IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13802 of 2004 Date of decision:18.09.2009 M/s Eicher Motors Limited ...Petitioner versus The Presiding Officer, Labour Court, U.T., Chandigarh and another. ...Respondents Present: Mr. Arun Jain, Senior Advocate with Mr. Manoj Bajaj, Advocate, for the petitioner. Mr. Mohan Singh Puri, respondent-in-person. ---- II. Civil Writ Petition No.720 of 2005 Mohan Singh Puri ...Petitioner versus Presiding Officer, Labour Court, U.T., Chandigarh and others. ...Respondents Present: Mr. Mohan Singh Puri, petitioner-in-person. Mr. Arun Jain, Senior Advocate with Mr. Manoj Bajaj, Advocate, for the respondents. ---- CORAM: HON'BLE MR. JUSTICE K.KANNAN 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. I. Scope 1. Both the writ petitions arise out of the same award. By the impugned award, the Labour Court set aside the order of removal of the Civil Writ Petition No.13802 of 2004 - 2 - workman from service and directed reinstatement without back wages. The management is the petitioner in Civil Writ Petition No.13802 of 2004, challenging the direction for reinstatement and the workman had challenged the award in Civil Writ Petition No.720 of 2005 in so far as it had disallowed the back wages to the workman. II. Factual background (a) The transfer order 2. The facts giving rise to the dispute are; the workman had been appointed as an Assistant with the M/s Continental Auto Ancillary Limited (a wholly owned subsidiary of Eicher Goodearth Limited). Admittedly M/s Continental Auto Ancillary Limited was amalgamated with M/s Eicher Tractors Limited, by an order passed by the Hon’ble Delhi High Court. The workman was promoted as a Junior Officer on 01.11.1986. The management was ordered to be transferred to M/s Ramon and Demm, Madras, purported to be one of the subsidiary Companies of Eicher group. The transfer was on an occasion of a vacancy being available in M/s Ramon and Demm which matched with his job profile and since due to a general sluggishness in the economy, certain posts at Parwanoo, where the workman was employed, had to be declared as surplus, it was decided to transfer the workman. (b) The Civil Court interlude 3. The workman did not accept the transfer and he challenged the same before a Civil Court and sought for an interim injunction against the operation of the order of transfer. The interim application was declined by the trial Court on 13.11.1995 and an appeal filed to the Ist Additional District Judge, Chandigarh, was also dismissed on Civil Writ Petition No.13802 of 2004 - 3 - 30.08.1996. A still further revision to the High Court met with the same fate by an order of dismissal on 20.11.1996. Since the workman had not joined the post as ordered, a domestic enquiry was constituted and finding him guilty of misconduct of not reporting for duty and remaining absent, he was terminated from service on 18.03.1997. The civil suit which had challenged the order of transfer was also dismissed on 15.05.1997 as having become infructuous in view of the subsequent termination made. (c ) The industrial dispute 4. The workman raised an industrial dispute complaining of the termination of service and the Labour Court found the order of transfer was illegal and unwarranted to an objection raised by the management that the workman did not conform to the definition as such under the Industrial Disputes Act, the Labour Court held without much discussion that he was a workman. The management assailed the finding of the Labour Court among other grounds contending that the Court had not even adverted to the admissions made regarding the misconduct. III. The principal contentions 5. The workman appeared in person and argued with remarkable verve and articulated the subject involved in the litigation as following within six topics. The learned counsel sought to sustain the judgment of the Labour Court on the finding regarding (i) his status as a workman, (ii) The alleged unjustified nature of transfer, (iii) the unjustified enquiry that led to his termination, (iv) the untenability of the termination order being a non-speaking one, (v) the error committed by Civil Writ Petition No.13802 of 2004 - 4 - the Labour Court in denying to him the back wages and (vi) the gross injustice meted out to him by not providing to him comprehensively whatever he was entitled to under Section 17-B of the Industrial Disputes Act. The discussion with reference to the case shall be dealt with in the same manner as the case is presented by the workman. IV Status as workman 6. On the subject that the claimant was a workman within the definition of Industrial Disputes Act, the controversy could be resolved only with reference to the nature of job which had been assigned to him. In the order of appointment, the claimant’s status was described as an Assistant and it did not detail the exact job description. Even the order promoting the claimant as a Junior Officer on 01.11.1986, is not produced before this Court and therefore, the issue could be considered only with reference to evidence tendered by the workman himself. The workman referred to his own affidavit before the Labour Court tendered in lieu of his chief examination to the effect that he was not authorized to sanction leave, appoint or remove, sign a cheque for payment and distribute work to anyone and working on a clerical cadre only as his functions include book writing, preparation of trial balances, vouchers, audit schedule, verification of cash vouchers, bank reconciliation and cashier job, etc. It was also alleged by him that his seniors used to assign him work. This aspect of his evidence had not been controverted at all in the cross-examination. Further, even the management had through one of its officers had filed an affidavit before the Sub Judge, Ist Class, Chandigarh, before whom the civil suit had been pending, to the Civil Writ Petition