{"id":136733,"date":"2010-02-24T00:00:00","date_gmt":"2010-02-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nilang-vs-gujarat-on-24-february-2010"},"modified":"2016-03-19T00:42:56","modified_gmt":"2016-03-18T19:12:56","slug":"nilang-vs-gujarat-on-24-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nilang-vs-gujarat-on-24-february-2010","title":{"rendered":"Nilang vs Gujarat on 24 February, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Nilang vs Gujarat on 24 February, 2010<\/div>\n
Author: S.R.Brahmbhatt,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/1591\/2010\t 18\/ 18\tORDER \n \n \n\n\t\n\n \n\n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n\n \n\n\n \n\n\nSPECIAL\nCIVIL APPLICATION No. 1591 of 2010\n \n\n\n \n \n=========================================\n \n\n\nNILANG\nB TRIVEDI, WORKING AS PLANT OPERATOR GRADE-I & 3 - Petitioner(s)\n \n\n\nVersus\n \n\n\nGUJARAT\nSTATE ELECTRICITY CORPORATION LTD - Respondent(s)\n \n\n=========================================\n \nAppearance : \nMR\nTR MISHRA for Petitioner(s) : 1 - 4. \nMS LILU K BHAYA for\nRespondent(s) : 1, \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE S.R.BRAHMBHATT\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 24\/02\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Shri T.R.Mishra  for the petitioners and Ms. Lilu K.
\nBhaya for the respondent appearing on caveat.\n<\/p>\n
2.\tAs
\nin this matter, parties had exchanged their respective
\naffidavit-in-reply and rejoinder and as the matter was heard at
\nlength from 19.2.2010 on all working days except  one, i.e.
\n23.2.2010 as it was required to be adjourned on account of Ms.
\nBhaya’s sick report, the Court inquired of the learned advocates as
\nto whether they have instructions to waive service of Rule and the
\nmatter be decided finally treating this hearing as final hearing, to
\nwhich learned advocate Ms. Bhaya submitted that the hearing be
\ntreated as hearing for admission and granting of interim relief only.\n<\/p>\n
3.\tThe
\npetitioners No.1 and 2 are Plant Operators Grade-I , Class-III
\nemployees of the respondent-Corporation, petitioner No.3 is Helper,
\nClass-IV employee of the respondent Corporation and the petitioner
\nNo.4 is a Union recognized by the respondent Corporation and
\noperating in the establishment, have approached this Court under
\nArticle 226 of the Constitution of India challenging the transfer
\norders of petitioners No.1 to 3 dated 17th February, 2010
\nproduced at Annexure-A to the petition collectively, issued by the
\nAdditional General Manager(HR), sitting in the office of Gujarat
\nState Electricity Corporation Limited, Vidyut Bhavan, Race Course,
\nVadodara informing that the competent authority has transferred them
\nfrom Wanakbori TPS to Ukai TPS with immediate effect in the interest
\nof the company’s work as the petitioner Nos.1 to 3 were alleged to
\nhave been involved in an incident on 11.2.2010 at Wanakbori TPS
\nColony premises with one Shri A.D. Sheth, Assistant Chemist, the
\ndetailed report whereof was prepared by Chief Engineer, Wanakbori TPS
\nand on that basis the following common order was passed against each
\nof the petitioner which is reproduced as under for the sake of
\nconvenience:-\n<\/p>\n
 On
\nthe basis of your alleged involvement in the incidence on 11.2.2010
\nin Wanakbori TPS colony premises with Shri A.D.Sheth, Asst. Chemist &
\nthe detailed report of CE. Wanakbori TPS, The competent authority has
\ndecided to transfer you at Ukai TPS with immediate effect in the
\ninterest of Company’s work.\n<\/p>\n
\tYou
\nwill be eligible for joining time, Transfer TA, etc. as per rules.\n<\/p>\n
You
\nstand relieved.\n<\/p>\n
4.\tThe
\nimpugned orders of transfer also contained orders of reliving
\nconcerned transfer employee.\n<\/p>\n
5.
