1989 PLP 598 (PLC)

The decision dated 10‑11‑1988 has been challenged in the titled appeal, whereby the grievance petition of the respondent has been accepted and he has been directed to be reinstated in service with back benefits. The respondent has brought cross‑objections since his prayer for setting aside his transfer from drawing section to ring section has been rejected. The appeal and the cross- objections are being disposed of together through this single judgment.

2. The facts are that the respondent was working in the drawing section and on 23‑7‑1985 was transferred to ring section vide order Exh. P‑

1. According to the appellant, on 5‑8‑1985 the respondent became absent. Charge‑sheet of absence is Exh. P‑4 dated 15‑9‑1985. Inquiry notice is Exh.R‑

9. Copy of second show‑cause notice is Exh. R‑

12. The respondent did not join the inquiry and was dismissed from service.

3. The dismissal order was sent by post but it was not delivered. Notice to join duty was also sent but it had come back undelivered. Charge‑sheet was thereafter published in the newspaper but in spite of it the respondent did not submit reply to it. Inquiry notice was got published in the newspaper and publication is Exh. R‑

9. Since no attempt was made to serve the inquiry notice in person or by registered post, there was no justification to get it published in the A newspaper. The respondent may not be purchasing that newspaper in which inquiry notice was got published. The publication can be made after an attempt to serve the notice in person or by registered post has failed. The other defect is that no definite date is given in the inquiry notice. It is said that he should appear within 15 days of the issuance of notice. Since inquiry notice was not legally served, there was no justification in holding ex parte inquiry. The dismissal order, therefore, based upon such an inquiry is not legal and has been rightly struck down by the learned lower Court. The second show‑cause notice also was not sent by registered post but was got published in the newspaper. The cutting is Exh. R‑14. 4.Learned counsel for the appellant has argued that no grievance notice against the order of dismissal was sent by the respondent, therefore, the learned lower Court was not justified in setting aside the order of dismissal. It has also been argued that the respondent did not challenge the dismissal order and challenged the transfer order only. The argument has no force. In the prayer clause of the grievance petition the respondent prayed for reinstatement, which means that he had challenged the order of dismissal from service. No doubt, no grivance notice against the dismissal order is on the record but since no plea was taken in the written statement, it could not be raised during arguments. There are grievance notices, whereby transfer order was challenged. In the written statement neither it was contended that the respondent had been dismissed from service, nor it was said that no grievance notice against the order of dismissal had been served. In paragraph 8 of the petition it is urged that on 1‑8‑1985 the grievance notice was served upon the appellant, reply to which was not given. In the corresponding paragraph 8 of the written statement it is contended, "denied that the grievance notice was served upon the respondent in accordance with the provisions of section 25‑A of the I.R.O." Since it was not urged that the grievance notice against the order of dismissal was not received, the respondent did not produce evidence in that respect. In the grievance notice dated 1‑8‑1985 the respondent had challenged the transfer order and did not say anything with regard to the order of dismissal. Since by that time no dismissal order had been passed, the respondent could not challenge the same in the grievance notice. The dismissal order was passed on 8‑3‑1986 about eight months after the grievance notice dated 1‑8‑1985 was sent. Since the date of the written statement is 11‑3‑1986 the dismissal order had come into existence before written statement was filed but in spite of it in the written statement it was not contended that the dismissal order had been passed. It is thus clear, that the dismissal order was managed to be kept secret from the respondent. There is no proof of the service of dismissal order upon the respondent. In these circumstances the learned lower Court has rightly set aside the same.

5. So far as the transfer order is concerned, the learned lower Court has held that it is the prerogative of the employer to transfer his employees. It has been argued by the learned counsel for the respondent that the respondent did not know the job entrusted to him in the ring khata, therefore, the transfer order was bad. I have gone through the statement of the respondent but have not been able to find that the respondent may have asserted that he did not know the job. The transfer is a prerogative of the employer, therefore, the learned lower Court rightly did not set asided the said order.

6. As a result of the observations made above, the appeal as well as the cross‑objections fail and both of them are dismissed. A.E./650/Lb. P Appeal and cross‑objections dismissed.