IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE R DEVDAS WRIT PETITION NO.32044/2018 & WRIT PETITION NOS.33664-33690/2018 (L-TER) BETWEEN:
THE MANAGEMENT OF M/S UNIMAG POWER TRANSFORMER PVT. LTD., 26/A, II PHASE PEENYA INDUSTRIAL AREA BENGALURU 560 058 REPRESENTED BY ITS:
MANAGING DIRECTOR MR S.R.RAMACHANDRA …PETITIONER (BY SRI ANAND K.R, ADV.) AND:
MR.UMESH & 27 ORS M/S UNIMAG POWER TRANSFORMER PVT. LTD., C/O NO.138, 4TH MAIN 9TH CROSS, CHAMARAJPET BENGALURU 560 018 (BY SRI. ANANTHARAM T.S, ADV.) . . . RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED AWARD DATED 27.4.2018 AT ANNEX-R PASSED BY THE INDUSTRIAL TRIBUNAL, BENGALURU IN I.D.NO.82/2016 AND ETC.
THESE WRIT PETITIONS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
The petitioner is a Private Limited Company said to have been established on 30.07.2015. It is engaged in the manufacture of electrical transformers, having around 36 workmen in its factory premises at Peenya Industrial Area, Bengaluru. It has been admitted in the petitions that prior to 30.07.2015, M/s.Universal Power Transformer Pvt. Ltd., (hereinafter referred to as the ‘Universal Power’ for short) was carrying on the very same manufacturing activity in the place where the petitioner is carrying on its operations i.e., No.26/A, II Phase, Peenya Industrial Area, Bengaluru.
2. It is stated in the memorandum of petitions that since ‘Universal Power’ was facing severe financial crisis, it was in search of another Company which could help them bail out of the crisis. The petitioner admits that it offered to carry on with the manufacturing activities and consequently, an agreement under Section 25-FF of the Industrial Disputes Act, 1947, with regard to transfer of Management was executed between ‘Universal Power’ and the petitioner- Company. It is further stated that the petitioner thereafter entered into a lease deed dated 01.08.2015 with the owner of the building M/s.Universal Instruments Manufacturing Co. Pvt. Ltd. It is also admitted in the petitions that the petitioner took over the brand ‘Universal Power’ from M/s.Universal Power Transformer Private Limited, but did not take over any liabilities including the workmen. The petitioner states that at that point of time, several workmen who were employed with ‘Universal Power’ agreed to be employed by the petitioner-Company on fresh terms and conditions, but the 28 respondent-workmen refused employment. It is stated that consequent to the 28 workmen refusing to accept the offer made by the petitioner, their employer ‘Universal Power’ issued order of transfer dated 20.11.2015 transferring the 28 workmen to its unit at Haridwar.
3. The respondents-workmen questioned the order of transfer by raising an industrial dispute before the Labour Commissioner. Since the dispute ended in failure, it was later referred for adjudication as per points of dispute dated 31.05.2016. The said dispute came to be registered as I.D.No.82/2016 before the Industrial Tribunal, Bangalore. The respondents herein filed their claim statement, to which the petitioner herein filed its counter statement. Subsequent to the filing of the claim statement, the respondents-workmen filed an application in I.A.No.II seeking impleadment of “Universal Power”. The petitioner herein filed its objections to the said application and by order dated 03.03.2017, the said application came to be dismissed.
4. It would be relevant to point out that the main contention of the petitioner is that the respondents-workmen have admitted by filing the application for impleadment that the order of transfer was issued by ‘Universal Power’ and not the petitioner-Company. It is therefore the contention of the petitioner-Company that having admitted that the order of transfer was issued by ‘Universal Power’, the workmen should not be allowed to blow hot and cold, while on the one hand admitting that the order of transfer was issued by ‘Universal Power’ and on the other hand, seeking to set aside the order of transfer as if it was issued by the petitioner-Company.
5. It is further stated in the petitions that since the respondents-workmen admitted that they were transferred by ‘Universal Power’, it was also implied that they were not employed by the petitioner-Company and therefore there was no cause of action to be adjudicated against the petitioner and therefore the petitioner did not lead any evidence. However, the respondents examined one witness by filing affidavit dated 22.07.2017 and the said witness was cross- examined by the petitioner.
6. The parties being represented by their respective Counsels submitted their arguments along with the list of citations and judgments for the consideration of the Tribunal. The Tribunal, by its award dated 27.04.2018 held that the respondents-workmen were employed by the petitioner- Company and the order of transfer issued against the respondents-workmen was not justified and consequently, the claim statement filed by the workmen was allowed. Being aggrieved, the petitioner-Company is before this Court.
