Pappu Giri v. Presiding Officer Industrial Tribunal-Cum-Labour Court Panipat & ORS
!"!#!
$!!
!!#!
%&' ()*+,-
. %&'(% *+,-. Sr.
No.
Case No.
Case Title Arising out of Reference No.
Date of award passed by Industrial Tribunal
cum
Labour Court, Panipat Petitioner Respondents
01. CWP
17142
(O&M) Pappu Giri s/o Sewa Giri Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 266 of 14.05.2013
02. CWP
17145
Ram Ji s/o Ramdhar Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 298 of 14.05.2013
03. CWP
17149
Raj Kumar Gautam s/o Ram Sarup Gautam Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 296 of 14.05.2013
04. CWP
17150
(O&M) Maman Ram s/o Hukam Chand Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and 261 of 14.05.2013
another
05. CWP
17151
Karambir Saini s/o Ram Saini Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 262 of 14.05.2013
06. CWP
17160
Shiv Paul s/o Ram Phere Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 267 of 14.05.2013
07. CWP
17161
Krishan Sharma s/o Mangar Ram Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 290 of 14.05.2013
08. CWP
17162
Charan Singh Yadav s/o Gotam Singh Yadav Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 288 of 14.05.2013
09. CWP
17163
Rajiv Kumar s/o Krishan Lal Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 289 of 14.05.2013
10. CWP
17164
Raj Kumar s/o Sadhu Ram Presiding Officer, Industrial Tribunal cum
295 of 14.05.2013
/ Labour Court, Panipat, and another
11. CWP
17165
Jai Singh s/o Mange Ram Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 292 of 14.05.2013
12. CWP
17179
Revati Ram s/o Ayodha Parsad Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 302 of 14.05.2013
13. CWP
17180
Manohar Lal s/o Hukam Chand Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 291 of 14.05.2013
14. CWP
17182
Munna Singh s/o Lal Ji Parsad Singh Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 285 of 14.05.2013
15. CWP
17184
Girish Chand s/o Ramm Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 268 of 14.05.2013
16. CWP
17188
Ram Niwas Nirwal s/o Khem Chand Presiding Officer, 287 of 14.05.2013
Nirwal Industrial Tribunal cum
Labour Court, Panipat, and another
17. CWP
17235
Shiv Kumar s/o Banwari Lal Presiding Officer, Industrial Tribunal cum
Labour Court, Panipat, and another 288 of 14.05.2013
!+* 0"1+ 2 33! !$4!33 !
#"$* (5(6 (7',89 * +(2 ,:5",,;. !) ,2 ,;; ,2 ( 2 < +,,&'8 ,= 5(1'. ,,;
,.,, * +(2!5>,,;>,(. !) ,2 ,;; ,2 3! !$4!33. 2 .
This common judgement shall decide the fate of aforementioned 17 writ petitions, since the facts and law involved in all the writ petitions are similar.
All the total 17 petitions have been filed by the petitioner(s)/workmen, challenging the award(s) passed by the Industrial Tribunal cum Labour Court, Panipat (here after referred to as the 'Labour Court'), while answering 17 references, vide order dated 14.05.2013 (as depicted in the above table).
?
After adjudicating the industrial dispute, the Labour Court answered the same against the workman(s), by holding that there is no termination caused by the respondent Management.
/2 Since the facts of the aforesaid writ petitions are identical, to avoid repetition and for the sake of brevity, the same are being referred in the subsequent paras of this judgement, from 2 @ , which has arisen out of Reference No. 266 of 2008, by treating the same as lead case.
2 The Government of Haryana referred the Industrial Dispute for its adjudication to the Labour Court by framing a question that: A
?2 The pleaded case of the workman was that he was working as 'Clipper' with the respondent at wages of Rs.3,640/ per month and he worked from 01.12.2004 to 14.03.2008. Though, the working hours of petitioner workman were of eight hours, but Management used to take the services from him for ten hours. On raising the issue of over time payment, workman alongwith 28 workers were transferred, whereas, there was no such mentioning in the appointment letter regarding the transfer of workman. Thereafter, on not joining at the transferred place, petitioner
workman was not allowed to continue at the earlier working place i.e Panipat. Workman issue the demand notice on 07.04.2008, wherein he pleaded that despite completion of 240 working days in the preceding one year of his termination, not allowing him to join the services amounts to
termination, in violation of the provisions of Section 25 F of the Industrial Disputes Act, 1947 ( for short, the Act of 1947').
.
