IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 6.03.2009 Coram: THE HONOURABLE MR. JUSTICE K.CHANDRU W.P.No.19875 of 1999 The Management of M/s.Vijayashree Spinning Mills Ltd., Unit-I, Trichy Road, Dindigul-624 009. rep. By its Director ..Petitioner vs. 1. The Presiding Officer, Labour Court, Trichirappalli. 2. Thiru.T.Thiagarajan ..Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of writ of Certiorari to call for the records on the file of the 1st respondent and quash the impugned common award dated 10.11.1999 in I.D.No.308 of 1995. For Petitioner : Mr. R.Parthiban For Respondents : Mr. S.Subbiah, for R2 ORDER The petitioner is the management of Vijayshree Spinning Mills Limited at Dindigul. Aggrieved by the award of the Labour Court made in I.D.No.308 of 1995 and C.P.No.90 of 1995, dated 10.11.1999, the present Writ Petition has been filed. 2. The Labour Court by the impugned award held that the second respondent was entitled to be reinstated with effect from 1.7.1993 with service continuity backwages and other attendant benefits. 3. The Writ Petition was admitted on 15.12.1999. Pending the Writ Petition, this Court directed the management to deposit 50% of the backwages and also to comply with Section 17-B of the Industrial Disputes Act by paying monthly wages. However the payment of monthly wages was subject to workman filing an affidavit stating that he was not employed anywhere. https://hcservices.ecourts.gov.in/hcservices/ 4. Subsequently, when the matter came up on 29.6.2000, the interim order was continued. Thereafter, when the second respondent filed application for direction, this Court made the stay absolute and did not grant the workman the enhanced wage. 5. The case of the workman projected before the Labour Court was that he joined the petitioner mill on 23.1.1985 as a Clerk. Thereafter, in the same capacity, he was posted in various sections. He was working in the Unit No.1 till August 1988 and at that time with the same senior grade, he worked as Canteen Clerk and Store Clerk. When the second respondent was orally stopped from work on 11.12.1992, he raised an industrial dispute before the Assistant Commissioner (conciliation), Dindigul. On 31.12.1992, the petitioner management restored the second respondent to service. Thereafter, when he was demanding the wages as per the Special Tribunal award, headed by K.E.Varadhan, he was transferred to the Plantation Division at Manavanur on 20.4.1993. The said place is 146 Kms. away from the original place and it was done with a view to victimise the second respondent. When the second respondent sent several letters, there was no reply from them. When he continued to report at the petitioner mill, the Watch staff refused him to report for duty. Therefore, he presumed that the management was not willing to restore him into service and once again raised a dispute, which reached the Labour Court. The Labour Court took up the dispute as I.D.No.308/1995. 6. Before the Labour Court, the petitioner mill filed a counter statement dated 24.2.1994 stating that the workmen are liable for transfer and since he did not report for at the transferred place, he was not allowed to enter the mill. Though the management contended that the validity of the transfer order cannot be collaterally attacked, the Labour Court placing reliance upon certain decisions held that if the transfer order is passed with a view to victimise the workman, the court can go into the said issue and therefore it went into the issue relating to illegal transfer order. 7. The Labour Court also found that the Estate at Mannavanur, (Kodaikanal) belonged to the same management was not proved satisfactorily. It also found that in the 100 Acre Estate, only Ucalyptus has been planted and there was only one bungalow and there is no necessity for a clerical staff. The Labour Court also held that there was no post available at Manavanur Estate for the petitioner to be transferred and the documents in Exs.M.16 to M.18 have been created only for the purpose of the dispute. Therefore, the Labour Court held that the Standing Order 24 cannot be pressed into service. It held that the petitioner had failed to prove that it was a sister concern and also that the transfer order was mala fide. It also held that the dispute under section 2(A) of the Industrial Dispute Act regarding his non-employment is maintainable. https://hcservices.ecourts.gov.in/hcservices/ In view of this, the Labour Court directed his reinstatement with backwages and other attendant benefits by the impugned Award. 8. The learned counsel on behalf of the management submitted that the Labour Court has no jurisdiction to decide an issue relating to transfer and hence the consequential award should be quashed. He also submitted that the Labour Court cannot collaterally decide the legality of transfer in a dispute under section 2(A) of the Industrial Dispute Act. 9. This argument is contrary to the decision of this Court in the Management of Hindustan Motors Ltd. vs. Lakshmiah and another reported in 2002 (2) LLN 725. In paragraph 14 of the said judgment, the Division Bench has held as follows: "Therefore, when once it is held that the first respondent was a "workman" as defined under the provisions of the Industrial Dispute Act, it is incumbent on the part of the second respondent to find out as to whether his non- employment is justified or not? As far as the said question is concerned, the dispute between the appellant and the first respondent continued to exist when on the one hand the appellant would contend that because of the first respondent's persistent refusal to go on transfer at Dhanbad, it had no option than to terminate his services, the first respondent would contend that he was denied every reasonable opportunity by the appellant before reaching the said conclusion that he defied the orders of the appellant to go on transfer to Dhanbad. Therefore, it is the bounden duty of the second respondent to adjudicate on the said disputed question between the parties. Viewed from that angle, the order of the learned Single Judge in granting the relief of reinstatement with back-wages cannot be sustained." (Emphasis Added) 10. It must be stated that by section 2(ra) of the Act, "unfair labour practices" have been set out in the V Schedule of the Industrial Dispute Act. In Part I of the V Schedule in item No.7, transferring of workman mala fide from one place to another under the guise of management policy has been listed. Section 25-T prohibits commission of an unfair labour practice by an employer. Under section 25-U, a penalty has also been prescribed for committing unfair labour practice, which includes imprisonment for 6 months. Therefore, the commission of an unfair labour practice has been mandatorily prohibited by the Industrial Dispute Act. Excepting for penalty, the Industrial Dispute Act had not provided any separate machinery to raise such issues. Hence such an issue can be pleaded by a workman in any dispute. https://hcservices.ecourts.gov.in/hcservices/ 11. In the present case, the Labour Court has found as a matter of fact that it was a mala fide transfer and therefore it gave the relief by the impugned award set out earlier. The impugned award does not suffer from any infirmity or illegality. 12. In the light of the above, the Writ Petition stands dismissed. However, there will be no order as to costs. In view of the dismissal of the Writ Petition, it is open to the second respondent to withdraw the amount lying in deposit with the Labour Court and claim the balance from the petitioner management. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Presiding Officer, Labour Court, Trichirappalli. 2. The Section Officer, V.R. Section, High Court, Madras. Order in W.P.No.19875 of 1999 BV (CO) GSK 09.03.2009. https://hcservices.ecourts.gov.in/hcservices/