Madras High Court
T.Mahesh Kumar vs The Assistant Commissioner Of Labour ... on 31 January, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.01.2013
CORAM:
THE HON'BLE MR.JUSTICE K.CHANDRU
W.P.Nos.35136 to 35141 of 2012
and
M.P.Nos.1, 1, 1, 1, 1, & 1of 2012
and
M.P.Nos.1, 1, 1, 1, 1 & 1 of 2013
W.P.No.35136 of 2012
T.Mahesh Kumar ... Petitioner
Versus
1.The Assistant Commissioner of Labour (Conciliation) II,
Kuralagam, 3rd Floor, Chennai-600 108.
2.The Chairman,
Tamil Nadu Petroproducts Ltd.,
(Principal Secretary Industries Dept,
Government of Tamil Nadu)
Fort St. George,
Chennai-600 009.
3.The Management of
Tamil Nadu Petroproducts Ltd.,
Rep. by Managing Director,
Manali Express Highway,
Manali, Chennai-600 068.
4.The General Manager (HRM),
Tamil Nadu Petroproducts Ltd.,
Manali Express Highway,
Manali, Chennai-600 068.
5.Tuticorin Alkali Chemicals & Fertilisers Ltd.,
represented by its Managing Director,
Tuticorin-628 005. ... Respondents
W.P.No.35137 of 2012
A.Arvind Kumar ... Petitioner
Versus
1.The Assistant Commissioner of Labour (Conciliation) II,
Kuralagam, 3rd Floor, Chennai-600 108.
2.The Chairman,
Tamil Nadu Petroproducts Ltd.,
(Principal Secretary Industries Dept,
Government of Tamil Nadu)
Fort St. George,
Chennai-600 009.
3.The Management of
Tamil Nadu Petroproducts Ltd.,
Rep. by Managing Director,
Manali Express Highway,
Manali, Chennai-600 068.
4.The General Manager (HRM),
Tamil Nadu Petroproducts Ltd.,
Manali Express Highway,
Manali, Chennai-600 068.
5.Tuticorin Alkali Chemicals & Fertilisers Ltd.,
represented by its Managing Director,
Tuticorin-628 005. ... Respondents
W.P.No.35138 of 2012
E.Anand Babu ... Petitioner
Versus
1.The Assistant Commissioner of Labour (Conciliation) II,
Kuralagam, 3rd Floor, Chennai-600 108.
2.The Chairman,
Tamil Nadu Petroproducts Ltd.,
(Principal Secretary Industries Dept,
Government of Tamil Nadu)
Fort St. George,
Chennai-600 009.
3.The Management of
Tamil Nadu Petroproducts Ltd.,
Rep. by Managing Director,
Manali Express Highway,
Manali, Chennai-600 068.
4.The General Manager (HRM),
Tamil Nadu Petroproducts Ltd.,
Manali Express Highway,
Manali, Chennai-600 068.
5.Southern Petrochemicals Industries Ltd.,
Represented by its Managing Director,
Tuticorin-628 005. ... Respondents
W.P.No.35139 of 2012
S.Alaudeen ... Petitioner
Versus
1.The Assistant Commissioner of Labour (Conciliation) II,
Kuralagam, 3rd Floor, Chennai-600 108.
2.The Chairman,
Tamil Nadu Petroproducts Ltd.,
(Principal Secretary Industries Dept,
Government of Tamil Nadu)
Fort St. George,
Chennai-600 009.
3.The Management of
Tamil Nadu Petroproducts Ltd.,
Rep. by Managing Director,
Manali Express Highway,
Manali, Chennai-600 068.
4.The General Manager (HRM),
Tamil Nadu Petroproducts Ltd.,
Manali Express Highway,
Manali, Chennai-600 068.
5.Tuticorin Alkali Chemicals & Fertilisers Ltd.,
represented by its Managing Director,
Tuticorin-628 005. ... Respondents
W.P.No.35140 of 2012
S.Jenifur Raj ... Petitioner
Versus
1.The Assistant Commissioner of Labour (Conciliation) II,
Kuralagam, 3rd Floor, Chennai-600 108.
2.The Chairman,
Tamil Nadu Petroproducts Ltd.,
(Principal Secretary Industries Dept,
Government of Tamil Nadu)
Fort St. George,
Chennai-600 009.
3.The Management of
Tamil Nadu Petroproducts Ltd.,
Rep. by Managing Director,
Manali Express Highway,
Manali, Chennai-600 068.
