HIGH COURT OF CHHATTISGARH: BILASPUR W.P N0. 460 of 2004 - Petitioner I.B.P. Co. Ltd. and Anote hr Vs. Respodnts hs ne : B.P. Gupta and Oter And t W.P; Nor. 959 0f¥2004 itier .P. upa. Peton B Gt / Vs. ns IBP. Co Ltd and Ohs Respondet .. . ter Pst for ronounemnt of the Judgment and Order o 07 /07/2008 o pce n Sd/- Satish K. Agnihou ’ Judge r\‘ ah ‘ i HIGH COURT OF CHHATTISGARH AT BILAR Writ Petition No. 460 of 2004 L na osi pu Korba tg ra n ( E 1rmal anra Stre 01a-0 3 Chd et Kkat700 1 . aager d rav Ltd Itla pse n oplpu t rb a / Lte I clave a ma st b G 2. Iustra1 Curt Ralpur Chhatlsgh nd1 o tar 3. PreIdmg Officer Labour Ct Blpur S our las. . Sh vek r Aocaes or the etitoers a n h Kh h Panka wa vtes for t : pta La h Gut a t ears, n 1 IBP ln, a or t ‘RESPONDENTS 1 IB P Co Ld Insti Explo Plant GOpalp K : . ‘ t dural sive ur orba, u s eer nar ( ( - irmal r tr ta00 1 i . h aer sne iae Ltd nut loe l Gopp s r 3. .State a ur hsar aar agar ’ Rp I I U 26/7 UT IA) S o ah go, : ’ A a h n aa Aoaes for : ein h w hr iv Ve votes fo t rsondent i Sr1 P S Koshy 1th S1 Vek rma Adca r he ep Passe on thi 7 day of Jul, 208) (d s y 0 1. e i s same co r com pune luent a ode dated 29.004 (n P e il‘ r, htsgarh, , ap i .. N 7R//I02. bo ebeing ~54 ' cos1er n Ce ogete nded ad deidd thr 2. n ei n 60/04 ‘ IBP Company Limited and aother pttioners 1 WP No 4 (hreinafer referred to 'the ptitionr) calleng te galty and v et ee he h lei alidity SPU IB P Co td Idustrll Explve Plant Gopalr hrouh Its Dy Genel Maager HR -) 34 A N 2 Mn Personnel an Admlmsttle IBP Co ndusrl Exlow Plat Gar D1st Koa VERSUS BP Gupt So a KL Gupta B 01 BP En S V B P Ngar Jampll D1t Kora (C) 495450 PETITIONERS l. RESPONDENTS Present : Shr1 P S Koshy w1th r1 Vi Vema dvt f pin Sardr Khaja Smg anuja w1th Sr1 j Agral Adoca he respondent No 1 Writ Petition No 959 of 2004 PETITIONER _ V B P Gu S/o te Sr1 K L pa ged abou 47 y ' remdet of B 0 Cooy Jamnipli Kba (CG) VERSUS ‘ " throgh it Dy Gnal Mage HR E) 34A N : Chanda Seet Kolka—70 3 2 Te Mnag Peronl & Admnistrtiv IB P Co Idsrial Expsw Pant alur Ditt Koba Industril Cot of Chattigh Shnk N aiur (WRT PETTION NDER ARTICLE 222 OF THE CONSTITION OF IND (B Hn'ble Mr Stis K Anihtri J ) Present Sardr Khajan Sing Khanuja w1th Shr1 Pakaj Agrwl dvct the pttioer No 1 & 2 Disputs nvolved in W P Nos 460/04 and 959/04 arie from the cause: of atin, and mon imgd idgm nd rr 01i2 Anexure /l), passd by the IndEtria Cout Chati Riur n CA o. 26/MPIAI/20‘ Thus, th the ptitions'are' (w of the order dated 29.0‘132004, whereby, the transfer order dated 05.1 1.99 and dismissal‘ order dated 02.0603 were quashed. B.P. Gupta, petitioner in WP No 959/04 (herelnaher referred as 'the respondent') challenges the vahdlty of the order dated 29 01 04 (Annexure P/l) to the extent of denlal of back-wages The 1nd1sputable facts 1n nutshell (taken from W P No 460/04) wh1ch ‘ are common are that the respondent was workmg as Chargeman (Process) He was 1n1t1ally appomted on 16.08.77. The respondent was transferred v fromiKorba to Ramagundam (A.P.) on;05.11.99 (Annexure'.P4) in the existing grade and basic pay. He was advised to report Senior Manager (SMS). .The reSpondent/employee was, thereafter, relieved ~by order dated ' 10.11.99 (Annexure P/5). The respondent challenges the transfer order before the Labour Court, Bilaspur, being case No. 2/MPIR/COC-I-A/2000, under the provisions of Section 31(3) of the M.P. Industrial RelationsAct, 1960 (for short 'MPIR Act'). The petitioner submitted his reply before the Labour Court, stating that the transfer was, made purely on administrative exigency and the service conditions of the post of the respondent was transferable, anywhere in India in the petitioner's establishment or in its sister concern. The Labour Court, by order dated 16.09.02 (Annexure P/2) came to the conclusion that the order was,paSSed inthe administrative interest and proved malaflde has npt been‘established. Thus, the application of the respondent/employee