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Judgment
The Tamil Nadu Civil Supplies Corporation Employees Union has filed W.P.Nos.7085 and 7086 of 1998 challenging the transfer orders
passed by the second respondent in its proceedings dated 4.5.1998 and 30.4.1998 respectively with respect to its employees specifically
mentioned in the above writ petitions on the ground that they are ''protected workmen'' and transfers cannot be made. The concerned ''protected
workmen'' also have filed writ petition is W.P.Nos. 11394 and 11395 of 1998 challenging the proceedings. Since the issue involved in these writ
petitions is one and the same, the issue is taken together for disposal.
According to the petitioners, they are ''protected workmen'' within the meaning of Section 33 of the Industrial Disputes Act, and, in view of the
decision taken on 9.5.1989 on various demands, the management agreed to extend the benefits for the ''protected workmen'' even with respect to
the transfer. On that basis the petitioners have come forward with the above writ petitions in W.P.Nos.7085 and 7086 of 1998 etc., alleging that
the transfer orders cannot be sustained.
The second respondent in W.P.Nos.7085 and 7086 of 1998 has filed counter. According to the second respondent, the persons claiming as
protected workmen'' in those writ petitions are not ''protected workmen'' and so they cannot claim any privilege on that ground to challenge the
transfer orders.
The learned counsel appearing for the petitioners Mr. Prakash, has submitted that the transferred workmen are ''protected workmen'' for the
purpose of Section 33 of the Act, during the year 1997. Rule 65 of the Tamil Nadu Industrial Disputes Rules, 1958 describes the method of
preparing the list of ''protected workmen'' every year. Relying on this Rule, the learned counsel has also submitted that though the petitioners- union
has also submitted the list as early as on 23.9.1997, since the management has not recognised the list within the time stipulated, the earlier list will
continue till the new list is prepared. On the basis of the said submission and relying on the list for the academic year 1997, the learned counsel has
submitted that the petitioners employed in the union have to be treated as ''protected workmen''. The learned counsel has further submitted that the
''protected workmen'' can enjoy the privilege only during the pendency of any conciliation proceeding before a Conciliation Officer or a board or
of any proceeding before an arbitrator or a Labour Court or a Tribunal, or National Forum, in respect of an industrial dispute. With respect to the
transfers. Independent of the same, the ''protected workmen'' are entitled to have the privilege of not transferring them as agreed to in the minutes
dated 9.5.1989. With respect to the said minutes according to the learned counsel, it is only to identify the persons claiming privilege as ''protected
workmen''. Otherwise, the circumstances that has been specified u/s 33 of the said Act to enjoy the privilege cannot be made applicable with
respect to transfers. In answering to this grievance of the petitioner Union, the learned Senior Counsel appearing for the respondents-Corporation
has submitted that the petitioners- Union cannot sustain the writ petitions challenging the individual orders of transfer. He has further submitted that
during the relevant period, there is no recognized, ''protected workmen'' as contemplated under Rule 65 of the said Rules, and in the absence of
any such recognition the workmen who have been transferred cannot make any claim on the ground that they are ''protected workmen''. The
learned Senior Counsel has also submitted that the said workmen are claiming privilege only as ''protected workmen''. That being the fact, they
cannot claim a privilege beyond the scope of Section 33 of the said Act. Referring to the minutes, the learned Senior Counsel has submitted that
the respondents-corporation/management has reserved its right to transfer its workmen. Only at its discretion, it has agreed to consult the
petitioners-Union, that too . When necessity arises in regard to ''protected workmen''. Consultation with the petitioners-Union to transfer the
workmen is not an absolute one, but it is the discretion of the management to do so when the Union feels it necessary. Referring to the transfer
orders, the learned Senior Counsel has submitted that the transfer orders are general in nature and not with respect to a particular workman. On
the basis of the abovesaid submission, the learned Senior Counsel has submitted that the writ petitions cannot be sustained.
