Bharatsinh Chanubha Zala and Others vs Hindustan Petroleum Corporation Ltd. and Another

Paresh Upadhyay, J.—Heard Mr. T.R. Mishra, learned advocate for the petitioner and Mr. K.M. Patel, learned senior advocate with Mr. P.S. Gogia, learned, advocate for the respondent Corporation. The petitioners, the employees of the respondent Corporation have filed this petition with the following prayers:

(A) That Your Bharatsinh Chanubha Zala & vs. Hindustan Petroleum on 11 July, 2013 Indian Kanoon -- http://indiankanoon.org/doc/32504585/2 Lordships be pleased to issue an order, direction or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent No. 1 to immediately allow the petitioners to resume duties at their original place and pay full salary from 1-5-2013 till the petitioners are allowed to resume their duties;

(B) That Your Lordships be further pleased to direct the respondent No. 2 to immediately take necessary action for breach of Section 33, Section 22 r/w Section 9A of the Industrial Disputes Act, 1947;

(C) Pending admission and final disposal of this petition. Your Lordships be pleased to direct the respondent to allow the petitioners to resume their duties forthwith as if they have never been relieved from the original place at Kandla;

(D) Any other and such further relief as the Hon''ble Court deems fit and proper in the interest of justice together with costs

Learned advocate for the petitioners has submitted that the petitioners were working as Security Guards with the respondent Corporation at Kandla-Kachchh, and on 30.4.2013 they are relieved from Kandla to join at Aimer. It is this action, which is the cause of action for the petitioners to approach this Court, with the above quoted prayers. The said relieving orders dated 30.4.2013 are placed on record by the petitioners as Annexure-M, page-59 to 63. It is contended that conciliation proceedings had started before the Assistant Commissioner of Labour (Central), Adipur, Gandhidham-Kutch on 23.4.2013. It is stated that even notice was issued by that Authority to the respondent Corporation on 25.4.2013 informing that discussion with regard to industrial dispute pertaining to the transfer of these persons, was kept on 29.4.2013. It is the case of the petitioners that, with a view to create record, transfer orders were dispatched on 25.4.2013 by registered post to the petitioners, claimed to have been issued on 20.4.2013 and 22.4.2013. Further details of the date of transfer orders are given by the petitioners in paragraph 2 of the petition, at page-5. As per those details, the transfer order of the petitioner No. 1 is dated 22.4.2013 and qua all other petitioners it is dated 20.4.2013. Copies of the said transfer orders are also placed on record as Annexure-C, at page 24 to 28. It is contended that the conciliation proceedings having been started on 23.4.2013, the impugned action of the respondent Corporation of transferring the petitioners from Kandla to Ajmer (Rajasthan) is in violation of Section 33 of the Industrial Disputes Act, 1947. It is contended that the petitioners were relieved from their posts vide orders dated 30.4.2013 and thus, on and from 1.5.2013, they were not treated to be on the muster rolls at Kandla, which according to the learned advocate for the petitioners, has resulted as lock-out qua them, which is also a breach of Section 22(2) of the Act. It is also the case of the petitioners that this is a change in their condition of service, which could not have been done without putting them to notice, and thus there is also violation of Section 9A of the Act. It is therefore submitted that, when the dispute relating to transfer of the petitioners was pending conciliation before the Assistant Commissioner of Labour (Central), the action of the respondent Corporation of relieving the petitioners on 30.4.2013 from Kandla to join at Ajmer is violative of Sections 33, 22(2) and 9A of the Industrial Disputes Act. Under these circumstances, it is prayed that though relieved, the petitioners be permitted to resume duties at Kandla and the respondent Corporation be directed to pay salary to the petitioners from 1.5.2013. It is further prayed that the Assistant Commissioner of Labour (Central) be directed to initiate proceedings against the respondent Corporation for breach of Section 33, Section 22(2) and Section 9A of the Industrial Disputes Act. Learned advocate for the petitioners has also contended that the transfer orders, pursuant to which the impugned relieving orders are passed, are also inconsistent with the settlement of the Management with the Union Learned advocate for the petitioners has relied on the following decisions in support of his contentions.

