Rajiv Sharma, J.@mdashPetitioner-Company (hereinafter referred to as "the Management" for the sake of convenience) has assailed the award made by the learned Presiding Judge, Industrial Tribunal-Cum-Labour Court, Shimla, dated 05.03.2009 in reference No. 390 of 2002. Material facts necessary for adjudication of this petition are that respondent No. 2-workman (hereinafter referred to as "the workman" for the sake of convenience), was appointed as a Clerk on 26.06.1971 vide Annexure P-2. He was confirmed on 17.01.1972. He was promoted as Purchase Superintendent on 21.07.1987. The workman was transferred/sent on deputation vide order dated 24.08.2002, with a direction to join duties at Lucknow Distillery by 31.08.2002. His explanation was sought on 28.08.2002. The notices were also got published in the Tribune and Dainik Tribune. The final notice was issued to the petitioner on 10.05.2003. He superannuated on 20.01.2006.
2. Respondent No. 1 (hereinafter referred to as "the Staff Union" for the sake of convenience) submitted a charter of demand to the Management on 21.08.2002 and 03.09.2002. Reply to the same was filed by the Management on 15.11.2002. The competent authority, after receiving the failure report has made Reference No. 390 of 2002 to the learned Industrial Tribunal-Cum-Labour Court, Shimla on 20.12.2002 to the following effect:
Whether the demand raised by the President, Mohan Meakins Staff Union Registered No. 808 (Affiliated to BMS) Solan Brewery, District Solan through their demand notice dated 21.8.2002 and 3.9.2002 (copies enclosed) from the management of M/s. Mohan Meakins Brewery, Solan, District Solan, H.P. are proper and justified? If Yes, what relief of workers concerned are entitled to?
3. The Staff Union filed a claim petition on 21.03.2003, to which the reply was filed by the Management on 29.05.2003 and the rejoinder was filed by the Staff Union on 01.07.2003.
4. An application u/s 10 (4) read with Section 2(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act" for the sake of brevity") was filed by the Staff Union, to which the reply was filed by the Management. Learned Presiding Judge, H.P. Labour Court, Shimla allowed the application on 24.08.2005 and the Management was directed to restore the status of respondent-workman, as he was having before the passing of order dated 24.08.2002, during the pendency of reference. The operative portion of the order reads thus:
11. Admittedly, the order dated 24.8.2002 sending the applicant on deputation without his consent is prima facie against the principles of natural justice and as per law discussed hereinabove. Therefore, the applicant has shown a prima-facie case and balance of convenience in his favour and in the event of grant of Interim Relief/Award, no prejudice is going to be caused to the respondent. Accordingly, the application is allowed and the respondent is directed to restore the status of applicant, as he was having before the passing of the order dated 24.8.2002, during the pendency of the reference. However, the opinion expressed in this order shall not be construed as expression of opinion as merit of the case. The case file after its completion be tagged with the reference case.
5. The Management assailed the interim award dated 24th August, 2005 by filing C.W.P. No. 927 of 2005 in this Court. The operation and execution of the interim award dated 24.08.2005 was stayed by this Court on 19.09.2005. C.W.P. No. 927 of 2005 was dismissed by the Division Bench of this Court on 06.12.2006, having become infructuous. The Division Bench has vacated the stay order dated 19.09.2005 vide judgment dated 06.12.2006. The judgment dated 06.12.2006 reads thus:
Mr. K.D. Sood, submits that due to intervening circumstances, viz that the respondent has attained the age of superannuation, the present writ petition has become infructuous and may be disposed of accordingly. In view of the statement of Mr. K.D. Sood, the present writ petition is dismissed as having become infructuous.
CMP No. 1815/05.
In view of the orders passed in the main matter, the interim stay granted on 19.09.2005 is vacated and the application is dismissed.
6. For the completion of facts, it would be appropriate at this stage to take note of the fact that vide order dated 15.11.2006, the reference was dismissed for non-prosecution. This order was challenged by way of C.W.P. No. 986 of 2007. The same was disposed of on 18.08.2008 by issuing the following directions:
1. The Labour Court, Shimla shall decide the reference No. 390 of 2002 within a period of six months from the receipt of the certified copy of this judgment;
2. The Labour Court, Shimla shall decide all the applications pending before it including the application u/s 33-C(2) of the Act filed by the Union; and
3. The Labour Court, Shimla shall pass appropriate orders in application preferred u/s 33-C(2) of the Act within a period of three months from today.
