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

- **Citation:** (2020) 9 ILRA 716
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-24
- **Case number:** WRIT - C No. 38708 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-super-cassettes-industries-pvt-ltd-v-state-of-u-p-ors-46071
- **Pages:** 9

## Headnote

Civil Law - U.P. Industrial Disputes Act (28
of 1947) - Transfer of workman outside
State - workman refused to comply with
transfer order - as transfer not part of his
service conditions - S.4K - Reference to
Labour
Court
-
regarding
validity
of
termination - Held - On reference about the
validity of the workman's dismissal - based
on a charge of disobeying transfer order -
Labour Court has jurisdiction to examine
whether the transfer order could be lawfully
made - though validity of the transfer order
not referred - validity of dismissal order
referred & validity of transfer order cannot
be
separated
-
requires
wholesome
determination - Labour Court directed to
firstly examine the validity of the transfer
order & then determine the validity of the
order of dismissal referred (Para 18)

Allowed in part. (E- 5)
List of Cases cited: -

## Text

716 INDIAN LAW REPORTS ALLAHABAD SERIES

24. We make it clear that we have not
adjudicated the controversy on its merit
either way.

25. The writ petition is allowed in part
with the aforesaid directions. No order as to
costs.
----------
(2020)09ILR A716
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2020

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

WRIT - C No. 38708 of 2018

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

Counsel for the Petitioner:
Sri Diptiman Singh

Counsel for the Respondents:
C.S.C., Sri Shekhar Srivastava

Civil Law - U.P. Industrial Disputes Act (28
of 1947) - Transfer of workman outside
State - workman refused to comply with
transfer order - as transfer not part of his
service conditions - S.4K - Reference to
Labour
Court
-
regarding
validity
of
termination - Held - On reference about the
validity of the workman's dismissal - based
on a charge of disobeying transfer order -
Labour Court has jurisdiction to examine
whether the transfer order could be lawfully
made - though validity of the transfer order
not referred - validity of dismissal order
referred & validity of transfer order cannot
be
separated
-
requires
wholesome
determination - Labour Court directed to
firstly examine the validity of the transfer
order & then determine the validity of the
order of dismissal referred (Para 18)

Allowed in part. (E- 5)
List of Cases cited: -

1.
Workman
of
Bijlibari
Tea
Estate
Vs
Management 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 Labour Court,
dated
27.07.2018
(published
on
06.09.2018) passed by the Presiding
Officer, Labour Court, NOIDA, Gautam
Budh Nagar in Adjudication Case no.33 of
2018, between Kishan Bahadur and Toni
Electronics Limited. By the said award, the
Labour Court has answered the reference
made to it, under Section 4-K of the Uttar
Pradesh Industrial Disputes Act, 1947 (for
short, ''the Act'), regarding the validity of
termination of services of Kishan Bahadur
in favour of the workman and against the
employers. The termination of the services
of
the
workman
with
effect
from
16.01.1996 has been held to be illegal and
he has been ordered to be reinstated in
service with full back-wages, continuity
and other benefits.

2. It must be pointed out here that the
industrial dispute was raised between
Kishan Bahadur and Toni Electronics
Limited, the employers. Pending the
industrial dispute before the Labour Court,
Toni Electronics Limited was amalgamated
into Super Cassettes Industries Private
Limited, in consequence of which Super
Cassettes Industries Private Limited took
over as the employers. They also took over
all rights, liabilities and pending actions by
or against Toni Electronics Limited.
Accordingly, Super Cassettes Industries
Private Limited made an application to the
Labour Court that the cause title of the
industrial dispute, pending before it, may
be appropriately amended to indicate the
9 All. M/s Super Cassettes Industries Pvt. Ltd. Vs. State of U.P. & Ors.
717
new identity of the employers. The said
application was made on 13.08.2001 and
allowed
by
the
Labour
Court
on
02.08.2002. In this judgment, Kishan
Bahadur shall hereinafter be referred to as,
''the workmen', whereas the petitioner, M/s.
Super Cassettes Industries Private Limited
shall be referred to as, ''the employers'.