\n\tThe petitioners submitted in paras 4.1 and 4.2 in the memo of
\npetition that the petitioner Nos. 1 to 3 are the members of the
\npetitioner No.4 recognized as Shri Vidyut Kamdar Sangh (  SVKS
\nfor the sake of brevity hereinafter) and this Union is recognized
\nUnion functioning in the establishment of the respondent Corporation.
\nThere is another recognized Union called  Akhil Gujarat Vidyut Kamdar
\nSangh  AGVKS  for short. The petitioner Union with other many
\nUnions operating in this Electricity Company in the State of Gujarat
\nhave been agitating for secret ballot to determine the representative
\ncharacter of the Union and writ petitions have been filed in this
\nCourt. The petitioners have produced on record from page 25 to 31
\nmany complaints and grievances and unfair treatment to them on
\naccount of the Union’s rivalry.\n<\/p>\n
6.\tThe
\npetitioners have contended in paragraph 4.5 of the petition that
\nunder the pressure of another Union, the management has victimized
\nthem and contrary to the Rules, transferred the petitioner Nos. 1 to
\n3, 300 k.m. away from their existing place of work. The petitioners
\nhave contended that the issue with regard to framing of rationale and
\nworkable transfer policy is subject matter of dispute in Reference
\n(I.T.) 84 of 2001. The Industrial Tribunal has, vide its order dated
\n29.5.2002, granted stay against the transferring of employees out of
\nthe circles and head quarters.  Pending the reference, the employer
\nchallenged the said order of Tribunal by preferring Special Civil
\nApplication No. 1779 of 2003 and this Court (Coram: R.M. Doshit, J. )
\non 17.9.2003 confirmed the order of the Industrial Tribunal. The
\npetitioners have further contended that thereafter many attempts of
\nthe respondent to effect transfer of Class-III and Class-IV employees
\noutside the circle and headquarters have been made but they have been
\nsubject matter of petitions and such transfers have been stayed by
\nthis Court.\n<\/p>\n
7.\tThe
\nlearned advocate for the petitioners have cited orders passed by this
\nCourt in Special Civil Application No. 2940 of 2009. The advocate for
\nthe petitioners has also cited another order passed by this Court
\n(Coram: D. H. Waghela, J. ) in Special Civil Application No. 11463 of
\n2006 dated 4th August, 2006, wherein the Court has
\nprotected the workman against the victimization of the management by
\nway of transfer.\n<\/p>\n
8.\tThe
\npetitioners have contended that the impugned transfer orders have
\nmade specific reference to the incident which is alleged to have
\noccurred  on 11.2.2010 in Wanakbori TPS Colony premises with one Shri
\nA.D. Sheth and the detailed report prepared by Chief Engineeer
\nthereof. The petitioners have contended that the said incident was
\ncooked up and the same in any case could not have been resulted into
\ntransferring of the petitioner Nos. 1 to 3 at the behest of rival
\nUnion, which would deal a serious blow to the industrial peace and
\nharmony and also amount to colourable exercise of power unwarranted
\nin the facts and circumstances of the case.\n<\/p>\n
9.\tThe
\nrespondent has denied the averments made in this petition. The
\nrespondent has filed affidavit-in-reply from page 111 to 217 which
\nincludes Annexures to the affidavit-in-reply and contended that the
\ntransfer of the present petitioner Nos. 1 to 3 is just and proper and
\nthe same cannot be assailed and the petition is required to be
\ndismissed.\n<\/p>\n
10.\tLearned
\nadvocate Ms. Lilu K. Bhava submitted that the allegations contained
\nin para-5 of the petition are too general and vague to merit
\nconsideration of this Court.  The appointment order of the
\npetitioners contain clause 5, whereunder, he is specifically informed
\nthat they are liable to serve anywhere in the State of Gujarat.\n<\/p>\n
11.\tMs. Bhaya
\nfurther submitted that as it appears from page 37 Exh.78, which is
\nreproduced from Reference (I.T.) No.84 of 2001, the subject matter of
\nthe Reference and challenge was the circular dated 4.5.2000 on
