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2005 DIGILAW 1986 (RAJ)

Guman Singh v. J. K. Tyre Code, Kota

2005-07-30

P.S.ASOPA, Y.R.MEENA

body2005
Honble ASOPA, J.–This special appeal is directed against the judgment of learned Single Judge dated 15.3.1994, in the above referred writ petition whereby the order of the Industrial Tribunal dated 8th September 1993 has been quashed with a further direction to decide the approval application filed by the employer under Section 33(2)(b) of the Industrial Disputes Act (for short `the Act) on merits after hearing both the parties and taking into consideration the pleadings of the parties within a period of four months. (2). Briefly stated the relevant facts of the case are that the appellant was initially appointed as Operator in the Air Conditioning Department in J.K. Synthetics Ltd. Kota in the year 1970 and on 1.11.1971 he was sent on deputation with his consent on the post of Rounder to J.K. Tyre Cord, Kota, from J.K. Synthetics Ltd. Kota. (3). That on 25.7.1990, a charge sheet was issued to the appellant levelling charges of disobedience and unlawful absence etc. Thereafter an enquiry was conducted and in that enquiry the charges and allegations levelled against him were found proved, therefore, punishment of dismissal was passed on 22.2.90. Simultaneously, an application under Section 33(2) (b) of the Act for grant of approval of the action of dismissal of the workman on account of the fact that the appellant was a concerned workman in a dispute which was pending adjudication before the Industrial Tribunal, Kota, bearing case No. 30/85. (4). The Industrial Tribunal after hearing both the parties and going through the pleadings of the parties as well as material on record came to the conclusion that the original employer of the workman in J.K. Synthetics and he was sent on deputation in J.K. Tyre Card with his consent. As regards right to dismiss by the J.K. Tyre Cord, the Industrial Tribunal came to the conclusion that the workman Guman Singh was originally employed by J.K. Synthetics, and was sent on deputation to J.K. Tyre Cord. Therefore, under such circumstances, the J.K. Tyre Cord was not having any right to dismiss him from the service and the dismissal order was not valid. Accordingly the application under Section 33(2)(b) of the Act was rejected. Therefore, under such circumstances, the J.K. Tyre Cord was not having any right to dismiss him from the service and the dismissal order was not valid. Accordingly the application under Section 33(2)(b) of the Act was rejected. The relevant portion of the Award dated 8.9.1993, passed by Labour Court reads as under:- ^^orZeku izdj.k esa ;g fl) gS fd izfri{kh xqekuflag dks ewy :i ls ts-ds- flUFksfVDl }kjk fu;ksftr fd;k x;k Fkk vkSj og ts-ds- Vk;jdkMZ esa dsoy izfrfu;qfDr ij Fkk vkSj ,slh ifjfLFkfr;ksa esa ts.ds. Vk;jdkMZ dks Jfed ds fo:) tkap djds mls lsokeqDr djus dk dksbZ vf/kdkj ugha Fkk blfy, mldh lsok eqfDr dk vknsk oS/k ugha ekuk tk ldrkA vr% izkFkhZ ts-ds- Vk;jdkMZ }kjk izLrqr izkFkZuk-i=k vUrxZr /kkjk 33¼2½¼ch½ vf/kfu;e] 1947 vLohdkj dj [kkfjt fd;k tkrk gSA** (5). Initially the writ petition was filed by the respondent Management against the order dated 17.9.92 (Annexure 5) passed by Industrial Tribunal, whereby application for placing the document on record was dismissed on the ground that no such plea had been taken in the rejoinder and the order dated 26.11.92, whereby the application filed under Order 6 Rule 17 for amendment of rejoinder was dismissed. During the pendency of the writ petition, the aforesaid order dated 8.9.93 came to be passed by the Industrial Tribunal, therefore, the writ petition was amended and the said order was also challenged. (6). The submission of the Management before the Single Bench and before the Division Bench was is that the Industrial Tribunal has committed serious error of law in not giving the finding to the effect that the order dated 1.11.1971 is an order of transfer with consent. It was also submitted before the Single Bench that the J.K. Tyre, Cord, Kota, is one of the unit of J.K. Synthetics, which is a Company registered under the Companies Act. Therefore, the transfer of the workman was valid and he was rightly removed by the Management of J.K. Tyre Cord. (7). The learned Single Judge accepted the writ petition filed by the Management on the ground that the transfer of the workman was with his consent from J.K. Synthetics Co. Ltd. to J.K. Tyre Cord, Division. Therefore, the transfer of the workman was valid and he was rightly removed by the Management of J.K. Tyre Cord. (7). The learned Single Judge accepted the writ petition filed by the Management on the ground that the transfer of the workman was with his consent from J.K. Synthetics Co. Ltd. to J.K. Tyre Cord, Division. On account of the said consent right to hold a membership in J.K. Synthetics Ltd., if any, possessed by the workman was lost to him w.e.f. 1.11.1971 and from that day he became an employee of M/s J.K. Tyres Cord for all purpose. Learned Single Judge has not dealt with the issue whether the order dated 1.11.1971 is an order of deputation or not. Learned Single Judge has simply based his finding on the issue that it is a case of transfer with consent and he has also thought it proper not to deal with the issue whether J.K. Synthetics and J.K. Tyres Cord, are common industrial establishment or separate industrial establishments. The