# M/s Super Cassettes Industries Pvt. Ltd., Noida v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 353
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** Writ-C No. 52897 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-super-cassettes-industries-pvt-ltd-noida-v-state-of-u-p-ors-45835
- **Pages:** 19

## Headnote

A. Labour Law - The U.P. Industrial
Disputes Act, 1947 - Section 4-K - The
U.P. Industrial Disputes Rules, 1957 -
Rule 12-E - Dubbing a transfer order as
one of termination Industrial Employment
(Standing Orders) Act, 1946 - Certified
Standing Orders of the Employers - Model
Standing Orders framed under the Act of
1946 - Industrial Employment (Standing
Orders) Central Rules, 1946 - The Uttar
Pradesh
Industrial
Employment
Model
Standing Orders, 1991 - Model Standing
Orders, 1991 - Clause 13(6) - General
Clauses Act, 1897 - Section 21 - Labour
Court is a Court of referred jurisdiction and
a creature of the statute - Its jurisdiction is
limited to answering questions that are
expressly referred to it under Section 4-K
of the Act - Authority empowered under
Section 4-K of the Act has utterly failed to
refer what on its plain terms was an
industrial dispute - termination was not
referable to any other cause, act or
misconduct, but the workmen' refusal to
obey the order of transfer - reference in
the terms made does not clothe the Labour
Court with jurisdiction to look into the
validity of the order of transfer. (Par 38,
41,45)

This case is one where for the disobedience of a
transfer order, the workman was dismissed from
service and the validity of the dismissal for no
other reason but disobedience to the transfer
order was the subject matter of reference - here
there was no order of termination from service,
dated 10.02.1996, but a simple order of transfer
that might have led to adverse consequences
for the workman. (Para - 42,44)

HELD:- Reference made is without any basis,
and on the date it was made or with reference
to the Employers' order that it was made, there
was no termination of services for the workman.
The industrial dispute in the terms it was
referred was completely non-existent. The
Labour Court being a Court of referred
jurisdiction, could not have gone beyond or
behind the terms of reference in which the
industrial dispute sent to it was cast.(Para - 45)

Petition allowed.(E-7)

List of cases cited:-

1.Jeevan Prasad Vs Labour Court, Kanpur,
(1999) 76 FLR 110

2.D.K. Yadav Vs J.M.A. Industries Limited,
(1993) 67 FLR 111 (SC),

3.M/S Triveni Engineering and Industrial Ltd. Vs
St. of U.P. & ors. Writ - C No.689 of 2012

4.Addisons Paints & Chemicals Ltd. Vs Workmen
represented by the Secretary (A.P. & C.)
Assistants' Assc. & anr. (2001) 2 SCC 289,

5.Tata Iron & Steel Comp. Ltd. Vs St. of Jh. &
ors. (2014) 1 SCC 536,

6.Tobu Enterprises Limited Vs P.O., Industrial
Tribunal (2009) 122 FLR 71,

7.Hamdard (Waqf) Laboratories Vs St. of U.P. &
ors. (2014) 1 AWC 367

8.Kundan Sugar Mills Vs Ziyaud

## Text

_Characters 0–39,439 of 66,815. This is a partial read: ask again with offset=39439 for what follows._

6 All. M/s Super Cassettes Industries Pvt. Ltd., Noida Vs. State of U.P. & Ors.
353
admits execution before the Registering
Officer, that is not a case of presentation
underSection 32 (c) of the Act. As
mentioned earlier the provisions of Section
33 will come into play only in cases where
presentation is in terms of Section 32 (c) of
the Act. In other words, only in cases where
the person(s) signing the document cannot
present the document before the registering
officer and gives a power of attorney to
another to present the document that the
provisions of Section 33 get attracted. It is
only in such a case, that the said power of
attorney has to be necessarily executed and
authenticated in the manner provided under
Section 33 (1) (a) of the Act.

34. In the instant case, Indra
Kumar Halani executed the document on
behalf of Shri N. L. Tantia under the terms
of this power of attorney. He then presented
it for registration at the Registration Office
and it was registered. The plea taken by the
Respondents that in order to enable him to
present the document it was necessary
that he should hold a power of attorney
authenticated before the Sub-Registrar
under the provisions of Section 33 is thus
not supported by the language of Section
32. The provisions of Section 33 therefore
only apply where the person presenting a
document is the general attorney of the
person executing it, and not where it is
presented for registration by the actual
executant, even though he may have
executed it as agent for some one else. In
this case, the presentation is by the actual
executant himself and is hence is entitled
under Section 32 (a) to present it for
registration and to get it registered.