was dlsmlssed «k The respondent/employee preferred an appealibefore the State Industrial _ Court There was no stay of the transfer order dated 05 11 99 (Annexure P4) elther 1n the Labour Court or 1n the Industrial Court The respondent employee accordingly remained absent for more than four years Without any interim protection or stay from the Courts below ‘1‘h< a On account of’his absence, a Departmental Enquiry, for having committed a serious misconduct, was initiated, pursuant to the charge-sheet dated 12.10.2000. The respondent employee participated in the enquiry, and ‘on the basis of the findings of the enquiry officer, charges were found proved and the disciplinary authorityr by order dated 02.06.03 (Annexure P/6), dismissed therespondent. The Industrial Court, without there being any challenge to the dismissal ' order, allowed the appeal filed‘by the respondent/employee and quashed not only the transfer order but dismissal order dated 02.06.2003 also on 29.0 1.2004 (Annexure P/l) by directing re-instatement of the respondent/ employee without back-wages. Thus; this petition. Shri P.S. Koshy, learned counsel appearing for the petitioner would submit that there was no malaflde in transferring the respondent employee from ’Korba (CG) to Ramagundam (AP) as the same was done on administrative exigency. The finding of the Labour Court was based on sound reasoning. Thus, there was no reason for the Tribunalrto upset the findings recorded by , . ‘ the Labour Court quashing the transfer order which was passed on administrative exigency. The Tribunal committed error-in reviewing the transfer order. ' Admittedly, scope ofjudicial review in transfer matter is very limited. The impugned order of the Tribunal is not sustainable in law, whereby, the Tribunal has directed reinstatement of the petitioner Without looking into the facts that during pendency of the appeal, the respondent/employee was dismiSsed from service on account of proved charges of misconduct, after holdingvpropekr enq$ry Further, there was no challenge to the dismissal‘order either in the Labour Court‘or before the Industrial Court. Thus, the impugned order dated 29.01.2004 (Annexure P/l’), passed by the Industrial Court, may be quashed with costs. w” ’ *‘x ($7, / u. ax ‘ .1 Per contra, Sardar Khajan Singh Khanuj a, learned counsel appearing fcr the/ respondent employee (B.P. Gupta) would submit that-the transfer, order was __ passed with malaflde intention and there was no administrative exigency. Thus interference With the Labour Court’s order, by the Industrlal Court t was just and proper The Industrlal Court has falled to con31der that the respondent/employee was restrained by illegal act of the 'petitioner authorities and as such the respondent/employee was not allowed to‘work in the offices. Once "the transferorder is quashed, the petitioner was “entitled to‘ full backwages. The order of re-instatement was just and proper ’ as cohsequential order of dismissal was based on the‘transfer order. Once i V the transfer order has been quashed consequential dismissal order / automatically stands quashed The respondent/employee was holding post ’ of Heavy Vehicle Operator. He was transferred. as Chargeman (Process) in a different cadre. Learned counsel relied on a dec151on passed by the Supreme Court in the matter of Workmen of Shri Ranga Vilas Motors (P) Ltd Vs Sri Rangav1las I Motors (P) Ltd and others The finding of the Labour Court was perverse as the eVidence adduced by the respondent/employee was not properly appreCiated The transfer order. . _ i j L was inalafide as the transfer was done in order to supersede the respondent ‘emplfoyee in the matter of promotion and his junior was promOted. One Shri Dattd ram superseded‘hjm' The petitioner filed a casein the Labour Court. V The Labour Court by order dated 10 09 98 held that the respondent] employee was entitled to promotion as HeavyKVehicle Operator Grade 5 ' i ' With seniority