Madras High Court
R.Ariffen vs The General Manager on 14 March, 2023
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.03.2023
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P.No.13184 of 2018
and
W.M.P.No.15523 of 2018
R.Ariffen .... Petitioner
Vs
1. The General Manager,
Tamil Nadu State Transport Corporation,
Salem Division,
12, Ramakrishna Road,
Salem – 636 007.
2. The Branch Manager,
Rasipuram Branch,
Tamil Nadu State Transport Corporation,
Salem Division,
Rasipuram, Namakkal District. .... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of certiorari or any other appropriate
writ, order or direction of like nature calling for the records of the
impugned transfer order No.E2/82/THAPOGA (SALEM)/2018 dated
17.04.2018 of the first respondent and quash the same as illegal.
For Petitioner : Mr.V.Elangovan
For Respondents : Mr.R.Babu
https://www.mhc.tn.gov.in/judis
2
ORDER
This Writ Petition has been filed for issuance of a Writ of certiorari to quash the impugned transfer order No.E2/82/THAPOGA (SALEM)/2018 dated 17.04.2018 as illegal.
2. The case of the petitioner is that he was working as an employee of the respondents/Corporation as a Conductor in the bus Route 52 LSS from the year 2015. The petitioner was allotted with employment number CR9047. He has unblemished service records, but due to his active participation in the Trade Union activity, the respondents herein developed a prejudice and bias against him and started harassing and victimizing him through frequent by motivated and vexatious inspection and issued false charges. The petitioner resisted the same by approaching the statutory labour authorities on various dates. The petitioner received communication dated 10.10.2017 in Na.Ka.150/2017 stating the petitioner's grievance as unfair labour practice and directed the petitioner to approach the concerned authority. The Labour Officer issued several letters calling upon the petitioner and the respondents for negotiation and conciliation, but they have not obeyed. Hence, the petitioner filed an application and the same was taken on record and https://www.mhc.tn.gov.in/judis 3 numbered as Na.Ka.No.479/2017 and Na.Ka.No.541/2017 and pending for adjudication.
3. The impugned transfer order was passed on 17.04.2018 and the same was received on 16.05.2018 and the petitioner was transferred from Rasipuram Branch to Mettur Branch. The petitioner filed Writ Petition during vacation period and stated that when the conciliation proceedings are pending, the impugned order has been passed and no prior approval was passed by the Labour Authorities, while passing the impugned order. The said impugned transfer order came into force immediately. This Court passed order on 06.06.2018 stating that the notice privately be returnable by 09.07.2018. No coercive action shall be taken against the petitioner for not joining in the said post. The petitioner has not joined duty neither in Mettur nor in the Rasipuram and now he has submitted he has not got for any job and living without any salary.
4. A counter affidavit has been filed and the petitioner also filed a petition for vacating the interim order and the interim order was not vacated at all. The petitioner was appointed as a Conductor on 24.02.2014 and his duty was posted at Rasipuram Branch. He worked https://www.mhc.tn.gov.in/judis 4 in the said branch for the 4 years from the date of joining. Thereafter, due to the administrative reasons, he was transferred, vide the impugned transfer order in No.E2/82/THAPOGA (SALEM)/2018 dated 17.04.2018 to the Mettur Branch, which is away from Rasipuram within the same district. The contention of the petitioner that the impugned transfer order came to be passed by violating Section 33 of the Industrial Dispute Act is not correct, as the said provision would not be applicable to the petitioner. The relevant portion of the provision is extracted here under :
"33. 1 Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before 2 an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall--
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, https://www.mhc.tn.gov.in/judis any workmen concerned in such dispute, save with the 5 express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute 2 or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman),
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
https://www.mhc.tn.gov.in/judis 6
1. Subs. by Act 36 of 1956, s. 21, for s. 33 (w. e. f. 10-3- 1957). 2. Ins. by Act 36 of 1964, s. 18 (w. e. f. 19-12- 1964).
(3) Notwithstanding anything contained in sub- section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute--
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation. For the purposes of this sub- section, a protected workman", in relation to an establishment, means a workman who, being 1 a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of https://www.mhc.tn.gov.in/judis 7 sub-section (3) shall be one per cent. of the total number of workmen employed therein subject minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board, 2 an arbitrator, al labour Court, Tribunal or National Tribunal under the proviso to sub- section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, 3 within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit:] 4 Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit: Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.]"
https://www.mhc.tn.gov.in/judis 8
5. As per Section 33 of the Industrial Dispute Act, only the punitive action cannot be taken against the employee without getting approval from the authority concerned. The transfer is only an administrative action and not a punitive action. The respondents/Corporation denied the allegation that since he participated in the trade union activity, several charge memos were issued and before passing of the impugned order, there were charge memos being issued for misconducts committed by him for 41 days absence from duty. After due enquiry, a punishment of increment cut for three months, without cumulative effect, was imposed on him by order dated 28.06.2016. Another charge memo was issued against him for a misconduct that he allowed the passengers to travel without issuing ticket for luggage brought by them. For the said charge, after due enquiry, a punishment of increment cut for three months, without cumulative effect, is ordered by order dated 19.09.2017. Again, he committed the same misconduct, for which a penalty of Rs.500/- was imposed on him, by order dated 22.12.2017. The said proceedings initiated against him was only for the misconduct committed by him and not to harass him for his involvement in the trade union activities.
