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Judgment
K. Chandru, J.—Heard both sides. The writ petition is directed against the award of the third respondent-Labour Court dated 7.6.1999
passed in I.D. No. 125 of 1994. By the impugned award, the Labour Court declined to grant any relief to the petitioner. As against this award, the
present writ petition has been filed.
The writ petition was admitted on 10.8.1999. On behalf of the first respondent, a counter affidavit has been filed stating that the estate has been
sold out and they are not in management any more. When the matter was taken up for hearing, since the fourth respondent was not served, fresh
notice was directed to be served on the fourth respondent for whom Mr. K.R. Vijayakumar, learned Counsel takes notice and appeared.
Learned Counsel submits that the very estate itself does not exist any more and as the said estate has been purchased by the fourth respondent,
no relief can be granted to the petitioner. The said submission is totally resisted by Mr. R. Shivakumar, learned Counsel for the petitioner. In the
present case, the non employment of the petitioner was challenged when he was sought to be transferred to another estate and the petitioner took
up the contention that he did not obey the said order since no buyer would transfer him to some other estate, who is a different employer.
Before the Labour Court, on behalf of the workman, 25 documents were filed and they were marked as Ex.W1 to W25. On the side of the
contesting Management, 20 documents were marked and they were marked as Ex.M1 to M20. The Labour Court, in paragraph 11 of the
impugned order, held as follows:
Thus, throughout the guise of attacking the termination of service of the petitioner, the petitioner has only attacked the order of transfer as without
no right, motivated and vindictive et. That being the case the Principle question required to be decided by this Court is the legality and validity of
the order of transfer flowing free which is the pleas of refusal of work. As a matter of fact the reliefs sought for in this claim statement is to cancel
the order of refusal of work from 5.7.93 and to direct the management of Warwick Estate to restore the petitioner in service with continuity of
services and other monetary benefits. In effect the prayer sought for is to cancel the order of transfer and to retain him in service at Warwick Estate
which would go to prove that the action of the management impugned in this case is only the action of the management in effecting the transfer of
the petitioner from one estate to another as such the dispute raised by the petitioner is to be treated as the dispute against the order of transfer
covered under the provisions of Section 2K of the Industrial Disputes Act in respect of which the provision of Section 2A(2) cannot at all be
invoked. Thus for the reasons stated above, the present claim u/s 2A(2) of the I.D. Act is held not maintainable. Accordingly, these points are
answered against the petitioner.
In essence, the Labour Court has held that in a case of non employment u/s 2A(2) of the Industrial Disputes Act, the question of transfer order
cannot be attacked collaterally. However, Mr. R.Shivakumar, learned Counsel for the petitioner brought to the notice of this Court a decision of a
Division Bench of this Court reported in the case of Managekment of Hindusktan Motors Ltd. v. Lakshmiah and Anr. 2002 (2) L.L.N. 725. In
paragraph 14, it has been held as follows:
Therefore, when once it is held that the first respondent was a ""workman"" as defined under the provisions of the Industrial Disputes Act, it is
incumbent on the part of the second respondent to find out as to whether his non-employment is justified or not? As far as the said question is
concerned, the dispute between the appellant and the first respondent continued to exist when on the one hand, the appellant would contend that
because of the first respondent''s persistent refusal to go on transfer at Dhanbad, it had no option than to terminate his services, the first respondent
would contend that he was denied every reasonable opportunity by the appellant before reaching the said conclusion that he defied the orders of
the appellant to go on transfer to Dhanbad. Therefore, it is the bounden duty of the second respondent to adjudicate on the said disputed question
between the parties. Viewed from that angle, the order of the learned Single Judge in granting the relief of reinstatement with back/wages cannot be
sustained.
Since the Labour Court has rejected the award only on the ground that the workman cannot collaterally attack the transfer order while asking
the concept of non employment, this Court, taking a contra view, is of the opinion that the impugned order is liable to be set aside. Though Mr.
K.R. Vijayakumar, learned Counsel for the 4th respondent submits that the Division Bench decision arose out of a reference u/s 10(1), whereas
the present case of the petitioner is covered by Section 2A(2) of the Industrial Disputes Act and that makes a material difference, this Court is
unable to agree with the said submission. As per Section 2A(2)) , the procedure for approaching the Labour Court for individual workman with a
grievance of non employment has been simplified. Otherwise, it does not make any difference whether it is a reference u/s 10(1) or individual
workman is allowed to go to Labour Court without resorting to any procedure. The power of the Labour Court to make an award in an industrial
dispute for adjudication lies in Section 10(4) of the Act. The Labour Court shall confine its adjudication only to the issues in between the parties
and the points incidental thereto. Accordingly, the impugned order stands set aside. The matter shall go back to the Labour Court. Since it is a
matter of the year 1994, the Labour Court shall give preference for the disposal and in any event dispose of the same within a period of four
months from the date of receipt of a copy of this order. It is needless to state that on such remand, all the parties are allowed to lead appropriate
evidence, both oral and documentary. The writ petition stands allowed to the extent indicated above. Consequently, the connected W.P.M.P. is
closed. No costs.