\naccount of being contrary to the circular  dated 25.5.1990,4.2.1994,
\n13.3.1997 on account of being contrary to the circular dated 4.2.1994
\nand 13.3.1997 and therefore, as on date, at least those two circulars
\ndated 4.2.1995 and 13.3.1997 are invoked and operational and as per
\nthese circulars also, the Board has power to transfer the employee
\nout of the circle in case of frequently transferred category,
\nwhereas, the challenge to the circular dated 4.5.2000 being in
\nrespect of general transfer, the pendency of the reference could not
\nhave come in way of board in effecting the transfer in a peculiar
\nfacts and circumstances of the case.\n<\/p>\n
12.\tMs. Bhaya,
\nlearned advocate submitted under instructions of Additional General
\nManager, Wanakbori that contention of petitioner’s counsel with
\nregard to transfer being effected by Additional General Manager
\nsitting at Head Office is malafide and not sustainable in view of the
\nfact that the existing setup and delegation of orders indicating that
\nthe transfer from the power station to another power station is
\nwithin the domain of the head office of the competent authority of
\nthe company.\n<\/p>\n
13.\tMs. Bhaya
\nalso further submitted that it is the prerogative of the management
\nemployer to transfer the employee from one place to other place as
\nper the service regulation relying upon page 116 of the compilation.\n<\/p>\n
14.\tService
\nregulation is statutory in nature and as such it has effect of
\noverriding the administrative instructions issued time and again in
\nrespect of the transfer in the exigency of the administration.\n<\/p>\n
15.\tThis
\nservice regulation figures in the appointment order of the
\npetitioners and as such it becomes part of the service contract
\nbinding on them.\n<\/p>\n
16.\tIn view of
\nthis peculiar facts and circumstances of the case and on the basis of
\nthe report dated 15.2.2010 as well as 10.2.2010 prepared by Assistant
\nDirector(Security), the competent authority has, with the approval of
\nthe Managing Director, thought it fit to transfer the petitioner from
\nthe aforesaid Thermal Power Station.\n<\/p>\n
17.\tAfter
\nthorough inquiry into the incident and after affording opportunity to
\nboth the parties and recording statement of all the witnesses present
\non the date of incident, the report was prepared and submitted based
\nwhereupon the decision of transfer is effected.\n<\/p>\n
18.\tIn view of
\nthe report, action of transfer was warranted or else  it would have
\nled to deterioration in the law and order situation.\n<\/p>\n
19.\tNot
\nlodging FIR by the employee would not prevent the management from
\ninvestigating and inquiring and taking action. Non-filing of FIR by
\nthe concerned person shall not be treated as a bar to the management
\nfor investigating into the incident and taking action in accordance
\nwith law against the concerned employees who have been found fit to
\nbe transferred in view of the incident which has been investigated.\n<\/p>\n
20.\tThis
\nCourt has heard learned advocates for the parties and perused the
\nmemo of petition and the affidavit filed with its Annexures. The
\nfollowing indisputable aspects are noticed as they emerge from the
\nrival contentions of the parties and, therefore, they deserve to be
\nset out as under for appreciating the contentions of the learned
\nadvocates for the parties:-\n<\/p>\n
1)\tThe
\npetitioner Nos. 1 to 3 are Class-III and Class-IV employees working
\nat Wanakbori Thermal Power Station.\n<\/p>\n
2)\tThe
\npetitioner Nos. 1 to 3 are members of SVKS Union.\n<\/p>\n
3)\tThe
\npetitioners and other Unions have been agitating for introduction of
\nsecret ballot system for determining the representative character of
\nthe Union.\n<\/p>\n
4)\tThe
\npetitioner No.1, namely, Nilang B. Trivedi is a Deputy General
\nSecretary of SVKS petitioner No.4 Union and thus he is the office
\nbearer of the Union. The petitioner No.2 Mr. M. R. Patel is said to
\nbe Zonal Secretary of SVKS Union and petitioner No.3 Shri.
