The Judgment of the Court was delivered by

Thanikkachalam, J.:— This writ appeal is directed against the order passed by the learned Single Judge of this Court in Writ Miscellaneous Petition No. 26759 of 1994 in Writ Petition No. 9504 of 1993.

2. The appellant herein is the first respondent in the abovesaid W.M.P Writ Petition No. 9504 of 1993 was filed by the appellant herein to issue a writ of certiorari, calling for the records of the Presiding Officer, Labour Court, Coimbatore, in I.D No. 503 of 1989 and quash his award, dated December 11, 1992. Writ Miscellaneous Petition No. 26759 of 1994 was filed by the workman/second respondent herein for direction to the appellant herein to reinstate the second respondent herein as salesman at their Cross Cut Show Room at Coimbatore, failing which a further direction was required under S. 17B of the Industrial Disputes Act, 1947, hereinafter referred to as the “Act,” with effect from May 9, 1974, and a further request was made to direct the appellant herein to pay the second respondent in Rs. 2,100 per month, pending disposal of Writ Petition No. 9504 of 1993.

3. The learned Single Judge who heard the abovesaid writ miscellaneous petition, held that in the event of the writ-petitioner not being able to reinstate the workman/second respondent at Coimbatore show room, the writ-petitioner was directed to pay reduced last drawn wages at the rate of Rs. 1,250 per month from July 1, 1994, till the disposal of the writ petition. The arrears from July 1, 1994, till November 30, 1994, was directed to be paid on or before December 31, 1994, and thereafter the last drawn wages as mentioned above was further directed to be paid on or before the 10th of every succeeding month. It is against this order, the writ-petitioner, viz., the management filed the present writ appeal before this Court.

4. The learned senior counsel appearing for the appellant herein submitted that after the award was passed in I.D No. 503 of 1989, dated December 11, 1992, the management approached the learned Single Judge by way of writ petition to quash the award passed in I.D No. 503 of 1989. In the said writ proceedings, the management also obtained an order of interim stay of the award, pending disposal of the writ petition. After the interim order was obtained, staying the operation of the award, the management reinstated the second respondent herein by a letter, dated July 29, 1993, after transferring him from the show room at Cross Cut Road, Coimbatore, to the show room at Madras. The second respondent herein was directed to report for duty. As against the order of stay obtained by the management in the writ proceedings, the second respondent herein filed a petition to vacate the stay and also filed Writ Miscellaneous Petition No. 19681 of 1993 under S. 17B of the Act for reinstatement. The learned Single Judge, Bakthavatsalam, J., while disposing of these two writ miscellaneous petitions, held as under:

“… In view of the fact that interim stay with regard to reinstatement is vacated, I do not see any reason to give direction under S. 17B of the Act. This petition is dismissed.”

Therefore, according to the appellant herein, the earlier order passed in Writ Miscellaneous Petition No. 19681 of 1993 would operate as res judicata against the second respondent herein by preventing him from filing a second petition under S. 17B of the Act, reagitating the same right as contemplated under S 17B of the Act before Kanakaraj, J. The learned senior counsel appearing for the appellant further submitted that the management is having implied power of transfer and exercising such power, the employee was transferred from Coimbatore show room to Madras show room, Therefore, there is nothing improper in passing an order of transfer. It was further, submitted that the order, of transfer is not be subject-matter before this Court. According to the learned senior counsel, if the employee is aggrieved, he could have raised a dispute over the transfer order passed by the management, which he has not done in the present case.

5. The learned senior counsel further submitted that the transfer order was passed due to administrative exigencies. There was a prior quarrel between the employee and the Manager in the Coimbatore showroom. In order to avert further complication, the management though fit to transfer the employee from Coimbatore show room to Madras show room. Therefore, the order of transfer would not stand as an impediment in the matter of reporting to duty by the employee, the second respondent herein Again, it was pointed out that without working, it is not possible on the part of the second respondent to claim wages. According to the learned senior counsel, in the award proceedings the second respondent herein agreed for a transfer, but inter on, he does not want to respect the order of transfer passed by the management. The learned Single Judge, without considering all these aspects, directed the management either to reinstate the second respondent herein in the Coimbatore show room; failing which a direction was given to pay Rs. 1,250 per month from July 1, 1994. Hence, according to the learned senior counsel, the order passed by the learned Single Judge in Writ Miscellaneous Petition No. 26759 of 1994 is not sustainable.