7. Thereafter, the issues were framed by the learned Presiding Officer on 03.11.2008 and issue No. 4 was re-casted on 16.12.2008. Learned Industrial Tribunal-Cum-Labour Court, Shimla made the final award on 5th March, 2009. The claim of the Staff Union was partly allowed and partly dismissed and the workman, i.e., Shri Amar Singh Thakur was ordered to be paid full back wages w.e.f. 24.08.2002 till his retirement alongwith all retiral benefits accrued thereon. The Management has assailed the award, dated 5th March, 2009, whereby respondent No. 2- workman was held entitled to full back wages w.e.f. 24.08.2002 till his retirement.
8. Mr. K.D. Sood, learned counsel for the petitioner has strenuously argued that respondent No. 2 was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. He then contended that as per appointment letter Annexure P-2, respondent No. 2-workman could be transferred anywhere in India. He then argued that the respondent No. 2-workman has been transferred due to administrative exigencies and he was to be paid an additional sum of 500/-. He further argued that the back wages could not be awarded by the learned Industrial Tribunal-Cum-Labour Court, Shimla. He further contended that in view of the judgment dated 06.12.2006 in C.W.P. No. 927 of 2005, the matter has become infructuous.
9. Mr. C.N. Singh, learned counsel for respondents No. 1 and 2 has supported the award dated 05.03.2009.
10. I have heard the learned counsel for the parties and gone through the pleadings carefully.
11. The workman, i.e., respondent No. 2 has filed a detailed reply to the petition, to which rejoinder has been filed by the Management. It would be apt at this stage to take note that the learned Industrial Tribunal-Cum-Labour Court, Shimla has rejected the claim of the Union with regard to demand of DA, House Rent Allowance, Annual Increment, Scooter/Car Allowance, Hill Allowance, Payment of equivalent wages to the contract labour and revision of pay scale since 1990. Learned Industrial Tribunal-Cum-Labour Court, Shimla has only granted relief to respondent No. 2 by ordering payment of back wages w.e.f. 24.08.2002.
12. Learned Advocates have confined their submission only with regard to the manner in which respondent No. 2- workman was transferred and whether he was entitled to back wages or not.
13. Respondent No. 2 was appointed as a Clerk on 26.06.1971 vide Annexure P-2. He was confirmed on 17.01.1972. He was promoted as Purchase Superintendent on 21.07.1987.
14. Mr. K.D. Sood, learned counsel for the petitioner has placed strong reliance upon condition No. 1 of appointment of workman, dated 26.06.1971, which reads thus:
1) The Company reserves the right to transfer you to any other place or utilize your services in any other capacity.
15. The workman has been sent on deputation as per Annexure P-7 on 24.08.2002. The text of letter dated 24.08.2002 reads thus:
The management is pleased to send you on deputation, in the interest of the Company and exigencies of work, to Lucknow Distillery for a period of one year. During the deputation period, you will be paid a deputation allowance of ` 500/- per month. You are hereby relieved of your duty from this place with immediate effect and are directed to report for duty to Shri Yogesh Kumar CEO-Manager, Lucknow Distillery within a week.
16. As per letter dated 24th August, 2002, the workman has been sent on deputation for a period of one year and he was relieved with immediate effect and was ordered to join his duties within a week. The workman has not joined his duties at Lucknow. His explanation was called on 24.08.2002 and notices were also got published in the Tribune and Dainik Tribune. In the meantime, the Union has sent a charter of demand to the Management on 21.08.2002 and 03.09.2002. Reply to the same was filed by the Management on 15.11.2002. The claim petition, reply and rejoinder were filed by the parties.
17. Mr. C.N. Singh, learned counsel for respondents No. 1 and 2 has drawn the attention of the Court to Standing Orders framed by the Management at page No. 186 of the paper-book. The conditions for promotions of workmen have been provided in paragraph No. 29 and expression "supervisor" in paragraph No. 2(m). The transfer of an employee is regulated as per paragraph No. 33, which reads thus:
33. Transfer: A workman may be transferred according to exigencies of work from one shop or department to another or from one station to another or from one work place to another from one establishment to another anywhere in India in existing establishment or to be set up in future under the Management of the Company and from one Associated Company to another.
18. It is evident from the language employed in paragraph No. 33 of the Standing Orders that workman can be transferred according to the exigencies of work from one shop or department to another or from one station to another or from one work place to another, from one establishment to another anywhere in India in existing establishment or to be set up in future under the Management of the Company and from one Associated Company to another. However, as per proviso, where a transfer involves moving from one station to another, such transfer shall take place either with the consent of the workman or where there is specific provision to this effect in the letter of appointment and also that a reasonable notice is given to such workman and reasonable joining time is allowed in case of transfer from one station to another.
