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Judgment
Kanakaraj, J.—The writ appeal is directed against the order of learned single Judge in W.P. No. 14291 of 1992 dated 23.4.1993,
confirming the award of the Labour Court in I.D. No. 1193 of 1989 dated 7.2.1992. The Association representing the workman who was
subjected to an order of transfer is appellant before us. The reference made to the Labour Court in G.O. 2242 dated 22.12.1989 was follows:-
Whether the transfer of Thiru. S. Nagarajan Chemist working as Technical Representative to the post of Sales Representative is justified; if not to
give appropriate direction.
Whether the demand of wages to Thiru S. Nagarajan from 25.7.1988 is justified; if not to give appropriate direction.
A perusal of the affidavit filed in support of the writ petition shows that the employee S. Nagarajan was a Chemist in the plant ever since his
appointment in the year 1962 and he continued as such till 1977. In the year 1977 he was transferred as Technical Representative which post is
also said to belong to the category of Chemist. On 25,7.1988 she said Nagarajan was transferred as a Sales Representative. According to the
appellant/Association the two posts namely, Technical Representative and Sales Representative belong to two categories with different functions
and conditions of service and different pay scales. Therefore, Mr. Nagarajan protested against the transfer and since the Management refused to
give him work as a Chemist, the employee was treated as absent and denied wages from 25.7.1988. It was under these circumstances that a
dispute was raised u/s 2(k) of the Industrial Disputes Act (hereinafter referred to as the Act) resulting in the reference above cited. Before the
Labour Court, it was contended by the appellant that the order of transfer amounts to victimisation because the said Nagarajan, as Assistant
Secretary of the Association, and filed a writ petition against the company in respect of certain alleged pollution caused by the factory. Secondly, it
was pointed out that the transfer was against the Standing Orders and was meant to prevent Nagarajan from claiming benefits of the award in I.D.
No. 83 of 1984 and the benefits accruing therefrom. In that award, the tribunal remand had held that the service contracts were illegal and one
sided and the junior management staff should be paid pay D.A., H.R.A., as given to other workmen. This award was confirmed in writ appeal.
One of the findings in the said award is that salesmen are not workmen.
However, Labour Court upheld the order of transfer by its Award dated 7.2.1992. In doing so, the Labour Court has held:
(i) There was no evidence before the Court to show that the management had taken action against Nagarajan with any vindictive attitude.
(ii) The transfer order was on account of exigencies and urgencies prevailing in the Department.
(iii) The transfer as within the City, but to a different post, and the management had categorically stated that Nagarajan will get the same wages and
allowances.
(iv) The employee Nagarajan had refused to accept the transfer order and was giving several reasons for not working as a Sales Representative.
(v) Therefore, the management was not liable to pay him wages.
Before the learned Single Judge it was argued in addition to the above points that in the Standing orders there was no provision for transfer of
the workers. In any event, it was contended that a Chemist or a technical representative who belonged to the category of workman, cannot be
transferred as Sales Representative and thereby depriving him of the benefits of the award in I.D. No. 83 of 1984. Learned Judge rejected all the
above points, and upheld the award of the Labour Court.
Before us Mr. N.G.R. Prasad for the appellant has pressed for acceptance the following points:-
(i) The management has no power to transfer an employee from the workman category to the non-workman category.
(ii) The contract of service has itself been held to be illegal in Workmen A.P. & C Ltd. Asst. Assocn. v. Industrial Tribunal, Madras, 1994 L.I.C.
1779, arising out of I.D. No. 83 of 1984.
(iii) There cannot be a transfer outside the standing order.
(iv) The employee had been subjected to victimisation on account of his action against the company in respect of the alleged pollution caused by
the factory.
In the course of the argument, however the only point that was focussed as that the employee was suffering low on account of transfer and was
likely to get lesser emoluments if he had accepted the transfer, For this purpose learned counsel referred to the oral evidence adduced before the
Labour Court.
Learned Counsel for the Management Mr. Meenakshi sundaram has pointed out that it was a simple case of transfer and it is not correct to say
that the contract of service had been held to be illegal in workman, A.P. & C Ltd. Asst. Assocn. v. Industrial Tribunal, Madras, 1994 L.I.C.1779
All that has been pointed out in the said judgment is that certain provisions of contract of service were onerous so far as the workmen were
concerned. Learned single Judge has referred to various decisions to show that the non-existence of a provision in a Standing Order would not
prevent the management from passing an order of transfer, when in the contract of service the employee has undertaken to serve the company in
any capacity as may be decided by the Company, Learned Judge has also upheld the award of the Tribunal that there was absolutely no
victimisation on the part of the management. On the question of the employee suffering loss of emoluments the management has filed a statement
signed by the counsel which is as follows:-
The first respondent Management hereby gives an undertaking that Sri. S. Nagarajan (whose transfer as Sales Representative by order dated
24.7.1988 is the subject matter of the above appeal by the Appellant Union) on reporting for duty and working as such, will be treated as and
extended the benefits due to a Technical Staff, in terms of the judgment dated 19.3.1994 of this Honourable Court in W.A.787 of 1992 (and other
Appeals) from the date he so reports for duty.
It has to be remembered that the writ appeal referred to therein in the judgment reported in A.P. & C Ltd. Asst. Assocn. v. Industrial Tribunal,
Madras, 1994 L.I C. 1779. Therefore, the only point which requires some consideration has been squarely and satisfactorily answered by the
management by filing the above undertaking. We have therefore, no hesitation in accepting the findings of the Tribunal as well as learned single
Judge to the effect that the order of transfer does not suffer from any of the defeats pointed out by the learned counsel for the appellant.
Accordingly, the order of transfer is upheld, after taking note of the undertaking of the Management.
