BEFORE THE
DATED: 01/11/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NO.7109 of 2009
and
W.P.(MD)NO.9607 and 9608 of 2010
and
M.P.(MD)No.1 of 2009 and 1 and 1 of 2010
Cement and Quarry Workers
represented by its General Secretary
A.Vailkandan,
173F,
Sankar Nagar,
Tirunelveli District. .. Petitioner in
all writ petitions
vs
1.The Secretary to Government,
Ministry of Labour,
Government of
2.The Assistant Commissioner of Labour (Central),
Chinna Chokkikulam,
Madurai-625 002.
3.The Management,
The India Cements Ltd.,
Sankar Nagar,
Tirunelveli District. .. Respondents in
all writ petitions
W.P.(MD)No.7109 of 2009 has been preferred under Article 226 of the Constitution
of
the records relating to the impugned order passed by the first respondent dated
30.01.2009, to quash the same and consequently, to direct the first respondent
to refer the matter to the labour court for adjudication as contemplated under
Industrial Disputes Act, 1947.
W.P.(MD)Nos.9607 and 9608 of 2010 have been preferred under Article 226 of the
Constitution of
to call for the records relating to the impugned orders in No.L-29011/19/2009-
IR(M), L-29011/17/2009-IR(M) passed by the first respondent dated 9.3.2010 and
15.2.2010, to quash the same and consequently, to direct the first respondent to
refer the matter to the labour court for adjudication as contemplated under
Industrial Disputes Act, 1947.
!For Petitioner ... Mr.L.Shaji Chellan in WP(MD).7109 of 2009
Mr.S.M.Mohan Gandhi
in WP(MD)Nos.9607 and 9608 of 2010
^For Respondents ... Mr.S.Sukumaran, Senior Panel counsel
for RR1 and 2 in W.P.(MD)No.7109 of 2009
Mr.S.Jayaraman, SC for Mr.A.Veerasamy for R-3
in all writ petitions
Mr.K.K.Senthilvelan for RR1 and 2
in WP(MD)Nos.9607 and 9608 of 2010
- - - -
:COMMON ORDER
All the three writ petitions were filed by the petitioner union, seeking
to challenge the orders of the first respondent, dated 30.01.2009, 09.03.2010
and 15.2.2010.
2.In W.P.(MD)No.7109 of 2009, the petitioner union raised a dispute
against the transfer of one R.Rengasamy from Sankar Nagar at Tirunelveli to
Raasi Works in Andhra Pradesh before the Central Labour Commissioner. The
Conciliation Officer, i.e. Assistant Labour Commissioner (Central),
a failure report, dated 29.8.2008 to the Central Government. The Central
Government upon receipt of the said report, by an order, dated 30.1.2009,
declined to refer the dispute and gave the following reasons:
"Having accepted the terms and conditions of the appointment order, the
cannot take a plea of transfer as an unfair labour practice at this point of
time. Moreover, transfer is a prerogative of the management."
It is this order which is under challenge in this writ petition.
3.On notice from this court, the third respondent India Cements Ltd. has
filed a counter affidavit, dated 18.10.2010 together with supporting documents.
The principal contention raised by the management was that transfer was made on
31.1.2005. The petitioner had joined in the Raasi Works, Andhra Pradesh on
21.2.2005. Therefore, they are guilty of delay. Further, the terms of
appointment given to the petitioner shows that he can be transferred to any
other unit such as Factory, Mines, Head Office, Foundry Division, Chilamkur
(Factory/Mines), Sankari (Factory/Mines), Factory and Mines formed and acquired
by the same management. Therefore, there was no scope for adjudicating such
dispute. The first and second respondents have also filed a counter affidavit,
dated 08.04.2010.
4.Per Contra, Mr.L.Shajji Chellan, learned counsel for the petitioner
stated that the Standing Order applicable to the factory only provides for
transfer of workers from one shift to another shift in the interest of the
Company. There is no scope for transferring the workers from one factory to
another factory and that too the factory which was established long after the
petitioner joined the service and also to the far off place in an another State,
i.e. Andhra Pradesh.
5.In W.P.(MD)No.9607 of 2010, the petitioner union raised a dispute
relating to transfer of one Kulandai Jesu from Sankar Nagar, Tirunelveli to
Bhimavaram in Andhra Pradesh. The dispute was conciliated by the Assistant
Labour Commissioner,
failure report to the Government of India, dated 24.9.2009. The Government of
to refer the dispute and passed an order that "Transfer is a prerogative of the
management."
It is this order which is under challenge in this writ petition. The third
respondent has filed a counter affidavit, dated 18.10.2010 and had raised
similar contentions as in the case of workmen Rengasamy.
6.In W.P.(MD)No.9608 of 2010, the petitioner union raised a dispute
regarding transfer of its member N.Krishnan from Sankar Nagar, Tirunelveli to
Sankari Works,
Commissioner (Central),
a failure report, dated 31.8.2009 to the Government of India. The Government of
the Industrial Disputes Act, declined to refer the dispute and gave the
following reasons:
"Transfer of workman is prerogative of the management and cannot constitute an
industrial dispute."