(i) M/s. Lokmat Newspapers Pvt. Ltd. Vs. Shankarprasad, Dena Bank Vs. D.V. Kundadia, Hindalco Industries Limited Vs. Suman Lata Tuteja and Others, Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, M.D., Tamil Nadu State Transport Corporation Vs. Neethivilangan Kumbakonam, 2002 (92) FLR 560 , Bach Raj Soni v. State of Rajasthan Civil Appeal No. 900 of 1976 (SC). The Bhavnagar Municipality v. Alibhai Karimbhai and others; The Bhavnagar Municipality Vs. Alibhai Karimbhai and Others, Purshottam Vishandas Raheja and Another Vs. Shrichand Vishandas Raheja (D) through L.Rs. and Others, O.P. Sharma and Others Vs. High Court of Punjab and Haryana, 1960-61 Factory Journal Reports (xix) 1, Newspapers Limited, Allahabad v. U.P. State Industrial Tribunal and others.

On the other hand, Mr. K.M. Patel, learned senior advocate for the respondent Corporation has contended that, on the material aspects, the petitioners have not disclosed full facts in the petition. Attention of the Court is invited to the contents of the affidavit-in-reply dated 26.6.2013, filed on behalf of the respondent Corporation. It is stated that the petitioners were already transferred by the orders dated 20.4.2013 and 22.4.2013, the details of which are recorded above. It is further stated that the petitioners were sought to be served with those transfer orders, but the petitioners had refused to accept the same. It is contended that, thus on 23.4.2013, not only the petitioners were aware about the transfer orders having been issued but they had also refused to accept the same and only because of that, when for the first time they approached the Assistant Commissioner of Labour (Central), those details are already mentioned in their complaint raising the dispute in that regard. The first letter written on behalf of the petitioners to the Assistant Commissioner of Labour is on record as Annexure-E, Page 39, which is dated 23.4.2013. Attention of the Court is also drawn to the overwriting on date at page 39, which ex-facie is, made 23.4.2013 from 24.4.2013. Even the new place of posting of the petitioners Ajmer is shown in the said letter/complaint. It is therefore contended that even going by the record sought to be relied by the petitioners themselves, it turns out to be untrue that during conciliation proceedings, they are transferred from Kandla to Ajmer. Attention of the Court is also drawn to the fact that the petitioners were already redesignated as General Service Assistant Cluster-A since long and as General Service Assistant, they are transferred because of reallocation of staff as agreed by the recognised Union with the Management. It is stated that even the petitioner No. 1 himself has been signatory to the said settlement, wherein even his new place of posting Ajmer is shown. It is further contended that the recognised Union having agreed to it, and petitioner No. 1 himself being signatory to it, an illegitimate route was resorted to, through petitioner No. 6 Union which can not have any locus standi. Specific reference in this regard is made to the contents of paragraphs 29 to 34 of the affidavit-in-reply. It is also pointed out that even with the said unrecognised Union, the dispute is not admitted in conciliation proceedings, therefore, it can not be said that during pendency of conciliation proceedings, transfer orders or relieving orders are issued. It is contended that, since the process of discussion regarding conciliation has started only after the transfer orders having been passed, because of those transfer orders, the action of the respondent Corporation cannot be termed as violative of Section 33 of the Industrial Disputes Act. It is contended that the respondent Corporation is a Government Organisation and transfer, anywhere in the country, is a condition of service. Further, not only the transfer, even the transfer to Ajmer in this case is pursuant to written agreement with the recognised Union and therefore there was no occasion for giving notice u/s 9A of the Act. It is stated that, thus going by any standard, the transfer orders issued by the respondent Corporation, in case of petitioner No. 1 on 20.4.2013 and in case of other petitioners on 22.4.2013 were legal, valid and proper and therefore, the action of the respondent Corporation of giving effect to those transfer orders by relieving the petitioners on 30.4.2013, in no way can be termed as lock-out qua the petitioners from 1.5.2013, which may attract Section 22(2) of the Act. Learned advocate for the respondent Corporation has further contended that it is also not that the petitioners are low paid employees and the change of headquarter would result in unmanageable financial hardship. Attention of the Court is invited to the contents of paragraph 48 of the affidavit-in-reply to submit that each petitioner is getting monthly emoluments of approximately Rs. 80,000 to Rs. 1,00,000. Copies of pay-slips of the petitioners are also placed on record. It is submitted that the transfer orders dated 20.4.2013 and 22.4.2013 are claimed to be the subject matter of proceedings before the Assistant Commissioner of Labour (Central) and what is agitated in this petition is only the action of the respondent Corporation of relieving the petitioners from Kandla on 30.4.2013. It is contended that since the respondent Corporation has not committed any illegality or impropriety, the respondent Corporation be not directed to continue the petitioners at Kandla and respondent No. 2 Assistant Commissioner of Labour (Central) be not directed to initiate any proceedings against respondent No. 1 Corporation. Learned senior advocate for the respondent Corporation has relied on the following decisions in support of his contentions.

