Kerala High Court
Hindustan Unilever Limited vs The General Secretary on 15 March, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934
WP(C).No. 6994 of 2011 (Y)
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ID.2/2009 of INDUSTRIAL TRIBUNAL, ALAPPUZHA
PETITIONER(S):
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HINDUSTAN UNILEVER LIMITED,
TATAPURAM, ERNAKULAM NORTH P.O., KOCHI-682 018
REP.BY ITS FACTORY MANAGER, MR.R.JOHN GEORGE.
BY ADVS.SRI.P.RADHAKRISHNAN
SRI.MADHU RADHAKRISHNAN
SRI.NELSON JOSEPH
SRI.M.D.JOSEPH
RESPONDENT(S):
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1. THE GENERAL SECRETARY, TATA OIL MILLS
COMPANY LIMITED STAFF ASSOCIATION, TATAPURAM
ERNAKULAM NORTH P.O., KOCHI-682 018.
2. INDUSTRIAL TRIBUNAL, ALAPPUZHA-688 001.
R1 BY ADV. SRI.N.DHARMADAN (SR.)
R1 BY ADV. SMT.D.P.RENU
R2 BY GOVERNMENT PLEADER SRI.PADMALOCHANAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).NO.6994/2011
APPENDIX
PETITIONER'S EXHIBITS:
P1: TRUE COPY OF THE SETTLEMENT DATED 15.3.2002.
P2: TRUE COPY OF THE CLAIM STATEMENT DATED 1.10.2009 FILED BY THE 1ST
RESPONDENT BEFORE THE 2ND RESPONDENT IN I.D.2/2009.
P3: TRUE COPY OF THE WRITTEN STATEMENT DATED 19.1.2010 FILED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT IN I.D.2/2009.
P4: TRUE COPY OF THE REJOINDER DATED 4.2.2010 FILED BY THE 1ST
RESPONDENT BEFORE THE 2ND RESPONDENT IN I.D.2/2009.
P5: TRUE COPY OF THE AWARD DATED 13.12.2010 PASSED BY THE 2ND
RESPONDENT IN I.D.2/2009.
RESPONDENTS' EXHIBITS:
R1(a): TRUE COPY OF THE RELEVANT PORTION OF ANNEXURE-3 ATTACHED TO
EXT.P1 SCHEME.
R1(b):TRUE COPY OF THE ORDER (CERTIFICATE) ISSUED BY THE TATA OIL MILLS
COMPANY LIMITED.
R1(c):TRUE COPY OF THE ORDER DATED 4.4.2002.
R1(d):TRUE COPY OF THE LIST OF THE CLERICAL STAFF IN THE COMPANY.
R1(e):TRUE COPY OF THE REPORT DATED 4.5.2009 BY DISTRICT LABOUR OFFICER.
R1(f): TRUE COPY OF PROOF AFFIDAVIT IN I.D.2/2009 BEFORE THE INDUSTRIAL
TRIBUNAL.
//TRUE COPY//
P.A.TO JUDGE
C.T. RAVIKUMAR, J.
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W.P.(C). No.6994 OF 2011
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Dated this the 12th day of November, 2012
JUDGMENT
The Hindustan Lever Limited, now known as M/s.Hindustan Unilever Limited, the management in I.D.No.2 of 2009, filed this writ petition challenging Ext.P5 award passed by the Industrial Tribunal, Alappuzha. Tata Oil Mills Company Limited Staff Association, the first respondent representing the workman Sri.Peethambaran Pillai, raised the dispute that ultimately culminated in Ext.P5.
