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2024 Supreme(UK) 539
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Pankaj Purohit, J.
Garhwal Mandal Vikas Nigam Limited - Petitioner
Vs.
Presiding Officer Labour Court and another - Respondents
Writ Petition (M/S) No. 3579 of 2023
Decided On : 08-01-2024
Advocate Appeared:
For the Appellant : Mr. Sandeep Kothari
For the Respondent: Mr. M.C. Pant
IMPORTANT POINT
An employee cannot be transferred out of state without consent, and termination without a domestic inquiry violates natural justice.
Headnote:
Employment - Labour Disputes - Industrial Disputes Act, 1947 - Sections 2(a), 13(6) - The court emphasized the necessity of consent for transfer and the requirement of a domestic inquiry before termination, leading to the reinstatement of the employee.
Fact of the Case:
The petitioner challenged the Labour Court's award reinstating the respondent, who was terminated after failing to join a transferred position. The respondent claimed the transfer was unlawful without consent, and he had worked over 240 days in a year.
Finding of the Court:
The court found that the transfer was executed without the respondent's consent and that no domestic inquiry was conducted prior to termination, violating principles of natural justice.
Issues: Whether the transfer and subsequent termination of the respondent were legally justified under the Industrial Disputes Act and the applicable standing orders.
Ratio Decidendi: The court held that the transfer was invalid without consent and that termination without a domestic inquiry was unlawful, thus reinstating the employee.
Result: The writ petition was dismissed, upholding the Labour Court's order for reinstatement and back wages.
JUDGMENT :
Pankaj Purohit, J.
Heard learned counsel for the parties.
2. By means of this writ petition preferred under Article 227 of the Constitution of India, the petitioner/employer has challenged the award passed by the Labour Court dated 23.09.2023, whereby, the order for dispensing with the services of the respondent no.2 vide order dated 08.02.2019 has been set aside and respondent no.2/workman was directed to be reinstated in the services with full back wages and other service benefits.
3. In order to resolve the controversy, the facts in nut shell are that respondent no.2/workman was engaged with the petitioner institution as a daily wager, a Class-IV employee-cum-Guard. By order dated 31.01.2019, respondent no.2 was transferred from his place of posting at district Uttarkashi to Public Relation Office, Kolkata (West Bengal). Respondent no.2 was relieved from his original office on 04.02.2019 at 03:00 PM for his joining at the new place of posting.
4. It is the case of the respondent no.2 that since, he was short of funds, he went to his village and after arranging some money, he returned on 06.02.2019 and met with the Managing Director of the Corporation about his problems that he was a low paid employee and was not paid his salary for the last 04 months and in such a meagre amount, it could not be possible for him to survive in a city like Kolkata. However, the respondent no.2 was orally told by the Managing Director, either to go to place of transfer or to leave his job. Since, the petitioner could not join at the place of his transfer, his services were retrenched vide order dated 08.02.2019. The petitioner also moved a representation against his retrenchment on 05.03.2019, but all went in vain. According to the respondent no.2, he has been regularly working at his place of posting since the date of his appointment and he has worked for more than 240 days in a calendar year. According to the Section 13(6) of the Model Standing Order, an employee cannot be transferred to another State without his consent, and, in this view of the matter, the transfer of respondent no.2 is not maintainable in law.
5. Assailing the said order, the petitioner straightaway earlier knocked the doors of this Court by filing a writ petition being WPSS No.370 of 2019, which was dismissed by Coordinate Bench of this Court holding that the petitioner has got a statutory and efficacious alternative remedy to approach before the Labour Court for redressal of his grievance.
6. Thereafter, the petitioner raised the industrial dispute under Section 2(a) of the Industrial Disputes Act, 1947, and, accordingly, the reference was made. The point of reference was “Whether the transfer of respondent no.2-workman, a Class-IV employee-cum-guard, from tourist rest house, Janki Chatti (Uttarkashi) to Public Relation Office, Kolkata on 31.01.2019 and termination of services of the respondent no.2 vide order dated 08.02.2019 was legally justified? If not, to what relief/compensation, the employee/workman is entitled to get and with which details?”
7. Before the Labour Court, the employer/petitioner filed its written statement, wherein, it was stated that the respondent no.2/workman was engaged on muster roll basis as a Class-IV employee and till the date of his removal i.e. 08.02.2019, he was engaged according to the need of work.
8. In the year 2018, the respondent was engaged in Tourist Rest Centre, Janki Chatti (Uttarkashi) and on completion of Yatra period, due to there being minimal amount of tourists, instead of terminating the services of respondent no.2, he was transferred to Public Relation Office, Kolkata. Respondent no.2 did not join at the place of his transfer and by violating the order, it amounts to his arbitrariness and insubordination, which is a misconduct as per Rule 5(6) of the Conduct, Discipline and Appeal Rules. Respondent no.2 is purely a Class-IV employee and the order of his engagement was brought to an end vide order dated 08.02.2019. Hon’b