6. On the other hand, the learned counsel appearing for the second respondent herein, submitted that under equity the second respondent is entitled to be reinstated in the original place in which he was employed on the date of termination of service. According to the learned counsel, show room at Coimbatore, is very prosperous and the second respondent would get his monthly salary of Rs. 2,000 plus commission on sales promotion. The total emoluments would approximately come to Rs. 4,000 but in the show room at Madras, it would not be possible to earn so much of commission as he can earn from the show room at Coimbatore. Therefore, the posting at Madras show room would be disadvantageous to him monetarily. The learned counsel further submitted that reinstatement means, restoring to the original position, viz., the original post held by an employee at the time of termination of service. Therefore, if the second respondent is not reinstated in Coimbatore, Show Room, it would be a violation of the award passed by the Labour Appellate Tribunal. According to the learned counsel, since the appellant herein agreed to reinstate before Bakthavatsalam, J., the learned Judge held that inasmuch as there is no interim stay with regard to the reinstatement, further order of direction under S. 17B of the Act is not necessary. Inasmuch as the management failed to reinstate the second respondent herein in the show room at Coimbatore, the employee came forward with another application under S. 17B of the Act before Kanakaraj, for reinstatement. While disposing of this petition, Kanakaraj, J., directed the management to reinstate the employee in the Coimbatore show room; failing which directed the management to pay a sum of Rs. 1,250 per month to the employee, who is the second respondent herein, till the disposal of the writ petition. Without obeying this order, it is not possible for the management to file an appeal against the order passed by Kanakaraj, J., dated November 29, 1994, in Writ Miscellaneous Petition No. 26759 of 1994.

7. The learned counsel further submitted that inasmuch as the order passed by Bakthavatsalam, J., in Writ Miscellaneous Petition No. 19681 of 1993, is not an order passed after finally heard and disposed of, it would not operate as res judicata against the second respondent herein, so as to prevent him from filing another petition under S. 17B of the Act. According to the learned counsel, inasmuch as reinstatement was not made by the management as per the earlier order, it is not necessary for the second respondent to raise a separate dispute with regard to the order of transfer passed by the management. Since the earlier order of this Court was not obeyed by the management in the matter of reinstatement, the second respondent approached this Court by filing another petition for direction under S. 17B of the Act. According to the learned counsel even though the order was passed by the learned Single Judge in Writ Miscellaneous Petition No. 26759 of 1994 on November 29, 1994, till today, no payment was made as directed by the learned Single Judge. For these reasons, it was submitted that the order passed by the learned Single Judge requires no interference.

8. We have heard both the learned senior counsel appearing for the appellant as well as the learned counsel appearing for the second respondent. The second respondent herein was working as a salesman in the Cross Cut Road, sales show room, Coimbatore, from the year 1981. On the allegation of certain charges of misbehaviour with the Manager, his services were terminated. In the industrial dispute, the Labour Court passed an award, in I.D No. 503 of 1989, on December 11, 1992, directing the management to reinstate the employee with back-wages. As against the said order, the management filed Writ Petition No. 9504 of 1993 for a writ of certiorari calling for the records of the Presiding Officer/Labour Court, Coimbatore, and quash the award, dated December 11, 1992. In the said writ proceedings, the management obtained an order of interim stay of the award. The employee filed petition to vacate the interim stay and also a petition under S. 17B of the Act for reinstatement. In the meanwhile, by letter, dated July 29, 1993, the management directed the employee to report for the duty in the Show Room at Madras, since in the said letter it is stated that he was transferred from the Coimbatore Show Room to Madras Show Room.

9. Since the management agreed to reinstate the employee, the learned Single Judge, who disposed of Writ Miscellaneous Petition No. 19681 of 1993 held that the interim stay with regard to the reinstatement was vacated and consequently no direction need be given under S. 17B of the Act. Thereafter the employee filed Writ Miscellaneous Petition No. 26759 of 1994 under S. 17B of the Act for reinstatement.

10. According to the management when once the petition filed under S. 17B is dismissed, thereafter the order passed therein would operate as res judicata against the second respondent herein from filing a second petition under S. 17B of the Act. It remains to be seen that the order passed on October 29, 1993, in the petition filed under S. 17B of the Act was not an order passed after finally heard and disposed of. While disposing of the above writ miscellaneous petition, the learned Single Judge pointed out that there is no reason to give any direction under S. 17B of the Act. Since there is no interim stay with regard to the reinstatement. Therefore, the petition filed under S. 17B of the Act was not dismissed on merits. Therefore, according to us, it would not operate as res judicata against the second respondent herein for filing another petition under S. 17B of the Act. Second petition under S. 17B of the Act was filed, since the management failed to implement the promise given by them in the matter of reinstatement earlier. Under such circumstances, it is also not possible for the employee to approach the Labour Court by raising a dispute under S. 33C of the Act.