In the written statement filed by the respondent Management, it was pleaded that as per the appointment letter, workman was appointed in semi skilled category and the terms and conditions of appointment letter refer to the applicability of duly Certified Standing Order of the company. It was also pleaded that the transfer is one of the conditions of service duly incorporated in Certified Standing Order and the workman is bound to obey any such transfer order. It was also pleaded that under Clause No. 37 (v) of the Certified Standing Order, Management is empowered to transfer the employee provided that wages, pay grade, continuity of service, condition of service are not adversely affected in any manner. It was further pleaded that even the salary to the tune of Rs.
500/ was enhanced in case the workman joined the services at transferred place and workman was also offered an advance amount of Rs.1,000/ qua travelling/journey expenses. Workman did not join the duty at the place of his transfer, whereas the transfer order was for some administrative reasons. In no manner, the transfer order can be termed as an order of termination as projected by the workman. Neither there is any charge sheet; nor termination order, so question of retrenchment does not arise.
2 On the basis of the pleadings of the parties, learned Labour Court, vide its order dated 28.04.2019, framed following four issues:
!
! "
# "
# # $ % B2 During the course of evidence, workman appeared as WW1 and deposed that once, there is no condition in the appointment letter regarding transfer, any transfer would amount to removal from services. Therefore, workman termed his removal/termination with effect from 14.03.2008 to be without notice, charge sheet or inquiry. Thus, in the case in hand, the working of 240 days in the preceding one year of termination, which is the primary requirement to proceed further for examination of the issue is not under dispute.
C2 On the other hand, Sh. Rajan Dutta, Manager, appeared as MW
1 and through his affidavit Ex. MW 1/A, deposed that the condition of employment are governed by Certified Standing Order, which was duly certified on 02.01.2002. As per Clause 37 (v) [Ex.MW1/1], Management is competent to transfer the workman to any factory, anywhere in India, subject to the protection of wages, grade, continuity of service and condition of service and same is not affected adversely in any manner. Further deposed that workman was well aware of the situation that his services would be covered by the Certified Standing Order and thus, can be transferred any time. In no manner, the transfer order can be termed as unfair labour practice.
During the course of proceedings before the Labour Court and more importantly while recording statement of workman, he categorically
admitted that,
. However, he stated that he has been transferred with ill will and thus, claimed that he has been terminated illegally from service with effect from 14.03.2008. 2 Thus, Labour Court concluded that there is no victimization of the workman especially, when there is no termination order. Relevant findings recorded in paragraph No. 18 of the award is reproduced herebelow:
$
&
' (
(
"
"
) * "
+,-*.--/
% 2 During the course of hearing before this Court, Mr. Ashwani Talwar, Advocate representing the respondent Management, referred to the findings recorded in paragraph No.12 for projecting that even as per the observations recorded by Labour Court, industrial dispute cannot be raised on the basis of the termination of the service. Therefore, provisions of Section 25 F read with Section 25 B of the Act of 1947 are not required to be followed.
Mr. Ashwani Talwar, Advocate representing the Management relied upon the judgment of Hon'ble Supreme Court, titled as, %
& & '
( ) *+#, ,&&-,*#' and strengthened his
argument by saying that any transfer as per Standing Order is at the discretion of the Management and same cannot be termed as victimization. Mr. Ashwani Talwar, Advocate, also relied upon the Judgment of Hon'ble Supreme Court, titled as D & ./&'
0
) !11#22.&3/#4"
wherein it has been held that "
5
6 7
5
5 5
(
5 75
5
7 8 Mr. Ashwani Talwar, Advocate also relied upon the judgment of this Court (Punjab and Haryana High Court), titled as, '' 5 9 '
&
2 ) !1 !&&: 1"$, saying that "(
(
7
; <
6 = <
0 % /2 During the course of hearing before this Court, the efforts for amicable settlement were also made. Even, counsel for the Management offered the lump sum amount of compensation of Rs.50,000/ to each of the workman for settling the dispute and further offered to allow the workman to continue in service, with all the additional facilities, subject to their accepting of joining at the transferred place i.e. Dadra and Nagar Haveli.
2 Despite granting adequate time to think over the proposal, workman(s) refused to accept the proposal. In furtherance of the submissions, counsel for the workman(s) submitted a fact that admittedly, the factory/establishment at Dadra and Nagar Haveli (place of transfer) was started subsequent to the appointment of the workman(s). Therefore, the transfer order on account of the establishment of a new unit/Factory in the year 2007/2008 is an eventuality, which was neither disclosed to the petitioner workman(s) through the Certified Standing Order; nor in the appointment letter or any subsequent contract between the Management and the Workman. Therefore, the findings recorded by the Delhi High Court, in case.;,.D( 7> &'
<
) (7
!11$. $/2(?14 & 6 @ A $4?!$, which is based upon one of the judgment of the Hon'ble Apex Court, titled as, 9 0 '
B5 C : *?12 ?41 is applicable in the case at hand. In the said judgment, it has been categorically held that the employer is not possessed with the absolute right to transfer the workman outside the unit where he/she has been originally employed. The relevant paragraphs No. 7 and 8 of( 7>
.
