Rajasthan High Court

Shri Raju Verma And Anr vs State Of Raj And Ors on 17 December, 2021

Bench: Rekha Borana

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                            BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 2661/2017

1.     Shri Raju Verma S/o Ishwar Singh, Proprietor, aged about
       41 years, Proprietor, M/s. Auto Malleable E-353, Road
       No.14, Vishvakarma Industrial Area, Jaipur
2.     Shri Arjun Singh S/o Tara Chand, Manager, aged about 55
       years, Manager, M/s. Auto Malleable E-353, Road No. 14,
       Vishvakarma Industrial Area, Jaipur
                                                                     ----Petitioners

                                      Versus

1.     State      Of      Rajasthan          Through          Additional       Labour
       Commissioner Cum Deputy Secretary, Shram Bhawan,
       Shanti Nagar, Khatipura Road, Hasanpura, Jaipur
2.     Vishvakarma         Audhyogik          Kshetra       Labour     Union    CITU
       Through Its Secretary, Hatwara Road, Jaipur
3.     Rohitash Chaudhary S/o Shri Thanduram Chaudhary, R/o
       Village      Khudiya,        Bahadurgarh,            Chirawa,    Jhunjhunu
       333026
4.     Sukhveer Chaudhary S/o Laxmi Narain, R/o 83-B, Janta
       Nagar, Opp. 4 No. Dispensary, Hatwara Road, Jaipur
5.     Badri Narain Sharma S/o Ramlal, R/o 906, Dogri Hali
       Dhani, Neendar, Jaipur 302013
6.     Goma Ram S/o Kalyanmal Saini, R/o 474, Saini Bhawan,
       Shantinagar, Opp. NBC Factory, Jaipur
7.     Babulal Gurjar S/o Dhanna Ram R/o Village Daulatpura-
       Benad, Post.- Ninrad Benad, Amer, Jaipur

                                                                   ----Respondents

For Petitioner(s)           :     Mr. Himanshu Jain

For Respondent(s)           :     Mr. Nishant Jain
                                  Mr. Mohammed Akbar Khan, Dy.G.C.



            HON'BLE MS. JUSTICE REKHA BORANA

                                       Order


                                         (2 of 7)                   [CW-2661/2017]

17/12/2021

The present petition has been filed against order dated

30.12.2016 (Annexure1) passed by the respondent No.1

Additional Labour Commissioner Cum Deputy Secretary (Labour

Department, State of Rajasthan, Jaipur) (hereinafter referred to as

"Labour Commissioner") whereby the sanction for prosecution of

the petitioners has been granted.

The facts of the case are as under:

The employees of the Proprietorship firm M/s. Auto Malleable

preferred a complaint in terms of Section 34 of the Industrial

Disputes Act, 1947 (hereinafter referred to as "Act of 1947")

complaining that they have been transferred by the Management

in violation and contravention of Clause 29 of the Rajasthan

Industrial Employment (Standing Order) Rules, 1963 (hereinafter

referred to as "Rules of 1963").

Clause 29 of the Rules of 1963 reads as under: "Cl. 29. Transfer- A workman may be transferred according to exigencies of work from one shop or department to another or from one station to another or from one establishment to another under the same employer:

Provided that the wages, grade, continuity of service and other conditions of service of the workman are not adversely affected by such transfers: Provided further that a workman is transferred from one job to another, which he is capable of doing and provided also that where the transfer involves moving from one state to another such transfer shall take place, either with the consent of the workman or where there is a specific provision to that effect in the letter of appointment, and provided also that (i) reasonable notice, is given to such workman, and (ii) reasonable joining time is allowed in case of transfers from one station to another. The workman concerned shall be paid travelling allowance including the transport charges, and fifty per cent, thereof to meet incidental charges."

(3 of 7) [CW-2661/2017]

The employees complained that the said transfers were

made because of the fact that they had been the leaders of the

Union which was involved in the settlement process undertaken

between the Management and the employees regarding certain

disputes pertaining to the conditions of services and payments

thereof.

The employees further averred that the transfer orders fell

within the purview of item No.7 of the Fifth Schedule of the Act of

1947. The Fifth Schedule describes "Unfair Trade Practices" and

item No.7 reads as under:

"7. To transfer a workman mala fide from one place to another, under the guise of following management policy".

