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Allahabad High Court · body

2020 DIGILAW 1439 (ALL)

Mohar Singh v. Presiding Officer

2020-12-07

J.J.MUNIR

body2020
JUDGMENT : 1. Heard Mr. Alok Krishan Tripathi, learned Counsel for the petitioner and the learned Standing Counsel appearing on behalf of respondent no.1. 2. The petitioner is a workman, whose services have been terminated by the Employers, the second respondent. 3. The following reference was made to the Labour Court, under Section 4-K of the Uttar Pradesh Industrial Disputes Act, 1947 (for short, ‘the Act of 1947’): 4. The said reference has been answered against the workman and in favour of the Employers. 5. The workman’s case elaborately set out in his written statement dated 19.04.2007 filed before the Labour Court is this: He was appointed as a peon at the Hindustan College of Science and Technology, Farah, District Mathura (for short, ‘the College’) on 03.07.1998. The said College are the Employers. They are a unit of the Sharda Educational Trust. The Employers are recognized by the Uttar Pradesh Technical University, Lucknow. The workman discharged his assigned duties with devotion and sincerity with no cause of complaint ever to the Employers. In the year 2003, the workman was drawing a salary of Rs.2100/-per mensem. These emoluments, looking to the dearness, were far from adequate compensation. As such, the workman, along with other similarly circumstanced workmen, put forth their demand to the Employers for a raise. The Employers said that they would consider it in the next month. In the month of July, 2003, the demand was reiterated and led to the same response that the demand would be considered during the following month. The Employers instead of considering the workman’s demand, acting on a stratagem, suspended him pending inquiry by an order dated 28.08.2003. 6. It was mentioned incorrectly in the suspension order that the workman was transferred to the Agra Headquarters by an order dated 21.08.2003, but he did not join in compliance with that order. It was indicated in the suspension order that since the workman did not comply with the transfer order, he was involved in activities against the Employers. The workman by a letter dated 01.09.2003, sent by registered post to the Employers, disputed the aforesaid allegations as incorrect and made up. However, the Employers without considering the workman's letter of 1st September, served him with a charge sheet dated 03.09.2003. The workman submitted his written statement to the charge sheet on 04.09.2003. The workman by a letter dated 01.09.2003, sent by registered post to the Employers, disputed the aforesaid allegations as incorrect and made up. However, the Employers without considering the workman's letter of 1st September, served him with a charge sheet dated 03.09.2003. The workman submitted his written statement to the charge sheet on 04.09.2003. The charges against the workman were of disobeying the transfer order and being involved in activities against the interest of the Employers, both of which are asserted to be false and made up. These charges had been brought in order to harass the workman with an object to suppress the just demand for a raise made by him and other similarly circumstanced workmen. It was a measure of reprisal and to make an example out of the workman, lost the others come up with a demand for a raise. The workman was not given any appointment letter or was there any condition carried in terms of appointment that he could be transferred. In addition, the workman was never served with the so called transfer order, the disobedience of which he was charged. 7. An inquiry was held into charges by one Sukhveer Singh, an Inquiry Officer, appointed by the Employers. The Inquiry Officer did not conclude the inquiry, but the suspension was withdrawn by a letter dated 19.02.2004. The letter said that the workman should go and join the Agra office on 28.02.2004. This shows that in the past, there was no transfer order and to fill up that lacuna, the letter dated 19.02.2004 was issued. The letter dated 19.02.2004 was again issued to harass the workman. The Employers did not intend to take him back in employment. On the one hand, the Employers initiated a departmental inquiry, suspending him from service, and on the other they withdrew the suspension order, requiring the workman to join at the Agra office, both of which are stances that are inconsistent action. 8. In answer to the letter dated 19.02.2004, the workman made an application dated 20.02.2004, pointing out the inconsistency in the Employers’ stand, attended with a request to reinstate him with back-wages. The Employers refused to accept the workman's application dated 20.02.2004. Instead, they sent a copy of the letter dated 19.02.2004, again, to the workman by fax. 8. In answer to the letter dated 19.02.2004, the workman made an application dated 20.02.2004, pointing out the inconsistency in the Employers’ stand, attended with a request to reinstate him with back-wages. The Employers refused to accept the workman's application dated 20.02.2004. Instead, they sent a copy of the letter dated 19.02.2004, again, to the workman by fax. The workman's services were terminated by an oral order on 20.02.2004, without serving him with a charge sheet or undertaking disciplinary proceedings or retrenching him in accordance with the law. Dispensation of the workman’s services w.e.f. 20.02.2004 constitutes unlawful retrenchment. The workman is going without gainful employment. He is entitled to be reinstated with back-wages. 