THE GAUHATI HIGH COURT · the Enquiry Officer vitiates the domestic enquiry proceeding and as such the Labour Court ought not to have held that the domestic enquiry was valid, submits

THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,

TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

WP(C) No.6058 of 2002

Workman of Bijlibari Tea Estate.

………..Petitioner

-Versus-

1. Management of Bijlibari Tea Estate, PO-Hoogrijan, Dist.-Dibrugarh.

2. The Presiding Officer, Labour Court Dibrugarh, Assam.

……….Respondents

Advocates for the petitioner : Mrs. A. Bhattahcaryya, Mrs. A. Devi, Advocates.

Advocates for the respondents : Mr. SN Sarma, Sr. Advocate, Mr. S.K. Kejriwal, Mr. S. Kejriwal, Advocates.

-- BEFORE --

HON’BLE MR. JUSTICE B.P. KATAKEY

Date of Hearing : 30-03-2010.

Date of Judgment : May, 2010.

JUDGEMENT AND ORDER (CAV)

This writ petition is directed against the award

dated 03-01-2002 passed by the learned Presiding Officer,

Labour Court, Dibrugarh, in Reference Case No.8/1997

answering the issues under reference in favour of the

respondent/ Management.

2. The facts relevant for the purpose of this case are

that Sri Sankar Dutta, who was appointed on 30-03-1981 by

the respondent/Management in Bijlibari Tea Estate as Hazira

Maharar was transferred vide order dated 08-08-1994 issued

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by the Manager of Bijlibari Tea Estate to a place near

Margherita to start a tea estate as an additional venture over

a plot of land procured by the respondent/Management. The

workman refused to comply with the said order on the ground

that the same is illegal and unjustified being violative of his

conditions of appointment as well as the standing order. A

charge memo was issued on 15-09-1994 by the Management

levelling the charge of misconduct for disobeying the order of

transfer and asking the concerned workman to show cause as

to why disciplinary actions should not be taken against him,

in response to which the workman submitted his reply

contending inter alia that such order of transfer, being

violative of the conditions of his appointment and standing

order, is not lawful and cannot be the basis for taking

disciplinary action for non compliance of the same. The

Management being not satisfied with the reply submitted by

the workman, decided to hold the domestic enquiry and

accordingly, an Enquiry Officer was appointed and a domestic

enquiry was conducted. The Enquiry Officer, on completion

of the enquiry, submitted his report with the finding that the

charge of misconduct for refusal to obey the lawful order of

the workman has been established. The Management,

thereafter, vide order dated 13-01-1995 dismissed the

workman from service on the ground of gross misconduct

committed by the workman for refusal to obey the lawful

order of transfer, by concurring with the finding recorded by

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the Enquiry Officer in his report. The concerned workman,

thereafter, approached the Management and requested them

for reinstatement in service, which was turned down and then

a dispute was raised by the Union, namely Assam Shah

Karmachari Sangha, in the matter of dismissal of the

workman from service, on the basis of which a conciliation

proceeding was initiated, which, however, ended in failure.

The Conciliation Officer on 21-12-1995 submitted his failure

report to the State Government with his view that the transfer

order passed by the Management does not appear to be

justified. The State Government having considered the

materials made available referred the following issues to the

Labour Court for adjudication:-

(a) Whether the management of Bijlibari T.E.,

Hoogrijan, PO-Hoogrijan, Dist.-Dibrugarh is

justified in dismissing Sri Sankar Dutta,

Hazira, Mohurrer from service or not?

(b) If not, is he entitled to reinstatement with full

back wages or any other relief in lieu thereof?

3. The Labour Court, upon receipt of the order of

reference made by the State Government, registered Reference

Case No.8/1997 and issued notices to the Union as well as

the Management, who on receipt of the same filed their

respective written statements. In the written statement filed

by the Management, apart from others, it has also been

pleaded that a valid domestic enquiry was conducted before

dismissing the workman from service.

