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2000 Supreme(MP) 943
2001 (2) JLJ 26
R.S. Garg, J.
Khemchand Motilal Jain v. Appellate Authority and another
MP. No. 987 of 1999; against the order of appellate authority;
Decided on 10.10.2000.
R.K. Gupta for petitioner.
Headnote:(1) Beedi and Cigar Workers (Conditions of Employment) Rules, 1966 (M.P.) -- R. 26 (2) proviso -- condonation of delay in filing appeal -- would be on foundation provided under the law -- satisfaction of the authority should be on sound judicial principles and not on the ground, not germane or fanciful or whimsical.
The delay obviously could be condoned and the appeal could be admitted by the appellate authority but it would be on a foundation which is provided under the law. The question is not what the appellant say before the appellate authority; the question was about the satisfaction of the authority. The satisfaction must be on the sound judicial principles and should not be on the ground which are not germane or otherwise fanciful or whimsical. The manner in which the delay of two years and ten months and in another case three years and six months has been casually condoned cannot be approved. The appellant authority obviously acted beyond its jurisdiction in condoning the delay. [Para 12
(2) Beedi and Cigar Workers (Conditions of Employment) Act, 1966 -S. 31 -- employer closing establishment at one place and opening the same at another place -- transfer of employees is not unfair labour practice.
It is not the respondent‘s case that his services could not be transferred but his case is that the present petitioners were trying to create a situation of impossibility so that the employee was forced not to come to duty. The present petitioners in their reply before the authority submitted that they did not dispense with the service of the respondent/employee but in fact had simply issued the order of transfer. Undisputedly the employee did not respect the order of transfer, did not join at the place of transfer and did not challenge the order of transfer before any competent forum. Their simple submission was that they were making agitations and were requiring the Collector to go for conciliation proceedings. The records do not show that there were any mala fide on the part of the petitioners in issuing the order of transfer.
If because of the closure or circumstances leading to closure of the establishment the petitioners were requiring their employee to join at another place, by no stretch of imagination it can be said that it was unfair labour practise. [Para 13
(3) Beedi and Cigar Workers (Conditions of Employment) Act, 1966 -S. 31 (2) -- transfer -- is not discharge, dismissal or retrenchment of the employee -- appellate authority has no jurisdiction to entertain appeal under, that too condoning delay of years.
The appellate authority appears to be swayed away by the fact that a lowly paid employee was transferred to a distance of about 100 kms. In the opinion of this Court the employee did not raise any objection about the salary but was simply saying that because of his low wages it was not possible for him to join at the place of transfer. From the evidence available on the record and the admission made by the employee in each case, it would clearly appear that present are not cases of illegal dispensation of services, dismissal or removal but are cases where each of the employee did nto respect the transfer order. Once it is held that present is not a case of illegal dismissal or illegal dispensation of service, the appellate authority would have no jurisdiction to interfere in the matter. In the opinion of this Court the appellate authority was unjustified in granting the claim of the employees. Their appeals deserve to be rejected firstly because the appeals were not preferred within limitation and there was no sufficient cause for condonation of delay and secondly because present are not cases of illegal dispensation from service but are cases of transfers. [Para 14