3. This industrial dispute arose in
relation to a unit of M/s. Toni Electronics
Limited, situate at G-3,4, Sector 11,
NOIDA, since amalgamated with the
employers, under an order of the Registrar
of Companies, dated 13.12.1999. The
employers' unit was engaged in the
manufacturing of Audio Cassettes. It is said
that the employers have moved over to
production and promotion of films, music
and marketing of electronic goods, since
audio cassettes have become an obsolete
technology. The workman was employed
as an Air Conditioner Mechanic with effect
from 01.03.1989 with the employers. It
appears that the workman was transferred
from NOIDA, Gautam Budh Nagar to a
unit of the employers, situate at Malanpur,
District
Bhind,
Madhya
Pradesh,
by
transfer order dated 03.07.1995, requiring
him to join his station of transfer by
08.07.1995.

4. Shorn of unnecessary detail, the
workman did not join at Malanpur in
compliance with the transfer order, last
mentioned. He was charge sheeted for the
misconduct, in not complying with the
transfer order. A charge sheet dated
19.08.1995 was issued to him. A domestic
inquiry was held, where the workman was
found guilty. An inquiry report dated
14.11.1995, holding him guilty, was
submitted by the Inquiry Officer. A show
cause notice dated 20.12.1995 was issued
to the workman, following which the
workman was dismissed from service vide
order dated 13.01.1996, with effect from
16.01.1996. It is this action of the
employers that led the workman to move
the Authority under the Act by an
Application, under Section 2-A, seeking
conciliation. The conciliation having failed,
an industrial dispute, under Section 4-K of
the Act was referred by the Additional
Labour Commissioner in the following
terms (translated into English from Hindi
vernacular):

"Whether the action of the
employers in terminating the services of
their workman, Sri Kishan Bahadur son of
Sri Nand Ram, A.C. Operator w.e.f.
08.07.1995, is lawful and justified? If not,
to what relief, compensation, the concerned
workman is entitled and in what terms and
with what effect."

5. The said reference led to
registration of Adjudication Case no.489 of
1996.
Objection
was
raised
by
the
employers to the validity of this reference,
inasmuch as the services of the workman
were not terminated with effect from
08.07.1995, which is the date of his transfer
order. Rather, he was dismissed from
service after an inquiry on a charge of
disobeying the transfer order vide order
dated 13.01.1996 w.e.f. 16.01.1996. It
appears that on 08.07.1996, a second
reference was made regarding the industrial
dispute between the employers and their
workman, relating to termination of his
services. This reference was made in the
following terms by the Additional Labour
Commissioner, Ghaziabad vide order dated
14.11.1996 (translated into English from
Hindi vernacular):

"Whether the action
of the
employers in terminating the services of
718 INDIAN LAW REPORTS ALLAHABAD SERIES
their workman, Sri Kishan Bahadur son of
Sri Nand Ram vide order dated 16.01.1996,
is lawful and justified? If not, to what
relief,
compensation,
the
concerned
workman is entitled and in what terms and
with which date and what particulars."

6. On the basis of the reference dated
08.07.1996, Adjudication Case no.242 of
1997 was registered before the Presiding
Officer, Labour Court, Ghaziabad. An
objection was raised by the employers, this
time, that a similar Adjudication Case
no.489 of 1996 is pending between parties.
The workman made an application in
Adjudication Case no.489 of 1996 that he
does not want to pursue the reference.
Accordingly, the Presiding Officer, Labour
Court, Ghaziabad accepted the application
and held that on the reference, no industrial
dispute survived, answering it accordingly.
In Adjudication Case no.242 of 1997,
parties lodged their written statements,
their rejoinder statements, besides adducing
evidence, both oral and documentary.
Through their stand before the Labour
Court, the employers informed that the
workman had been dismissed from service
in consequence of disciplinary proceedings
by the order, the legality of which was
subject matter of the reference. The
employers' case, amongst others, made it
clear that the workman was dismissed from
service vide order dated 13.01.1996, after
full course of disciplinary proceedings, on
the charge that he had disobeyed the
transfer order dated 03.07.1997.