33. In view of the legal position and
discussion made above, it is not a case of
the respondents that the executor of the
sale-deed is not present and there is any
allegation of fraud against the petitioner,
therefore, the grounds taken in the
impugned order in rejecting the registration
of three sale-deeds, prima faice, as per the
record appears to be illegal and without
application of mind and the respondent
no.3 has not considered the provisions
contained under Section 4 of the Power of
Attorney Act, 1882 and Sections 17, 18, 32
and 33 of the Indian Registration Act, 1908.

34. In view of the above, the
impugned order dated 13.08.2013 passed
by respondent no.3 is hereby quashed and
the writ petition is allowed. The matter is
remanded back to the respondent no.3 to
pass
an
appropriate
order
for
the
registration
of
three
sale-deed
dated
29.07.2013 afresh in the light of the
discussions made above and the law laid
down by the Hon'ble Apex Court in the
case of Rajni Tandon (supra) preferably
within a period of two months from the
date of production of certified copy of this
order before him.

35. No order as to costs.
----------

(2020)06ILR A353
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-C No. 52897 of 2017

M/s Super Cassettes Industries Pvt. Ltd.,
Noida ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Diptiman Singh
354 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Sri Shekhar Srivastava

A. Labour Law - The U.P. Industrial
Disputes Act, 1947 - Section 4-K - The
U.P. Industrial Disputes Rules, 1957 -
Rule 12-E - Dubbing a transfer order as
one of termination Industrial Employment
(Standing Orders) Act, 1946 - Certified
Standing Orders of the Employers - Model
Standing Orders framed under the Act of
1946 - Industrial Employment (Standing
Orders) Central Rules, 1946 - The Uttar
Pradesh
Industrial
Employment
Model
Standing Orders, 1991 - Model Standing
Orders, 1991 - Clause 13(6) - General
Clauses Act, 1897 - Section 21 - Labour
Court is a Court of referred jurisdiction and
a creature of the statute - Its jurisdiction is
limited to answering questions that are
expressly referred to it under Section 4-K
of the Act - Authority empowered under
Section 4-K of the Act has utterly failed to
refer what on its plain terms was an
industrial dispute - termination was not
referable to any other cause, act or
misconduct, but the workmen' refusal to
obey the order of transfer - reference in
the terms made does not clothe the Labour
Court with jurisdiction to look into the
validity of the order of transfer. (Par 38,
41,45)

This case is one where for the disobedience of a
transfer order, the workman was dismissed from
service and the validity of the dismissal for no
other reason but disobedience to the transfer
order was the subject matter of reference - here
there was no order of termination from service,
dated 10.02.1996, but a simple order of transfer
that might have led to adverse consequences
for the workman. (Para - 42,44)

HELD:- Reference made is without any basis,
and on the date it was made or with reference
to the Employers' order that it was made, there
was no termination of services for the workman.
The industrial dispute in the terms it was
referred was completely non-existent. The
Labour Court being a Court of referred
jurisdiction, could not have gone beyond or
behind the terms of reference in which the
industrial dispute sent to it was cast.(Para - 45)

Petition allowed.(E-7)

List of cases cited:-

1.Jeevan Prasad Vs Labour Court, Kanpur,
(1999) 76 FLR 110

2.D.K. Yadav Vs J.M.A. Industries Limited,
(1993) 67 FLR 111 (SC),

3.M/S Triveni Engineering and Industrial Ltd. Vs
St. of U.P. & ors. Writ - C No.689 of 2012

4.Addisons Paints & Chemicals Ltd. Vs Workmen
represented by the Secretary (A.P. & C.)
Assistants' Assc. & anr. (2001) 2 SCC 289,

5.Tata Iron & Steel Comp. Ltd. Vs St. of Jh. &
ors. (2014) 1 SCC 536,

6.Tobu Enterprises Limited Vs P.O., Industrial
Tribunal (2009) 122 FLR 71,

7.Hamdard (Waqf) Laboratories Vs St. of U.P. &
ors. (2014) 1 AWC 367

8.Kundan Sugar Mills Vs Ziyauddin, AIR (1960)
SC 650

9.Woman of Bijlibari Tea Estate Vs Mang. of
Bijlibari Tea Estate (2010) 4 Gauhati Law
Reports 849

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an award of the Presiding Officer,
Labour Court, U.P., NOIDA, Gautam Budh
Nagar, dated 02.08.2017 (published on
04.10.2017) passed in Adjudication Case
no.35 of 2008. The aforesaid Adjudication
Case commenced on the determination of
Conciliation proceedings by the Additional
Labour Commissioner, Ghaziabad vide
order dated 08.07.1996 made in C.P. Case
6 All. M/s Super Cassettes Industries Pvt. Ltd., Noida Vs. State of U.P. & Ors.
355
no.155 of 1996. Based on the said order
made
by
the
Additional
Labour
Commissioner, an industrial dispute, under
Section 4-K of the U.P. Industrial Disputes
Act, 1947 (for short, the Act) in the
following terms was referred vide order
dated 08.07.1996 to the adjudication of the
Labour Court, Ist, Ghaziabad:

Whether act of the Employers in
terminating the services of their workman,
Shailesh Rai son of Sri O.P. Sangram,
Operator w.e.f. 10.02.1996 is lawful and/ or
valid?
If
not,
to
what
benefit/
compensation/ relief is the concerned
workman
entitled;
with
what
other
particulars and with effect from what date?