4.The General Manager (HRM),
Tamil Nadu Petroproducts Ltd.,
Manali Express Highway,
Manali, Chennai-600 068.
5.Tuticorin Alkali Chemicals & Fertilisers Ltd.,
represented by its Managing Director,
Tuticorin-628 005. ... Respondents
W.P.No.35141 of 2012
E.Ranjith Kumar ... Petitioner
Versus
1.The Assistant Commissioner of Labour (Conciliation) II,
Kuralagam, 3rd Floor, Chennai-600 108.
2.The Chairman,
Tamil Nadu Petroproducts Ltd.,
(Principal Secretary Industries Dept,
Government of Tamil Nadu)
Fort St. George,
Chennai-600 009.
3.The Management of
Tamil Nadu Petroproducts Ltd.,
Rep. by Managing Director,
Manali Express Highway,
Manali, Chennai-600 068.
4.The General Manager (HRM),
Tamil Nadu Petroproducts Ltd.,
Manali Express Highway,
Manali, Chennai-600 068.
5.Tuticorin Alkali Chemicals & Fertilisers Ltd.,
represented by its Managing Director,
Tuticorin-628 005. ... Respondents
Prayer in W.P.35136 of 2012: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorari to call for the records relating to the impugned order No.pers/301330, dated 21.12.2012 of the 4th respondent issued on behalf of 2nd & 3rd respondent and quash the same as illegal.
Prayer in W.P.35137 of 2012: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorari to call for the records relating to the impugned order No.pers/301331, dated 21.12.2012 of the 4th respondent issued on behalf of 2nd & 3rd respondent and quash the same as illegal.
Prayer in W.P.35138 of 2012: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorari to call for the records relating to the impugned order No.pers/300088, dated 21.12.2012 of the 4th respondent issued on behalf of 2nd & 3rd respondent and quash the same as illegal.
Prayer in W.P.35139 of 2012: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorari to call for the records relating to the impugned order No.pers/301310, dated 21.12.2012 of the 4th respondent issued on behalf of 2nd & 3rd respondent and quash the same as illegal.
Prayer in W.P.35140 of 2012: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorari to call for the records relating to the impugned order No.pers/301288, dated 21.12.2012 of the 4th respondent issued on behalf of 2nd & 3rd respondent and quash the same as illegal.
Prayer in W.P.35141 of 2012: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorari to call for the records relating to the impugned order No.pers/301313, dated 21.12.2012 of the 4th respondent issued on behalf of 2nd & 3rd respondent and quash the same as illegal.
For Petitioners : Mr.K.V.Ananthakrushanan
For Respondents : Mr.V.Subbiah, Spl GP (For R1)
Mr.S.Ravindran, Senior Counsel
For M/s.T.S.Gopalan & Co. (For R2 to R4)
COMMON ORDER
The petitioners in all these writ petitioners are employees of Tamil Nadu Petroproducts Limited, Chennai. In these writ petitions, the petitioners have challenged the orders of transfer dated 21.12.2012.
2.The petitioner in W.P.No.35136 of 2012 (T.Mukesh Kumar) was given an order of transfer dated 21.12.2012 stating that he will be relocated to Tuticorin Alkali Chemicals & Fertilizers Limited, Tuticorin (5th respondent) and accordingly, he was transferred and posted in the 5th respondent-company with effect from 2.1.2013 and he was also given a joining time of one week.
3.The petitioner in W.P.No.35137 of 2012 (A.Aravind Kumar), the petitioner in W.P.No.35139 of 2012 (S.Alaudeen), the petitioner in W.P.No.35140 of 2012 (S.Jenifur Raj) and the petitioner in W.P.No.35141 of 2012 (S.Ranjith Kumar) were also transferred to the Tuticorin Alkali Chemicals & Fertilizers Limited, Tuticorin (For short 'TAC'). However, the petitioner in W.P.No.35138 of 2012 (E.Anand Babu) was transferred to Southern Petrochemicals Industries Ltd., Tuticorin (For short 'SPIC')
4.When these writ petitions came up on 27.12.2012, notice regarding admission was ordered and pending notice, interim injunction was granted for a limited period. Aggrieved by the grant of interim order, the contesting respondents (R2 to R4) filed M.P.No.1 of 2013 in all the above writ petitions, together with a supporting counter affidavit dated 03.01.2013, seeking to vacate the interim order,.