7. It is pointed out that on 25.10.2007,
Adjudication Case no.242 of 1997 was
transferred
from
the
Labour
Court,
Ghaziabad to the Labour Court, NOIDA,
District Gautam Budh Nagar. At NOIDA,
District
Gautam
Budh
Nagar,
the
Adjudication Case was renumbered as 33
of 2008. The Labour Court proceeded to
frame
a
preliminary
issue
regarding
fairness
of
the
domestic
inquiry,
undertaken by the employers. By an order
dated 12.07.2017, the Labour Court held
that the domestic inquiry conducted by the
employers was fair and proper. In doing so,
the Labour Court had before him the
Inquiry Officer, who testified as a witness
and the workman also. Evidence relating to
proceedings of the inquiry was adduced.
The Labour Court in holding the inquiry to
be fair has recorded reasons that more than
meet the eye.

8. The Labour Court has remarked
that at the time of decision of the
preliminary point, it is not to be seen
whether the transfer order
regarding
disobedience, on which the charge was
laid, was lawful or not. What had to be seen
was, according to the Labour Court,
whether the inquiry was procedurally fair.
The Labour Court has then gone on to say
that looked at from this point of view, it is
clear that a charge sheet was given to the
workman. His explanation being not
satisfactory, inquiry proceedings were
scheduled with a first date on 23.09.1995,
when the workman did not appear. Again,
21.10.1995 was the date scheduled for the
inquiry, when the workman appeared. He
accepted the charge and said that he had no
evidence to produce or witness to examine
in his defence. He also did not crossexamine any witness. On the foot of these
facts, the Labour Court held that it cannot
be said that there was any violation of
principles of natural justice or the charges
were established against him through a
flawed procedure.

9. It was also held that the preliminary
point was answered in favour of the
employers,
holding
the
disciplinary
9 All. M/s Super Cassettes Industries Pvt. Ltd. Vs. State of U.P. & Ors.
719
proceedings to be fair and one conducted
according to the principles of natural
justice. The Labour Court then directed the
industrial dispute to come up for the
purpose of determination, whether the
transfer
of
the
workman
from
the
employers' unit at NOIDA to Malanpur,
District Bhind, Madhya Pradesh, was
lawful and further if for disobeying an
order of that kind, the workman could be
penalized.

10. Heard Sri Diptiman Singh,
learned
Counsel
for
the
petitionerEmployers and Sri Shekhar Srivastava,
learned
Counsel
appearing
for
the
respondent-workman.

11. This Court has perused the
deposition of the Inquiry Officer, Sri Anil
Singhal before the Labour Court and also
that of the workman. A wholesome reading
of the deposition of the workman does not
show that he has admitted the charge to be
correct as remarked by the Labour Court in
its order dated 12.09.2017, disposing of the
preliminary point about fairness of the
inquiry. If that were so, there would be
nothing left for the Labour Court to
determine. What in substance the workman
has said in his testimony recorded on
23.03.2004, is that after a strike, the
Management had reduced on facilities, like
dress allowance, free tea and meals. He has
also said that it is correct to say that he was
pressurized to resign. On his refusal, he
was
suspended
with
effect
from
22.02.1995.
Departmental
proceedings
followed. He appeared at the inquiry. The
charges could not be proved against him by
the Management in that inquiry. The
suspension order was withdrawn, but
instead of being reinstated, he was
transferred the same day, that is to say,
03.07.1995 to Malanpur, District Bhind,
Madhya Pradesh. It was specifically stated
by the workman in his evidence that
transfer was not part of his service conditions
and, therefore, he refused to comply with the
transfer order. He has also said that Certified
Standing Orders were never displayed on the
notice board. The workman has said that he
did not appear further before the Inquiry
Officer because transfer is not a condition of
his service. The inquiry convened is,
therefore, manifestly illegal. In his crossexamination, the workman has accepted it for
a fact that on 03.07.1995, he was transferred
to Malanpur to join there by 08.07.1995. He
has also acknowledged the fact that he did
not join at Malanpur. He has also not denied
that he was served with a charge sheet on
19.08.1995, to which he submitted a reply on
22.08.1995. He has also acknowledged the
fact that when his reply was not found
satisfactory,
inquiry
proceedings
were
convened. There is a long winded crossexamination further, recorded on 19.02.2007.
He has acknowledged facts fairly about the
inquiry proceedings; about when he appeared
and when he did not. He has said for a fact
that he admitted before the Inquiry Officer
that when he did not join at Malanpur, he was
served with a show cause notice. He has,
however, denied the fact that he was ever
provided his appointment letter. He has
denied the fact that the employers did not
withdraw facilities. He has also stated that it
is wrong to say that he was not stopped from
joining duties on 08.07.1995. It must be
remarked that this statement of the workman
perhaps refers to stopping him from joining
work at NOIDA, Gautam Budh Nagar. He
has then said in the concluding part of his
cross-examination that his services have been
wrongfully dispensed with, as a result of the
inquiry proceedings.