But a question still remains whether the employee is entitled to wages from 25.7.1988 onwards. A decision on this question will depend upon
the justification of the workman in refusing to work as Sales Representative and whether he had any justification for the apprehension entertained
by him about the loss of emoluments and deprivation of benefits. At the time when the workman was transferred from the post of Technical
Representative, he was given the following assurance:-
You will continue to draw the emoluments as at present except (i) that the present allowance of Rs. 25/- per mensem paid in lieu of lunch facility
will stand withdrawn from the above date, but however you will be given a compensatory allowance of Rs. 50/- per mensem with effect from the
above date as has been done in the case of similar other Assistants.
After the order of transfer which is the subject matter of present dispute, the management had written a letter on 9.8.1988 in answer to the
employees letter dated 5.8.1988. It is as follows:
It is clear that you have been disregarding and disobeying the instructions and opportunity given to you for working is Sales Representative. Any
job rendered by you for any other position is of no use to the company and this has been amply clarified.
Such work as you deem to do by yourself will not constitute proper attendance for you and on these days, the company will continue to mark you
absent, without prejudice to take necessary steps for violation of the instruction given.
We hereby give you final opportunity to report as Sales Representative within 24 hours of the receipt of this letter.
In his further letter dated 29.8.1988 (Ex.W.29) the workman had only pointed out that if there was no sufficient work for a Technical
Representative the only option of the management was to post him in the Laboratory as a Chemist and not to ask him to work as a Sales
Representative. This letter is certainly in the form of dictating terms to the management in the matter of administration of the company. It has to be
pointed out that there was no complaint about any loss of emoluments in this letter. In their letter dated 23.9.1988 (Ex.W.32) the management had
pointed out that the post of Technical Representative had become redundant, they could have abolished the post. However, they did not want to
terminate the service of the employee and therefore, offered an alternative post as Sales Representative. The categorical assertion in this letter is as
follows:-
The status of this position is not in any way inferior to the job you had been rendering and in our opinion, this job will give you scope for achieving
better performance if you took this job seriously and sincerely worked with all dedication and commitment. Better performance, of course, will
definitely take you to better position more speedily"".
The management has also indicated that in spite of their assurance they were unable to understand as to why the employee was not taking up the
responsibility assigned to him and as to why he was keeping himself away from the work given to him. They had gone to the extent of saying that
they were prepared to condone the delay caused by the employee in accepting the post. The same position is reiterated in the letter dated
1.1.1988 (Ex.W.37). In addition, in this letter it is pointed out that the question of non-payment of salary is the result of the attitude of the
employee. Again on 17.11.1988 under Ex.E.39, the Management took pains to explain the situation and in categorical terms had undertaken as
follows:-
You must clearly spell out in what way a Sales Representative is inferior to a Technical Representative by way of salary, promotional
opportunities, etc. For your information, we had already clarified that you would continue to get the same emoluments as you arc currently getting
while you work as Sales Representative for the company including the quantum of increment whenever decided by the Management to be given to
you"".
In their letter dated 25.11.1988(Ex.W.41) the Management had further pointed out that there was no vacancy in the post of Chemist in Madras
and the post of Technical Representative having been abolished the only other alternative situation was to offer him to the post of Sales
Representative and entreated him to join duty.
In spite of the above letters written by the Management the attitude of the employee Nagarajan appears to be totally shocking. Even assuming
that the employee had an apprehension that he was likely to lose the benefits accruing from the decision rendered in A.P. & C Ltd. Asst Assocn.
v. Industrial Tribunal, Madras, 1994 L.I.C.1779 or I.D. No. 83 of 1984 he could have very well started working in the transferred post under
protest and continued his fight against the transfer order dated 25.7.1988. That in our opinion, was wisest course which the employee should have
adopted in which case he would have turned out considerable work for the Management and earned his wages. Having now created a situation by
which he has not at all worked from 25.7.1988, if he is to accept the order of transfer on the basis of the judgment in this writ appeal, the question
will arise us to who is responsible for the payment of wages from 25.7.1988 to Nagarajan when he had admittedly refrained from working?. By
accepting the contention of Mr. Prasad and directing payment of wages, the Court will only be encouraging such tendency among the working
class which is certainly not worth emulating. These arc days when we should develop our work culture which is slowly losing its significance in the
country. While we do not propose to give a sermon on this aspect of the case, we have absolutely no doubt based on the correspondence quoted
by us earlier, the employee Nagarajan had absolutely no justification in refraining from work and therefore, he is not justified in demanding wages
for the period from 25.7.1988 onwards. However, as the employer and employee relationship has not been snapped, we are of the view that in
the facts and circumstances of the case and weighing the rival submissions, the ends of justice would be met by directing payment of 25 per cent of
the wages payable from 25.7.1988 to the employee Nagarajan. The quantum of wages have to be calculated in the post of Technical
Representative for the period from 25.7.1988 till the appellant joins duty as Sales Representative and 25 per cent of the same should be paid
within two weeks from the date of Nagarajan joining duty as Sales Representative. The writ appeal is allowed in the following terms:-
(i) The order of transfer is perfectly legal especially in view of the undertaking now filed and incorporated in this judgment.
(ii) Subject to the undertaking by the Management as referred to in para 6 above, the employee Nagarajan should join duty as Sales
Representative within two weeks from today.
(iii) The Respondent/Management shall pay 25 per cent of the wages calculated for the period from 25.7.1988 till the date of Nagarajan joining
duty as Sales Representative within two weeks from the date of his joining duty.
(iv) In the event of the employee Nagarajan refusing to join duty as Sales Representative within two weeks from today the direction to pay 25 per
cent of wages cannot be enforced.
No costs.
In view of the above judgment in the Writ Appeal, no separate or further orders are necessary in the connected C.M.P.