RAMASWAMI, J. - (1.) THIS appeal is brought, by special leave, from the award dated 9 March, 1963, by the Central Government Industrial Tribunal, Dhanbad, in Reference No. 25 of 1962, published in the Gazette of India dated 8 June, 1963.
(2.) THE respondent, Sardar Jagir Singh, was appointed as a welfare officer under training on 30 July, 1956 at Madhuband Colliery by Karam Chand Thapar & Bros., Ltd., who are the managing agents of that colliery. By an order dated 14 September, 1959 the respondent was transferred to Central Sounda Colliery to work in the same capacity and without affecting his service conditions in any way. The case of the management of Madhuband Colliery (hereinafter called the management) was that the respondent refused to obey the order of transfer in spite of repeated chances being given to him and so by a letter dated 9 December, 1959 the respondent was dismissed. It was further stated on behalf of the management that the terms of service of the respondent were governed by service rules of Karam Chand Thapar & Bros., Ltd., Ex. M., and as there was a wilful disobedience of the order of transfer, the order of dismissal of the respondent, was justified. The case of the respondent, on the contrary, was that the transfer order was mala fide and the management intended to victimize him for his trade union activities. The case of the respondent was taken up by Hindustan Khan Mazdoor Sangh and on 9 August, 1962 the Government of India referred the following disputes for adjudication under S. 10(1)(d) of the Industrial Disputes Act to the Central Government Industrial Tribunal, Dhanbad : "Whether or not the transfer of Sardar Jagir Singh, underground incharge, from Madhuband Colliery to Central Sounda Colliery, and his ultimate discharge, from service was legal and justified ? If not, to what relief is he entitled ?"After hearing the evidence of the parties the tribunal held that the transfer of Sardar Jagir Singh from Madhuband Colliery to the Central Sounda Colliery was illegal and unjustified and his discharge from service for disobeying the order of transfer was also illegal and unjustified. On behalf of the appellant it was submitted that the tribunal was wrong in taking the view that the conditions of service of the respondent were governed by standing order Ex. W. 17 of the standing orders for the coalmining industry as certified by the Chief Labour Commissioner. It was pointed out that these standing orders came into operation on 29 March, 1960, long after the dismissal of the respondent. Rule 26 of the standing order, Ex. W. 17, provided that the workmen are liable to be transferred from one colliery to another "only when both the collieries were under the same management" and when such transfers did not cause any prejudice to their wages and other conditions of service. The tribunal considered that the transfer of the respondent was in contravention of rule 26 and was, therefore, illegal. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. It is not disputed in this case that standing order, Ex. W. 17, came into operation on 29 March, 1960, long after the dismissal of the respondent and the tribunal was in error in applying rule 26 of this standing order for testing the legality of the order of dismissal of the respondent. On the contrary, it appears to us that the service rules of Karam Chand Thapar & Bros., Ltd., Ex. M., were the relevant rules which governed the case of the respondent. There is evidence that Madhuband Colliery and Central Sounda Colliery are in the management of Karam Chand Thapar & Bros., Ltd. It is true that the respondent had been appointed in 1953 in the Real Jambad Colliery of which Karam Chand Thapar & Bros., Ltd., were only the secretary and treasurer and not the managing agents. It appears that the Real Jambad Colliery had no standing orders in 1953 in which year the respondent was appointed. It also appears that the Madhuband Colliery had no standing orders in 1956 at the time the respondent was transferred to that colliery from the Real Jambad Colliery. The order of transfer dated 30 July, 1956 reads as follows :"By mutual consent, the appointment of Sardar Jagir Singh, a welfare officer under training, at our Madhuband Colliery with effect from 1 August, 1956 is hereby confirmed. For the purposes of length of service, provident fund and leave accumulation the appointment of Sardar Jagir Singh under the company shall be taken and/or counted as in continuation of his services with his previous employer, the Real Jambad Coal Company, Ltd. For Jharia and Raniganj Collieries, Ltd. For Karam Chand Thaper and Bros. (Private), Ltd. (Sd.) -, General Secretary, Managing Agents." In the absence of any express contract between the parties or in the absence of certified standing orders it must be held that the conditions of service of the respondent are governed by the service rules of Karam Chand Thapar & Bros., Ltd., Ex. M., which applied to the employees of all the companies under the management and control of Karam Chand Thapar & Bros., Ltd. It is admitted that Madhuband Colliery and Central Sounda Colliery are both under the management of Karam Chand Thapar & Bros., Ltd., who are the managing agents of these collieries. The tribunal has expressed the view that the service rules, Ex. M, cannot apply to the respondent because Karam Chand Thapar & Bros., Ltd., are not the owners of the two collieries and therefore they cannot be "in control and management of the collieries" within the meaning of rule 1 of the service rules, Ex. M. The tribunal has stated that the expression "management and control" in rule 1 of Ex. M. should be interpreted to mean management and control as owner as such. In our opinion, the tribunal fell into an error in the interpretation of this phrase "management and control" occurring in rule 1 of Ex. M. It is manifest that Karam Chand Thapar & Bros., Ltd., being managing agents of the Central Sounda Colliery and Madhuband Colliery, are in management and control of these collieries within the meaning of rule 1 of Ex. M and it follows therefore that the service conditions of the respondent are governed by Ex. M. Now, rule 4 (b) of Ex. M states that :"the services of an employee shall be liable to transfer at any time and from time to time from one company or companies to another company or companies under the management of Karam Chand Thapar & Bros. (Private), Ltd., or any of their allied concerns."
(3.) IT is manifest that Karam Chand Thapar and Bros. were lawfully entitled to transfer the respondent from Madhuband Colliery to Central Sounda Colliery on 14 September, 1959 under rule 4(b) of the service rules, Ex. M, which were the relevant rules applicable to the case of the respondent. In this connexion we may add that in his representation, Ex. M. 5, to which we will presently refer, the respondent expressly admitted that these rules applied to him and based his claim on them.;