over Dattaram The management being unhappy With the order of the Labour Court as well as Industrial Court Whereby the .V g petitioners were directed to promote the respondent as Heavy Vehicle x «s a i x r ‘AIR i967 (SC) 1046) Operator with right of seniority over Shri Dattaram, passed the transfer order. The transfer was made in mid—session to a place Which w'as more than 1500 km. away from the original‘placcof posting. The petition, filed by the Management, deserves to be rejected with costs and the petition for grant of backwages, filed by‘the respondent employee, deserves‘to ‘be allowed with costs. I have heard leamed counsel, appearing for the parties, peruSed the pleadings and documents appended thereto.‘ It is evident that the transfer order dated 05.11.99 (Annexure P/4) was passed on administrative exigency. The respondent, despite refusal of interim protection by the Labour Court and Industrial Court, remained‘absent, leading to issue of charge—sheet dated 12 10 2000 holdmg of Departmental Enqulry and‘ passrng of the d1sm1ssal order on 02 06 03 (Annexure P/6) In the dismissal order, 1t is clearly stated that for not Joming at new place of posting and for y having committed misconduct, an enquiry was instituted. A copy of the enquiry officer's report‘was sent to the respondent/employee Vide letter dated 26 12 02 in response to that the respondent/employee submitted his reply dated 11 01 03 After conSidering reply of the respondent/employee and the enquiry report the order of dismissal was passed The respondent/employee has chosen not to challenge the dismissal order r dated 02 06 03 but in the pending appeal before the Industrial Court by way of amendment dated 26 12 2003 (Annexure P/10), sought a relief of re- instatement With back-wages (W P No 959/04) The prayer in the said _, application reads as under- . . 5 ‘ "It is further prayed that theirespondent'may kindly be, i directed to reinstate the appellant in serVice With back- wages and all consequential benefits from the date of order x 3" of transfer till his reinstatement in serVice 16. ,. \\, 15. The questions arise for consideration of this Court isv asto whether dismis§al order can be quashed even if ‘the transfer order has been 'fOund bad and illegal, withont there being a challengeto: the dismissal order?.ISec0ndly,' whether the transfer of‘ the respondent employee was malaflde exercise of power or the offieer transferring the employee was not competent orthe orderipassedwas in contravention of the statutory rules and regulations. The. eaSe of Workmen of Shri’ Ranga Vilas Motors (P) Ltd. Vs. Sri Rang‘avilas Motors (P) Ltd. and others-(Supra) is not applicable to the facts " of the present case as 1n that matter the questlon of term1nat1on of serv1ce was included 1n the order of reference made to the Labour Court itself In the preseht case. there was no reference to the‘effect that, dismissal of the respondent/employee be quashed with reinstatement and backwages, in theik Labour Court 17. In the appellate Industrial Court for the first time, the respondent/employee amended the appeal pendlng therem when that was not the subject matter of the dispute before the Industrial Court. The respondent/employee ought to have been tiled an applicatlon before the Labour Court f1rst thereafter before the Appellate Court In fact there was no challenge to the Impugned i ’ ' V dismissal order before the Labour Court or thereafter in the appeal 18. The Supreme Court 1n the matter of P1are Lal Vs Unlon of India and I ~ others observed that “It‘must follow a fortzorz that, 1n the absence of ‘ challenge 1n the petltioh we cannot examine the va11d1ty of the two orders dated October 28 1966 and stnke them down ” The petltlon was found 1n- i _ . ”§ ‘ fructuous by reason of the facts that the subsequent orders were not challenged. Thus 1t ls held that the respondent/employee has not' challenged the dismissal order dated 02.06.03 before the appropriate