2. Upon receipt of reference by the
Labour Court, the case was registered as
Adjudication Case no.258 of 1997 on the file
of the Labour Court, Ghaziabad. The case
aforesaid was registered between the third
respondent, Shailesh Rai, represented by the
Secretary of the Workers' Union (hereinafter
referred to as the workman) and the petitioner
here, that is to say, M/s. Super Cassettes
Industries
Private
Limited
(hereinafter
referred to as the Employers). Notice was
issued to both parties, whereupon the
workman filed his written statement, dated
01.09.1997. The Employers filed their written
statement, a copy of which is on record as
Annexure-8 to the writ petition.

3. The course of proceedings show
that rejoinder statement, dated 26.10.1998
was filed on behalf of the workman, and
likewise, a rejoinder statement was filed on
behalf of the Employers, dated 16.12.2002.
The workman filed documents in support
of his claim, numbering nineteen through a
list of documents, dated 02.12.1998. The
Employers
for
their
part
also
filed
documents through a list dated 06.05.2003,
bearing paper no. 10-B(i), carrying eight
documents with the list aforesaid, including
a mention that the Employers seek leave of
the Court to file additional documents at
any
stage
of
the
proceedings.
An
undertaking was also made part of the list
of documents that the original/ carbon
copies
of
the documents
would
be
produced at the stage of evidence, or as and
when required/ directed by the Court.

4. The workman in support of his case
examined himself as a witness, WW-1 on
25.08.2006 and was cross-examined by the
Employers' representative. The workman
was
further
cross-examined
after
an
adjournment
by
the
Employers'
representative. It appears that after the
workman's cross-examination was over, the
Employers served a notice of closure of
their Unit, where the workman was
employed, that is to say, the Employers'
Unit at C-26-27, Sector III, NOIDA,
District Gautam Budh Nagar, U.P. upon the
State Government through the Secretary in
the Department of Labour Welfare, the
District Magistrate, Gautam Budh Nagar,
U.P., the Labour Commissioner, U.P.,
Kanpur, the Deputy Labour Commissioner,
NOIDA, U.P., the Director of Factories,
U.P., Kanpur, besides a host of other
Authorities. They also pasted the closure
notice on their Notice-Board. About this
time, another development that took place
was that the proceedings of Adjudication
Case no.258 of 1997, that were in progress
before the Labour Court-I, U.P., Ghaziabad
were transferred to the Labour Court,
NOIDA, Gautam Budh Nagar. Before the
Labour Court, U.P., NOIDA, Gautam Budh
Nagar, Adjudication Case no.258 of 1997
was renumbered as Adjudication Case
no.35 of 2008. A notice in this regard was
issued to the parties by the Labour Court,
dated 22.10.2008 directing the parties to
356 INDIAN LAW REPORTS ALLAHABAD SERIES
appear before the Labour Court at NOIDA,
Gautam
Budh
Nagar
for
further
proceedings on 17.11.2008.

5. The Employers in the resumed
proceedings before the Labour Court,
NOIDA, Gautam Budh Nagar, examined
one Puneet Jain, Deputy General Manager
(P&A) of the Employers' Unit at Gautam
Budh Nagar in support of their case, who
was examined as EW-1 on 02.12.2008. He
was cross-examined on 02.12.2008 by the
workman's authorized representative. The
cross-examination
was
deferred
and
concluded on an adjourned date. In view of
the closure of the Factory/ Unit where the
workman was employed, the Employers
moved an application seeking amendment
to their written statement by adding
paragraph 20 thereto, in the following
terms:

"20. That the factory had been
closed down finally w.e.f. 26.12.2007 and
there is neither any activities of production
and no dues payable to ex-employee."

6. The aforesaid amendment was
sought under Rule 12-E of the U.P.
Industrial Disputes Rules, 1957. Also,
along with the affidavit accompanying the
application was annexed as Annexure-A, a
copy of the notice of closure, dated
26.12.2007, that the Employers sought to
bring on record as a document in support of
the amended plea.

7. The Labour Court by means of its
impugned judgment and award answered
the reference in favour of the workman
holding that termination of his services by
the Employers w.e.f. 10.02.1996 was
unlawful. It was further awarded that the
workman is entitled to reinstatement,
together with back-wages with effect from
the date of his unlawful termination and
other consequential benefits.