No.13802 of 2004 - 5 - effect that the model Standing Orders as applicable to the State of Himachal Pradesh were also being followed in Chennai, which by implication, according to the learned counsel for the workman, would mean that he was only a 'workman'. For otherwise, the provisions of the model Standing Orders would not have been applicable at all. The workman’s job description as spoken to by him clearly sets out a fact that he is a ‘workman’ who will be governed by the provisions of the Industrial Disputes Act and, therefore, I have no difficulty in accepting the contentions of the respondent that he was a workman, although the Labour Court had not examined the issue at length with reference to any documentary or oral evidence tendered by the parties. V. Tenability of transfer order (a) Relevant provisions dealing with Management's power of transfer 7. The alleged unjustified transfer was the key issue that gained attention of the parties for elaborate arguments. The learned Senior counsel appearing for the management, Shri Arun Jain referred at first to the appointment letter which had been issued on 25.05.1983 which contained in clause 12 the following words:- “You will be posted at location given above in the first instance but your services are liable to be transferred and delegated to any other establishment within India as my be directed by the Management from time to time. You will be required to reside at the place where you are posted and will make your own arrangement for residence at that place. You shall keep us informed of any change in your residential address from time to time.” Even the order of transfer that had been issued on 25.07.1995 which ultimately culminated by virtue of failure of the workman to report at the Civil Writ Petition No.13802 of 2004 - 6 - transferred place read as follows:- “This is to inform you that you are hereby transferred to Ramon and Demm Limited (Division of Eicher Tractors Limited) Prince Arcade, IIrd Floor, 22/4, Cathedral Road, Madras-600086, as Asst. Officer in L-V. You are being relieved from your duties at Eicher Tractors Parwanoo (ETP) at the end of the working hours on 25.7.95. You are to report to Mr.V.R.V. Prasad, Manager- Mktg. at RDL, Madras within 10 days of your being relieved from ETP i.e. on 05.08.95. All your wages as being paid at ETP stand protected and any increase as applicable to your grade at RDL will also be applicable to you as per the Company rules. You are entitled to withdraw advance against your TA, DA and transfer expenditure as per applicable to your grade, details of the same can be obtained from Personnel Deptt. ETP. The bills for the same can be submitted at RDL which will make the necessary adjustments.” Admittedly, the workman did not comply with the direction contained in the transfer order and he resorted to a civil suit. The interim directions which were seeking for, were also refused to him. An enquiry had been constituted alleging misconduct against the workman after serving charge-sheets on 26.08.1996 and 28.08.1996. Principally the charges were: (a) non-compliance of the order of transfer issued by the Company amounting to disobedience of the lawful instructions/orders of the management, and (b) absence from duty without leave effective from 06.08.1995. (b) The workman's admitted state of unwillingness 8. Admittedly, the workman had not actively participated in the proceedings and the reason was that he sought for the proceedings to be conducted before Ambala instead of at Chandigarh due to financial constraint and health problems. The management's representative had agreed to disburse the ordinary bus fare from Ambala to Chandigarh on Civil Writ Petition No.13802 of 2004 - 7 - all the dates of hearings, since the Enquiry Officer expresses his difficulty to conduct the proceedings at Ambala. When his plea was rejected, he requested that he shall be permitted to be assisted an Advocate in the proceedings. This plea was also rejected by the Enquiry Officer. The Enquiry Officer declared that he could be assisted by a co- employee and a decision to that effect was also recorded in the proceedings. The workman did not attend the enquiry but instead of proceeding him ex parte in spite of absence on two consecutive dates, he had fixed the proceedings to take place on 07.12.1996 after informing the workman by registered letter sent on 22.11.1996. Again on the third occasion, the workman had absented himself and finding that there was no valid justification offered through any communication for his absence he set him ex parte and proceeded with the hearing and the examination of witness produced by the management. Since the two sets of charges had originated from the same act and some evidence was also necessary, the Enquiry Officer examined Mr. Kalia, who tendered evidence to the effect that the workman had been advised by the letter dated 25.07.1996 to join the Madras office i.e. M/s Ramon and Demm by 06.08.1996 and he was being posted as an Accounts Officer in level-V and pointed out to the fact that two positions in Finance Systems Department in Parwanoo unit had been declared as surplus, while about the same time a requisition had come for an Account Officer for the Madras office and reminders had also been received from the Madras office. Assuring themselves that the workman had not joined at the Madras office any time during the months of April to October, 1996 and also after Civil Writ Petition No.13802 of 2004 - 8 - ascertaining that there was no order of a Civil Court making any restraint against the management for transferring him, the management contended that the misconduct attributed had been proved. The Enquiry Officer found that there had been no willingness of the workman to join duty and as a person, who was under an obligation to obey the rightful instructions of his superiors, had chosen to remain absent from duty without authorization and held that both the charges namely, disobeying the orders of the superiors and the absence from duty without authorization as having been willfully established. (c ) Effect of flouting a valid order of transfer-Management's perception. 