IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.9.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.3288 of 2009 P.Mani .. Petitioner Vs. 1. The Presiding Officer Labour Court Coimbatore. 2. The Management State Express Transport Corporation Goundanpalayam Coimbatore 641 030. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records from the first respondent pertaining to the award dated 28.2.2006 passed in I.D.No.101 of 2000, quash the same and consequently direct the second respondent to reinstate the petitioner with continuity of service, back- wages and all other attendant benefits. For Petitioner : Mr.R.Krishnasamy For Respondents : Mr.M.Ravi Bharathi for 2nd respondent ORDER The petitioner has filed the present writ petition challenging the award passed by the first respondent/Labour Court, Coimbatore in I.D.No.101 of 2000, dated 28.2.2006. By the impugned award, the Labour Court refused to grant any relief to the petitioner and upheld his non employment with effect from 1.5.1994. 2. The writ petition was admitted on 25.2.2009 and notice was served on the second respondent/Corporation, which is represented by a counsel. 3.1. The facts leading to the filing of the writ petition are as follows: The petitioner was appointed by https://hcservices.ecourts.gov.in/hcservices/ the second respondent/ Corporation. Initially, he was employed on daily wages basis as a Driver and subsequently, on completion of 240 days of service, he was brought under the regular time scale of pay by order dated 22.2.1994. 3.2. Subsequently, the State Government formed a separate Corporation by G.O.Ms.No.796, Transport Department, dated 7.5.1993. The Express Transport Corporation was bifurcated and a new Corporation by name J.J. Transport Corporation was formed by the Government and without taking the consent of the petitioner, by an order dated 9.4.1994, the workmen were directed to be transferred to J.J. Transport Corporation. The petitioner, who was originally allotted to Coimbatore Depot, was transferred and posted to Ooty Depot of the new Transport Corporation. 3.3. Therefore, the petitioner sent a representation dated 19.7.1994 protesting against his transfer and also requested that he should be retained in the second respondent/Corporation. When no reply was forthcoming, he caused a legal notice through his counsel on 23.3.1998 and a further legal notice on 6.7.1998 and when there was no reply forthcoming, the petitioner raised an industrial dispute under Section 2A(2) of the Industrial Disputes Act (for short, "the ID Act") before the Conciliation Officer. The Conciliation Officer, after notice to the second respondent/Corporation, expressed his inability to bring about any mediation and accordingly, gave a failure report. On the strength of the failure report, the petitioner filed a claim statement before the first respondent. 3.4. The said dispute was taken on file as I.D.No.101 of 2000 and on notice from the Labour Court, the second respondent/Labour Court filed a counter statement dated Nil. In the counter statement, it was admitted that the State Government has formed a separate Corporation by G.O.Ms.No.796, Transport Department, dated 7.5.1993 and it is claimed that the petitioner was liable to be transferred. It is stated that when option form was given for joining the newly formed Transport Corporation, namely J.J. Transport Corporation, there were very few takers and the persons who opted to get transferred were first transferred to the new Corporation and thereafter, since there were not many volunteers, the junior most persons as per the seniority, instead of being ousted from service from the Express Transport Corporation, were transferred to the new corporation. The petitioner was relieved by the transfer order to join in the new Corporation on 30.4.1994, but he did not join at the newly formed Transport Corporation and in respect of the alleged non employment from the year 1994, he has raised a dispute only after four years in the year 1998 and hence, he was not eligible for any relief. 3.5. Before the Labour Court, on behalf of the petitioner, he had examined himself as W.W.1 and on his side, 8 documents were filed https://hcservices.ecourts.gov.in/hcservices/ and marked as Exx.W1 to W8. On the side of the second respondent/ Corporation, the transfer order was marked as Ex.M1 and on their side, one Meenakshi Sundaram was examined as M.W.1. 3.6. The Labour Court framed three issues, which are as follows: (i)Whether the petitioner refused to obey the transfer order dated 9.4.1994 on the ground it is illegal or the respondent orally terminated the petitioner from service from 1.5.1994 onwards? (ii)Whether the claim of the petitioner under Section 2A (2) of the ID Act is maintainable in law? and (iii)Whether the petitioner is entitled to a reinstatement with continuity of service, with full back-wages and other attendant benefits? 