JUDGMENT B.P. Katakey, J. 1. This writ petition is directed against the award dated 3.1.2002 passed by the learned Presiding Officer, Labour Court, Dibrugarh, in Reference Case No. 8/1997 answering the issues under reference in favour of the respondent/management. 2. The facts relevant for the purpose of this case are that Sri Sankar Dutta, who was appointed on 30.3.1981 by the respondent/Management in Bijlibari Tea Estate as Hazira Maharar was transferred vide order dated 8.8.1994 issued by the Manager of Bijlibari Tea Estate to a place near Margherita to start a tea estate as an additional venture over a plot of land procured by the respondent/management. The workman refused to comply with the said order on the ground that the same is illegal and unjustified being violative of his conditions of appointment as well as the standing order. A charge memo was issued on 15.9.1994 by the management levelling the charge of misconduct for disobeying the order of transfer and asking the concerned workman to show cause as to why disciplinary actions should not be taken against him, in response to which the workman submitted his reply contending inter alia that such order of transfer, being violative of the conditions of his appointment and standing order, is not lawful and cannot be the basis for taking disciplinary action for non-compliance of the same. The management being not satisfied with the reply submitted by the workman, decided to hold the domestic enquiry and accordingly, an Enquiry Officer was appointed and a domestic enquiry was conducted. The Enquiry Officer, on completion of the enquiry, submitted his report with the finding that the charge of misconduct for refusal to obey the lawful order of the workman has been established. The management, thereafter, vide order dated 13.1.1995 dismissed the workman from service on the ground of gross misconduct committed by the workman for refusal to obey the lawful order of transfer, by concurring with the finding recorded by the Enquiry Officer in his report. The concerned workman, thereafter, approached the management and requested them for reinstatement in service, which was turned down and then a dispute was raised by the Union, namely Assam Shah Karmachari Sangha, in the matter of dismissal of the workman from service, on the basis of which a conciliation proceeding was initiated, which, however, ended in failure. The concerned workman, thereafter, approached the management and requested them for reinstatement in service, which was turned down and then a dispute was raised by the Union, namely Assam Shah Karmachari Sangha, in the matter of dismissal of the workman from service, on the basis of which a conciliation proceeding was initiated, which, however, ended in failure. The Conciliation Officer on 21.12.1995 submitted his failure report to the State Government with his view that the transfer order passed by the management does not appear to be justified. The State Government having considered the materials made available referred the following issues to the labour court for adjudication: (a) Whether the management of Bijlibari T.E., Hoogrijan, PO-Hoogrijan, Dist. Dibrugarh is justified in dismissing Sri Sankar Dutta, Hazira, Mohurrer from service or not? (b) If not, is he entitled to reinstatement with full back wages or any other relief in lieu thereof? 3. The labour court, upon receipt of the order of reference made by the State Government, registered Reference Case No. 8/1997 and issued notices to the Union as well as the management, who on receipt of the same filed their respective written statements. In the written statement filed by the management, apart from others, it has also been pleaded that a valid domestic enquiry was conducted before dismissing the workman from service. 4. The management in support of the plea of holding a valid domestic enquiry to enquire into the charge levelled against the workman, examined the Enquiry Officer, who conducted such enquiry as MW-1. The management also examined 2 (two) other witnesses, namely the Manager of Bijlibari Tea Estate as MW-2 and the Superintendent of the said Tea Estate as MW-3 before the labour court, on merit. The Union also examined the concerned workman as WW-1. In course of examination of witnesses, the management exhibited the entire domestic enquiry proceeding as Exhibit-1, the charge sheet issued to the concerned workman as Exhibit-2, the transfer order dated 8.8.1994 as Exhibit-3 and the communications exchanged between by the Manager of the Tea Estate and the workman in respect of the order of transfer as Exhibits-4 to 10. The witnesses were cross-examined by the respective parties. 5. The witnesses were cross-examined by the respective parties. 