9. The Enquiry Officer’s report had been sent to the workman along with letter dated 16.01.1997. The response by the workman was one of justification of his own conduct by urging that the order of transfer was incompetent and finding that the reply to be unsatisfactory, the Company had chosen to dismiss him from service with immediate effect by an order dated 18.03.1997. The learned counsel appearing for the management, therefore, would contend that having regard to the fact that the power of transfer had been specifically retained by the management and even the initial order of appointment provided that the workman was occupying a transferable job, the failure to report at the transferred place was clearly unjustified and constituted a serious misconduct. The learned counsel refers to the decision of the Hon’ble Supreme Court in State Bank of India Versus Anjan Sanyal and others- JT 2001(5) SC 203. The case dealt with the provisions of Section 43 of the State Bank of India Act and the relevant rules relating to the power of Civil Writ Petition No.13802 of 2004 - 9 - the employer to transfer and the effect of failure of the workman to join the duty. The Hon’ble Supreme Court has held:- “The entire fact situation unerringly point out to one fact namely the respondent flouted the orders of transfer, did not join the place of posting, did not apply for or take leave for his absence, did not discharge his duties, and yet the High Court in exercise of its discretionary jurisdiction, not only set aside the order of transfer on a pretext which does not appeal to us with regard to the non- communication of the orders of transfer and even directed that the respondent would be entitled to his salary, increment, promotion and then only, could be considered for further transfer to anywhere else. To us, it appears that the High Court has granted premium to an errant officer, who did not obey the orders of transfer and did not discharge any duty for which conduct of his, he could have been proceeded with, in a departmental proceeding on the charge of gross misconduct and could have been punished.” The learned counsel refers to this decision by pointing out that the conduct of a workman in not joining the place of posting would amount to an officer not willing to discharge his duty and the charge of such gross misconduct leading to dismiss him from service could not be interfered by a Court. The learned counsel appearing for the management also pointed out that the workman had not alleged anywhere that there was any mala fides attached to the order of transfer. If the post was transferable and the power of transfer could also be seen to reside with the management, there being no challenge on the grounds of transfers legally vitiated, the Labour Court could not have held that the order of transfer was illegal. The learned counsel, therefore, sought for reversal of the decision as regards the validity of the transfer order and the justification of the management to terminate his services when the workman had brazenly defied the order of transfer. Civil Writ Petition No.13802 of 2004 - 10 - (d) Justification for workman's refusal-workman's perception 10. The workman has sought to contend several sub issues on the alleged unjustified nature of transfer. According to him, the person, who is incharge of the Unit where he was working was nowhere connected with the General Manager, M/s Ramon and Demm at Madras. The transfer constituted a change of service conditions and he seeks to draw strength at his arguments by reference to the contentions of the management in their objections filed before the Labour Court when it stated that there were specific General Mangers, who were duly authorized for each business unit and were also authorized to appoint, terminate and take all important decisions. The contention was, therefore, the person, who appointed him, cannot be a person, who can terminate him, if he joined in another business unit of the respondent establishment. Referring to Section 2(ka), the workman sought to contend that the Unit at Chennai was a different industrial establishment and the terms and conditions of employment would be changed if he was to be transferred, which meant another employer and the transfer was not merely what was contemplated in the terms of appointment originally but setting up a new employer in their own place. His contention was that the General Manager of ETL, Parwanoo was not competent to transfer from one division to another division in the absence of rules and regulations of the Company for inter-divisional transfers. According to the petitioner, a mere clause for transfer in order of appointment would not do. The entire salary structure/salary package for both the divisions were different and the rules governing the service of the employees were Civil Writ Petition No.13802 of 2004 - 11 - also different. The workman would contend that he was appointed and confirmed by Parwanoo division of the Company by its General Manager and was getting a salary only from there. He had held a divisional cadre post and was entitled for future growth on the basis of his seniority in the division and as such, the inter-divisional transfer was invalid and illegal, being without his consent. (e) Present dispensation on the issue of transfer. 