The petitioner
from this court, the third respondent management had raised identical
contentions in its counter affidavit, dated 18.10.2010 in this writ petition
also.
7.In view of the commonality among the three writ petitions, they were
grouped together and a common order is passed.
8.Heard the arguments of Mr.L.Shaji Chellan and Mr.S.M.Mohan Gandhi,
learned counsel appearing for petitioners and Mr.S.Sukumaran,
Mr.K.K.Senthilvelan and Mr.S.Jayaraman, learned Senior Counsel for
Mr.A.Veerasamy, learned counsel appearing for respondents.
9.The three orders of the Central Government referred to prerogative power
of the employer to transfer the employees. The learned senior counsel for the
third respondent Mr.S.Jayaraman contended that the orders should not be
interfered with on the ground of delay in approaching the court. The employer
had incorporated the said clause in the orders of appointment issued to the
petitioners. In a writ in the nature of certiorari, one cannot supply reasons
which are not found on the face of the order.
10.Even otherwise, the Supreme Court on the question of delay in raising
the dispute dealt with several judgments and has held that the delay cannot be
the sole reason for denying the relief. In this context, it is necessary to
refer to the judgment of the Supreme Court in Karan Singh v.
Marketing Board reported in (2007) 14 SCC 291. The following passage found in
paragraph 15 from the said judgment may be usefully extracted below:
15. "10. So far as delay in seeking the reference is concerned, no formula of
universal application can be laid down. It would depend on the facts of each
individual case.
11. However, certain observations made by this Court need to be noted. In
Nedungadi Bank Ltd. v. K.P. Madhavankutty4 it was noted at para 6 as follows:
(SCC pp.459-60)
'6. Law does not prescribe any time-limit for the appropriate Government to
exercise its powers under Section 10 of the Act. It is not that this power can
be exercised at any point of time and to revive matters which had since been
settled. Power is to be exercised reasonably and in a rational manner. There
appears to us to be no rational basis on which the Central Government has
exercised powers in this case after a lapse of about seven years of the order
dismissing the respondent from service. At the time reference was made no
industrial dispute existed or could be even said to have been apprehended. A
dispute which is stale could not be the subject-matter of reference under
Section 10 of the Act. As to when a dispute can be said to be stale would depend
on the facts and circumstances of each case. When the matter has become final,
it appears to us to be rather incongruous that the reference be made under
Section 10 of the Act in the circumstances like the present one. In fact it
could be said that there was no dispute pending at the time when the reference
in question was made. The only ground advanced by the respondent was that two
other employees who were dismissed from service were reinstated. Under what
circumstances they were dismissed and subsequently reinstated is nowhere
mentioned. Demand raised by the respondent for raising an industrial dispute was
ex facie bad and incompetent.'
12. In S.M. Nilajkar v. Telecom District Manager5 the position was reiterated as
follows: (SCC pp.39-40, para 17)
'17. It was submitted on behalf of the respondent that on account of delay in
raising the dispute by the appellants the High Court was justified in denying
relief to the appellants. We cannot agree. It is true, as held in Shalimar Works
Ltd. v. Workmen6 that merely because the Industrial Disputes Act does not
provide for a limitation for raising the dispute, it does not mean that the
dispute can be raised at any time and without regard to the delay and reasons
therefor. There is no limitation prescribed for reference of disputes to an
Industrial Tribunal; even so it is only reasonable that the disputes should be
referred as soon as possible after they have arisen and after conciliation
proceedings have failed, particularly so when disputes relate to discharge of
workmen wholesale. A delay of 4 years in raising the dispute after even re-
employment of the most of the old workmen was held to be fatal in Shalimar Works
Ltd. v. Workmen6. In Nedungadi Bank Ltd. v. K.P. Madhavankutty4 a delay of 7
years was held to be fatal and disentitled the workmen to any relief. In Ratan
Chandra Sammanta v. Union of India7 it was held that a casual labourer
retrenched by the employer deprives himself of remedy available in law by delay
itself; lapse of time results in losing the remedy and the right as well. The
delay would certainly be fatal if it has resulted in material evidence relevant
to adjudication being lost and rendered not available. However, we do not think
that the delay in the case at hand has been so culpable as to disentitle the
appellants to any relief. Although the High Court has opined that there was a
delay of 7 to 9 years in raising the dispute before the Tribunal but we find the
High Court factually not correct. The employment of the appellants was
terminated sometime in 1985-1986 or 1986-1987. Pursuant to the judgment in Daily
Rated Casual Labour v. Union of India8 the Department was formulating a scheme
to accommodate casual labourers and the appellants were justified in awaiting
the outcome thereof. On 16-1-1990 they were refused to be accommodated in the
Scheme. On 28-12-1990 they initiated the proceedings under the Industrial
Disputes Act followed by conciliation proceedings and then the dispute was
referred to the
appellants deserve to be non-suited on the ground of delay.' "
The above position was highlighted recently in Sudamdih Colliery of Bharat
Coking Coal Ltd. v. Workmen9, SCC pp.334-36, paras 10-12 and Chief Engineer,
Ranjit Sagar Dam v. Sham Lal10."