2. A glance at the service particulars of the workman concerned as also his grievances sought to be redressed through conciliation is essential and they read thus:-
The workman Sri.Peethambaran Pillai commenced his service in the erstwhile Tata Oil Mills Company Ltd. on 7.6.1972. He was promoted as peon with effect from 10.11.1975 and then to the cadre of Clerk C Grade from 1.7.1977. On obtaining further promotions, he W.P.(C).6994/11 2 reached up to the level of Clerk A Grade in its Accounts Department, with effect from 1.4.1984. While so, the said company got amalgamated with the erstwhile Hindustan Lever Limited. Even after the amalgamation, he continued to be in the general shift. In fact, he came to the said shift pursuant to Ext.R1(c) order with effect from 5.4.2002. While continuing so, he was transferred to the third shift under rotation shift system with effect from 15.11.2008. It is to be noted that in the petitioner company, general shift is from 8 a.m. to 4 p.m. The three shifts under the rotation shift are from 6 a.m. to 2 p.m., from 2 p.m. to 10 p.m and from 10 p.m. to 6 a.m. The workman, on feeling aggrieved by his posting in the rotation shift got raised a dispute through his union and after an unsuccessful attempt for conciliation, the matter was ultimately referred for adjudication before the Industrial Tribunal. Government of Kerala as per G.O.(Rt) No.715/2009 LBR dated 29.5.2009 referred the industrial dispute between the parties to the Tribunal. The issue referred for adjudication was as follows.:-
"Whether the transfer given to Sri.M.V.Peethambaran Pillai, A Grade Clerk of General Shift to 3rd shift with W.P.(C).6994/11 3 effect from 15.11.2008, by the management of Hindustan Unilever Limited, Cochin is justifiable or not? If not what relief he is entitled to get?"
3. The first respondent Union filed Ext.P2 claim statement before the Labour Court. The management filed Ext.P3 counter statement. The management contended that the reference itself is not maintainable as the issue involved therein would not and could not constitute an industrial dispute as defined under section 2A of the Industrial Disputes Act. It is contended that the request for change of shift could not be made by a workman as a matter of right and working in a shift being a condition of service, the workman got no legal right to challenge or question when being asked to work in a particular shift. In essence, the contention of the management essentially is that the right to distribute manpower exclusively falls within the realm of managerial prerogative and that cannot be challenged. On the other hand, the union contended that the very action in posting the workman in the third shift of the rotation shift is arbitrary and discriminatory. The specific contention was that the workman concerned is the senior most A Grade Clerk and that it was W.P.(C).6994/11 4 while retaining many of his juniors that he was transferred to the rotation shift. The further disadvantages that would emanate from the said action were also highlighted in Ext.P2. Above all, it is contended that by the impugned action the terms and conditions of service of the workman was changed to his prejudice and thereby, it violated the protection available to Tomco employees by virtue of the decision of the Hon'ble Supreme Court in Hindustan Unilever Employees Union v. Hindustan Unilever Ltd. and others reported in (1995) (suppl.) 1 SCC 499. On the side of the Union, the workman concerned was examined as WW1 and on the side of Management, one Suresh Varghese was examined as MW1. W1 to 8 were marked on the side of the union and Exts.M1A and M1B were marked on the side of the management. After careful evaluation of the evidence on record and after considering the rival contentions, Ext.P5 award was passed by the Tribunal. The Tribunal found that posting of the workman in the rotation shift is absolutely unjustifiable and therefore, the grievance raised by the workman has to be redressed suitably. Based on the said finding, the management was directed to post the W.P.(C).6994/11 5 workman in the general shift within one month from the date of pronouncement of Ext.P5 award. It is challenging Ext.P5 award that this writ petition has been filed.
4. I have heard Adv.Madhu Radhakrishnan for the petitioner and learned Senior Advocate Sri.Dharmadan for the first respondent.