relevant portion of the order of learned Single Judge reads as under:- ``After having given my thoughtful consideration to the rival submissions I am of the view that it is not necessary for this Court to make an adjudication on the issue as to whether M/s J.K. Tyres Cord can be treated as separate industrial establishment or not. From the pleadings of the parties as well as the contents of the order dated 8.9.93 passed by the learned Industrial Tribunal, it is transparently clear that on 1.11.71 workman Guman Singh had been transferred with his consent from M/s J.K. Synthetics Ltd. to J.K. Tyre Cord division. Therefore, even if for a moment it is assumed that M/s J.K. Synthetics Ltd. and J.K. Tyre Cord are two separate industrial establishments, the workman had voluntarily accepted his transfer from J.K. Synthetics Ltd. to J.K. Tyres Cord. Right to hold a membership in M/s J.K. Synthetics Ltd. if any possessed by the workman was lost to him w.e.f. 1.11.71 and from that day he became an employee of M/s J.K. Tyres Cord for all purposes. Right to hold a membership in M/s J.K. Synthetics Ltd. if any possessed by the workman was lost to him w.e.f. 1.11.71 and from that day he became an employee of M/s J.K. Tyres Cord for all purposes. The action for dismissal of the service of the petitioner has been taken by M/s J.K. Synthetics Ltd. (Tyres Cord Division), therefore, even if the petitioner had been originally employed in J.K. Synthetics Ltd. The decision taken by the Management of M/s J.K. Tyres Cord on 22.2.90 cannot be treated as without jurisdiction. (8). In our view it was necessary for the learned Single Judge to decide whether J.K. Synthetics or J.K. Tyres Cord are separate establishments or not and further issue of deputation as held by Labour Court was also required to be adjudicated but the said issues have not been adjudicated and further the learned Single Judge also not correctly applied the ratio of the Hon. Apex Court in the case of Manager M/s Pyare Chand Kesari Mal Bidi Factory vs. Onkar Laxman (1970) (20) FLR 140, equivalent to 1970 LAB I.C. 737. As per the facts of above judgment of Honble Apex Court even in case of transfer where the workman was originally employed in the factory at Kampti, was directed to work at Head Office. Though both the establishments were owned by Firm M/s Pyare Chand Kesari Mal Bidi Factory, it was held that the original contract of service would be terminated only in case of tripartite agreement between employer-employee and the third party. Para No. 8 of the judgment is reproduced as under for ready reference:- ``8. A contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party. Therefore, so long as the contract of service is not terminated, a new contract of service is not made as aforesaid and the employee continues to be in the employment of the employer. Therefore, when an employer orders him to do a certain work for another person, the employee still continues to be in his employment. Therefore, so long as the contract of service is not terminated, a new contract of service is not made as aforesaid and the employee continues to be in the employment of the employer. Therefore, when an employer orders him to do a certain work for another person, the employee still continues to be in his employment. The only thing that happens in such a case is that he carries out the orders of master. The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pay his wages during the time that he has hired his services, but that is because of his agreement with the employer. That does not preclude the employee from claiming his wages from the employer. The hirer may also exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done. But if the employee fails to carry out his directions he cannot dismiss him and can only complain to the employer. The right of dismissal vests in the employer. Even in case of transfer also as per the judgment of the Hon. Apex Court the tripartite agreement between the J.K. Synthetics, the workman and the J.K. Tyre Cord, is necessary which is lacking in this case. Therefore, judgment of learned Single Judge is not sustainable on this count also. (9). The order of transfer also clearly reveal the intention of the party that the workman has not been permanently transferred. The order of appointment dated 7.9.1972 w.e.f. 1.11.71 refers the term of deputation which reads as under:- ``J.K. SYNTHETICS LIMITED, KOTA Dated 7.9.1972 Shri Guman Singh Designation : Rounder Department Air/Condg. It is hereby confirmed that you had been transferred to J.K. Tyre Cord, Kota, on deputation w.e.f. 1.11.71 and that you will continue to receive the same emoluments and benefits as per terms of your appiointment. Sd/- (Emphasis supplied) There was no term and condition of the deputation and there are also no rules or standing orders governing the term of deputation. Therefore, we have to go through the settled principles of service law. (10). Sd/- (Emphasis supplied) There was no term and condition of the deputation and there are also no rules or standing orders governing the term of deputation. Therefore, we have to go through the settled principles of service law. (10). A bare perusal of the aforesaid order would reveal that the intention of the parties was not to take the workman on transfer permanently i.e., earlier contract of service was not terminated and new contract was not come into existence. (11). The submissions