ORDER
R.S. Garg, J.
1. This order shall dispose of Misc. Petition No. 987/1990 (Khemchand Motilal Jain v. Appellate Authority under Beedi and Cigar Act and another) and Misc. Petition No. 978/1990 (Khemchand Motilal Jain v. Appellate Authority under Beedi and Cigar Act and another).
2. The respondent No. 2 of each petition preferred appeal to the appellate authority andAssistant Labour Commissioner, Sagar Division, Sagar appointed under Beedi and Cigar Workers (Conditions of Employment) Act, 1966 (hereinafter referred to as the Act) inter alia pleading that the present petitioners/employer by playing unfair trade practise terminated their services and as their termination was contrary to the principles of law, therefore, they were entitled to be reinstated with the back wages. The case ofRespondent Kale Khan was registered as Appeal No. 157/1987 while the case of respondent Gul Khai was registered as Appeal No. 37/1988. Each of the employee in his appeal submitted that they were working with the establishment for long time and the petitioner to terminate their services by playing unfair trade practice created a situation where the respondent/employee was unable to meet the illegal demand of his transfer and join at a different place were forced to abandon the work. Each of the employee submitted that the order of transfer dated February 25, 1985 was illegal and as certain conciliation proceedings were going on they were prevented from filing the appeal within limitation.
3. The petitioner/employer submitted before the appellate authority that each was not a case of retrenchment, removal, termination or dismissal but was a case of transfer and as each of the employee did not join at the transferred place and abandoned the work, provisions of Section 31 of Beedi and Cigar Workers Act were not applicable. It was also contended that appeal against the order of alleged dismissal was required to be filed within 30 days in accordance with the rules but in case of Kale Khan the appeal was preferred almost after two years ten months and in case of Gul Khai it was filed after three years and six months therefore each appeal was patently barred by limitation and none of the employee was entitled to any relief.
4. In support of the allegations and counter allegations parties led their evidence. The learned appellate Authority after condoning the delay in filing the appeals observed that the present petitioner/employer created a situation of impossibility and as the employee was put in a fix and was transferred to a distant place it became impossible for him to join and as the same amounted to unfair labour practice, therefore, each of the respondent was entitled to reinstatement with partial backwages.
5. Being aggrieved by orders passed on March 30, 1990 in each of the case, employer has preferred these petitions. The respondents were served and they had filed their return ineach of the case but unfortunately none appeared at the time of hearing of the matter therefore, this Court was left with no option but to proceed ex-parte against the respondent No. 2 in each petition.
6. Learned counsel for the petitioner submits that the learned appellate authority was unjustified in observing that delay in filing the appeal deserved condonation. According to him neither there was sufficient nor there were proper and legal pleadings in support of the contention and the cause projected by the employee seeking condonation of delay was not a cause provided under the law, therefore, the appeals deserved dismissal on the ground of limitation. Referring to the merits of the matter it was contended by Shri Gupta that from the pleadings raised in the appeals filed by the employee it would clearly appear that present were not cases of retrenchment, removal, dismissal or termination but present were cases of transfers where the employee did not join at the place of transfer or reported on duty. According to him present were not cases of unfair labour practice and each of the employee was not entitled to any of relief. I have heard Shri Gupta at length.
7. Section 31 of Beedi and Cigar Workers (Conditions of Employment) Act, 1966 reads as under:
31. Notice of dismissal (1) No employer shall dispense with the services of an employee who has been employed for a period of six months or more, except for a reasonable cause, and without giving such employee at least one month's notice or wages in lieu of such notice:
Provided that such notice shall not be necessary if the services of such employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held by the employer for the purpose.
(2)(a) the employee discharged, dismissed or retrenched may appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with hisservices or on the ground that he had not been guilty of misconduct as held by the employer or on the ground that such punishment of discharge or dismissal was severe.
(b) the appellate authority may, after giving notice in the prescribed manner to the employer and the employee, dismiss the appeal or direct the reinstatement of the employee with or without wages for the period during which he was kept out of the employment or direct payment of compensation without reinstatement or grant such other relief as it deems fit in the circumstances of the case.
(3) the decision of the appellate authority shall be final and binding on both the parties and be given effect to within such time as may be specified in the order of the appellate authority.
8. Section 31 does not prescribe a complete code in the matter of dismissal, retrenchment or discharge of an employee in view of the express language of Section 39(1) of the Act. Sub-sections (2) and (3) of Section 31 merely give the employee concerned an additional safeguard and cannot be construed to nullify the language of Section 39(1). Section 39 of the Act read as under:
39. Application of the Industrial Disputes Act, 1947-(1) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), shall apply to matters arising in respect of every industrial premises.
(2) Notwithstanding anything contained in Sub-section (1) a dispute between an employer and employee relating to -
(a) the issue by the employer of raw materials to the employees.
(b) the rejection by the employer of beedi or cigar or both made by an employee.
(c) the payment of wages for the beedi or cigar or both rejected by the employer, shall be settled by such authority and in such summary manner as the State Government may by rules specify in this behalf.
(3) Any person aggrieved by a settlement made by the authority specified under Sub-section (2) may prefer an appeal to such authority and within such time as the State Government, may by notification in the Official Gazette specify in this behalf.
(4) The decision of the authority specified under Sub-section (3) shall be final.
9. A perusal of Section 39 of the Act would show that the provisions of Industrial Disputes Act, 1947 shall apply to matters arising in respect of every industrial premises. Section 31 is to be read in juxtaposition with Section 39 of the Act. In the present case the respondent/employees preferred to go in appeal against the order of their alleged retrenchment/ dismissal.