12. This Court also notices that the
Inquiry Officer appears to have been cross-
720 INDIAN LAW REPORTS ALLAHABAD SERIES
examined on behalf of the workman by one
Ompal Singh, who appears to be his
defence
representative.
He
put
the
following questions to the Inquiry Officer:

"प्रश्न- क्या कारखाने के प्रमाबणत
स्थाय आदेशो अनुसार उन श्रबमको का
दूसरे राज्य में स्थानान्तरण बकया जा
सकता है जो कमथकार क पररभाषा में
आते है ।

उत्तर- प्रमाबणत स्थाय आदेश क
धारा-19 (ए) के अनुसार सभ कमथकारो का
स्थानान्तरण एक बवभाग से दूसरे बवभाग
एक फैक्टर / आबफस/ स्थान से दूसर
फैक्टर / आबफस/ स्थान पर स्थानान्तरण
बकया जा सकता है। उसमें एक राज्य से
दूसरे राज्य में स्थानान्तरण के सम्बन्ध में
कुछ नह बलखा गया है।

मैने स्थाय आदेश प्रमाबणत होने
के सम्बन्ध में कमथकारो के बनवाथबचत
प्रबतबनबधयोीं के बारे में कुछ नह ीं देखा है।"

13. This testimony of the workman
leaves this Court to wonder how the Labour
Court inferred that the workman has
admitted the charge. What the workman
had admitted, is the fact that he did not
comply with the transfer order; he was
proceeded with departmentally for noncompliance and punished. He has taken a
stand that transfer is not one of his
conditions of service and, therefore, the
punishment order is bad.

14. This Court is, therefore, of firm
opinion that the Labour Court recorded a
perverse
finding
in
its
order
dated
12.09.2017
that
on
21.10.1995,
the
workman appeared before the Inquiry
Officer and accepted the charges against
him, and signed proceedings. The findings
that he did not ask for opportunity to lead
evidence or cross-examine witnesses is also
perverse. The stand of the workman is clear
that he denied the charge that he committed
any misconduct, but admitted the fact that he
did not comply with the transfer order. What
the workman clearly said was that since
transfer was not part of his service conditions,
disregarding that order was no misconduct. If
this was his stand, he would have little
evidence to offer in the matter of decision of
the preliminary point about fairness of the
inquiry. The order of the Inquiry Officer,
disposing of the preliminary issue dated
12.09.2017 is bad, more fundamentally for
another
reason.
After
recording
his
conclusion that the inquiry was fair and the
workman has admitted the charge, the
Labour Court posted the industrial dispute
for adjudication on the point whether the
transfer order was lawful and if its
disobedience could be punished. This was
never the subject matter of reference, made
to the Inquiry Officer.

15. Mr. Deeptiman Singh, learned
Counsel for the employers has argued that
the impugned award is bad because the
Labour Court has gone into the validity of
the transfer order, which he could not do as
a Court of referred jurisdiction.

16. On the other hand, Sri Shekhar
Srivastava, learned Counsel for the workman
has aruged that the order of reference is about
dismissal from service of the workman, at the
bottom of which lies the validity of a transfer
order. The validity of the transfer would,
therefore, have to be adjudged while judging
the issue about the validity of termination of
the workman's services on a charge of
disobeying the transfer order.

