JUDGMENT Dharam Chand Chaudhary, J. (Oral) - In the present appeal, judgment dated 1.6.2012 passed by learned Single Judge in CWP No. 1444 of 2009 whereby award dated 5.3.2009 passed by learned Industrial Tribunal-cum-Labour Court Shimla in Reference No. 390 of 2002 has been affirmed and the writ petition dismissed, is under challenge. 2. The appellant (hereinafter referred to as the respondent-establishment) is M/S Mohan Meakin Limited, a Company incorporated under the Companies Act, having its registered office and Brewery at Solan, Distt. Solan, H.P. The respondent-workman (hereinafter referred to as the petitioner) was appointed as Clerk in purchase Section of the respondent- establishment vide order Annexure P-2 on 26.6.1971. Subsequently, he was confirmed as Clerk vide order dated 17.1.1972 (Annexure P-3) and promoted as purchase Superintendent in the purchase Department on monthly salary of Rs. 8065/- vide Office Order dated 21.7.1987 (Annexure P-4). He was transferred to Lucknow Distillery of the respondent- establishment as Purchase Superintendent on deputation with payment of deputation allowance to the tune of Rs. 500/- per month vide order dated 24.8.2002 (Annexure P-7). After two days of this order i.e. 26.8.2002, he was relieved from his duties at Solan with a direction to report for duties in Lucknow Brewery of the petitioner-company. The petitioner-workman had raised dispute and the Joint Labour Commissioner called upon the respondent-establishment to attend the meeting scheduled to be held on 3.9.2002 regarding the dispute so raised by the petitioner. The respondent-establishment received the charter of demands (Annexure P-10) through Joint Labour Commissioner, H.P. and submitted the reply (Annexure P-11) thereto. The competent authority i.e. Joint Labour Commissioner made the reference on consideration of the matter and referred the dispute so raised by the petitioner to Labour Court Shimla vide order Annexure P-12. The petitioner and respondent-establishment had preferred claims and counter-claims before learned Labour Court. The petitioner-workman has also filed the application (Annexure P-21) seeking interim direction to the respondent- establishment to allow him to continue in Solan office of the respondent-Company. Learned Presiding Judge, Labour Court, Shimla allowed the application and vide order dated 24.8.2005 Annexure P-1/1 directed the respondent-establishment to restore the status of the applicant as he was having before order of his transfer dated 24.8.2002 on deputation to Lucknow during the pendency of the reference petition. The order so passed was assailed by the respondent-establishment in this Court by filing CWP No. 927 of 2005. The order so passed was assailed by the respondent-establishment in this Court by filing CWP No. 927 of 2005. This Court has stayed the operation of interim order Annexure P-1/1. In the meanwhile, the petitioner- workman stood retired on attaining the age of superannuation on 21.1.2006 during the pendency of the writ petition in this Court. Consequently, vide order Annexure P-28 dated 6.12.2006, the said writ petition was dismissed as infructuous while noting down the factum of retirement of the petitioner workman from service on attaining the age of superannuation. Before that pending reference petition also stood dismissed in default vide order Annexure P-29 dated 15.11.2006. The petitioner-workman had filed application (Annexure P-32) for restoration of reference petition bearing No. 390 of 2002. The respondent-establishment has filed reply thereto which is Annexure P-33. Learned Labour Court vide order dated 22.5.2007 (Annexure P-35) had restored the reference petition to its original number and file. This order was assailed before this Court in CWP No. 986 of 2007 and in the interim, its operation was ordered to be stayed as is apparent from the perusal of order Annexure P-37. This Court has disposed of the said writ petition vide judgment dated 18.8.2008 (Annexure P-38) with certain directions including that reference No. 390 of 2002 be decided by learned Labour Court within a period of six months. 3. It is consequent upon the judgment (Annexure P-38) learned Labour Court has decided the reference petition vide award dated 5.3.2009 (Annexure P-1) in the Writ petition thereby holding the transfer on deputation of the petitioner to Lucknow as illegal and while allowing the reference petition partly directed the respondent-establishment to pay him full back wages w.e.f. 24.8.2002 till 21.1.2006, the day when he stood retired from service, on attaining the age of superannuation. 4. The legality and validity of the award was questioned by the respondent-establishment before this Court in CWP No. 1444 of 2009. However, as noticed at the outset, learned Single Judge while holding the award as legal and valid has dismissed the writ petition vide judgment dated 1.6.2012 under challenge in this appeal. 5. The legality and validity of the impugned judgment has been questioned on the grounds inter alia that the petitioner was working in a supervisory capacity and number of workers employed in purchase Section of the petitioner-Company were working under his supervision and control. 