8. Aggrieved, the Employers have
instituted the present writ petition.

9. A perusal of the workman's case set
out in the written statement shows that he
claims
that
the
Employers
are
an
electronics industry who own a number of
factories/ units at NOIDA, Greater NOIDA.
The Employers for the purpose of activities
of production and sale employ workmen of
various categories in large numbers. The
workman
has
pleaded
that
he
was
employed
by
an
oral
order
w.e.f.
01.08.1990 on the post of AC Operator on a
permanent basis. During the period of his
service, his work and conduct were
appreciated
by
the
Employers.
The
workman,
however,
protested
against
illegal reduction in the available facilities,
like free tea, provision of some food and
free transport etc., and, in furtherance of his
protest, participated in a lawful strike. The
Employers on that account are claimed to
have harboured malice and ill-will against
the workman. It is the workman's further
case
that
the
Employers
mala
fide
demanded the workman's resignation from
his permanent service; and, on protest by
the workman, they suspended him on
baseless, false and trumped up charges, all
of which were contrary to the record and
evidence. In the disciplinary proceedings
that ensued, the charges could not be
established. Thereupon, the Employers
again demanded the workman's resignation.
The workman declined to resign. Since the
charges were not established at the inquiry,
the Employers revoked the workman's
suspension, but did not permit him to join
or assign him duties. When the workman
protested, the Employers transferred him
unlawfully to a very distant Unit of theirs,
6 All. M/s Super Cassettes Industries Pvt. Ltd., Noida Vs. State of U.P. & Ors.
357
located at Golden Chariot Studio, Plot
No.B-14,
New
Link
Road,
Behind
Oshiwada,
Andheri
(West),
Bombay400058; and, through this unlawful transfer,
they terminated the workman's services
with effect from 10.02.1996.

10. It is also pleaded that the
workmen who are juniors have been
retained in regular service and fresh
recruitment to the workman's post has been
made illegally. It was also pleaded that the
Employers have work available with them,
that the workman was earlier discharging.
It is also asserted that the Employers before
terminating the workman's services did not
serve him any notice or tender him notice
pay, or retrenchment allowance. There is a
specific plea that despite effort to secure
suitable employment, the workman has
been unsuccessful at it.

11. The Employers in their written
statement pleaded that they are an industrial
establishment registered under the Factories
Act, and are engaged in manufacture as well
as sale of electronic products. It is
acknowledged
that
the
workman
was
appointed as an Operator AC Plant w.e.f.
01.08.1990. The Employers in paragraphs 3
to 11 have raised preliminary objections,
variously said, but the substance of it all is
that there was no industrial dispute in
existence on 10.02.1996, that could be
referred to the Labour Court. It is asserted
that there was no cause of action on
10.02.1996 which the order of reference
regards as an industrial dispute, inasmuch as,
on the said date the relationship of master and
servant between the Employers and workman
was subsisting. The reference order made
was, therefore, infructuous and void. The
basis of this preliminary objection, on facts is
set out in paragraph 9 of the written
statement, that reads to the following effect:

"(9) That the Opposite Party never
terminated the services of the applicant. In
fact the Opposite Party in order to reorganise/
restructive the working of the other Units/
branches the services of the experienced
persons were required. Thus applicant being
are
of
the
experienced
persons
was
accordingly deputed to another unit/ branch
of the Opposite Party namely M/s. Super
Cassettes Industries, Golden Chariot, Plot
No.
B-14,
New
Link
Road,
Behind
Oshiwada, Andheri West Bombay (Mumbai)
as per the requirements of business and
administrative exigencies, vide letter dated
10.02.1996. The applicant was required to
report at the assigned place of working on
19.02.1996 after availing the joining time.
The letter dated 10.02.1996 was duly
received by the applicant on 16.02.1996
without any objection or demur. Thus the
question of termination of services on
10.02.1996 did not arise at all. The reference
as such is bad in law, hence not
maintainable."

12. It is on the merits pleaded by the
Employers that due to administrative
exigencies and requirement of work/
business, the workman was deputed to
another Unit/ Factory of the Employers
vide letter dated 10.02.1996. The workman
vide the aforesaid letter was assigned his
place of work at Bombay (Mumbai), where
he was required to report on 19.02.1996,
after availing joining time. It is also
asserted that the workman apart from his
monthly salary was also offered outstation
allowance at the rate of Rs.250/- per month,
besides travelling expenses/ train fare, in
order to enable him to report for duty at the
assigned place at Bombay (Mumbai). Also,
the Employers' case is that the workman
received
the
letter
dated
10.02.1996
without any objection or demur, on
16.02.1996.
It
is
pleaded
that
the
358 INDIAN LAW REPORTS ALLAHABAD SERIES
relationship of master and servant was,
thus, existing between the Employers and
the workman on 10.02.1996, and even
thereafter. It is also the Employers' case
that they never terminated the workman's
services on the alleged date or thereafter. It
is asserted that to the contrary, in disregard
of the bona fide and lawful orders of the
Employers, the workman failed to report
for duty at the station of transfer/ assigned
place of work. It is pleaded also, that the
workman has raised this industrial dispute
against the Employers alleging termination
of his services with effect from 10.02.1996,
under some foul advice, as on that date he
was in employment. It is also claimed on
behalf of the Employers that they have
reasons to believe that the workman is
gainfully employed elsewhere and is
pursuing this industrial dispute under some
foul advice, by resort to abuse of process of
law.