(i) The Bombay Union of Journalists and Others Vs. The ''Hindu'', Bombay and Another,

(ii) Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani,

(iii) State of Punjab and others Vs. Joginder Singh Dhatt,

(iv) Cipla Ltd. Vs. Jayakumar R. and Another,

(v) U.P. State Bridge Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh,

(vi) State of U.P. and Others Vs. Gobardhan Lal,

4.1 Having heard learned advocates for the respective parties and having gone through the material on record, the point which falls for consideration before this Court is as to whether the action of the respondent Corporation of relieving the petitioners on 30.4.2013 from Kandla to join at Ajmer is illegal or arbitrary in any manner and whether the respondent No. 2 Authority needs to be directed to initiate proceedings against respondent No. 1 Corporation for breach of Sections 33, 22(2) or Section 9A of the Industrial Disputes Act.

4.2 For the purpose of deciding these points, the facts as emerging from record, needs to be recorded here. However, before doing so, it is recorded that the prayer clause in this petition is what is quoted above, and there is no challenge to the transfer orders of the petitioners, pursuant to which the relieving orders are issued on 30.4.2013, which is projected to be the cause of action for filing this petition. However, since this Court is required to pronounce on the legality or otherwise of the action of the respondent Corporation of relieving the petitioners on 30.4.2013 to join at Ajmer, in effect, it has become necessary to decide as to whether the said relieving is pursuant to legally sustainable transfer orders or not. Under these circumstances, though there is no formal challenge to the transfer orders dated 20.4.2013 and 22.4.2013, to answer the point which has fallen for consideration before this Court, which is noted above, it has become necessary to examine the legality of those transfer orders to the limited extent. It is further recorded that, whether the petitioner No. 6 Union is competent to raise such a dispute before respondent No. 2 Authority or not, is also not an issue, which is gone into by this Court and it is open to the parties to agitate on that point before respondent No. 2 Authority, on all available grounds, in accordance with law.

4.3 Reverting back to recording of the facts as emerging from record, the picture which has emerged is as under.

5.1 The petitioners were working as Security Guards with the respondent Corporation at Kandla-Kachchh. The post of Security Guard is part of Cluster-A for the purpose of administrative classification in the respondent Corporation.

5.2 The petitioners were treated to be General Service Assistants by the respondent Corporation since long. The post of General Service Assistant also forms part of Cluster-A at par with Security Guard. Treating the petitioners as General Service Assistants was pursuant to the agreement with the recognised Union on 22.12.2009. These details are pointed out in paragraph 15 in the affidavit-in-reply.

