bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5621 OF 2008 PETITION NO. 5621 OF 2008 PETITION NO. 5621 OF 2008 Mrs.Sangita Anand Deo ... Petitioner v/s 1. Shri Mahila Griha Udyog Lijjat Papad & 2 ors. ... Respondents Petitioner in person. Mr.A.V.Anturkar i/by Sugandh B. Deshmukh for the respondent Nos.1 & 2. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 13TH AUGUST, 2008 13TH AUGUST, 2008 13TH AUGUST, 2008 P.C. P.C. P.C.: 1. Rule. Rule made returnable forthwith by consent. 2. The petitioner, who appears in person, has challenged the order passed by the Industrial Court in Complaint (ULP) No.421 of 2007 on 17.7.2008 rejecting her application for interim relief. This litigation has a checkered history. The petitioner was terminated from service on 20.7.2002 after working from 31.10.1998. Aggrieved by the decision of the respondents, the petitioner filed Complaint (ULP) No.491 of 2002 challenging her dismissal from service before the Labour Court. Interim relief was granted to the petitioner of 2 payment of Rs.2000/- per month. Revision applications were filed by the respondents as well as the petitioner. The Industrial Court by its order dated 7.1.2003 confirmed the interim relief granted by the Labour Court. Aggrieved by the decision of the Industrial Court, the respondents preferred a writ petition against that order before this Court which was rejected. An L.P.A. filed by the respondents met with the same fate on 20.11.2003. 3. A preliminary issue was raised by the respondents that the petitioner is not a workman as defined under Section 2(s) of the Industrial Disputes Act read with 3(5) of the M.R.T.U. & P.U.L.P. Act. This contention was negatived by the Labour Court by concluding that the petitioner is a workman. It also held that the enquiry instituted against her was not fair and proper. Again the respondents filed a revision application before the Industrial Court which was rejected. Finally, the Labour Court disposed of the complaint on 10.7.2006 directing the petitioner to be reinstated in her original post with continuity of service and full back wages together with all consequential benefits w.e.f. 20.7.2002. Aggrieved by this decision of the Labour Court, the respondents approached the Industrial Court by preferring a revision application. This application 3 was dismissed by the Industrial Court. 4. The respondents carried the matter further to this Court by preferring Writ Petition No.1021 of 2007. The petition has been admitted on 13.3.2007. The learned counsel appearing for the respondent i.e. the petitioner in Writ Petition No.1021 of 2007 made a statement that the respondents were not willing to reinstate the petitioner herein in service. He also stated that the post of Social Worker stood abolished and hence the petitioner herein would be assigned work of a comparable status. Half the back wages were directed to be deposited in this Court. As the amount deposited was not correct, a civil application was moved by the petitioner in that writ petition. Certain orders were passed on 30.8.2007, directing the deposit of the amount computed by the petitioner and payment of monthly wages at the rate specified by the Industrial Court. Immediately thereafter on 22.9.2007, the petitioner was informed that she had been transferred to the Islampur Branch of the organisation w.e.f. 24.9.2007. The petitioner, therefore, approached the Labour Court by filing Complaint (ULP) No.421 of 2008 under Items 3 and 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971. A preliminary objection was raised by the respondents contending that the petitioner was not a workman and 4 that therefore was not entitled to any interim relief. 5. The Industrial Court by the impugned order dated 17.7.2008 has held that the petitioner was not a workman and that the petitioner was not entitled to any interim relief as, prima facie, the transfer was not malafide. The petitioner has, therefore, preferred the present writ petition. 6. The main contention raised by the petitioner is that the Industrial Court has held that she is not a "workman" despite the fact that in the earlier complaint i.e. in Complaint (ULP) No.491 of 2002 the Labour Court had held that she was a "workman" as defined under Section 2(s) of the Industrial Disputes Act read with Section 3(5) of the M.R.T.U. & P.U.L.P. Act, 1971. This order had been confirmed by the revisional Court and, therefore, according to the petitioner, the order was binding on the Industrial Court. Although a writ petition had been admitted, the orders of the Labour Court and the Industrial Court had not been stayed and consequently the Industrial Court in the present complaint was bound by those orders. The petitioner then submitted that the order transferring her to Islampur is nothing short of an act of victimization and is malafide and, therefore, it was necessary to grant 5 her interim relief. She submits that the chronology of the events which have occurred after she was