Karnataka High Court
B.D.K. Process Controls Private ... vs Bharatiya Mazdoor Sangha, Dharwad on 29 August, 2001
Equivalent citations: [2002(94)FLR416], 2001(5)KARLJ621, 2002 LAB IC (NOC) 24 (KAR), 2001 AIR - KANT. H. C. R. 3003, (2001) 3 CURLR 910, (2002) 1 LAB LN 288, (2002) 94 FACLR 416, (2001) 5 KANT LJ 621, 2002 LABLR 312
ORDER
The Court
1. In these writ petitions, the petitioners have challenged the order passed by the Industrial Tribunal, Hubli, passed on the complaint filed under Section 33A of the Industrial Disputes Act, (hereinafter referred to as 'the Act').
2. The respondent-Union filed an application under Section 33A of the Act, for a direction to the petitioners to give employment to the transferred employees on the ground that the transfer of the said employees is in contravention of Section 33 of the Act.
3. In order to appreciate the rival contentions, it is useful to refer to few facts relating to the dispute between the employer and the employees. The employees of the petitioner-management went on strike on 22-2-1999. Thereafter, the Union of India referred the dispute to the Industrial Tribunal, Hubli, on the following points.-
"(a) Whether the management M/s. B.D.K. Process Controls Private Limited, Gokul Road, Hubli is justified in deputing Sri G.B. Deshkulkarni and 20 other workmen to their company branches situated in the various places of the country?
(b) Whether the Dharwad Mazdoor Sangh, Dharwad is justified in going on strike since 22-2-1999 by alleging that M/s. B.D.K. Process Controls Private Limited, Gokul Road, Hubli are practising unfair labour practice?
(c) If not, to what relief the workmen are entitled to?"
4. During the pendency of the said reference the Union made an application on 6-7-1999 before the Tribunal for a direction that the employees be paid wages from 16-5-1999 and they should be provided with work. The said application was resisted by the employer by way of filing objections inter alia contending that there was no refusal of work to employees and some workmen themselves have remained absent even though most of the workmen have reported for work even before the prohibition of the strike by the Government. On that application the Industrial Tribunal by order dated 23-7-1999 observed as follows.-
"In view of this contention of the respondent, it is clear that the respondent is not refusing employment to the employees. Under the circumstances, the employees of the respondent may very well go and join to their duties without any permission because it is beyond the scope of the reference".
5. It is contended that though the Industrial Tribunal observed that the employees may very well go and join for duties, the management had provided employment to 26 employees and refused to provide employment in respect of 12 employees. It is further contended that in respect of certain employees, after receiving the duty report, the management asked to execute illegal undertaking, but they were advised not to give such undertaking and therefore, the management has not provided them employment. It is nextly contended that the management had not paid the wages to such of the employees to whom employment was refused and on the other hand the management issued orders transferring 25 employees to various parts of the country outside the State. This order of transfer according to the employees amounts to alteration of service conditions of the employees during the pendency of the dispute between the parties on the file of Industrial Tribunal.
6. The defence of the management is that the management being an employer has an inherent right to transfer its employees to the place of its choice and therefore, there is no alteration of service conditions of the employees as contended by the employees. Before the Industrial Tribunal, one of the contentions raised by the petitioner is that the application filed by the Union under Section 33A of the Act, is not maintainable since the Union is not an aggrieved workman.
7. Now the points that arise for consideration in these petitions are as follows.-
"1. Whether the application, filed by the Union under Section 33A of the Act, alleging contravention of Section 33 of the Act is maintainable in law?
2. Whether the order of transfer issued by the management transferring the employees to different parts of the country outside the State amounts to contravention of Section 33 of the Act?"
8. Issue No. 1.--The respondent-Union has filed application before the Tribunal under Section 33A of the Act, signed by the President of the Union. The names of the aggrieved employees are referred to in the said application. Rule 59 of the Industrial Disputes (Central) Rules. 1957 is similar to Rule 60 of the Industrial Disputes (Karnataka) Rules, 1957. Under Section 36 of the Act, a workman who is a party to a dispute is entitled to be represented in any proceedings under the Act, by any member of the executive or other office-bearer of a registered trade union of which he is a member. The employees who were referred to in the complaint are the members of the respondent-Union.
9. Section 33A of the Act, reads as follows.-
"33-A. Special provision for adjudication as to whether conditions of service, etc., changed during' pendency of proceedings.--Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Board, an Arbitrator, a Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make complaint in writing, in the prescribed manner.-
(a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and
(b) to such Arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the Arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly".
Rule 60 of the Industrial Disputes (Karnataka) Rules, 1957, reads as follows.-
"60. Complaints regarding change of conditions of service etc.--(1) Every complaint under Section 33A of the Act shall be presented in triplicate in Form I and shall be accompanied by as many copies of the complaint as there are opposite parties to the complaint.
(2) Every complaint under sub-rule (1) shall be verified at the foot by the workmen making it or by some other person proved to the satisfaction of the Labour Court or Tribunal to be acquainted with the facts of the case.
(3) The person verifying shall specify by references to the numbered paragraphs of the complaint, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(4) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed",
10. As per the above rule every complaint under Section 33A of the Act, shall be presented in triplicate in Form I and the facts averred in the complaint shall be verified by the workmen or by some other persons who are acquainted with the facts of the case. If any application is filed under Section 33A of the Act, it shall be adjudicated as if it is a dispute referred to or pending before it in accordance with the provisions of the Act. Under Section 10 of the Act, the Union may take up the cause of a workman by making an application for reference and the same will become an industrial dispute. The workman who is aggrieved by the contravention of Section 33 also has given the right to get the dispute decided by the Labour Court during the pendency of the reference. From a reading of Section 33A, the workman aggrieved of the contraventions of Section 33 of the Act is entitled to make an application. If the workman aggrieved authorised the Union in writing to move the Tribunal by way of filing application under Section 33A of the Act, for all purposes that application is to be treated as if it is an application by an aggrieved workman, since Rule 60 of the Rules, referred to above, permits not only the workman but also any other person who is acquainted with the facts to verify the facts averred in the complaint. Section 36 of the Act, also provides that workman may be represented by any member of the executive or the office bearer of a registered trade union in any proceedings under the Act.