5.3 The surplus General Service Assistants, instead of being retrenched, were agreed to be transferred to other places, vide agreement dated 6.4.2013, which is also signed by the petitioner No. 1 as one of the representative/office-bearer of the recognised Union i.e. Hindustan Petroleum Karmachari Union. The said agreement also contains details of transfer of all the concerned workmen, including the present petitioners, with even the details of new place of posting i.e. Ajmer in this case.

5.4 Pursuant to the said written agreement/under-standing, the petitioners were transferred by the respondent Corporation. The petitioner No. 1 is transferred vide order dated 20.4.2013, and other petitioners are transferred vide order dated 22.4.2613.

5.5 The petitioners refused to accept the said transfer orders.

5.6 The petitioners approached the Assistant Commissioner of Labour (Central) at Adipur-Gandhidham (Kutch) on 24.4.2013 with the grievance that they are being transferred to Ajmer. The said date is sought to be projected as 23.4.2013. Even if it is accepted to be 23.4.2013, ultimately that does not change the complexion of the matter.

5.7 Thus, when the petitioners approached the Assistant Commissioner of Labour (Central), they were knowing that they have already been transferred to Ajmer. They had this knowledge pursuant to written understanding dated 6.4.2013, and also actual transfer orders dated 20.4.2013 and 22.4.2013, which they had refused to accept.

5.8 The Assistant Commissioner of Labour (Central), based on the said complaint of the petitioners through petitioner No. 6 Union, issued notice to the respondent Corporation on 25.4.2013 calling them to have discussion with regard to conciliation proceeding in this regard on 29.4.2013.

5.9 On 29.4.2013, the respondent Corporation appeared and preliminary objections were raised with regard to locus standi of the petitioner No. 6 Union, so also the maintainability of the proceedings, on the face of agreement with the recognised Union. The said stand of the respondent Corporation is on record at Annexure-I, page-45. The respondent Corporation gave further reply on 30.4.2013, which is also on record at Annexure-K.

5.10 Thereafter, on 30.4.2013, relieving orders pursuant to the transfer orders dated 20.4.2013 and 22.4.2013, were issued.

5.11 The petitioners, through petitioner No. 6 Akhil Bhartiya Safai Mazdoor Sangh, again complained to the Assistant Commissioner of Labour (Central) on 1.5.2013. On the same day, the Assistant Commissioner of Labour (Central) sent a communication to the respondent Corporation informing about the complaint of the petitioners in that regard. The next date of hearing was fixed on 13.5.2013.

5.12 At that stage, on 9.5.2013, the petitioners moved this Court (in summer vacation) for urgent hearing on 10.5.2013. On 10.5.2013, this Court considered the grievance of the petitioners on the basis of the material on record then, and found prima facie case in favour of the petitioners. The petitioners having projected themselves to be Security Guards, appeared to be low paid employees and in that background, their transfer to Ajmer was viewed seriously. Since the further hearing before the Assistant Commissioner of Labour (Central) was scheduled on 13.5.2013, at the relevant time, it was thought prudent to grant interim protection to the petitioners. Though the respondent Corporation was appearing on caveat, it had chosen to contest this petition on that day without filing any affidavit-in-reply. Now, a detailed affidavit-in-reply is on record and this Court has the benefit of having complete picture before it.

5.13 In the above sequence of events, few things become clear, the date on which the Assistant Commissioner of Labour (Central) was approached, be it 24.4.2013 or 23.4.2013, transfer orders were already issued, the same were issued pursuant to written agreement with the recognised Union to which petitioner No. 1 is also a signatory, further, the Assistant Commissioner of Labour (Central) is moved through an unrecognised and unauthorised. Union in that regard, preliminary hearing before the Assistant Commissioner of Labour (Central) regarding complaint of the petitioners was going on, and even the preliminary issues including the locus standi of petitioner No. 6 Union and maintainability of the proceedings were yet to be addressed and decided by the Assistant Commissioner of Labour (Central), and in any case, the grievance voiced in this petition with regard to the action of the respondent Corporation of relieving the petitioners on 30.4.2013, was pursuant to the transfer orders dated 20.4.2013 and 22.4.2013, which are not found to be illegal in any manner.

