{"id":149088,"date":"2008-08-12T00:00:00","date_gmt":"2008-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/paresh-vs-avery-on-12-august-2008"},"modified":"2015-05-29T09:05:25","modified_gmt":"2015-05-29T03:35:25","slug":"paresh-vs-avery-on-12-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/paresh-vs-avery-on-12-august-2008","title":{"rendered":"Paresh vs Avery on 12 August, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Paresh vs Avery on 12 August, 2008<\/div>\n
Author: A.L.Dave,&Nbsp;Honble Smt. Kumari,&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\n\n \n\n\n\t \n\nLPA\/81220\/2008\t 17\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nLETTERS\nPATENT APPEAL No. 812 of 2008\n \n\nin\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9258 of 2008\n \n\nwith\n \n\nCIVIL\nAPPLICATION No.9428 of 2008 \n \n\n\n \n\n \nFor\nApproval and Signature:  \n \nHON'BLE\nMR.JUSTICE A.L.DAVE\n \n\n \n\n\n \n\nHON'BLE\nSMT. JUSTICE ABHILASHA KUMARI\n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil  judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n\n \n\nPARESH\nGULABBHAI MEGHNATHI & 1 - Appellant(s)\n \n\nVersus\n \n\nAVERY\nINDIA LIMITED - Respondent(s)\n \n\n=========================================================\nAppearance : \nMR\nDG SHUKLA for Appellants \nMR KM PATEL,\nSR.ADVOCTE WITH MR JM PATEL FOR MR VARUN K.PATEL for\nRespondent \n=========================================================\n\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 A.L.DAVE\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 12\/08\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.L.DAVE)<\/p>\n
1.\t\tThe
\nappellants challenge the judgment and order dated 17-18th
\nJuly, 2008 passed in Special Civil Application No.9258 of 2008 by
\nthis Letters Patent Appeal. The said petition was preferred by the
\nrespondent herein to challenge the order dated 16th June,
\n2008, of the Labour Court, Ahmedabad, passed below Ex.2 in Complaint
\nNo.4 of 2008 in Reference (LCAD) No.8 of 2008, whereby the transfer
\nof the appellants from Ahmedabad to Jaipur came to be stayed till
\nfurther orders or till final disposal of the said complaint.\n<\/p>\n
2.\t\tThe
\nfacts of the case, in brief, are that the appellants are the
\nemployees of the respondent-Company, working with the
\nrespondent-Company for nearly ten years. They are the office bearers
\nof the Union and by virtue of an order passed in April 2008, they
\ncame to be transferred from Ahmedabad to Jaipur, which two stations
\nfall in different areas constituted by the Company for its
\nadministrative purposes. It was the case of the appellants that the
\nUnion  had raised a Charter of Demand and the matter was pending by
\nway of a dispute referred to the Labour Court since January 2008.\n<\/p>\n
2.1\t\tThe
\norders of transfer were challenged by the appellants mainly on the
\nfollowing grounds:\n<\/p>\n
(i)
\n That the orders are signed by an authority which is not competent to
\nsign or pass an order of transfer.\n<\/p>\n
(ii)
\nThat the orders are passed by way of a mala fide action in order to
\nvictimize the appellants as they had, as office bearers of the Union,
\nraised a Charter of Demand.\n<\/p>\n
(iii)That
\nboth, the complaint filed under Section 33A of the Industrial
\nDisputes Act, 1947 ( the Act  for short) as well as the
\nReference, are pending, and, therefore, the orders resulting into
\nchange in service conditions could not have been passed in the light
\nof provisions contained in Section 33(1) and 33(2) of the Act.\n<\/p>\n
2.2\t\tThe
\nLabour Court, Ahmedabad, while   passing the order impugned before
\nthe learned Single Judge, accepted the case of the appellants herein
\nand granted relief staying the operation of the transfer orders
\nduring the pendency of the complaint, by an order dated 16th
\nJune, 2008.\n<\/p>\n
2.3\t\tAggrieved
\nby the said order, the present respondent preferred Special Civil
\nApplication No.9258 of 2008 before this Court. The learned Single
\nJudge, after hearing both the sides, allowed the said petition and
\nset aside the order passed by the Labour Court below Ex.2. The
\nlearned Single Judge also directed that the complaint   application
\nbe heard and decided by the Labour Court on or before 31st
\nOctober, 2008. The learned Single Judge also directed the petitioner
\n(respondent herein) to cooperate in early hearing of the subject
\ncompliant-application and not to ask for unnecessary and avoidable
\nadjournments.\n<\/p>\n
2.4\t\tAggrieved
\nby the said order, the present Appeal is preferred.\n<\/p>\n
3.\t\tWe
\nhave heard learned advocate Mr.Shukla for the appellants and learned
\nSenior Advocate Mr.K.M.Patel appearing with Mr.J.M.Patel for the
\nrespondent, on Caveat.\n<\/p>\n
4.\t\tLearned
\nadvocate Mr.Shukla submitted that the transfer order is dated 8th
\nApril, 2008. It purports to have been signed by the Area Manager and