7. As noted earlier, the bedrock of the argument of the learned Counsel for the petitioner is that the petitioner- Company never issued the order of transfer, while it is ‘Universal Power’ which issued the order of transfer and that position having been admitted by the respondents-workmen in the interlocutory application filed before the Tribunal for impleading ‘Universal Power’, there was no dispute at all to be resolved by the Tribunal. It is also stated that the workmen have admitted to this position in the claim statement also. It is in this background that it is contended that the point of reference as to whether the petitioner-Company was justified in transferring the 28 workmen from Bangalore to Haridwar, does not arise for consideration, since the workmen admitted to the fact that the order of transfer was never issued by the petitioner-Company. It is in this background that the learned Counsel for the petitioner relies upon the following judgments to contend that the Tribunal could not have gone beyond the point of reference:
i) The Delhi Cloth and General Mills Co. Ltd., Vs. The Workmen and others (AIR 1967 SC 469) ii) Sindhu Resettlement Corporation Ltd. Vs. Industrial Tribunal of Gujarat and others (AIR 1968 SC 529) iii) Oshiar Prasad and Others Vs. Employers In Relation To Management of Sudamdih Coal Washery of M/s Bharat Coking Coal Limited, Dhanbad, Jharkhand (2015) 4 SCC 71 iv) The Jaipur Udyog Ltd., Vs. The Cement Work Karmachari Sangh Sahu Nagar (1972) 1 SCC 691 v) The Workmen of M/s.Hindustan Lever Ltd. and Ors. Vs. The Management of M/s.Hindustan Lever Ltd. (1984 ILLJ 388) 8. The learned Counsel for the respondents-workmen submits that the petitioner-Company has employed a dubious method only to deny the legitimate rights of the workmen that would accrue to them had the two Companies adhered to the provisions under Section 25-FF of the Industrial Disputes Act, 1947. The learned Counsel for the respondents further submits that the two Companies i.e., ‘Universal Power’ and the petitioner-Company have resorted to unfair labour tactics, in not having informed the workmen about the so-called transfer of management. It is contended that the workmen were not aware of the fact that the Management had transferred hands from Universal Power to the petitioner- Company.
9. To substantiate this fact, the learned Counsel for the respondents submits that evidence was placed before the Tribunal in the form of Exs.W47 to W 74, which are the statements of accounts of the Provident Funds of the workmen. Exs.W75 to 95 are the bank statements which would substantiate the fact that the workmen were being paid salaries by the petitioner-Company from 01.08.2015 to 15.11.2015. The learned Counsel for the respondents would submit that the Tribunal has looked into these documents to arrive at a conclusion that the Provident Fund Accounts of the workmen were transferred from ‘Universal Power’ to the petitioner-Company. It is on the basis of this evidence on record that the Tribunal came to a conclusion that the workmen were employed by the petitioner-Company.
10. On the question as to whether the Tribunal can go beyond point of reference as was contended by the learned Counsel for the petitioner, the learned Counsel for the respondents submits that in the case of Delhi Cloth and General Mills that was referred to by the learned Counsel for the petitioner, it has been held that the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases, the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. The said proposition of law has been followed in all subsequent judgments of the Hon’ble Supreme Court.
11. The learned Counsel for the respondents places reliance on a judgment of the High Court of Judicature at Bombay in the case of Seshrao Bhaduji Hatwar and P.O., First Labour Court & Others reported in 1992 I LLJ 672. In that case, the observations of the Hon’ble Supreme Court in Delhi Cloth and General Mills Company Ltd., at page No.431 has been culled out.
12. The very same proposition which was referred to earlier, has been extracted and thereafter the Division Bench of the Bombay High Court has held that the legal position is thus clear that the mere wording of the reference is not decisive in the matter of tenability of a reference. It may contain the defence or may not. If points of difference are discernible from the material before the Court or Tribunal, it has only one duty and that is to decide the points on merits and not to be astute to discover formal defects in the wording of the reference. While referring to the order of reference made in that case, the Hon’ble Division Bench of the Bombay High Court held that undoubtedly, the reference is not happily worded. Unfortunately, that is generally the case as High Court has observed. But that will not justify short- circuiting the reference by ignoring the basic background and subjecting the poor workman to untold misery and hardship involved in moving the machinery over again after a period of 8 years. That would be wholly unjust and empty formality. Even in civil jurisprudence mere framing of a vague issue does not vitiate the trial in the absence of prejudice. It is nobody’s case before us that they did not know what controversy was really referred.
13. Having heard the learned Counsels and perusing the writ papers, the point for consideration is as to “whether the award passed by the Tribunal could be set aside on the ground that the Tribunal has gone beyond the point of reference”?
