IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 9142 OF 1998 For Approval & Signature: Hon'ble MR.JUSTICE S.K.KESHOTE --------------------------------------------------------- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether their lordships wish to see the fair copy of the judgment ? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Civil Judge? --------------------------------------------------------- GUJARAT MINERAL DEVELOPMENT CORPORATION VERSUS JAYANT SHRIRAM KALAL ------------------------------------------------------ Appearance: MR KM PATEL for Petitioner MR AK CLERK for Respondent --------------------------------------------------------- Coram: MR.JUSTICE S.K. Keshote,J Date of decision:30/12/1999 C.A.V. JUDGMENT #. The Gujarat Mineral Development Corporation Limited, Ahmedabad, feeling aggrieved of the award in Reference (LCA) 2/92, made on 14th August, 1998, by Labour Court, Ahmedabad, prefers this special civil application under Article 226 and 227 of the Constitution of India. Under the impugned award, the Labour Court, Ahmedabad, allowed the reference made to it at the instance of the workman by the State Government partly and the order dated 5.9.91 of the petitioner under which the services of the respondent-workman were dispensed with was quashed and set aside. Direction has been given under the impugned award to the petitioner to reinstate the respondent-workman on his original post with continuity of services and 30% of backwages. #. The respondent-workman was appointed as selection grade Assistant in the services of the petitioner-Corporation on 16th December, 1971. The appointment order of the respondent-workman, as per petitioner's case, contained express condition of his transfer anywhere in the State. So the services of the respondent-workman were transferable. On 5.1.87, the respondent-workman was ordered to be transferred from Ahmedabad head office to Bauxite Mines Project, Bhatia, in the District of Jamnagar. The respondent-workman refused to accept the order of transfer and relieving order. He was informed by petitioner by telegram that he is transferred to Bhatia and relieved from Ahmedabad. The respondent-workman challenged this order of the petitioner-Corporation in this Court by filing writ petition being Special Civil application No.3348 of 1987. It is not in dispute that in that Special Civil Application, this Court has not granted any interim relief in favour of the respondent-workman. Vide memo dated 13th April 1988, the petitioner-Corporation issued chargesheet to the respondent-workman for his grave and serious misconduct of not reporting for work at Bhatia Project. On 28th December 1999, the Special Civil Application No.3348 of 1987 filed by respondent-workman was dismissed by this Court. After holding inquiry on the chargesheet served, vide memo dated 13th April 1988, and the misconduct having been found proved of disobedience of lawful and reasonable order and absence without leave, etc., the services of the petitioner were brought to an end under the order dated 6.9.91. The respondent-workman against the decision of the learned Single Judge of this Court dated 28th December 1990 in Special Civil Application No.3348 of 1987, preferred appeal being L.P.A. No.92 of 1992 which came to be summarily rejected on 2nd July, 1992 by the Division Bench. The respondent-workman raised industrial dispute in the matter of his termination of services which was ultimately referred to the Labour Court, Ahmedabad for adjudication. #. The respondent-workman filed Misc. Civil Application No.1918 of 1992 in L.P.A. No.92 of 1992 for review of the order dated 2.7.92 of the Division bench in the L.P.A. This Misc. Civil Application was rejected by the Division Bench on 24.11.92. The award impugned in the Special Civil Application came to be made as stated earlier, by the Labour Court, Ahmedabad, on 14th August 1998, which was published on 1st September, 1998. #. The petitioner filed this writ petition in this court on 2nd November 1998. It was placed in the court on 9.11.98 for preliminary hearing. The petition was admitted and Mr.Clerk put appearance for respondent and waived service of Rule. Interim relief in terms of para 12(B) subject to the provisions of Section 17-B of the Industrial Disputes Act, 1947, has been granted which continues till this date. The writ petition has been contested by respondent-workman. He filed reply affidavit. The respondent-workman filed further affidavit on 20th November 1998. #. Mr.K.M.Patel, learned counsel for the petitioner contended that in the facts of this case, the conduct of the respondent-workman not to join at transferred place is grave and serious. It is a case where lawful orders of the superior officer were flagrantly disobeyed by the respondent-workman. His services were transferable and when this order has been passed and he could not get any interim relief from this Court, he should have joined at the transferred place. The petitioner has reasonably waited for the outcome of the writ petition filed by respondent-workman but still when he has not joined for considerable long period, taking it to be a serious and grave misconduct, chargesheet has been served. Even after serving the chargesheet, the respondent-workman has not cared to join at transferred place. Worst part is of his conduct not to join at transferred place even after dismissal of Special Civil Application by this Court and that judgment has been confirmed in the L.P.A. also. Till his services were terminated he has not joined at transferred place. The order of transfer of the respondent-workman was held to be valid by learned Single Judge of this court and which decision has also been affirmed by the L.P.A. This is a serious and grave misconduct for which the minimum penalty on proof thereof and which has been proved, was of dismissal of the petitioner from services which has been done in the present case. The Labour