\nShravankumar R. Charan is a Coordination Secretary of the said Union.\n<\/p>\n
5)\tThe
\npetitioner Nos. 1 to 3 have averred in paragraph 5 of their petition
\nthat they are office bearers and they have been chosen for transfer
\nby way of  victimization from Wanakbori Thermal Power Station to Ukai
\nThermal Power Station.\n<\/p>\n
6)\tThe
\npetitioners in paragraph 6 of the memo of petition have averred that
\nthe petitioner Union i.e. SVKS who is petitioner No.4 herein in
\nrecent check off system declared on 11th February, 2009
\ncommands  majority amongst Class-III and Class-IV employees for the
\npurpose of recognization as sole bargaining agent in respect of
\nemployees. Therefore, the orders of transfer are also contrary to
\nSection 33 of the Industrial Disputes Act, 1947 as no permission for
\ntransfer has been sought from the Industrial Tribunal where the
\nreference is pending.  The petitioners in para 4.11 of the petition
\nhave mentioned that the transfer orders are effected under the
\npressure of the rival union and hence they are bad in the eyes of
\nlaw.\n<\/p>\n
7)\tThe
\nrespondent has denied the averments and contentions made in this
\npetition in its totality. The respondent did not chose to deal with
\npara-wise contentions raised by the petitioners but they have said
\nthat it may not be treated as admission on the part of the
\nrespondent.\n<\/p>\n
8)\tThe
\nrespondent has said that the petitioner Nos. 1 to 3 were responsible
\nfor creating raucous and hurled abuses to one Shri A.D. Sheth at
\n23:00 hrs. on 11.2.2010. The management received complaint on
\n12.2.2010 at 16:00 hrs from said Shri A.D. Sheth, who is a member  of
\nthe Union called AGVKS, with regard to such incident. On receipt of
\nthe complaint, the Chief Engineer, Wanakbori Thermal Power Station
\ndirected one Shri D.S. Vasavada, Assistant Director (Security) to
\ninquire into this and submitted his report.\n<\/p>\n
9)\tThe
\nrespondent has stated in its reply that said Shri D.S. Vasavada,
\nAssistant Director(Security) investigated the matter, recorded the
\nstatement of witnesses, who were residing in the colony and also
\nrecorded the statement of rival parties. He submitted his inquiry
\nreport on 16.2.2010 which indicated that there was substance in the
\nallegation made by Shri A.D. Sheth and there was no substance in the
\nallegation made by the petitioner No.4 Union. The respondent has also
\nstated that the transfer was in accordance with the general policy of
\ntransfer and, therefore, the complaint filed by said person Shri A.
\nD. Sheth is produced at Annexure-I with the affidavit-in-reply.
\nPerusal of the said complaint indicates that the same was filed on
\n12.2.2010 and as per the say of the respondent, it was at 16:00 hrs
\nin the afternoon, the said complaint is signed as Additional General
\nSecretary, Wanakbori Power Station and the copies of the said
\ncomplaint is marked as General Secretary, AGVKS. The said complaint,
\nin short, narrates that on 11.2.2010 at about 11:30 p.m. the
\nSecretary General Shri A.G. Mirza of SVKS and three others had with
\ncrowd of 15 came  near the quarter of Shri A.D. Sheth, in inebriated
\ncondition, and  was pushed and they hurled abuses to him. Therefore,
\nthis complaint was made for punishing them. The respondent has also
\nproduced on record along with the reply, the complaint made on
\n12.2.2010 by AGVKS i.e the rival Union, which also talks about such
\nincident said to have occurred at 11:30 hrs. The copy is sent to
\nSecretary General, AGVKS, Ukai. Th petitioner No.4 Union also appears
\nto have filed complaint in respect of the misbehaviour on the part of
\nthe office bearers of AGVKS. As per that complaint it is stated
\ntherein that on 11th February, 2010 there was a Secretary
\nGeneral meeting in respect of check of circular in all power houses
\n.Though the list was declared at Wanakbori, the concerned letters and
\nthe list were not declared. The list was required to be declared only