To decide the correctness of the abovesaid submissions, now it has to be found put whether the workmen of the petitioner- Union are
''protected workmen'' during the relevant period. Admittedly, in compliance with the Rule 65(1) of the Rules, the petitioners-Union communicated
the list on 23.9.1997. According to the petitioners-Union, the respondent-Corporation/management, has not recognised the workmen to be
''protected workmen in writing, within 15 days of the receipt of the said communication as contemplated under Rule 65(2) of the Rules. So, a
dispute was raised under Rule 65 of the Rules. The Labour Officer held that the workmen of the petitioner-Union are ''protected workmen''.
According to respondent-Corporation/management, the list submitted by the petitioner-Union for 1997 had expired on 31.12.1997. Since the list
submitted on 23.9.1997 was not in conformity with the provisions of the said Act, the management has directed the petitioner-Union to submit the
revised list after deletion of the supervisory cadre. The petitioners ate working in supervisory cadre and so they cannot be included under the
''protected workmen'' category. On 5.3.1999 the petitioner-Union objected to the direction given by the respondent/management on the ground
that they are also entitled to be recognised, as ''protected workmen''. Ultimately on 11.6.1998, the respondent/management recognized some of
the workmen from the list as ''protected workmen'' leaving the persons who are working in the supervisory cadre. So, the petitioner-Union raised a
dispute under Rule 65(5) of the Rules. On the basis of the abovesaid facts, the learned Senior Counsel appearing for the respondent-management
has submitted that the fact remains that the list was not available as on the date of passing the transfer orders to claim that the petitioners as
''protected workmen''.
The learned counsel appearing for the petitioner-Union in support of his submission has contended that the list for the year 1997 will continue till
the other list is prepared for the subsequent year. He relied on the decision in Life Insurance Corporation of India Vs. D.J. Bahadur and Others, .
In the said decision, the Apex Court has held ""the settlement under the Industrial Disputes Act does not suffer death merely because the notice
issued under S.19(2), and, all that is done is a notice ''intimating its intention to terminate the award.'' The award, even if it ceases to be operative
qua award continues qua contract"". Relying on the abovesaid principle, the learned counsel appearing for the petitioner had tried to extend the
same to Section 33 of the said Act and to Rule 65 of the said Rules. But, unfortunately, in this case, though the respondent-management has not
passed any order in writing within 15 days as contemplated under Rule 65(2) of the Rules, and the petitioner-Union did not raise any dispute
immediately. It has raised the dispute only on 16.6.1998.,
In the decision in P.H. Kalyani Vs. Air France Calcutta, , while deciding similar issue, the Apex Court has held as follows:-
Learned counsel for the appellant has further raised some points which were raised on behalf of the appellant before the Labour Court. In the first
place, he contends that the appellant was a protected workman and the Labour Court was not right when it held that the appellant was not a
protected work man. We are of opinion that the question whether a particular workman is a protected workman or not is a question of fact, and
the finding of the Labour Court on such a question will generally be accepted by this Court as conclusive. Besides, the Labour Court has pointed
out that the mere fact that a letter was written to the Manager of the respondent-company by the Vice-President of the union in which the name of
the appellant was mentioned as a joint secretary of the union and the manager had been requested to recognise him along with others mentioned in
the letter as protected workmen would not be enough. The company had replied to that letter pointing out certain legal defects therein and there
was no evidence to show what happened thereafter. The Labour Court has held that according to the rules framed by the Government of West
Bengal as to the recognition of protected workman there must be some positive action on the part of the employer in regard to the recognition of
an employee as a protected workman before he could claim to be a protected workman for the purpose of S.33. Nothing has been shown to us
against this view. In the absence therefore of any evidence as to recognition, the Labour Court rightly held that the appellant was not a protected
workman and therefore previous permission under S.33(3) of the Act would not be necessary before his dismissal.
In view of the abovesaid decision, and in view of the fact that in the present case the respondent-management has not recognized the workmen of
the petitioner-union as ''protected workmen'' during the relevant period, so the petitioners cannot claim as ''protected workmen''. Therefore the
writ petitions cannot be sustained on the abovesaid ground.
