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2014 Supreme(Del) 568
High Court of Delhi
THE HONOURABLE MR. JUSTICE V. KAMESWAR RAO
M/s. North Delhi Power Limited Now Tata Power Delhi Distribution Ltd.
Versus
Tilak Raj
W.P. (C) No. 4631 of 2013
Decided On : 21-02-2014
Advocate Appeared:
For the Petitioner:Sudhir Nandrajog, Sr. Advocate with Sujit Kr. Singh, Advocate.
For the Respondent:Salim Inamdar, Advocate with Vibhor Kush, Advocate.
The burden of proof for establishing mala fide actions is heavy, and the employer has the right to transfer employees based on organizational requirements.
Headnote:
Labour Dispute - Transfer of Employee - Industrial Disputes Act - Section 2(k), Office Order dated January 21, 2000 - The court discussed the definition of an industrial dispute under Section 2(k) of the Industrial Disputes Act and the relevance of the office order dated January 21, 2000, which stipulated a 15 km limit for employee transfers. The court also highlighted the burden of proof required to establish mala fide actions and the employer's right to transfer employees based on organizational requirements.
Fact of the Case:
The respondent, a Junior Engineer, challenged his transfer from Keshav Puram to Karala, District Bawana, as mala fide and in violation of the office order dated January 21, 2000.
Finding of the Court:
The court found that the respondent's transfer was not mala fide and was in line with the organization's requirements. The court also emphasized the lack of evidence to support the allegations of mala fide and the absence of a statutory provision prohibiting the transfer of union office bearers.
Issues: The issues included whether the dispute qualified as an industrial dispute, the timeliness of the claim, and the validity of the transfer based on the office order.
Ratio Decidendi: The court held that the respondent failed to provide credible evidence to support the allegations of mala fide, and the transfer was within the employer's rights based on organizational requirements. The court also emphasized that the office order was a guideline and did not confer an enforceable right to the employee.
Final Decision: The court set aside the Industrial Tribunal's order and allowed the writ petition without costs.
V. Kameswar Rao, J.
1. The challenge by the petitioner is to the award of the Labour Court dated May 23, 2013 in I.D No.529/2010 whereby the Tribunal has set aside the transfer of the respondent from Keshav Puram to Karala, District Bawana, Delhi vide order dated October 14, 2009 as mala fide, illegal and unjustified with a further direction to transfer the respondent back to his original place of posting.
2. The respondent at the relevant time while working as Junior Engineer was transferred vide order dated October 14, 2009 from Keshav Puram to Karala, District Bawana, Delhi. Pursuant thereto he made representations to the authorities against the said order. That apart the Delhi State Electricity Workers Union also took up the issue of transfer of the respondent to Karala, District Bawana. Thereafter he raised an industrial dispute which was referred to the Industrial Tribunal by the appropriate government.
3. It was the case of the respondent in his claim petition that he was promoted to the post of Junior Engineer from the post of Fitter. After the privatization he became the employee of New Delhi Power Ltd (NDPL). As per the tripartite agreement between the Govt. of NCT of Delhi and various Unions on October 28, 2000, as notified in the Gazette the service conditions and benefits which were being availed by the employees shall remain unaltered and continue to remain same in respect of the employees who were transferred to new entity i.e. NDPL.
4. According to him the petitioner started victimizing the workmen by transferring them to distant places from their place and by taking disciplinary action. He would further state that the petitioner had filed a suit against the union and succeeded in obtaining ex-parte orders restraining the union from staging dharna within 300 meters. It is because of the fact that he sat in dharna for genuine demands of the union, the transfer was effected with ulterior motive to a place which is 50 kms away from his residence. As per the office order dated January 21, 2000 passed by the erstwhile Delhi Vidyut Board, employees could not to be transferred beyond 15 kms from their residence. He prayed for setting aside the transfer order dated October 14, 2009.
5. The case of the petitioner before the Industrial Tribunal was that the dispute is barred by delay and laches. The petitioner would further state that the challenge to the transfer order dated October 14, 2009 has been accepted by the respondent as he has joined the place of posting. The petitioner’s further case is that the transfer is not a condition of service and an employee has no right to seek a posting at a particular place.
6. Three issues were framed by the Tribunal: the first one being whether the present dispute is an industrial dispute as defined in Section 2(k) of the Industrial Disputes Act; the second one being whether the claim is not maintainable on the ground of laches/belated stage; the third one being as per terms of reference.
7. On the issue No.1, the Industrial Tribunal held that the dispute raised by the union on behalf of the respondent is an industrial dispute. The second issue was also decided in favour of the respondent holding that the claim is not barred by laches/belated stage. On issue No.3 the Industrial Tribunal has come to a conclusion that the petitioner could not have transferred the respondent beyond a period of 15 kms from his residence. Further it was also the conclusion that his transfer was effected because of his trade union activities. The relevant portion of the Tribunal’s order is reproduced as under:
“Since, admittedly, there is guideline that employee cannot be transferred beyond 15 kms and any other Jr. Engineer could perform the work of claimant Sh. Tilak Raj, I find no justification in transfer of workman from Keshavpuram to Karala, Bawana, which may be admittedly 40 kms away from the residence of workman. As the plea of MW 1 that the said guidelines are not mandatory to be followed, in
