Naresh Kumr v. Scholastic India Pvt Ltd

order dated

12.7.1991 passed by the appellants/employer in view of the judgments of the Supreme Court in the cases of Viveka Nand Sethi (supra) and Sakattar Singh (supra) taken with the specific fact that even the appellantno.1is a public sector bank as was in the cases of Viveka Nand Sethi (supra) and Sakattar Singh (supra)."

¶30In Rekha Chandra (supra) as well, a ld. Single Judge of this Court held as under: "11. Finally, I must add at the cost of repetition that transfer is an incident of service. Orders of transfer are ordinarily not interfered by the court save in grave exceptions or in ex facie violations of the rules or policies of an organization. If courts would start interfering in transfer orders, no organization will be able to function effectively. In the facts of the present case, I do not find any merit in any of the grounds which are urged on behalf of the petitioner. The respondent no.1/employer wanted to act reasonably by putting the transfer order in effect after a period of five years from posting in New Delhi but as the first paragraph of this judgment shows that the petitioner wants to keep on delaying her transfer from New Delhi, and quite clearly therefore the unacceptable agenda of the petitioner cannot be sustained by this court."

¶31Following the said judgments, it is clear that the freedom of the employer to transfer the Workman ought not to be interfered with in every case. Recently, the Supreme Court in Caparo Engineering India Ltd. v. Ummed Singh Lodhi and Anr. (Civil Appeal No. 5829-5830 of 2021, decided on 26th October 2021) has held that it is not merely the transfer, but the consequence of the transfer which has to be seen by the Court. The Supreme Court held: "7.8. Now, so far as the submission on behalf of the appellant that so far as the transfer is concerned, it is part of the service conditions and therefore Section 9A shall not be applicable is concerned, the same has no substance. The question is not about the transfer only, the question is about the consequences of transfer. In the present case, the nature of work/service conditions would be changed and the consequences of transfer would result in the change of service conditions and the reduction of employees at Dewas factory, for which the Fourth Schedule and Section 9A shall be attracted."

¶32In the present case, the cross examination of the Petitioner clearly shows that there was no change in service conditions in spite of the transfer, and the transfer was only from Kapashera to Gurgaon. The said portion of the cross examination reads as under: "Inspite of issuing the transfer letter dated 03.12.2013, there was no decrease in my salary. The transfer letter also did not affect my designation."

¶33Under such circumstances, considering the scope of judicial review under Article 227 of the Constitution of India, this Court is of the opinion that there are no grounds calling interference.

¶34Accordingly, this Court does not find any merits in the petition and the same is dismissed. PRATHIBA M. SINGH JUDGE DECEMBER 16, 2021/dk/Ak

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 16th December, 2021 + NARESH KUMAR ..... Petitioner Through: Mr. Tathagat Mewara, Advocate. versus SCHOLASTIC INDIA PVT LTD ..... Respondent Through: Mr. Vishesh Issar, Advocate. (M:9810470557) CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral) 1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court. 2. The present petition has been filed challenging the impugned Award dated 23rd October, 2017, passed by the Presiding Officer, Labour Court XIX, Karkardooma Courts, Delhi in LIR No. 6050/2016, by which the claim of the Workman challenging the termination, in respect of his transfer from Delhi to Gurgaon, was dismissed by the Labour Court. 3. The brief background is that the Petitioner-Workman was appointed on the post of - Book Fair Assistant with the Respondent, which is a book publisher. He was appointed vide appointment letter dated 16th July 2004. On 18th September 2013, the Petitioner was suspended from duties, and on 19th September 2013, a show cause notice was issued against him, upon the allegation of misuse of company's funds. The Petitioner replied to the said show cause notice on 20th September 2013, categorically denying the charges against him. Thereafter, the Petitioner also filed a complaint before the Labour Department on 14th November 2013, post which the Labour Inspector is stated to have visited the premises of the Respondent. The Petitioner has averred in his writ petition that for this period of suspension, no suspension allowance was paid to him. On 19th November 2013, the Respondent withdrew the suspension of the Petitioner, as also the show cause notice. Vide letter dated 3rd December, 2013, however, the Petitioner was transferred from the Delhi office, located in Kapashera, to the Gurgaon office of the Respondent. Upon receiving the notice of transfer, the Petitioner sent a request letter to the Respondent for reconsideration of the said transfer, however the same was not considered. The Petitioner, then filed his statement of claim before the Conciliation Officer on 12th December 2013, which was then referred to the Labour Court vide the reference order dated 13th May, 2014. The following question was framed in the terms of reference: "Whether the transfer of Sh. Naresh Kumar S/o Late Sh. Salook Chand from Delhi to Gurgaon, by the management is illegal and/ or unjustified, if so to what relief is he entitled and what directions are necessary in this respect?" 4. Before the Labour Court, the Petitioner filed his statement of claim on 28th July 2014 and a written statement was filed by the Respondent on 3rd November 2014. After completion of pleadings, vide order dated 2nd January 2015, the following issues were framed by the Labour Court: "(i) Whether the claimant is a workman within its definition under Section 2(s) of the ID Act? OPW (ii) As per terms of reference (Whether the transfer of Sh. Naresh Kumar S/o Late Sh. Salook Chand from Delhi to Gurgaon by the management, is illegal and/or unjustified, if so to what relief is he entitled and what directions are necessary in this respect?) (iii) Relief" 5. Evidence was thereafter led in the matter and the matter was fixed for final hearing on 28th July 2017. Arguments were heard before the Labour Court on 6th October 2017. Vide the impugned order dated 23rd October 2017, the claim of the Workman was rejected by the Labour Court in the following terms: "9. ….The workman did not put on file any agreement between him and the management showing that after his promotion he could not have been transferred out of Delhi. In case titled as Pearlite Liners Pvt. Ltd. v. Manorma Sirsl 2004 AIR (SC) 1373, it was held by the apex court that in absence of term prohibiting transfer of the employee, prima facie the transfer order cannot be called in question. The plaintiff has not complied with the transfer order as she never r