Tamil Nadu Civil Supplies Corporation Employees, Union and others vs Tamil Nadu Civil Supplies Corporation Ltd. and others

Heard the learned counsel for the parties.

These writ appeals are directed against the common order dated 18.9.1998 made by the learned single Judge in W.P.Nos.7085, 7086, 11394

and 11395 of 1998. Writ Petition Nos. 7085 and 7086 of 1998 were filed by the Tamil Nadu Civil Supplies Corporation Employees Union, and

Writ Petition Nos.11394 and 11395 of 1998 were filed by the concerned ""protected workmen"", challenging the orders of transfer. Since the

learned single Judge has given sufficient details leading to the filing of the writ petitions, we do not think it necessary to state the facts in detail again.

In the writ petitions, it was pleaded that the ""protected workmen"", coming within the meaning of Section 33 of the Industrial Disputes Act, 1947

(hereinafter referred to as ""the Act"") could not be transferred in view of the decision taken on 9.5.1989 on various demands, in the meeting held

between the Management and the employees union. The respondents-corporation, in the writ petitions, contended that the persons who were

claiming to be protected workmen in the writ petitions challenging their transfer were not ''protected workmen'' and therefore they could not claim

privilege on that ground resisting their transfer orders.

The learned single Judge, by his common, order dated 18.9.1998, dismissed all the writ petitions, taking the view that the persons claiming that

they were ''protected workmen'' were not ''protected workmen'' in the absence of any recognition as such by the management, having regard to

Section 33 of the Industrial Disputes Act, and Rules 65 of the Tamil Nadu Industrial Disputes Rules, 1958 (for short ''the Rules''); the item relating

to transfer in the minutes dated 9.5.1989 was in the nature of guidelines in regard to transfer of protected workmen, which were not enforceable in

Court of Law; and that the writ petitions filed by the employees'' union relating to transfers of some individuals were not maintainable.

Shri V. Prakash, learned counsel for the appellants contended that the learned single Judge manifestly erred in not taking into consideration the

delay on the part of the management in recognising the employees in the list of ''protected workmen'' given by the employees'' union on 23.9.1997

within the time; if the management has delayed in responding to the letter of the Union dated 23.9.1997 giving the list of protected workmen, the

appellant cannot be blamed for that; the management by its letter dated 23.2.1998, almost after a period of five months, requested the union to

furnish a fresh list of employees eliminating the supervisory cadre of employees (office bearers) with (i) Name, (ii) Designation, (iii) place in which

now working and (iv) Post (office bearership) new holding in the union and the place, for considering them as ''protected workmen''. According to

the learned counsel, the list given by the union on 23.9.1997 held good for the subsequent calendar year, and until a new list was given by the

union and recognised by the management, the old list would continue to be valid in regard to the protected workmen. In support of his submission

he relied on the decision in the case of Life Insurance of India v. D.J. Bahadur and others, 1981 (1) L.L.J. 1.

Per contra, Shri A.L. Somayaji, learned senior counsel for the respondents submitted that (i) the learned single Judge was right in dismissing the

writ petitions filed by the Management challenging the individual orders of transfer of workmen as not maintainable; (ii) Section 33 of the Act will

help the protected workmen during the pendency of proceedings pending before the authorities/forum mentioned in the said section; since no

proceedings were pending before such authorities/forum, the workmen were not protected from the orders of transfer, (iii) As per Rule 65 of the

Rules, the list will be valid only for one year, in the absence of any list recognised by the management as to ''protected workmen'', the orders of

transfer which were impugned in the writ petitions were perfectly valid.

We have considered the submissions made by the learned counsel for the parties.

The minutes of the meeting held in the chambers of the Chairman-cum-Managing Director held on 9.5.1989 show that the said meeting was

attended by the Chairman and other officers of the management as well as the representatives of the union, in which the representation of the

T.N.C.S.C. employees, union was discussed relating to various demands. The first two items of the said minutes, which are relevant, are extracted

below:

Demand of the Union Decision of TNCSC Ltd.

1.0 Management may pass orders approving Management agreed to approve the list of protected

the list of protected workmen given by union workman given by union in their letters dated 22. 12.88

in their let-ters dated 22.12.88 and 3.1. 89 and 3.1.89 and circulate it to all concerned.

1.1 Protected workers should not be Management reserves the right to transfer any of its

transferred un-less there is request from employees. However management as its discretion

union agrees to necessity arises in regard to protected

workers.

Rule 65 of the Rules, so far it is relevant for our immediate purpose, reads:-

Protected workman- (1) Every registered trade union connected with an industrial establishments, to which the Act applies, shall communicate

to the employer, before the 30th September of every year, the names and addresses of such of its officers as are employed in that establishment

and as in its opinion, should be recognised as ""protected workmen"" during the subsequent calendar year. Any change in the incumbency of any

such officer shall be communicated to the employer by the union within fifteen days of such change.