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4. The Management in support of the plea of holding

a valid domestic enquiry to enquire into the charge levelled

against the workman, examined the Enquiry Officer, who

conducted such enquiry as MW-1. The Management also

examined 2 (two) other witnesses, namely the Manager of

Bijlibari Tea Estate as MW-2 and the Superintendent of the

said Tea Estate as MW-3 before the Labour Court, on merit.

The Union also examined the concerned workman as WW-1.

In course of examination of witnesses, the Management

exhibited the entire domestic enquiry proceeding as Exhibit-1,

the charge sheet issued to the concerned workman as

Exhibit-2, the transfer order dated 08-08-1994 as Exhibit-3

and the communications exchanged between by the Manager

of the Tea Estate and the workman in respect of the order of

transfer as Exhibits-4 to 10. The witnesses were cross-

examined by the respective parties.

5. The learned Presiding Officer, Labour Court, on

the basis the evidences adduced by the parties, has passed

the award dated 03-01-2002, answering the issues referred to

it by the State Government in favour of the Management, by

holding that the domestic enquiry conducted by the

Management is valid and refusal to carry out the order of

transfer amounts to gross misconduct. In the said award, it

has further been observed that the Management has the full

power to transfer its workman wherever it wants since the

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transfer is an incidence of service. The Labour Court,

however, while answering the issues refused to adjudicate the

legality or otherwise of the order of transfer on the ground

that no issue in that respect has been referred to it by the

Government. Hence, the present petition.

6. I have heard Mrs. A. Bhattahcaryya, the learned

counsel for the Union and Mr. S.N. Sarma, the learned Sr.

Counsel appearing for the Management.

7. The learned counsel for the Union referring to the

award dated 03-01-2002 passed by the learned Presiding

Officer, Labour Court, has submitted that while recording the

finding that the domestic enquiry held by the Management

was valid, the Court below did not take into consideration the

fact that the Enquiry Officer did not record any reason for

holding that the charge of misconduct levelled against the

workman had been proved, though, according to the learned

counsel, the Enquiry Officer is duty bound to record reasons

in support of his findings, as, such findings are the basis for

dismissing the workman from service by the Management.

Non-recording of such reasons in support of the finding by

the Enquiry Officer vitiates the domestic enquiry proceeding

and as such the Labour Court ought not to have held that the

domestic enquiry was valid, submits the learned counsel.

Referring to the deposition of the witnesses examined by the

Management as well as by the workman on merit, i.e. relating

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to the charge levelled against the workman, the learned

counsel further submits that it is apparent from the evidences

adduced that the workman was transferred to a new entity

though under his terms of appointment he was appointed as

workman in Bijlibari Tea Estate and as such, he cannot be

transferred to another entity, more so, when the same is a

new entity and was not in existence when the concerned

workman was appointed in Bijlibari Tea Estate, though both

the Bijlibari Tea Estate and the new entity are under the

same Management. The learned counsel further submits that

the evidences adduced by the parties further reveal that the

conditions of appointment of the concerned workman have

been violated by the order of transfer as the facilities like

housing etc., which were available to him in his capacity as

the workman in Bijlibari Tea Estate are not available in the

new entity. The learned counsel, therefore, submits that the

order of transfer is not lawful and as such, the refusal to obey

such unlawful order does not amounts to the misconduct

within the meaning of Clause-10 of the standing order in

force, inasmuch as insubordination or disobedience of only a

lawful or a reasonable order of a superior constitutes

misconduct. According to the learned counsel, the Labour

Court has refused to go into that aspect of the matter on the

ground that the issue as to whether the order of transfer is

lawful or not, has not been referred by the State Government,

though for answering the issue relating to validity or

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otherwise of the order of dismissal from service, whether the

order of transfer was lawful, has to be gone into. It has

further been submitted that in any case, the issue as to

whether the transfer order was lawful being an ancillary

issue, the same has to be answered by the Labour Court,

which has not been done in the instant case. Mrs.