14. The observations of Their Lordships in the case of The Delhi Cloth and General Mills (supra) and the Division Bench in the case of Seshrao Bhaduji Hatwar, would make it amply clear that the Tribunal cannot be straight jacketed into considering the reference without trying to analyze the real dispute. The very fact that the workmen raised a dispute was because the petitioner-Company issued the order of transfer which prevented the workmen from engaging in the services of the petitioner-Company. If the petitioner- Company had not at all issued the order of transfer, then the question of preventing the workmen from working in the Company would not at all arise. The true intent of the petitioner-Company is betrayed by the fact that it continued to agitate when the workmen approached the Labour Commissioner. If the petitioner-Company had not issued the order of transfer, it could have as well made a statement before the Labour Commissioner that it has not issued the transfer order and it would have asked the workmen to come and join the services. But, that not being the position, the petitioner-Company having agitated the claim of the workmen, cannot be allowed to take advantage of the order of transfer being issued in the letter head of ‘Universal Power’. The Tribunal, in fact has taken note of these aspects into consideration and has correctly come to a conclusion that the order of transfer was indeed issued by the petitioner- Company and not ‘Universal Power’.
15. In somewhat similar circumstances, a Division Bench of the Madras High Court, in the case of Management of Mettur Beardsell Ltd., presently known as Beardsell Ltd., Madras Vs. Workmen of Mettur Beardsell Ltd. rep. by its Secretary, Mettur Beardsell Employees Association, Madras and Others reported in (2004) III LLJ 811, held that, “the Management had devised a clever way of dispensing with the services of the workmen. Firstly, it had formed the Integrated Textile and Thread Divisions and allotted the workmen to the said divisions and then shifted their working place to premises No.49, Rajaji Salai, Madras. Then, in quick succession, on January 15, 1983, Mettur Textiles Private Limited was taken as a partner and a Circular to that effect was issued on January 15, 1983 stating that such partnership had come into existence even from January 1, 1983. On March 16, 1983, the Management purports to have retired from the partnership leaving Mettur Textiles as the sole owner and the Mettur Textiles, later on, retrenches the workmen as being surplus. These actions amply prove the hastiness with which the Management proceeded with the sole view of retrenching the workmen by unlawful means. There is no clinching evidence of transfer of assets and it is rightly held by the learned Single Judge that there is no transfer of the workmen within the meaning of Section 25-FF of Industrial Disputes Act.” It has been further observed that the Management cleverly palmed off the employees of the Integrated Thread and Textiles Division to a partnership concern without their knowledge and consent and they have expressed their apprehensions regarding the motive behind the withdrawal of the management from the partnership, making it clear that such motive is a premeditated one to dislodge the workmen in the hands of the Company formed with outside partnership which was subsequently dissolved resulting in the withdrawal of the management from the partnership and this is a trick played by the Management on its allotted workmen and that there subsists a relationship of employer and employee between the Management and the workmen.
16. On going through the award passed by the Tribunal, it is seen that the Tribunal has gone into all these aspects. The Tribunal has carefully examined and appreciated the evidence and pleadings on record. Thereafter, it has concluded that the documentary evidence and also pleadings would clearly prove that the workmen have worked in the factory of the petitioner-Company. The Tribunal also comes to a conclusion that just because the transfer orders are issued under the letter head of ‘Universal Power’, it could not be concluded that the workmen were employed by ‘Universal Power’. In reality the workmen were working in the factory of the petitioner-Company herein. Therefore, it was held that the Management could not take advantage of the transfer order issued under the letter head of ‘Universal Power’. It was also held that the transfer under the letter head ‘Universal Power’ is misconceived, only to deprive the legitimate rights of the workmen. It was therefore held by the Tribunal that the transfer is effected by the petitioner-Company herein. While concluding the Tribunal held that the workmen have proved that the transfer is effected by the petitioner herein, without there being any exigencies in the transfer of workmen from Bangalore to Haridwar. The Tribunal finally concluded that the transfer of the workmen is illegal, arbitrary, unjustified and it would amount to victimization and unfair labour practice.
17. In the light of the discussion above, this Court is of the firm opinion that the award passed by the Tribunal is wholly justified. The Tribunal has not gone beyond the point of reference as contended by the learned Counsel for the petitioner-Company. In the light of the observations of the Hon’ble Supreme Court in the case of The Delhi Cloth and General Mills and other judgments, the Tribunal was wholly justified in arriving at a conclusion that the point of reference requires to be answered in the negative i.e., the order of transfer was indeed issued by the petitioner-Company and it was not justified.
Therefore, the petitions deserve to be dismissed and are accordingly dismissed.
JT/- CT-HR SD/- JUDGE