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Rajasthan High Court · body

2019 DIGILAW 2300 (RAJ)

Tarachand Saini v. Hotel Clarks Amer

2019-08-27

PUSHPENDRA SINGH BHATI

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ORDER : PUSHPENDRA SINGH BHATI, J. 1. The petitioner has filed the instant writ petition claiming for the following reliefs: "It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to allow this writ petition and further be pleased to issue a appropriate writ or order directing the respondents to the following nature: (I) to quash and set aside the award dated 16.1.2014 passed by the learned Industrial Tribunal in ITR No. 05/2010 whereby the statement of claim filed by the petitioner against the transfer order dated 29.12.2008 passed by the respondent Hotel has been dismissed and to quash and set aside the transfer order dated 29.12.2008; annexure-3. (ii) Any other order which this Hon'ble Court deems just and proper in the facts and circumstances of the case. (iii) Cost of the petition be awarded in favour of the petitioner." 2. The facts as noticed by this Court are that the petitioner was working in the respondent - Hotel being appointed as Lift Boy on 14.08.1974. The petitioner was promoted as Technician on 30.09.1977 and thereafter, he was again promoted on the post of Senior Technician on 03.02.2000. The petitioner, however faced suspension vide order dated 23.02.2008 on account of overflow of water from the water tank in the hotel. Thereafter, the petitioner was transferred to Hotel Clarks Khujoraho vide order dated 29.12.2008. The petitioner, who was a lowly paid employee and had rendered his services for about 34 years at Jaipur in the respondent Hotel, could not go to the transferred location at Hotel Clarks Khujoraho and such transfer order virtually became a punitive order. The petitioner challenged the same by raising an industrial dispute. Learned Industrial Tribunal vide order dated 16.01.2014 dismissed the statement of claim filed by the petitioner and held the transfer order as fair and proper. 3. Counsel for the petitioner, Mr. Babu Lal Gupta, submitted that it is a mockery of the justice and exploitation of the workman where he has been punished without adopting the parameters of the principle of natural justice while passing the impugned transfer order, which virtually amounts to illegal termination of the services of the petitioner. 3. Counsel for the petitioner, Mr. Babu Lal Gupta, submitted that it is a mockery of the justice and exploitation of the workman where he has been punished without adopting the parameters of the principle of natural justice while passing the impugned transfer order, which virtually amounts to illegal termination of the services of the petitioner. Counsel for the petitioner further states that due to such an order, the petitioner was disabled from continuing his services snatching away his vital right of livelihood at the stage when he had already rendered at least 34 years of unblemished services with the respondents. 4. Counsel for the respondents, Mr. R.K. Jain, raised a preliminary objection with regard to maintainability of the writ petition that the workmen alone could not have preferred the industrial dispute without the cause having been espoused by the union, which did the same before Industrial Tribunal. Counsel for the respondents also submitted that it was well within the ambit of law for the management of the respondent - hotel to transfer the petitioner from Jaipur to Khujoraho. Counsel for the respondents further submitted that the award passed by the Industrial Tribunal was well reasoned and in accordance with the law. 5. To counter the preliminary objection, counsel for the petitioner has relied upon the judgment passed by this Court in the matter of Raj Small Industries Corp. Ltd. v. Labour Court No. 2 & Anr. reported in 2019 (1) WLC UC 547 wherein this Court permitted the workmen to raise the dispute even without being espoused by the union. 6. After hearing the counsel for the parties and on a perusal of the material available on record, this Court is of the opinion that the petitioner was a lowly paid employee and therefore, his transfer order to a distant place i.e. from Jaipur to Khujoraho is nothing, but a step taken by the respondents to terminate the services of the petitioner without adhering to the procedure of the law. This Court has taken note of the fact that the petitioner was appointed as a Lift Boy on 14.08.1974 in the same hotel and continued upto 29.12.2008, which is about 34 years of service. This Court has taken note of the fact that the petitioner was appointed as a Lift Boy on 14.08.1974 in the same hotel and continued upto 29.12.2008, which is about 34 years of service. The petitioner was working on the post of Technician and was earning his livelihood for last about 34 years at the same place and if place of such person is changed, then it is nothing, but an unlawful strategy of the respondents to overcome the hassle of taking proper legal action against an employee. It is an admitted position that the petitioner was suspended on 23.02.2008 due to overflow of water from the water tank of the respondent - hotel. 7. On the overall perusal of the facts and circumstances of the case, this Court finds that the Industrial Tribunal has taken a very technical approach of upholding the transfer order without going into the fact that the virtual circumstances being created by the respondents were such that the transfer order dated 29.12.2018 is nothing, but a step taken by the respondents to terminate the services of the petitioner without adhering to the procedure of the law. 8. In such peculiar facts and circumstances, the order of transfer of a lowly paid employee, who has discharged almost 34 years of continuous service at one place, has to be construed as an unlawful order and hence, while observing as above, this Court deems it fit and proper to allow the writ petition. The impugned order dated 16.01.2014 and the transfer order dated 29.12.2018 passed by the respondents are quashed and set aside. The preliminary objection raised by the counsel for the respondents is also rejected in accordance with the law as laid down by the precedent law in the case of Raj Small Industries Corp. Ltd. (supra). However, since the petitioner has already reached to the age of superannuation and the petitioner cannot be granted reinstatement or the back wages for the period he did not discharge the services with the respondents, thus it will be suffice to meet the ends of justice that the award of compensation to the petitioner to the tune of Rs. 1 lac in lieu of unlawful order dated 29.12.2018, which resulted into the services being illegally terminated, be made. The respondents shall thus pay a sum of Rs. 1 lac in lieu of unlawful order dated 29.12.2018, which resulted into the services being illegally terminated, be made. The respondents shall thus pay a sum of Rs. 1 lac as compensation to the petitioner within a period of three months from today. 9. It is taken note by this Court that Mr. Babu Lal Gupta, Advocate, has rendered pro-bonu services to the petitioner looking to the financial position of the petitioner. This Court appreciates the gesture made by Mr. Babu Lal Gupta, Advocate.