5. Learned counsel for the petitioner contended that Ext.P5 award is against the terms and spirit of Ext.P1 settlement and as the workman had not raised any challenge against any of the terms and conditions in Ext.P1 settlement, challenge against his transfer/posting effected invoking the power conferred under Ext.P1 has to fail. It is further contended that while passing Ext.P5 award, the Tribunal had ignored the crucial aspect that settlement was arrived at between the management and the union before the conciliation officer after deliberations and discussions on several issues and therefore, interference with the order of transfer would undoubtedly denude sanctity of the very settlement and at any rate, it is impermissible for W.P.(C).6994/11 6 an individual workman to challenge such a settlement. Essentially, the contention of the petitioner is founded on clause 9 in Ext.P1 and Ext.R1(a). Clause 9 in Ext.P1 reads as follows:-
"All existing clerical staff will be accommodated with total flexibility in their functions including deployment in Engineering, Safety, TPM etc. and also to assist Shift Officer in areas not directly connected with production. They will work in any approved shifts in the Factory."
Ext.R1(a) to the extent it is relevant for the purpose of this case reads thus:-
Clerical Staff:
The present number will be retained subject to the following conditions:
7 Existing Total flexibility of this group will continue.
7 The additional staff will be deployed for any other jobs including in the Plants to assist Shift Officers/Supervisors or for jobs of sporadic nature as required 7 They can be engaged in any approved shift 7 The vacancies that may arise in this category due to whatever reasons (death, resignation, retirement et.) will not be filled up
6. The learned counsel for the petitioner contended that it is W.P.(C).6994/11 7 evident from clause 9 in Ext.P1 and the above extracted portion from Ext.R1(a) that the management can have total flexibility in the matter of posting the workers in any of the shifts. Since such terms and conditions have been incorporated in the settlement pursuant to deliberations between the management and the union and in terms of the provisions under sections 2(p) and 12(3) of the I.D Act they are binding on all workers irrespective of the fact that the concerned workman is a member of the union or not, by virtue of the provisions of section 18(3) of the Industrial Disputes Act. According to the learned counsel, in the light of the aforesaid conditions in Ext.P1 and Ext.R1(a) and section 18(3) of the Act, the workman could not have legally raised any grievance against his transfer/posting to the rotation shift.
7. First respondent has filed a counter affidavit in this writ petition refuting the claims and contentions of the petitioner. Firstly, it is contended that shortly after the amalgamation of Tata Oil Mills Ltd. with the erstwhile Hindustan Lever Limited taking over of all its W.P.(C).6994/11 8 assets, liabilities including the employees was effected under a scheme sanctioned by the Hon'ble High Court, Bombay as per judgment in Appeal No.331 of 1994. Dissatisfied with the judgment of the Hon'ble High Court, the matter was taken up before the Hon'ble Supreme Court and that the said appeal preferred against the said judgment was dismissed as per the decision in Hindustan Unilever Employees Union's case (supra), it is further contended. The learned senior counsel laid emphasis on paragraph 80 of the said judgment which reads thus:-
"80.We do not find any substance in this contention. The Tomco employees will continue to remain on the same terms and conditions as before. Because of this arrangement, it cannot be said that a prejudice has been caused to HLL employees. They will still be getting what they were getting earlier. Tomco employees who were working under better terms and conditions, will continue to enjoy their old service conditions under the new management."