9. The Employers filed a detailed written statement on 24.01.2008 before the Labour Court. Their written statement carries a detailed defence and many facts about the dealings and actions between the workman and the Employers, that has led to the industrial dispute. What stands out in the Employers defence is the fact that the workman was transferred by an order dated 20.08.2003 to their Agra office, located at 10, Jawahar Nagar, Khandari, Agra. The workman never complied with the transfer order, last mentioned. Instead, he indulged in false propaganda against the Employers and presented a complaint against them to the Uttar Pradesh Technical University. He was, therefore, charge-sheeted on 28.08.2003 and placed under suspension, pending inquiry. During the course of inquiry, the workman disclosed to the Inquiry Officer that he had no knowledge about the transfer order. Therefore, concluding the inquiry, the Employers directed the workman by their order dated 19.02.2004 to join at Agra, granting him time until 28.02.2004, for the purpose. This transfer order was put to challenge in a Civil Suit instituted by the workman before the learned Civil Judge, Mathura and he also approached the Assistant Labour Commissioner, Mathura, with the same grievance. 10. Shorn of unnecessary details, it must be recorded that the stand of the Employers is that they never terminated the workman's services. To them, he is still in service. The reference has been secured to forestall any action that the Employers may take against the workman for his continuing disobedience of the order of transfer. 11. The Labour Court has considered the case of the parties and the evidence on record, led on both sides. To them, he is still in service. The reference has been secured to forestall any action that the Employers may take against the workman for his continuing disobedience of the order of transfer. 11. The Labour Court has considered the case of the parties and the evidence on record, led on both sides. He has recorded a finding to the effect that the services of the workman have not been terminated, but the dispute appears to be that the workman wants to serve at Mathura, and not at Agra. The dispute involved, therefore, is not at all about termination, but the validity of the transfer order dated 20.02.2004, which the workman has characterized as termination of his services, which in fact it is not. The Labour Court has held that if the validity of the transfer order dated 20.02.2004 is to be judged, a reference in appropriate terms is to be made. The reference here being about termination of the workman’s services from 20.02.2004, the validity of the workman's transfer w.e.f. 20.02.2004, cannot be answered by the Labour Court on a reference cast in those terms. It is on this account that the Labour Court has answered the reference against the workman in terms that his services have not been terminated w.e.f. 20.02.2004. 12. This Court has carefully perused the record and heard Mr. Alok Kumar Tripathi in considerable detail in support of the motion to admit this petition to hearing. The learned Standing Counsel has opposed that motion. 13. A perusal of the material on record and the case of parties does indicate that the substance of the dispute between them is whether the workman can be transferred from the Employers’ establishment at Mathura to their establishment at Agra. The stand of the Employers is clear that they never terminated the workman's services. Rather, they have transferred him out of Mathura and posted him at Agra. The workman assails that right of the Employers to transfer him out of Mathura. He wants to continue serving them at Mathura. The essence of the dispute between parties, therefore, appears to be whether the Employers can validly transfer the workman from Mathura to Agra. It is not at all about termination of the workman's service. The order dated 20.02.2004 is also an order requiring the workman to join at Agra. He wants to continue serving them at Mathura. The essence of the dispute between parties, therefore, appears to be whether the Employers can validly transfer the workman from Mathura to Agra. It is not at all about termination of the workman's service. The order dated 20.02.2004 is also an order requiring the workman to join at Agra. It is a transfer order in substance and not an order of termination of services. The reference made in this case, however, proceeds on the basis that the workman's services have been terminated w.e.f. 20.02.2004. 14. The Labour Court, on the basis of the respective case of parties and the evidence on record, found that the workman's services have never been terminated. That conclusion is not incorrect, particularly, in the face of the Employers’ categorical stand that they have never terminated the workman's services and still would treat him to be part of their establishment. The reference, therefore, in the opinion of this Court ought to have been about the validity of the transfer order dated 20.02.2004. 15. The Labour Court is a Court of referred jurisdiction. It can decide what is referred to it. It cannot decided something else. What has been referred to the Labour Court, is a dispute about the validity of the termination of the workman's services w.e.f. 20.02.2004 by the Employers, whereas the dispute is one about his transfer on that date. The workman's services being never terminated, the Labour Court could not have decided the validity of the transfer on a reference made about termination of his services. It has to be remembered that the Labour Court, unlike a court of general jurisdiction, cannot answer anything, but what has been referred to it. In this connection, reference may be made to the decision of this Court in M/s Super Cassettes Industries Pvt. Ltd. vs. State Of U.P. And 2 Others, WRIT -C No.52897 of 2017, decided on 05.02.2020. In M/S Super Cassettes