'Reinstatement' Of Workman Can Be Done Only To Original Place Of Employment, Transfer Not Legally Sustainable: Madras High Court
The Madras High Court has reiterated the principle that a reinstatement order won't be valid if the employee is not reinstated back to his original place of employment."Reinstating the workman by transferring him to some other place, other than his original place of employment, is an illegal action," said Justice M.S. Ramesh.The observation was made while disposing off a plea seeking last...
The Madras High Court has reiterated the principle that a reinstatement order won't be valid if the employee is not reinstated back to his original place of employment.
"Reinstating the workman by transferring him to some other place, other than his original place of employment, is an illegal action," said Justice M.S. Ramesh.
The observation was made while disposing off a plea seeking last drawn wages under Section 17B of the Industrial Disputes Act, 1947. The provision refers to Payment of full wages to workman pending proceedings in higher courts.
The workman, Patil Veershetty, was asked to report back to work nearly two months after rejection of the Approval Petition. However, instead of going back to his previous place of employment, i.e., Hosur, the workman was required by the management to shift to Puducherry.
The reason for such a change was in view of the restriction of shifts caused by the COVID pandemic, said the Management.
The workman refused to comply with the said order, owing to the change in place of employment.
The management submitted before the Court that the workman was ineligible for last drawn wages since he has not reported at his specified work place at Puducherry factory to avail Section 17B wages.
Responding to this, the counsel for the workman argued that since his last place of work was at Hosur, the new reinstatement order 'cannot be considered as an order of reinstatement at all'.
After examining the arguments of both sides, the court placed its reliance on Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.), & Ors. (2013) 10 SCC 324 as well as P.D Sharma v. State Bank of India AIR 1968 SC 985 to clarify the position on reinstatement of employees.
According to the Court, these cases have invariably laid down that when an application under Section 33(2)(b) of ID Act for approval of dismissal of the workman is rejected, then the action taken by the employer becomes ab-initio-void. The employee will continue in service and his conditions of service will also continue without any break as if the order in question had not been made at all.
The court went on to note in its order another aspect of the reinstatement, iterated by the Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Ors, which states that,
"the very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer."
The judgement in Lakshmi Mills, Ltd., Coimbatore v. Labour Court, Coimbatore & Anr. AIR 1962 Mad 335, has also been referred in the order to establish that the management never had the discretion to reinstate the employee to a workplace other than his previous place of employment, once the dismissal order has been rejected. In fact, such a move would be quite an illegal action and contrary to the ratio laid down in the precedents mentioned by the court.
On Monday, Madras High Court observed in its order that the question of employee not reporting to Puducherry for work does not even arise.
"In this background, the present decision of the Management to reinstate the workman by transferring him from Hosur to Puducherry through the Transfer Order dated 15.07.2020, cannot be deemed to be a 'reinstatement order at all'."
The court concluded that the workman has not been gainfully employed elsewhere since the rejection of dismissal order and hence, it was apt to direct the management to pay his last drawn wages under Section 17B, commencing from the date of filing the present writ petition, till the final decision in the main writ petition.
Case Title: The Management, Micro Labs Limited v. Patil Veershetty & Anr.
Case No: WMP.No.3730 of 2021 in W.P.No.10833 of 2020
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