Bhattahcaryya, the learned counsel further submits that it is

evident from the award passed by the Labour Court that the

issues were answered in favour of the Management solely on

the ground that it is the prerogative of the Management to

transfer its Workman whenever and wherever it likes, the

transfer being an incidence of service, however, ignoring the

legal position that an order of transfer, which is in violation of

the terms of appointment or has the effect of changing the

conditions of service is illegal. The learned counsel in support

of her contentions has placed reliance on 2 (two) decisions of

the Apex Court in M/s Kundan Sugar Mills -Vs- Ziyauddin &

Ors. reported in AIR 1960 SC 650 and in Ms. Khardah &

Company Limited –Vs- The Workmen reported in AIR 1964 SC

719.

8. Mr. Sarma, the learned Sr. Counsel appearing for

the Management supporting the award passed by the learned

Presiding Officer, Labour Court, has submitted that since the

domestic enquiry was conducted by the Management against

the concern workman in compliance with the principles of

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natural justice, by giving all reasonable opportunities to him,

the Labour Court has rightly held such domestic enquiry as

valid. Having held so, according to the learned Sr. Counsel,

the Labour Court has rightly not gone into the merit of the

case since it is required to go into the merit only when the

domestic enquiry conducted by the Management is found to

be not valid. It has further been submitted that the Union

neither in the written statement filed in the Labour Court nor

in the writ petition filed before this Court has challenged the

validity of the domestic enquiry conducted against the

concerned workman. Mr. Sarma further submits that the

Labour Court has also considered the question as to whether

the punishment awarded by the Management is proportionate

to the misconduct committed, as required under Section

11(A) of the Industrial Dispute Act, and having found that the

lawful order of transfer has been disobeyed, which amounts

to misconduct under the standing order in force, the Labour

Court did not interfere with the punishment of dismissal

awarded by the Management.

9. On merit, it has been submitted by Mr. Sarma

that by the order of transfer dated 08-08-1994 the conditions

of appointment of the concerned workman has not been

violated or changed, as it is apparent from the order of

transfer that all his conditions of service shall remain same

and the concerned workman was even informed that he can

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retain his allotted house in Bijlibari Tea Estate and would

also be given either a rented house or, in lieu thereof, the

house rents. The learned counsel further submits that the

Union or the concerned workman did not even prove the

terms and conditions of appointment of the workman and

which of such terms and conditions are violated by the order

of transfer. According to Mr. Sarma, since both the Bijlibari

Tea Estate as well as the additional tea estate started near

Margherita are under the same Management and the new

venture is in fact an out garden of Bijlibari Tea Estate, those

are one entity, hence, the concerned workman cannot refuse

to obey the order of transfer from Bijlibari Tea Estate to the

said out garden, when the Management has the right to

transfer its workman from the said tea estate to the out

garden.

10. Relating to the submission of the learned counsel

for the Union that the Labour Court did not go into the

question of validity of the order of transfer, Mr. Sarma

submits that the Labour Court is to decide the issues referred

to it and the question of legality or otherwise of the transfer

order being not one of the issues referred to it, the Labour

Court has rightly refused to go into that aspect of the matter.

It has further been submitted by the learned counsel that it is

the prerogative of the Management to transfer its workman,

without changing the terms and conditions of his

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employment, as has been done in the instant case. Mr. Sarma

further submits that since there is no error apparent on the

face of the record, this Court may not interfere with the award

passed by the Labour Court. The learned counsel in support

of his contention has placed reliance on a Single Bench

decision of this Court in Kakodanga Tea Estate Private

Limited –Vs- The Presiding Officer, Labour Court, Dibrugarh &

Ors. reported in (1998) 1 GLT 498 as well as on a decision of

the Apex Court in Reserve Bank of India –Vs- Gopinath

Sharma & Anr. reported in (2006) 6 SCC 221.

10. I have considered the submissions of the learned

counsel for the parties and also perused the materials

available on record including the award passed by the learned

Presiding Officer, Labour Court.

11. The Labour Court has answered the issues under

reference in favour of the Management by holding that the

domestic enquiry conducted against the concerned workman

was fair and valid and the Management has the prerogative to

transfer its workman from one place to another and whenever

necessary. It is a settled position of law that if the domestic

enquiry is fair, there is no violation of the principles of

natural justice and the Management has acted in good faith

or the dismissal does not amount to victimisation or unfair

labour practice or the Management has not been guilty of

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basic error, the Labour Court or the Industrial Tribunal is not

required to go into the merit of the case. However, the

Industrial Tribunal or the Labour Court can interfere with the

domestic enquiry, if there is no finding by the Enquiry Officer

recorded in his report or such finding is completely baseless

or perverse. [M/s Khardah & Company Ltd. (supra)].