5. The learned Presiding Officer, labour court, on the basis the evidences adduced by the parties, has passed the award dated 3.1.2002, answering the issues referred to it by the State Government in favour of the management, by holding that the domestic enquiry conducted by the management is valid and refusal to carry out the order of transfer amounts to gross misconduct. In the said award, it has further been observed that the management has the full power to transfer its workman wherever it wants since the transfer is an incidence of service. The labour court, however, while answering the issues refused to adjudicate the legality or otherwise of the order of transfer on the ground that no issue in that respect has been referred to it by the Government. Hence, the present petition. 6. I have heard Mrs. A. Bhattahcaryya, the learned Counsel for the Union and Mr. S.N. Sarma, the learned senior counsel appearing for the management. 7. The learned Counsel for the Union referring to the award dated 3.1.2002 passed by the learned Presiding Officer, labour court, has submitted that while recording the finding that the domestic enquiry held by the management was valid, the court below did not take into consideration the fact that the Enquiry Officer did not record any reason for holding that the charge of misconduct levelled against the workman had been proved, though, according to the learned Counsel, the Enquiry Officer is duty bound to record reasons in support of his findings, as, such findings are the basis for dismissing the workman from service by the management. Non-recording of such reasons in support of the finding by the Enquiry Officer vitiates the domestic enquiry proceeding and as such the labour court ought not to have held that the domestic enquiry was valid, submits the learned Counsel. Non-recording of such reasons in support of the finding by the Enquiry Officer vitiates the domestic enquiry proceeding and as such the labour court ought not to have held that the domestic enquiry was valid, submits the learned Counsel. Referring to the deposition of the witnesses examined by the management as well as by the workman on merit, i.e., relating to the charge levelled against the workman, the learned Counsel further submits that it is apparent from the evidences adduced that the workman was transferred to a new entity though under his terms of appointment he was appointed as workman in Bijlibari Tea Estate and as such, he cannot be transferred to another entity, more so, when the same is a new entity and was not in existence when the concerned workman was appointed in Bijlibari Tea Estate, though both the Bijlibari Tea Estate and the new entity are under the same management. The learned Counsel further submits that the evidences adduced by the parties further reveal that the conditions of appointment of the concerned workman have been violated by the order of transfer as the facilities like housing, etc., which were available to him in his capacity as the workman in Bijlibari Tea Estate are not available in the new entity. The learned Counsel, therefore, submits that the order of transfer is not lawful and as such, the refusal to obey such unlawful order does not amounts to the misconduct within the meaning of Clause 10 of the standing order in force, inasmuch as insubordination or disobedience of only a lawful or a reasonable order of a superior constitutes misconduct. According to the learned Counsel, the labour court has refused to go into that aspect of the matter on the ground that the issue as to whether the order of transfer is lawful or not, has not been referred by the State Government, though for answering the issue relating to validity or otherwise of the order of dismissal from service, whether the order of transfer was lawful, has to be gone into. It has further been submitted that in any case, the issue as to whether the transfer order was lawful being an ancillary issue, the same has to be answered by the labour court, which has not been done in the instant case. Mrs. It has further been submitted that in any case, the issue as to whether the transfer order was lawful being an ancillary issue, the same has to be answered by the labour court, which has not been done in the instant case. Mrs. Bhattahcaryya, the learned Counsel further submits that it is evident from the award passed by the labour court that the issues were answered in favour of the management solely on the ground that it is the prerogative of the management to transfer its Workman whenever and wherever it likes, the transfer being an incidence of service, however, ignoring the legal position that an order of transfer, which is in violation of the terms of appointment or has the effect of changing the conditions of service is illegal. The learned Counsel in support of her contentions has placed reliance on 2 (two) decisions of the Apex Court in Kundan Sugar Mills v. Ziyauddin and Ors. AIR 1960 SC 650 and in Khardah & Company Ltd. v. The Workmen AIR 1964 SC 719 . 