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Fathe Bhadur Singh v. Presiding Officer Labour Court & Another - WRIT - C No. 51374 of 2002 [2004] RD-AH 989 (1 October 2004)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon'ble Rakesh Tiwari, J

Heard Sri S.N. Dubey learned counsel for the petitioner and learned Standing Counsel for the respondents.  The petitioner- Fateh Bahadur Singh was appointed as Godown Keeper on 1.3.1984 in M/s. Hind Roadways, Transport Nagar, Kanpur.  The respondent-company - M/s. Hind Roadways has its branches all over India and employees are transferred from one Branch to another.

The petitioner was transferred vide order dated 1.1.1994 from Kanpur to Bombay.  Instead of joining at his transferred place of posting, he raised an industrial dispute before the Regional Conciliation Officer, Kanpur, inter alia, alleging that the employers are not providing him work from the aforesaid date, i.e. 1.1.1994 which amounts to termination. The application was registered as C.B. case no. 661/95.

On Conciliation proceedings having failed, as the parties could not arrive to a amicable settlement, the following matter of dispute was referred to by the Conciliation Officer to Labour Court (4), U.P. Kanpur where it was registered as Adjudication Case No. 259/96 :-

"  D;kSa lsok;kstdksa Onkjk Jfed Jh Qrsgcgknqj flag iq= Jh txUukFk xksnkmu dhij dks fnukad 1&1&94 ls  LFkkkukUrj.k ds ckn dk;Z lsa I`kFkd / oafpr fd;k tkuk mfpr ,oa oS/kkfud gS ?  ;fn ugha rks lacaf/kr Jfed dks D;k fgr ykHk/ {kfriwfrZ ikus dk vf/kdkjh gS ?  fdl frfFk ,oa vU; fdl fooj.k ds lkFk ?

On receipts of summons,  the parties filed their respective written statements.  Apart from raising preliminary objection to the effect that the dispute had been raised at a belated stage and the reference was bad, the employers took a stand before the Labour Court that in fact, the workman himself was absent from work and had not reported for duty at his transferred place of posting in spite of several letters and even publication of notice in the newspapers. It was also submitted that the applicant did not even care to give reply of the letters sent by the employers calling upon him to report for duty at Bombay office vide order dated 30.12.1993 and also after being relieved from Kanpur office consequent to the order of transfer.  An offer was made by the employers in their written statement before the Labour Court that the workman concerned may still join at his transferred place of posting at Bombay office if he so desires and that his services have not been terminated by the employers.  The workman, in his written statement, did not deny that he was transferred to Bombay office and he was reluctant to join there in spite of charge sheet dated 30.5.1994 issued to him vide notice dated 8.7.1996 published in the newspaper- Amar Ujala asking him to show cause regarding his unauthorised absence from duty.  Sri Pradeep Kumar Dalmiya who appeared in evidence on behalf of the employers also gave evidence regarding gainful employment of the petitioner. It was alleged that the petitioner was carrying on his business of running a tea shop as well as sale of tea leaves.  Photographs to prove this fact were also produced before the Labour Court.  On the other hand, the petitioner pleaded before the Labour Court that though he was transferred to Bombay but had not been given  travelling allowance of Rs.2500/- which he had demanded but was paid only Rs.1000/- advance instead.  

The Labour Court by the impugned award has recorded a finding of fact that the petitioner had given his consent to go on transfer to Bombay vide Annexure 18 filed and which was proved by the employer himself.  This document was exhibited as Annexure 18 to the writ petition.

It is thus, undisputed fact that the petitioner was transferred to Bombay vide order dated 30.12.1993 and that he had given his consent/ It is also undisputed that pursuant to order of transfer, aforesaid, he had been relieved from Kanpur office vide letter dated 1.1.1994 which he refused to accept.  This letter was thereafter sent to him by registered post as per exhibit E-10.  There is nothing on record to establish that the services of the petitioner were terminated by any order dated 1.1.1994.  The Labour Court has given a finding of fact on the basis of notice published in the newspaper, exhibit W-13 filed by the workman that it is established fact that the employees of the establishment were agitating against the transfer of the petitioner and the employers had tried to settle the dispute.

