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High Court Of Delhi|04 July, 2012


* IN THE HIGH COURT OF DELHI AT NEW DELHI % W.P. (C) 6621/2005 + Date of Decision: 4th July, 2012 # MANAGEMENT OF M/S. RAJASTHAN PATRIKA LTD. ...Petitioner ! Through: Mr. Jagat Arora, Advocate Versus $ JASOD SINGH …Respondent Through: Mr. Atul T.N., Advocate CORAM:
By way of this writ petition the petitioner-management has challenged the award dated 20-05-2004 of the Industrial Tribunal in ID Case No. 70/99 whereby the transfer of the respondent-workman from Delhi office of the petitioner Company to its Jaipur office had been held to be illegal.
2. The petitioner’s case is that the respondent-workman was employed by it as a peon in the year 1984 and he was initially posted at its Delhi office and in the year 1998 he was transferred to Jaipur office due to exigency of service.
3. The respondent-workman’s case was that his transfer to Jaipur was mala fide. He had raised an industrial dispute challenging his transfer and that dispute came to be referred to the Industrial Tribunal by the appropriate Government. The industrial tribunal after inviting statement of claim from the respondent-workman and response to the same from the petitioner-management and recording evidence of both the sides came to the conclusion that the transfer of the respondent-workman was not justified since it was not a term of his contract of employment that he could be transferred from one place to another and that the certified standing orders which were being relied upon by the petitioner- management to in support of its defence that as per Clause 28 of the Standing Orders framed and got certified by it from the Competent authority under the Industrial Employment(Standing Orders) Act, 1946 at Rajasthan providing for transfer of all its employees from one office to other, either within the State of Rajasthan or even outside Rajasthan, were not applicable to the respondent-workman as he was not made aware of the same.
4. The petitioner–management felt aggrieved by the award of the Industrial Tribunal and thus filed this writ petition.
5. It is the common case of both the parties that no appointment letter was issued to the respondent-workman. Therefore, it is clear that there was no express agreement between the parties wherein the petitioner-management had a right to transfer the respondent-workman from one office to another. Learned counsel for the petitioner-management, however, had submitted that in this case the petitioner- management had framed Standing Orders as was required to be done under Section 3 of the Industrial Employment (Standing Orders) Act, 1946 and the same had been got certified also by the Competent Authority under the said Act and therefore, those standing orders, in which there was a categorical provision for transfer of employees of the petitioner-management from one city to another wherever it had its offices, became a term of employment of respondent- workman automatically and the same were not required to be specifically brought to the notice of the respondent-workman as has been held by the Industrial Tribunal. There is no doubt that the petitioner-management had framed Standing Orders and the same were certified also but those Standing Orders in the facts of the present case will not come to the rescue of the petitioner-management since the same were certified by the Competent Authority in December, 1988 while as per petitioner’s own case the respondent-workman was employed in the year 1984 (though the respondent was claiming that he was appointed in 1970). At the time of appointment of the respondent-workman, there were no Standing Orders framed by the petitioner-management and therefore, Standing Orders got certified in the year 1988 could not be made applicable to the respondent-workman and so the decision of the Supreme Court in “Workmen Employed by Hindustan Lever Ltd. Vs. Hindustan Lever Ltd.’, AIR 1984 SC 1683, cited by the learned counsel for the petitioner is not applicable here since in that case the question whether certified Standing Orders which were not there at the time of appointment of the concerned workman would become applicable to him or not was not involved. In my view, the decision of the Industrial Tribunal to the effect that the Standing Orders did not apply to the respondent-workman since the same were not made known to him cannot be said to be perverse justifying any interference by this Court in exercise of writ jurisdiction.
6. Learned counsel for the petitioner-management had also argued that right to transfer an employee is implicit in every contract of service and therefore, the respondent-workman could still be transferred from one office of the petitioner- management to another. This argument also cannot be accepted in view of the decision of the Supreme Court in “Kundan Sugar Mills Vs Ziyauddin and others”, AIR 1960 SC 650 wherein similar contention raised on behalf of the employer was rejected by the Supreme Court by observing in para no. 4 of the judgment that “The argument of the learned counsel for the appellant that the right to transfer is implicit in very contract of service is too wide the mark”. This decision was followed by the Bombay High Court in its judgment in “Priscy D’Souza & Ors. Vs. Indamer Company (Pvt.) Ltd. & Ors.”, 2003 LLR 142.
7. The judgments reported as AIR 1995 SC 1056, AIR 1973 SC 1227, 1994 SCC (L&S) 230, 1989 SCC (L&S) 393, & 1976 LAB I.C. 4 and cited by the learned counsel for the petitioner-management are of no help to the petitioner- management as in none of those decisions the question regarding the right of an employer to transfer an industrial workman from one place to another in the absence of an express agreement providing for transfer of the workman was involved, as was the question involved in the judgment of the Supreme Court in the case of Kundan Sugar Mills (supra) relied upon by the learned counsel for the respondent- workman.
8. This writ petition, therefore, being devoid of any merit is dismissed.
P.K. BHASIN, J JULY 4, 2012
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High Court Of Delhi

04 July, 2012