8. Mr. Sarma, the learned senior counsel appearing for the management supporting the award passed by the learned Presiding Officer, labour court, has submitted that since the domestic enquiry was conducted by the management against the concern workman in compliance with the principles of natural justice, by giving all reasonable opportunities to him, the labour court has rightly held such domestic enquiry as valid. Having held so, according to the learned senior counsel, the labour court has rightly not gone into the merit of the case since it is required to go into the merit only when the domestic enquiry conducted by the management is found to be not valid. It has further been submitted that the Union neither in the written statement filed in the labour court nor in the writ petition filed before this Court has challenged the validity of the domestic enquiry conducted against the concerned workman. Mr. Sarma further submits that the labour court has also considered the question as to whether the punishment awarded by the management is proportionate to the misconduct committed, as required under Section 11A of the Industrial Disputes Act, and having found that the lawful order of transfer has been disobeyed, which amounts to misconduct under the standing order in force, the labour court did not interfere with the punishment of dismissal awarded by the management. 9. On merit, it has been submitted by Mr. Sarma that by the order of transfer dated 8.8.1994 the conditions of appointment of the concerned workman has not been violated or changed, as it is apparent from the order of transfer that all his conditions of service shall remain same and the concerned workman was even informed that he can retain his allotted house in Bijlibari Tea Estate and would also be given either a rented house or, in lieu thereof, the house rents. The learned Counsel further submits that the Union or the concerned workman did not even prove the terms and conditions of appointment of the workman and which of such terms and conditions are violated by the order of transfer. According to Mr. Sarma, since both the Bijlibari Tea Estate as well as the additional tea estate started near Margherita are under the same management and the new venture is in fact an out garden of Bijlibari Tea Estate, those are one entity, hence, the concerned workman cannot refuse to obey the order of transfer from Bijlibari Tea Estate to the said out garden, when the management has the right to transfer its workman from the said tea estate to the out garden. 10. Relating to the submission of the learned Counsel for the Union that the labour court did not go into the question of validity of the order of transfer, Mr. Sarma submits that the labour court is to decide the issues referred to it and the question of legality or otherwise of the transfer order being not one of the issues referred to it, the labour court has rightly refused to go into that aspect of the matter. It has further been submitted by the learned Counsel that it is the prerogative of the management to transfer its workman, without changing the terms and conditions of his employment, as has been done in the instant case. Mr. Sarma further submits that since there is no error apparent on the face of the record, this Court may not interfere with the award passed by the labour court. The learned Counsel in support of his contention has placed reliance on a Single Bench decision of this Court in Kakodanga Tea Estate (P.) Ltd. v. The Presiding Officer, Labour Court, Dibrugarh and Ors. The learned Counsel in support of his contention has placed reliance on a Single Bench decision of this Court in Kakodanga Tea Estate (P.) Ltd. v. The Presiding Officer, Labour Court, Dibrugarh and Ors. (1998) 1 GLT 498 as well as on a decision of the Apex Court in Reserve Bank of India v. Gopinath Sharma and Anr. (2006) 6 SCC 221 . 11. I have considered the submissions of the learned Counsel for the parties and also perused the materials available on record including the award passed by the learned Presiding Officer, labour court. 12. The labour court has answered the issues under reference in favour of the management by holding that the domestic enquiry conducted against the concerned workman was fair and valid and the management has the prerogative to transfer its workman from one place to another and whenever necessary. It is a settled position of law that if the domestic enquiry is fair, there is no violation of the principles of natural justice and the management has acted in good faith or the dismissal does not amount to victimisation or unfair labour practice or the management has not been guilty of basic error, the labour court or the Industrial Tribunal is not required to go into the merit of the case. However, the Industrial Tribunal or the labour court can interfere with the domestic enquiry, if there is no finding by the Enquiry Officer recorded in his report or such finding is completely baseless or perverse [M/s Khardah & Company Ltd. (supra)]. 