Court has found as a fact that termination of services of respondent-workman by petitioner is not invalid or illegal. The Labour Court has recorded finding of fact that it is not a case of unfair labour practice and victimization of the workman. It has also been accepted as a fact that the finding given by the inquiry officer on the charges in the inquiry are not perverse. The Labour Court has not accepted that the respondent-workman has been transferred keeping grudge and victimization against him and inquiry is held. So on merits, Mr.Patel contends that the Labour Court has accepted that the respondent-workman has committed serious and grave misconduct. Inquiry was fairly conducted, the charges were found proved by the inquiry officer and penalty given thereon is correct. After this finding and for grave and serious misconduct, the Labour Court should not have interfered with the quantum of punishment as imposed upon the respondent-workman by petitioner on proof thereof, it is not the case where powers as conferred upon the Labour Court under Section 11-A of the Industrial Disputes Act, 1947, should have been exercised in favour of respondent-workman. It is a case where the respondent-workman has not joined at transferred place. After transfer, his writ petition and L.P.A. have been dismissed and it was not taken to be a case of victimization or unfair labour practice, still the Labour Court has interfered with the punishment and this award has come up as if it is a gift from the Labour Court. Not only reinstatement has been ordered of the workman but 30% backwages have been granted. In his submission, this award is perverse award and it is a case where this Court may interfere with the same and quash and set aside it. In support of his contention, the learned counsel for the petitioner placed reliance on the decision of the Apex Court in the case of Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, reported in AIR 1989 SC 1433 and in the case of Lucas India Service Ltd. v. Labour Court, Madras, reported in 1998(1) LLN 350 (SC). It is lastly contended by Mr.Patel that the award of the Labour Court is wholly perverse. Even if the Labour Court has powers under Section 11-A of the Industrial Disputes Act, 1947, to reduce penalty imposed by the management upon the delinquent employee, in this case, no penalty in fact has been given to the respondent-workman. If the dismissal / termination of the respondent-workman from services was taken to be excessive or harsh or disproportionate, then it should have been substituted by appropriate lesser penalty but it has not been done. Despite of the fact that the Labour Court has accepted that the respondent-workman has committed serious and grave misconduct and further finding given in favour of petitioner but it has in fact granted all the reliefs to the respondent-workman. Withholding of 70% of backwages is not penalty, more so a substituted penalty in place of termination. In such cases, it is always open to the Labour Court to withhold full or partial backwages where the misconduct alleged against the workman has been proved. Withholding of backwages is not one of the enumerated punishments. This award in view of this fact, Mr.Patel contends, is virtually a lottery or a gift from the Labour Court to the workman who has committed grave and serious misconduct and this Court has not granted any relief to him in the writ petition filed by him challenging his transfer order. #. On the other hand, Mr.A.K.Clerk, learned counsel for respondent-workman argued in support of the justification of the award of the Labour Court impugned in this special civil application. It is submitted that the Labour Court is conferred with powers under Section 11-A of the Industrial Disputes Act, 1947 to appropriately substitute its own penalty for the penalty imposed upon the respondent-workman by the employer for proved misconduct. Mr.Clerk submits that it is the discretion of the Labour Court in an appropriate case to reduce penalty. Confronted with the award of the Labour Court, and in this case where no penalty has been imposed upon the respondent-workman for proved misconduct by Labour Court, Mr.Clerk submits that withholding of 70% backwages is a substituted penalty. It is next contended that under Article 227 of the Constitution of India, this Court may not interfere with the just and reasonable award passed by the Labour Court. In his submission, the son of the workman was seriously ill and looking to his illness, it was not possible for him to carry out the transfer order. Because of this reason, on his request, he was brought to Ahmedabad and again he was transferred from Ahmedabad, and for the reason of his illness of his son, he was justified not to carry out the transfer order. In support of his contention, Mr.Clerk placed reliance on the following decisions: - AIR 1979 SC ...30 - AIR 1984 SC 38 - 1996(1) LLJ 488 - 1995(2) LLJ 619 - 1982 FLR 54 (Mad.) - 1982 FLR 765 - 1982 FLR 309 - 1978 FLR 625 (SC) - 1981 FLR 626 - 1994 FLR 870 (Guj.) #. I have given my thoughtful considerations to the rival contentions raised by learned counsel for the parties. #. It is a case in which no dispute can be raised that the services of the respondent-workman were transferable. The respondent-workman was transferred under the order of petitioner dated 3.1.87 from Ahmedabad head office to Bauxite Mines Project Bhatia, District: Jamnagar. This order of transfer has been challenged by petitioner before this court by filing Special Civil Application No.3348 of 1987 which came to be dismissed on 28th December 1990. The Letters Patent Appeal preferred by respondent-workman, i.e. L.P.A. No.92/92 has also been dismissed summarily on 2nd July 1992. On transfer, an employee has three options. First, he has to, on relieving from the transferred place, proceed to join at transferred place, second, to make a representation, or representation-cum-appeal to the