dismissed from service would indicate that the order has been issued with an ulterior motive and only in order to deprive the petitioner of her right to ventilate her grievance against the respondents in the Court. She also submits that her appointment order does not contain a condition of transfer and, therefore, her job is not transferable. The petitioner points out that the Industrial Court has erred in observing that she has accepted a transfer from the Central Office where she was posted, to Nalasopara and that therefore, she was estopped from challenging her transfer from Central Office to Islampur. According to her, the order dated 20.3.2007 issued by the respondents directing her to join Nalasopara Branch was an interim arrangement made "for the time being". She submits that although she was directed to work in different parts of India on some occasions, it was for a maximum period of four days. She points out that she was never transferred to those stations and in fact no other woman working in a similar capacity with the respondents was ever transferred from the station at which she was appointed. She, therefore, submits that the pending litigations in Court between the parties have motivated the respondents to transfer her. She submits that, in fact there are other 6 grievances that she has regarding non-payment of salary, including bonus which she can claim only by filing proceedings in Court as the respondents have refused to pay her those amounts as well. 7. Mr.Anturkar, advocate for the respondents concedes that he does not support the findings of the Industrial Court that the petitioner is not a "workman" inasmuch as the Industrial Court ought not to have taken a different view when the Labour Court in Complaint (ULP) No.491 of 2002 had already held that the petitioner was a "workman". However, as regards the other findings of the Industrial Court that the petitioner is not entitled to any interim relief pending the complaint, the learned advocate submits that transfer is an incidence of service and the petitioner cannot claim that she should not be transferred only because the appointment letter issued to her does not contain the condition. He buttress this argument by placing reliance on the judgment of the Supreme Court in the case of Pearlite Pearlite Pearlite Liners Liners Liners (P) Ltd. v/s Manorama Sirsi, reported in (2004) (P) Ltd. v/s Manorama Sirsi, reported in (2004) (P) Ltd. v/s Manorama Sirsi, reported in (2004) 3 SCC 172. SCC 172. SCC 172. The learned advocate submits further that the petitioner cannot contend that because she is a woman she should not be transferred to places outside Mumbai as in the past she has been transferred on several occasions to places like Kutch, Bhuvaneshwar, 7 etc. He submits that the Industrial Court has rightly held that the transfer to Islampur is not necessarily motivated and malafide because of the cases filed by the petitioner against the respondents. He urges that it is for the employer to decide how to deploy his staff and organise his business effectively. 8. A perusal of the order of the Industrial Court indicates that by deciding that the petitioner is not a workman, the Industrial Court has shown judicial indiscipline. The Industrial Court has picked up stray sentences from the evidence led before the Labour Court in Complaint (ULP) No.491 of 2002 and has concluded that the petitioner is not a workman, ignoring the fact that the Court has already decided this issue. It is surprising that the Industrial Court has embarked on an enquiry as to whether the petitioner is a "workman" when the issue was no longer res integra between the parties. Merely because the petition has been filed against the orders of the Labour Court in Complaint (ULP) No.491 of 2002 and the Industrial Court in the revision application filed against that order, it would mean that the issue can be re-agitated and reconsidered by the same Court. In fact, principles analogous to res judicata also apply to the industrial adjudication. It is well settled now that the principles of res judicata 8 operates on the Court. The Court is prohibited from trying an issue which was directly and substantially in issue between the same parties in earlier proceedings. There is no dispute that the Court which heard the matter i.e. the Labour Court was a competent Court and the matter had been heard finally decided by that Court and confirmed by the Industrial Court in revision. Therefore, in my view, the order of the Industrial Court holding that the petitioner is not a "workman" shows scant respect for settled principles of law and smacks of judicial impropriety. What could have caused the Industrial Court to embark upon such an enquiry is something which is unfathomable. Therefore, that part of the order where the Industrial Court has concluded that the petitioner is not a "workman", is set aside. 