In case of any dispute between the employer and any registered trade union in respect of matters connected with the recognition of ''protected

workmen'', the 30th September of an year shall be taken as the date for determining the representative character of each union for the purpose of

this rule.

(2) The employer shall, subject to sub-section (4) of Section 33, recognise such workmen to be ''protected workmen'' for the purpose of sub-

section (3) of the said section and communicate to the union, in writing, within fifteen days of the receipt of the names and addresses under sub-rule

(1), the list of workmen recognised as ''protected workmen''.

Provided that...

(3).....

(4).....

(5) When a dispute arises between the employer and any registered trade union in respect of matters connected with the recognition of ''protected

workmen'' under this rule, the dispute shall be referred to the Labour Officer concerned. He may call for and scrutinise such of the records as may

be considered to be relevant and shall give the parties a reasonable opportunity of stating their case before giving a decision. The decision given by

the Labour Officer shall be final:

Provided that the decision shall have effect only for a period of six months from the date of such decision or till the 30th September of the year

immediately following the year referred to in sub-rule (1), whichever is earlier.

There is no dispute between the parties with regard to the letter given by the union on 23.9.1997, and the letter given by the management

dated 23.2.1998, so also with regard to the minutes of the meeting dated 9.5.1989. In the first place we stated that the minutes of meeting dated

9.5.1989 relating to the transfer of protected workmen show that the management agreed to approve the list of protected workmen given by the

union in their letters dated 22.12.88 and 3.1.89. Under Rule 65 of the Rules aforementioned, the list could be valid only for a subsequent calender

year; the list of protected workmen once given cannot be taken to be valid for all times.

The minutes further show that the management reserves the right to transfer any of its employees; however the management at its discretion

agreed to consult the union when necessity arises in regard to protected workers. It is not the case of the appellants that the minutes of the meeting

amounted to an award or a settlement enforceable, so far as they relate to transfer of protected workmen. At best they could be an understanding

or guidelines.

The Apex Court, on more than one occasion, has clearly held that the guidelines issued by the Authorities in the matter of transfers do not

confer upon the employees any legally enforceable right on the ground that the order of transfer was made without following the guidelines; orders

of transfers cannot be interfered with by Courts unless it is vitiated by mala fides, or is made in violation of statutory provisions. The decision in the

case o Union of India and Others Vs. S.L. Abbas, is also to that effect.

No doubt the employees'' union gave the list of protected workmen on 23.9.1997. The management on 23.2.1998 asked the union to send a

fresh list excluding the employees in the supervisory cadre. The learned senior counsel for the respondents submitted that the employees in the

supervisory cadre were not entitled to be protected workmen. Since the list sent by the union on 23.9.1997 included such employees also, the

management wrote the letter dated 23.2.1998. There is nothing on record to show that the management recognised the list or took some positive

action to recognise the list of protected workmen, which was to be valid for the calender year 1998.

The Supreme Court in P.H. Kalyani Vs. Air France Calcutta, , dealing with a case relating to protected workmen, in view of Section 33(3) of

the Act, in paragraph 5, has held thus:-

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 workman. 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 alongwith 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 workmen 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.

From what is stated in paragraph 5 extracted above, it is clear that the ratio of the said case fully covers the case on hand against the appellants.

There is nothing on record to show that the respondent--management took any positive action on its part in regard to recognition of the employees

as ''protected workmen''.

The decision in Life Insurance Corporation of India Vs. D.J. Bahadur and Others, in our view does not advance the case of the appellants, for

reasons more than one. The facts of that case and the question of law that came up for consideration were different; that was a case relating to the

settlement governing the bonus entered into between the parties; as can be seen from paragraph 32 of the said Judgment the core question that fell

for consideration was as to whether the settlement of 1974 was still in force. In the case on hand, it is neither an award nor a settlement under

which the appellants claimed protection for ''protected workmen'' from transfer. The Apex Court in that case held that the award or settlement did

not become non-est until a new award or settlement is brought into being. We are not able to agree with the submission of the learned counsel for

the appellants, on the basis of the said decision, that the list of protected workmen sent on 23.9.1997 should have been held valid until a new list

was prepared and recognised, particularly when there is a direct decision of the Apex court on the point, in the case of P.H. Kalyani Vs. Air

France Calcutta, .

If there was any dispute in the matter connected with the recognition of ''protected workmen'' under Rule 65(5), the dispute should have been

referred to the Labour Officer concerned. The appellants did not choose to adopt any recourse to Rule 65(5).

Under the circumstances, we do not find any good or valid reason to differ from the conclusion arrived at by the learned single Judge in

dismissing the writ petitions. In this view, we have taken, it is also not necessary to go into the question as to whether the employees'' union could

maintain writ petitions challenging the individual orders of transfer. Even otherwise, two writ petitions, viz., W.P.Nos.11394 and 11395 of 1998

were filed by the individuals.

In the result, find no merit in these writ appeals. Hence they are dismissed, but with no order as to costs.