13. The workman in his rejoinder
statement has claimed this transfer to be a
contrivance and a device to terminate his
services. He claims the transfer to be an
instance of unfair labour practice which the
Employers took resort to, in order to get rid
of him in an insidious manner. The
Employers, according to the workman,
harboured malice and ill-will against him
for his activities in the trade Union. On this
account by a stratagem of transferring him
to a station as far off as Mumbai, for a low
paid workman like him domiciled in
Gautam Budh Nagar, they have effectively
terminated his services. The transfer, vide
order
dated
10.02.1996,
has
been
impeached by the workman as unlawful. It
appears also that the workman urged before
the Labour Court that in the Certified
Standing Orders of the Employers, that are
said to be certified under the Industrial
Employment (Standing Orders) Act, 1946
(for short, the Act of 1946), there is
provision for transfer of a workman, but
under the Model Standing Orders framed
under the Act of 1946, there is no provision
for the transfer of a workman from one
State to another without his consent. It was
also urged before the Labour Court on
behalf of the workman that if any provision
about 'transfer' has been incorporated in the
Certified
Standing
Orders
of
the
Employers, it would be illegal and not
binding on the workman. He relied on
authority also in support of the said
proposition.

14. On the other hand, the Employers
appear to have urged before the Labour
Court that there is no provision in the
Model Standing Orders, appended to the
Schedule to the Industrial Employment
(Standing Orders) Central Rules, 1946 (for
short, the Rules of 1946) on the subject of
transfer, and, therefore, not lawful for the
Employers to provide about it in their
Certified Standing Orders. It was also
urged that the subject of transfer would,
therefore, be governed by terms of the
order of appointment or by some other
contract
inter
se
the
parties.
Some
authorities also appear to have been cited
on behalf of the Employers, that transfer is
a general incident of service, that can
always be invoked. It must be remarked
here that the workman was somewhat
confounded about the provision regarding
transfer, in the Certified Standing Orders of
the Employers, evident from his stand
before the Labour Court. Likewise, the
Employers too were confounded about their
stand regarding the provision about transfer
in the Certified Standing Orders applicable
to them, as also that provided under the
Model Standing Orders, on the subject.
But, this confusion was not reflected in the
parties' stand before this Court. It was all
6 All. M/s Super Cassettes Industries Pvt. Ltd., Noida Vs. State of U.P. & Ors.
359
confined to proceedings before the Labour
Court.

15. Heard Shri Diptiman Singh,
learned Counsel for the Employers and Shri
Shekhar Srivastava, learned Counsel for the
workman.

16. A perusal of the impugned award
shows that the Labour Court has looked
into the evidence to conclude in substance
that the Employer, in the first instance,
suspended the workman vide order dated
27.04.1995 on charges, and, initiated
disciplinary
proceedings
against
him.
However, in the disciplinary proceedings,
those charges could not be established. The
Employer,
thereafter
reinstated
the
workman in service vide order dated
10.02.1996, considering that the charges
could not be established, and also adopting
a benevolent approach in consideration of
the workman's good service record. The
Labour Court has, however, held that by an
order of the same day i.e 10.02.1996 when
the workman was reinstated, the Employers
transferred him to a unit located far away
from Noida at Mumbai; that the Labour
Court upon evaluation of the two orders
dated
10.02.1996,
one
revoking
the
workman's suspension, and the other
transferring him to a far off unit, located at
Mumbai, concluded that the Employers
have been persecuting the workman, now
and then. They suspended him on charges
and initiated disciplinary proceedings. But,
when they could not establish the charges
in disciplinary proceedings, they revoked
the workman's suspension ordered pending
inquiry, and contemporaneously with the
revocation of suspension, transferred the
workman to a distant Unit at Mumbai. The
Labour Court has held this act of the
Employers to be unfair labour practice
within the meaning of Section 2(ra) read
with item 7 of the Fifth Schedule of the
Industrial Disputes Act, 1947.