5. The legality and validity of the impugned judgment has been questioned on the grounds inter alia that the petitioner was working in a supervisory capacity and number of workers employed in purchase Section of the petitioner-Company were working under his supervision and control. He, as such, was not a workman within the meaning of Industrial Disputes Act, hence, reference made by the competent authority to Labour Court below was not legally sustainable. The transfer of an employee on the establishment of the respondent-Company from one office to another and one place to another, being a service condition in the order of appointment itself, his transfer on deputation to Lucknow on payment of additional allowance of Rs. 500/- per month could not have been held as illegal. His consent was not at all required before issuing the order qua his transfer on deputation to Lucknow. This aspect of the matter is also stated to be not considered in its right perspective. The petitioner was not President of any Union as no such Union of the employees on the roll of the respondent-Company was in existence, therefore, his transfer on deputation being valid and he having failed to join his duties at the transferred station, no relief including in interim could have been granted. Above all, the operation of the interim order was stayed by this Court on 19.9.2005 while passing the interim order in CWP No. 927 of 2005. It is during the pendency of the writ petition, the petitioner stood retired on 21.1.2006 and the writ petition was rightly dismissed as infructuous on 6.12.2006. Also that well before the dismissal of the writ petition, the reference petition filed by the petitioner itself was ordered to be dismissed for non-prosecution on 15.11.2006 by learned Labour Court below. It is after the decision of CWP No. 927 of 2005 filed against the order of restoration of the reference petition, the Labour Court has framed issues and disposed of the reference petition on merits vide award dated 5.3.2009. Such facts, according to the respondent-establishment have not been taken into consideration by learned Single Judge. It is after the decision of CWP No. 927 of 2005 filed against the order of restoration of the reference petition, the Labour Court has framed issues and disposed of the reference petition on merits vide award dated 5.3.2009. Such facts, according to the respondent-establishment have not been taken into consideration by learned Single Judge. The findings to the contrary that no disciplinary action was taken against the petitioner qua his so called misbehaviour and misconduct in not reporting for duties at transferred station, hence is entitled to back wages, have also been assailed to be illegal and contrary to the facts of the case. 6. Mr. K.D.Sood, Sr. Advocate, assisted by Mr. Sanjeev Sood, Advocate has made three fold submissions. Firstly, there is no Union of the employees of the respondent-Company of which the petitioner claims himself to be the President and as such he should have obeyed the order of his transfer on deputation to Lucknow; secondly the transfer from one office to another and from one establishment at a place to another at different place was one of the service conditions in the appointment letter Annexure P-2 to the writ petition, therefore, the order of transfer of the petitioner on deputation from Solan office of the respondent-Company to Lucknow Brewery could have not been held either illegal or factually unsustainable; and thirdly that when the execution of interim order dated 24.8.2005 passed by learned Labour Court was stayed by this Court on 19.9.2005 in CWP No. 927 of 2005 and as during the pendency of the said writ petition, the petitioner stood retired from service on his attaining the age of superannuation, coupled with the factum of the reference petition was already dismissed by learned Labour Court for want of prosecution vide order dated 15.11.2006, neither the reference petition could have been reopened by way of restoration nor the relief i.e. a direction to the respondent-company to pay back wages to the petitioner w.e.f. 24.8.2002, the day when he was ordered to be transferred to Lucknow could have been passed. Lastly, that without there being any evidence suggesting that the petitioner was not gainfully employed during the period from 24.8.2002 till his retirement on superannuation, the respondent Company is not liable to pay the back wages. 7. Mr. Lastly, that without there being any evidence suggesting that the petitioner was not gainfully employed during the period from 24.8.2002 till his retirement on superannuation, the respondent Company is not liable to pay the back wages. 7. Mr. C.N. Singh, Advocate, while drawing our attention to the evidence available on record has strenuously contended that not only learned Presiding Judge, Industrial Tribunal-cum- Labour Court Shimla, but learned Single Judge has considered the same in its right perspective. According to Mr. Singh, no other view contrary to the one of the matter taken by learned Labour Court, affirmed by learned Single Judge of this Court, could have been taken in view of the facts and circumstances of this case as well as the evidence available on record. It has thus been urged that neither any legal question brought to this Court in the present appeal nor learned counsel representing the respondent-establishment could point out such question(s) during the course of arguments. On the other hand, the concurrent findings recorded by learned Labour Court and learned Single Judge on appreciation of the evidence available on record being legally sustainable calls for no interference by this Court in the present appeal. The impugned judgment as such has been sought to be affirmed. 