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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, Virender Singh, JJ.
The Managing Director, M/s Luminous Power Tech - Petitioner
Versus
Manoj Kumar & another - Respondents
CWP No. 3488 of 2022
Decided On : 16-12-2022
Constitution of India, 1950 - Article 226 and 227 - Industrial Disputes Act, 1947 - Section 12, 2(A), (K), 36, 25T, 7, 10(1) - Indian Contract Act, 1973 - Industrial Employment (Standing Orders) Act, 1946 - Trade Unions Act, 1926 - Section 4(1), 2(qq) - Company - Wrongly Cancelled Transfer Order - Registration of Union - Petitioner has sought indulgence of this Court for quashing order (Annexure P14), passed by respondent No. 2 – As per case, set up by petitioner, Labour Court-cum-Industrial Tribunal, has wrongly cancelled transfer order passed by petitioner - Transfer of employees by petitioner-Company was an attempt to prevent workmen from forming Union - Para 57.
Finding of the Court:
It has specifically been held by Labour Court that transfer order is malafide act of petitioner-Company, to pressurize members of respondent No. 1Union, not to get the same registered under Trade Union Act - Once, it has been held that act of petitioner-Company to transfer workmen was not bonafide and same was an attempt to thwart process of registration of Union under Trade Union Act, case laws relied upon by petitioner are of no help to him, as there is nothing on record to show that above findings of fact, recorded by Labour Court, suffers from any perversity - Learned counsel for petitioner could not point out as to how said findings call for any interference by this Court, that too, in extra ordinary jurisdiction, under Articles 226 and 227 of Constitution of India - Considering all these factual aspects, there is no occasion for this Court to interfere with findings recorded by learned Labour Courtcum Industrial Tribunal.
Result: Petition dismissed.
JUDGMENT :
Virender Singh, J.
The petitioner, M/s Luminous Power Technologies, UnitII Gagret, Tehsil Amb, District Una, through its Managing Director, has invoked the extraordinary writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India.
2. By virtue of the present writ petition, the petitioner has sought indulgence of this Court for quashing the order dated 2.5.2022 (Annexure P14), passed by respondent No. 2, i.e. Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala.
3. The factual position, as emerges from the bare reading of the writ petition, is that the petitioner-Company is a manufacturing Company having its units, in various states, in the Country. Hence, the services of the workers are stated to be transferable.
4. In the year 2018, a unit in Hosur in Tamil Nadu was being expanded and trained manpower was required there, as such, 25 workers were ordered to be transferred for a limited period of 18 months, vide order dated 25.5.2018, (Annexure P2) from Gagret, Tehsil Amb, District Una to Hosur in Tamil Nadu.
5. Out of 25 workers, 13 workers had joined their new place of posting, however, remaining 12 workers had refused to accept the transfer orders. Despite all the efforts to persuade them to join the new place of posting, they had not accepted the transfer orders. Hence their act is said to be an act of indiscipline. Consequently, they were not permitted to enter in the factory premises at Gagret, Tehsil Amb, District Una.
6. Thereafter, respondent No. 1, who is claiming himself to be the President of Union namely, “Luminous Power Technologies Workers Union” (hereinafter referred to as, “the Union”) filed the demand notice, which was not addressed to the Management, but was addressed to the Labour Conciliation Officer. Wide publicity was also given to the said demand notice. The contents of the said demand notice are said to be wrong and the demand notice is stated to have been issued with the motive to put pressure upon the petitioner and to evade transfer order dated 25.5.2018 (Annexure P2).
7. On the basis of said demand notice, the notice was issued to the petitioner-Company by the Labour-cum-Conciliation Officer, vide notice dated 6.6.2018 (Annexure P4). The said notice is stated to be unjustified and illegal, as it was the statutory duty of the Labour-cum-Conciliation Officer to hold the conciliation proceedings under Section 12 of the Industrial Disputes Act, 1947.
8. The act of the Labour cum Conciliation Officer in issuing the notice, dated 6.6.2018 has also been challenged, on the ground, that the Labour-cum-Conciliation Officer has issued notice without looking into the fact that respondent No. 1 was not having any legal authority to espouse the disputes or resolution of the Union authorizing him to raise the dispute or the written espousal, of at least a sizable number of workers. However, to the said notice, issued by the Labour-cum-Conciliation Officer, the Petitioner-Management has submitted its replies. The Labour-cum-Conciliation Officer issued failure report dated 8.4.2019 (Annexure P8), in which, he has admitted that the offer of the Petitioner-Management to cancel the transfer order and send the delinquent workmen to the plants in the surrounding areas was refused by respondent No. 1.
9. Even in the reply filed on 20.6.2018 (Annexure P5), a categoric stand has been taken by the petitioner that respondent No. 1 is not authorized to raise the industrial dispute as the union is not registered.
10. Highlighting clause2 of the appointment letter, in which, there is a stipulation that “Management has right to transfer any workman in any part of India and will not change any service condition securing the Right to Livelihood of all workmen at par”, it has been pleaded that the above condition binds the workmen, in terms of contract, duly governed, as per Indian Contract Act, 1973.
11. Apart from this, the petitioner has also heavily relied upon clause16 of the Standing
Only scope for interference under Articles 226 and 227 of Constitution of India, is in case there is a flagrant disregard of Rules of procedure or in case there is violation of principles of natural ....
The Court highlighted the limitations of interference with Labour Court awards under Article 226 of the Constitution of India, emphasizing that such interference is only justified in exceptional case....
Judicial review of administrative transfers in employment requires proof of mala fide or jurisdictional error, reaffirming adherence to contractual terms unless misconduct is established.
The main legal point established in the judgment is that a dispute under the Industrial Disputes Act can only be considered a dispute if a specific demand has been made by the workmen, and any refere....
The Labour Court's determination that a sham contract exists may classify workers as employees of the principal employer, thereby validating their claims for service conditions and protections under ....
The court affirmed that a transfer of service is a lawful exercise of management's discretion and does not constitute termination unless explicitly stated in the employment contract.
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