19. In the instant case, the workman has been sent on deputation. There is no tangible evidence placed on record by the Management that the consent of the workman was obtained. There is a difference between transfer and deputation. The deputation can only take place with the expressed consent of an employee. Even, as per condition No. 1 of appointment letter, the workman could be transferred anywhere, but he has to be given reasonable notice as per paragraph No. 33 of the Standing Orders and also reasonable joining time to join. The Management has not placed any record to substantiate that reasonable notice was ever issued to the workman before sending him on deputation on 24.08.2002. Learned Industrial Tribunal-Cum-Labour Court, Shimla has rightly given a finding in paragraph No. 18 that without the expressed consent of the workman, he could not be sent on deputation. The workman, in these circumstances, could not be forced to join his duties at Lucknow on the basis of notices published in daily edition of Tribune and Dainik Tribune and final notice dated 10.05.2003.
20. The matter is required to be considered from another angle. The Union has filed an application u/s 10(4) read with Section 2(b) of the Industrial Disputes Act, 1947, seeking direction to the Management to grant wages to the extent of 75 % till the final disposal of the reference or in the alternative, the respondent be directed to take applicant on the rolls at Solan. The Management has filed reply to this application, which is at page No. 245 of the paper-book. Learned Labour Court has passed an interim order on 24.08.2005, which is at page No. 60 of the paper book. The operative portion of the same has already been quoted in the opening portion of the judgment. Learned Labour Court has granted status quo by restoring the status of the workman, as he was having before the passing of order dated 24.08.2002, during the pendency of the reference. The Management has assailed this order by filing C.W.P. No. 927 of 2005. The Division Bench has stayed the operation and execution of the interim award dated 24.08.2005 on 19.09.2005. However, C.W.P. No. 927 of 2005 was dismissed by the Division Bench of this Court on 06.12.2006 on the basis of statement given by the learned counsel appearing on behalf of the Management that the petition has become infructuous after the retirement of the workman in 2006. The Division Bench vacated the stay order dated 19.09.2005. The effect of dismissal of the writ petition having become infructuous and vacation of the stay order dated 19.09.2005, was that the interim award dated 24.08.2005 stood revived.
21. In the present case, there is sufficient material on record to establish that the respondent No. 2-workman was president of the Union and he had been espousing the cause of the workmen and a Memorandum of Understanding was also entered into between the Management and the Union. It was signed on 26.09.2000. It is only when the Memorandum of Understanding was not followed, a charter of demand was submitted on 21.08.2002 and 03.09.2002. In view of this also, the deputation of the petitioner from Solan to Lucknow was vindictive/punitive.
22. Mr. K.D. Sood, learned counsel for the petitioner has also argued that the workman has not obeyed the orders of his superiors. If it was so, it was always open to the Management to proceed with the workman in accordance with law and the Standing Orders framed by it. However, in the instant case, no disciplinary proceedings were initiated against the workman.
23. The workman has appeared as PW-1 before the learned Labour Court. He has deposed that he was President of the Union known as Mohan Meakins Ltd. Staff Union at the time when he was sent on deputation to Lucknow. He has made reference to the Standing Orders. According to him, he could not be sent to Lucknow on deputation. He went to resume his duties at Solan, but he was not permitted to do so. He was retired on 20.01.2006. He did not receive any wages alongwith retiral benefits including gratuity, provident fund and leave encashment of 90 days with interest from the date of sending him on deputation on 24.08.2002 till his superannuation. According to him, the Management has not obeyed the interim award dated 24.08.2005. He has admitted in his cross-examination that he was given additional charge as In charge of record section vide letter Ex.-RD. He also admitted that S/Sh. Ashok Ratan, Khub Ram worked under him in purchase department and S/Shri Ishwar Dass and Amolak Ram worked under him in record section. He has admitted that his gross salary as on 1.4.2001 was ` 7,645/- and on 1.4.2002, it was ` 8,065/- as per Ex. RO. He has admitted that he has received a gratuity and provident fund till 2002 vide receipts Ex. RP-1 to RP-8. In his cross-examination, he has stated that he has sent a registered letter AD Ex. RQ to the Management for his joining after passing an interim award.