5.It was stated by the contesting respondents, in the counter affidavit at para 33, that even before the petitioners obtained the interim order, they were relieved from Manali Plant and subsequently, after getting interim order on 27.12.2012 they reported at Manali establishment carrying a letter from the counsel conveying the order of injunction. Therefore, without any verification with a view to give effect to the order of this Court, they were permitted to enter the factory. But, subsequently, after going through the affidavit filed in support of the writ petition, the contesting respondents found that allowing the petitioners to remain in factory will give rise to needless tension and also affect the morel of the officers and executives. Therefore, the respondents gave a letter, dated 3.1.2013, exempting the petitioners from reporting duty either at Manali or at Tuticorin, and also ensured their wages and other benefits for the period, for which they were exempted from duty.
6.In the light of the urgency expressed by the learned counsel on either, with the consent of both parties, the main writ petitions themselves were taken up for hearing.
7.Heard the arguments of Mr.K.V.Anandakrushan learned counsel appearing for the petitioners and Mr.Ravindran, learned Senior Counsel appearing for the respondents 2 to 4, as well as the learned Special Government Pleader Mr.V.Subbiah appearing for the 1st respondent.
8.The stand of the petitioners was that they were appointed to work in the Tamilnadu Petroproducts Ltd., Chennai, and the company has got Standing Orders defining the terms and service conditions of the workmen in the factory. Standing Order No.25 provides for transfer of workman in certain contingencies, which reads as follows:-
"25.TRANSFER
i)A workman may be liable to be transferred to any department or section or to any place or business of the company or on deputation to other companies, firms or institutions.
ii)If a workman refuses or fails to go on such transfer or deputation, he shall be deemed to be absent from duty from the date of such refusal or failure and a corresponding deduction will be made from his wages in accordance with the provisions of the Payment of Wages Act, without prejudice to any other disciplinary action that may be taken under these Standing Orders."
In view of the above said Standing Order, the present transfer posting the petitioners to some other company, either TAC or SPIC at Tuticorin, is totally without jurisdiction and hence, the impugned orders are liable to be set aside.
9.In the counter affidavit filed by the contesting respondents the following contentions were taken up:-
i) The respondent Tamil Nadu Petroproducts Limited is not a public authority within the meaning of Article 12 of the Constitution or Instrumentality of the State or State. Therefore, the writ petitions are not maintainable.
ii) The Union, to which the petitioners belong, has already raised a dispute before the 1st respondent-Conciliation Officer and the Conciliation Officer has also issued a notice asking the parties to appear. Since they have already raised a dispute under Section 2(k) of the Industrial Disputes Act, through their Union, they cannot independently maintain writ petitions before this Court.
iii) Each one of the petitioners was given at the time of joining an appointment order and Clause-11 of the appointment order, states as follows:-
"You will be posted at the Factory at Manali Express Highway, Manali, Chennai-600 068. However, you shall be liable to be transferred to any of the Company's Division/Project/Subsidiary or Group Companies anywhere in India or abroad and assigned such other duties as may be deemed proper in the interest of the Company."
Therefore, notwithstanding the standing order, since the workmen were aware of their obligations in terms of the appointment order, they are liable to be transferred not only to any companies, either other division or project, but also to subsidiaries and group companies anywhere in India or abroad. Therefore, there is no scope for the petitioners to oppose the orders of transfer.
10.In support of these contention, Mr.Ravindran learned senior counsel appearing for the contesting respondents 2 to 4, referred to a Judgment of the Full Bench of This Court in Pitchumani. P Vs. The Managmenet of Sri Chakra Tyres Ltd., reported in 2004 (3) CTC 1 and particularly referred to the following findings given by the Full Bench, which read as follows:-
"14.In view of what is stated supra, we hold that
(i)only such violations under I.D. Act, which involve public duties, are amenable to Writ Jurisdiction under Article 226 of Constitution of India;
(ii)dismissals, transfers and other matters concerning the service conditions of employees governed by I.D. Act., have to be adjudicated only by the forums created under the said statute and not otherwise;
(iii)it is needless to mention that the disputes relating to matters not governed by I.D. Act have to be resolved only by common law Courts;
(iv)the transfers effected in these cases do not involve any public duties and involve the disputed questions of fact and they should be resolved only before the forums under the I.D. Act;
(v)the appellants/petitioners-employees shall be entitled to seek for reference by filing application under Section 10 of the I.D.Act, within two weeks from the date of receipt of a copy of this order;
(vi)if any industrial disputes are raised, then the concerned forums, be it Labour Court or Industrial Tribunal, shall dispose of the same within four months from the date of receipt of the reference, after affording opportunity to either party;
(vii)without prejudice to the contentions of the appellants/petitioners-employees, one week time from the date of receipt of a copy of this order is given to the employees to join at the transferred places and in respect to such of those dismissed employees, for non-joining at the transferred places, the delay is condoned if they join as stipulated above and in that event, dismissal orders passed against them disappear automatically; and
(viii)the respondents-managements shall sympathetically consider the payments of wages/salaries to the appellants/petitioners-employees so as to maintain the industrial peace and harmony.