\nat th behest of their General Secretary, Shri Mirza at 5 p.m. At that
\ntime, they happened to see one Shri. A. D.Sheth near his residence,
\nwho misbehaved with them and, therefore, they said that it needs to
\nbe inquired into.\n<\/p>\n
10)\tIt
\nis important to note that the Chief Engineer appears to have ordered
\nthe Assistant Director(Security) to inquire into it, who in turn,
\nappears to have recorded the statement and report is filed at page
\n125 which is dated 15.2.2010 and at page 166 which is dated
\n16.2.2010. It seems that the complaint of the petitioner No.4 Union
\nwas independently inquired and report dated 16.2.2010 was filed which
\nis submitted at page 166 of the affidavit-in-reply. In short,
\nAssistant Director (Security) has stated that the complaint of Shri
\nSheth was found with some substance and discarded the complaint of
\nthe petitioner No.4 Union as having no substance.\n<\/p>\n
11)\tDuring
\nthe course of submission, an office note dated 16th
\nFebruary, 2010 was placed on record by Ms. Bhaya bare perusal
\nthereof, shows that the proposal was submitted to transfer the
\npetitioner Nos. 1 to 3 on account of alleged incident and the report
\nof the inquiry officer and the said note contains the proposal as
\nunder:\n<\/p>\n
 \tIt
\nis further submitted that the Secretary General of SVKS has also
\nforwarded a letter dated 13.2.2010 (Placed at Flag-B) and has
\nclaimed that the incidence of 11.2.2010 was concocted with a malice
\nintention of the rival union. The counter allegation of SVKS were
\nalso investigated, and nothing substantial has been revealed( Ref,
\nletter of CE, WTPS dated 16.2.2010) Flag-C.\n<\/p>\n
\tIt
\nis pertinent to state that by interim order in Ref.(IT) No. 84\/01 the
\ntransfer of Class-III\/IV employees out of Power Station is
\nrestricted. This interim order is also confirmed by High Court in SCA
\nNo. 1779\/03 against which LPA is pending. Recently Shri B.A. Modi,
\nPO-I of Utran GBPS was transferred to Ukai TPS and by virtue of order
\nin SCA 11214\/09 we could not transfer him and we ere compelled to
\nretain him at Utran GBPS. As such if we intend to transfer the
\nabove-mentioned employees they would prefer petition and it is
\ntherefore, necessary to issue a speaking order. It is also necessary
\nto file caveat in High Court, Ahmedabad, It, Nadiad, IT, Ahmedabad
\nand Civil Court, Thasra.\n<\/p>\n
\tOn
\nthis, the Managing Director has passed a note marked as Annexure-A
\nwhich is reproduced hereinbelow:-\n<\/p>\n
\t The
\nabove misconduct is of serious nature and keeping in view the I.R.
\nsituation  of WTPS, it is not advisable to continue them at WTPS and
\nwe may transfer all 3 employees to Ukai TPS. The draft transfer order
\nis attached herewith.\n<\/p>\n
\tMatter
\nmay be suitably decided on the basis of above submission.\n<\/p>\n
21.\tThus,
\nin view of the aforesaid indisputable factual backdrop, the Court is
\nrequired to examine the rival submissions of the learned advocates
\nfor the parties for deciding the issue with regard to admission and
\ngranting of interim relief at this stage.\n<\/p>\n
22.\tA
\nclose perusal of the transfer orders even without perusing the office
\nnote dated 16.2.2010 in terms indicate that they are based upon the
\nreport of Chief Engineer, Wanakbori TPS in respect of the involvement
\nof petitioner Nos.1 to 3 in the incidence which took place on
\n11.2.2010 in Wanakbori TPS Colony premises with Shri A.D. Sheth,
\nAssistant Chemist. The respondent has not placed on record that under
\nwhich service regulation or conduct regulation the incident which is
\nsaid to have occurred at Wanakbori TPS Colony premises with Shri A.D.
\nSheth and alleged to have involvement of petitioner Nos.1 to 3, is a
\nmisconduct falling under the service regulations. The Court hasten to
\nadd  here that the occurring of incident might be that of law and
\norder question but the incident has not taken place at the workplace.