24. RW-1, Shri Anil Dang has stated that his C.E.O. has made a request to Mohan Meakins Ltd., Solan for sending an experienced employee of purchase department to Lucknow on deputation basis vide letter mark-X. Respondent No. 2-workman was sent on deputation to Lucknow by the Solan Brewery vide order dated 24.08.2002, but the workman did not join at Lucknow, upon which a registered letter was sent to the workman on 18.12.2002, which was received back undelivered. A second letter was sent to the workman on 06.01.2003, which was also received back undelivered. In these circumstances, two proclamations were got issued in the daily edition of Tribune and Dainik Tribune dated 16th February, 2003. Despite that, the workman did not join his duties. Another notice was also sent to him on 10th May, 2003. He has admitted that the Management has not taken any disciplinary action against the workman. According to him, the Company did not sustain any loss for the work done by the workman.
25. RW-2, Shri H.N. Handa has also deposed that the functions of the workman as purchase Superintendent were the overall Incharge of Supervisory work, Administration and to control his subordinate and grant their leave and placing purchase orders of lakhs of rupees and also to do independent correspondence with various suppliers and follow up the purchase orders and also to pass the bills and to place order for stationery items. According to him, 4-5 workers were under the workman at the relevant time, namely, S/Shri Khub Ram Chauhan, Ashok Rattan in the purchase department and S/Sh. Amolak Ram and Ishwari Dutt in records and stationery department. He has issued a letter dated 24.08.2002 Ex.-PB sending the workman on deputation. In his cross-examination, he has categorically admitted that there was no order on record which could show that the persons mentioned in the examination-in-chief, were deployed under the workman in purchase and other departments. He has also admitted that there was no order which could show that while promoting the workman as purchase Superintendent, he had enjoyed certain powers and authorities. He has also admitted that there was no order on record which could show about the sale and the benefits accrued thereon at the time of promotion of the workman as purchase Superintendent. He could not show any document on record regarding purchase order dealt and signed by the workman. He has admitted that the workman has never signed the cheques on behalf of the company. He has admitted that the Company withdrew the writ petition Ex. PE as the reference was dismissed in default and workman was already superannuated. He also admitted that there is separate Standing Order of Solan Brewery. He has also admitted that there was no provision for sending the employee on deputation out station places. Volunteered that the deputation is a part of transfer. According to him, he sent about 15 to 20 employees to other places on deputation prior to 2002, but he has not attached any document on record to substantiate the same.
26. RW-3 is Shri Khoob Ram. According to him, the functions of purchase Superintendent were to place purchase order and to invite quotations. Their leave was to be sanctioned by the Accounts Officer of the Company. They were two working under the workman at that time. In his cross-examination, he has admitted that there was no order on record which could show that he had worked under the workman. He did not know whether the workman invited quotation or signed the cheques. According to him, the purchase orders were to be signed by the Secretary of Mohan Meakins. He has admitted that there was Mohan Meakins Ltd. Staff Union Solan Brewery and the workman was the President of that Union.
27. What emerges from the statements of RW-2 and RW-3, is that the workman was not working in Managerial/Supervisory capacity. The Management could not place any order on record to establish that the persons, namely, S/Sh. Khub Ram Chauhan, Ashok Rattan, Amolak Ram and Ishwari Dutt were working under the workman. There was no order on record to establish that on promotion as purchase Superintendent, the workman started to enjoy certain powers and authorities. The Management did not place any document on record regarding purchase orders and the cheques signed by the workman. RW-2, Sh. H.N. Handa has admitted, as noticed above, in cross-examination that the workman never signed any cheque on behalf of the Company. Similarly, RW-3 has admitted that he did not know whether the workman invited quotation or signed the cheques. According to him, the purchase orders were to be signed by the Secretary of Mohan Meakins.
28. According paragraph No. 2(g) of the Standing Orders, the "workman" means any person employed in the industrial establishment to do any skilled, unskilled, manual, supervisory, technical or clerical work for hire or reward whether the terms of employment is express or implied, but does not include any such person; (i) who is employed mainly in a managerial or administrative capacity, or (ii) who being employed in a supervisory capacity draw wages exceeding sixteen hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. The Management has miserably failed to prove these ingredients. What is to be seen to determine whether an employee is a workman or not, is the nature of duties and the nomenclature has no relevance. The findings recorded by the learned Labour Court that the respondent was a workman are upheld.