17. These submissions of learned
Counsel for both sides represents a correct
9 All. M/s Super Cassettes Industries Pvt. Ltd. Vs. State of U.P. & Ors.
721
perspective of the matter from their
respective vantage. It has to be put together
to form a wholesome and complete picture.
This situation has come about because in
this case and going by the structure of the
dispute and the terms of reference, the
Labour Court could not have decided the
question as a preliminary about the
procedural fairness of the inquiry. Any step
towards resolution of the industrial dispute
would require the Labour Court to
determine whether the transfer order was
indeed valid for the workman. If it was not
the inquiry conducted, howsoever fairly,
would be proceeding built on the edifice of
a charge, that was non est.

18. The submission of Mr. Deeptiman
Singh, learned Counsel for the employers
that on a reference about the validity of the
workman's termination from service or
dismissal
pursuant
to
disciplinary
proceedings vide order dated 16.01.19996,
the validity of the transfer order dated
03.07.1995, could not be gone into, is not
acceptable. It is for the reason, already
indicated, and made more clear by saying
that the charge on the basis of which the
workman has been dismissed or removed
from
service
has
as
its
necessary
concomitant, the validity and legality of the
transfer
order
dated
03.07.1995.
In
deciding the validity of the order of
dismissal dated 16.01.1996, subject matter
of reference, the Labour Court has
jurisdiction to examine whether the transfer
order could be lawfully made. But, by
recording the order dated 12.09.2017
holding that the workman has accepted the
charges against him and the inquiry is fair,
the Labour Court has virtually left itself
with nothing to decide. Also, the Labour
Court in passing the impugned award has
dealt with a truncated reference, under
these circumstances. To add, the Labour
Court has recorded in the impugned award
and
the
order
dated
12.09.2017,
conclusions that would virtually run
contrary to one another. The principle is
that the Labour Court while judging the
validity of an order of removal based on a
charge about the violation of a transfer
order, where the terms of reference are
about the validity of the termination/
dismissal from service, can well go into the
validity of the transfer order also; though
validity of the transfer order is not per se
referred.

19. The view of this Court finds
support from the decision of the Gauhati
High Court in Workman of Bijlibari Tea
Estate vs. Management of Bijlibari Tea
Estate, (2010) 4 Gauhati Law Reports
849, where considering the question of
validity of dismissal from service of the
workman on his refusal to accept an
unlawful transfer, it was held:

"14. In the instant case, it is
evident
from
the
domestic
enquiry
proceeding (Exhibit-1) conducted against
the concerned workman, relating to the
charge levelled against him that the
workman
had
participated
in
such
proceeding and the reasonable opportunity
of being heard was given. There is no
allegation of victimisation or unfair labour
practice as well as the allegation against the
management that it had not acted in good
faith. It appears that the case of the Union
is that the domestic enquiry is not fair and
valid as no finding has been recorded into
the charge of misconduct levelled against
the workman and no reason has also been
recorded, inasmuch as, the Enquiry Officer
did not go into the aspect as to whether by
the order of transfer the conditions of
employment has been violated. According
to the Union, disobedience of a transfer
722 INDIAN LAW REPORTS ALLAHABAD SERIES
order which is lawful and reasonable, only
amounts to the misconduct under clause 10
of the standing order in force and in the
instant case, as the workman was engaged
in Bijlibari Tea Estate, he cannot be
transferred out of the said Tea Estate and to
a new venture/Tea Estate, which was not in
existence at the time of his appointment.
The further case, as it appears from the
evidences adduced before the labour court,
is that in any case, he cannot be transferred
out of Dibrugarh district and the transfer
order amounts to depriving him from the
enjoyment of other benefits attached to his
service like housing facilities, etc.

15. The Enquiry Officer though in
his report had rejected the contention of the
workman that he cannot be transferred out of
Dibrugarh district and also relating to
deprivation from enjoyment of certain
benefits, had not, however, recorded any
finding relating to the plea of the workman
that since he was appointed in respect of
Bijlibari Tea Estate only, he cannot be
transferred
to
any
other
Tea
Estate
subsequently established by the management,
while recording the finding that the lawful
order of transfer has been disobeyed by the
concerned workman, which amounts to
misconduct, without, however, considering as
to whether the order of transfer is lawful as
the concerned workman was appointed only
in respect of Bijlibari Tea Estate. That aspect
of the matter has also not been gone into by
the labour court.