\nWhen the incident of such a nature has not taken place in the
\nprecincts of the workplace or the power station, admittedly that
\nincident is said to have occurred at the residential colony premises
\nwhich is not forming part of the work place, then the question is as
\nto how far the management can have right to effect the transfer of
\nits employees for the incidents that might have occurred in the
\nresidential premises though noted by the employer that the incident
\nwhich is said to have occurred at 11.00 hrs or 11:30 hrs and that
\nwere not the working hours and the presence of complainant Shri
\nA.D.Sheth as well as the petitioner Nos. 1 to 3 were naturally bound
\nto be there as could be seen from the respective complaints. It is no
\nones case that their presence in the colony premises was in any way
\nunnatural, unwarranted or uncalled for. In such a situation ,when
\nsuch conduct is not classified to be misconduct then, in my view, the
\nconducting of investigation by the Assistant Director(Security) and
\nrecording statement and based upon this report, straightaway
\neffecting transfer, would prima facie amount to colourable exercise
\nof power of transfer.\n<\/p>\n
23.\tIt
\nis required to be noted at this stage that the petitioners have prima
\nfacie, been successful in convincing this Court with regard to
\nexistence of Union rivalry and the litigations and, therefore these
\nfactors may not be overlooked by the Court at this stage, which
\nassumes proper importance in deciding the matter for admission and
\ninterim relief. The Court, at this stage, also would like to advert
\nto some glaring aspects in the inquiry carried out by the Assistant
\nDirector(Security) which cannot be brushed aside lightly by any
\nauthorities. It is required to be noted that though in the complaint
\nof 12.2.2010 filed by Shri A.D. Sheth, it was specific allegation
\nthat the crowd of 15 persons approached him in inebriated condition
\nand they were under the influence of liquor. The report at page 125
\ndated 15.2.2010 filed by said Shri Vasavada, Assistant Director
\n(Security) contains that on 11.2.2010 at about 23:30 hrs when said
\nShri Vasavada was in his quarter, he received a telephonic message
\nfrom Shri Sanjay  Kumar Patel, Office Bearer of Union AGVKS  i.e. the
\nUnion, termed to be rival union by the petitioner, and informed that
\nnear the residence of Shri A.D. Sheth i.e Type 381\/4, members of
\nAGVKS are creating raucous and they are under the influence of
\nliquor. When he was asked to give more details, said Shri Patel
\ninformed him that he was on the plant in the night duty. Therefore,
\nhe did not know more details but he was informed by said Shri Sheth
\nthat the persons are in inebriated condition. The Assistant Director
\nthen sent the Security Inspector, Shri Dindor and Shri Dindor
\ninformed him that he reached their within 4 to 5 minutes but he did
\nnot find any one. He could find only Shri Sheth and five persons
\nalong with him. There was no atmosphere of any raucous. Shri Dindor
\ninquired of Shri Sheth as to any happening of the incident. At that
\ntime, Shri Sheth informed Shri Dindor that Shri Nilang B. Trivedi,
\nShri M. R. Patel, Shri Shravankumar R. Charan (Petitioner Nos.1 to\n<\/p>\n
3)etc. had come and it was altercation with regard to Union matters
\nbut now there is nothing and, therefore, he did not give in writing
\nany complaint to Shri Dindor . Shri Dindor specifically inquired of
\nhim as to whether any police complaint is required to be filed. He,
\nwas, therefore, informed by Shri Sheth that it was not to be filed.
\nThereafter, Shri Dindor went  to the residence  side of  Shri Nilang
\nB. Trivedi, Shri M. R. Patel, Shri Shravankumar R. Charan but
\neverything was found to be quiet and, therefore, Shri Dindor did not
\nmake any further inquires.\n<\/p>\n
24.\tIt
\nis important to note at this stage that the report mentioned talk of
\nShri Dindor with Shri A.D.Sheth which indicates that said Shri Sheth
\ndid not report that the persons including the petitioners were in an
\ninebriated condition.\n<\/p>\n
25.