9. Now the question which remains is, whether the petitioner is entitled to any interim relief as regards her transfer from the Central Office to Islampur. The history of the litigation between the parties indicates that, prima facie, the transfer order has been issued motivatedly and malafide. Undisputedly, the order of the Labour Court was passed in Complaint (ULP) No.491 of 2002 on 10.7.2006 granting reinstatement with continuity of service and full back wages to the petitioner, besides other reliefs. That order was challenged on 9 10.1.2007. The Industrial Court dismissed the revision application filed by the respondents. The respondents approached this Court on 13.3.2007 and the counsel for the respondents made a statement across the bar that the post of Social Worker had been abolished which has been recorded by this Court in its order dated 13.3.2007. The submission that the respondent would be assigned work of comparable status has also been noted. 10. The learned counsel for the respondents points out that the post of Social Worker was abolished in March, 2007. Prima facie, therefore, it appears that the abolition of the post has occurred only after the Courts have directed reinstatement with continuity of service and full back wages for the petitioner. Apart from this, the observation of the Industrial Court that the petitioner has accepted her transfer to Nalasopara is also incorrect as is obvious from the letter dated 20.3.2007, prima facie. There is no transfer of the petitioner to Nalasopara but in fact she has been asked to work there temporarily, till suitable work was found for her. Thus, this finding of the Industrial Court that the petitioner is estopped from challenging the transfer order is also without any basis. 11. A perusal of the appointment letter issued to the 10 petitioner indicates that she has been appointed on 31.10.1998 as a Social Worker in the respondent organization at the Central Office, Bandra (West), Mumbai - 400 050. There is absolutely no other term contained in the appointment letter except for the monthly remuneration which is to be paid to the petitioner. There is no clause of transfer at all in this letter of appointment. Reliance is placed by Mr.Anturkar on the judgment in the case of Pearlite Pearlite Pearlite Liners Liners Liners (P) Ltd. v/s Manorama Sirsi (P) Ltd. v/s Manorama Sirsi (P) Ltd. v/s Manorama Sirsi (supra). This was a case where the Supreme Court answered the question as to whether a contract of service can be specifically enforced. There was no written contract in that case in which the workman had challenged her transfer from one place to another. The Supreme Court while reiterating the well settled principle of law that a contract of personal service cannot be specifically enforced, observed that this general rule is subject to three well recognised exceptions which are, (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the industrial law; and (iii) where a statutory body acts in breach of violation of the mandatory provisions of the statute. The Supreme Court observed that the case before it did 11 not fall in any of the aforesaid three exceptions. It was a private employment which would be governed by the terms of the contract between the parties. There was neither any pleading nor any effort on the part of the plaintiff in that case to demonstrate that the impugned transfer order was in violation of any term of her employment. In these circumstances, the Supreme Court observed that, unless there is a term to the contrary in the contract of service, the transfer order is a normal incidence of service. In the present case, undisputedly, the letter of appointment constitutes a written contract between the parties. There is no clause of transfer in that letter of appointment and hence, prima facie, such a transfer of the petitioner who has been held to be a workman in an earlier complaint, cannot be effected. The appointment letter discloses that the petitioner is appointed to the Central Office and, therefore, the question of transferring her elsewhere does not arise. Further more, the petitioner is not averse to being asked to work at branches where she would be required to attend for specific work for a few days as was done earlier when she was asked to attend the work in Bhuvaneshwar, Kutch, etc. However, transferring the petitioner to different stations is not something which is contemplated by the appointment letter which must be 12 strictly construed, prima facie. 12. In my opinion, therefore, the transfer order to Islampur will have to be stayed pending the hearing and final disposal of the complaint. 13. The petition is disposed of with following order:- O R D E R R D E R R D E R (i) The order of the Industrial Court is set aside. (ii) The transfer order to Islampur is stayed pending hearing and final disposal of the complaint. (iii) The observations made in this order regarding transfer are prima facie and will not influence the Court while deciding the complaint. (iv) Complaint to be decided expeditiously and in any case by 31.3.2009.