Punjab-Haryana High Court
Phoenix Contact India Sarmik Union vs State Of Haryana And Another on 11 February, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.1169 of 2012 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.1169 of 2012 (O&M)
Date of Decision: 11.02.2013
Phoenix Contact India Sarmik Union
Prithla (EU)
..... Petitioner
Versus
State of Haryana and another
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Ms. Abha Rathore, Advocate,
for the petitioner.
Ms. Tanisha Peshawaria, DAG, Haryana.
Mr. Shiv Kumar, Advocate,
for respondent No.2.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
This writ petition was filed at a stage when the demand notice dated 29.11.2010 served had resulted in a failure report at the hands of the Conciliation Officer by the Union of an industrial dispute involving transfer of 17 employees transferred in April 2010 and another 60 transferred subsequently between June and July 2010 from the industrial unit of the management at Prithla, Palwal to its factory in Okhla, and the appropriate Government was sitting back on the decision to refer the disputes raised through espousal by the union of workers under Section 2(k) of the Industrial Disputes Act, 1947 (for short "the Act") to the area Labour Court- cum-Industrial Tribunal.
CWP No.1169 of 2012 (O&M)-2-
This Court issued notice of motion on 19.01.2012 to the respondents by passing the following order:-
"Contends that it is now over a year of serving the demand notice and the appropriate Government has not taken any decision.
Notice of motion for 7.3.2012.
Ms. Kirti Singh, DAG, Haryana who is present in Court accepts notice on behalf of respondent No.1.
Learned counsel for the petitioner undertakes to hand over 3 copies of the paper book to Ms. Kirti Singh, DAG, Haryana during the course of the day.
Let the appropriate Government in the meanwhile take a final decision in the matter and place it on the record of this case on the next date of hearing."
During the pendency of this petition and in terms of the interim directions dated 19.01.2012 the appropriate Government rejected the request for reference of the industrial disputes to the Labour Court for adjudication. That order has been placed on record of this case with CM No.14982 of 2012 and marked as Annexure P-3. Notice of the CM was issued on 17.10.2012 to the non-applicants respondents for the date fixed. The rejection order reads thus:-
"Reference your demand notice dated 29.11.2010 on the subject cited above.
2. In the demand notice you have requested the management to take 60 workers on duty at Prithla (Palwal).
Your demand notice has been examined. Clause 8 of the appointment letters provides that the workman can be transferred from one unit to another unit. The management in accordance with the terms and conditions contained in their appointment letters, transferred the said workers from one unit to another unit i.e. from Prithla (Palwal) to Delhi. Thus, the action of the management in transferring the said workers from Prithal (Palwal) to Delhi cannot be termed as illegal.
It is further stated that the Union did not pass any resolution for agitating the issue on behalf of 60 workers. In addition to above, it is CWP No.1169 of 2012 (O&M) -3- further necessary to mention here that it is well settled law laid down by the Hon'ble Supreme Court of India from time to time and Hon'ble High Courts including by the Hon'ble Andhra Pradesh High Court in the case of Simens Limited Versus Presiding Officer, Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad reported as 2005(1) SCT page 601 that the appropriate Government for entertaining the industrial dispute is where the workman was ordered to be posted and not where he was earlier working. Mere non-joining at the new place of posting after relieving by the employer does not confer any right to the worker to raise industrial dispute at the previous place of posting. Since the workers were transferred from Prithla (Palwal) to Delhi, so the appropriate Government in the present case is the Delhi Government and not the State of Haryana.
In view of above, the demand notice of the Union is devoid of any merit and hence, the same is hereby rejected."
The reasons given for rejection are that Clause 8 of the appointment letter provides that a workman can be transferred from one unit to another unit. Thus, the action of the management in transferring the workers from Prithla Palwal to Okhla, Delhi cannot be termed as illegal. The second reason for rejection is that the workers Union did not pass any resolution for agitating the issue on behalf of the 60 affected workers. The third reason for rejecting the demand notice is that the appropriate Government for entertaining the industrial dispute is where the workman is ordered to be posted and not where he was earlier working and mere non- joining at the new place of posting after relieving by the employer does not confer any right on the worker to raise any industrial dispute at the previous place of posting. One judgment of the Andhra Pradesh High Court with all respect to it was picked out from a sea of judgments in support of rejection which itself would be a matter of interpretation by a Labour Court bound by judgments of this Court and of the Supreme Court. The rejection order CWP No.1169 of 2012 (O&M) -4- appears laboured with pre-conceived notions. Resultantly, the appropriate Government at Haryana has advised the petitioning union that the Delhi Government would be the appropriate Government in the present case. The impugned order is dated 06.06.2012. The prayer for referring the disputes for industrial adjudication stands rejected.