/.are reproduced herebelow:
0+
1 2
3
1 2
3 12
3
3 4
"
!
5 6) */7+
.---
3
6 9 0 B5 .
/
5
5
7
7 D
5
E
7
5
7
75
; .C / 7 D
5 4
$ +,1*21 2
8 1 6 $
+9,7
4" " $ 4"
"
3 4
: ( 4"
6
4" ;
< 4" 3 "
(
6 <
<
=
) ;=4 >5(.--?
1726,*.
'
" 4"
: 6
@
>5(.--71?26*A
3E On the same analogy, Mr. Rajesh Bansal, Advocate relied upon the judgment of Gauhati High Court, titled as, F
;7 (
> '
0
;7 ( > ) !1 1.4/2(# $ and refers to ,(,&(,52 /, which says as under: 0!" (4'6 #!
B # 2
5
5
7
7 D
5
5
5E
5
7 7 D
5 (4'6
"
4 (
( <
6 B ( 8 12;1 6
C D
(
%
/ ?2 By citing the ratio of law laid down by Hon'ble Apex Court and followed by Delhi High Court and Gauhati High Court, Counsel for the workman(s) argues that undoubtedly, as per the Certified Standing Order, workman can be transferred by the Employer at a new place where already an establishment exists at the time of appointment of workman, but Management has failed to cite any provision of law, Clause from the Certified Standing Order or the appointment letter issued to the workman(s) or through any contract, that in the eventuality of development of any new factory by the Management in some outside area, the workman can be transferred to such factory/unit. Thus, he is not bound to comply with such transfer order, because no such expressed or implied condition was mentioned in the Certified Standing Order or the appointment letter and claims that the action of the respondent Management is against the law.
This Court has deeply examined the petition, the impugned award and the reproduced Certified Standing Order and finds that no such eventuality, in expressed or implied terms is mentioned therein. Even, no material has been cited by the counsel for the Management to show that prior to the issuance of transfer order from Panipat to Dadra and Nagar Haveli, any decision was taken by the Management at Panipat, by passing a resolution about the need of the transfer for a particular purpose in that transferred area.
Not only this, even there is no evidence led by the Management that any requisition was received by the Management at Panipat from the officials/Management or any subordinate Committee regarding the required
services from the workman(s). In the absence of any material in the shape of affidavit, showing the need of the transfer of the workman from Panipat to Dadra and Nagar Haveli, it cannot be termed that the decision taken by the Management is fair one and beyond any doubt. The argument addressed by the counsel for the Management would not be applicable in the facts and circumstances of the present case, because of the absence of any such Clause in implied or expressive terms that in the eventuality of the starting of a new unit/Factory at a different place, the workman from this Unit may be transferred. Thus, the arguments developed on the basis of the Certified Standing Order or The Industrial Employment (Standing Orders) Act, 1946 would not be attracted for its applicability to the facts and circumstances of the present case.
2 !
(&;-.,;;5,@(,>(89@;F-5 >(7',(,;;>,(%;,;-.+,,&'>%;,;;>5 >(7' %5(() ,5;, >5(5->(,;;- ,2 In alternative, it would be open for the Management to pay a lump sum amount of compensation of Rs.3,00,000/ (Rupees Three Lacs Only) to the workmen (in all the aforesaid 17 writ petitions), who were transferred from Panipat to Dadra and Nagar Haveli, within a period of three months from today i.e. 2 B2 .
B2 However, it is clarified that petitioner workman in CWP 17150 of 2014 has died on 19.10.2021. The death certificate dated 08.11.2021 of the said petitioner has already been taken on record. Since, reinstatement of
?
the deceased workman in CWP 17150 of 2014 is not possible, the Management is directed to pay a lump sum amount of compensation of Rs.3,00,000/ (Rupees Three Lacs) to the legal representatives of the deceased, who have already been made party to CWP 17150 of 2014.
If any such decision is to be taken, the workmen shall be duly informed regarding the decision taken by the Management with respect to the lump sum Compensation within a period of 15 days from the said decision. Once the intimation is sent, uptill the maximum date fixed for payment i.e. 14.08.2024, no interest would be charged. However, in case the payment is not made within stipulated period, same would fetch interest @ 6 % per annum from the date of passing of this order. C2 Pending miscellaneous applications therein, if any, are also @ accordingly.
83! !$4!339
# +,-. rashmi Whether speaking/reasoned?
$6 Whether reportable?
$6