A.P. Sen, J.
1. By this application under Articles 226 and 227 of the Constitutions, the petitioners Shaw Wallace & Co., Ltd., seek the grant of certiorari for quashing as award dated 9 July 1968 of the Central Government Industrial Tribunal cum-Labor Court, Jabalpur (hereinafter referred to as the ' industrial tribunal'). and also apply for a direction in the nature of mandamus for restraining the implication of the same, in the manner threatened or in any other manner whatever.
2. Under Section 10(1)(d) of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government referred to the industrial tribunal, the following dispute between the employer in relation to Shaw Wallace & Co., Ltd., and their workmen, for its adjudication:
Whether the action of the management Of Shaw Wallace & Co., Ltd., Post Office Parasia, District Chhindwara (Madhya Pradesh) in stopping from work Sarfaraz Khan, son of Ramzan, pump khalasi, Wallace Pit, Chhindwara (Madhya Pradesh) with effect from 28 September 1967, is justified? If not, to what relief is the workman entitled?
[vide, Ministry of Labour, Employment and Rehabilitation (Department of Labour and Employment) Notification No. 5/88-67 IR, II, dated 25 January, 1968 ]
3. The facts leading to this reference were these. The Panch Valley Coal Company, Ltd., of which Shaw Wallace & Co., Ltd., are the managing agents, by a notice of charge dated 99 August 1967, purporting to be under Section 9A of the Industrial Disputes Act, 1947. directed that with effect from 19 September 1967, the conditions of service of one Sarfaraz khan a pump khalsi under category III employed in incline No. 6 of its Chandamatta Colliery, shall stand charged those of a general mazdoor in category I. It appears that the said Sarfaraz Khan had been in the employment of the colliery for over thirty years, and had been in the category of a pump khalasi for nearly 28 years, at the time of his change. The notice of change was in these terms:
Registered Office No. 4, Bankshall Street, Calcutta-1.
No. 8/1/D/67/1845. Chandametta Colliery,
P. 0. Parasia (Chhindwara,
From: Notice of charge of service conditions propesed by an employer.
Name of employer: Panch Valley Coal Company, Ltd., 4. Bankshall Street, Calcutta-1.
Address: Chandametta Colliery, P.0. Parasia, Dist. Chhindwara, Madhya Pradesh.
Dated 29 August 1967.
In accordance with Section 9A of the Industrial Disputes Act, we hereby give notice to all concerned that it is our intention to effect the change in the annexure, with effect from 19 September 1967, is the conditions of service applicable to workmen in respect of the matters specified is Sch. IV to the said Act.
Manager, Chandametta Colliery,
P. 0. Parasia, Dist. Chhindwara, M.P.
Due to stoppage of No. 6 lncline, Chandametta Colliery, certain categories of jobs have become surplus. As such, following adjustments are made in the nature of your Job:
(1) Md. Hafiz, explosive carrier, category II to general mazdoor, category I.
(2) Sarfraz, pump Khalasi, category III to general mazdoor, category I.
4. According to the management, the workman accepted this change and from its attendance and wages register (Ex. E/2) maintained at the colliery, showed that he had worked as a general mazdoor in category I till 25 September 1967, whereafter he did not report to duty. Consequently, according to the management, the workman had lost his lien far service under Clause 19 of the standing orders, which reads:
If a workman absenting himself without giving any information to the manager for more than thirty days his services will automatically stand terminated.
and in terms thereof, notice of termination of his service dated 27 October 1967 was served by the management on him to the following effect:
Yon have been absent from work with effect from 25 September 1967 without prior permission or leave and as such have lost lien on your employment under Clause 19 of the standing orders is force.
Apparently, the workman had protested against the Illegal change of his conditions of service by his letter dated 3 September 1967 (Ex W/2). In the proceedings before the Industrial tribunal, he also denied that he had accepted the change or had worked as a general mazdoor. The tribunal, has, however, found this issue against him, and held that he did actually work as a general mazdoor from 19 to 23 September 1967 but that the mere fact of his having worked as such would not disentitle him to his claim for a reinstatement to his old designation and category. The finding of the tribunal on this issue that the workman had worked as a general mazdoor for six days has not been challenged before us.