11. The Supreme Court in the case of M/s. New India Motors (Private) Limited, New Delhi v K.T. Morris, interpreting who is a concerned workman with reference to Sections 33(1)(a) and 33A of the Act, has held as follows.-
"10. Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such disputes must be workmen directly or immediately concerned in the said disputes. We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by a group of workmen acting on their own or through their Union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out this construction is harmonious with the definition prescribed by Section 2(s) and with the provisions contained in Section 18 of the Act. Therefore, we are not prepared to hold that the expression "workmen concerned in such dispute" can be limited only to such of the workmen who are directly concerned with the dispute in question. In our opinion, that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute".
12. From the above, it is seen the expression 'workman' concerned includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute.
13. In the instant case as the Union has been authorised by the workmen in writing and the names of the aggrieved workmen are also mentioned in the complaint, the application filed by the Union is to be treated as an application filed by the aggrieved workmen and therefore, I hold that the application filed by the Union under Section 33A of the Act, is maintainable in law. Accordingly, I answer Issue No. 1 in the affirmative.
14. Issue No. 2.--The contention of the management is that transfer is not a condition of service and therefore the order of transfer made by the management does not amount to contravention of Section 33 of the Act. One of the points for reference in ID No. 12 of 1999 is that whether the management of the Company is justified in deputing certain employees to their Company branches situated in various places of the country. Whether it is deputation or transfer the ultimate result is the shifting of an employee from one branch of the Company to other branch situated outside the State. In both the cases of deputation or transfer, the employer must have power to do so either under the Standing Orders or under the terms of employment. From the facts in this case, it is seen that there is no provision under the Standing Orders, to transfer an employee from one branch of the Company to the other branch situated outside the State. Similarly, the terms of appointment also do not provide for any such transfer.
15. Sri B.C. Prabhakar, learned Counsel for the petitioners-management submits that the Standing Order need not contain any provision regarding transfer and therefore, though there is no such clause in the Standing Order providing for transfer, it is open for the employer to transfer an employee at the choice of the management. In support of this contention he placed reliance on the case of Workmen of M/s. Lakheri Cement Works Limited v Associated Cement Companies Limited. In the said case, it is held that the extension of Standing Orders to such of the topics not falling under any items in Schedule to the Act, would be without jurisdiction.
16. Even assuming that the Standing Orders do not provide for transfers of the employees there must be atleast a clause incorporated in the order of appointment conferring power on the management to transfer an employee from one place to another place situated outside the State. In the order of appointment there is no clause providing for transfer of an employee from one Company to another Associated Company. But the additional appointment order produced before the Labour Court provides for such a clause authorising the management to transfer its employee to any other Department, Division, Associated Company or any other newly opened office at the discretion of the management. The learned Counsel relying upon the additional appointment order contends that the management has the power to transfer its employees. Admit-
tedly, all the employees continue to be the employees of the management ever since their first appointment. When such being the case, there cannot be any additional appointment order incorporating the clause empowering transfer unilaterally. One of the clauses in the additional appointment order also reads as follows.-
"You will be treated as a confirmed employee from the date of reporting for duties or date of confirmation".
All the employees are confirmed employees. When such being the case, the question of treating them once again as confirmed employees on reporting for duty itself is meaningless and superfluous. Therefore, the said additional appointment order issued for the second time in respect of permanent employees cannot be looked into or relied upon for the purpose of considering whether the management has the power to transfer its employees.
17. It is submitted by the learned Counsel for the petitioner placing reliance on the decision in the case of State Bank of India Staff Registered Congress, Chandigarh v Union of India , that no employee can insist that he should continue in a particular place unless and until the transfer is held to be mala fide.
18. The Supreme Court in the case of CIPLA Limited v Jaya Kumar R. and Another , has held that the transfer of an employee from Bangalore to Mumbai, when the employer has the power to transfer will not amount to altering the conditions of service and therefore, Section 33 of the I.D. Act, is not attracted. The learned Counsel also cited other decisions in support of his contentions that transfer is not a condition of service. It is true that transfer is not one of the conditions of service, but if the transfer has been made without any power then transfer is without authority of law. In the instant case as observed above, there is no Standing Order authorising the transfer of an employee from one place to another. The order of appointment also does not provide for transfer. In the absence of such a power when the matter is pending adjudication before the Tribunal regarding power relating to deputation of the employee, any transfer of employee by the management, without obtaining the permission of the Tribunal where the dispute is pending, amounts to contravention of Section 33 of the Act. The Supreme Court in Cipla's case, supra, has held that if there is power to transfer such transfer would not attract Section 33 of the Act. The converse of it is in the absence of any such power if transfer is made then necessarily Section 33 is applicable and in that event the application filed under Section 33A of the I.D. Act, is maintainable.
19. The Industrial Tribunal on consideration of the evidence has held that the averments made in the complaint to the effect the concerned employees have not been provided employment after 15-5-1999 is proved. The said finding since based on appreciation of evidence does not call for any interference by this Court. Hence, I find that there is no merit in these petitions,
20. Accordingly, writ petitions are rejected.