16. Clause 10 of the standing
order in force provides the acts or
omissions of the workman constituting
gross misconduct. Clause 10(a)(1) of the
standing order provides that the wilful
insubordination or disobedience of only a
lawful or a reasonable order of a superior
constitutes gross misconduct. In the case in
hand, the charge against the concerned
workman was that he did not obey the
order of transfer, which was the basis for
taking disciplinary action against the
concerned workman. The management,
therefore, has to prove that the order of
transfer is lawful and reasonable so as to
constitute misconduct within the meaning
of clause 10 of the standing order. The
concerned workman, as noticed above, has
all along pleaded that he being appointed in
Bijlibari
Tea
Estate,
he
cannot
be
transferred out of the said Tea Estate. If
such plea is accepted then he cannot be
transferred out of Bijlibari Tea Estate and
in that case the order of transfer would not
be lawful and consequently, the concerned
workman cannot be punished for not carry
out such an order, the same having not
constituted misconduct within the meaning
of clause 10 of the standing order in force.

17. As discussed above, the
Enquiry Officer did not record any finding
on the vital aspect of the matter as to
whether the workman could be transferred
out of Bijlibari Tea Estate, his appointment
being in respect of Bijlibari Tea Estate
only. It has not been disputed by the
learned senior counsel for the management
that the concerned workman was appointed
in respect of Bijlibari Tea Estate and there
was no other venture of the management at
the point of time when the concerned
workman was appointed. It is also not in
dispute that by the order dated 8.8.1994, he
was sought to be transferred to a new
venture,
which
according
to
the
management, is the out garden. The
domestic
enquiry
held
against
the
concerned workman, therefore, cannot be
held to be fair and valid so as not to go into
the merit of the case by the labour court, as
has been done in the instant case, as the
Enquiry Officer did not go into the vital
aspect of the matter, as noticed above,
which
amounts
to
violation
of
the
principles of natural justice.
9 All. M/s Super Cassettes Industries Pvt. Ltd. Vs. State of U.P. & Ors.
723

22. It appears from the order of
transfer dated 8.8.1994 that the pay and
other benefits of the concerned workman
had not been disturbed. The management
by, proving the communication dated
7.9.1994 (Exhibit-6) has proved that all his
service benefits including the salary and
other incentives would be paid and he
would be provided with rental housing
facility or house rent commensurate to his
status. That being the position, the
concerned
workman's
salary,
other
incentives and the housing facilities etc.
were 20 not disturbed and he would
continue to enjoy the same, which he was
enjoying in Bijlibari Tea Estate. The plea
of the concerned workman that he cannot
be transferred out of Dibrugarh district was
also rightly found to be not acceptable by
the Enquiry Officer in his report. However,
it is an admitted position of fact that the
concerned workman was appointed initially
as trainee and thereafter, as Hazira Maharar
for Bijlibari Tea Estate only. It is also not
in dispute that by the order of transfer dated
8.8.1994, the workman was sought to be
transferred to a proposed new venture at
Margherita, which naturally was not in
existence while the concerned workman
was appointed. Unless there is a specific
condition in the order of appointment that
he can be transferred out of the Tea Estate,
where he was appointed and even to a new
venture, the management in exercise of its
right of transfer of its workman cannot
transfer such workman to a new venture, as
such right of the management cannot be
implied as conditions of service. If a
workman is appointed in respect of one Tea
Estate, he cannot be transferred to another
Tea Estate, as it would be the violation of
his conditions of employment he being
appointed in respect of a particular Tea
Estate only. In the case in hand, as noticed
above, there is no dispute that the
concerned workman was appointed in
respect of Bijlibari Tea Estate only and hence,
he cannot be transferred out of Bijlibari Tea
Estate, even though the new venture is under
the same management, but he can definitely be
transferred to another section or to any other
transferable post within the tea estate. The
management though has taken the plea that the
said new venture is nothing but an extension
of Bijlibari Tea Estate, did not produce any
evidence before the labour court in that regard.
The order of transfer reveals that the
concerned workman was transferred to a new
venture proposed to be started.