6. Amongst the other contentions raised before the tribunal, the management had both questioned the competence of the reference itself and also the jurisdiction of the tribunal to entertain or deal with it, in these words:
(1) That in the said order of reference of the Government of India, Shaw Wallace Co., Ltd., have been made party to the dispute. As Shaw Wallace & Co.; Ltd., are not the employers of workman concerned, the said reference of the Government of India is bad in law.
(2) That Sarfaraz Khan was working as pump khalasi at Chandametta Colliery whose employers are Panch Valley Coal Company, Ltd. Due to closing the working of No. 6. incline of this mine, services of Sarfaraz Khan as pump khalasi became surplus and as such his designation was changed belting his Job of pump khalasi and the notice as required under Section 9A of the Industrial Disputes Act was served on him.
The learned Counsel appearing for the petitioner has, however, completely abandoned this stand before as and proceeded on the basis that Shaw Wallace & Co., Ltd.; being the managing agents of the Panch Valley Coal Company, Ltd., would be the employer in relation to the workman in question, although he was in fact, employed by the managed company, i.e., the Panch Valley Coal Company, Ltd., which owned the Chandametta Colliery together with its incline No. 6 where he was employed. The learned Counsel states that in view of the definition of the word 'employer' as contained in Section 2(g) of the Act, which includes an 'agent,' the managing agents would come within the purview of that term. In view of that concession, we would refrain from expressing any view on the question. Safficse to say that the question is not free from doubt. At any rate, the definition of the term 'employer ' nowhere includes an agent, much less the managing agents.
6. Admittedly the notice of change cannot be supported in terms of Section 9A of the Act, which reads:
9A. Notice of change.--No employer, who propose to effect any change in the conditions of service applicable to any workman In respect of any matter specified in the Fourth Schedule, shall effect such change,--
(a) without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected, * * *
The section speaks of a notice of change 'in respect of any matter specified in Sch. IV.' Now, the transfer of any employee who is rendered surplus upon closure of a particular department or branoh of business to another department or branch of business, and/or the consequential charge of his conditions of service, are not matters specified in sch. IV. The learned Counsel, frankly concede that the notice of change in the circumstances of the case, does not fall within the purview of any of the conditions of service enumerated thereunder.
7. The learned Counsel, however, urged that Sarfaraz Khan had been rendered surplus, upon the closure of incline No. 6 which was a mine by itself, that the management could, therefore, have dispensed with his services and paid him retrenchment compensation, but the management had, out of its magnanimity, posted the workman to work in another capacity, keeping in view his long tenure of service with the company, We are not impressed with this argument for more reason than one. If Sarfaraz Khan had really become surplus, the management would have retrenched him under Section 25F upon a closure of the incline No. 6 which is said to be a mine by itself. In that event, all that the workman could be entitled to would be retrenchment compensation under Section 25FFF. The considerations, however, do not apply for the following reasons. The workman in question had, unequivocally, denied that incline No. 8 of the chandametti Colliery had been closed. The parties Joined issue on this aspect. Sarfaraz Khan had entered the witness-box and deposed that there was no closure of incline No. 6 and that he had been relieved by another workman as a pump khalasi in that incline and was himself asked to work in a lower capacity instead. The management has not cared to lead any evidence in rebuttal. It would thus appear that the workman Sarfaraz Khan was not discharged from service on a closure of incline No. 6, but was transferred to a post in another capacity, viz., of general mazdoor under category I, which altered his conditions of service to his detriment. Admittedly, a pump khalasi under category III draws a higher pay and has greater responsibilities than a general mazdoor under category I, and the transfer of the workman from that capacity to the other resulted in his reduction in a status and emoluments. Besides, the tribunal has also found as a fact, relying on the unrebutted testimony of Sarfaraz Khan that there was no actual closure of incline No. 6 as alleged, but that he was in reality relieved of his duties in that incline by another workman who had taken over as a pump khalasi. The action of the management, therefore, cannot be supported on the ground of the workman having been rendered surplus due to a closure of incline No. 6 as alleged.