3.7. The Labour Court held that the worker was contenting that he was not liable to be transferred from one Corporation to another Corporation and he never pleaded that the second respondent refused employment with effect from 1.5.1994. Even in the legal notice sent by him, the fact that he was refused employment with effect from 1.5.1994 was not pleaded and therefore, his contention that he was orally terminated from service was not acceptable. It was held that since the petitioner himself has stated that he did not obey the transfer order on the ground that it was not in accordance with the Standing Orders, the question as to whether the petitioner was right in refusing to obey the transfer order, since the same was illegal, cannot be a ground raised in a petition under Section 2A(2) of the ID Act and therefore, in the light of the above, the Labour Court held that there was no case for interference. It is challenging the said award, the writ petition came to be filed. 4. The approach of the Labour Court in the present case is thoroughly unwarranted. When a dispute is raised under Section 2A of the ID Act, the Labour Court will have to find out whether there was any non employment due to the volition of the employer, in which case whether the non employment was justified or not. In the present case, in the counter statement filed by the second respondent, in paragraph (8), it is clearly stated that the petitioner was relieved from the second respondent/ Thiruvallur Transport Corporation so as to join the new Corporation on 30.4.1994, in which case, the mere act of relieving the petitioner from the rolls of the employer itself can constitute a non employment and that can be construed as a termination because from the date of relieving he will not be entertained as an employee in the then Thiruvallur Transport Corporation. The approach of the Labour Court was not consistent with any industrial jurisprudence. 5. Since the present case did not arise out of any reference under Section 10(1) of the ID Act, the Labour Court will have to https://hcservices.ecourts.gov.in/hcservices/ construe the lis between the parties on the basis of the pleadings of the parties and once it determines the triable issue in terms of Section 10(4) of the ID Act, the Labour Court will have to adjudicate on the points or matters incidental thereto. 6. The Courts have held that even in a reference under Section 10(1) of the ID Act, the industrial adjudicator must attempt to construe the reference not too technically or in a pedantic manner, but fairly and reasonably, vide Express Newspapers (P) Ltd. v. Workers, AIR 1963 SC 569 : (1962) 2 LLJ 227. 7. The Supreme Court in Delhi Cloth and General Mills Co. Ltd. v. Workmen, AIR 1967 SC 469 : (1967) 1 LLJ 423 has held that the Court must look into the pleadings of the parties to find out the exact nature of the dispute. 8. If it is seen in the said context, the Labour Court has failed to see the real dispute between the parties. In the present case, since the petitioner did not obey the order of transfer, he stood relieved from service with effect from 30.4.1994 and thereafter, there is no work for him in the erstwhile Thiruvallur Transport Corporation and he has no inclination for new employment wherein his services were sent without consent. Therefore, the question that must be framed by the Labour Court was whether the action of the erstwhile Thiruvallur Transport Corporation in unilaterally transferring the petitioner's service to some other Corporation, which means a new employer, is legally valid. If the question was framed in that manner, the Labour Court would have answered the question in favour of the petitioner and thereafter, would have granted appropriate relief to the workman. 9. In industrial law, there is no question of transfer of contract of service from one employer to another employer. The Supreme Court in Pyarchand Kesarimal Porwal Beedi Factory v. Omkar Laxman Thenge and others, AIR 1970 SC 823 : (1970) 1 LLJ 492, after referring to many English decisions, held that the transfer of contract of service from one employer to another employer is unknown to the law of contract and in such circumstances, if there is any necessity for sending from one employer to another employer, the issue should be resolved by a tripartite contract, wherein not only the consent of the new employer but also the consent of the employee must be obtained and in the absence of any consent for transfer of employment to another employer, the transfer will be clearly illegal and inoperative. 