Madras High Court
The Management vs The Presiding Officer on 14 June, 2023
W.P.No.27439 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
Writ Petition No.27439 of 2013
The Management
CLS Press, 3-A, Church Road
Chennai-600 007 …. Petitioner
-Vs-
1.The Presiding Officer
First Additional Labour Court
Chennai.
2.G.Kuppuswamy …. Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for
the issuance of a Writ of Certiorari to call for the records in I.D.No.243 of 2000
on the file of the first Additional Labour Court, Chennai the 1st respondent
herein, quash the award passed therein dated 26.03.2013.
For Petitioner : Mr.M.R.Raghavan
For Respondents : Mr.R.Jaikumar
for M/s.T.Fenn Walter & Associates – for R2
R1 - Court
ORDER
The petitioner is the Management. It challenges the order passed in
I.D.No.243 of 2000 dated 26.03.2013. This is a petition filed under Section 2A(2)
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of the Industrial Disputes Act, 1947. The second respondent / workman joined
the services of the writ petitioner on 21.01.1975 as a book binder. In 1997, a
union was formed, which according to the workman was not liked by the
Management. The Management had transferred the second respondent/
workman from Madras to Bangalore. Since the nature of work was simple, the
workman states that it was not necessary to transfer him. According to him, the
transfer order was issued on malafide motive and to victimise the workman. He
would state that it is an unfair labour practice under the Fifth Schedule of the
Industrial Disputes Act. Since the conciliation failed, he was constrained to
initiate proceedings before the first respondent / labour court.
2. Learned counsel appearing for the Management would submit that the
petitioner was transferred on 09.10.1998 from Madras to Bangalore and that too
for a press which belonged to the writ petitioner / Management. Since there
were acts of misconduct under Section 14(a), 14(c) and 15(xi) of the Standing
Orders, a charge sheet was given to the workman on 09.03.1999 calling for his
explanation. As the workman's explanation was not satisfactory, an enquiry was
ordered. The workman participated in the enquiry and the charges stood
proved.
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3. A second show cause notice was issued on 14.06.1999 and as the
explanation given by the workman was not satisfactory, the workman was
dismissed from service on 22.07.1999. The labour Court did not reinstate the
workman in service, but granted a compensation of Rs.5,00,000/- to be paid
within a period of eight weeks. It is on record that out of Rs.5,00,000/-
compensation, a sum of Rs.2,50,000/- has already been deposited in the labour
court, out of which Rs.2,00,000/- has been withdrawn by the workman.
4. The labour Court came to this conclusion on two grounds viz., that the
Standing Order does not have a provision for transfer and since a criminal case
was filed by the Management against the workman, it amounts to victimisation.
5. I have heard Mr.M.R.Raghavan, learned counsel for the writ petitioner /
Management and Mr.Jai Kumar, learned counsel for the workman / second
respondent.
6. I am afraid, I am not able to sustain the award of the Labour Court for
more than one reason.
(a) The labour Court had come to the conclusion that the Standing Orders
does not have a provision for transfer.
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(b) The Standing Orders speak only about unauthorized absence of the
workman and does not speak about any transfer of the workman from
Chennai to elsewhere.
(c) The labour Court would state that a criminal case was filed by the
Management against the workman and that shows that there is
victimization of the workman.
Consequently, the labour Court had ordered payment of compensation of
Rs.5,00,000/- instead of reinstatement in service.
7. It is pertinent to point out here on the aspect of domestic enquiry. The
workman himself had made an endorsement that he is not challenging the
fairness or validity of the domestic enquiry. The only argument was that the
punishment awarded is excessive and disproportionate. The labour court came
to the conclusion that though the enquiry is fair and it had been done in
compliance of the principles of natural justice, it amounts to victimisation. It is
here that I would usefully refer to a judgment cited by Mr.M.R.Raghavan,
learned counsel for the Management (Bharat Iron Works -vs- Bhagubhai
Balubhai Patel and Others) reported in 1976(1) SCC 519, where the
Supreme Court was pleased hold that a proved misconduct is antithesis to
victimisation as understood in industrial relations. No doubt, if victimisation is
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proved the industrial tribunal has jurisdiction to interfere. But, here is a case,
where the alleged act of victimisation is in violation of Standing Orders and the
filing of the criminal complaint.
8. I am unable to accept the argument of the learned counsel for
workman that Standing Orders are statutory in flavour. The Standing Orders will
override any orders of appointment or confirmation only if they are in conflict
with each other. In the present case, it is pertinent to point out Clause 5 of the
order of appointment and Clause 10 of the order of confirmation. For ready
reference, the same are extracted hereunder:
“ Clause 5 of appointment order:
5. You are liable to be transferred from one section or department
to another in this establishment or to any associate or sister concerns or
to any other branches belonging to the same management whether
existing or not as on this day.
Clause 10 of confirmation order:
10. You are liable to be transferred from one section or
department to another in this press or to any associate or sister
concerns or to any other branches belonging to the same management,
whether existing at present or not, provided, however, your emoluments
are not reduced.”