(emphasis added)
8. Relying on the said decision of the Hon'ble Supreme Court, the learned senior counsel further contended that management could not alter any of the terms and conditions of any of its workers W.P.(C).6994/11 9 who were employees of the Tata Oil Mills Company Ltd. including the workman concerned, described as Tomco employees by the Hon'ble Supreme Court, to their disadvantage and therefore, could not have legally effected changes in the terms and conditions of the workman as has been done by the impugned action. It is further contended that the construction sought to be made for the term 'group' employed in Ext.R1(a), by the petitioner could not be accepted for the simple reason that in Tata Oil Mills Company Ltd., there were three grades in the cadre of Clerk. The entry cadre in that category was 'C grade' and the highest grade in that category was 'A grade'. Tomco employee who obtained promotions from category 'C' to reach category 'A' cannot be degraded to equate with a category 'C' Clerk and any such attempt would nullify the effect and impact of two promotions and in such eventuality, it would certainly run counter to the directions in Hindustan Unilever Employees Union's case (supra), it is contended. There is no dispute with respect to the fact that on obtaining promotions, while the workman concerned was working in Tata Oil Mills Company Ltd., he reached up to the level W.P.(C).6994/11 10 of A grade clerk and at the time of amalgamation, he was working as A grade clerk in the Accounts Department of Tata Oil Mills Company Ltd., that too, in the general shift. Therefore, it is contended that by virtue of the judgment of the Hon'ble Supreme Court in Hindustan Unilever Employees Union's case (supra), the terms and conditions being enjoyed by such employees prior to the amalgamation could not have been altered to their prejudice and what was done by the management by transferring him to the rotation shift is nothing but violation of the said binding decision in an arbitrary and discriminatory manner. That apart, it is contended by the senior counsel that a perusal of Ext.P5 award would reveal that the Tribunal had arrived at a factual finding with respect to the question whether the workman was justified in raising grievance against his posting in rotation shift and whether the impugned action involves change of the terms and conditions of his service, to his disadvantage. The said factual findings with respect to the said points could not be interfered by this Court in this proceedings, it is argued. The learned counsel for the petitioner reiterated the contention that the workman who had not W.P.(C).6994/11 11 chosen to challenge any of the conditions in the settlement in Ext.P1 is not entitled to challenge the action of the management in transferring/posting him to rotation shift, to meet the aforesaid contentions raised by the first respondent. To buttress the said contention, the learned counsel relied on a decision of the Hon'ble Supreme Court in P.Virudhachalam and others v. Management of Lotus Mills (AIR 1988 SC 554). In the light of the said decision, it is contended that such a settlement is not open for any challenge.
9. Bearing in mind the rival contentions, I may look into the sustainability or otherwise of Ext.P5 award passed by the Tribunal. But, for a proper consideration of that question, it is only appropriate to look into the scope of interference with an award passed by the Industrial Tribunal. It is well-nigh settled that under Article 226 of the Constitution of India, this Court would not be justified in re- appraising materials on record and in giving own interpretation displacing the interpretation given by Industrial Tribunal in regard to factual aspects merely because two views are possible. But, this Court W.P.(C).6994/11 12 can certainly, interfere with an impugned award of Industrial Tribunal if there is jurisdictional infirmity or if the conclusions arrived at by the Tribunal is vitiated by error of law or palpably perverse. No doubt, this Court will be loath to interfere with an award if the award called in question was passed based on a factual finding. In Devinder Singh v. Municipal Council, Sanaur reported in AIR 2011 SC 2532 while interfering with an order passed by the High Court of Punjab and Haryana setting aside an award passed by the Industrial Tribunal the Hon'ble Supreme Court held:
"A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour Court for reinstatement of the appellant by assuming that his initial appointment/engagement was contrary to law and that it would not be in public interest to approve the award of reinstatement after long lapse of time. In our view, the approach adopted by the High Court in dealing with the award of the Labour Court was ex facie erroneous and contrary to the law laid down in Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477; Swaran Singh v. State of Punjab (1976) 2 SCC 868 : (AIR 1976 SC 232); P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54 : (AIR 2001 SC 479 : 2001 AIR SCW 77); Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 : (AIR 2003 SC 3044 : 2003 AIR SCW 3872) W.P.(C).6994/11 13 and Shalini Shyam v. Rajendra Shankar Path (2010) 8 SCC 329 : (2010 AIR SCW 6387)."
10. In the said decision the Hon'ble Supreme court quoted the decisions in Sayed Yakoob v. K.S.Radhakrishnan (AIR 1964 SC
477), Swaran Singh v. State of Punjab (AIR 1976 SC 232) and Surya Dev Rai v. Ram Chander Rai (AIR 2003 SC 3044) with approval as hereunder:-
In Syed Yakoob v. K.S. Radha-krishnan, (AIR 1964 SC
477) (supra), this Court identified the limitations of certiorari jurisdiction of the High Court under Article 226 of the Constitution in the following words:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or W.P.(C).6994/11 14 questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised."