17. It is recorded by the Labour Court
that the Employers have also said that by
not complying the transfer order, the
workman has abandoned his post. About
this stand, the Labour Court has held that it
is not at all tenable. It has also been
remarked by the Labour Court that the
Employers have not brought to its notice
any rule or provision in the Act, to show
that the transfer is a part of the workman's
service conditions. It has also been held
that contrary to the Employers' stand, the
Model Standing Orders, 1991 vide Clause
13(6) clearly provide that without the
workman's
consent,
he
cannot
be
transferred from one State to another. It has
been
concluded,
therefore,
that
the
workman's transfer is an instance of unfair
labour practice, contrary to law and the
rules, where the workman has been
illegally transferred by the Employers to a
far off unit located at Mumbai. It has also
been held that the act of the Employers in
not passing a speaking order on the
workman's
representation
against
the
transfer, the Employer's refusal to take the
workman
back
in
employment,
the
Employer's failure to give the workman a
warning to present himself for duties, or to
seek his explanation followed by the
disciplinary proceedings on charges of
unauthorized absence, and, taking the
workman's stand about his transfer to be an
abandonment of service, amounts to
retrenchment with effect from 10.02.1996.

18.

It
has,
particularly,
been
emphasized by the Labour Court in its
findings that the Employer's act in taking
the workman to have abandoned service
without calling for an explanation, or
serving him a chargesheet, or subjecting
360 INDIAN LAW REPORTS ALLAHABAD SERIES
him to disciplinary proceedings, constitutes
illegal retrenchment. It has also been noted
by the Labour Court that during the
conciliation proceedings, or the hearing
before the Labour Court, no proposal has
been put forward by the Employers to take
back the workman in service. Relying upon
an authority of this Court in Jeevan Prasad
vs. Labour Court, Kanpur 1999(76) FLR
110 and the decision of their Lordships of
the Supreme Court in D.K. Yadav vs.
J.M.A. Industries Limited 1993 (67) FLR
111 (SC), it has been held that absence
from duty cannot lead to an inference of
abandonment. The Labour Court has
further held that to infer abandonment
would be contrary to the principles of
natural justice, and would fall squarely
within the definition of retrenchment. The
Labour Court has also held that the
workman was not engaged in any gainful
employment and his casual exertions to
earn his livelihood, cannot be equated with
gainful employment.

19. The submission of learned counsel
for the Employers that after the closure of
the
unit,
where
the
workman
was
employed, he cannot be given any relief,
has been rejected by the Labour Court,
holding that the closure notice on its own
terms shows that 23 workman employed in
the unit have been adjusted in another unit.
There is no justification for the Employers
not to do so in the workman's case. The
Labour Court has concluded that the
services of the workman have been
illegally terminated that falls within the
definition of retrenchment, and that it has
been done in violation of Section 6N of the
Act. It has further been held that the
workman was not gainfully employed
elsewhere, and, that notwithstanding the
closure, he is entitled to relief. In accord
with these findings, the Labour Court
answered the reference in favour of the
workman, and, made an award in terms
already detailed.

20. The principal issue on which the
parties have addressed this Court is:
whether in the garb of a transfer order, the
services of a workman can be terminated in
violation of the Certified Standing Orders?

21. It is submitted by Sri Diptiman
Singh, learned Counsel for the Employers
that the workman was appointed as an
Operator (A.C. Plant), vide appointment
letter dated 01.08.1990, drawn up in
accordance with the Certified Standing
Orders of the Employers. Clause 5 of the
appointment letter clearly provides for
transfer to any unit of the Employers,
wherever it may be located. It is contented
on behalf of the Employers that the
workman duly received the letter of
appointment and did not protest or object to
the transfer clause that is an integral part of
the workman's conditions of service, spelt
out by the letter of appointment.

22. It is submitted further that it is not
that the Certified Standing Orders have
introduced a service condition about
transfer unauthorisedly. Transfer is one of
the conditions of service postulated under
clause (4) of the 'MODEL STANDING
ORDERS ON ADDITIONAL ITEMS
APPLICABLE TO ALL INDUSTRIES',
detailed in Schedule 1-B to the Rules of
1946. It is pointed out by the learned
Counsel for the Employers that the only
restriction under clause (4) of the Model
Standing Orders, carried in Schedule 1-B,
last mentioned is that such transfer, in case
of an inter-State transfer, can either take
place with the consent of the workman, or
in case there is a specific provision to that
effect in the workman's appointment letter.
6 All. M/s Super Cassettes Industries Pvt. Ltd., Noida Vs. State of U.P. & Ors.
361
The transfer when made in either of two
contingencies is also subject to reasonable
notice to the workman and allowance of
reasonable time to join at the other station.
The workman is also entitled to receive
travelling allowance, including transport
charges etc.

23. It is pointed out by Sri Diptiman
Singh, learned counsel for the Employers that
the transfer order was duly received by the
workman on 16.02.1996. The transfer order
dated 10.02.1996 is in keeping with the
provisions of Clause (4) of the Model Standing
Orders set out in Schedule 1-B to the Rules of
the 1946, inasmuch as the letter of appointment
of the workman specifically provides for a
transfer to any unit of the Employers, at
whatever place located. Also, the Certified
Standing Orders of the Employers provide for
an inter-State transfer in keeping with the
Model Standing Orders, last mentioned. It is
submitted, therefore, that the workman cannot
really say that he has an industrial dispute to
raise about his transfer.

