IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date:- 10.02.2009
Coram
The Honourable Mr. Justice K. CHANDRU
W.P. No.13556 of 1999
K. Ramaswamy ... Petitioner
..Vs..
1. The Management of
Warwick Estate,
Kotagiri 643 217.
2. The Management of
Moutere 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, praying to issue a writ of certiorarified mandamus, to call for the records of the first respondent in ID No.125/94 dated 7.6.1999 and quash the same and direct the first respondent to reinstate the petitioner in Warwick Estate in the same post which he was holding prior to the termination of his service with all backwages and other attendant benefits.
For Petitioner : Mr. R. Sivakumar
For Respondents : Mr. K.R. Vijayakumar
for R1 and R4
Mr. K. Vasu Venkat
for R2
O R D E R
Heard both sides. The writ petition is directed against the award of the third respondent-Labour Court dated 7.6.1999 passed in I.D. No.125 of 1994. By the impugned award, the Labour Court declined to grant any relief to the petitioner. As against this award, the present writ petition has been filed.
2. The writ petition was admitted on 10.8.1999. On behalf of the first respondent, a counter affidavit has been filed stating that the estate has been sold out and they are not in management any more. When the matter was taken up for hearing, since the fourth respondent was not served, fresh notice was directed to be served 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 does not exist any more and as the said estate has been purchased by the fourth respondent, no relief can be granted to the petitioner. The said submission is totally resisted by Mr. R. Shivakumar, learned counsel for the petitioner. In the present case, the non employment of the petitioner was challenged when he was sought to be transferred to another estate and the petitioner took up the contention that he did not obey the said order since no buyer would transfer him to some other estate, who is a different employer.
4. Before the Labour Court, on behalf of the workman, 25 documents were filed and they were marked as Ex.W1 to W25. On the side of the contesting Management, 20 documents were marked and they were marked as Ex.M1 to M20. The Labour Court, in paragraph 11 of the impugned order, held as follows:-
” Thus, throughout the guise of attacking the termination of service of the petitioner, the petitioner has only attacked the order of transfer as without no right, motivated and vindictive et. That being the case the Principle question required to be decided by this court is the legality and validity of the order of transfer flowing free which is the pleas of refusal of work. As a matter of fact the reliefs sought for in this claim statement is to cancel the order of refusal of work from 5.7.93 and to direct the management of Warwick Estate to restore the petitioner in service with continuity of services and other monetary benefits. In effect the prayer sought for is to cancel the order of transfer and to retain him in service at Warwick Estate which would go to prove that the action of the management impugned in this case is only the action of the management in effecting the transfer of the petitioner from one estate to another as such the dispute raised by the petitioner is to be treated as the dispute against the order of transfer covered under the provisions of Section 2K of the Industrial Disputes Act in respect of which the provision of Sec.2A(2) cannot at all be invoked. Thus for the reasons stated above, the present claim u/s. 2A(2) of the I.D. Act is held not maintainable. Accordingly, these points are answered against the petitioner.”
5. In essence, the Labour Court has held that in a case of non 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 brought to the notice of this Court a decision of a Division Bench of this Court reported in the case of MANAGEMENT OF HINDUSTAN MOTORS LTD. v. LAKSHMIAH AND ANOTHER (2002(2) L.L.N. 725). In paragraph 14, it has been held as follows:-
” Therefore, when once it is held that the first respondent was a “workman” as defined under the provisions of the Industrial Disputes Act, it is incumbent on the part of the second respondent to find out as to whether his non-employment is justified or not? As far as the said question is concerned, the dispute between the appellant and the first respondent continued to exist when on the one hand, the appellant would contend that because of the first respondent’s persistent refusal to go on transfer at Dhanbad, it had no option than to terminate his services, the first respondent would contend that he was denied every reasonable opportunity by the appellant before reaching the said conclusion that he defied the orders of the appellant to go on transfer to Dhanbad. Therefore, it is the bounden duty of the second respondent to adjudicate on the said disputed question between the parties. Viewed from that angle, the order of the learned Single Judge in granting the relief of reinstatement with back/wages cannot be sustained.”
6. Since the Labour Court has rejected the award only on the ground that the workman cannot collaterally attack the transfer order while asking the concept of non employment, this Court, taking a contra view, is of the opinion that the impugned order is liable to be set aside. Though Mr. K.R. Vijayakumar, learned counsel for the 4th respondent submits that the Division Bench decision arose out of a reference under Section 10(1), whereas the present case of the petitioner is covered by Section 2A (2) of the Industrial Disputes Act and that makes a material difference, this Court is unable to agree with the said submission. As per Section 2A (2) , the procedure for approaching the Labour Court for individual workman with a grievance of non employment has been simplified. Otherwise, it does not make any difference whether it is a reference under Section 10(1) or individual workman is allowed to go to Labour Court without resorting to any procedure. The power of the Labour Court to make an award in an industrial dispute for adjudication lies in Section 10(4) of the Act. The Labour Court shall confine its adjudication only to the issues in between the parties and the points incidental thereto. Accordingly, the impugned order stands set aside. The matter shall go back to the Labour Court. Since it is a matter of the year 1994, the Labour Court shall give preference for the disposal and in any event dispose of the same within a period of four months from the date of receipt of a copy of this order. It is needless to state that on such remand, all the parties are allowed to lead appropriate evidence, both oral and documentary. The writ petition stands allowed to the extent indicated above. Consequently, the connected W.P.M.P. is closed. No costs.
ssa.
To
1. The Management of
Warwick Estate,
Kotagiri 643 217.
2. The Management of
Moutere Estate,
Adderly Post 643 102.
3. The Presiding Officer,
Labour Court,
Coimbatore 641 018.
4. The Management of
Hovukal Estate,
Kotagiri,
The Nilgiris