13. The Apex Court in Khardah & Company Ltd. (supra) has observed that the failure on the part of the Enquiry Officer to record any finding, after holding the domestic enquiry, constitutes a serious infirmity in the enquiry itself. In an industrial adjudication there is importance to domestic enquiry and the conclusions reached at the end of such enquiry, which necessarily postulates that the enquiry would be followed by a statement containing the conclusion of the Enquiry Officer. Though the Enquiry Officer may not write a very long or elaborate order but, since his finding is likely to lead to the dismissal of the workman, it is his duty to record clearly and precisely his conclusion and to indicate briefly his reasons for reaching the said conclusion. Though the Enquiry Officer may not write a very long or elaborate order but, since his finding is likely to lead to the dismissal of the workman, it is his duty to record clearly and precisely his conclusion and to indicate briefly his reasons for reaching the said conclusion. It has further been observed that unless such a course is adopted, it would be difficult for the Industrial Tribunal or the labour court to decide whether the approach adopted by the Enquiry Officer is basically erroneous or whether the conclusions were perverse, so as to decide about the validity of the domestic enquiry. 14. In the instant case, it is evident from the domestic enquiry proceeding (Exhibit-1) conducted against the concerned workman, relating to the charge levelled against him that the workman had participated in such proceeding and the reasonable opportunity of being heard was given. There is no allegation of victimisation or unfair labour practice as well as the allegation against the management that it had not acted in good faith. It appears that the case of the Union is that the domestic enquiry is not fair and valid as no finding has been recorded into the charge of misconduct levelled against the workman and no reason has also been recorded, inasmuch as, the Enquiry Officer did not go into the aspect as to whether by the order of transfer the conditions of employment has been violated. According to the Union, disobedience of a transfer order which is lawful and reasonable, only amounts to the misconduct under Clause 10 of the standing order in force and in the instant case, as the workman was engaged in Bijlibari Tea Estate, he cannot be transferred out of the said Tea Estate and to a new venture/Tea Estate, which was not in existence at the time of his appointment. The further case, as it appears from the evidences adduced before the labour court, is that in any case, he cannot be transferred out of Dibrugarh district and the transfer order amounts to depriving him from the enjoyment of other benefits attached to his service like housing facilities, etc. 15. The further case, as it appears from the evidences adduced before the labour court, is that in any case, he cannot be transferred out of Dibrugarh district and the transfer order amounts to depriving him from the enjoyment of other benefits attached to his service like housing facilities, etc. 15. The Enquiry Officer though in his report had rejected the contention of the workman that he cannot be transferred out of Dibrugarh district and also relating to deprivation from enjoyment of certain benefits, had not, however, recorded any finding relating to the plea of the workman that since he was appointed in respect of Bijlibari Tea Estate only, he cannot be transferred to any other Tea Estate subsequently established by the management, while recording the finding that the lawful order of transfer has been disobeyed by the concerned workman, which amounts to misconduct, without, however, considering as to whether the order of transfer is lawful as the concerned workman was appointed only in respect of Bijlibari Tea Estate. That aspect of the matter has also not been gone into by the labour court. 16. Clause 10 of the standing order in force provides the acts or omissions of the workman constituting gross misconduct. Clause 10(a)(1) of the standing order provides that the wilful insubordination or disobedience of only a lawful or a reasonable order of a superior constitutes gross misconduct. In the case in hand, the charge against the concerned workman was that he did not obey the order of transfer, which was the basis for taking disciplinary action against the concerned workman. The management, therefore, has to prove that the order of transfer is lawful and reasonable so as to constitute misconduct within the meaning of Clause 10 of the standing order. The concerned workman, as noticed above, has all along pleaded that he being appointed in Bijlibari Tea Estate, he cannot be transferred out of the said Tea Estate. If such plea is accepted then he cannot be transferred out of Bijlibari Tea Estate and in that case the order of transfer would not be lawful and consequently, the concerned workman cannot be punished for not carry out such an order, the same having not constituted misconduct within the meaning of Clause 10 of the standing order in force. 17. 