of the Management before the learned Single Judge as well as before this Court that J.K. Tyre Cord is one of the unit of J.K. Synthetics and it is simply a case of transfer also does not hold force on account of the fact that the approval application was filed by the J.K. Tyre Cord and not by J.K. Synthetics. The Industrial Tribunal, Kota has considered the facts of deputation and gave finding on the issue of two separate establishments and after correctly applying ratio of the aforesaid judgment of Hon. Supreme Court and rightly came to the conclusion that the present case is of deputation to another Industrial Establishment and not of transfer. (12). Although the learned Single Judge has not considered it necessary to give a finding on the issue whether M/s J.K. Synthetics and M/s J.K. Tyres Cord are two separate Industrial Establishments, but the Industrial Tribunal has dealt with the issue. Therefore, it is not necessary for us to remand the case to learned Single Judge. Otherwise also the matter is hanging fire since 1990, So we thought it proper to decide the issue. (13). The Hon. Supreme Court in Ram Prakash Makkar vs. State of Haryana and Others AIR 1993 Supreme Court 1974 elaborate the distinction between Appointment-by Transfer/Deputation. In Para 10 of the said judgment, it has been categorically held that the order has to be read as a whole the aforesaid para 10 of the judgment of the Honble Supreme Court is reproduced hereunder for ready reference:- ``10. The main question in this appeal is whether the appellant was appointed by transfer as an Assistant in the Directorate or whether it was a mere case of deputation. We have set out hereinbefore the order of his appointment in the Directorate. The order has to be read as a whole. The main question in this appeal is whether the appellant was appointed by transfer as an Assistant in the Directorate or whether it was a mere case of deputation. We have set out hereinbefore the order of his appointment in the Directorate. The order has to be read as a whole. It says that the appellant is ``appointed on transfer basis as an Assistant in the Directorate. It also says that his appointment is purely temporary and that he can be reverted to his parent department as and when his services are not required. The order further says that the appellant shall be on probation for one year and that his lien in the Civil Secretariat Service will remain until he is confirmed in the Directorate. Now what to these three features read together mean ? The Division Bench has laid emphasis upon the second feature, ignoring the first and the third. With respect we are unable to agree with its view. The fact that it is termed as an appointment on transfer basis coupled with the facts that his probation is commenced shows that it was a case of appointment by transfer and not one of deputation. Indeed, the order expressly contemplates his confirmation in Directorate. It is true that the order does recite that his appointment is purely temporary and he is liable to be reverted back to is parent department at any time. But this clause must be read alongwith other recitals in the order and if so rea, it must be understood as operative during the period of his probation only. Once his probation was declared to have been satisfactorily completed and-particularly after he was also promoted as Personal Assistant in the Department and his probation commenced and declared in such post also it appears rather odd to say that he was only on deputation in the Directorate. The correspondence between the Directorate and Secretariat referred hereinbefore further reinforces out opinion. When the appellant expressed his desire to be absorbed as Personal Assistant in the Directorate and requested the Director to approach the Secretariat for terminating his lien, the Director agreed with his request and requested the Secretariat to terminate the appellants lien therein so as to enable him to absorb the appellant in is service. In his letter dated 15th Feb. In his letter dated 15th Feb. 1989, the Chief Secretary replied that his lien will be terminated only when he is confirmed in the Directorate. In his letter dated 23.02.1989, the Director requested the Chief Secretary again to terminate the appellants lien in the Secretariat service so as to enable his absorption in the Directorate. All this correspondence goes to show that all that was remaining to be done was a formal order of termination of his lien in the Secretariat Service and a corresponding order of confirmation in the Directorate. It is not without significance that at no stage did any one suggest that the appellant was on deputation-not even in the impugned order. It was put forward as a defence for the first time, in the writ petition. In the face of all this material, we find it difficult to agree with the respondent that the appellant was merely deputed to serve in the Directorate and his reversion back to the Secretariat is unexceptionable. None of the condition which makes the order of appointment by transfer exists in the present case. Moreover, the workman continued with the Borrowing department till the dismissal order is passed by that department. (14). The Gujarat High Court in a case reported in Bhagwati Prasad Gordhan Das Bhatt vs. The State of Gujarat and Others 1977 (2) S.L.R. 551 elaborately discussed the distinction between transfer and deputation and in para No. 17 