5.14 It is also clear that, it is not that since conciliation proceedings were pending, therefore petitioners are transferred. Even going by the say of the petitioners, since they were transferred, therefore they had approached the Assistant Commissioner of Labour (Central). Under these circumstances, it is not possible to accept the say of the petitioners that the action of the respondent Corporation of relieving them on 30.4.2013 is violative of Section 33 of the Industrial Disputes Act. Further, the relieving orders of the petitioners dated 30.4.2013, pursuant to the validly issued transfer orders, and thereby not permitting the petitioners to serve at Kandla on and from 01.5.2013, in this fact situation, can not be termed as lock out by the employer qua these petitioners, so as to attract Section 22(2) of the Act. The transfer of an employee from one place to another, in public sector undertakings, is an incident of service, further, in the present case, the transfer has been effected pursuant to the settlement arrived at by the, Management with the recognised Union, where even the name of the petitioners and their station of transfer is mentioned and the same is even signed by petitioner No. 1. Thus, the said transfers cannot be even termed as change in condition of service and under these circumstances, even the argument of violation of Section 9A of the Act needs to be rejected. Since this Court has found that the transfer orders had already been issued prior to even the first letter having been issued by the Assistant Commissioner of Labour (Central), the decisions cited by learned advocate for the petitioners referred above, would not take the case of the petitioners any further.

5.15 According to learned advocate for the petitioners, the issue of transfer is pending before Assistant Commissioner of Labour (Central). The legality of the orders impugned before the Assistant Commissioner of Labour (Central) is discussed in brief above only for the purpose of considering the prayer clause-B of the petitioners that respondent No. 2 be directed to initiate proceedings against the Authority of respondent No. 1 for breach of Section 33, Section 22 and Section 9A of the Act and it is held that there is no breach of Section 33, Section 22 and Section 9A of the Act.

In the facts, circumstances and reasons as recorded above, this Court finds that no illegality can be attributed to the action of the respondent Corporation of relieving the petitioners on 30.4.2013, pursuant to validly issued transfer orders dated 20.4.2013 and 22.4.2013. This Court further finds that, this would also not result in unmanageable financial hardship to the petitioners, the factor which had weighed to this Court at the time of granting interim relief in their favour. Thus, the first prayer of the petitioners, which is quoted above, cannot be granted. This Court also finds that, no conciliation proceedings were initiated, much less pending on the date of issuance of transfer orders, and therefore the action of the respondent Corporation of relieving the petitioners on 30.4.2013, which is complained in this petition, does not amount to violation of Section 33 of the Industrial Disputes Act. This can also not be termed as a lock out in any manner and therefore, Section 22 of the Act will also not be attracted. The transfer order, which is claimed to be the subject-matter pending before the Assistant Commissioner of Labour (Central), in my view, in the facts of this case, would also not require notice u/s 9A of the Act, as perceived by the petitioners. Therefore, I am of the view that the petitioners are not entitled to claim the second relief either, which is quoted above. Thus, none of the prayers can be granted to the petitioners. Petition is dismissed. Rule is discharged. Interim relief is vacated. No order as to costs.

Paresh Upadhyay, J.

After this judgment is pronounced, learned advocate for the petitioners has prayed that the interim relief granted by this Court on 10.5.2013 be continued for some period. This is objected by learned senior advocate Mr. K.M. Patel for the respondent Corporation. Considering the totality, it is ordered that, no coercive action shall be taken by the respondent Corporation against the petitioners, for a period of two weeks from today, for not joining at the transferred place.