11.The second argument that the orders of appointment had incorporated the
clause for transfer also does not stand to reason in the light of the judgment
of the Supreme Court in Western India Match Co. Ltd. v. Workmen reported in
(1974) 3 SCC 330. The Supreme Court has held that the terms of appointment
cannot be used to take away the clause in the certified Standing Order. The
relevant passage found in paragraph 10 of the said judgment may be reproduced
below:
"10.In the sunny days of the market economy theory people sincerely believed
that the economic law of demand and supply in the labour market would settle a
mutually beneficial bargain between the employer and the workman. Such a
bargain, they took it for granted, would secure fair terms and conditions of
employment to the workman. This law they venerated as natural law. They had an
abiding faith in the verity of this law. But the experience of the working of
this law over a long period has belied their faith. Later generations discovered
that the workman did not possess adequate bargaining strength to secure fair
terms and conditions of service. When the workmen also made this discovery, they
organised, themselves in trade unions and insisted on collective bargaining with
the employer. The advent of trade unions and collective bargaining created new
problems of maintaining industrial peace and production for the society. It was
therefore considered that the society has also an interest in the settlement of
the terms of employment of industrial labour. While formerly there were two
parties at the negotiating table - the employer and the workman, it is now
thought that there should also be present a third party, the State, as
representing the interest of the society. The Act gives effect to this new
thinking. By Section 4 the Officer certifying the Standing Order is directed to
adjudicate upon "the fairness or reasonableness" of the provisions of the
Standing Order. The Certifying Officer is the statutory representative of the
society. It seems to us that while adjudging the fairness or reasonableness of
any Standing Order, the Certifying Officer should consider and weigh the social
interest in the claims of the employer and the social interest in the demands of
the workmen. Section 10 provides the mode of modifying the Standing Orders The
employer or the workman may apply to the Certifying Officer in the prescribed
manner for the modification of the Standing Orders Section 13(2) provides that
an employer who does any act in contravention of the Standing Order shall be
punishable with fine which may extend to one hundred rupees. It also provides
for the imposition of a further fine in the case of a continuing offence. The
fine may extend to twenty-five rupees for every day after the first during which
the offence continues."
12.As correctly contended by the learned counsel for the petitioners in
the present cases, the Standing Order does not contemplate any such power for
transfer. It is also contended by the workmen that an action of the employer
amounts to an unfair labour practice listing out in V Schedule which is
prohibited by Section 25T of the Industrial Disputes Act. These are all matters
arising out of merits of the case and will have to be adjudicated by the
competent tribunal. Hence this court is not inclined to render any finding on
this score. It is suffice to state that the Government in the guise of
exercising its power under Section 10(1) of the ID Act cannot reach out a
conclusion on merits.
13.In this context, it is necessary to refer to the judgment of the
Supreme Court in Ram Avtar Sharma v. State of
189. The following passage found in paragraph 7 of the said judgment may be
usefully extracted below:
"7.Now if the Government performs an administrative act while either making or
refusing to make a reference under Section 10(1), it cannot delve into the
merits of the dispute and take upon itself the determination of lis. That would
certainly be in excess of the power conferred by Section 10. Section 10 requires
the appropriate Government to be satisfied that an industrial dispute exists or
is apprehended. This may permit the appropriate Government to determine prima
facie whether an industrial dispute exists or the claim is frivolous or bogus or
put forth for extraneous and irrelevant reasons not for justice or industrial
peace and harmony. Every administrative determination must be based on grounds
relevant and germane to the exercise of power. If the administrative
determination is based on the irrelevant, extraneous or grounds not germane to
the exercise of power it is liable to be questioned in exercise of the power of
judicial review. In State of Bombay v.K.P. Krishnan4 it was held that a writ of
mandamus would lie against the Government if the order passed by it under
Section 10(1) is based or induced by reasons as given by the Government are
extraneous, irrelevant and not germane to the determination. In such a situation
the Court would be justified in issuing a writ of mandamus even in respect of an
administrative order. Maybe, the Court may not issue writ of mandamus, directing
the Government to make a reference but the Court can after examining the reasons
given by the appropriate Government for refusing to make a reference come to a
conclusion that they are irrelevant, extraneous or not germane to the
determination and then can direct the Government to reconsider the matter. This
legal position appears to be beyond the pale of controversy."
14.Therefore, the Government of India's refusing to refer the three cases
of the workmen for adjudication is clearly erroneous and liable to be interfered
with by this court. The petitioner union is entitled to succeed. Hence the
impugned orders stand set aside. A direction is issued to the first respondent
to refer the cases of the three workmen for adjudication by the Central
Government Industrial Tribunal at Chennai. This exercise shall be undertaken
within a period of two months from the date of receipt of copy of this order,
without fail.
15.Accordingly, all the three writ petitions will stand allowed. However,
there will be no order as to costs. Consequently, connected miscellaneous
petitions stand closed.
vvk
To
1.The Secretary to Government,
Ministry of Labour,
Government of
2.The Assistant Commissioner of Labour (Central),
Chinna Chokkikulam,
Madurai-625 002.
3.The Management,
The India Cements Ltd.,
Sankar Nagar,
Tirunelveli District.
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