In the second judgment - Swaran Singh v. State of Punjab, (AIR 1976 SC 232) (supra), this Court reiterated the limitations of certiorari jurisdiction indicated in Syed Yakoob v. Radhakrishnan (supra) and observed:
"In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a W.P.(C).6994/11 15 result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In Surya Dev Rai v. Ram Chander Rai, (AIR 2003 SC 3044 : 2003 AIR SCW 3872) (supra), the two-Judge Bench noticed the distinction between the scope of Articles 226 and 227 of the Constitution and culled out several propositions including the following:
"(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice."
11. In this case, the question to be considered is whether the findings of the Tribunal that the grievance of the workman that his posting from general shift to rotation shift is prejudicial to him and it requires to be redressed suitably and the consequential granting of the aforenoted directions to alleviate the grievance of the workman invite interference. At the very outset, it is to be noted that the learned counsel for the petitioner endeavoured to make it appear that the real challenge made by the first respondent on behalf of the workman M.V.Peethambaran Pillai was against Ext.P1 settlement and that the W.P.(C).6994/11 16 Tribunal lost sight of the same. However, I cannot countenance with the said contention. The grievance and accordingly, the challenge was, in troth, against the action which, according to the union, changed the terms and conditions of the concerned workman to his prejudice ignoring the protection available to Tomco employees in view of the decision in Hindustan Unilever Employees Union's case (supra). The definition of 'Industrial dispute' under section 2(k) of the I.D Act and the issue referred and also the rival contentions and Ext.P5 award would undoubtedly reveal that what was involved and resolved was definitely an industrial dispute. The Tribunal found that service facilities and comforts associated with the posting in the general shift are lacking in the rotation shift after elaborately considering and comparing such facilities and comforts available under both the systems. As already noticed hereinbefore, the contention of the workman was that he was the senior most in the category of A Grade Clerk and that contention was accepted by the Tribunal negating the contra contention of the management/petitioner. MW1 had admitted that there are six A Grade Clerks working in the Company and all of W.P.(C).6994/11 17 them except the workman concerned Sri.M.V. Peethambaran Pillai are working in the general shift. The contention of the union that the concerned workman was posted in the rotation shift on permanent basis from 15.11.2008 in the soap plant was disputed by the management in the counter statement. However, the Tribunal found that though MW1 made a sweeping statement that other A grade clerks were also made to work in the rotation shift, no document was produced before the Tribunal to substantiate the said contention. Indisputably, even after disputing the contention of the workman that he is the senior most in the category of A grade Clerks, no document whatsoever relating the seniority of clerks was produced by the petitioner company that too, after claiming possession of such a document. Same is the situation with respect to the sending up of other A Grade clerks for working in rotation shift system. The learned senior counsel for the petitioner submitted that since that issues were not pointedly raised, the Tribunal should not have found fault with the management in not producing such documents. True that the issue posed for consideration is whether transfer of the workman from W.P.(C).6994/11 18 general shift to the 3rd shift by the management was justifiable or not. But, the issues whether other A grade Clerks who fall within the category of Tomco employees in such a manner prejudicially affecting his/her terms and condition in derogation of the directions of the Hon'ble Supreme Court in Hindustan Unilever Employees Union's case (supra) and whether such employees were actually shifted to rotational shift system cannot be said to be issues which are totally unrelated to the main issue. Indeed, they are incidental issues. It is more so because the specific case of the union representing the workman was that the management had shown a discrimination in transferring him to rotation shift while retaining his juniors in the general shift. It is also to be noted that the specific contention in the claim statement is that five juniors in the category of A grade Clerks were retained and they are allowed to continue in general shift while transferring the workman to the rotation shift. That was not disputed and no evidence was adduced to debunk the said claim of the union in relation to the workman concerned. On account of the failure on the part of the management to produce such documents kept/supposed to W.P.