Mrs. Chitra Srivastava vs Govt. Of Nct Of Delhi And Ors. on 7 July 2006

Delhi High Court
Mrs. Chitra Srivastava vs Govt. Of Nct Of Delhi And Ors. on 7 July, 2006
Equivalent citations: 131(2006)DLT79, (2007)ILLJ23DEL
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT

Manmohan Sarin, J.

Page 2285

1. By this Review Petition, applicant-petitioner Mrs. Chitra Srivastava seeks review of the judgment and order dated 31.08.2004 by which W.P.(C) No. 7252/2003 was dismissed holding that there was an efficacious alternate remedy under the Industrial Disputes Act, 1947 and the dispute was such that the petitioner be relegated to the same. The impugned order of transfer was stayed for a period of two months to enable the petitioner to avail of the legal remedy under the Industrial Disputes Act. Notice in the Review Petition had been issued on 20.09.2004 and the interim protection granted vide judgment dated 31.08.2004 was directed to continue.

2. Petitioner, who is employed with respondent No. 3 Hamdard Wakf Laboratories as Secretary to the Head, Human Resource Development at the Head Office, had challenged in the writ petition order transferring her to Bhopal. Petitioner, who was working at the Head Office in Delhi, contended that her transfer hundreds of miles away, was a mala fide one. Petitioner is Page 2286 stated to be a mother of two children with a sick husband, who has undergone neurosurgery. Petitioner contended that she was being made a scapegoat simply to show that the transfer of Arifa Nauman, writ petitioner in WP(C). No. 7138/2003, was not a solitary case but a routine one by transferring her also. It was urged that Mrs. Arifa Nauman was being victimized on account of trade union activities of her husband, who was Secretary of Workers’ Union of respondent No. 3. Petitioner in the writ petition had questioned her transfer as a mala fide one and being contrary to the standing orders.

3. Respondents had raised preliminary objection to the maintainability of the writ petition contending that an alternative efficacious remedy under the Industrial Disputes Act was available, which the petitioner had failed to avail. Mr. Gupta, learned Counsel for the petitioner, had contended that the Tribunal did not have any power to grant stay of the transfer order and the order affected her livelihood and fundamental rights. Respondent No. 3, on the other hand, had contended that the transfer was not emanating from any malice, rather the respondent had only accommodated the petitioner by transferring her to Aurangabad, since her job was rendered surplus otherwise and she was liable to be retrenched.

4. By the judgment under review, this Court, without going into the factual controversies or on the merits of the transfer being mala fide or not, considered whether there was an efficacious alternate remedy, which could be conveniently exercised and availed of by the petitioner. The Bench considered the provision of Section 25-T of the Industrial Disputes Act, Section 2(ra) and Serial No. 7 of the 5th Schedule, which are reproduced for facility of reference:

Section 25-T of the Industrial Disputes Act reads as under:
No employer or workman or a trade union, whether registered under the Trade Union Act, 1926 or not, shall commit any unfair labour practice.
Section 2(ra) of the Act defines unfair labour practice as under:
Section 2(ra) “Unfair Labour Practice” means any of the practices specified in the Fifth Schedule.
Fifth Schedule of the Act specifies the various trade practices. S. No. 7 of the said Schedule is as under: To transfer a workman mala fide from one place to another under the guise of following management policy.
5. The Bench reached the conclusion that transfer of a workman made mala fide under the guise of following management policy is an unfair labour practice in respect of which an industrial dispute could be raised. Further, that the Industrial Tribunal/Court would be vested with the inherent power to enforce the statutory provision, as given in Section 25-T and for the said purpose grant stay. The submission of the petitioner that the Industrial Tribunal/Court would not have power to grant stay of transfer, was not accepted. Further, relying on the judgment of the Supreme Court in Scooters India and Ors. v. Vijay E.V. Eldred reported at 1999 II CLR 231 and Chairman, Coal India Ltd. and Anr. v. Madan Prasad Sinha and Ors. reported at ( Premier Automobiles Ltd. v. Kamlakar Page 2287 Shantaram Wadke and Ors. reported at the Court had held that an extensive machinery has been provided for settlement and adjudication of industrial disputes under the Industrial Disputes Act and resort should be had to the same for their resolution. The Court dismissed the writ petition relegating the petitioner to avail his remedy under the Industrial Disputes Act, while interim protection was provided for two months. The Bench had also noted that there were disputed questions of fact and the various allegations would require to be established before the appropriate forum.

