Wanchoo, J. - (1.) This is an appeal on a certificate granted by the Punjab High Court. Sharda Singh (hereinafter called the respondent ) was in the service of the appellant-mills. On August 28, 1956, the respondent was transferred from the night shift to the day shift in accordance with para 9 of the Standing Orders governing the workmen in the appellant-mills. At that time an industrial dispute was pending between the appellant-mills and their workmen. The transfer was to take effect from August 30, 1956; but the respondent failed to report for work in the day shift and was marked absent. On September 1, 1956, he submitted an application to the General Manager to the effect that he had reported for duty on August 30, at 10-30 p.m. and had worked during the whole night, but had not been marked present. He had again gone to the mills on the night of August 31, but was not allowed to work on the ground that he had been transferred to the day shift. He complained that he had been dealt with arbitrarily in order to harass him. Though he said that he had no objection to carrying out the orders, he requested the manager to intervene and save him from the high handed action taken against him, adding that the mills would be responsible for his wages for the days he was not allowed to work.
(2.) On September 4, 1956, he made an application to the industrial tribunal, where the previous dispute was pending, under S. 33A of the Industrial Disputes Act, No. XIV of 1947, (hereinafter called the Act) and complained that he had been transferred without any rhyme or reason from one shift to another and that this amounted to alteration in the conditions of his service, which was prejudicial and detrimental to his interest. As this alteration was made against the provisions of S. 33 of the Act, he prayed for necessary relief from the tribunal under S. 33A. On September 5, 1956, the General Manager replied to the letter of September 1, and told the respondent that his transfer from one shift to the other had been ordered on August 28, and he had been told to report for work in the day shift from August 30; but instead of obeying the order which was made in the normal course and report for work as directed he had deliberately disobeyed the order and reported for work on August 30 in the night shift. He was then ordered to leave and report for work in the day shift. He however did not even then report for work in the day shift and absented himself intentionally and thus disobeyed the order of transfer. The General Manager therefore called upon the respondent to show cause why disciplinary action should not be taken against him for wilfully refusing to obey the lawful orders of the departmental officers and he was asked to submit his explanation within 48 hours. The respondent submitted his explanation on September 7, 1956.
(3.) Soon after it appears the appellant-mills received notice of the application under S. 33A and they submitted a reply of it on October 5, 1956. Their case was that transfer from one shift to another was within the power of the management and could not be said to be an alteration in the terms and conditions of service to the prejudice of the workman and therefore the complaint under S. 33A was not maintainable. The appellant-mills also pointed out that a domestic inquiry was being held into the subsequent conduct of the respondent and prayed that proceedings in the application under S. 33A should be stayed till the domestic inquiry was concluded. No action seems to have been taken on this complaint under S. 33A, for which the appellant-mills might be partly responsible as they had prayed for stay of those proceedings. However, the domestic inquiry against the respondent continued and on February 25, 1957, the inquiry officer reported that the charge of misconduct was proved. Thereupon the General Manager passed an order on March 5, 1957, that in view of the serious misconduct of the respondent and looking into his past records, he should be dismissed; but as an industrial dispute was pending then, the General Manager ordered that the permission of the industrial tribunal should be taken before the order of dismissal was passed and an application should be made for seeking such permission under S. 33 of the Act.;