he successfully proves that

the transfer so made qua against him is malafide on the part of the

respondent-management. Transfer is an incident of the service

condition and it is available to be exercised by the employer to act

diligently and bonafidely. Reliance is place upon the judgment of the

Apex Court in the case of State of Rajasthan and Others vs. Anand

Prakash Solanki, AIR 2003 SC 3849.

26. In the instant case, there is nothing emerging from any corner

that the transfer so made by the respondent-management was malafide

or camouflaged to achieve something which is not expected from the

respondent-management. Moreover, the issue in controversy is the

transfer order dated 02.11.1992 issued by the respondent-management

against the petitioner-workman and it is not the issue of unfair labour

practice independently between the parties. The option of selecting the

name of the transferee employee depending on the suitability of the

transferee always rest with the employer. It cannot be presumed that

whosoever is available in a particular section all are suitable to

transferee place and management is under legal obligation to transfer

the same set of employees to the transferee place. Therefore, selecting

the name of the employee to be transferred from one group of

employees to the other group of employees always vest with the

employer unless there exist a specific cause to believe that the action

taken was malafide. Therefore, the judgments relied upon by the

petitioner-workman, i.e., Sudarshan Rajpoot vs. U.P. State Road

Transport Corporation (Supra) and GSRTC vs. Workmen of S T

Corporation (Supra) loses its significance in the present context.

27. The present transfer order is arising from the due course of the

service condition. Therefore, it does not require to be interfered with,

for want of malafide action on part of the respondent-management and

individual victimisation qua against the petitioner-workman. Reliance

is placed upon the judgment of the Apex Court in the case of State

Bank of India vs. Anjan Sanyal and Others, AIR 2001 SC 1748.

28. As discussed above, no merit is emerging from the present Writ

Petition. Consequently, the same is dismissed. The Lower Court

record be sent back with a copy of this Judgment. No order as to costs.

I.S.MEHTA, J

MARCH 21, 2016 „dc‟