\n\tThis Court is of the view that the entire incident even if assumed
\nto be correct, then also it was falling under the realm of law and
\norder for which Shri Sheth had appropriate remedy and the power of
\ntransfer could not have been utilized for reducing fear on the mind
\nof Shri Sheth if at all there was fear.\n<\/p>\n
26.\tThe
\nCourt is also of the prima facie, view that the contention made by
\nShri Mishra with regard to the pendency of the reference and,
\ntherefore, the breach of Section 33 of the Industrial Disputes Act,
\n1947 in effecting the transfer of the office bearer without
\npermission, is also required to be taken note of at this stage.\n<\/p>\n
27.\tIt
\nis required to be noted at this stage that the said order granted in
\nReference being Reference (I.T.) No.84 of 2001 and the subsequent
\ndevelopment by way of interim orders of this Court may also go to
\nstrengthen the case of the petitioners. The petitioners have made out
\na, prima facie, case and looking to the rivalry between the Union and
\nwhen the alleged misconduct is not a misconduct which is occurred at
\nthe workplace and nor is it a misconduct classified to be misconduct
\nunder the service rules, the impugned transfer orders, prima facie,
\nappears to be without jurisdiction and authority of law.\n<\/p>\n
28.
\nIt is required to be noted that assuming that there is misconduct,
\nwhich was a misconduct classified to be a misconduct, is inquired and
\ninvestigated into ex parte without there being given an opportunity
\nto defend to the employees concerned. In the instant case, the
\ninvestigation carried out by the Assistant Director(Security) cannot
\nbe said to be an investigation equivalent to full-fledged inquiry or
\ndisciplinary inquiry into the incident nor has the management issued
\nany chargesheet to the petitioner Nos. 1 to 3. The petitioners have
\nnot been given an opportunity in terms of the issuance of
\nchargesheet, the statement of witnesses or the report of so-called
\ninquiry and straightaway they have been saddled with orders transfer
\ni.e. punishment. It is, at this stage, very important to note that
\nthe respondent has nowhere given in its affidavit-in-reply that they
\npropose to hold any inquiry based upon the preliminary investigation
\ncarried out by Shri Vasavada  the  Assistant Director (Security). The
\nCourt hasten to add here that the respondent has rightly not come out
\nwith any preposition of conducting any inquiry as prima facie the
\nincident of 11.2.2010 which is alleged to be misconduct on the part
\nof the petitioners No.1 to 3 would not be falling under the conduct
\nRules.\n<\/p>\n
29.\tThus,
\nfrom this angle, the Court is absolutely satisfied that there exists
\na strong prima facie case in favour of the petitioners
\nand hence, Rule. Rule is made returnable on 30.3.2010. Ms. Bhaya,
\nwaives service of Rule on behalf of respondent. The order impugned
\nshall remain stayed till the final disposal of this petition. As the
\norders impugned are stayed, the petitioner Nos.1 to 3 are permitted
\nto resume their respective duties forthwith as if those order were
\nnot issued at all.\n<\/p>\n
30.\tAt this
\nstage, Ms. Bhaya requested for staying this order. The Court is of
\nthe view that when the Court has come to the conclusion that prima
\nfacie the order passed are in colourable exercise of power and the
\nauthority lacked power and imposed its wish and will and when two
\nrival Unions are fighting it with each other, the staying of the
\norder would not be justified. Hence, the Court rejects the request of
\nstaying the order and order for reinstating them on their original
\npost, which shall be carried out forthwith.\n<\/p>\n
(S. R.\n<\/p>\n
Brahmbhatt, J. )<\/p>\n
sudhir<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Nilang vs Gujarat on 24 February, 2010 Author: S.R.Brahmbhatt,&Nbsp; Gujarat High Court Case Information System Print SCA\/1591\/2010 18\/ 18 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1591 of 2010 ========================================= NILANG B TRIVEDI, WORKING AS PLANT OPERATOR GRADE-I & 3 – Petitioner(s) Versus GUJARAT STATE ELECTRICITY […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-136733","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nNilang vs Gujarat on 24 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nilang-vs-gujarat-on-24-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nilang vs Gujarat on 24 February, 2010 - 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