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LPA/81220/2008 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 812 of 2008
in
SPECIAL
CIVIL APPLICATION No. 9258 of 2008
with
CIVIL
APPLICATION No.9428 of 2008
For
Approval and Signature:
HON'BLE
MR.JUSTICE A.L.DAVE
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PARESH
GULABBHAI MEGHNATHI & 1 - Appellant(s)
Versus
AVERY
INDIA LIMITED - Respondent(s)
=========================================================
Appearance :
MR
DG SHUKLA for Appellants
MR KM PATEL,
SR.ADVOCTE WITH MR JM PATEL FOR MR VARUN K.PATEL for
Respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 12/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
1. The
appellants challenge the judgment and order dated 17-18th
July, 2008 passed in Special Civil Application No.9258 of 2008 by
this Letters Patent Appeal. The said petition was preferred by the
respondent herein to challenge the order dated 16th June,
2008, of the Labour Court, Ahmedabad, passed below Ex.2 in Complaint
No.4 of 2008 in Reference (LCAD) No.8 of 2008, whereby the transfer
of the appellants from Ahmedabad to Jaipur came to be stayed till
further orders or till final disposal of the said complaint.
2. The
facts of the case, in brief, are that the appellants are the
employees of the respondent-Company, working with the
respondent-Company for nearly ten years. They are the office bearers
of the Union and by virtue of an order passed in April 2008, they
came to be transferred from Ahmedabad to Jaipur, which two stations
fall in different areas constituted by the Company for its
administrative purposes. It was the case of the appellants that the
Union had raised a Charter of Demand and the matter was pending by
way of a dispute referred to the Labour Court since January 2008.
2.1 The
orders of transfer were challenged by the appellants mainly on the
following grounds:
(i)
That the orders are signed by an authority which is not competent to
sign or pass an order of transfer.
(ii)
That the orders are passed by way of a mala fide action in order to
victimize the appellants as they had, as office bearers of the Union,
raised a Charter of Demand.
(iii)That
both, the complaint filed under Section 33A of the Industrial
Disputes Act, 1947 ( the Act for short) as well as the
Reference, are pending, and, therefore, the orders resulting into
change in service conditions could not have been passed in the light
of provisions contained in Section 33(1) and 33(2) of the Act.
2.2 The
Labour Court, Ahmedabad, while passing the order impugned before
the learned Single Judge, accepted the case of the appellants herein
and granted relief staying the operation of the transfer orders
during the pendency of the complaint, by an order dated 16th
June, 2008.
2.3 Aggrieved
by the said order, the present respondent preferred Special Civil
Application No.9258 of 2008 before this Court. The learned Single
Judge, after hearing both the sides, allowed the said petition and
set aside the order passed by the Labour Court below Ex.2. The
learned Single Judge also directed that the complaint application
be heard and decided by the Labour Court on or before 31st
October, 2008. The learned Single Judge also directed the petitioner
(respondent herein) to cooperate in early hearing of the subject
compliant-application and not to ask for unnecessary and avoidable
adjournments.
2.4 Aggrieved
by the said order, the present Appeal is preferred.
3. We
have heard learned advocate Mr.Shukla for the appellants and learned
Senior Advocate Mr.K.M.Patel appearing with Mr.J.M.Patel for the
respondent, on Caveat.
4. Learned
advocate Mr.Shukla submitted that the transfer order is dated 8th
April, 2008. It purports to have been signed by the Area Manager and
the signature is put by one Mr.A.Modgil, who was, at that point of
time, not the Area Manager. Mr.Shukla has drawn our attention to
certain documents to show that Mr.Modgil was given charge of the Area
Manager by communication dated 14th April, 2008, and was
made full-fledged Area Manager by communication dated 22nd
April, 2008, whereas the transfer orders appear to have been signed
by him on 8th April, 2008. Mr.Shukla has relied on the
decision in the case of Dr.Ramesh Chandra Tyagi v. Union of India
and Others (1994)2 SCC 416
to support his above contention.
4.1 As
regards victimization and mala fide action, Mr.Shukla submitted that
the Reference was to come up for hearing on 9th April,
2008, whereas the orders of transfer are passed on 8th
April, 2008, transferring the appellants from Ahmedabad to Jaipur. It
is thus clear that the orders are passed with a view to see that the
appellants are unable to attend the Reference before the Labour
Court. Mr.Shukla relied on a decision in the case of Krishna Kumar
Verma v. M.P.Electricity Board, Jabalpur and Others – 2002 IV LLJ
(Suppli.) 612 in support of this contention.
4.2 It
was submitted by learned advocate Mr.Shukla that the Reference as
well as the complaint are pending. The appellants are the office
bearers of the Union and their service conditions could not have been
changed by the respondent-Company during the pendency of Reference.
In support of this submission, he relied on the provisions contained
in Section 33 and 33A of the Act. He also relied on decision in the
case of Standard Vacuum Oil Company Ltd., Calcutta v. Their
Employees (Standard Vacuum Employees’ Union) 1954 II LLJ 355.