12. The Apex Court in Khardah & Company Ltd.

(supra) has observed that the failure on the part of the

Enquiry Officer to record any finding, after holding the

domestic enquiry, constitutes a serious infirmity in the

enquiry itself. In an industrial adjudication there is

importance to domestic enquiry and the conclusions reached

at the end of such enquiry, which necessarily postulates that

the enquiry would be followed by a statement containing the

conclusion of the Enquiry Officer. Though the Enquiry Officer

may not write a very long or elaborate order but, since his

finding is likely to lead to the dismissal of the workman, it is

his duty to record clearly and precisely his conclusion and to

indicate briefly his reasons for reaching the said conclusion.

It has further been observed that unless such a course is

adopted, it would be difficult for the Industrial Tribunal or the

Labour Court to decide whether the approach adopted by the

Enquiry Officer is basically erroneous or whether the

conclusions were perverse, so as to decide about the validity

of the domestic enquiry.

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13. In the instant case, it is evident from the domestic

enquiry proceeding (Exhibit-1) conducted against the

concerned workman, relating to the charge levelled against

him that the workman had participated in such proceeding

and the reasonable opportunity of being heard was given.

There is no allegation of victimisation or unfair labour

practice as well as the allegation against the Management

that it had not acted in good faith. It appears that the case of

the Union is that the domestic enquiry is not fair and valid as

no finding has been recorded into the charge of misconduct

levelled against the workman and no reason has also been

recorded, inasmuch as, the Enquiry Officer did not go into the

aspect as to whether by the order of transfer the conditions of

employment has been violated. According to the Union,

disobedience of a transfer order which is lawful and

reasonable, only amounts to the misconduct under Clause 10

of the standing order in force and in the instant case, as the

workman was engaged in Bijlibari Tea Estate, he cannot be

transferred out of the said Tea Estate and to a new

venture/Tea Estate, which was not in existence at the time of

his appointment. The further case, as it appears from the

evidences adduced before the Labour Court, is that in any

case, he cannot be transferred out of Dibrugarh district and

the transfer order amounts to depriving him from the

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enjoyment of other benefits attached to his service like

housing facilities etc.

14. The Enquiry Officer though in his report had

rejected the contention of the workman that he cannot be

transferred out of Dibrugarh district and also relating to

deprivation from enjoyment of certain benefits, had not,

however, recorded any finding relating to the plea of the

workman that since he was appointed in respect of Bijlibari

Tea Estate only, he cannot be transferred to any other Tea

Estate subsequently established by the Management, while

recording the finding that the lawful order of transfer has

been disobeyed by the concerned workman, which amounts

to misconduct, without, however, considering as to whether

the order of transfer is lawful as the concerned workman was

appointed only in respect of Bijlibari Tea Estate. That aspect

of the matter has also not been gone into by the Labour

Court.

15. Clause 10 of the standing order in force provides

the acts or omissions of the workman constituting gross

misconduct. Clause 10(a)(1) of the standing order provides

that the wilful insubordination or disobedience of only a

lawful or a reasonable order of a superior constitutes gross

misconduct. In the case in hand, the charge against the

concerned workman was that he did not obey the order of

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transfer, which was the basis for taking disciplinary action

against the concerned workman. The Management, therefore,

has to prove that the order of transfer is lawful and

reasonable so as to constitute misconduct within the meaning

of Clause 10 of the standing order. The concerned workman,

as noticed above, has all along pleaded that he being

appointed in Bijlibari Tea Estate, he cannot be transferred out

of the said Tea Estate. If such plea is accepted then he

cannot be transferred out of Bijlibari Tea Estate and in that

case the order of transfer would not be lawful and

consequently, the concerned workman cannot be punished

for not carry out such an order, the same having not

constituted misconduct within the meaning of Clause 10 of

the standing order in force.

