Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9948 of 2010 ====================================================== 1. M/S Advanta India Limited, A Company Incorporated Under The Companies Act,1956, Having Its Registered Office At 8-2-418,3rd Floor, Krishnama House, Road No.-7, Banjara Hilla, Hyderabad-500034, Represented By Its Dgm-Hr Mr. Alta Srinivas, S/O A Bhaskara Rao... .... .... Petitioner/s Versus 1. The State Of Bihar Through The Joint Secretary, Department Of Labour, Govt. Of Bihar, Patna. 2. The Presiding Officer Labour Court,Chapra. 3. The Deputy Labour Commissioner Saran Division,Chapra. 4. Mr. Nagendra Prasad, S/O Sri Ram Lagan Prasad , C/O Mr. A.K. Das, Advocate Rajendra Sarovar,Chapra-841301. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Jayanta Roy Choudhury For respondent No.4 : Mr. Arun Kumar. For the Respondent/s : Government Pleader No.IV. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 5 22-10-2013 Heard learned counsel for the petitioner and learned counsels for the State and for respondent No.4. The petitioner-company seeks a direction from this Court for declaring the Notification dated 19.10.2009 issued by the respondent State of Bihar referring the Industrial dispute raised by the respondent No.4 to the Labour Court, Chapra for adjudication in exercise of power under sub-section (2-A) of Section 10 of the Industrial Disputes Act, 1947 as wholly without jurisdiction, arbitrary, illegal and contrary to the provisions of the Industrial Disputes Act, 1947. The facts of the case lie in a narrow compass. The
Legal Reasoning
Patna High Court CWJC No.9948 of 2010 (5) dt.22-10-2013 2 respondent No.4 was engaged by the petitioner as a Sales Officer and under the terms and conditions of service, his services were liable for transfer to any of its offices at any place where the petitioner-company has business interest, with respect to which service agreement dated 18.8.2003 was also signed by the respondent No.4. It is also stated that the respondent No.4 was subsequently promoted as Territory Manager, Sales. He was also transferred from time to time to different places within the State of Bihar. Subsequently, in the year 2008 he was transferred to Khargaon in the State of Madhya Pradesh with effect from 2.6.2008 due to business requirement but instead of complying with the said transfer order he allegedly made false, baseless, unwarranted and colorable allegations against the petitioner- company and did not proceed to his place of transfer. Subsequently, respondent No.4 raised a purported Industrial dispute in his individual capacity before the Deputy Labour Commissioner, Saran Division, Chapra who initiated conciliation proceedings but closed the same, as there was no valid industrial dispute in the eye of law between the respondent No.4 and the petitioner-company on the issue of transfer. The respondent No.4 approached the State Government which issued the impugned notification dated 19.10.2009 referring the following point for adjudication by the Labour Court, Chapra:- Patna High Court CWJC No.9948 of 2010 (5) dt.22-10-2013 3
Legal Reasoning
“Whether transfer of Sri Nagendra Prasad, Sales Promotion employee to Khargaon (Madhya Pradesh) from Chapra by Management Advanta India Ltd. (Subsidiary) U.P.L (United Phosphorus Limited) is intentionally for his termination”? “If yes, what relief the workman is entitled to”? Pursuant to the aforesaid notification, Reference Case No.02/2009 was registered in the Labour Court, Chapra. Aggrieved by the same, the petitioner has approached this Court. Learned counsel for the petitioner submits that mere transfer of an employee cannot give rise to an industrial dispute to be raised in his individual capacity, as the same does not fall within the purview of Section 2 (k) or Section 2-A of the Industrial Disputes Act. It is submitted by learned counsel for the petitioner that only in case of dismissal, discharge, retrenchment or termination, an individual employee may raise an industrial dispute by virtue of the deeming fiction raised under Section 2-A of the Act. In support of the aforesaid stand, learned counsel relies upon a decision of the Supreme Court in the case of Bharat Heavy Electricals Ltd. Vs. Anil and others: (2007) 1 S.C.C. 610, in paragraph No.18 of which it has been held as follows: “18. There is one more reason for coming to the above conclusion. There is a difference between an Patna High Court CWJC No.9948 of 2010 (5) dt.22-10-2013 4 individual dispute which is deemed to be an industrial dispute under Section 2-A of the said 1947 Act on the one hand and an industrial dispute espoused by the union in terms of Section 2 (l) of the said 1947 Act. An individual dispute which is deemed to be an industrial dispute under Section 2-A concerns discharge, dismissal, retrenchment or termination whereas an industrial dispute under Section 2 (l) covers a wider field. It includes even the question of status. This aspect is very relevant for the purposes of deciding this case. In Radhey Shyam v. State of Haryana it has been held after considering various judgments of the Supreme Court that Section 2-A contemplates nothing more than to declare an individual dispute to be an industrial dispute. It