11. Most of the contentions which were raised by the workman seem to be wrought out of mere apprehensions. A transfer itself cannot be termed to be a condition of service. The change of conditions of service as contemplated in Section 9-A refers to the subjects as found in schedule IV of the Industrial Disputes Act. The schedule does not include transfer as one of the subjects constituting a change of service. The order of transfer specifically states that his salary was protected. It also states that any increase as applicable to his grade at RDL would be applicable to him as per Company rules. There is no definite evidence available to show that the career prospects were in any way sullied by a transfer from Himachal Pradesh to Madras. Even the issue that the General Manager, who had appointed him in Parwanoo, could not retain control over him and that the General Manager at Chennai alone would be the person, who would henceforth be the authority to take action against him for removal, ought not to be an issue that the workman could raise for objecting to transfer. The inter-division transfers, if they have not been provided for at all, it shall be impermissible. But here, in this case, the order of appointment specifically states that the workman shall Civil Writ Petition No.13802 of 2004 - 12 - be liable for transfer to any part of India. I have already pointed out that clause 12 of the appointment letter states specifically that he may be delegated to any other establishment within India as directed by the management from time to time (emphasis supplied). The place of transfer could, therefore, be to any other establishment or Branch and could also be to any place within India. The expression is wide enough to allow for transfer from one division to another. The attempt of the workman was, therefore to show the incidence of the order of transfer as a 'unfair labour practice'. He would point out to Schedule V, Entry 7 that details of acts that shall fall within the category which includes transfer in serial No.7. The claim statement states that the management was victimizing the workman by the order of transfer. The elaborate contentions raised in para 5 of the statement about the alleged discrimination, the victim of the workman the denial of promotion, the change in pay structure go without any substantiation. The workman did not avail of the opportunity before the Enquiry Officer and the workman could not have hoped to start a fresh finding from the Labour Court, without successfully assailing that the enquiry was not fair or proper. If he had a reason to suspect that the management was looking for a ruse, it ought to have been established by the workman. At least, the management had a reason to give for a transfer. It had specifically explained the circumstances under which the order of transfer had been made. In the counter filed to the claim statement, the management had stated that the Company was multi product, multi business unit having its Units in Faridabad, Alwar, Parwanoo and Madras and having Civil Writ Petition No.13802 of 2004 - 13 - marketing offices across the country. The Company needed to post the employees in all the locations and it was Company's policy to fill the various vacancies first out of the employees available internally among the existing employees declared as surplus. This kind of practice was said to be very common and prevalent in various industries where vacancies available in different locations, would be first filled up through internal resources in order to accommodate the surplus manpower within the Company in other business units. It is pointed out that when the workman had not joined at M/s Ramon and Demm unit, they had got another person namely R.Thayagarajan working in Pithampur (Andhra Pradesh) to go and join at Madras (Chennai as it is now). 12. The management had also placed the records before the Labour Court, which were letters and reminders, received from M/s Ramon and Demm on 13.01.1995, 20.02.1995. 18.03.1995, 15.04.1995 and 10.05.1995 requesting the Parwanoo unit to send a suitable candidate for the Accounts Office vacancy in Madras. The justification, which the management had given for transferring the workman to Madras to one of their own manufacturing units, ought to be taken merely as a management's policy which the Court cannot doubt. At least, there were no instances immediately in the past which could be identified as working in the mind of the management to pitch-fork him to Chennai. The workman refers to several decisions of the Hon'ble Supreme Court and decisions of other Courts where Courts have interfered of transfers wherever they found that they amounted to unfair trade practice. He also refers to Himachal Pradesh Industries Standing Orders which includes Civil Writ Petition No.13802 of 2004 - 14 - after Item No.10 of the schedule of the Industrial Establishment Standing Orders Act, 1946, transfer as falling within the serial No.10 (a)(iv). The Model Standing Orders concerning transfer refers to the fact that a workman may be transferred according to the exigencies of work from one shop or department to another or from one station to another or from one establishment to another under the same employer; provided that the wages, grade, continuity of service or her conditions of service of the workman shall not adversely be affected by the transfers; provided further that the workman is transferred from one job to another which he is capable of doing; provided further that a reasonable notice is given to such workman and reasonable joining time is allowed in case of transfer from one station to another. 13. It may be noticed that the transfer itself is not barred under the Model Standing Orders. All that is required to be done is that sufficient notice and time shall be given to enable a workman to relocate himself to another place. The workman had been granted 10 days' time to join and when he had not joined, there were several reminders to him which only showed that they had not closed their options and were extending further time to the workman to join at Chennai. The workman himself had not complained against the transfer as being done without adequate notice or