16. As discussed above, the Enquiry Officer did not

record any finding on the vital aspect of the matter as to

whether the workman could be transferred out of Bijlibari Tea

Estate, his appointment being in respect of Bijlibari Tea

Estate only. It has not been disputed by the learned Sr.

Counsel for the Management that the concerned workman

was appointed in respect of Bijlibari Tea Estate and there was

no other venture of the Management at the point of time when

the concerned workman was appointed. It is also not in

dispute that by the order dated 08-08-1994, he was sought to

be transferred to a new venture, which according to the

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Management, is the out garden. The domestic enquiry held

against the concerned workman, therefore, cannot be held to

be fair and valid so as not to go into the merit of the case by

the Labour Court, as has been done in the instant case, as

the Enquiry Officer did not go into the vital aspect of the

matter, as noticed above, which amounts to violation of the

principles of natural justice.

17. The contention of the learned Sr. Counsel for the

Management is that the question of validity of the domestic

enquiry having not been raised either before the Labour Court

or before this Court, the Union cannot be allowed to raise

such plea at the time of argument, as it would amounts to

allowing the Union to raise a new plea. In support of that

contention, the learned Sr. Counsel has also placed reliance

on the decision of the Apex Court in Reserve Bank of India

(supra).

18. There is no dispute to the proposition of law

enunciated by the Apex Court in Reserve Bank of India

(supra) that no new plea can be allowed to be raised in the

writ petition, while challenging the award passed by the

Labour Court or the Industrial Tribunal and the High Court is

required to decide the writ petition filed challenging such

award on the basis of the pleas taken before the Labour Court

or the Industrial Tribunal and on the basis of the materials

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available on record, unless of course the High Court is of the

view that further evidence is required to be recorded, keeping

in view the facts and circumstances of the case. In the

instant case, it is the Management, who has taken the plea

that a valid domestic enquiry was conducted against the

concerned workman before dismissing him from service and

hence, the Labour Court was asked to decide the question of

validity of such domestic enquiry first, before going into the

merit of the case. The Management having raised such plea,

the burden lies on it to satisfy the Court that a valid and fair

domestic enquiry had been conducted, even if no plea relating

to the validity of such domestic enquiry has ever been raised

by the concerned workman or by the union representing such

workman. The Labour Court having answered the reference

made to it by holding that such domestic enquiry was fair and

valid and consequently refusing to go into the merit of the

dispute, the Management before this court also has to

establish that the fair and valid domestic enquiry has been

conducted. Hence, even if no plea has been raised by the

concerned workman or the Union representing him either

before the Labour Court or before this Court in a writ

proceeding, the question as to whether a valid and fair

domestic enquiry was conducted by the management before

passing the order of dismissal can be gone into by this Court.

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19. It is a settled position of law that if the enquiry is

held to be unfair, the Management can lead evidence before

the Labour Court or Industrial Tribunal and justify its action

and in such case, the question as to whether the dismissal of

the workman is justified or not would be open and the Labour

Court or the Tribunal will consider the merits of the dispute

and come to its own conclusion without having any regard for

the view taken by the Management in dismissing the

workman.

20. The Management in support of its action of

dismissal of the workman from service has also adduced

evidences. The workman also led evidence in support of his

contention. It appears from the evidences adduced that

according to the Union/concerned workman the order of

transfer dated 08-08-1994 (Exhibit-3) is not lawful on 3

(three) grounds, namely his appointment being in respect of

Bijlibari Tea Estate, he cannot be transferred out of the said

Tea Estate as it amount to the change of the conditions of his

employment, that he cannot be transferred out of Dibrugarh

district and that he cannot be deprived from the enjoyment of

the benefit attached to his employment, which he was

enjoying in Bijlibari Tea Estate, like housing etc. since those

are not available in the new venture.