23. The Apex Court in Kundan
Sugar Mills, (supra) while considering
almost the similar facts involved in the case
in hand, has held that the employer has no
inherent right to transfer his employee to
another place where he chooses to start a
business subsequent to the date of the
employment, when there was no condition
of service of employment of the employee
either express or implied that the employer
has the right to transfer to such new venture
started or proposed to be started subsequent
to the date of his employment. The Apex
Court in that case has uphold the judgment
of the labour Appellate 21 Tribunal holding
that the management had no right to
transfer the workman to a new factory and
hence, the order dismissing him from
service was illegal, based on the fact that
such workman employed in a factory
owned by the management was sought to
be transferred to a new venture. The Single
Bench decision of this court in Kakodanga
Tea Estate (P.) Ltd., (supra), on which the
learned senior counsel for the management
places reliance, cannot be applied in the
case in hand, in view of the aforesaid
discussion and as in that case, the
concerned workman was transferred from a
post in the tea garden to the Head Quarter
of the Tea Company."
724 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The reference in Workman of
Bijlibari Tea Estate was in the following
terms (quoted verbatim from the report in
Workman of Bijlibari Tea Estate):

"(a) Whether the management of
Bijlibari T.E., Hoogrijan, PO-Hoogrijan, Dist.
Dibrugarh is justified in dismissing Sri Sankar
Dutta, Hazira, Mohurrer from service or not?

(b) It not, is he entitled to
reinstatement with full back wages or any
other relief in lieu thereof?"

21. In Workman of Bijlibari Tea
Estate, the Gauhati High Court held the
dismissal of the workman bad on a
reference about dismissal from service on
ground that the charges were based on a
transfer order, which was illegal. This is
precisely the workman's case here. This
Court does not wish to say at all whether
the order of transfer is valid or invalid.

22. Mr. Deeptiman Singh has attempted
to show that the Certified Standing Orders of
the Company do make provision for an interState transfer. Mr. Shekhar Srivastava, on the
other hand, submits that the provisions there
do not warrant a transfer outside the State.
Other issues have also been attempted to be
raised by the learned Counsel. This Court is
not inclined to go into those matters in the
present petition as in the opinion of this Court,
this matter must go back to the Labour Court
for a wholesome determination of the
reference. The Labour Court would examine
the validity of the transfer order, first in
sequence, and then proceed to determine the
validity of the order of dismissal referred. The
validity of the order of dismissal referred and
the validity of the order of transfer cannot be
separated.
It
requires
a
wholesome
determination.

23. In the result, the impugned award
is liable to be quashed, as also the order
separately made, disposing of the point
regarding
validity
of
the
inquiry
proceedings, though the said order dated
12.09.2017 is not formally challenged by
the employers. That order is patently illegal
and cannot be permitted to survive.

24. In the result, this writ petition is
allowed in part. The impugned award dated
27.07.2018
(published
on
06.09.2018)
passed by the Presiding Officer, Labour
Court, NOIDA, Gautam Budh Nagar in
Adjudication Case no.33 of 2018 and the
order dated 12.09.2017 passed by the
Labour Court in the Adjudication Case
aforesaid, are hereby quashed. Reference
dated 08.07.2016 is upheld. The Labour
Court shall proceed to redetermine the
reference in accordance with law and
endeavour to decide the same within a
period of six months next, after hearing both
parties and bearing in mind guidance in this
judgment. It is further ordered that out of the
sum of Rs.50,000/- deposited by the
employers with the Labour Court in
compliance with the interim order dated
27.11.2018, the sum of Rs.25,000/- paid to
the workman, shall not be recovered,
whereas the balance of Rs.25,000/-, invested
with whatever Nationalized Bank, shall be
forthwith withdrawn, together with accrued
interest and remitted to the employers. There
shall be no order as to costs.
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(2020)09ILR A724
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.06.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVI NATH TILHARI, J.

WRIT - C No. 39872 of 2018

Brij Kumar Singh ...Petitioner
Versus