\nthe signature is put by one Mr.A.Modgil, who was, at that point of
\ntime, not the Area Manager. Mr.Shukla has drawn our attention to
\ncertain documents to show that Mr.Modgil was given charge of the Area
\nManager by communication dated 14th April, 2008, and was
\nmade full-fledged Area Manager by communication dated 22nd
\nApril, 2008, whereas the transfer orders appear to have been signed
\nby him on 8th April, 2008. Mr.Shukla has relied on the
\ndecision in the case of Dr.Ramesh Chandra Tyagi v. Union of India
\nand Others<\/a>   (1994)2 SCC 416
\nto support his above contention.\n<\/p>\n
4.1\t\tAs
\nregards victimization and mala fide action, Mr.Shukla submitted that
\nthe Reference was to come up for hearing on 9th April,
\n2008, whereas the orders of transfer are passed on 8th
\nApril, 2008, transferring the appellants from Ahmedabad to Jaipur. It
\nis thus clear that the orders are passed with a view to see that the
\nappellants are unable to attend the Reference before the Labour
\nCourt. Mr.Shukla relied on a decision in the case of Krishna Kumar
\nVerma v. M.P.Electricity Board, Jabalpur and Others<\/a>  – 2002 IV LLJ
\n(Suppli.) 612 in support of this contention.\n<\/p>\n
4.2\t\tIt
\nwas submitted by learned advocate Mr.Shukla that the Reference as
\nwell as the complaint are pending. The appellants are the office
\nbearers of the Union and their service conditions could not have been
\nchanged by the respondent-Company during the pendency of Reference.
\nIn support of this submission, he relied on the provisions contained
\nin Section 33 and 33A of the Act. He also relied on decision in the
\ncase of Standard Vacuum Oil Company Ltd., Calcutta v. Their
\nEmployees (Standard Vacuum Employees’ Union)<\/a>   1954 II LLJ 355.\n<\/p>\n
4.3\t\tMr.Shukla
\nsubmitted further that the learned Single Judge, while disposing of
\nthe Special Civil Application, has relied on the Settlement which was
\nnot produced before the Labour Court and was not forming part of the
\nrecord and, therefore, prejudice is caused to the appellants.\n<\/p>\n
4.4\t\tMr.Shukla
\nsubmitted that identical matters are pending before the Court where
\nthis Court has interfered with the orders of transfer during the
\npendency of Reference.\n<\/p>\n
4.5\t\tLastly,
\nMr.Shukla submitted that apart from the above stated legal grounds,
\nthe Court may consider the fact that the appellants are Class-III
\nemployees earning about Rs.10,000\/- per month. These transfers, if
\nnot stayed, would cause the appellants social and financial
\ndisturbance. Their children may suffer or the appellants may be
\nrequired to run parallel establishments, one at Ahmedabad and another
\nat Jaipur, which would disturb their financial arrangements. He
\nsubmitted that the complaint is coming up for hearing on 29th
\nAugust, 2008. Keeping all these aspects in mind, the Court may
\nentertain this Appeal and stay the order of the learned Single Judge
\nas well as the transfer orders passed by the respondent-Company.\n<\/p>\n
5.\t\tLearned
\nSenior Advocate Mr.K.M.Patel appearing with learned advocate
\nMr.J.M.Patel for the respondent-Company, submitted that admittedly,
\nthere were no Standing Orders produced before the Labour Court. The
\nLabour Court has also recorded this aspect and as per the provisions
\ncontained in Section 33(2)(a) of the Act, the Labour Court would have
\nto fall back on the terms of contract and admittedly, the letters of
\nappointment of the appellants bear a covenant to the effect that they
\ncan be transferred to anywhere in India. Mr.Patel also submitted that
\nthere is no change in the service conditions at all in the light of
\nthe above undisputed aspects and the Labour Court was, therefore, not
\njustified in interfering with the orders of transfer.\n<\/p>\n
5.1\t\tMr.Patel
\nsubmitted that so far as the authority of Mr.Modgil to sign the
\ntransfer orders is concerned, it is clear that though the orders are
\ndated 8th April, 2008, admittedly, they have been
\ndelivered on 14th April, 2008. In the affidavit-in-reply,
\nit has been made clear that Mr.Modgil was given charge of the Area
\nManager on 14th April, 2008, because of resignation of the
\nthen Area Manager on 11th April, 2008, and after receiving
\nthat, the orders are signed and delivered.\n<\/p>\n
5.2\t\tMr.Patel
\nhas also drawn our attention to the fact that the decision to
\ntransfer the appellants was taken at the Head Office level and it was
\nonly communicated through Mr.Modgil by the so-called orders of
\ntransfer and since the draft was sent on mail, it was transmitted to
\nthe appellants after putting signature of Mr.Modgil. It is therefore
\nnot correct to say that the orders of transfer are passed by
\nMr.Modgil, holding charge of Area Manager. Thus, the decision to
\ntransfer was, in fact, taken by the Head Office and not by Mr.Modgil.\n<\/p>\n
5.3\t\tMr.Patel
\nrelied on the decision in the case of M\/s.Bharat Iron Works v.