24. It is also urged on behalf of the
Employers that no dispute regarding the validity
of transfer was referred to the Labour Court.
Instead, the workman moved an application
under Section 2-A of the Act before the
Conciliation Officer, dubbing his transfer as
retrenchment. In this connection, learned
Counsel for the Employers has drawn the
attention of the Court to the workman's
application, dated 29.03.1996, which is on
record as Annexure-5 to the writ petition. It is
pointed out that in paragraph 1-ग it is
categorically urged that the workman's services
have been terminated by way of retrenchment
with effect from 10.02.1996, which in fact is the
date of the workman's transfer.

25. It is submitted that reference has been
made under Section 4-K of the Act vide order
dated 08.07.1996, relating to termination of the
workman's services by the Employers on
10.02.1996. The reference order does not at all
speak about the validity of transfer to be the
subject matter. In this connection, learned
Counsel for the Employers has drawn the
attention of the Court to the workman's written
statement, particularly, the averments in
paragraphs 4 and 5, about which it is said that
the case pleaded by the workman is one of
illegal transfer.

26. It is also submitted by the learned
Counsel for the Employers that they raised
a preliminary objection in their written
statement regarding the maintainability of
the reference on ground that the workman's
services were never terminated. They
averred that the master and servant
relationship
continued
between
the
Employers and the workman on 10.02.1996
and even thereafter, inasmuch as, on
10.02.1996 the workman was transferred,
but
not
retrenched,
or
his
services
terminated. In this connection, it must be
remarked that the relevant paragraph being
no.9 of the written statement filed by the
Employers has been extracted hereinabove,
on the basis of which in the togetherness
with pleadings in paragraphs nos.3, 4, 5, 6,
7 & 8 of the written statement aforesaid,
the Employers have come up with this plea
that the reference is infructuous and void;
or so to speak, there was no industrial
dispute in existence when the reference was
made.

27. In support of the aforesaid
contention, Sri Diptiman Singh, learned
Counsel for the Employers has relied upon
an unreported decision of this Court in
Writ - C No.689 of 2012, M/S Triveni
Engineering and Industrial Ltd. vs. State
of
U.P.
and
others,
decided
on
30.01.2013. He has relied upon the
362 INDIAN LAW REPORTS ALLAHABAD SERIES
principle in that case and referred to the
following paragraph in the judgment:

"From the aforesaid admission of
the workman concerned, it is undisputed
position that even after alleged oral
termination on 29th February, 2008, the
employee concerned was called for duty as
seasonal clerk in the employment of the
petitioner industry and he had actually
worked in the crushing season 2008-09 i.e.
season following the order dated 29th
February, 2008. It is therefore apparent that
the services of the workman were not
actually terminated on 29th February, 2008.
He had been invited to work and he had
worked in the crushing season 2008-09.
Therefore there being no actual termination
of the services of the workman on 29th
February, 2008, the reference itself was
bad."

28. He submits on the principle of the
decision in M/s Triveni Engineering and
Industrial Ltd. (supra) that in the present
case there was no termination of service
ordered by the Employers with effect from
10.02.1996. On the said date, a transfer
order alone was passed that was received
by the workman on 16.02.1996 requiring
him to proceed to Mumbai and join at the
station of transfer. Thus, the reference to
the effect that termination of service of the
workman with effect from 10.02.1996 was
unlawful, is bad in law.

29.

Learned
counsel
for
the
Employers has further placed reliance upon
a decision of the Supreme Court in
Addisons Paints & Chemicals Ltd. vs.
Workmen represented by the Secretary
(A.P. & C.) Assistants' Association and
another, (2001) 2 SCC 289, in support of
an obligation on the workman to have
joined the station of transfer, and then
raised an industrial dispute about it. He
submits that the workman could not have
declined to join. Learned counsel for the
Employers has placed reliance upon
paragraph 6 of the report in Addisons
Paints & Chemicals Ltd. (supra), where it
is held:

"6. We have heard the parties,
read the impugned judgment as well as the
judgment of the Single Judge and the award
of the Tribunal. In our view, there is no
infirmity either in the award or in the
judgment of the Single Judge or in the
judgment of the Division Bench. The
employee Nagarajan had refused to accept
the transfer order and refused to report for
duty after his transfer. We see no substance
in the contention that he was entitled not to
join. In our view the dispute could have
been raised and agitated even after joining.
There was no justification for not reporting
for duty. In spite of Nagarajan not having
worked he has been awarded 25% of back
wages. This was within the discretion of the
Court and we see no reason to interfere. At
the request of the appellants in CA No. 392
of 1997, they are granted time of eight
weeks from today to pay 25% of the back
wages."