17. As discussed above, the Enquiry Officer did not record any finding on the vital aspect of the matter as to whether the workman could be transferred out of Bijlibari Tea Estate, his appointment being in respect of Bijlibari Tea Estate only. It has not been disputed by the learned senior counsel for the management that the concerned workman was appointed in respect of Bijlibari Tea Estate and there was no other venture of the management at the point of time when the concerned workman was appointed. It is also not in dispute that by the order dated 8.8.1994, he was sought to be transferred to a new venture, which according to the management, is the out garden. The domestic enquiry held against the concerned workman, therefore, cannot be held to be fair and valid so as not to go into the merit of the case by the labour court, as has been done in the instant case, as the Enquiry Officer did not go into the vital aspect of the matter, as noticed above, which amounts to violation of the principles of natural justice. 18. The contention of the learned senior counsel for the management is that the question of validity of the domestic enquiry having not been raised either before the labour court or before this Court, the Union cannot be allowed to raise such plea at the time of argument, as it would amounts to allowing the Union to raise a new plea. In support of that contention, the learned senior counsel has also placed reliance on the decision of the Apex Court in Reserve Bank of India (supra). 19. There is no dispute to the proposition of law enunciated by the Apex Court in Reserve Bank of India (supra) that no new plea can be allowed to be raised in the writ petition, while challenging the award passed by the labour court or the Industrial Tribunal and the High Court is required to decide the writ petition filed challenging such award on the basis of the pleas taken before the labour court or the Industrial Tribunal and on the basis of the materials available on record, unless of course the High Court is of the view that further evidence is required to be recorded, keeping in view the facts and circumstances of the case. In the instant case, it is the management, who has taken the plea that a valid domestic enquiry was conducted against the concerned workman before dismissing him from service and hence, the labour court was asked to decide the question of validity of such domestic enquiry first, before going into the merit of the case. The management having raised such plea, the burden lies on it to satisfy the court that a valid and fair domestic enquiry had been conducted, even if no plea relating to the validity of such domestic enquiry has ever been raised by the concerned workman or by the union representing such workman. The labour court having answered the reference made to it by holding that such domestic enquiry was fair and valid and consequently refusing to go into the merit of the dispute, the management before this Court also has to establish that the fair and valid domestic enquiry has been conducted. Hence, even if no plea has been raised by the concerned workman or the Union representing him either before the labour court or before this Court in a writ proceeding, the question as to whether a valid and fair domestic enquiry was conducted by the management before passing the order of dismissal can be gone into by this Court. 20. It is a settled position of law that if the enquiry is held to be unfair, the management can lead evidence before the labour court or Industrial Tribunal and justify its action and in such case, the question as to whether the dismissal of the workman is justified or not would be open and the labour court or the Tribunal will consider the merits of the dispute and come to its own conclusion without having any regard for the view taken by the management in dismissing the workman. 21. The management in support of its action of dismissal of the workman from service has also adduced evidences. The workman also led evidence in support of his contention. It appears from the evidences adduced that according to the. 21. The management in support of its action of dismissal of the workman from service has also adduced evidences. The workman also led evidence in support of his contention. It appears from the evidences adduced that according to the. Union/concerned workman the order of transfer dated 8.8.1994 (Exhibit-3) is not lawful on 3 (three) grounds, namely his appointment being in respect of Bijlibari Tea Estate, he cannot be transferred out of the said Tea Estate as it amount to the change of the conditions of his employment, that he cannot be transferred out of Dibrugarh district and that he cannot be deprived from the enjoyment of the benefit attached to his employment, which he was enjoying in Bijlibari Tea Estate, like housing etc. since those are not available in the new venture. 