On the complaint filed by the employees, Labour

Commissioner issued notices to the Management and a reply was

also filed by the Management. After perusing the material, the

Labour Commissioner reached to the conclusion that the

Management had not got any service rules certified and therefore

the transfers without being governed by any service rules, were

even otherwise invalid.

The Labour Commissioner also found that because of the

demand letter being raised by the leaders of the Union and the

dispute having arisen thereof, the transfers of the employees have

been made which proves to be malafide and therefore falls within

the definition of an "Unfair Trade Practice" in terms of item No.7 of

Fifth Schedule of Act of 1947.

On the basis of above findings the Labour Commissioner

proceeded on to grant sanction for prosecution of the petitioners,

who are the Proprietor and the Manager of the Firm. The said

(4 of 7) [CW-2661/2017]

order of the Labour Commissioner is under challenge in the

present petition.

Learned counsel for the petitioners has argued that the

Labour Commissioner has proceeded illegally in reaching to a

finding that the transfer orders were in any manner malafide as

the same were made because of there being a fresh Industrial

Unit set up by the Management in Gurugram. The employees

being the experienced ones, were transferred to the new unit and

the same was done in the regular process of business by the

Management.

Learned counsel further argued that the dispute pertaining to

"transfer" falls within the definition of "Industrial Dispute" as

defined under Section 2(4) of the Act of 1947 and therefore

procedure as provided under Section 10 of the Act of 1947 ought

to have been first adhered to.

Learned counsel also argued that the burden of proof to

prove the malafide was on the employees whereas the Labour

Commissioner has proceeded vice versa and shifted the same on

the Management.

On basis of all the above submissions, the learned counsel

argued that the order passed by the Labour Commissioner is

illegal.

Learned counsel relied upon a judgment passed by the

Hon'ble Apex Court in Civil Appeal No.8989/2019; Rajneesh

Khajuria Vs. Wockhardt Ltd. & Ors. decided on 15.01.2020:

2020 (2) ABR 433 and another judgment reported in 2013 (1)

SCC 524; Ratnagiri Gas And Power Private Limited Vs. RDS

Projects Limited And Ors.

(5 of 7) [CW-2661/2017]

Per contra, learned counsel for the respondents argued that

the order passed by the Labour Commissioner is totally valid and

legal on the face of it. It was a clear case of malafide on the part

of the Management which was actually proved from the facts of

the complaint and therefore on the basis of the facts available on

record, the Labour Commissioner proceeded on to grant sanction

in terms of law.

Learned counsel further argued that "Unfair Labour

Practices" have been specifically provided for in the Act of 1947

and item No.7 of Fifth Schedule specifically includes in its ambit a

"transfer of a workman mala fide from one place to another, under

the guise of following management policy" which has been done

by the Management in the present matter.

Learned counsel for the respondents relied upon judgment of

the Hon'ble Apex Court reported in 1997 AIR (SC) 2680: Raj

Kumar Gupta Vs. Lt. Governor, Delhi and another judgment of

Full Bench of the Karnataka High Court reported in 1987 ILR

(Karnataka) 3762: S.N. Hada & Ors. Vs. The Binny Ltd. Staff

Association.

Heard learned counsel for the parties and perused the

material available on record.

In S.N. Hada's case (supra) the Full Bench of the Karnataka

High Court was dealing with the question:

"Whether a complaint lodged by a private individual securing permission from the Government or the Labour Commissioner as the case may be could be regarded as a complaint made under Section 34 of the Industrial Disputes Act by the Government or the Labour Commissioner or under its or his authority ?"

The said question was answered as under:

(6 of 7) [CW-2661/2017]

"16. For the reason recorded above, our answer to the question is as follows:

That the Government can authorise a private person also to file a complaint and such a complaint shall be regarded as a valid complaint under Section 34 of the Industrial Disputes Act on which Court can take cognizance of any offence punishable under the Act."

In view of the ratio as laid down in the above judgment it

can be concluded that a complaint lodged by an individual is a

complaint under Section 34 of the Act of 1947 and the Labour

Commissioner can proceed thereupon. On the basis of such

complaint, the Court can take cognizance of any offence

punishable under the Act.

Now coming to the fact whether the transfer orders were

malafide or not.

The Labour Commissioner has reached to the specific finding

that the transfer orders have been passed malafidely as the same

were in contravention to the Rules of 1963 which lays down

certain conditions to be followed in the case of transfers being