JUGAL KISHORE CHONKSEY Vs. PRESIDING OFFICER LABOUR COURT

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India, is by the workman against the award of the Labour Court, Jabalpur, dated August 29, 1985, passed in case No. 33/83 IDR whereby after adjudication of the dispute, the Labour Court has dismissed the dispute.

(2.) SHRI R. K. Gupta, learned counsel for the petitioner submits that the Labour Court laboured in wrong premises. True, the appropriate Government at the first instance referred the dispute in relation to the termination of the petitioner's employment vide order dated April 13, 1983. Thereafter, it issued a corrigendum to it vide Annexure-B, dated August 1, 1993 whereby the appropriate Government amended the reference by substituting the words 'termination' to 'transfer'. The petitioner and respondent No. 2 filed their statements of claim. Learned Labour Court after recording of the evidence dismissed the reference on the ground that the industrial dispute so referred is not in relation to transfer of the petitioner, but that is not correct, the award so passed by the Labour Court deserves to be quashed and the case deserves to be sent back to the Labour Court for adjudication of the industrial dispute afresh in accordance with law.

(3.) SHRI Sanjay Agarwal, learned counsel for respondent No. 2, submitted that the corrigendum issued by the appropriate Government for substituting words termination to that of transfer is beyond the competence of the appropriate Government as the dispute referred was an individual dispute. Section 2-A of the Industrial Disputes Act, 1947 lays down that an individual workman can raise the industrial dispute in relation to discharge, dismissal, retrenchment or otherwise termination and not in relation to the disputes concerning conditions of service. The 'transfer' of a workman is the matter of concerning conditions of service. Therefore, the dispute could only have been raised by the Union and not by the petitioner. On merits it was submitted that after the order of transfer the petitioner did not join his duties at Bombay and left the employment. After about a year made an application (Ex. D-1) dated August 10, 1983 that because of his personal family circumstances he could not go to join duties. Since last one year he is facing economic problems, therefore, he be allowed to join his duties as he is willing to go to the place of his transfer. Then the petitioner sent another letter (Annexure D-2) repeating the same request and, therefore, the Labour Court in view of those 2 letters in its award has stated that in view of the fact that the petitioner, has expressed his willingness to join his duties at the place of his transfer, it will be proper to take the petitioner on duty if the first party desires so. However, in view of the term of reference which related originally to the termination, the Labour Court observed that it has no jurisdiction to issue any instructions to the employer, the respondent No. 2, hence, answered the reference accordingly. Learned counsel also submitted that when the Labour Court holds that it had no jurisdiction to direct the employer, in the absence of the term of reference it would not have dealt with the merits and could not have observed that as the workman has expressed his willingness it would be proper for the employer to take the petitioner on duty, if he desires so. Such an opinion expressed in law is totally ineffective and cannot in any sense bind the parties. Reliance was placed on a Division Bench decision of this Court in case of 1994 MPLJ P. 704. It is submitted that, by not complying the order of trustees the petitioner has abandoned his employment. Now to remit the case would be a futile exercise. Besides, the circumstances have changed. The proprietor of the Empire Theatre has died and because of the video and cable network throughout the country, most of the cinemas are closed. Therefore, in such circumstances, though the Labour Court has committed an error by not looking into the corrigendum but that will not make any difference.