10. The State Government has framedM.P. Beedi and Cigar Workers (Conditions ofEmployment) Rules, 1966. Rule 26 relates toan appeal to be filed under Section 31 of theAct. Rule 26 reads as under: ,
26. Appeals under Section 31(1). The appellate authority for the purposes of Sub-section (2) of Section 31 shall be the Assistant Labour Commissioner.
(2) An employee who is discharged, dismissed or retrenched may prefer an appeal under Sub-section (2) of Section 31 to the appellate authority specified under Sub-rule (1) within a period of thirty days from the date of communication of the order of such discharge, dismissal or retrenchment:
Provided that an appeal may be admitted after the said period of thirty days if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within the said period.
(3) The notice to be given by the appellate authority under Clause (b) of Sub-section (2) of Section 31 shall, -
(a) in the case of notice to an employer, be in Form VIII; and
(b) in the case of notice to an employee, be in Form IX,
and every such notice shall be sent to the party concerned by registered post acknowledgment due.
11. Sub-rule (2) of Rule 26 provides that an employee who is discharged, dismissed or retrenched may prefer an appeal under Sub-section (2) of Section 31, to the appellate authority within a period of 30 days from the date of communication of the order of such discharge, dismissal or retrenchment. Sub-rule (2) further provides that an appeal may be admitted after the said period of thirty days if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within the said period.
12. Each of the petitioner submitted before the appellate authority that certain conciliation proceedings were going on before the Collector, Damoh, therefore appeals could not be filed in time. Unfortunately but for the oral evidence that the present respondents and some other employees were agitating against illegal transfers of employees and closure of the branch situated at Hata nothing has been brought on the record to show that some proceedings were going on before the Collector. Under the Act the Collector is not a Conciliation Authority. The appellate authority did not try to appreciate that to go on strike against illegal transfer or make agitation against the illegal transfer would not amount to conciliation proceedings. The appellate authority simply observed that each of the employee did not know about the legal position and as they were making agitations against illegal transfers, there was sufficient cause for not filing the appeal in time. Unfortunately the appellate authority did not look into the evidence led by the employee. The employee did not say anything that for what period the agitations went on and during pendency of his application before the Collector what proceedings were going on. The delay obviously could be condoned and the appeal could be admitted by the appellate authority but it would be on a foundation which is provided under the law. The question is not what the appellant say before the appellate authority; the question was about the satisfaction of theauthority. The satisfaction must be on the sound judicial principles and should not be on the ground which are not germane or otherwise fanciful or whimsical. The manner in which the delay of two years and ten months and in another case three years and six months has been casually condoned cannot be approved. The appellant authority obviously acted beyond its jurisdiction in condoning the delay.
13. On the merits it would clearly appear that a bar contained under Section 31 of the Act is against the illegal dispensation of service of an employee who had been in employment for a period of six months or more, except for a reasonable cause. Section 31(1) further provides that if for a reasonable cause services are dispensed with, the employee would be served with one month's notice or would be paid wages of one month in lieu of such notice. From the records of the case it would clearly appear that the present petitioners were finding difficulties in running their branch at Hata, instead of dispensing the services of the employee which they otherwise could do on giving one month's notice or after paying one month's wages in lieu of the notice, they preferred to retain the employee in their employment and simply transferred them from Hata to Sagar at a distance of about 100-110 Kms. It is not the respondent's case that his services could not be transferred but his case is that the present petitioners were trying to create a situation of impossibility so that the employee was forced not to come to duty. The present petitioners in their reply before the authority submitted that they did not dispense with the service of the respondent/employee but in fact had simply issued the order of transfer. Undisputedly the employee did not respect the order of transfer, did not join at the place of transfer and did not challenge the order of transfer before any competent forum. Their simple submission was that they were making agitations and were requiring the Collector to go for conciliation proceedings. The records do not show that there were any mala fide on the part of the petitioners in issuing the order of transfer. From the cross examination of Mohd. Ismile Qureshi witness of the present petitioners it would clearly appear that theCourt was alive to the situation that the branch was closed somewhere in May-June 1995. In reply to the Court question the said witness answered that Hata branch was closed in May-June 1995 after observing all the legal provisions. If because of the closure or circumstances leading to closure of the establishment the petitioners were requiring their employees to join at another place by no stretch of imagination it can be said that it was unfair labour practice.
14. The Appellate Authority appears to be swayed away by the fact that a lowly paid employee was transferred to a distance of about 100 kms. In the opinion of this Court the employee did not raise any objection about the salary but was simply saying that because of his low wages it was not possible for him to join at the place of transfer. From the evidence available on the record and the admission made by the employee in each case it would clearlyappear that present are not cases of illegal dispensation of services, dismissal or removal but are cases where each of the employee did not respect the transfer order. Once it is held that present is not a case of illegal dismissal or illegal dispensation of service, the Appellate Authority would have no jurisdiction to interfere in the matter. In the opinion of this Court the Appellate Authority was unjustified in granting the claim of the employees. Their appeals deserve to be rejected firstly because the appeals were not preferred within limitation and there was no sufficient cause, for condonation of delay and secondly because present are not cases of illegal dispensation from service but are cases of transfers.
15. Each of the petition is allowed. The order passed by the appellate authority in each of the case is quashed. The appeals filed by each of the employee is dismissed. No cost.