The Management of M/s.Vijayashree Spinning Mills Ltd.,Unit-I, Trichy Road,Dindigul-624 009 v. The Presiding Officer, Labour Court, Trichirappalli

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 6.03.2009Coram:THE HONOURABLE MR. JUSTICE K.CHANDRUW.P.No.19875 of 1999The Management of M/s.Vijayashree Spinning Mills Ltd.,Unit-I, Trichy Road,Dindigul-624 009. rep. By itsDirector ..Petitionervs.1. The Presiding Officer, Labour Court, Trichirappalli.2. Thiru.T.Thiagarajan ..RespondentsPrayer:Petition filed under Article 226 of the Constitution ofIndia praying for issuance of writ of Certiorari to call for therecords on the file of the 1st respondent and quash the impugnedcommon award dated 10.11.1999 in I.D.No.308 of 1995.For Petitioner : Mr. R.ParthibanFor Respondents : Mr. S.Subbiah, for R2ORDER The petitioner is the management of Vijayshree Spinning MillsLimited at Dindigul. Aggrieved by the award of the Labour Court madein I.D.No.308 of 1995 and C.P.No.90 of 1995, dated 10.11.1999, thepresent Writ Petition has been filed.2. The Labour Court by the impugned award held that the secondrespondent was entitled to be reinstated with effect from 1.7.1993with service continuity backwages and other attendant benefits.3. The Writ Petition was admitted on 15.12.1999. Pending theWrit Petition, this Court directed the management to deposit 50% ofthe backwages and also to comply with Section 17-B of the IndustrialDisputes Act by paying monthly wages. However the payment of monthlywages was subject to workman filing an affidavit stating that he wasnot employed anywhere. https://hcservices.ecourts.gov.in/hcservices/

4. Subsequently, when the matter came up on 29.6.2000, theinterim order was continued. Thereafter, when the second respondentfiled application for direction, this Court made the stay absoluteand did not grant the workman the enhanced wage.5. The case of the workman projected before the Labour Court wasthat he joined the petitioner mill on 23.1.1985 as a Clerk.Thereafter, in the same capacity, he was posted in various sections.He was working in the Unit No.1 till August 1988 and at that timewith the same senior grade, he worked as Canteen Clerk and StoreClerk. When the second respondent was orally stopped from work on11.12.1992, he raised an industrial dispute before the AssistantCommissioner (conciliation), Dindigul. On 31.12.1992, the petitionermanagement restored the second respondent to service. Thereafter,when he was demanding the wages as per the Special Tribunal award,headed by K.E.Varadhan, he was transferred to the Plantation Divisionat Manavanur on 20.4.1993. The said place is 146 Kms. away from theoriginal place and it was done with a view to victimise the secondrespondent. When the second respondent sent several letters, therewas no reply from them. When he continued to report at thepetitioner mill, the Watch staff refused him to report for duty.Therefore, he presumed that the management was not willing to restorehim into service and once again raised a dispute, which reached theLabour Court. The Labour Court took up the dispute asI.D.No.308/1995.6. Before the Labour Court, the petitioner mill filed a counterstatement dated 24.2.1994 stating that the workmen are liable fortransfer and since he did not report for at the transferred place, hewas not allowed to enter the mill. Though the management contendedthat the validity of the transfer order cannot be collaterallyattacked, the Labour Court placing reliance upon certain decisionsheld that if the transfer order is passed with a view to victimisethe workman, the court can go into the said issue and therefore itwent into the issue relating to illegal transfer order.7. The Labour Court also found that the Estate at Mannavanur,(Kodaikanal) belonged to the same management was not provedsatisfactorily. It also found that in the 100 Acre Estate, onlyUcalyptus has been planted and there was only one bungalow and thereis no necessity for a clerical staff. The Labour Court also heldthat there was no post available at Manavanur Estate for thepetitioner to be transferred and the documents in Exs.M.16 to M.18have been created only for the purpose of the dispute. Therefore,the Labour Court held that the Standing Order 24 cannot be pressedinto service. It held that the petitioner had failed to prove that itwas a sister concern and also that the transfer order was malafide. It also held that the dispute under section 2(A) of theIndustrial Dispute Act regarding his non-employment is maintainable. https://hcservices.ecourts.gov.in/hcservices/ In view of this, the Labour Court directed his reinstatement withbackwages and other attendant benefits by the impugned Award.8. The learned counsel on behalf of the management submittedthat the Labour Court has no jurisdiction to decide an issue relatingto transfer and hence the consequential award should be quashed. Healso submitted that the Labour Court cannot collaterally decide thelegality of transfer in a dispute under section 2(A) of theIndustrial Dispute Act.9. This argument is contrary to the decision of this Court inthe Management of Hindustan Motors Ltd. vs. Lakshmiah and anotherreported in 2002 (2) LLN 725. In paragraph 14 of the said judgment,the Division Bench has held as follows:"Therefore, when once it is held that the first respondentwas a "workman" as defined under the provisions of theIndustrial Dispute Act, it is incumbent on the part of thesecond respondent to find out as to whether his non-employment is justified or not? As far as the said questionis concerned, the dispute between the appellant and thefirst respondent continued to exist when on the one hand theappellant would contend that because of the firstrespondent's persistent refusal to go on transfer atDhanbad, it had no option than to terminate his services,the first respondent would contend that he was denied everyreasonable opportunity by the appellant before reaching thesaid conclusion that he defied the orders of the appellantto go on transfer to Dhanbad. Therefore, it is the boundenduty of the second respondent to adjudicate on the saiddisputed question between the parties. Viewed from thatangle, the order of the learned Single Judge in granting therelief of reinstatement with back-wages cannot besustained."(Emphasis Added)10. It must be stated that by section 2(ra) of the Act, "unfairlabour practices" have been set out in the V Schedule of theIndustrial Dispute Act. In Part I of the V Schedule in item No.7,transferring of workman mala fide from one place to another underthe guise of management policy has been listed. Section 25-Tprohibits commission of an unfair labour practice by an employer.Under section 25-U, a penalty has also been prescribed for committingunfair labour practice, which includes imprisonment for 6 months.Therefore, the commission of an unfair labour practice has beenmandatorily prohibited by the Industrial Dispute Act. Excepting forpenalty, the Industrial Dispute Act had not provided any separatemachinery to raise such issues. Hence such an issue can be pleadedby a workman in any dispute. https://hcservices.ecourts.gov.in/hcservices/

11. In the present case, the Labour Court has found as a matterof fact that it was a mala fide transfer and therefore it gave therelief by the impugned award set out earlier. The impugned awarddoes not suffer from any infirmity or illegality.12. In the light of the above, the Writ Petition standsdismissed. However, there will be no order as to costs. In view ofthe dismissal of the Writ Petition, it is open to the secondrespondent to withdraw the amount lying in deposit with the LabourCourt and claim the balance from the petitioner management.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarajrTo1. The Presiding Officer, Labour Court, Trichirappalli.2. The Section Officer, V.R. Section, High Court, Madras. Order in W.P.No.19875 of 1999 BV (CO)GSK 09.03.2009.