IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON'BLE MR. ANIL R. DAVE, THE CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY TUESDAY, THE ELEVENTH DAY OF AUGUST, TWO THOUSAND NINE WRIT APPEAL No.1261 of 2001 Between: The Workmen of State Bank of India, rep., by SBI Staff Association, Hyderabad Branch by its President, P. Venkateswar Rao & another. … Appellants And Industrial Tribunal, Hyderabad, Chandralok Complex, Exhibition Grounds Road, Hyderabad & another. … Respondents Counsel for the appellants : Sri V. Srinivas Counsel for the respondents: Sri K. Gopala Krishna Murthy This Court made the following: THE HON'BLE MR. ANIL R. DAVE, THE CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL No. 1261 of 2001 JUDGMENT:- (Per C.V.NAGARJUNA REDDY, J) This writ appeal arises out of order dated 26.04.2001 in WP.No.16313 of 1993, whereby the learned Single Judge declined to interfere with award dated 19.07.1993 made in I.D.No.7 of 1988 on the file of Industrial Tribunal, Hyderabad, respondent No.1 herein (for short, 'the Tribunal') and dismissed the writ petition filed by the appellant. The appellant joined respondent No.2 – Bank as a cashier in the year 1966. On his request, he was transferred to Ramachandrapuram Branch in East Godavari District in the year 1970. He was allowed to continue in the said branch till 03.08.1982 and was transferred to Itchapuram Branch in Srikakulam District by an order passed on the said date. The appellant raised the validity of his transfer before conciliation officer. As the conciliation failed and the matter was not referred to the Tribunal, the appellant's association filed WP.No.7554 of 1984 in this Court. While the said writ petition was pending, respondent No.2 issued notice to the appellant on 05.06.1985 directing him to report for duty at Itchapuram branch within 30 days from the date of the said letter and also to furnish explanation for his unauthorized absence stating therein that if he fails to submit his explanation, his absence will be deemed as voluntary vacation in terms of Chapter XVI para 2 of the 4th Bipartite Settlement dated 17.09.1984 (for short, “the Bipartite Settlement”). The appellant's wife received the said notice. As the appellant failed to join the duty even after expiry of the time stipulated in the said notice or submitted his explanation therefor, his name was deleted from the muster roll of the Bank and the same was published in the newspapers. The appellant raised an industrial dispute, which was referred to the Assistant Labour Commissioner (Central) and as the conciliation failed, the Government of India referred the matter to the Tribunal under Section 10(1)(d)(2A) of the Industrial Disputes Act, 1947 (for short, 'the Act') with the following reference. “Whether the action of the management of State Bank of India, in treating the absence of Sri M.V. Naidu, Assistant Head Cashier, as voluntary vacation of employment with effect from 23.07.1985 is justified? If not, to what relief is the workman entitled?” Before the Tribunal, evidence was adduced on behalf of both the sides. While the appellant examined himself as WW.1 and got Exs.W.1 to W.8 marked, on behalf of respondent No.2 – Bank, 5 witnesses were examined and Exs.M.1 to M.21 were marked. On an analysis of the oral and documentary evidence, the Tribunal concluded that the transfer order was effected on administrative grounds and consequently the same was legal and valid, that as the appellant failed to report to duty at the transferred place, respondent No.2 rightly invoked clause XVII of the Bipartite Settlement and that the said action of respondent No.2 does not suffer from any illegality calling for its interference. This award was questioned in WP.No.16313 of 1993, which was dismissed by the learned Single Judge. Assailing the said order, the appellant filed the present writ appeal. At the hearing, Sri V. Srinivas, learned counsel for the appellant, submitted that the appellant had valid reason for not reporting to duty at the transferred place because the transfer itself was effected contrary to circular dated 23.07.1980 and the Bipartite Settlement, which was made the basis for declaring voluntary cessation of employment by the appellant, was entered into under Section 18(1) and not under Section 12(3) of the Act and that therefore such a settlement is not binding on the appellant, who does not belong to the Union, which entered into the said settlement. Sri K. Gopala Krishna Murthy, the learned Standing Counsel for respondent No.2, opposed the abovementioned contentions of the learned counsel for the appellant and submitted that the appellant, having failed to join duty at the transferred place and offer any justification whatsoever for not reporting to duty, is not entitled to any relief. He also submitted that the award of the Labour Court does not suffer from any error for being interfered with by this Court. We have carefully considered the respective submissions of the learned counsel for the parties. The facts that the appellant was transferred from Ramachandrapuram to Itchapuram branch after having been allowed to serve at the former place for 12 years and that the appellant has neither obtained leave nor reported to duty at the transferred place are not in dispute. The only justification, which was sought to be given by the appellant, was that his transfer was contrary to the circular issued by respondent No.2 – Bank, which, according to him, entitles him to remain at Ramachandrapuram, the place where he was working as Clerk after forgoing his promotion. We have carefully gone through the said circular and we do not find anything in the said circular, which allows an employee, who foregoes his promotion, to remain at the same place without being transferred forever. On the other hand, para 536 of the Sastry Award, which admittedly binds all the employees of respondent No.2 – Bank and a reference to which was made by the Tribunal in its award provides that even in the case of workmen not belonging to subordinate staff as far as possible there shall be no transfers outside the State or the language areas in which an employee has been serving. Thus, while the circular on which the appellant placed reliance does not contain any bar on the employer to transfer its employee, who had exercised his option to give up the promotion, to transfer to a different place at a later point of time, the limited safeguard that was provided to the subordinate staff apart from the workmen, is confined to prohibition of transfer outside the State or the language areas in which the employees are serving. Therefore, we do not find force in the submission of the learned counsel for the appellant that since the transfer itself was illegal, respondent No.2 – Bank ought not to have invoked clause XVII of the Bipartite Settlement and declare that voluntary cessation of employment occurred in case of the appellant. We may note that the appellant has not raised the issue of validity of transfer till he approached the Tribunal. It is not the case of the appellant that either he applied for leave or raised the issue before respondent No.2 for about six years till the industrial dispute was raised before the Tribunal. In our considered view, the Tribunal has not committed any legal error in holding that the appellant's transfer did not suffer from any illegality. With regard to the second contention of the learned counsel for the appellant, namely; that the Bipartite Settlement does not bind the appellant, we find that no such contention was raised by the appellant in his claim statement filed before the Tribunal. The learned counsel for the appellant, however, invited our attention to the written argument. In our view, in the absence of specific plea raised in the claim statement and anything on record to show that such a plea even if not raised was actually argued before the Tribunal, it is not permissible for the appellant to raise the same for the first time in the writ proceedings. When once the Bipartite Settlement applies to the case of the appellant, it cannot be said that the declaration by respondent No.2 that the appellant voluntarily ceased to hold employment under clause XVII of the said settlement does not suffer from any illegality because it is an admitted fact that all the ingredients of the said clause are satisfied for respondent No.2 to hold such a declaration. On a careful consideration of the entire facts and the material on record, we are of the firm opinion that neither the Tribunal nor the learned Single Judge has committed any error apparent on the face of the record warranting our interference in exercise of our letters patent jurisdiction. For the abovementioned reasons, we find no merit in the writ appeal and the same is accordingly dismissed. As a sequel to dismissal of the writ appeal, WAMP.No.2585 of 2001 is dismissed as infructuous. ANIL R. DAVE, CJ C.V. NAGARJUNA REDDY, J Date: 11.08.2009 ES