ORDER
etimological
A.K. Sikri, J.
1. Petitioners’ union has filed this writ petition against award dated 11.12.1997. The union had raised the dispute which was referred for adjudication vide order dated 22.8.1996 with the following terms of reference:
“Whether the transfer of the workmen mentioned at Annexure-A from 24/A, Najafgarh Road, to Palla, Near Bus Stand, Delhi-110036 by the management is illegal and/or unjustified and if so, to what relief are they entitled and what directions are necessary in this respect?”
2. Thus the question which was referred is whether the transfer of workmen mentioned in Annexure-A was illegal and and unjustified. The tribunal in the impugned award noticed that this very question was referred earlier also for adjudication and against the decision of the award, management had filed the writ petition in which it was held that job of the workmen was transferable from one establishment to other and the employer had right to transfer the workmen. This judgment is reported in 1997 (4) LLN 1914. Relevant portion of the judgment as quoted in the impugned award also reads as under:
“It is not disputed that job is transferable from one establishment to other and of they have done is to the post them to the new factory side. Mr. Vohra contended since there is no work available, others transfer is mala fide and could not be justified while Mr. Birbal has pointed out that factory is coming up over there and work is going to be made available. In any event, I have not been able to find anything wrong with the impugned award on this terms of reference. The employer has transferred in exercise of its powers under the contract of employment to transfer in Delhi these workers from one establishment to the other. Even though the employer is unable to furnish adequate work to this employees, unless and until the term of employment provide for such contingency the employer has to pay wages and is liable to pay wages so long as the employees are reporting for work and are available for the job.”
3. As the Industrial Tribunal in the impugned award relied upon the earlier judgment of this Court directly on point, this aspect of the impugned award cannot be faulted with. However on 10.12.1999 when this petition came up for hearing, counsel for the petitioner argued that workers were entitled to the wages for the intervening period as respondent management had not set up any factory at the place of and even in the aforesaid judgment of this Court, order to this effect was passed. It was further argued that Industrial Tribunal had wrongly observed in the impugned award that these workers were getting their wages which was factually incorrect. Accordingly, notice was issued limited to the question of payment of wages to workers.
4. Counter affidavit has been filed by respondent management in which it is interalia stated that 50 workers did not want to join the place of transfer and therefore matter was settled with them. It is further stated that remaining 67 workmen instead of reporting for duties at the transferred place thought it fit to challenge the transfer and were sitting outside the earlier factory at Najafgarh on an illegal strike. It is further stated that respondent management tried to persuade the workmen to report at the place of transfer i.e. Palla but the workmen did not join the duties.
5. This raises disputed question of fact as to whether the workmen did not join the duties or management did not allow the workmen to join the duties. Be as it may, it is clear from the counter affidavit filed by the management that the wages for the intervening period are not given to the workmen. Therefore the observation made by the Industrial Tribunal that the workmen were being paid wages is clearly erroneous. It was necessary for the Industrial Tribunal to adjudicate this aspect namely as to whether workmen were not reporting for duty or management was not allowing them to join duty and then to decide as to whether workmen are entitled to wages for the intervening period or not. As impugned award does not decide this question, the impugned award is set aside and the matter is remanded back to the Industrial Tribunal to decide this question, after giving opportunity to both the parties to lead evidence on this aspect. Parties to appear before the Industrial Tribunal on 6.4.2000. Since the matter relates to the payment of wages to these workers, it is expected that Industrial Tribunal would decide the question as expeditiously as possible and preferably within 4 months.
6. This writ petition is disposed of accordingly.
