The main legal point established in the judgment is that the transfer of an employee on deputation without consent is illegal, and the determination of a workman's status under the Industrial Disputes Act is based on the nature of duties and not the nomenclature.

JUDGMENT

Dharam Chand Chaudhary, J. (Oral) - In the present appeal, judgment dated 1.6.2012 passed by learned Single Judge in CWP No. 1444 of 2009 whereby award dated 5.3.2009 passed by learned Industrial Tribunal-cum-Labour Court Shimla in Reference No. 390 of 2002 has been affirmed and the writ petition dismissed, is under challenge.

2. The appellant (hereinafter referred to as the respondent-establishment) is M/S Mohan Meakin Limited, a Company incorporated under the Companies Act, having its registered office and Brewery at Solan, Distt. Solan, H.P. The respondent-workman (hereinafter referred to as the petitioner) was appointed as Clerk in purchase Section of the respondent- establishment vide order Annexure P-2 on 26.6.1971. Subsequently, he was confirmed as Clerk vide order dated 17.1.1972 (Annexure P-3) and promoted as purchase Superintendent in the purchase Department on monthly salary of Rs. 8065/- vide Office Order dated 21.7.1987 (Annexure P-4). He was transferred to Lucknow Distillery of the respondent- establishment as Purchase Superintendent on deputation with payment of deputation allowance to the tune of Rs. 500/- per month vide order dated 24.8.2002 (Annexure P-7). After two days of this order i.e. 26.8.2002, he was relieved from his duties at Solan with a direction to report for duties in Lucknow Brewery of the petitioner-company. The petitioner-workman had raised dispute and the Joint Labour Commissioner called upon the respondent-establishment to attend the meeting scheduled to be held on 3.9.2002 regarding the dispute so raised by the petitioner. The respondent-establishment received the charter of demands (Annexure P-10) through Joint Labour Commissioner, H.P. and submitted the reply (Annexure P-11) thereto. The competent authority i.e. Joint Labour Commissioner made the reference on consideration of the matter and referred the dispute so raised by the petitioner to Labour Court Shimla vide order Annexure P-12. The petitioner and respondent-establishment had preferred claims and counter-claims before learned Labour Court. The petitioner-workman has also filed the application (Annexure P-21) seeking interim direction to the respondent- establishment to allow him to continue in Solan office of the respondent-Company. Learned Presiding Judge, Labour Court, Shimla allowed the application and vide order dated 24.8.2005 Annexure P-1/1 directed the respondent-establishment to restore the status of the applicant as he was having before order of his transfer dated 24.8.2002 on deputation to Lucknow during the pendency of the reference petition. The order so passed was assailed by the respondent-establishment in this Court by filing CWP No. 927 of 2005. This Court has stayed the operation of interim order Annexure P-1/1. In the meanwhile, the petitioner- workman stood retired on attaining the age of superannuation on 21.1.2006 during the pendency of the writ petition in this Court. Consequently, vide order Annexure P-28 dated 6.12.2006, the said writ petition was dismissed as infructuous while noting down the factum of retirement of the petitioner workman from service on attaining the age of superannuation. Before that pending reference petition also stood dismissed in default vide order Annexure P-29 dated 15.11.2006. The petitioner-workman had filed application (Annexure P-32) for restoration of reference petition bearing No. 390 of 2002. The respondent-establishment has filed reply thereto which is Annexure P-33. Learned Labour Court vide order dated 22.5.2007 (Annexure P-35) had restored the reference petition to its original number and file. This order was assailed before this Court in CWP No. 986 of 2007 and in the interim, its operation was ordered to be stayed as is apparent from the perusal of order Annexure P-37. This Court has disposed of the said writ petition vide judgment dated 18.8.2008 (Annexure P-38) with certain directions including that reference No. 390 of 2002 be decided by learned Labour Court