\nBhagubhai Balubhai Patel and others   AIR<\/a> 1976 SC 98 to show
\nthat this is not a case of victimization and to show further that to
\nprove the case of mala fides and victimization, there has to be
\nspecific and detailed averments and evidence to support such
\nallegations.\n<\/p>\n
5.4\t\tMr.Patel
\nsubmitted that in view of above position, the Appeal may not be
\nentertained.\n<\/p>\n
6.\t\tWe
\nhave taken into consideration the rival side submissions. In order
\nthat we may be able to deal with these contentions appropriately
\nwithout much repetition, certain undisputed facts need to be
\nnarrated.\n<\/p>\n
(a)
\n The appellants’ appointment orders contain a specific covenant to
\nthe effect that the appointee may be transferred at any time from one
\njob or section or department to another and from one Establishment to
\nany other Establishment of the Company in any State within the Indian
\nUnion which exists at present or may come into existence in future,
\nprovided, however, that such transfer does not involve any loss in
\nnormal wages.\n<\/p>\n
(b)
\nBefore the Labour Court, the settled Standing Orders were not placed
\nby either of the parties.\n<\/p>\n
(c)
\nThe communications of transfer, though dated 8th April,
\n2008, were served upon the appellants on 14th April, 2008.\n<\/p>\n
(d)
\n Mr.Modgil, who has put his signature on these communications, was
\nnot holding the post of Area Manager till 14th April,
\n2008, when he was given charge of that post.\n<\/p>\n
(e)
\nThe then existing Area Manager resigned from the post on 11th
\nApril, 2008.\n<\/p>\n
(f)
\nCommunication from the Head Office transmitting the orders of
\ntransfer was received by Ahmedabad Office of the respondent.\n<\/p>\n
(g)
\nThe transfer orders were to become effective from 1st May,
\n2008.\n<\/p>\n
7.\t\tWith
\nthe above undisputed facts in  background, if the case is considered,
\nthe first allegation that the orders of transfer are passed by an
\nincompetent authority cannot be accepted for the reason that decision
\nto transfer the appellants was taken at the Head Office level and the
\nsame was sent from Head Office to Ahmedabad office of
\nrespondent-Company on 9th April, 2008, as submitted by
\nlearned Senior Advocate Mr.K.M.Patel on the basis of copy of
\ncommunication with him. Though the communication is dated 8th
\nApril, 2008, it is served on the appellants only on 14th
\nApril, 2008, and it was to become effective on 1st May,
\n2008. It is thus clear prima-facie that when the order was served,
\nthe officer who has put his signature on the order was holding charge
\nof Area Manager. It is also indicated in the affidavit-in-reply that
\nthe decision was taken by the Head Office which is superior to Area
\nManager and it was communicated but was served only on 14th
\nApril, 2008.\n<\/p>\n
7.1\t\tThe
\nsecond fold of argument to support the plea of victimization is that
\nthe appellants are the office bearers of the Union and because they
\nhave raised a Charter of Demand and a Reference is made, they are
\nsought to be victimized. To a pointed query to the learned advocate
\nfor the appellants, it was indicated that the appellants are the
\noffice bearers of the Union for a long time and during that time,
\nseveral negotiations have taken place, demands have been raised.