8. On analyzing the rival submissions carefully with the help of given facts and circumstances and also the evidence available on record, it would not be improper to conclude that all the points raised on behalf of the respondent-establishment in the present appeal hardly carry any substance for the reason that not only the learned Presiding Judge, Labour Court Shimla has considered the matter in the light of the evidence available on record but learned Single Judge of this Court has also appreciated the same in its right perspective while dismissing the writ petition and affirming the award vide judgment under challenge in this appeal. 9. If coming to the first point raised by Mr. K.D.Sood, learned Senior Advocate, the petitioner-workman, while in the witness-box as PW-1, has stated that he was President of the Mohan Meakin Staff Union, respondent No.1 herein. His testimony, reveals that the Union raised a charter of demands on 21.8.2002. The respondent-Management has discussed the matter with the Union and the memorandum of understanding Ext. PA was reduced into writing in the presence of Labour Officer-cum-Conciliation Officer, Solan. His testimony, reveals that the Union raised a charter of demands on 21.8.2002. The respondent-Management has discussed the matter with the Union and the memorandum of understanding Ext. PA was reduced into writing in the presence of Labour Officer-cum-Conciliation Officer, Solan. It is when the demands raised by Union were not accepted by the respondent- management, the dispute during the course of conciliation proceedings was referred to learned Labour Court below by the appropriate Government. Since the order of transfer on deputation of the petitioner Ext. PB was issued on 24.8.2002, i.e. immediately after the demands raised by the Union through petitioner-workman in the capacity of its President on 21.8.2002, learned Labour Court and also learned Single Judge has rightly concluded that the same was issued by way of punishment to him. The petitioner-workman has not been subjected to any cross-examination to show that he was not President of the employees Union as no suggestion to this effect was ever put to him during the course of his cross-examination. Therefore, his statement in examination-in-chief that he was President of the Union remained unshattered. We are, therefore, not in agreement with learned Senior Advocate that the petitioner- workman was not President of the employees Union and that being one of his service conditions, he should have resumed his duty in Lucknow Brewery of the respondent-establishment consequent upon his order of transfer dated 24.8.2002 (Ext. PB). 10. Admittedly, the following was one of the conditions of his appointment as per the appointment letter dated 26.6.1971: "1. The Company reserves the right to transfer you to any other place or utilize your services in any other capacity." 11. The respondent-establishment also has its own standing orders in the matter of transfer/posting. The relevant standing order reads as follows: "33. Transfer: A workman may be transferred according to exigencies of work from one shop or department to another or from one station to another or from one work place to another from one establishment to another anywhere in India in existing establishment or to be set up in future under the Management of the Company and from one Associated Company to another." 12. It is seen that the management of respondent- establishment no doubt can transfer its employees from one shop or department to another or from one station to another or from one work place to another from one establishment to another. It is seen that the management of respondent- establishment no doubt can transfer its employees from one shop or department to another or from one station to another or from one work place to another from one establishment to another. The proviso, however, reveals that if the transfer is from one place to another, it must be with the consent of the workman and subject to allowing him adequate time to move to the transferred station. In the case in hand, the petitioner has not been transferred and rather vide order Ext. PB sent on deputation to Lucknow Brewery. He has also not been given adequate time to join his duties. Learned Labour Court below and also learned Single Judge have discussed this part of the controversy with the help of the case law in detail and arrived at a conclusion that on deputation, no employee can be transferred without seeking his consent. The conclusion so drawn by learned Single Judge is, therefore, legally and factually sustainable and calls for no interference by us in the present appeal. Therefore, point No. 2 raised on behalf of respondent- establishment is also without any force. 