4.3 Mr.Shukla
submitted further that the learned Single Judge, while disposing of
the Special Civil Application, has relied on the Settlement which was
not produced before the Labour Court and was not forming part of the
record and, therefore, prejudice is caused to the appellants.
4.4 Mr.Shukla
submitted that identical matters are pending before the Court where
this Court has interfered with the orders of transfer during the
pendency of Reference.
4.5 Lastly,
Mr.Shukla submitted that apart from the above stated legal grounds,
the Court may consider the fact that the appellants are Class-III
employees earning about Rs.10,000/- per month. These transfers, if
not stayed, would cause the appellants social and financial
disturbance. Their children may suffer or the appellants may be
required to run parallel establishments, one at Ahmedabad and another
at Jaipur, which would disturb their financial arrangements. He
submitted that the complaint is coming up for hearing on 29th
August, 2008. Keeping all these aspects in mind, the Court may
entertain this Appeal and stay the order of the learned Single Judge
as well as the transfer orders passed by the respondent-Company.
5. Learned
Senior Advocate Mr.K.M.Patel appearing with learned advocate
Mr.J.M.Patel for the respondent-Company, submitted that admittedly,
there were no Standing Orders produced before the Labour Court. The
Labour Court has also recorded this aspect and as per the provisions
contained in Section 33(2)(a) of the Act, the Labour Court would have
to fall back on the terms of contract and admittedly, the letters of
appointment of the appellants bear a covenant to the effect that they
can be transferred to anywhere in India. Mr.Patel also submitted that
there is no change in the service conditions at all in the light of
the above undisputed aspects and the Labour Court was, therefore, not
justified in interfering with the orders of transfer.
5.1 Mr.Patel
submitted that so far as the authority of Mr.Modgil to sign the
transfer orders is concerned, it is clear that though the orders are
dated 8th April, 2008, admittedly, they have been
delivered on 14th April, 2008. In the affidavit-in-reply,
it has been made clear that Mr.Modgil was given charge of the Area
Manager on 14th April, 2008, because of resignation of the
then Area Manager on 11th April, 2008, and after receiving
that, the orders are signed and delivered.
5.2 Mr.Patel
has also drawn our attention to the fact that the decision to
transfer the appellants was taken at the Head Office level and it was
only communicated through Mr.Modgil by the so-called orders of
transfer and since the draft was sent on mail, it was transmitted to
the appellants after putting signature of Mr.Modgil. It is therefore
not correct to say that the orders of transfer are passed by
Mr.Modgil, holding charge of Area Manager. Thus, the decision to
transfer was, in fact, taken by the Head Office and not by Mr.Modgil.
5.3 Mr.Patel
relied on the decision in the case of M/s.Bharat Iron Works v.
Bhagubhai Balubhai Patel and others AIR 1976 SC 98 to show
that this is not a case of victimization and to show further that to
prove the case of mala fides and victimization, there has to be
specific and detailed averments and evidence to support such
allegations.
5.4 Mr.Patel
submitted that in view of above position, the Appeal may not be
entertained.
6. We
have taken into consideration the rival side submissions. In order
that we may be able to deal with these contentions appropriately
without much repetition, certain undisputed facts need to be
narrated.
(a)
The appellants’ appointment orders contain a specific covenant to
the effect that the appointee may be transferred at any time from one
job or section or department to another and from one Establishment to
any other Establishment of the Company in any State within the Indian
Union which exists at present or may come into existence in future,
provided, however, that such transfer does not involve any loss in
normal wages.
(b)
Before the Labour Court, the settled Standing Orders were not placed
by either of the parties.
(c)
The communications of transfer, though dated 8th April,
2008, were served upon the appellants on 14th April, 2008.
(d)
Mr.Modgil, who has put his signature on these communications, was
not holding the post of Area Manager till 14th April,
2008, when he was given charge of that post.
(e)
The then existing Area Manager resigned from the post on 11th
April, 2008.
(f)
Communication from the Head Office transmitting the orders of
transfer was received by Ahmedabad Office of the respondent.
(g)
The transfer orders were to become effective from 1st May,
2008.
7. With
the above undisputed facts in background, if the case is considered,
the first allegation that the orders of transfer are passed by an
incompetent authority cannot be accepted for the reason that decision
to transfer the appellants was taken at the Head Office level and the
same was sent from Head Office to Ahmedabad office of
respondent-Company on 9th April, 2008, as submitted by
learned Senior Advocate Mr.K.M.Patel on the basis of copy of
communication with him. Though the communication is dated 8th
April, 2008, it is served on the appellants only on 14th
April, 2008, and it was to become effective on 1st May,
2008. It is thus clear prima-facie that when the order was served,
the officer who has put his signature on the order was holding charge
of Area Manager. It is also indicated in the affidavit-in-reply that
the decision was taken by the Head Office which is superior to Area
Manager and it was communicated but was served only on 14th
April, 2008.