\nTherefore it is not possible to accept that because they are the
\noffice bearers, they are being victimized. If that was to be done,
\nthat would have been done long back.\n<\/p>\n
7.2\t\tThe
\nabove aspects would negative the case of the appellants that the
\ntransfer orders were passed just on the previous day of day on which
\nthe Reference was to come up for hearing and that the transfer orders
\nwere passed to ensure that the appellants are unable to appear before
\nthe Labour Court to support the Reference. The reason is that the
\norders were served admittedly on 14th April, 2008 and that
\nthey were to come into effect from 1st May, 2008, and,
\ntherefore, it is not possible to accept that the orders were passed
\nwith mala fide intention of preventing the appellants from appearing
\nbefore the Labour Court to support the Reference.\n<\/p>\n
8.\t\tIn
\nthe light of above observations, the decision in the case of Krishna
\nKumar Verma v. M.P.Electricity Board, Jabalpur and Others<\/a> (supra)
\nrelied upon by learned advocate Mr.Shukla will not be of any help to
\nthe appellants as prima-facie, we are of the view that mala fide or
\nvictimization is not proved.\n<\/p>\n
9.\t\tSo
\nfar as pendency of proceedings is concerned, particularly the
\nReference, it was contended that the condition of service could not
\nhave been altered to the detriment of the appellants during the
\npendency of proceeding. In this regard, we may refer to the
\nprovisions contained in Section 33 of the Act. Section 33(2) of the
\nAct provides that during the pendency of any proceeding in respect of
\nan industrial dispute, the employer may alter in regard to any matter
\nnot connected with the dispute, the conditions of service applicable
\nto the workman immediately before the commencement of such proceeding
\nin accordance with the Standing Orders applicable to  the workman
\nconcerned in such dispute or where there are no such Standing Orders,
\nin accordance with the terms of contract, whether express or implied
\nbetween the employer and the workman. In the instant case on our
\nhand, there is no dispute that the Standing Orders were not produced
\nbefore the Labour Court and if there are no such Standing Orders, the
\nCourt will have to fall back on the terms of contract. The terms of
\ncontract in the case of appellants, as indicated earlier,
\nspecifically provide for transfer to any State in the Union of India
\nand, therefore, it cannot be said that the powers are exercised in
\nbreach of this provision. The Labour Court, in paragraph-26 of its
\norder, has also observed that conditions of appointment letter would
\nbe applicable in absence of Standing Orders as such Standing Orders
\nwere not before the Labour Court. Still, the Labour Court has
\nproceeded on a premise that the transfers were in violation of the
\nStanding Orders. The Learned Single Judge was, therefore, justified
\nin interfering with the order of the Labour Court.\n<\/p>\n
9.1\t\tSection
\n33(1)(a) of the Act provides that during the pendency of any
\nconciliation proceeding before the Conciliation Officer or a Board or
\nany proceeding before an arbitrator or a Labour Court in respect of
\nan industrial dispute, no employer shall in regard to any matter
\nconnected with the dispute alter to the prejudice of the workmen
\nconcerned in such dispute, the conditions of service applicable to
\nthem immediately before the commencement of such proceeding, except
\nwith the express permission in writing of the authority before which
\nhe proceeding is pending. It was therefore contended that in absence
\nof such permission, the orders are passed and, therefore, the orders
\nof transfer are in violation of the said provision. In our view, this
\ncontention also cannot be accepted for the reason that the condition
\nof service applicable to the appellants immediately before the
\ncommencement of the proceeding cannot be said to have been violated
\nin view of the transfer clause in the appointment orders.\n<\/p>\n
10.\t\tIt
\nwas then contended that the Settlement, though not on record of the
\nLabour Court, is relied upon by the learned Single Judge while
\npassing the order. Factually, this aspect seems to be true. But that
\nis not the sole ground on which the order is passed. The learned
\nSingle Judge has taken into consideration other relevant aspects
\nwhile setting aside the order of the Labour Court.\n<\/p>\n
11.\t\tSo
\nfar as pendency of identical matters before this Court is concerned,
\nwe may only observe that the orders relied upon by the appellants are
\nof interim nature, do not divulge the details of the facts of that
\ncase and, therefore, it is not possible for us to act on these orders
\nonce we do not find merit in the Appeal.\n<\/p>\n
12.\t\tIn
\nview of the foregoing discussion, it is clear that none of the
\ncontentions raised by the appellants merit acceptance. The appeal,
\ntherefore, must fail, and stands dismissed.\n<\/p>\n
13.\t\tWe
\nmay hasten to add that the petition as well as this Appeal arise out
\nof an order passed by the Labour Court below Ex.2 in  Compliant No.4
\nof 2008 in Reference (LCAD) No.8 of 2008, which itself is in the
\nnature of an interlocutory order and the complaint is still pending.
\nThe observations made by us are only for the limited purpose of
\ndeciding this Appeal and may not be taken as conclusive findings on
\nplea of either side. That stage is yet to come before the Labour
\nCourt when the parties would adduce their evidence. The Labour Court
\nshall therefore decide the complaint without being influenced by any
\nobservation that we may have made in this order.\n<\/p>\n
14.\t\tIn
\nview of dismissal of Appeal, Civil Application No.9428 of 2008 for
\nstay stands disposed of.\n<\/p>\n
\t\t\t\t\t\t\t(A.L.Dave,
\nJ.)<\/p>\n
   \t\t\t\t\t\t\t\t\t\t(Smt.Abhilasha Kumari, J.)               <\/p>\n
(sunil)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Paresh vs Avery on 12 August, 2008 Author: A.L.Dave,&Nbsp;Honble Smt. Kumari,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/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-149088","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nParesh vs Avery on 12 August, 2008 - 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\/paresh-vs-avery-on-12-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Paresh vs Avery on 12 August, 2008 - 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