6. Let us consider the submissions of the review applicant-petitioner as now made in assailing the dismissal of writ petition

7. Learned Counsel for the petitioner-review applicant Mr. M.A. Niyazi urged that regretfully, at the time of disposal of the writ petition, the review applicant-petitioner did not bring to the attention of this Bench the observations made by the Supreme Court in relation to the scope, power and ambit of Section 25-T along with Section 25-U and Section 34 of the Industrial Disputes Act. In Hindustan Lever Limited v. Ashok Vishnu Kate and Ors. reported in 1995 LAB. I.C. 2714. The Supreme Court had occasion to consider, compare and comment on the provisions of the Industrial Disputes Act, 1947 and Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Learned Counsel submits that the said observations of the Supreme Court which are binding on this Court clearly bring out that while Section 25-T of the Industrial Disputes Act prohibits unfair labour practice, Section 25-U of the Industrial Disputes Act prescribes the punishment for commission of the unfair labour practice, while Section 34(2) of the Industrial Disputes Act enable the Metropolitan Magistrate/Judicial Magistrate to try the offences punishable under the Act. The commission of unfair labour practice under the Industrial Disputes Act is a penal provision and the offence is to be tried as summons case by the Magistrate. The Labour Court/Tribunal would have no power/authority to deal with the unfair practice. The Supreme Court in the cited case was considering a challenge to the jurisdiction of the Labour Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 in connection with the contemplated discharge or dismissal of employees. The Labour Court had taken the view that complaints were not maintainable till actual discharge or dismissal. This view was upset by the Division Bench of the Court and the employer filed the appeal in the Supreme Court. The Supreme Court noted the legislative developments in Maharashtra. It was held :

There was no provision for reference of any industrial dispute under the Central Act, for preventing any unfair labour practice, by the time the Maharashtra Act saw the light of the day. It is, of course, true that by an amendment to the Industrial Disputes Act Chapter V(c) was added w.e.f. August 2, 1984 which deals with unfair labour practice. the “Unfair Page 2288 Labour Practice” as defined by the I.D. Act in Section 2(ra) means any of the practices specified in the Fifth Schedule. When we turn to the Fifth Schedule to the I.D. Act, we find the cataloguing of unfair labour practices on the part of the employers, the trade unions of the employers and on the part of the workmen and trade unions of workmen, which are almost pari materia with lists of unfair labour practices on the part of the employers, on the part of the trade unions and general unfair labour practices on the part of the employers as found in Schedules II, III and IV of the Maharashtra Act. However, even the aforesaid amended provisions of the I.D. Act concerning unfair labour practice nowhere provide for any reference of industrial dispute in connection with such unfair labour practice on the part of the employers which can entitle the workmen or a body of workmen to seek a reference for adjudication or for its prevention by any competent Court under the I.D. Act, and all that a workman can do is to wait till the order of discharge or dismissal is passed and then he can raise a dispute under Section 2(A) in connection with his dismissal or discharge and if such dispute is referred by the appropriate Government for adjudication of the Labour Court which is entitled to adjudicate upon such dispute as per the residuary Item 6 of Schedule II to the I.D. Act, then in such a dispute it can be shown by the workman that his actual dismissal or discharge was a result of unfair labour practice as laid down by Clause 5 of part 1 of the Fifth Schedule to the I.D. Act. However, there is no provision for preventing any proposed discharge or dismissal by way of unfair labour practice on the part of the employer as per the statutory scheme of the I.D. Act, even after the insertion of Chapter V(c) in that Act. On the other hand, more than a decade before the aforesaid amendment was brought in the I.D. Act, which fell short of providing for prevention of unfair labour practice, the Maharashtra Legislature as early as in 1972 enacted the Maharashtra Act providing for such prevention.
8. Reference may also be usefully made to para 36 of the judgment, which is reproduced for facility of reference :

When we keep the relevant provisions of the Industrial Disputes Act concerning unfair labour practices in view and compare these provisions with the provisions of the Maharashtra Act, a clear difference becomes obvious. Section 25-T of the Industrial Disputes Act prohibits an employer or workman or a trade union from committing any unfair labour practice. While so far as Section 27 of the Maharashtra Act is concerned, it prohibits an employer or union or employee from engaging in any unfair labour practice. Consequently the prohibition under the Industrial Disputes Act is against the commission of unfair labour practice which may include the final acts of such commission. While Section 27 of the Maharashtra Act prohibits the concerned party even from engaging in any unfair labour practice. The word engage is more comprehensive in nature as compared to the word commit. But even that apart, Section 25-U provided for penalty for committing unfair labour practice and mandates that whoever is guilty of any unfair labour practice can be prosecuted before the competent Court on a complaint made by or under the authority of an appropriate Government under Section 34(1) read Page 2289 with Section 25-U of the Industrial Disputes Act. So far as the Maharashtra Act is concerned, there is no direct prosecution against a party guilty of having engaged in any unfair labour practice. Such a prosecution has first to be preceded by an adjudication by a competent Court regarding such engagement in unfair labour practice. Thereafter, it should culminate into a direction under Section 30(1)(b) or it may be a subject matter of interim relief order under Section 30(2). It is only thereafter that prosecution can be initiated against the concerned party disobeying such orders of the Court as per Section 48(1). Consequently, it cannot be said that the Division Bench of the Bombay High Court was not right when it took the view that the act of engaging in any unfair labour practice by itself is not an offence under the Maharashtra Act while such commission of unfair labour practice itself is an offence under the Industrial Disputes Act. However, this aspect is not much relevant for deciding the controversy with which we are concerned.
9. Learned Counsel contends that from the foregoing interpretation of the provisions of the I.D. Act as given by the Supreme Court, it was clear that there was no power with the Industrial Tribunal/Labour Court to grant any interim stay for preventing an unfair labour practice. it had been common ground that the challenge to the order of transfer as made, had been urged as an unfair labour practice. Mr. Niyazi thus, contended that even after the concerned employee sought reference of dispute under Section 10(A) of the I.D. Act and the appropriate Government refers such a dispute, it could be referred to challenge the actual order of transfer or dismissal or discharge and the Tribunal/Court under the provisions of the I.D. Act, would not have the power to grant an interim restraint in respect of a contemplated order or a transfer order that is passed since it was only the commission of an unfair labour practice, which could be challenged. Mr. Niyazi thus submitted that since the aforesaid authoritative pronouncement of the Supreme Court could not be brought to the attention of this Bench a different view had been taken.