higher authorities where he has any grievance or some personal difficulties to carry out the transfer order. However, where he decides to file appeal-cum-representation or representation in the matter, by mere filing of the same, it cannot be taken to be as if the transfer order shall stand in abeyance or that he was not required to carry out the transfer order. If within a joining period permissible to him, the authority has not stayed the transfer order or ordered to keep the same in abeyance, he has to proceed to the transferred place to join the post. In case where the higher authority has granted the stay order or the order was ordered to be kept in abeyance, then he may not proceed to the transferred place. Third, to challenge the transfer order by filing special civil application before this court or where it is appealable by filing appeal to the Gujarat Civil Services Tribunal, where he is a Government servant or any other appropriate redressal forum available in the form of appeal or to approach to the civil court by filing civil suit. Again, by merely filing of the special civil application or application before the tribunal or suit in the civil court, if interim relief has not been granted and thereby he is not protected, it cannot be taken to be a sufficient ground for him not to comply with the transfer order. In the case in hand, the petitioner has opted for third option. Being aggrieved of his transfer order, he filed Special Civil Application No.3348 of 1987 before this Court. From the record of the special civil application, I find that the petitioner was not protected by this court, but still he has not complied with the transfer order. Non compliance of the transfer order by an employee of the Corporation is a serious and grave misconduct. It is insubordination as well as disobedience of the order of superior officers and it is a serious and grave misconduct. For this, rightly the petitioner-Corporation has given chargesheet to him vide memo dated 13th April 1988. Even after giving of the chargesheet, he has not cared to comply with the order of transfer. On 28th December 1990, the special civil application has also been dismissed by this Court. After dismissal of the special civil application, he has not cared to comply with the order of transfer. It is not the case of respondent-workman that in the L.P.A., he has been protected by the Division Bench. This L.P.A. is of the year 1992. The very fact that inquiry has proceeded and ultimately the respondent-workman was dismissed/ terminated from the services under the order dated 6.991 of the Corporation goes to show that in the L.P.A. no interim relief has been granted in favour of the respondent-workman. These facts give out and clearly establish that the petitioner has no respect for rules, regulations, service conditions and he is not a law abiding employee. He is a person who considers himself to be above his superior officers and a judge in his own cause. When the transfer order has been made irrespective of the fact that it may cause difficulties to him to carry out the same but being an employee of the Corporation, if this order has not been stayed or kept in abeyance by the higher officers or he has not been protected by the civil court or this court, it is his legal obligation and duty to carry out the same. He cannot, on the basis of his own difficulties and inconvenience not to carry out or take a decision not to comply with the same. This is clearly a case where the petitioner has acted in a manner not befitting to the employee of the Corporation. Once he has opted for services of the Corporation which are transferable, he has to comply with all the lawful orders of the superior officers unless the same are stayed by the higher officers or by the Court. He cannot take an exception to the order only on the ground that it is not convenient to him to carry out the same. His difficulties or personal inconveniences to carry out the transfer order that can not be made a ground to not comply with it. Being an employee of the Corporation, he has no such discretion. If it was inconvenient to him, or the transfer order caused some inconvenience to him, the only option for him was to leave the services but he could not have taken a decision himself not to comply with this order. Moreover, I fail to see any justification in the conduct and approach of the respondent-workman, when the court has not protected him, not to carry out this order. This adamancy of respondent-workman not to carry out the order even after the court has not protected him goes to show that he took it to be a prestigious issue and he took himself to be above the law and the officers of the Corporation. It was a clear case of grave and serious misconduct and for which the Corporation is perfectly legal and justified to give chargesheet to him vide memo dated 30th April 1988. #. Before proceeding further, here, I may consider it to be appropriate first to deal with the ground given by the learned counsel for respondent-workman not to carry out this transfer order. It is stated that this transfer order causes personal hardship and manifold difficulties and family circumstances were also of such a nature where he could not have carried out this transfer order. To elaborate this, the learned counsel for the respondent states that his son was seriously ill and treatment of ailment from which he was suffering is available in Ahmedabad. For this reason, earlier he was transferred to Ahmedabad and again he could not have been transferred to Bhatia, District: Jamnagar. So in sum and substance the ground is that he has personal difficulties and hardship to carry out this transfer order. ##. This aspect has been projected, pleaded and placed for consideration by respondent before this court in the special civil application No.3348/87. The order of transfer has been challenged on the ground that it will cause inconvenience and difficulties