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9. This shows, even at the time of appointment, the workman had
accepted that he would be transferred from one section to another section, one
department to another belonging to the same establishment or to any associate
or sister concerns or any other branch belonging to the same management. In
the claim petition also, the respondent workman had taken a stand that the
workman had only expressed his difficulty, but never refused to go on transfer to
Bangalore. This militates against the case of the workman that he was opposed
to the transfer. On the contrary, a reading of the petition would go to show that
he was willing to go on transfer and did not question the same. For the reasons
best known to him, he had suddenly taken a stand that the Standing Orders did
not confer the right of transfer.
10. As long as the appointment and confirmation order are not contrary to
the Standing Order, the order of transfer made from one place to another is not
bad. I find support for this view in Cipla Limited -Vs- R.Jayakumar and
another (1999) 1 SCC 300, wherein the Supreme Court was pleased to hold
as follows,
“12. In our opinion, the aforesaid construction does not flow from the
provisions of the Standing Orders when read along with the letter of
appointment and, therefore, the conclusion arrived at by the High
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Court was not correct. As has already been noticed the letter of
appointment contains both the terms namely for the respondent being
transferable from Bangalore as well as with regard to the applicability
of the Standing Orders. These clauses, namely, clauses 3 and 11, have
to be read along with the Standing Orders, the relevant portion of
which has been quoted here in above. Reading the three together we
do not find that there is any conflict as has been sought to be
canvassed by the learned Counsel for the respondent. Whereas the
Standing Orders provide for the department wherein a workman may
be asked to work within the establishment itself at Bangalore, Clause 3
of the letter of appointment, on the other hand, gives the right to the
appellant to transfer a workman from the establishment at Bangalore
to any other establishment of the Company in India. Therefore, as long
as the respondent was serving at Bangalore he could be transferred
from one department to another only in accordance with the
provisions of the Standing Orders but the Standing Orders do not in
any refer to or prohibit the transfer of a workman from one
establishment of the appellant to another. There is thus no conflict
between the said clauses.”
11. This makes it clear that if there is no conflict between the
appointment order, confirmation order and Standing Order, the power to transfer
can be exercised by the Management. Going through the Standing Orders does
not reveal that there is any conflict. Therefore, in exercise of the powers
conferred on it, the Management had transferred the workman from Chennai.
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12. The act of the workman in not joining the transferred place amounts
to indiscipline and as found by the labour court, such an act would invite
consequences. Even if I were to agree with the respondent workman that
despite his transfer if he does not report and if action is taken it amounts to
victimisation, it will amount to sowing seeds of indiscipline in an establishment,
which I will not do. There is no prohibition in the power of the Management to
transfer, as already found, and it was the workman who was at fault in not
reporting to the place of duty.
13. The argument of the learned counsel for the workman placing reliance
on the judgment Srivastava (S.P.) and Another vs Banaras Electric Light
And Power reported in 1968(2) LLJ 483, in which it was held that Standing
Orders are binding on both the Management as well as the workman is not in
dispute. This is in line with the view taken by the Hon'ble Supreme Court, which
I have cited above (Cipla case).
14. The other judgment referred to by the learned counsel for the
workman is Pushpakaran -Vs- Coir Board reported in 1979 (I) LLJ 139. A
reading of Paragraphs 24 and 25 of the said judgment would show that it is a
case where it was a punitive transfer and transfer as punishment and not a
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transfer for administrative reasons. There is more than one ground to
distinguish with the said judgment.
15. Learned counsel for the workman would rely upon another judgment
in Sudhir Chandra Sarkar -vs- Tata Iron and Steel Co., Ltd and Others
reported in 1984(3) SCR (3) 325, to press the point that Standing Orders are
statutory in flavour. A careful reading of the judgment would show that it was a
case, where, on the basis of the Standing Orders, the Management refused to
pay gratuity to the employee. Section 14 of the Gratuity Act states that any
instrument which is contrary to the Act will not prevail and there were specific
rules under the Retiring Gratuity Rules, 1937 on payment of gratuity. Those
Rules assured that gratuity will be paid to an employee and when there are
subordinate level legislation or legislations, the standing order obviously will
have to give way for the same. Therefore, the said judgment of gratuity is
inapplicable to the case of transfer.
16. The first respondent / labour Court had erroneously appreciated the
facts and law and had come to the conclusion to award compensation. It held
that, there was victimisation and the power of transfer was not available to the
writ petitioner Management. It failed to see it was the workman who refused to
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join despite his specific statement given in the claim petition. It found that the
finding that the Standing Orders are statutory in flavour and the same can be
over-written by order of appointment. Ignoring the position of law that Standing
Orders are not statutory in flavour and ignored the position of fact that there is
no conflict between the appointment order, confirmation order and the Standing
Order. It failed to note that mere filing of police complaint will not amount to
victimisation.
17. I feel that the order of the labour court is tainted with illegality and as
it is contrary to the law laid down by the Supreme Court I am constrained to
interfere with the same. Consequently, the writ petition is allowed and the order
passed by the first respondent / labour court in I.D.No.243 of 2000 dated
26.03.2013 is set aside. No costs.
14.06.2023
Index : Yes/No
Neutral Citation : Yes/No
Speaking Order / Non-speaking order
KST
To
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W.P.No.27439 of 2013
The Presiding Officer
First Additional Labour Court
Chennai.
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W.P.No.27439 of 2013
V. LAKSHMINARAYANAN, J.
KST
W.P.No. 27439 of 2013
14.06.2023
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