7.1 The
second fold of argument to support the plea of victimization is that
the appellants are the office bearers of the Union and because they
have raised a Charter of Demand and a Reference is made, they are
sought to be victimized. To a pointed query to the learned advocate
for the appellants, it was indicated that the appellants are the
office bearers of the Union for a long time and during that time,
several negotiations have taken place, demands have been raised.
Therefore it is not possible to accept that because they are the
office bearers, they are being victimized. If that was to be done,
that would have been done long back.
7.2 The
above aspects would negative the case of the appellants that the
transfer orders were passed just on the previous day of day on which
the Reference was to come up for hearing and that the transfer orders
were passed to ensure that the appellants are unable to appear before
the Labour Court to support the Reference. The reason is that the
orders were served admittedly on 14th April, 2008 and that
they were to come into effect from 1st May, 2008, and,
therefore, it is not possible to accept that the orders were passed
with mala fide intention of preventing the appellants from appearing
before the Labour Court to support the Reference.
8. In
the light of above observations, the decision in the case of Krishna
Kumar Verma v. M.P.Electricity Board, Jabalpur and Others (supra)
relied upon by learned advocate Mr.Shukla will not be of any help to
the appellants as prima-facie, we are of the view that mala fide or
victimization is not proved.
9. So
far as pendency of proceedings is concerned, particularly the
Reference, it was contended that the condition of service could not
have been altered to the detriment of the appellants during the
pendency of proceeding. In this regard, we may refer to the
provisions contained in Section 33 of the Act. Section 33(2) of the
Act provides that during the pendency of any proceeding in respect of
an industrial dispute, the employer may alter in regard to any matter
not connected with the dispute, the conditions of service applicable
to the workman immediately before the commencement of such proceeding
in accordance with the Standing Orders applicable to the workman
concerned in such dispute or where there are no such Standing Orders,
in accordance with the terms of contract, whether express or implied
between the employer and the workman. In the instant case on our
hand, there is no dispute that the Standing Orders were not produced
before the Labour Court and if there are no such Standing Orders, the
Court will have to fall back on the terms of contract. The terms of
contract in the case of appellants, as indicated earlier,
specifically provide for transfer to any State in the Union of India
and, therefore, it cannot be said that the powers are exercised in
breach of this provision. The Labour Court, in paragraph-26 of its
order, has also observed that conditions of appointment letter would
be applicable in absence of Standing Orders as such Standing Orders
were not before the Labour Court. Still, the Labour Court has
proceeded on a premise that the transfers were in violation of the
Standing Orders. The Learned Single Judge was, therefore, justified
in interfering with the order of the Labour Court.
9.1 Section
33(1)(a) of the Act provides that during the pendency of any
conciliation proceeding before the Conciliation Officer or a Board or
any proceeding before an arbitrator or a Labour Court in respect of
an industrial dispute, no employer shall in regard to any matter
connected with the dispute alter to the prejudice of the workmen
concerned in such dispute, the conditions of service applicable to
them immediately before the commencement of such proceeding, except
with the express permission in writing of the authority before which
he proceeding is pending. It was therefore contended that in absence
of such permission, the orders are passed and, therefore, the orders
of transfer are in violation of the said provision. In our view, this
contention also cannot be accepted for the reason that the condition
of service applicable to the appellants immediately before the
commencement of the proceeding cannot be said to have been violated
in view of the transfer clause in the appointment orders.
10. It
was then contended that the Settlement, though not on record of the
Labour Court, is relied upon by the learned Single Judge while
passing the order. Factually, this aspect seems to be true. But that
is not the sole ground on which the order is passed. The learned
Single Judge has taken into consideration other relevant aspects
while setting aside the order of the Labour Court.
11. So
far as pendency of identical matters before this Court is concerned,
we may only observe that the orders relied upon by the appellants are
of interim nature, do not divulge the details of the facts of that
case and, therefore, it is not possible for us to act on these orders
once we do not find merit in the Appeal.
12. In
view of the foregoing discussion, it is clear that none of the
contentions raised by the appellants merit acceptance. The appeal,
therefore, must fail, and stands dismissed.
13. We
may hasten to add that the petition as well as this Appeal arise out
of an order passed by the Labour Court below Ex.2 in Compliant No.4
of 2008 in Reference (LCAD) No.8 of 2008, which itself is in the
nature of an interlocutory order and the complaint is still pending.
The observations made by us are only for the limited purpose of
deciding this Appeal and may not be taken as conclusive findings on
plea of either side. That stage is yet to come before the Labour
Court when the parties would adduce their evidence. The Labour Court
shall therefore decide the complaint without being influenced by any
observation that we may have made in this order.
14. In
view of dismissal of Appeal, Civil Application No.9428 of 2008 for
stay stands disposed of.
(A.L.Dave,
J.)
(Smt.Abhilasha Kumari, J.)
(sunil)
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