Transfer as a pretext for termination without domestic inquiry constitutes illegal discharge, warranting reinstatement with back wages.

In brief

The question

1. Whether the services of the workwomen were illegally terminated or if they had absented themselves by failing to report to a transferred place of duty.

The court held

The court held that the workwomen were illegally terminated under the guise of transfer and set aside the Labour Court's award.

It also directed

The Court directed the respondent to reinstate the petitioners in Delhi with continuity of service and 50% back wages from the date of termination until reinstatement, to be complied with within four weeks.

01Facts

The petitioners, Seema and Pushpa Pal, were employed as permanent skilled hand embroidery workers with the respondent management since 2003 and 1997, respectively.

p. 2

They alleged that upon demanding statutory benefits (appointment letters, minimum wages, ESIC), the management illegally terminated their services on 12.06.2010.

p. 2

The management contended that the workers were not terminated but merely transferred from the Okhla (Delhi) unit to the Gurgaon unit, and their failure to report for duty amounted to abandonment.

p. 3, 4

The Labour Court dismissed the workwomen’s claims via an award dated 23.07.2018, leading to the present writ petitions.

pp. 1-2

02Issues

i.1. Whether the services of the workwomen were illegally terminated or if they had absented themselves by failing to report to a transferred place of duty.

p. 4 · ¶ 6

ii.2. Whether the management followed the principles of natural justice and its own service conditions before striking the petitioners’ names from the muster rolls.

p. 9 · ¶ 16

iii.3. Whether the workwomen are entitled to reinstatement and back wages.

p. 10 · ¶ 21

03Law Applied

Industrial Disputes Act, 1947, specifically regarding illegal termination and the requirement for domestic inquiries.

Certified Standing Orders have statutory force and override private contracts as per Bharatiya Kamgar Karmachari Mahasangh v. Jet Airways Ltd.

p. 7 · ¶ 14

Striking a name off the muster rolls constitutes termination as per Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherji.

p. 8 · ¶ 15

Termination for absence without an inquiry violates natural justice as per Uptron India Ltd. v. Shammi Bhan.

p. 9 · ¶ 16

Reinstatement with back wages is the normal rule in cases of wrongful termination as per Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya.

p. 11 · ¶ 21

Provisions in the judgment · 1

Industrial Disputes Act, 1947 Section 11-A

04Reasoning

The High Court found the management's defense of "transfer" to be a ruse for illegal termination, noting significant discrepancies between ESIC records and the appointment letters produced by the management.

p. 5, 6

The court observed that the management failed to prove service of the transfer letters and admitted that no proof of receipt existed for the dispatched letters.

p. 6 · ¶ 11

The court reasoned that since the workers were low-paid female employees, a transfer to a distant location without proving administrative exigency amounted to an unfair labour practice.

p. 7 · ¶ 13

The management witness admitted that the workers' names were struck off the muster rolls without issuing a charge-sheet or conducting a domestic inquiry.

p. 8 · ¶ 15-16

Applying Deepali Gundu Surwase, the court noted the management failed to prove the petitioners were gainfully employed elsewhere.

p. 12 · ¶ 22