In response to the notice issued on the application seeking to amend the writ petition to challenge the order dated 06.06.2012 and to avoid further wastage of time since purely legal issues arise out of the rejection order dated 06.06.2012, the amended writ petition was taken on record and copy of the same supplied to the opposite counsel and the matter was taken up by consent for final disposal.
I have heard Ms. Abha Rathore, learned counsel appearing for the petitioner and Ms. Tanisha Peshawaria, learned DAG, Haryana for the State and Mr. Shiv Kumar, Advocate for respondent No.2 at some length.
It is well settled that the appropriate Government cannot act as an adjudicatory authority when called upon to make a reference to a Labour Court. The Labour Court is the designated authority to adjudicate both questions of law and fact arising in the case. In industrial law transfer from one place to another cannot be viewed purely from the angle of main line service jurisprudence or pure administrative law under statutory rules framed under proviso to Article 309 or executive instructions under Article
162. Clause 8 of the appointment letter conferring power to transfer a worker from one unit to another unit would also have to be viewed from the platform of Entry 7 of the 5th Schedule of the Act which enumerates unfair labour practices. Entry 7 lays down that transfer of a workman mala fide CWP No.1169 of 2012 (O&M) -5- from one place to another under the guise of following management policy is an unfair labour practice. It is not for this Court to express any opinion on Clause 8 of the appointment letter which can more appropriately be dealt with by the industrial adjudicator leaving it open for both parties to contend whether the matter falls in Entry 7 or not.
On the second issue regarding resolution, Ms. Abha Rathore draws the attention of this Court to document dated 29.11.2010 (Annexure P-2) to prima facie show espousal of the dispute by the Union. It is also not for this Court also to express any opinion on the merits of this issue at this stage which can remain subject matter of decision by the Labour Court. On the question of jurisdiction of whether the dispute should be adjudicated in Haryana or Delhi, this matter would also lie with the Labour Court in the perspective of accrual of cause of action or part of the cause of action with respect to the two territories after hearing both sides. The appropriate Government at Haryana ought not to have returned a finding in the impugned order in excess of its jurisdiction that the situs of the dispute would rest with the Delhi Government. This is uncalled for advice. The effect of non-joining at the new place of posting would also require to be examined by the Labour Court with the aid of case law.
For determination of the questions raised in the demand notice, there would have to be examination of factual matters for which materials including oral evidence will have to be brought on record and duly considered. In such matters, the State Government cannot arrogate to itself the power to adjudicate issues of fact, law and jurisdiction and to terminate the proceedings prematurely at the administrative stage, unless ex facie no CWP No.1169 of 2012 (O&M) -6- lis arises at all in its territory for the determination of which question no argument is required.
In numerous cases including Sharad Kumar vs. Govt. of NCT of Delhi, (2002) 4 SCC 490 and Ram Avtar Sharma vs. State of Haryana, (1985) 3 SCC 189 the Supreme Court has categorically held that the State Government cannot sit in judgment over industrial disputes and refuse reference accordingly as its prerogative or on its whims and fancies.
In short the sum and substance in a gist is that the appropriate Government is virtually no more than a post office and only an insurmountable wall of say res judicata, judicial decision and the like can prima facie block reference in collective disputes of the kind raised herein falling under The Second and Third Schedules of the Act read with Section 2 (k) or for larger issues involving maintenance of industrial peace and tranquility of existing or apprehended disputes in an industrial community. But the appropriate government cannot don judicial or quasi judicial robes and sit in judgment.
For the foregoing reasons, the impugned order dated 06.06.2012 cannot be sustained and is therefore, quashed. The writ petition stands allowed. A direction is issued to the 1st respondent to reconsider the matter in the light of this order and pass a fresh order in accordance with law within 30 days of receipt of a certified copy of this order.
(RAJIV NARAIN RAINA) JUDGE 11.02.2013 manju