30.

Learned
counsel
for
the
Employers has also referred to the decision
in Tata Iron and Steel Company Limited
vs. State of Jharkhand and others, (2014)
1 SCC 536, in support of his contention
that the Labour Court never had a dispute
about the validity of the transfer order
referred to it, entitling it to decide that
dispute. The Labour Court had a dispute
referred to it about the validity of the
workman's termination, with effect from
10.02.1996 and nothing more. Learned
counsel for the Employers has referred to
paragraph nos. 11, 16 and 18 of the report
6 All. M/s Super Cassettes Industries Pvt. Ltd., Noida Vs. State of U.P. & Ors.
363
in Tata Iron and Steel Company Limited
(supra), where it is held:

"11. Having said so, we are of the
opinion that the terms of reference are not
appropriately worded inasmuch as these
terms of reference do not reflect the real
dispute between the parties. The reference
presupposes that the respondent workmen
are the employees of the appellant. The
reference also proceeds on the foundation
that their services have been "transferred"
to M/s Lafarge. On these suppositions the
limited scope of adjudication is confined to
decide as to whether the appellant is under
an obligation to take back these workmen
in service. Obviously, it is not reflective of
the real dispute between the parties. It not
only depicts the version of the respondent
workmen, but in fact accepts the same viz.
they are the employees of the appellant and
mandates
the
Labour
Court/Industrial
Tribunal to only decide as to whether the
appellant is required to take them back in
its fold. On the contrary, as pointed out
above, the case set up by the appellant is
that it was not the case of transfer of the
workmen to M/s Lafarge but their services
were taken over by M/s Lafarge which is a
different company/entity altogether. As per
the appellant they were issued fresh
appointment letters by the new employer
and the relationship of employer-employee
between the appellant and the workmen
stood snapped. This version of the
appellant goes to the root of the matter. Not
only it is not included in the reference, the
appellant's right to put it as its defence, as a
demurer, is altogether shut and taken away,
in the manner the references are worded.

16.
The
Industrial
Tribunal/Labour Court constituted under
the Industrial Disputes Act is a creature of
that statute. It acquires jurisdiction on the
basis of reference made to it. The Tribunal
has to confine itself within the scope of the
subject-matter of reference and cannot
travel beyond the same. This is the view
taken by this Court in a number of cases
including in National Engg. Industries Ltd.
v. State of Rajasthan [(2000) 1 SCC 371 :
(2007) 2 SCC (L&S) 264] . It is for this
reason that it becomes the bounden duty of
the appropriate Government to make the
reference appropriately which is reflective
of the real/exact nature of "dispute"
between the parties.

18. It follows from the above that
the reference in the present form is clearly
defective as it does not take care of the
correct and precise nature of the dispute
between the parties. On the contrary, the
manner in which the reference is worded
shows that it has already been decided that
the respondent workmen continue to be the
employees of the appellant and further that
their services were simply transferred to
M/s Lafarge. This shall preclude the
appellant to put forth and prove its case as
it would deter the Labour Court to go into
those issues. It also implies that by
presuming so, the appropriate Government
has itself decided those contentious issues
and assumed the role of an adjudicator
which is, otherwise, reserved for the
Labour Court/Industrial Tribunal."

31. Sri Shekhar Srivastava, learned
Counsel appearing for the workman has
urged
that
the
workman
has
been
transferred mala fide in the guise of
following
the
management's
policy
regarding transfer.

32. Sri Shekhar Srivastava, learned
Counsel appearing on behalf of the
workman submits that the workman's
services could not be terminated in effect,
in the garb of a transfer order, when there
was no authority with the Employers to
364 INDIAN LAW REPORTS ALLAHABAD SERIES
transfer the petitioner outside State without
his consent, in the absence of a provision to
that effect in the Certified Standing Orders
applicable to the Employer-establishment,
or the presence of a provision in the
workman's appointment letter, authorizing
such a transfer. He has referred to a
decision of the Delhi High Court in Tobu
Enterprises
Limited
vs.
Presiding
Officer, Industrial Tribunal, (2009) 122
FLR 71, where it was held:

"6. I find considerable force in
the submissions made on behalf of the
workmen. In the present case it is seen that
(a) there was no unit outside Delhi when
the workmen were appointed, (b) there was
no stipulation in the appointment letters
that the workmen could be transferred
outside Delhi, and (c) the management
closed down its unit in Delhi in violation of
the relevant provisions of the ID Act. It is,
therefore, seen that although the certified
Standing Orders of
the management
provided that the workmen could be
transferred from one job to another or from
one department/section to another or from
one unit to another, as observed by the
Single Judge in Civil Writ No.