forum _ 2’1975 (4) scc 76. . K??? «I i.e. Labour Court, seeking amendment of thememoof appeal, cannot cure the defect. \ Wlth regard to the transfer order, the Labour Court after examlnmg, » observed that the respondent/employee has falled to estabhsh malaflde actlon on the part of the pet1t1oner/management, Ment1on1ng Chargemen (Process) was correct-as the relevant time the name of the ‘post of the respondent/employee was Chargemen (Process) Grounds like m1d-sess10n transfer opposuion to VR S scheme and non-payment of TA advance ‘cannot be held7as ground of malaflde, requiring interference with the The Industrial Court 1n appeal relying on decISion of Supreme Court in the matter of Workmen of Shrl Ranga Vllas Motors (P) Ltd (Supra) allowed. the amendment to be incorporated in the memo of appeal and passed the, final order without examining the facts of the case. The Tribunal has held that impugned transfer order was. malatide as the respondent/employee opposed V.‘R.~S. scheme and there was an.0rder of Labour Court for » promotlon of the respondent ‘ On overall con31derat1on of the relevant facts and ev1dence adduced by the partles, 1t' ls not proved that the respondent/employee has estabhshed malafrde in case of his transfer. Thus, interference by‘the Industrial Court on non established ground of malafide, is bad and deserves to be quashed. ' The Appellate Court has not considered the facts of the case With regard passing of the dismissal order, and after quashing the transfer 'order,‘ the. petitioner was further directed to reinstate the respondent/employee without backwiages. 1 It is,Well settled principle of law that eyen' if the order or decree‘is illegal, the same cannot be’i'gnored by thewgovernment servant until unless'the same ' is quashed or amended by a superior Court. " transfer order. \ 2004 (1) scc 237. ; 5‘1991 Supp (2) scc 659 5 1993 (1) scc 14s 1974 (4) scc 3 1995 (3) scc 27o § 9 2001 (s) scc 508 lo 2001 (s) scc 574 l 2004 (4) scc 245 I 2007 (s) scc 150 - QQ/ M The Supreme Court 1n the matter of Rafique B1d1 (dead) by LRS Vs Sayed Walluddm (dead) by LRS and others observed 1n para 8 as under "....;.;....A decree suffermg from lllegahty or mewlanty of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly ' constituted legal proceedings or by a'superior court failing which he must obey the command of the decree A decree passed by a court of competent Junsdlctmn cannot be denuded of 1ts efficacy by any ‘ collateral attack or 1n 1nc1dental proceedrngs., (see Judgment and order dated 02 05 2006 ofthis Court in W P No 1336/03 Ram Klshore Dubey & others Vs State of Chhattlsgarh & others) A Petition for Special LeaVeto Appeal (Civil) Nos. 7614-7615/08 filed agamst the sald Judgment and order dated 02 05 2006 (Supra) was \ dismlssed by the Supreme Court on 29 02 2008 25. The legal pos1t10n 1n case of transfer ls well established that court should exercise its jurisdiction Only in case of proved malafide, non-competence of the officer passmg the order or Violation of rules and regulations, applicable to the employees (see EP Royappa Vs State of Tamil Nadu and Another , Shilpi Bose (Mrs) and Others Vs. State of Bihar and Others , Rajeridra Roy Vs. Union of India6, State of M.P. and Another Vs. S.S. , Kourav and Others7 StateBank of India Vs. Anjan Sanyals National Hydroelectric Power Corpn Ltd Vs Shri Bhagwan Union of India and Others Vs Janardhan Debanath and Another“) and Mohd Masood Ahmad Vs. State of U.P. and Others“)- s 3 4 7 8 I In the considered opinion of this Court, the approach of the Industrial Court ' is not proper & justified and as such the same deserves to beset aside and quashed. The order passed by the Labour Court is restored For the reasons mentioned hereinabove, W.P. No. 460/04 flled by the‘ petitioner’s/management is allowed and in View of the order passed in W.P. No. 460/04, no order is necessary in W.P. No. 959/04, filed by the respondent/employee. Costs easy. ~