(C).6994/11 19 be kept, in the ordinary course even after asserting existence of such documents the Tribunal accepted the contentions of the workman that at the time of issuance of the order of his transfer to the rotation shift he was the senior most in the said category and that no such system of shifting A grade Clerks in the rotation shift existed in the petitioner company. Even if there is such a system there is no justification to ignore the rule of seniority in the absence of any justifiable or plausible reason as rightly held by the Tribunal. Such findings cannot be said to be perverse or vitiated by error of law. Though the Tribunal found that the workman was posted in the rotation shift on permanent basis on 15.11.2008, in the soap plant, no specific ground has been raised in this writ petition challenging the said finding. Obviously, there was no case for the petitioner that the workman concerned was posted/transferred to the rotation shift system temporarily and admittedly, the nature of the transfer is not specifically mentioned in the concerned order. It is to be noted that there is conspicuous absence of any fixed period as relates the posting of the workman in the rotation shift. In other words, there is nothing on record to show W.P.(C).6994/11 20 that the workman concerned was posted in the rotation shift only for a specified period. Therefore, the finding of the Tribunal that the workman concerned was posted in the rotation shift on permanent basis also cannot be said to be incorrect or perverse. When that be so, in view of findings regarding the seniority position of the workman concerned and absence of evidence regarding sending up of A Grade Clerks in the rotation shift and especially of any plausible policy, based on the facts obtained in the case, the Tribunal found that the matter is one virtually changing the terms and conditions of the service of the workman concerned to his disadvantage. It is a factual finding based on the materials on record and also based on the sound principles of law and at any rate, it cannot be considered as palpably perverse and against the weight of evidence.
12. As already noticed, the learned counsel for the petitioner submitted that such postings of clerical staff including A Grade Clerks in the rotation shift is within the discretionary jurisdiction of the petitioner in view of Ext.P1 and Ext.R1(a), the provisions of which W.P.(C).6994/11 21 were referred to earlier, and therefore, the above findings of fact could not have been relied on to find the workman concerned entitled to get redressal of the grievance and for issuing directions as aforesaid. The question is whether such a stand is tenable merely in view of Ext.P1 and Ext.R1(a) and whether the decision in Hindustan Unilever Employees Union's case (supra) could have been ignored. The learned counsel for the petitioner submitted that by lapse of time, the binding force of the decision of the Hon'ble Supreme Court in Hindustan Unilever Employees Union's case (supra) has been lost. I am afraid, I cannot countenance with such a contention. When the Hon'ble Supreme court decided the rights of Tomco employees in the decision in Hindustan Unilever Employees Union's case (supra) mere lapse of time cannot efface its binding nature. The contention made on behalf of the first respondent is that the word 'group' employed in Ext.P1 settlement will not take in all the three cadres of clerks and each category has to be considered as a separate unit. Certainly, such a contention was raised without prejudice to the contentions that the conditions in Ext.P1 cannot defeat the rights W.P.(C).6994/11 22 protected under the decision in Hindustan Unilever Employees Union's case (supra). As noticed earlier, the specific contention of the learned counsel for the petitioner is that all the three groups in the clerical cadre were merged into one group viz., clerical staff and therefore, condition No.9 thereunder granting total flexibility in the matter of deployment of staff in any approved shift will apply to the clerk group as a whole. In this context, it is to be noted that in the counter statement filed by the petitioner management before the Tribunal, it took up the stand that transfer of the concerned workman to the rotation shift would not, in any manner, violate any of his service conditions and as such, would not violate the decision of the Hon'ble Supreme Court in Hindustan Unilever Employees Union's case (supra). Per contra, the learned senior counsel appearing for the petitioner contended that it is nothing but a blatant violation of the said decision.