to him. This aspect has been considered by this court and it was not taken to be a ground to quash and set aside the transfer order. The relevant discussion on this point of this court in the decision given in special civil application No.3348 of 1987 decided on 28th December 1990, reads as under: 17. In so far as the second ground of attack on the impugned transfer order is concerned, it may be mentioned that the petitioner has contended in para 7 of the petition that the family circumstances of the petitioner are so compelling which also required interference of this Court against the impugned transfer order. It is an admitted fact that the petitioner was transferred to Ahmedabad from Ambaji Project in 1983, on his request, on personal grounds. His representation to the respondents-management was acceded. The petitioner has further averred in his petition, in para 7, that he was transferred to Ahmedabad on medical grounds, particularly in view of the fact that his son was suffering from serious illness and that his son was required to take treatment in Civil Hospital, at Ahmedabad. It is further contended that the said treatment is not available at any other place. It may be indicated at this stage that mere personal difficulty or family circumstance of the petitioner even if they are assumed to be genuine and correct, would not be ipse dixit sufficient to prevent the management or master from passing transfer orders on administrative exigencies. Could it be conceived even for a moment that the family circumstance and personal hardship could constitute a sufficient and valid ground to quash the transfer order by resorting to the extraordinary remedy provided under Article 226 of the Constitution? The spontaneously answer would be in the negative. Needless to mention that in a case of transferable post, hardship to some extent may be inherent. The person affected by the transfer order may have personal or family difficulties. In such a situation, would it be expedient to encourage the practice of rushing to the Court, invoking the extraordinary provisions of Article 226 of the Constitution of India? Again the answer would be in the negative, it cannot be said that there is no other alternative remedy or forum where his personal difficulty or family difficulty could be shown. Petitioner has not made any representation to the management on this ground which is, now, raised in this petition. It was open for the petitioner to agitate this grievance before the management or the concerned transferring authority. Having not been done or not resorting to such a remedy, the petitioner has challenged the impugned transfer order invoking the aids of the provisions of Article 226 of the Constitution. It is a matter of common understanding that transfer entails at times, some difficulties and hardship to the employee concerned or his/ her family members. But, it would not be proper and advisable to straightway rush to the Court for relief under Article 226 of the Constitution of India. The impugned order came to be passed on 3.1.1987. The petition came to be filed on 10.7.1987. The petitioner has never made any representation to the management against his transfer on the ground of said pressing family circumstances, as alleged, now, in this petition, during the period from 3.1.1987 till 10.7.1987. Therefore, it is contended on behalf of the respondents that under the guise of victimization and/or family circumstances, the petitioner does not want to go out of Ahmedabad. This contention cannot be slightly brushed aside. ##. The decision of this court is very clear and it is binding on the petitioner. This justification furnished by him not to comply with the transfer order is hardly of any substance, merits as well as is of little help to him. ##. The industrial dispute raised by respondent-workman has been referred to the Labour Court, Ahmedabad, and from the award impugned in this special civil application, I find that on merits, it is held by the Presiding Officer, Labour Court, Ahmedabad as under: "I do not accept the argument advanced before me by learned advocate Shri Patel for the applicant on the point that the findings given by the Inquiry Officer in the inquiry are perverse." It is to be noticed here that by filing Purshis ex.10, the respondent-workman has declared and disclosed that he is not challenging the legality of departmental inquiry. The Labour Court recorded findings after properly appreciating and discussing all the facts and evidence and I do not find any perversity therein. The finding of the Labour Court on the question of victimization etc. reads as under: "I do not accept the argument advanced by learned counsel Shri Patel for the second party workman before me that by keeping grudge and victimization against the workman, he was transferred and inquiry is held, in view of circumstances as aforesaid" Transfer of an employee is subject to judicial scrutiny by this Court only on two grounds, namely, (i) where it is as a result of malafide of the authority or (ii) where the authority in making of the same, has violated some statutory provisions. Once this Court, in the special civil application, has considered this aspect and held that the transfer of respondent-workman was not malafide, it was not necessary or obligatory on the part of the Labour Court to go on whether this order has been made as a grudge or victimization against the workman concerned. However, the Tribunal has gone on this question and accepted it to be an order of transfer of respondent-workman simplicitor and not as a result of any malafide or victimization. After these findings of facts, it is a case where the Labour Court should not have interfered with the punishment inflicted on the workman. The respondent-workman has shown flagrant disregard to the order of the superior officer. He has disobeyed the orders to the extent that he has not cared to comply with the order even after