K. Ramaswamy v. The Management of Warwick Estate, Kotagiri – 643 217 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 10.02.2009CoramThe Honourable Mr. Justice K. CHANDRUW.P. No.13556 of 1999 K. Ramaswamy... Petitioner..Vs..1. The Management of Warwick Estate, Kotagiri – 643 217.2. The Management ofMoutere Estate, Adderly Post 643 102.3. The Presiding Officer, Labour Court, Coimbatore 641 018.4. The Management of Hovukal Estate, Kotagiri, The Nilgiris.... Respondents(R4 is impleaded as per Court's order dated 25.11.2008 in W.P.M.P. No.1495/2008 in W.P. No.13556/1999)Petition under Article 226 of The Constitution of India, prayingto issue a writ of certiorarified mandamus, to call for the recordsof the first respondent in ID No.125/94 dated 7.6.1999 and quash thesame and direct the first respondent to reinstate the petitioner inWarwick Estate in the same post which he was holding prior to thetermination of his service with all backwages and other attendantbenefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. R. SivakumarFor Respondents : Mr. K.R. Vijayakumar for R1 and R4 Mr. K. Vasu Venkat for R2O R D E RHeard both sides. The writ petition is directed againstthe award of the third respondent-Labour Court dated 7.6.1999 passedin I.D. No.125 of 1994. By the impugned award, the Labour Courtdeclined to grant any relief to the petitioner. As against thisaward, the present writ petition has been filed.2. The writ petition was admitted on 10.8.1999. On behalfof the first respondent, a counter affidavit has been filed statingthat the estate has been sold out and they are not in managementany more. When the matter was taken up for hearing, since thefourth respondent was not served, fresh notice was directed to beserved on the fourth respondent for whom Mr. K.R. Vijayakumar,learned counsel takes notice and appeared. 3. Learned counsel submits that the very estate itself doesnot exist any more and as the said estate has been purchased by thefourth respondent, no relief can be granted to the petitioner. Thesaid submission is totally resisted by Mr. R. Shivakumar, learnedcounsel for the petitioner. In the present case, the non employmentof the petitioner was challenged when he was sought to betransferred to another estate and the petitioner took up thecontention that he did not obey the said order since no buyer wouldtransfer him to some other estate, who is a different employer. 4. Before the Labour Court, on behalf of the workman, 25documents were filed and they were marked as Ex.W1 to W25. On theside of the contesting Management, 20 documents were marked and theywere marked as Ex.M1 to M20. The Labour Court, in paragraph 11 ofthe impugned order, held as follows:-" Thus, throughout the guise of attackingthe termination of service of the petitioner,the petitioner has only attacked the order oftransfer as without no right, motivated andvindictive et. That being the case thePrinciple question required to be decided bythis court is the legality and validity of theorder of transfer flowing free which is the https://hcservices.ecourts.gov.in/hcservices/ pleas of refusal of work. As a matter of factthe reliefs sought for in this claim statementis to cancel the order of refusal of work from5.7.93 and to direct the management of WarwickEstate to restore the petitioner in service withcontinuity of services and other monetarybenefits. In effect the prayer sought for is tocancel the order of transfer and to retain himin service at Warwick Estate which would go toprove that the action of the management impugnedin this case is only the action of themanagement in effecting the transfer of thepetitioner from one estate to another as suchthe dispute raised by the petitioner is to betreated as the dispute against the order oftransfer covered under the provisions of Section2K of the Industrial Disputes Act in respect ofwhich the provision of Sec.2A(2) cannot at allbe invoked. Thus for the reasons stated above,the present claim u/s. 2A(2) of the I.D. Act isheld not maintainable. Accordingly, thesepoints are answered against the petitioner."5. In essence, the Labour Court has held that in a case ofnon employment under Section 2A(2) of the Industrial Disputes Act,the question of transfer order cannot be attacked collaterally.However, Mr.R.Shivakumar, learned counsel for the petitioner broughtto the notice of this Court a decision of a Division Bench of thisCourt reported in the case of MANAGEMENT OF HINDUSTAN MOTORS LTD. v.LAKSHMIAH AND ANOTHER (2002(2) L.L.N. 725). In paragraph 14, it hasbeen held as follows:-"Therefore, when once it is held that thefirst respondent was a "workman" as defined underthe provisions of the Industrial Disputes Act, itis incumbent on the part of the second respondentto find out as to whether his non-employment isjustified or not? As far as the said question isconcerned, the dispute between the appellant andthe first respondent continued to exist when onthe one hand, the appellant would contend thatbecause of the first respondent's persistentrefusal to go on transfer at Dhanbad, it had nooption than to terminate his services, the firstrespondent would contend that he was denied everyreasonable opportunity by the appellant beforereaching the said conclusion that he defied theorders of the appellant to go on transfer to https://hcservices.ecourts.gov.in/hcservices/ Dhanbad. Therefore, it is the bounden duty ofthe second respondent to adjudicate on the saiddisputed question between the parties. Viewedfrom that angle, the order of the learned SingleJudge in granting the relief of reinstatementwith back/wages cannot be sustained."6. Since the Labour Court has rejected the award only onthe ground that the workman cannot collaterally attack the transferorder while asking the concept of non employment, this Court, takinga contra view, is of the opinion that the impugned order is liableto be set aside. Though Mr. K.R. Vijayakumar, learned counsel forthe 4th respondent submits that the Division Bench decision arose outof a reference under Section 10(1), whereas the present case of thepetitioner is covered by Section 2A (2) of the Industrial DisputesAct and that makes a material difference, this Court is unable toagree with the said submission. As per Section 2A (2) , theprocedure for approaching the Labour Court for individual workmanwith a grievance of non employment has been simplified. Otherwise,it does not make any difference whether it is a reference underSection 10(1) or individual workman is allowed to go to Labour Courtwithout resorting to any procedure. The power of the Labour Courtto make an award in an industrial dispute for adjudication lies inSection 10(4) of the Act. The Labour Court shall confine itsadjudication only to the issues in between the parties and thepoints incidental thereto. Accordingly, the impugned order standsset aside. The matter shall go back to the Labour Court. Since itis a matter of the year 1994, the Labour Court shall give preferencefor the disposal and in any event dispose of the same within aperiod of four months from the date of receipt of a copy of thisorder. It is needless to state that on such remand, all theparties are allowed to lead appropriate evidence, both oral anddocumentary. The writ petition stands allowed to the extentindicated above. Consequently, the connected W.P.M.P. is closed.No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa. https://hcservices.ecourts.gov.in/hcservices/ To1. The Management of Warwick Estate, Kotagiri – 643 217.2. The Management ofMoutere Estate, Adderly Post 643 102.3. The Presiding Officer, Labour Court, Coimbatore 641 018.4. The Management of Hovukal Estate, Kotagiri, The Nilgiris.+1cc to M/s.R.Sivakumar,Advocate Sr 5877KSK(CO)km/17.2.W.P. No.13556 of 1999