21. It appears from the order of transfer dated 08-08-

1994 that the pay and other benefits of the concerned

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workman had not been disturbed. The Management by

proving the communication dated 07-09-1994 (Exhibit-6) has

proved that all his service benefits including the salary and

other incentives would be paid and he would be provided with

rental housing facility or house rent commensurate to his

status. That being the position, the concerned workman’s

salary, other incentives and the housing facilities etc. were

not disturbed and he would continue to enjoy the same,

which he was enjoying in Bijlibari Tea Estate. The plea of the

concerned workman that he cannot be transferred out of

Dibrugarh district was also rightly found to be not acceptable

by the Enquiry Officer in his report. However, it is an

admitted position of fact that the concerned workman was

appointed initially as trainee and thereafter, as Hazira

Maharar for Bijlibari Tea Estate only. It is also not in dispute

that by the order of transfer dated 08-08-1994, the workman

was sought to be transferred to a proposed new venture at

Margherita, which naturally was not in existence while the

concerned workman was appointed. Unless there is a specific

condition in the order of appointment that he can be

transferred out of the Tea Estate, where he was appointed

and even to a new venture, the Management in exercise of its

right of transfer of its workman cannot transfer such

workman to a new venture, as such right of the Management

cannot be implied as conditions of service. If a workman is

appointed in respect of one Tea Estate, he cannot be

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transferred to another Tea Estate, as it would be the violation

of his conditions of employment he being appointed in respect

of a particular Tea Estate only. In the case in hand, as

noticed above, there is no dispute that the concerned

workman was appointed in respect of Bijlibari Tea Estate only

and hence, he cannot be transferred out of Bijlibari Tea

Estate, even though the new venture is under the same

Management, but he can definitely be transferred to another

section or to any other transferable post within the tea estate.

The Management though has taken the plea that the said new

venture is nothing but an extension of Bijlibari Tea Estate,

did not produce any evidence before the Labour Court in that

regard. The order of transfer reveals that the concerned

workman was transferred to a new venture proposed to be

started.

22. The Apex Court in M/s Kundan Sugar Mills (supra)

while considering almost the similar facts involved in the case

in hand, has held that the employer has no inherent right to

transfer his employee to another place where he chooses to

start a business subsequent to the date of the employment,

when there was no condition of service of employment of the

employee either express or implied that the employer has the

right to transfer to such new venture started or proposed to

be started subsequent to the date of his employment. The

Apex Court in that case has uphold the judgment of the

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Labour Appellate Tribunal holding that the Management had

no right to transfer the workman to a new factory and hence,

the order dismissing him from service was illegal, based on

the fact that such workman employed in a factory owned by

the Management was sought to be transferred to a new

venture. The Single Bench decision of this Court in

Kakodanga Tea Estate Pvt. Ltd. (supra), on which the learned

Sr. Counsel for the Management places reliance, cannot be

applied in the case in hand, in view of the aforesaid

discussion and as in that case, the concerned workman was

transferred from a post in the tea garden to the Head Quarter

of the Tea Company.

23. In view of the aforesaid discussion, I am of the

view that the order of transfer dated 08-08-1994 (Exhibit-3)

amounts to the violation of the conditions of appointment of

the workman, as he was appointed in respect of Bijlibari Tea

Estate only and hence, he cannot be transferred to a new

venture of the Management without his consent. Such order

of transfer, therefore, cannot be termed as lawful and

reasonable and hence disobedience of such order does not

amount to misconduct within the meaning of Clause-10 of the

standing order in force.

24. While deciding the present writ petition, I am

conscious of the fact that having held that the domestic

enquiry was not valid and proper, this Court ought to have

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remanded the matter to the Labour Court for deciding the

reference afresh, on the basis of the materials available on

record as adduced by the parties. But since the dismissal

order was passed in the year 1994 and almost 16 (sixteen)

years have elapsed from the date of passing of the dismissal

order of the concerned workman from the service and the

parties have led evidence on merit before the Labour Court, I

have decided to peruse the evidences as adduced by the

parties and to decide the writ petition, since the arguments

were put forward by the learned counsel for the parties on

merit also, with a view to avoid further delay in disposal of the

proceeding.

25. In view of the above, the dismissal of the

concerned workman from service was not justified. The

award passed by the learned Labour Court is set aside. The

Management is directed to reinstate the workman in service

with full service benefits.

26. The writ petition is accordingly allowed. No cost.

JUDGE

M. Sharma/Roy