10. A similar question came to be considered by the Supreme Court in Jawaharlal Nehru University v. Dr.K.S.Jawatkar and others, AIR 1989 SC 1577 : 1989 Supp (1) SCC 679. Though the Supreme Court did not refer to the earlier judgment in Pyarchand Kesarimal Porwal Beedi Factory case, supra, it granted relief on the basis of the https://hcservices.ecourts.gov.in/hcservices/ similar principles. In that case, the Supreme Court also held that in the event of transfer being inevitable and there being no volunteers, then the authorities can resort to retrenchment on the basis of last-come-first-go. 11. In the present case, it is admitted by the second respondent that when they asked for option there were very few takers from the workers and those of the workers who opted to go to the new Corporation were immediately transferred and posted and thereafter, as there were still surplus staff, in order to avoid retrenchment, the workers were forced to go to the new Corporation. 12. It must be noted that both the Thiruvallur Transport Corporation and the newly formed J.J. Transport Corporation were two separate government companies and will have to be considered only as different employers, as each company has its own corporate seal and a separate identity and admittedly, the petitioner had not opted to serve the new employer. 13. Even under Section 25FF of the ID Act it is provided that if there is a transfer of an undertaking, it should be based upon either agreement or operation of law and in such cases alone the transfer can be effected, wherein the proviso to Section 25FF provides for contingencies under which the main provision will not apply. In the present case, there is neither agreement nor operation of law involved. 14. Therefore, in the light of the above, the impugned award is liable to be set aside and it should be deemed that the petitioner was relieved from service and in effect his services have been terminated on account of his transfer to the newly formed Corporation with effect from 30.4.1994 and that date should be construed as the date of non employment. 15. No doubt, a transfer whether legal or illegal cannot be a subject matter of a dispute under Section 2A(2) of the ID Act, but if an illegal transfer results in termination or non employment, certainly the jurisdiction of the Labour Court under Section 2A(2) of the ID Act is very much available. Hence, it is hereby declared that the non employment of the petitioner with effect from 30.4.1994 is illegal and consequently, he is entitled to reinstatement with continuity of service. 16. With reference to the back-wages, it must be noted that the Labour Court itself in paragraph (9) stated that the petitioner has raised a dispute after four years and therefore, for the period when he has not activated the dispute the employer is not expected to pay https://hcservices.ecourts.gov.in/hcservices/ any salary for the aforesaid period. At the same time, the dispute cannot be rejected merely on the ground that there was a delay in raising a dispute. At the maximum the delay in raising a dispute will have a bearing on the quantum of back-wages that may be paid in case the Labour Court holds that the non employment was not justified. 17. It has been held in Karan Singh v. Haryana State Marketing Board, (2007) 14 SCC 291 : (2008) 1 LLJ 289 that a reference cannot be invalidated on the ground of delay in raising a dispute and the Tribunal or the Labour Court has no authority to invalidate a reference. 18. But, at the same time, the petitioner is not entitled to wages for the period for which he never raised any dispute. The dispute was raised after a period of four years after his non employment. 19. In view of the above, while setting aside the award, this Court hereby directs the second respondent, which is a successor Transport Corporation to the Thiruvallur Transport Corporation, to reinstate the petitioner with continuity of service and other attendant benefits, but back-wages will be paid only from the year 1998 and he will be paid 50% of the back-wages for the period of his non employment. The writ petition is allowed to the extent indicated above. No costs. sd/- Assistant Registrar True Copy/- Sub Assistant Registrar sasi To: 1 The Presiding Officer Labour Court Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2 The Management State Express Transport Corporation Goundapalayam, Coimbatore 641 030 +1 CC to Mr.V. Ajay Khose, Advocate Sr 59261 +1 CC to Mr.M. Ravi Bharathi, Advocate Sr 59616 W.P.No.3288 of 2009 PA – Co KV- 10/10/2011 https://hcservices.ecourts.gov.in/hcservices/