11. According to the management, they are having implied power to transfer an employee from one place to another. They have also produced fourteen orders passed by the management in this regard in order to show that the power of transfer was exercised by them earlier. It remains to be seen that the service is a contract service. In the service contract, there was no clause for transfer. The management is depending upon implied power to transfer. Whether there is any implied power or not, depends upon facts of each case as per the decision cited before us. According to the facts arising in this case, the Labour Court passed an award, directing reinstatement with back-wages. The writ petition was filed by the management and obtained an order of interim stay of the award. When the interim stay was operating, the management sought to reinstate the employee by transferring him from the Coimbatore show room to the Madras show room. According to the employee postings at Coimbatore show room would be advantageous to him monetarily where he can get a salary of Rs. 2,000 per month plus the commission for sales promotion. Thus the total emoluments would be about Rs. 4,000 per month, whereas if the employee is posted at Madras show room, it would not be possible for him to get so much of emoluments. Hence the transfer would lead to reduction in his emoluments. Since the management promised to reinstate the employee, the petition filed under S. 17B of the Act was dismissed at the first instance by this Court. According to the management, there was a quarrel between the employee and the Manager in the Coimbatore show room and if the employee is again posted at Coimbatore show room, that would create embarrassment and unpleasant events and in order to prevent these embarrassments and unpleasant events, the employee was transferred from Coimbatore show room to Madras showroom.

12. But it remains to be seen that the transfer would affect the employee in the matter of getting the emoluments and reinstatement means reinstatement to the original position. When there is an award directing the management to reinstate him, it is not possible for the management to say that they will transfer him from the place where he was originally working to a new place. Therefore, the facts on records would go to show that the transfer in the present case would not have been done on account of implied power said to have been conferred on them. Therefore, the employee/the second respondent herein is justified in not reporting to duty at Madras show room. According to the management the show room at Oppannakar Street was closed and all the employees therefore were accommodated in the Cross Cut Road show room Coimbatore, and, therefore, there is no place to accommodate the second respondent in that place. The second respondent pointed out that many of his juniors, who were working in Oppannakara Street show room were accommodated at Cross Cut Road, show room, Coimbatore, and, therefore, he being a senior, his opportunity to work at Cross Cut Road show room, Coimbatore, should not be denied to him, especially when the award directed the management to reinstate him in the original post. In view of all these factual position, we are of the opinion that the transfer order was passed after the filing of the writ petition and after obtaining an order of stay of the award by the management is not bona fide and therefore unsustainable. The learned Single Judge in Writ Miscellaneous Petition No. 26759 of 1994 directed the management either to reinstate the second respondent herein or pay a sum of Rs. 1,250 per month from July 1, 1994, till he disposal of the writ petition. Therefore, the fact remain that the management neither gave effect to the award passed by the Labour Court nor carried out the direction given by the learned Single Judge in Writ Miscellaneous Petition No. 26759 of 1994.

13. Both the learned senior counsel appearing for the appellant as well as the learned counsel appearing for the second respondent, brought to our notice the following decisions, in order to support their respective contentions:

(1) Caravan Goods Carriers (Private), Ltd. v. Labour Court, Madras [1977 (1) L.L.N 625];

(2) C.E(Per.) Tamil Nadu Electricity Board, Madras v. K. Raman [1985 (2) L.L.N 184];

(3) B. Varadha Rao v. State of Karnataka [1986 (2) L.L.N 753];

(4) Executive Committee Vaish Degree College v. L. Narain [1976 (1) L.L.N 474];

(5) L.D'Souza v. H.P Corporation, Ltd. [Vol. 64 F.L.R 749];

(6) Satyadhyan v. Smt. Deorajin Debt [A.I.R 1960 S.C 941];

(7) 1952 — I L.LJ 653;

(8) International Ore and Fertiliser (India) (Private), Ltd. v. Employees' State Insurance Corporation [1987 (2) L.L.N 911];

(9) T. Chandrasekar v. Pachaiyappa's Trust (by Committee of Managaement) [1989 (1) L.L.N 711]; and

(10) R. Srinivasan v. Management of Narasu's Coffee Co. [1974 — II L.L.J 298].

14. We have carefully gone through all these decisions cited before us. It remains to be seen that the decision in case depends upon its own facts. Considering the facts arising in this case, in the light of the judicial pronouncements cited supra. We hold that there is no infirmity in the order passed by the learned Single Judge in Writ Miscellaneous Petition No. 26759 of 1994 in Writ Petition No. 9504 of 1993. Accordingly, we confirm the order passed by the learned Single Judge in the abovesaid writ miscellaneous petition, on November 29, 1994.

15. In the result, this writ appeal is dismissed. No costs. We direct the appellant/management to reinstate the second respondent herein the show room at Cross Cut Road, Coimbatore, in the same capacity in which he was working as on the date of termination of services, within four weeks from today (November 5, 1996), with a further direction to the appellant to pay a sum of Rs. 1,250 per month from July 1, 1994, till date of reinstatement. In case of not giving reinstatement, the appellant/management is directed to pay the aforesaid sum of Rs. 1,250 per month from July 1, 1994, till the disposal of the writ petition, Writ Petition No. 9504 of 1993. The arrears from July 1, 1994 to October 31, 1996, shall be paid on or before December 31, 1996. The payment of the aforesaid sum Rs. 1,250 per month from November 1, 1996, shall be made on or before the 10th of every succeeding month. Office is directed to post the writ petition Writ Petition No. 9504 of 1993 before concerned learned Single Judge for final disposal on February 3, 1997.