Certain undisputed facts have to be borne in mind in this contextual situation. In the Tata Oil Mills Company Ltd., there was W.P.(C).6994/11 23 three grades in clerical category commencing from the entry group in the said category viz., C grade and ending in A grade. I have already found that the finding of the Tribunal that the workman concerned was the seniormost in the A grade category cannot be said to be incorrect or illegal. Indisputably, he entered the clerical cadre as Clerk 'C' Grade. Its effect and impact cannot be nullified even by referring to condition No.9 of Ext.P1 and Ext.R1(a) in view of paragraph 80 of the decision of the Hon'ble Supreme Court in Hindustan Unilever Employees Union's case (supra). That apart, admittedly, a general shift worker need work only half day on all saturdays and at the same time, a rotation shift worker has to work four hours extra on all saturdays. There is nothing on record which would show as to what was the criteria that was adopted by the management for posting the workman concerned who was the seniormost clerk in that category to the rotation shift while retaining his juniors. Necessarily, as rightly observed by the Tribunal, seniority has to be acknowledged and the benefits available to an employee by virtue of his seniority has to protected. Normally, a senior could not W.P.(C).6994/11 24 be compelled to work more hours than his juniors and that itself is a justiciable cause especially in the circumstances obtained in this case in view of the Hon'ble Supreme Court's decision referred above. By virtue of his posting as A grade Clerk, especially being the senior in that category, under normal circumstances as mentioned above, the concerned workman could not be compelled to work on all days by shifting him to the rotation shift while retaining his admitted juniors in the said cadre in the general shift. Thus, the impugned action of the petitioner management besides being discriminatory virtually, violated the protection available to a Tomco employee like the workman concerned under the decision of the Hon'ble Supreme Court in Hindustan Unilever Employees Union's case (supra). In such circumstances, the contentions raised by the petitioner relying on Ext.P1 settlement fade into insignificance and therefore, I think it absolutely unnecessary to refer to decisions cited by the learned counsel for the petitioner relating the binding nature of a settlement. Accepting the contention that the entire clerical staff will form one category and they can be interchanged at will of the management may W.P.(C).6994/11 25 ultimately take away the right secured by such Tomco employees like the workman concerned in this case. I shall not be understood to have said that under all circumstances, persons in A grade shall not be put to work in rotation shift. The action on the part of the management by transferring the workman concerned who is the seniormost in the A grade clerk working in general shift and posting him in the rotation shift and thereby compelling him to work on all days in a week while allowing many of his juniors to remain in the general shift and thereby allowing them to enjoy the benefit attached to such posting cannot be said to be a fair and reasonable one. In fact, a scanning of the award passed by the Tribunal would show that all such relevant factual aspects were duly taken into account by the Tribunal for arriving at a conclusion that the posting of the workman in rotation shift was not justifiable and the first respondent was justified in raising grievances of the workman. That finding, as already noticed hereinbefore, was essentially founded on the factual finding that the concerned workman was the senior in the category of A grade clerk and that while retaining his juniors he was posted to rotation shift. The Tribunal W.P.(C).6994/11 26 found that while effecting such deployment among the clerical staff belonging to equal grade, the seniority should have been honoured. No jurisdictional infirmity could be established by the petitioner to sustain the challenge against Ext.P5. For the reasons and circumstances explained above, the finding of the Tribunal that the posting of the workman concerned who is the seniormost in the A grade category of clerks by retaining juniors in the general shift was not justified and the consequential direction issued as per Ext.P5 award cannot be said to be one inviting interference under Article 226 of the Constitution of India. This writ petition is, therefore, liable to fail. Accordingly, it is dismissed.
Sd/-
C.T. RAVIKUMAR
(JUDGE)
spc/
W.P.(C).6994/11 27
C.T. RAVIKUMAR, J.
JUDGMENT
September, 2010
W.P.(C).6994/11 28