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Judgment
K. Chandru, J.—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.
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), Madurai sent 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 Union 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.
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.
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.
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, Madurai. As he could not bring about
mediation, he sent a failure report to the Government of India, dated 24.9.2009. The Government of India upon receipt of the same, by the
impugned order, dated 9.3.2010 declined 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.
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, Salem. The dispute was conciliated by the Assistant Labour Commissioner (Central), Madurai. As he could not
bring about mediation, he sent a failure report, dated 31.8.2009 to the Government of India. The Government of India, by its order, dated
15.2.2010, exercising power u/s 10(1) 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 Union has challenged the same in this writ petition. On notice from this Court, the third Respondent management had raised identical
contentions in its counter affidavit, dated 18.10.2010 in this writ petition also.
In view of the commonality among the three writ petitions, they were grouped together and a common order is passed.
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.
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.
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.
Haryana State Marketing Board reported in (2007) 14 SCC 291. The following passage found in paragraph 15 from the said judgment may be
usefully extracted below:
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.
However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty it was noted at para 6
as follows: (SCC pp.459-60)
Law does not prescribe any time-limit for the appropriate Government to exercise its powers u/s 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 u/s 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 u/s 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.
In S.M. Nilajkar v. Telecom District Manager the position was reiterated as follows: (SCC pp.39-40, para 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. Workmen 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. Workmen. In Nedungadi Bank Ltd. v. K.P. Madhavankutty a delay of 7 years was held
to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta v. Union of India 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 India
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 Industrial Tribunal-cum-Labour Court. We do not think that 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. Workmen, SCC pp.334-36, paras 10-12 and
Chief Engineer, Ranjit Sagar Dam v. Sham Lal.
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 Company Ltd. Vs. Workmen, . 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:
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.
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 u/s 10(1) of the ID Act cannot reach out a conclusion on merits.
In this context, it is necessary to refer to the judgment of the Supreme Court in Ram Avtar Sharma and Others Vs. State of Haryana and
Another, . The following passage found in paragraph 7 of the said judgment may be usefully extracted below:
Now if the Government performs an administrative act while either making or refusing to make a reference u/s 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. Krishnan it was held that a writ of mandamus would
lie against the Government if the order passed by it u/s 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.
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.
Accordingly, all the three writ petitions will stand allowed. However, there will be no order as to costs. Consequently, connected
miscellaneous petitions stand closed.