8. The Industrial tribunal has while dealing with this aspect, rightly held that the workman had been wrongly required to work as a general mazdoor under category I, and he was thus Justified in refusing to comply with the order of the management transferring him to that capacity, and also that he was right in registering a protest against such an unwarranted change of his service conditions. On a construction of Clause 29 of the standing orders, it held that the management having no right to degrade the workman in question as a general mazdoor under category I, the refusal of Sarfaraz Khan to work as such would not amount to absence from duty and, therefore, his absence with effect from 26 September 1967 would not attract the provisions of Clause 29 or the standing orders and consequently, his services would not stand terminated after the expiry of a period of thirty days, therefrom, stating:
This clause provides that if a workman absents himself without giving any information to the manager for more than thirty days his service will automatically stand terminated. There is no question of voluntary absence on the part of Sarfaraz Khan. He had protested that he could not be required to work as general mazdoor. The order requiring him to work as general mazdoor was not a reasonable order and Sarfaraz Khan could refuse to comply with it. The two witnesses produced by the management, namely, N.S. Verma, attendance clerk, and Ram Charan general overman, merely stated that Sarfaraz Khan did not turn up for work after 23 September 1967. That of course is admitted. The question, however, is whether this absence will attract Clause 18 of the standing orders, even though he was not bound to work as a general mazdoor. His statement on oath that he had been approaching the manager and the labour officer appears to be trustworthy and believable by the circumstances of the case. Having been so long in the service of the colliery, he could not afford to absent without protest and making representations to the proper authorities. As soon as he got letter Ex. W. 4, dated 27 October 1967 intimating that his lien has been terminated he protested by letter dated 9 November 1987. The management having had no right to degrade him to category I and require him to work as general mazdoor, cannot avail of the provisions of Clause 19 of the standing orders which is not attracted at all.
In that view, the industrial tribunal has, by its impugned award, directed reinstatement of Sarfaraz Khan as a pump khalasi in the chandametta colliery with effect from 26 September 1937.
9. In Parasharsingh v. Hindustan Manganese Mines, Ltd.. and Ors. 1963 M.P. L.J. 846 at 850 one of us (Singh, J.), while dealing with a contract of service, held that repudiation by the master of the essential obligations laid on him by the contract of service could amount to a 'wrongful dismissal' of his servant, stating:
The expression 'wrongful dismissal' in itself includes a repudiation by the master of the essential obligation laid on him by the contract. As observed by McCardie, J.:
Dismissal may be effected by conduct as well as words. A man may dismiss his servant if he refuses by word or conduct to allow the servant to fulfil his contract or employment. The refusal must of course be substantial in the sense that it is not a mere repudiation of some minor rights of the servant or of non-vital provisions of the contract of employment. The question is ever one of degree. If the conduct of the employer amounts to a basic refusal to continue the servant on the agreed terms of the employment, then there is at once a wrongful dismissal and repudiation of the contract. I see no distinction in such a case as the present between repudiation by the defendants of their contractual obligations and 'a wrongful dismissal' in the ordinary sense of that purpose.
In re Rubel Bronze Metal Company, Ltd. and Vos.
For the foregoing reasons, we would unhesitatingly hold that the employment of the workman in question had been wrongfully brought to an abrupt end by the unwarranted refusal of the management to give him work of the kind to which he was lawfully entitled, under the terms and conditions of his service.
10. It is well-settled that the employer is in the best position to judge how to distribute his employees between different jobs, departments or branches. Hence he is en-titled to decide on a consideration of the necessities or exigencies of his business whether the transfer of an employee should be made from one particular Job, department or branch to another. [See Malhotra's Law of Industrial Disputes, p. 853.] As the learned author rightly observes;
The question of such transfers is an internal arrangement of the management. The management, therefore, is in its best position to judge how to distribute its manpower and whether a particular transfer can be avoided or not. It is not possible for industrial tribunal to have before them all the materials which are releavant for this purpose and even if this can be made available, the tribunal is are by no means suited for making decisions in matters of this nature. The tribunals, therefore, should be very careful before they interfere with the orders of employers made in the discharge of their managerial junction.