¼1½ chM+h rFkk flxkj deZdkj ¼fu;kstu dh ‘krs±½ fu;e] 1966 ¼e-ç-½&fu-26¼2½ ijarqd&vihy Qkby fd, tkus esa foyac dh ekQh&fof/k esa micaf/kr vk/kkj ij gksxh&çkf/kdj.k dk lek/kku ;qfDr;qDr U;kf;d fl)karksa ij gh gksxk] vlaxr vFkok dkYifud ;k euekSth vk/kkjksa ij ughaA
Li"Vr% vihy çkf/kdj.k }kjk foyac ekQ fd;k tk ldrk Fkk vkSj vihy xzg.k dh tk ldrh Fkh fdarq og fdlh vk/kkj ij gksxk tks fof/k esa micaf/kr gS] çu@vihykFkhZ }kjk vihy çkf/kdj.k ds le{k D;k dgrk gS] ;g ugha gSa] ç‘u çkf/kdj.k ds lek/kku dk gSA ;g lek/kku ;qfDr;qDr U;kf;d fl)karksa ds vk/kkj ij gh gksuk pkfg,] vlaxr vFkok dkYifud ;k euekSth vk/kkjksa ij ughaA ftl jhfr ls nks o"kZ pkj ekl dk ,d vkSj vU; ekeys esa rhu o"kZ Ng ekl dk foyac vçklafxd :Ik ls ekQ fd;k x;k gS] vuqeksfnr ugha dh tk ldrhA vihy çkf/kdj.k us foyac ekQ djus esa Li"Vr% viuh vf/kdkfjrk ds ijs dk;Z fd;k gSA ¿iSjk 12
¼2½ chM+h rFkk flxkj deZdkj ¼fu;kstu dh ‘krsZ½ vf/kfu;e] 1966 ¼e-ç-½&/kkjk 31&fukstd }kjk LFkkiuk ,d LFkku ij can dh tkuk rFkk vU; LFkku ij [kksyh tkuk&deZdkj dk LFkkukarj.k v_tq Je çFkk ugha gSA
çR;FkhZ dk i{kdFku ;g ugha gSa fd mldh lsok dk LFkkukarj.k ugha gks ldrk Fkk fdarq mldk i{kdFku ;g gS fd çLrqr ;kphx.k vlaHkkO;rk dh ifjfLFkfr l`ftr djus dk ç;kl dj jgs gSa ftlls deZpkjh M;wVh ij ugha vkus ds fy, ck/; gks tk,A çLrqr ;kphx.k u çkf/kdj.k ds le{k vius mÙkj esa fuosnu fd;k Fkk fd mUgksaus çR;FkhZ&deZpkjh dh lsok lekIr ugha dh Fkha fdarq ek= LFkkukarj.k dk vkns‘k tkjh fd;k FkkA fufoZokn :Ik ls deZpkjh us LFkkukarj.k ds vkns‘k dk vknj ugha fd;k] LFkkukarj.k ugha fd;k vkSj LFkkukarj.k ds vkns‘k ij fdlh l{ke U;k;ky; esa vk{ksi ugha fd;kA mudk fuosnu dsoy ;g Fkk fd fd os vkanksyu dj jgs Fks vkSj dyDVj }kjk le>kSrk dk;Zokgh dh vis{kk dj jgs FksA vfHkys[k ls nf‘kZr ugha gSa fd LFkkukarj.k dk vkns‘k tkjh djus esa ;kphx.k dh vksj ls dksbZ vln~Hkko FkkA
;fn LFkkiu can fd, tkus vFkok can fd, tkus dh ifjfLFkfr;ksa ds dkj.k ;kphx.k }kjk vius deZpkjh ls vU; LFkku ij inxzg.k dh vis{kk dh xbZ rc dYiuk ds fdlh foLrkj }kjk ;g ugha dgk tk ldrk fd ;g v_tq Je çFkk FkhA ¿iSjk 13
¼3½ chM+h rFkk flxkj deZdkj ¼fu;kstu dh ‘krs±½ vf/kfu;e] 1966 ¼e-ç-½&/kkjk 31¼2½&LFkkukarj.k&deZpkjh dh lsoksUeqfDr] inP;qfr vFkok N¡Vuh ugha gSa&vihy çkf/kdkjh dks vihy xzg.k djus dh vf/kdkfjrk ugha gSa] og Hkh o"kks± dk foyac ekQ djrs gq,A
vihy çkf/kdj.k bl rF; ls çHkkfor gqvk çrhr gksrk gS fd vYi osru okys deZdkjh dk LFkkukarj.k yxHkx 100 fd-eh- nwj dj fn;k x;k FkkA bl U;k;ky; dh jk; esa deZpkjh us osru ds ckcr dksbZ vk{ksi ugha fd;k Fkk fdarq dsoy ;g dgk Fkk fd vius vYi osru ds dkj.k LFkkukarj.k ds LFkku ij mlds }kjk inxzg.k fd;k tkuk laHko ugha FkkA vfHkys[k ij miyC/k lk{; ls vkSj deZpkjh }kjk dh xbZ laLohÑfr ls çR;sd ekeys esa ;g Li"Vr% çdV gksxk fd çLrqr ekeys voS/k :i ls lsok ls vyx djus] inP;qfr ;k gVk, tkus ds ugha gSa fdarq ,sls ekeys gSa ftuesa LFkkukarj.k vkns‘k dk vknj ugha fd;k x;k gSA ,d ckj ;g vfHkfu/kkZfjr fd;k tkrk gS fd çLrqr ekeyk voS/k inP;qfr vFkok lsok esa voS/k :Ik ls vyx djus dk ugha gSa] vihy çkf/kdj.k dks ekeys esa gLr{ksi dh vf/kdkfjrk ugha gksxhA bl U;k;ky; dh jk; esa vihy çkf/kdj.k }kjk deZpkjhx.k dk nkok eatwj djuk U;k;ksfpr ugha FkkA vihysa ukeatwj fd, tkus ;ksX; gSa] çFker% blfy, fd vihysa ifjlhek ds Hkhrj Qkby ugha dh xbZ Fkh rFkk foyac ekQ fd, tkus ds fy, Ik;kZIr dkj.k ugha Fkk( vkSj f}rh;r( çLrqr ekeys voS/k :i ls lsok ls gVk, tkus ds ugha gSa fdarq LFkkukarj.k ds ekeys gSaA ¿iSjk 14
1. This order shall dispose of Misc. Petition No. 987/90 (Khemchand Matilal Jain v. Appellate Authority under Beedi and Cigar Act and another) and Misc. Petition No. 978/99 (Khemchand Matilal Jain v. Appellate Authority under Beedi and Cigar Act and another).
