JUDGMENT K.N. Goyal, J.
1. This is an employer's writ petition directed against an award of Labour Court. Opposite-party No. 3 was a workman employed with the petitioner in his concern of Lucknow. One of the conditions of his employment, as mentioned in his appointment letter, was that he was liable to be transferred to any of the sister concerns of the petitioner in the State of Uttar Pradesh without any additional benefits to him during his services with the company. In terms of this condition, the petitioner passed an order of transfer on 10-5-1973. The opposite-party on receipt of this order first obtained leave from the petitioner and thereafter declined to join at Phaphamau where he was to go on transfer. The opposite-party tried to join again at Lucknow itself with the petitioner, but the petitioner struck off his name from the muster-roll. Thereupon at the instance of the Workmen's Union, opposite-party No. 2, the State Government, opposite-party No. 4, referred an industrial dispute to the Labour Court, The subject of reference was as to whether the transfer order was valid or not and if not what relief was the workman entitled to. The Labour Court held the order to be invalid on the ground that the purported transfer was to a concern owned by different proprietor. While the petitioner was a proprietary concern, the other concern to which the workman was sought to be transferred was a limited company in which, the proprietor of the petitioner was a Director. On this finding the Labour Court ordered the reinstatement of the workman with back wages,
2. It has been contended on behalf of the petitioner that the Workmen's Union itself had arrived at a settlement with the petitioner agreeing that the workmen were liable to transfer to certain concerns named in the settlement, including the concern to which the opposite-party No. 3 was sought to be transferred. According to the petitioner, the Labour Court acted illegally in disregarding this settlement.
3. The petition has been contested by the individual workman. The other opposite-parties did not enter appearance.
4. We have heard learned Counsel for the parties.
5. Learned Counsel for the petitioner has pointed out that the Labour Court presided over by the same presiding officer had in another case decided on 6-12-1975, vide Annexure 10, upheld the same settlement which is incorporated in Annexure 9 and which was arrived at between the petitioner and the union on 5-9-1974. He has taken a different view in the instant case. It appears, however, that neither opposite-party No. 3 nor the particular union opposite-party No, 2, was party to the other decision, Annexure 10. Accordingly, they are not bound by that decision. We have, therefore, to consider the correctness of the impugned decision, Annexure 7, oni ts own merits.
6. As noted earlier, the transfer order was passed on 10-5-1973. On 27-9-1973 the petitioner and the union opposite party No. 2 made a joint application before the Conciliation Board requesting for reference of the following industrial dispute to the Board of conciliation under Section 6B of the U.P. Industrial Disputes Act read with Rule 5B of the Rules made under that Act:
The employers insert in the appointment letter of every workman the condition that they will have a right to transfer him to any other sister concern, but they do not specify in the appointment letter the name of the concerns to which the workman can be transferred.
7. Before the Conciliation Board, the employer specified the sister concerns including the limited company having branch at Phaphamau mentioned above, thereupon, the Workmen's Union intimated the Board that they were satisfied and, accordingly, agreed to close the controversy. This statement was recorded on 5-9-1974, vide Annexure 9. The reference of the present industrial dispute to the Labour Court was made by the Slate Government on 22-10-1974. It is not clear as to whether the State Government took the settlement into consideration when referring the said industrial dispute only about a month later.
8. The only ground on which the Labour Court has held the settlement to be ineffective is that the legal entities of the two concerns were different inasmuch as the petitioner was a proprietary concern, while the Phaphamau concern was branch of a limited company. In this connection, the learned Labour Court has placed reliance on P.K.P. Bidi Factory v. O.L. Thenge 1970-I L.L.J. 492. All that was held in that ruling was that a contract of service is incapable of transfer to a different employer. There is, however, nothing in this ruling to suggest that the services of an employee cannot be transferred by way of deputation or hiring to another employer while the original employer continues the contract of service with himself. In para 7 of this ruling, a number of cases have been cited which pertain to lending and hiring out of the services to a third party by an employer. In such cases, the employee is required to work with the third party on the basis of the contract of service with this own employer the lending employer). If the terms of his engagement so warrant, he cannot decline to obey the order of his employer requiring him to work with a third party. In S.R. Corporation v. Industrial Tribunal of Gujarat 1968-I L.L.J. 834, their Lordships considered various types of transfers from one employer to another employer. In para 3 of the report they considered the posibility of transfer of services in different manners, namely, either "on deputation or transfer" or by way of transfer of the contract of service itself. In that case, it was held that in the circumstances there was a transfer of the contract of service itself with the consent of the employee. Even a Government servant can as recognised in Nohiria Ram v. Union of India , be transferred to what is described in Fundamental Rules as "foreign service". In the instant case, it is not clear as to whether the transfer was by way of lending and hiring of services, that is to say, on deputation or whether it was meant to be a transfer of the contract of service itself. Even in the latter event the transfer would be valid if the employee and the "sister concern" (the new proposed employer) had agreed to it, but if the new (proposed) employer declined to lake him on transfer, then, no doubt, the original employer would be liable to continue to retain him in service. This matter has thus not been approached by the Labour Court from a proper angle.
9. Learned Counsel for the workman, Sri R.K. Srivaslava, has contended that the petitioner had no right to strike off the name of the workman from the muster-roll and that this act amounts to retrenchment. This question of fact is also dependent on whether the workman was entitled to insist on working at Lucknow itself instead of at Phaphamau.
10. Sri Srivaslava. further argued that irrespective of the existence of the aforesaid settlement, the same was of no avail to the petitioner because the expression "sister concern" necessarily implied that the ownership of the concerns was common. He argued that the expression "sister" implies common parentage, and on the same analogy the sister concerns must be owned by a common proprietor. The word "sister" has numerous meanings and means not merely female offsprings of the same parents. The other meanings given in the Oxford English Dictionary include the following:
7. A thing having close kinship or relationship to another.
10. Appositively, in the sense of fellow.
11. It is, therefore, not absolutely necessary that a sister concern must be owned by the same legal entity.
12. Accordingly, the award of the Labour Court is vitiated by non-consideration of the relevant questions indicated above and cannot be sustained.
13. In the result, the writ petition is allowed, and the award of the Labour Court, Annexure 7 to the petition, is hereby quashed. The Labour Court shall hear the reference afresh in accordance with law and in the light of the observations made in this judgment. No order as to costs.