The main attack of the petitioners on the orders of transfer is they were passed contrary to the minutes dated 9.5.1989 and the petitioner-union
was not at all consulted before passing the orders of transfer. The abovesaid minutes of the respondent-management have to be taken only as
guidelines for effecting the orders of transfer. The minutes do not confer upon the petitioner-union any legal enforceable right so as to claim that the
transfer orders were passed without following the guidelines. To come to such conclusion I seek support from the decision in Union of India and
Others Vs. S.L. Abbas, , wherein the Apex Court has held as follows:-
Who should be transferred where, is a matter for the appropriate authority to decide,. Unless the order of transfer is vitiated by mala fides or is
made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must
keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the
appropriate must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife
must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right
Similar view has been taken by the Division Bench of this Court in Tamil Nadu Electricity Board and others v. Loganathan, 1995 W.L.R. 387
wherein it is held as follows:-
In the instant case, the Board has issued the impugned memorandum in order to meet particular contingency. It is staled in the very same
memorandum that it would be applicable only when the transfer is to be effected by reason of abolition of posts. The relevant portion of the official
memorandum states that the juniormost in the combined two circles shall be transferred out. The grievance of the respondent is that whereas in the
case of Class III and IV, seniormost employees should be transferred and when it comes to the inferior category employees, the junior- most
should be transferred. It is highly inequitious and opposed to the earlier memorandum, which is found as reasonable by the learned single Judge. If
such a contention is 10 be countenanced, then the Electricity Board-the Employer, will have no power to effect transfer of its own employees.
There is no right vested in the writ petitioner to contend that he is not transferable. For the purpose of transfer, certain guidelines are adopted. We
may also point out that the impugned guideline has not affected the petitioner in any manner. It has been brought to our notice that State wide
seniority list is prepared for the purpose of effecting promotions and that the petitioner is also included in the panel of officials to be promoted. The
combined seniority of persons serving in the Mettur in M.T.P.P. and M.T.P.S. is only for the purpose of effecting transfers as a result of abolition
of posts.
The learned Senior Counsel appearing for the respondent-management has submitted that the writ petitions filed by the petitioner-union cannot
be maintained in view of the decision of this Court in The Regional Secretary, C.A.T. Staff Union v. Director of Communication, N.A.A. Madras
Region, 1991 W.L.R. 169 and the order of this Court dated 25.6.1994 in W.P.No.12798 of 1985, made by Raju, J., as he then was. In the
decision in The Regional Secretary, C.A.T. Staff Union v. Director of Communication, N.A.A. Madras Region, 1991 W.L.R. 169,
Bakthavatsalam, J., as he then was, has held as follows:-
After considering the arguments of Mr.Thamby, learned counsel for the petitioner as also of Mr.Paul Pandian, learned counsel for the respondents
I am of the opinion that the respondents'' contentions have to be accepted. First of all, the writ petition is not maintainable, because the order of
transfer dated 18.5.1989 refers to so many officials and by filing the writ petition, the petitioner cannot stall the proceedings. If the officers are
aggrieved by the orders of transfer, it is open to them to challenge the same. The writ petition is filed against retention of certain persons in a
particular category and this is not a writ petition filed against an order of transfer"".
In W.P.No.12798 of 1985 (supra), Raju, J., as he then was, while dealing with similar issued regarding the maintainability of the writ petition at
the instance of the Tamil Nadu Civil Supplies Corporation Employees, Union has held, on the basis of the judgment of the Division Bench of this
Court in The Tamil Nadu Civil Supplies Corporation quality control staff Association, rep. by its general secretary by its general secretary,
Madras-91 v. The Tamil Nadu Civil Supplies Corporation Ltd., rep. by its Chairman-cum-Managing Director, Madras-10, W.A.No.1149 of
1986 held as follows:
I am of the view that, as held by the Division Bench, the grievance sought to be made out by the association in such general terms cannot be
countenanced for adjudication or acceptance. If in a given case any prejudice or illegality or damage is specifically raised or sought to be
vindicated then only this Court can entertain such individual claims for consideration and adjudication. The same view has been taken by the
Division Bench also in a similar matter. Applying the same to the present Writ Petition also, this writ petition shall stand dismissed"".
For the reasons stated above, these writ petitions cannot be sustained and they are dismissed accordingly. No costs. Consequently,
W.M.P.Nos.10815, 10816, 11442, 11443 to 17385 of 1998 are closed.