M/S MITRA S.P. (P) LTD. & ANR. versus DHIREN KUMAR on 4 August 2022

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court in Writ Appeal Nos.615/2021 and 617/2017 in respective Writ Petition Nos. 2955/2021 andB5271/2009, the Management has preferred the present appeals.

2. The respondent – workman was appointed as a JuniorSupervisor with the company’s branch at Visakhapatnam. While he wasworking at Visakhapatnam, he was transferred to Jharsuguda in Stateof Orissa vide order dated 20.07.1997. The workman instead of joiningCat the place of transfer submitted a representation to the Directorrequesting for transfer to Mangalore in Karnataka State. The same wasnot acceded to. Challenging the said order of transfer, the workmanfiled O.S. No. 1602/1997. The Civil Court did not grant any relief asprayed by the workman. Thereafter, the workman was relieved by theDbranch office at Visakhapatnam on 14.08.1997. Though the said relievingorder was received by the workman, he neither handed over the chargeat Visakhapatnam nor did he report for duty at Jharsuguda office.Therefore, the management treated him as deemed to have been relievedw.e.f. 14.08.1997 from Visakhapatnam office. Thereafter, themanagement issued a show cause notice dated 24.10.1997 to complyEwith the directions of transfer or else disciplinary action would be initiatedagainst the workman. Thereafter, the workman was placed undersuspension. Domestic enquiry was ordered. The enquiry proceeded ex-parte. Subsequently, the management dismissed the workman fromservice w.e.f. 15.09.1998. Aggrieved by the dismissal order, the workmanfiled I.D. No. 219/1998 before the Labour Court. The Labour CourtFvide judgment and award dated 23.10.2000 modified the order of dismissalwith stoppage of one increment with cumulative effect and ordered forreinstatement of the workman into service, with a direction to theworkman to join at the place of his transfer i.e., at Jharsuguda within aperiod of one month from the date of receipt of the order, failing which,Ghe shall not be entitled to the reinstatement. The Labour Court alsofurther directed that the management shall consider the request of theworkman for retransfer to Visakhapatnam or Mangalore after theworkman joins at his new station and that if the workman fails to reportfor duty at Jharsuguda within one month he shall not be entitled to backHwages or continuity of service. The management filed W.P. No. 2955/

2001 before the learned Single Judge of the High Court. On 22.02.2001while admitting the writ petition, the learned Single Judge granted interimsuspension of the order of the Labour Court. Subsequently, learned SingleJudge modified the said interim order granting interim stay subject to thecondition of the management complying with Section 17-B of theIndustrial Disputes Act.

2.1 It is the case on behalf of the workman that thereafter hereported at Jharsuguda but he was not permitted to join on the groundthat no instructions were received from the head office. Therefore, theworkman filed an application under Section 33(C)(2) of the IndustrialDisputes Act, 1947 (for short “ID Act”) before the Labour Court forrecovery of wages from 01.01.1998 to 30.04.2005. The said applicationunder Section 33(C)(2) of the ID Act came to be dismissed by the LabourCourt on the ground that the workman did not go to Jharsuguda to joinduty. Aggrieved by the same, the workman filed W.P. No. 5271/2009.Both the writ petitions, one, filed by the management against the judgmentand award passed by the Labour Court and another, filed by the workmanchallenging the order passed by the Labour Court dismissing theapplication under Section 33(C)(2) were heard together. Before thelearned Single Judge for the first time the management raised the issuewith respect to territorial jurisdiction of the Labour Court. The learnedSingle Judge dismissed the writ petition preferred by the managementby observing that the management shall not be permitted to raise theissue with respect to territorial jurisdiction for the first time before theHigh Court. At the same time, without any further discussion on meritson the order passed by the Labour Court rejecting the application underSection 33(C)(2) of the ID Act, the learned Single Judge allowed WritPetition No. 5271/2009 preferred by the workman and set aside theorder of the Labour Court rejecting the application under Section 33(C)(2)of the ID Act – M.P. No. 43/2005 dated 16.12.2008. The learned SingleJudge observed and held that the workman is entitled for all the benefitsin pursuance of the order of the Tribunal in I.D. No. 219 of 1998 with allconsequential benefits.

2.2 Feeling aggrieved and dissatisfied with the common judgmentand order passed by the learned Single Judge of the High Court in WritPetition Nos. 2955/2001 and 5271/2009, the management preferred writappeals before the Division Bench of the High Court. By the commonimpugned judgment and order, the Division Bench of the High Court has A

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Adismissed the appeals as not maintainable by observing and holding thatthe writ petitions were under Article 227 of the Constitution of India andtherefore, the writ appeals before the Division Bench of the High Courtwould not be maintainable. Hence, the present appeals.

3. We have heard Mr. Siddhartha Dave, learned Senior Advocate,Bappearing on behalf of the appellant(s) and Mr. K. Parameshwar, learnedAdvocate, appearing on behalf of the respondent.

4. From the judgment and order passed by the learned SingleJudge, it appears that what was challenged before the learned SingleJudge was the order passed by the Labour Court rejecting the applicationCunder Section 33(C)(2) of the Industrial Disputes Act, 1947 preferredby the workman as well as the original award passed by the LabourCourt. Learned Single Judge passed the common judgment and orderdismissing the writ petition preferred by the Management in which theManagement challenged the original judgment and award passed by theLabour Court and allowed the writ petition preferred by the workmanDrejecting his Section 33(C)(2) application.

4.1 So far as challenge to the award passed by the Labour Courtby the Management is concerned, from the judgment and order passedby the learned Single Judge, it appears that there was only one submissionmade with respect to territorial jurisdiction and the learned Single JudgeEnegatived the same. Therefore, so far as the order passed by the learnedSingle Judge dismissing the writ petition preferred by the Managementagainst the original judgment and award by the Labour Court is concerned,the same does not warrant any interference.

4.2 However, at the same time, while allowing the writ petitionFpreferred by the workman challenging the dismissal of application underSection 33(C)(2), from the order passed by the learned Single Judge itappears that there is no discussion at all on the order passed by theLabour Court rejecting the 33(C)(2) application and without anydiscussion and/or recording any specific findings on the merits of theGorder passed by the Labour Court rejecting the 33(C)(2) application, thewrit petition preferred by the workman has been allowed. The learnedSingle Judge ought to have considered the writ petition preferred by theworkman on merits and ought to have given some findings on the orderpassed by the Labour Court rejecting the 33(C)(2) application.

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5. Under the circumstances, the impugned judgment and orderpassed by the learned Single insofar as allowing the Writ Petition No.5271/2009 preferred by the workman is concerned, the same is herebyquashed and set aside. The matter is remitted back to the learned SingleJudge to decide Writ Petition No. 5271/2009 afresh in accordance withlaw and on its own merits and within a period of six months from today.Civil Appeals arising out of the judgment and order passed by the HighCourt in Writ Petition No. 5271/2009 are accordingly allowed. CivilAppeals arising out of Writ Petition No. 2955/2001 stand dismissed. Nocosts.

The Registry is directed to communicate this order to the Registryof the High Court forthwith. All concerned are directed to cooperatethe learned Single Judge in early disposal of the writ petition and withinthe time stipulated hereinabove. If the High Court is of the opinion thatany of the parties is not cooperating, it will be open for the High Court toproceed further with the hearing of the writ petition ex-parte by recordingreasons.

The present appeals stand disposed of accordingly. No costs.

Bibhuti Bhushan Bose

Appeals disposed of.

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