The question for consideration before the Labour Court in the aforesaid circumstances was whether the respondent workman had himself not joined his transferred place of posting or that his services had been terminated by the employer. It has been held by the Labour Court that if the transfer of the petitioner was illegal and against the rules and in violation of conditions of service, as alleged by him, the burden of proof was on him to discharge that the employers had no right or authority to transfer him.  Merely because he was not paid the travelling allowance, as demanded by him, the order of transfer cannot be said to be illegal, more particularly when he was paid a sum of Rs.1000/- as advance, which was accepted by him and he had given his consent for the transfer.  Thus, even if there was no term and condition of transfer in service, he could not have refused to go on transfer once having given his consent and after accepting the advance money in this regard. The Labour Court further held that it was apparent from the record that the services of the employees of the respondent-company are transferable from one branch to another and over the years this practice has become a condition of service and that in his cross examination,  before the Labour Court, the workman had candidly accepted this fact that he had been served with order of transfer and that he was not opposed to his transfer to Bombay and  was still willing to go there.  The relevant portion of the discussion in the award is as under :-

                " oknh usa ftjg esa LFkkukUrj.k vkns'k dk feyuk Lohdkj fd;k gS rFkk dgk fd  mlusa cEcbZ tkus dk dHkh fojks/k ugha fd;k rFkk vkt Hkh og ogkW  tkus dks rS;kj gS ! mlusa Je foHkkx ls tks f'kdk;r dh Fkh mldk vk'k; tkus ds fy;s iSlk u fn;k tkuk Fkk ! blls LiLV gS fd mls LFkkukUrj.k ds vkSfpR; ,oa oS/kkfudrk ds lEcU/k esa dksbZ vkifRr ugha Fkh  !"

 The Labour Court also held that the petitioner-workman was himself opposed to transfer and he along with other employees had agitated the matter for cancellation of transfer order and did not obey the order of transfer despite receipt of  advance and publication of notice in the newspaper after having been relieved from Kanpur office by order dated 1.1.1994.  The Labour Court lastly held that once the petitioner was transferred and relieved from Kanpur office, the jurisdiction for all practical purposes for raising the dispute was at Bombay and not at Kanpur;               that the petitioner is gainfully employed which is proved from exhibits 1 and 2 and all the aforesaid actions on the part of the petitioner-workman clearly establish that there was no termination by any overact of the employer rather petitioner himself had abandoned his job as he does not have any interest to continue in service after starting his own business. Lastly, the Labour Court has held that willful disobedience of the order of transfer makes his intention clear that he was not interested to serve.  On the contrary, the employers had, in their evidence adduced before the Labour Court, unequivocally offered to take the employee in employment, if he was still willing to join.

I have considered the rival submissions of learned counsel for the parties and have also perused the record.  I am of the view that in case where transfer is not a condition of service but the employees are transferred by the employer as a matter of precedent, it becomes condition of service.  Even where there is no condition of transfer and the employee gives his consent and accepted to go on transfer, the consent would become binding on him and he cannot retract from it later on.

In the instant case, the workman had not only given his consent but even before the Labour  Court he took the stand that he was not opposed to transfer.  He defended his action only on the ground that he was not paid the travelling allowance of Rs.2500/- as demanded by him.  This was unreasonable.  An employer is required to pay a reasonable amount of travelling allowance but is not bound to pay the amount, as demanded by the workman.  The employer  paid a sum of Rs.1000/- towards travelling allowance which had been accepted by the workman and as such, the grievance of the petitioner for not joining the transferred place of posting was unjustified.  The Apex court as well as various High Courts, in catena of decisions have held that if a workman does not join at the transferred place of posting, it is open to the employer to initiate departmental proceedings by holding enquiry and ever the services of the employee concerned can be terminated.


  In the instant case, charge sheet was served on the petitioner but the employer, as stated in the written statement, took a sympathetic view and did not terminate his services. The petitioner-workman has to blame himself for not joining the transferred place of posting despite the sympathetic attitude of the employers.  His not joining service has been treated as abandonment of duty and there is no illegality or infirmity in the finding of fact recorded by the Labour Court on appraisal of evidence led by the parties before it.  It was always open to the employers to either proceed with the enquiry or to terminate the services of the employee even without holding any enquiry against the erring workman as he was reluctant to obey the order of transfer and is not interested in service. It is said that one can take the horse to the water but cannot make him to drink. After the order of transfer was passed the jurisdiction to challenge the order was before the labour court at Bombay and not at Kanpur as has been held by this court in  General Manager, N.E. Railway Gorakhpur and two others Vs. Jamait Ram Khatnani and two othrs -1975 (31) FLR.-246 that :-

            " Once an employee is transferred and posted to a particular place acceptance of the transfer order by that employee is immaterial.  Even though he may not join his duties or physically may not go to the new place of posting he will continue to be posted there in the eye of law.  His place of posting cannot be deemed to have changed merely because he disobeys the transfer order. "

For the reasons stated above, it is not a fit case for interference in the extraordinary writ jurisdiction under Article 226 of the Constitution of India.  

In the result, the writ petition fails and is dismissed without any order as to costs.




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