WP(C) 4711/2003 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY In challenge is the notification dated 11.12.2002 issued by the Joint Secretary to the Govt. of Assam, Labour and Employment Department, whereby, a dispute cove red by the following terms of reference was referred for adjudication U/s.10 of the Industrial Disputes Act, 1947 (hereinafter for short referred to as the Act) by the Industrial Tribunal, Guwahati (for short referred to as the Tribunal): - 1) Whether the transfer of Shri A.B. Rajan, Godown Incharge, from Guwahati Bran ch to New Delhi Branch by the management of Polar Industries Ltd. amounts to ret renchment of his service in violation of the provisions of the Industrial Disput e Act,1947. 2) If so, whether he should be allowed to continue his service in the post held by him at Guwahati Branch or given any relief in lieu thereof. I have heard Mr. S.N. Sarma, Senior Advocate assisted by Ms. B. Bharali, Advocat e for the petitioner and Mr. R.G. Das, Advocate for the Respondent No.3. Also h eard Mr. B.J. Ghosh, learned State Counsel. The facts leading to the filing of the instant petition can be gathered from the rival pleadings. The Respondent No.3 at the relevant point of time was employe d with the petitioner-Company, M/s. Polar Industries Ltd. as Godown Incharge and was posted at Guwahati. He was appointed in the aforementioned capacity on 01. 04.1996. Admittedly, the terms and conditions of his service disclose that he w as subject to transfer liability for working in any of the units of the petition er-Company or any other associate Company existing or to be set up in future, in the same town or outside anywhere in India. The transfer, however was to be ef fected if considered necessary, in the discretion of the employer however withou t detriment of status or the emoluments of the employee. The Respondent No.3, in fact was ordered to be transferred to Delhi by a communi cation dated 20.11.2000 of the Executive Director of the petitioner-Company. As the Respondent No.3 cited personal and other difficulties to comply with the or der of transfer, the petitioner-Company by communications in a series insisted t hat he should shift to Delhi as ordered. In the above factual premise, the Resp ondent No.3 perceiving such insistence to tantamount to retrenchment from servic e raised an industrial dispute. The conciliation proceedings failed and eventua lly, by the impugned notification the reference was made. The Respondent No.3 in his affidavit, in substance, contended that at the relev ant point of time the business of the petitioner-Company was low and that in a b id to down size its establishment it resorted to such arbitrary transfers. He cited instances to demonstrate that as similarly situated employees could not ab ide by the orders of transfer, they sought to abandon the job. It is, in this c ontext, according to the Respondent No.3, the repeated insistence of the petitio ner-Company to comply with the order of transfer constituted retrenchment. He a lso asserted that situated thus, he submitted his resignation by letter dated 22 .09.2005. It however remained unresponded by the petitioner-Company. Whereas, Mr. Sarma, referring to Section 2-A of the Act has urged that the impug ned notification is clearly unsustainable in law, the purported dispute having b een raised by an individual workman, Mr. Das has contended that in the facts and circumstances of the case, the transfer of Respondent No.3 amounts to retrenchm ent and therefore, the reference is valid. The learned counsel for the parties, to drive home their respective contentions have placed reliance on the decision of the Apex Court in Rajasthan Road Transport Corporation Vs. Krishna Kant 1995 (2) LLJ 728 and State of Madras Vs. C.P. Sarathy and another AIR 1953 SC 53, re spectively. The pleadings on record and the arguments advanced have received the due conside ration of this Court. A plain reading of the terms of reference under the quote leaves no manner of doubt that thereby the learned Tribunal has been left with the task of ascertaining as to whether the transfer of Respondent No.3 from Guwa hati Branch to the New Delhi Branch of the petitioner-Company amounts to retrenc hment in violation of the provisions of the Act or not. It is, thus, apparent t hat the Government while making the reference vide the impugned notification was not satisfied that such a transfer, in fact, amounted to retrenchment within th e meaning of the Act. Admittedly, the dispute herein has been raised by the Res pondent No.3 in his individual capacity and to be an Industrial Dispute within t he meaning of Section 2A therefor it must essentially relate to dispute, dismiss al, retrenchment or termination of his service. This view finds ample support f rom the observations of their Lordships in Rajasthan State Transport Corporation (Supra). The Apex Court in State of Madras Vs. C.P. Sarathy and another (Supr a) had in fact, outlined the contours of the scrutiny of a writ Court, of the ma terials on which the State Government derives its satisfaction for referring a d ispute U/s.10 of the Act. Their Lordships therein, inter alia propounded that a writ Court therefore cannot canvas any order of reference normally to see the m aterial in support of such a conclusion. There is apparently no quarrel with t his proposition. The facts of the instant case demonstrate that the appropriate government herein while referring a dispute for adjudication by the learned Trib unal was itself not certain that the transfer of the Respondent from Guwahati Br anch to the New Delhi Branch of the petitioner’s-Company did in law amount to re trenchment within the meaning of Section 2A of the Act. In the above view of th e matter, the challenge laid by the petitioner-Company to the impugned notificat ion has considerable substance. As the dispute has been raised by the Respondent No.3 in his individual capacity, the same being assuredly not contemplated with in the ambit this legal provision, the reference cannot be sustained. In the above view of the matter, the petition succeeds. The impugned notificatio n is quashed. However, as the Respondent No.3’s request for resignation, as it is submitted at the Bar has yet not been attended to, the petitioner-Company or its successor Company would do the needful in this regard and take consequential steps to which he would be entitled in law, this determination notwithstanding. No costs.