Nevertheless, the transfer of a workman from one department to another or from one Job to another cannot be made if such transfer tends to operate to the prejudice or detriment of the workman concerned, i.e., the transfer most not occasion to a workman's economic loss in wages, bonus or other monetary benefits to his disadvantage. It is true that the tribunal has not found the allegations of mala fide to be established, not has it upheld the assertion of the workman that his transfer was with an ulterior object to punish him for his trade-union activities. Although the tribunal has found that the transfer was not activated with any mala fide intention, the order of termination has, however, rightly been set aside because the tribunal correctly finds that the management had no right to degrade him as a general mazdoor in category I with a lower status and lesser pecuniary benefits.
11. In Buckingham and Carnatic Company, Ltd. v. Venkatayya and Anr. 1983-II L.L.J. 638, their lordships of the Supreme Court, while interpreting a standing order framed by the Buckingham and Carnatio Company, Ltd., had stated:
It is true that under common law an inference that an employee had abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an Intention cannot be attributed to an employee without adequate evidence in that behalf.
But, where the parties agree upon the terms and conditions of service and they are included in certain standing orders framed by the management, the doctrine of common law or considerations of equity would not be relevant. It would then be a matter of construction of the relevant provision itself, as their lordships in that case have themselves indicated.
12. The decision in Buckingham and Carnatic Company, Ltd. 1963-II L.L J. 638 (vide supra), however, is not of much assistance to us because the terms of the standing order with which their lordships were concerned, were entirely different. The first part of that standing order led to the inevitable conclusion that if any employee had remained absent for eight consecutive days without leave, he would be deemed to have terminated his contract of service and thus relinquished or abandoned his employment. The second part, however, provided that the employee should be afforded an opportunity to furnish an explanation as to his absence, and if his explanation was to be satisfactory to the management, his absence from duty was to be converted into absence on leave without pay or deafness allowance, which was in substance in the nature of a proviso to the first part. Clause 10 of the standing order of the Panch Valley Coal Company, Ltd., with which we have to deal with in this case, does not postulate that an opportunity would be given to the employee to offer an explanation. The adjudication of the industrial tribunal is that the transfer of the workman, was itself illegal, since it resulted in a change of his service conditions to his disadvantage. We agree with the tribunal that in the circumstances his refusal to work in an inferior post was fully justified, and therefore, his absence from duty was not such absence as was contemplated by the terms of Clause 19 of the standing orders to bring out a termination of his service.
13. In Canara Banking Corporation Ltd. v. U. Vittal 1993-II L.L.J. 354, their lordships were dealing with a bank employee not belonging to the subordinate staff, who upon his transfer from one station to another, complained that there was a contravention of the Sastri award in as much as he was transferred from his language area to outside that area without his consent. Although their lordships stated that it was for the bank to decide how to distribute its manpower in its best interests, their observations in that behalf must be read in the context of the decision they actually reached in that case. The Sastri award had made a distinction between the workmen belonging to the subordinate staff and others. While there was an absolute prohibition against the transfer of the members of the subordinate staff from their language area, there was no such prohibition with regard to the other workmen. As regards these other workmen. It was laid down by their lordships that 'as far as possible, they were not to be transferred outside their language area ' but left the matter to the discretion of the bank. In dealing with the words ' as far as possible 'appearing in the award, as regards such other workmen, K.C. Das Gupta, J., speaking for the Court stated:
such transfers have to be avoided if they can be avoided without surrounding the interests of the bank.
After laying down that it was for the bank to decide how to distribute its employees falling in that category between its different branches in its best interest, his lordships, however, made one exception to that general rule, namely, that where if there was reason to believe that the management had resorted to such transfer mala fide by way of victimization, unfair labour practice or some other ulterior motive not connected with the business interests of the bank, the question could become the subject of an industrial adjudication. As already held, the industrial tribunal has In the present case, rejected the workman's challenge to the bona fides of the management and has also held that there is no evidence whatever to support his allegations of unfair labour practice or victimization. Its order of reinstatement eventually proceeds on the hypothesis that the management had no right to make a transfer which would operate to the prejudices or detriment of the workman in question, and the decision so reached by the industrial tribunal accords with our view.
14. The result is that the petition falls and is dismissed with costs. Hearing fee Rs. 60, if certified.