it was held as under :- ``It is in conceivable that deputation can be ordered without the consent of the concerned employee. (15). The Madhya Pradesh High Court in Parashu Ram vs. State of Madhya Pradesh and Others 1991(6) SLR 83, has also had an occasion to discuss the matter of deputation/transfer and has made a distinction between the two. The relevant para 11 of the said judgment reads as under:- ``11. It is well known that the deputation is a post of temporary duration outside home range or district and the person sent on deputation continues to look homeward for promotion or confirmation. The transfer is the antithesis and it must exhibit the opposite indications. See Avtar Singh vs. Delhi Administration and Others, ILR (1977) 2 Delhi 224. The respondents did not place petitioners service records or any other record to show that his lien was retained in SADA and that he was sent on deputation. The transfer is the antithesis and it must exhibit the opposite indications. See Avtar Singh vs. Delhi Administration and Others, ILR (1977) 2 Delhi 224. The respondents did not place petitioners service records or any other record to show that his lien was retained in SADA and that he was sent on deputation. The word `deputation is prominently missing in Annexure A-6. Therefore, the defence version must be rejected. (16). The Hon. Supreme Court in State of Punjab and Others vs. Inder Singh and Others, AIR 1998 Supreme Court 7, in para No. 13 has held that transferee department will loose disciplinary control over the employee of the another range/department working on deputation, The relevant portion of para 13 and 19 is reproduced hereunder for ready reference:- Para-13 ``Merely because the administrative head of all the police departments in the State is one it cannot be said that there can no rule for deputation to a particular department in the whole of the police establishment in the State. If we refer to the Rule 21.25 Deputy Inspector General, CID has complete disciplinary control over all the police officer while serving in that department. On this very reasoning, there is no scope for the argument that respondents be absorbed in CID as this Department has no cadre of its own upto the rank of Sub-Inspector. Para-19 Concept of `deputation is well understood in service law and has a recognised meaning. `Deputation has a different connotation in-service law and the dictionary meaning of the word `deputation is of no help. In simple words `deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis, After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repartriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be. (17). As per aforesaid Judicial Pronouncements, the fundamental distinction between the transfer and deputation is that in case of deputation an employee is deputed to work out side parent cadre with his consent and a contract of service with the parent employee continue, the person deputed always be repartriated to his parent department. The another important distinction as per Honble Apex Court is that person deputed will take his promotion in parent department on account of the fact that his original contract or service continues, although he is working outside parent cadre. (18). The principles which can be deduced from the aforesaid judgments of the Honble Apex Court and other High Courts can be summarized as follows:- (i) That the original contract of service with the parent employer continues. The attachment of the workman/employee with the borrowing department is for specific period/short period and even if is for the long period, then also he will not become employee of the borrowing department. He is continued with the Lending/Parent department till he is absorbed in the government department. (ii) The promotion of the employee will be considered in the lending department and he will have right to be promoted in Lending Department, in case he is found suitable and promotion is given, the same is usually called proforma promotion; (iii) In case of deputation the consent of the employee is essential; (iv) The deputation is usually made for sending him out- side the parent cadre. (v) The term and condition of the deputation are usually governed by the deputation order or by the rules/standing orders. (v) The term and condition of the deputation are usually governed by the deputation order or by the rules/standing orders. The language of the order has to be read as whole for ascertaining the presence of the above mentioned principles for deciding whether the impugned order is of deputation or transfer which is incident service usually made on the same post. (19). Applying all the aforesaid principles, the instant case is of deputation and not of transfer. (20). Although the learned Single Judge also held that in case of deputation, jurisdiction to pass the order of termination by way of disciplinary action or otherwise continues with the parent department but nature of the order of deputation has neither been discussed nor any finding is given on the said aspect and the judgment is based on simple consent for transfer, which in our opinion is not correct because for deputation the consent is necessary. (21). In view of the aforesaid discussion the Special Appeal is allowed and the judgment of the learned Single Judge is quashed and set-aside and the judgment of the Industrial Tribunal dated 8.9.93 in application No. I.T. 25/90 is restored.