https://www.mhc.tn.gov.in/judis 9
6. The respondents/Corporation has 32 branches across four Districts viz., Namakkal, Salem, Dharmapuri and Krishnagiri and 12,500 employees were working under the respondents/Corporation. For better administration and functioning, the respondents/Corporation used to transfer its employees from one branch to another. The respondents/Corporation has no specific vengeance against the petitioner and he is one among the employees working in the respondents/Corporation and he was transferred only after serving in the Rasipuram Branch for 4 years and he filed a writ petition and got an interim order stating that no coercive action be taken against him for not joining the said post. After getting the interim order, he did not joint duty in the Mettur branch and continued to work in Rasipuram branch and he had not given any leave letter to the Corporation. Only on 16.07.2018, after obtaining the interim order, the authorities filed a vacate stay petition and they came to know that this Court had directed not to take any coercive action against the petitioner for not joining the said post. The petitioner sent notices through his counsel to the Corporation with a request to post him in Rasipuram Branch. The respondents/Corporation, by letter dated 27.06.2019, asked him to appear before the General Manager of the respondents/Corporation with his family for counselling https://www.mhc.tn.gov.in/judis 10 on 02.07.2019. The procedure adopted in all the Corporations is that if an employee has got any grievance over any order passed by the Corporation, the family would be called explaining them on which circumstance the order came to be passed and if there is any grievance, they will redress the same. But on 02.07.2019, he did not appear before the respondents/Corporation. Again, by letter dated 07.08.2021, the respondents/Corporation asked him to appear before the General Manager of the respondents/Corporation with his family for counselling on 12.08.2021 at 10.00 a.m. The petitioner and his family members appeared on that day at 12.00 noon. The General Manager was having some other work at that time and the petitioner was asked to come at about 2.00 p.m. after having lunch. But the petitioner left the place and never turned up again before the office of the respondents/Corporation. The impugned transfer order was issued and after interim order, no coercive action was taken against the petitioner for non-joining the said post, as he has not given any application for leave and other reasons for not joining there. Taking advantage of the interim order dated 06.06.2018, the petitioner neither joined in the transferred post nor submitted any leave application with his branch. Even though the respondents/Corporation asked him to join the duty, he did not join the https://www.mhc.tn.gov.in/judis 11 duty from the date of the order till date, by citing the interim order.
7. The respondents/Corporation has sent a security to verify the status of the petitioner. After enquiry, he has reported the respondents/Corporation that the petitioner has indulged in a business of selling perfumes near a Mosque in his area to earn his livelihoold. The petitioner cannot have two jobs at the same time and the respondents/Corporation did not restrain him from joining the office at Mettur and the petitioner who has not chosen who appear before the Corporation for joining duty, the Corporation has not taken any steps for not explaining the reasons for not joining in time. The respondents/Corporation prayed that the interim order granted by this Court may be vacated and prayed for dismissal of the writ petition.
8. From the averments made in the petition, it is seen that the petitioner was interested in participating in various activities of the Trade Union and the petitioner was also not prevented, but he was also doing selling activities and he also did his duty. The petitioner has not only indulged in such activities, but also was punished for having misconduct and charge has been framed against him for the same. He was not https://www.mhc.tn.gov.in/judis 12 interested to join the said transferred place and the conciliation proceedings were also initiated, which failed and industrial dispute was also raised under Section 2(k) of the Industrial Dispute Act and the same was pending for more than 7 years, without any adjudication, which is not acceptable. If at all it does not proceed in the investigation, it only shows negligence and carelessness on his part and the respondents cannot take advantage of the same. The petitioner has not given any undertaking that he would join duty and the reasons stated are made out.
9. The learned counsel for the petitioner submitted that for not joining duty, some amount may be considered to be paid as salary. This Court is not inclined to accept the same, as no one was preventing him to join the said post and being an interim order, it only says that no coercive steps to be taken against him. Hence, this Court is only concerned with the rejoining of duty elsewhere.
10. In the result, this Writ Petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.
11. The respondents' counsel to get instruction by 16.03.2023.
https://www.mhc.tn.gov.in/judis 13 14.03.2023 Lpp Index : Yes/No Neutral citation : Yes/No Speaking/Non Speaking order To 1. The General Manager, Tamil Nadu State Transport Corporation, Salem Division, 12, Ramakrishna Road, Salem – 636 007. 2. The Branch Manager, Rasipuram Branch, Tamil Nadu State Transport Corporation, Salem Division, Rasipuram, Namakkal District. https://www.mhc.tn.gov.in/judis 14 V.BHAVANI SUBBAROYAN,J Lpp W.P.No.13184 of 2018 and W.M.P.No.15523 of 2018 14.03.2023 https://www.mhc.tn.gov.in/judis