22. It appears from the order of transfer dated 8.8.1994 that the pay and other benefits of the concerned workman had not been disturbed. The management by, proving the communication dated 7.9.1994 (Exhibit-6) has proved that all his service benefits including the salary and other incentives would be paid and he would be provided with rental housing facility or house rent commensurate to his status. That being the position, the concerned workman's salary, other incentives and the housing facilities etc. were not disturbed and he would continue to enjoy the same, which he was enjoying in Bijlibari Tea Estate. The plea of the concerned workman that he cannot be transferred out of Dibrugarh district was also rightly found to be not acceptable by the Enquiry Officer in his report. However, it is an admitted position of fact that the concerned workman was appointed initially as trainee and thereafter, as Hazira Maharar for Bijlibari Tea Estate only. It is also not in dispute that by the order of transfer dated 8.8.1994, the workman was sought to be transferred to a proposed new venture at Margherita, which naturally was not in existence while the concerned workman was appointed. Unless there is a specific condition in the order of appointment that he can be transferred out of the Tea Estate, where he was appointed and even to a new venture, the management in exercise of its right of transfer of its workman cannot transfer such workman to a new venture, as such right of the management cannot be implied as conditions of service. If a workman is appointed in respect of one Tea Estate, he cannot be transferred to another Tea Estate, as it would be the violation of his conditions of employment he being appointed in respect of a particular Tea Estate only. In the case in hand, as noticed above, there is no dispute that the concerned workman was appointed in respect of Bijlibari Tea Estate only and hence, he cannot be transferred out of Bijlibari Tea Estate, even though the new venture is under the same management, but he can definitely be transferred to another section or to any other transferable post within the tea estate. The management though has taken the plea that the said new venture is nothing but an extension of Bijlibari Tea Estate, did not produce any evidence before the labour court in that regard. The order of transfer reveals that the concerned workman was transferred to a new venture proposed to be started. 23. The Apex Court in M/s. Kundan Sugar Mills (supra) while considering almost the similar facts involved in the case in hand, has held that the employer has no inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment, when there was no condition of service of employment of the employee either express or implied that the employer has the right to transfer to such new venture started or proposed to be started subsequent to the date of his employment. The Apex Court in that case has uphold the judgment of the labour Appellate Tribunal holding that the management had no right to transfer the workman to a new factory and hence, the order dismissing him from service was illegal, based on the fact that such workman employed in a factory owned by the management was sought to be transferred to a new venture. The Single Bench decision of this Court in Kakodanga Tea Estate (P.) Ltd. (supra), on which the learned senior counsel for the management places reliance, cannot be applied in the case in hand, in view of the aforesaid discussion and as in that case, the concerned workman was transferred from a post in the tea garden to the Head Quarter of the Tea Company. 24. 24. In view of the aforesaid discussion, I am of the view that the order of transfer dated 8.8.1994 (Exhibit-3) amounts to the violation of the conditions of appointment of the workman, as he was appointed in respect of Bijlibari Tea Estate only and hence, he cannot be transferred to a new venture of the management without his consent. Such order of transfer, therefore, cannot be termed as lawful and reasonable and, hence, disobedience of such order does not amount to misconduct within the meaning of Clause 10 of the standing order in force. 25. While deciding the present writ petition, I am conscious of the fact that having held that the domestic enquiry was not valid and proper, this Court ought to have remanded the matter to the labour court for deciding the reference afresh, on the basis of the materials available on record as adduced by the parties. But since the dismissal order was passed in the year 1994 and almost 16 (sixteen) years have elapsed from the date of passing of the dismissal order of the concerned workman from the service and the parties have led evidence on merit before the labour court, I have decided to peruse the evidences as adduced by the parties and to decide the writ petition, since the arguments were put forward by the learned Counsel for the parties on merit also, with a view to avoid further delay in disposal of the proceeding. 26. In view of the above, the dismissal of the concerned workman from service was not justified. The award passed by the learned labour court is set aside. The management is directed to reinstate the workman in service with full service benefits. 27. The writ petition is accordingly allowed. No cost. Petition allowed