does not amend the definition of industrial dispute set out in Section 2 (k) of the Industrial Disputes Act, 1947 [which is similar to Section 2 (l) of the said 1947 Act]. Section 2-A does not cover every type of dispute between an individual workman and his employer. Section 2-A enables the individual worker to raise an industrial dispute, notwithstanding, that no other workman or union is a party to the dispute. Patna High Court CWJC No.9948 of 2010 (5) dt.22-10-2013 5 Section 2-A applies only to disputes relating to discharge, dismissal, retrenchment or termination of service of an individual workman. It does not cover other kinds of disputes such as bonus, wages, leave facilities, etc.” Learned counsels for the State and for the respondent No.4, on the other hand, seek to support the order of reference. Learned counsels, however, are unable to show how a mere intention to terminate, that too on the hypothesis that the order of transfer amounts to such an intention, can bring a case within the purview of Section 2-A of the Industrial Disputes Act, 1947 so as to empower the State Government to refer the matter to the Labour Court for adjudication under Section 10 (2-A) of the Industrial Disputes Act, on the matter being raised by a workman in his individual capacity. In support of his stand, learned counsel for the respondent No.4 has sought to rely upon a decision of the Apex Court in the case of H.R. Adyanthaya and others vs. Sandoz (India) Ltd. and others: (1994) 5 S.C.C. 737, in paragraph No.40 of which it has been laid down as follows:-
Decision
“40. Although we hold that the complaint filed by the workmen is not maintainable under the Maharashtra Act, we are of the view that taking into consideration Patna High Court CWJC No.9948 of 2010 (5) dt.22-10-2013 6 the fact that a long time has lapsed since the filing of the complaint, it is necessary that we exercise our powers under Article 142 of the Constitution, which we do hereby and direct the State Government to treat the employee’s said complaint as an industrial dispute under the ID Act and refer the same under Section 10 (1) (d) of the said Act to the Industrial Tribunal, Bombay within four weeks from today. The Industrial Tribunal shall dispose of the reference within six months of the date of reference.” Sections 2-A and 2 (k) of the Industrial Disputes Act are in the following terms:- “2-A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute- (1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. (2) Notwithstanding anything contained in Section 10, Patna High Court CWJC No.9948 of 2010 (5) dt.22-10-2013 7 any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government. (3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).” “2 (k) “industrial dispute” means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or Patna High Court CWJC No.9948 of 2010 (5) dt.22-10-2013 8 the terms of employment or with the conditions of labour, of any person.” It is evident that the aforesaid provisions of the Industrial Disputes Act that a dispute between an individual workman and his employer has, by deeming fiction, been brought into the category of industrial dispute only in the case where the employer discharges, dismisses, retrenches and otherwise terminates the service of the individual workman irrespective of the fact that no other workman nor any union of workmen is a party to the dispute. All other cases of dispute between the individual workman and his employer can take the shape of industrial dispute only if the same is raised not by the individual workman but by a union of workmen or other workmen. Admittedly, in the present matter, no specific order of termination has been passed by the petitioner with respect to the respondent No.4. All that is being assailed by respondent No.4 is the order of transfer from Bihar to Madhya Pradesh raising a hypothesis that the intention for such transfer is really a termination of the workman. In my view, no such intention can be deduced from any such order of transfer. Moreover, no jurisdiction can be exercised by the State Government for making a reference under Section 10 of the Industrial Disputes Act merely by looking into Patna High Court CWJC No.9948 of 2010 (5) dt.22-10-2013 9 the intention behind an order of transfer. The State Government derives its statutory power of making reference from the provisions of the Industrial Disputes Act and it is not open to add something to the said provisions by referring to any intention when no such provision is to be found in the Act itself. Thus, the State Government by making reference has exceeded the powers conferred by the Statute to make a reference of an industrial dispute as a dispute between an individual workman and an employer can be considered an industrial dispute only in case of dismissal, discharge, retrenchment or termination in any form. Evidently, an order of transfer cannot be considered to be an order of termination. In the aforesaid circumstances, the notification dated 19.10.2009 is contrary to law and it is, accordingly, quashed. Consequently, the Reference Case No.02 of 2009 shall also stand quashed. The writ application is, accordingly, allowed. V.P.Sinha/- (Ramesh Kumar Datta, J)