Industrial Pvt. Ltd. (supra), I had occasion to consider this question, where it was held: “38. It may be true or otherwise that under the Certified Standing Orders, the Employers have power to transfer the workman away to the unit at Mumbai. The Model Standing Orders, 1991, if they apply in preference to the Certified Standing Orders, may or may not permit a transfer for the workman outside the State without his consent. It may be true or otherwise that under the Certified Standing Orders, the Employers have power to transfer the workman away to the unit at Mumbai. The Model Standing Orders, 1991, if they apply in preference to the Certified Standing Orders, may or may not permit a transfer for the workman outside the State without his consent. This Court, however, would refrain from expressing any opinion about the issue. The reason is that the Labour Court is a Court of referred jurisdiction and a creature of the statute. Its jurisdiction is limited to answering questions that are expressly referred to it under Section 2-K of the Act. It may, however, go into incidental questions while answering the reference. 39. The very persuasive submission of Sri Shekhar Srivastava urging this Court to take the view that the order of transfer, dated 10.06.1996 is in fact an order of termination, that is camouflaged as a transfer order, cannot be regarded as an incidental issue to the reference made. The reference is express in its terms and speaks about an order of termination dated 10.02.1996. It does not speak about the validity of the transfer order, dated 10.02.1996. In fact, there is no order of termination from service passed on 10.02.1996. Even if the order of transfer were a camouflage to terminate the workman's services, and that too unlawful, consistent judicial opinion confines the Labour Court in its jurisdiction to answer whatever is referred to it by the appropriate Government. Unlike a Court of general jurisdiction or a Court of superior jurisdiction, it does not have authority to determine its own jurisdiction. Its jurisdiction flows from the terms of the order of reference, and in no way can the Labour Court travel beyond its terms. Incidental questions are quite different and these could be like the date from which wages are to be granted in the case of termination, that is declared unlawful, but would not include the rate of wages in a case where the reference is against the validity of an order of termination. Rate of wages can be decided if that is the subject matter of reference to the Labour Court; not otherwise. This would well illustrate the difference between incidental questions and those that are substantial, but not referred to adjudication. Rate of wages can be decided if that is the subject matter of reference to the Labour Court; not otherwise. This would well illustrate the difference between incidental questions and those that are substantial, but not referred to adjudication. This principle is most eloquently expressed in the decision of their Lordships in Tata Iron and Steel Company Limited (supra) and also by this Court in M/s Triveni Engineering and Industrial Ltd. (supra). 45. Unfortunately for the workman here, the reference in the terms made does not clothe the Labour Court with jurisdiction to look into the validity of the order of transfer, dated 10.02.1996. The industrial dispute here has been referred in most callously worded terms dubbing a transfer order as one of termination, rendering the entire exercise before the Labour Court a nullity, whatever be the merits of the parties' case. Here, the Authority empowered under Section 4-K of the Act has utterly failed to refer what on its plain terms was an industrial dispute, relating to the validity of the transfer order dated 10.02.1996. If the dispute that actually arose between the parties were referred, depending upon the finding of the Labour Court about the validity of the order of transfer, the logical incidents of it would flow, to whichever parties' gain or prejudice it might have been. About this reference, this Court has no hesitation to hold that it is without any basis, and on the date it was made or with reference to the Employers' order that it was made, there was no termination of services for the workman. The industrial dispute in the terms it was referred was completely non existent. The Labour Court being a Court of referred jurisdiction, could not have gone beyond or behind the terms of reference in which the industrial dispute sent to it was cast.” 16. In view of the clear position of the law and the nature of dispute, that is involved here between the workman and the Employers, the reference made certainly does not clothe the Labour Court with jurisdiction to decide upon the validity of the transfer order dated 20.02.2004. Accordingly, the impugned award is not liable to be disturbed and is upheld. In view of the clear position of the law and the nature of dispute, that is involved here between the workman and the Employers, the reference made certainly does not clothe the Labour Court with jurisdiction to decide upon the validity of the transfer order dated 20.02.2004. Accordingly, the impugned award is not liable to be disturbed and is upheld. It is, however, ordered that the Deputy Labour Commissioner/ State Government, whoever is competent, shall make a fresh reference, under Section 4-K of the Act of 1947 in appropriate terms, referring the dispute that arises between parties, bearing in mind what has been said in this judgment. 17. This writ petition is disposed of in terms of the aforesaid orders. There shall be no order as to costs. 18. Let this order be communicated to the Deputy Labour Commissioner, Agra Region, Agra, U.P. by the Joint Registrar (Compliance).