10. Learned senior counsel for the respondent Mr. Bhandari opposes the review application on the ground that it was an attempt to delay the matter. He contended that relief had only been sought against respondent No. 3, who would not fall within Article 12 and the writ petition would not be maintainable and there was no breach of public duty. It was put to the learned Counsel for the respondent that the impugned judgment had considered only the aspect of there being an efficacious alternative remedy under the provisions of Industrial Disputes Act and with regard to the granting of interim prayer which appears to run counter to the judgment of the Supreme Court cited above. Mr. Bhandari, learned senior counsel urged in reply that interim relief could be granted under Section 10(4) of the I.D. Act which enables the labour court or the Tribunal in adjudication of the disputes referred and matters incidental thereto. He, therefore, urged that interim relief could be regarded as a matter incidental while challenging the order of transfer. Counsel also sought to place reliance on the judgment of Hotel Imperial v. Hotel Workers’ Union where interpreting the expression “incidental thereto” appearing in Section Page 2290 10(4), the Court observed that while considering question of reinstatement and of compensation, question of interim relief till the decision of the Tribunal could be granted. Counsel also sought to urge that the judgment of the Supreme Court in Hindustan Lever Limited v. Ashok Vishnu Kate (supra) was made in the context of the provisions of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 regarding entertainment of complaints filed under Section 28(1) of the Maharashtra Act in connection with the contemplated discharge or dismissal and, therefore, the observations of the Supreme Court ought to be confined to discharge or dismissal of employees and the said observations would have no bearing to the present case. Counsel also relied on the Full Bench decision of the Madras High Court in P. Pitchumani v. Management of Sri Chakra Tyres Limited reported in 2004 II CLR 741. Mr. Bhandari also sought to submit that the Court had noted that there were disputed questions of fact for which, evidence was required to be led before the appropriate forum. He submitted that accordingly, even on this ground, the writ petition deserves to be dismissed and review should not be allowed.

11. Having considered the submissions made by the respective counsel and reading of the Supreme Court judgment in Hindustan Lever Limited v. Ashok Vishnu Kate, it leave no doubt regarding the scope, ambit and purview of the provisions of the I.D. Act in relation to unfair labour practice. The Supreme Court has specifically considered and noted the distinction that the I.D. Act makes the commission of unfair labour practice an offence. In comparison, the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 makes engaging in any such unfair labour practice also actionable. The Supreme Court in the cited case reached the conclusion that the provisions of the I.D. Act do not enable an industrial dispute to be raised with regard to any of the unfair labour practices or its prevention rather, the provisions in this regard were penal in nature and providing for prosecution.

12. In my view, the decision in Hotel Imperial v. Hotel Workers’ Union (supra) given in the context of what would be matters incidental to the reference does not advance the respondent’s case. Similarly, the judgment of the Madras High Court Full Bench in P. Pitchumani v. Management of Sri Chakra Tyres Limited (supra) can be taken as an authority in respect of exercise of discretion under Article 227 and the maintainability of action under common law for breach of contract. These do not, in any manner, dilute the specific observations of the Supreme Court in Hindustan Lever Limited v. Ashok Vishnu Kate.

13. Coming to the observations in the impugned judgment that the petition involved disputed questions requiring allegations to be established by evidence before the appropriate forum, the said observations were made by the Court in the context when it had reached the conclusion that there was an efficacious alternative remedy available and, therefore, resort should be Page 2291 had to the said forum where evidence could be led on disputed questions of fact also. However, in a scenario where the remedy for prevention or for grant of interim stay against an unfair labour practice is not available, then the petitioner ought not to be debarred on the ground that certain disputed questions arise. Even in writ petitions, evidence by way of affidavits can be taken if so required. In view of the foregoing discussion, I am of the view that the dismissal of the writ petition on the ground of there being an efficacious alternate remedy suffers from an error apparent and runs counter to the judgment of the Supreme Court in Hindustan Lever Limited v. Ashok Vishnu Kate and, therefore, deserves to be recalled.

Accordingly Review Petition is allowed and order dated 31.08.2004 is recalled.

It would be open for the respondents to urge the ground of respondent No. 3 not being amenable to writ jurisdiction which question is left open to be decided in the writ petition. The writ petition is restored to its original number. Interim order would continue.

The writ petition be listed before the appropriate Bench as per roster for disposal on merits.