29. The difference between deputation and transfer has been explained by the learned Single Judge of Gujrat High Court i
17. Mr. Takwani said that the petitioners lien is retained in the parent department and he is merely deputed to Civil Defence Organisation. Word deputation itself connotes service outside the cadre or outside the parent department in which he is serving. One is never deputed in his own department. He can be deputed to other department. If a person is holding an office and is bound to render duty it must be in the cadre and the post to which he is appointed. If he is to be taken away from that post and sent to another department, it is said that he is being deputed to that department. Now, when one is in the department or is in a cadre, the proper authority can post him wherever it is open to the authority to post a person belonging to that cadre and take the very duty which is the duty assigned to them. But if an employee is to be taken out of cadre and sent to altogether another field of service, it can never be done without his consent. With the consent the employee can be deputed to any department or any cadre or at other place of service. Transfer is always limited to equivalent post in the same cadre and in the same department. Deputy and transfer basically differ from each other in that transfer can be only to an equivalent post in the same cadre; deputation must be in department other than the parent department where even equivalence may not have been determined. Transfer is right of the master and it is an incident of service and can only be challenged on the grounds of mala fide or violation of statutory rule relating to transfer. Deputation can only be with the consent because the employee joined department to render service in that department and he cannot be made to serve somewhere else may be in a post much lower to his post. In that event, he would have never joined service. If such power is to be conceded contract of service may degenerate into a contract of slavery because the slaves can be employed in any manner and for any work human or inhuman as the master or owner of the salve desires. Such is not the position of the employees of the State Government. Concept of deputation takes within its sweep rendering service outside the parent department or outside the cadre and therefore, with it carries concept of allowance which has been styled as deputation allowance. While appointing the Second Pay Commission, the State Government also directed the Commission to inquire and made recommendations about the deputation allowance. Probably deputation allowance has its origin in an inducement that may be offered to the employee to give his consent so as to serve outside the parent department or outside the cadre. Therefore, it is inconceivable that deputation can be ordered without the consent of the concerned employee.
30. Their Lordships of the Hon''ble Supreme Court in
18. Concept of "deputation" is well understood in service law and has a recognised meaning. Deputation'' has a different connotation in-service law and the dictionary meaning of the word ''deputation'' is of no help. In simple words ''deputation'' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be.
31. Their Lordships of the Hon''ble Supreme Court in
15. Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being incharge of the section alone and that too it being a small one and relating to quality control would not answer the test.
17. A person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion, etc. The work involves exercise of tact and independence.
32. Their Lordships of the Hon''ble Supreme Court in
12. Section 2(s) contains an exhaustive definition of the term "workman". The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who have been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises manly managerial functions does not fall within the definition of the term "workman".
14. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of "workman".
33. What emerges from the evidence, oral as well as documentary, is that the respondent No. 2 is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. He could not be sent on deputation without his consent. Learned Labour Court has passed the interim award on 24.08.2005, on the basis of which, the status quo order was passed. Meaning thereby, the workman was permitted to re-join his duties. He has sent a registered letter to resume his duties vide Annexure-RQ. The workman has not been permitted to rejoin his duties despite the interim award. The interim award though was stayed by this Court in C.W.P. No. 927 of 2005 on 19.09.2005, however, the same was vacated when the writ petition was dismissed on 06.12.2006 at the instance of the Management having become infructuous after superannuation of the workman. Consequently, the interim award dated 24.08.2005 had revived after dismissal of C.W.P. No. 927 of 2005 on 06.12.2006. Even, the expression "Supervisor" has been defined u/s 2(m) of the Standing Orders as under:
2(m) Supervisor: means any person who by the nature of his duty exercises authority, supervision or control over workmen employed by the Industrial establishment, whether inside or outside the premises.
34. The Management has not placed any documents on record to establish that the workman exercised any authority, supervision or control over the workmen employed by the Industrial establishment. To the contrary, RW-2 has admitted in his cross-examination that there was no order on record which could show that the persons mentioned in the examination-in chief, were deployed under the workman in purchase and other departments at the relevant time. According to RW-3, Shri Khoob Ram, the leaves were sanctioned by the Accounts Officer and the purchase orders were to be signed by the Secretary of Mohan Meakins.
35. It is conclusively proved that the action of the Management to sent the workman on deputation was void abinitio. The Management has not instituted any disciplinary proceedings against the workman in view of the interim award. The Management was legally bound to restore the status of the workman before the passing of order dated 24.08.2002. The Management was bound to pay the salary to the workman w.e.f. 24.08.2002 till his superannuation. The findings recorded by the learned Industrial Tribunal-Cum-Labour Court that the workman is entitled to full back wages w.e.f. 24.08.2002 till his retirement alongwith all retiral benefits, warrants no interference. The award passed by the learned Labour Court is reasoned and there is no perversity in the same. Learned Labour Court has discussed the entire oral as well as documentary evidence and has correctly applied the ratios of the judgments to determine the principles of deputation and workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Consequently, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs.