13. The respondent-management has strenuously contested the claim of the petitioner-workman that he was not a workman within the meaning of Industrial Disputes Act and rather working in managerial/supervisory capacity, however, no evidence is forthcoming to show that he infact had been working in such capacity. The affidavits Annexures R-5/13 to R-5/16 of S/Sh. Ashok Rattan, Khub Ram, Ishwar Dutt and Amolak Ram, respectively showing that they were working under the supervision and control of the petitioner-workman have been pressed into service, however, unsuccessfully for the reason that the aforesaid deponents did not appear in the witness box and as such, the petitioner workman had no opportunity to crossexamine them. The respondent-establishment has also failed to produce any evidence suggesting that the purchase orders and the cheques were being signed by the petitioner workman and he was final authority in this regard. On the other hand, RW-2 H.N.Handa, Company Secretary has admitted in his crossexamination that the petitioner never signed any cheque on behalf of the Company. Similarly, RW-3 Khoob Ram has also admitted that he did not know as to whether the petitioner- workman was final authority in the matter of inviting quotations and signing cheques etc. On the other hand, RW-2 H.N.Handa, Company Secretary has admitted in his crossexamination that the petitioner never signed any cheque on behalf of the Company. Similarly, RW-3 Khoob Ram has also admitted that he did not know as to whether the petitioner- workman was final authority in the matter of inviting quotations and signing cheques etc. As per his version, the purchase orders rather were being signed by the Secretary of the respondent- Company. What word "workman" constitutes within the meaning of the Industrial Disputes Act and para 2(g) of the standing orders has been discussed by learned Single Judge in para 29 of the judgment which reads as follows: "29.According paragraph No. 2(g) of the Standing Orders, the "workman" means any person employed in the industrial establishment to do any skilled, unskilled, manual, supervisory, technical or clerical work for hire or reward whether the terms of employment is express or implied, but does not include any such person; (i) who is employed mainly in a managerial or administrative capacity, or (ii) who being employed in a supervisory capacity draw wages exceeding sixteen hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. The Management has miserably failed to prove these ingredients. What is to be seen to determine whether an employee is a workman or not, is the nature of duties and the nomenclature has no relevance. The findings recorded by the learned Labour Court that the respondent was a workman are up-held." 14. Besides, the law laid down by the Apex Court by way of various judicial pronouncements in Bhagwati Prasad Gordhandas Bhatt vs. The State of Gujarat and ors., 1977 (2) S.L.R. 551 , State of Punjab and ors. Vs. Inder Singh and ors. (1997) 8 SCC 372 , Anand Regional Coop. Oil Seedsgrowers Union Ltd. Vs. Shailesh Kumar Harshadbhai Shah (2006) 6 SCC 548 and Devinder Singh vs. Municipal Council, Sanaur (2011) 6 SCC 584 , have also been discussed while arriving at a conclusion that the petitioner was not working in any managerial/supervisory capacity and rather he was simply a workman. Learned counsel representing the respondent-establishment has failed to persuade us to form an opinion contrary to the one taken by learned Single Judge. Learned counsel representing the respondent-establishment has failed to persuade us to form an opinion contrary to the one taken by learned Single Judge. Therefore, we are in agreement with the findings qua this aspect of the matter recorded by learned Single Judge and the contentions to the contrary raised on behalf of respondent- Establishment being devoid of any merits are rejected. 15. Now, if coming to the last limb of arguments addressed on behalf of respondent-establishment that for want of evidence qua the petitioner was not gainfully employed during the period 24.8.2002 till he superannuated, the direction to pay him back wages during this period could have not been issued. We are afraid that any such point could have been raised on behalf of respondent-establishment for the reason that the present is not a case of reinstatement of the petitioner workman and rather a case where he was not allowed to resume his duties irrespective of interim order dated 24.8.2005 passed by learned Labour Court in an application Annexure P-1/A to the Writ Petition. No doubt, the operation of this order subsequently was stayed by this Court in CWP No. 927 of 2005 vide order Annexure P-28 to the Writ Petition, however, the Writ Petition ultimately was withdrawn by the respondent-establishment and this order also stood vacated. 16. True it is that the pending reference petition was also dismissed in default by learned Labour Court vide order dated 15.11.2006, however, the same was restored vide order dated 22.5.2007 passed in an application filed for the purpose. The reference petition thereafter was decided on merits. Since the petitioner-workman in the meanwhile had retired on his superannuation, therefore, has been rightly held entitled to full back wages with w.e.f. 24.8.2002 till his retirement along with other retiral benefits. In these circumstances, the petitioner- workman was not under any obligation to plead and prove that during the period from 24.8.2002 till his retirement he was not gainfully employed. Even it was not the case of the respondent- establishment also either before learned Labour Court or this Court in the writ petition. Therefore, on this score also the respondent-establishment cannot be said to be heard of any complaint. 17. For all the reasons hereinabove, this appeal fails and the same is accordingly dismissed.