2. The respondent No.2 of each petition preferred appeal to the appellate authority and Assistant Labour Commissioner, Sagar Division, Sagar appointed under Beedi and Cigar Workers (Conditions of Employment) Act 1966 (hereinafter referred to as the Act) inter-alia pleading that the present petitioners/employer by playing unfair trade practise terminated their services and as their termination was contrary to the princples of law therefore, they were entitled to be reinstated with the back wages. The case of Respondent Kale Khan was registered as Appeal No. 157/87 while the case of respondent Gul Khai was registered as Appeal No. 37/88. Each of the employee in his appeal submitted that they were working with the establishment for long time and the petitioner to terminate their services by playing unfair trade practise created a situation where the respondent/employee was unable to meet the illegal demand of his transfer and joining at a different place were forced to abondon the work. Each of the employee submitted that the order of transfer dated 25.2.85 was illegal and as certain conciliation proceedings were going on they were prevented from filing the appeal within limitation.
3. The petitioner/employer submitted before the appellate authority that each was not a case of retrenchment, removal, termination or dismissal but was a case of transfer and as ease of the employee did not join at the transferred place and abondoned the work, provisions of section 31 of Beedi and Cigar Workers Act were not applicable. It was also contended that appeal against the order of alleged dismissal was required to be filed within 30 days in accordance with the rules but in case of Kale Khan the appeal was preferred almost after •two years ten months and in case of Gul Khai it was filed after three years and six months therefore each appeal was patently barred by limitation and none of the employee was entitled to any relief.
4. In support of the allegations and counter allegations parties led their evidence. The learned appellate Authority after condoning the delay in filing the appeals observed that the present petitioner/employer created a situation of impossibility and as the employee was put in a fix and was transferred to a distant place it became impossible for him to join and as the same amounted to unfair labour practice therefore, each of the respondent was entitled to reinstatement with partial back-wages.
5. Being aggrieved by orders passed on 30.3.90 in each of the case, employer has preferred these petitions. The respondents were served and they had filed their return in each of the case but unfortunately none appeared at the time of hearing of the matter therefore, this Court left with no option but to proceed ex-parte against the respondent No.2 in each petition.
6. Learned counsel for the petitioner submits that the learned appellate authority was unjustified in observing that delay in filing the appeal deserved condonation. According to him neither there was sufficient nor there were proper and legal pleadings in support of the contention and the cause projected by the employee seeking condonation of delay was not a cause provided under the law therefore, the appeals deserved dismissal on the ground of limitation. Referring to the merits of the matter it was contended by Shri Gupta that from the pleadings raised in the appeals filed by the employee it would clearly appear that present were not cases of retrenchment, removal, dismissal or termination but present were cases of transfers where the employee did not join at the place of transfer of reported on duty. According to him present were not cases of unfair labour practice and each of the employee was not entitl