Therefore, the learned senior counsel for the contesting respondents 2 to 4 contended that since there being no public duty, the order of transfer has been issued with a view to provide employment to the petitioners and there is no scope for maintaining the writ petitions.
11.He also referred to another decision of the Hon'ble Supreme Court reported in 1998(1)MLJ 460 (Management of Cipla Ltd., s. Jayakumar R & Another), by contending that as there is conflict between the Standing Orders and the terms of appointment, the workman cannot challenge the transfer order stating that the management cannot follow the terms of appointment.
12.In the light of the above, the following questions arose for consideration by this Court.
1.Whether the contention of the Management that the terms of appointment as referred to above enable them to transfer employees from one company to other than the company, in which they are working.
2.Whether the TAC, Tuticorin and SPIC, Tuticorin are group companies coming within the understanding of the terms of appointment order.
3.Whether the respondents are empowered to transfer the employees from one company to another company, even if it does not come within the term 'Group Company' or 'subsidiary', in the light of the terms of appointment order.
4.Whether the writ petitions as against the Tamil Nadu Petroproducts Ltd are maintainable.
5.In the light of the Trade Union of the Workmen having gone before the Assistant Commissioner of Labour raising a dispute, whether these workmen can independently maintain these writ petitions.
13.In the present case, this Court directed the respondents to indicate the nature of relationship between the Tamil Nadu Industrial Development Corporation Limited (TIDCO), Tamil Nadu Petroproducts Ltd, andTuticorin Alkali Chemicals & Fertilisers Ltd., (TAC) and Southern Petrochemical Industries Limited (SPIC).
14.Accordingly, a common additional counter affidavit was filed by the respondents 2 to 4, dated 31.01.2013. It is stated by them that Tamil Nadu Industrial Corporation Ltd (TIDCO) has industrial licences issued by the Government of India for setting up facilities for manufacturing number of products in the State of Tamil Nadu. After securing such licences, TDICO used to go for scouting for promoters for joint venture and such joint ventures will be in the form of public limited company and TIDCO will be holding 26% of the share and the Promoters will be having 25% and the remaining shares will be owned by financial institutions and members of public. In all such joint ventures, the nominee of the TIDCO will be the Chairman and the nominee of the promoters will be the Managing Directing. The TIDCO had industrial licences for setting up facilities for Fertilizer, Soda Ash and Ammonium Chloride. TIDCO had also licence for manufacture of Linear Alkyl Benzene (LAB). TIDCO and M.A.Chidambaram Associates (MAC) entered into a joint venture agreement and promoted SPIC for manufacture of chemical fertilizer in Tuticorin. Subsequently, TIDCO and SPIC entered into a joint venture agreement for manufacturing Soda Ash and Ammonium Chloride and promoted the Tuticorin Alkali Chemicals & Fertilizers Limited. SPIC and TIDCO signed another joint venture agreement for setting up a plant for manufacturing LAB at Manali and promoted a company called Tamil Nadu Petroproducts Limited. The genesis of all these companies can be traced to public private partnership between TIDCO and M.A.Chidambaram Associates. It is this link that gives a nexus for employment of any person with any one of these companies. It is in that view of the matter, it was contended that even if it is not subsidiary company, it will come within the term Group Company as found in the terms of appointment.
15.This Court is not inclined to accept that in terms of appointment, an employee can be transferred even from one company to another company, in which there are not initially employed. On the other hand, when the question of transfer is brought within the terms of certified Standing Orders, and finds a special reference in Para 25 as set out above, there is no scope for the Management to introduce a term of appoint either contrary to the Standing Orders or expanding the scope of the standing Order.
16.Similar question came up for consideration before the Honourable Supreme Court in judgment reported in 1973 (II) LLJ 403 (Western India Match Company Ltd., vs. Workmen), wherein the Supreme Court has held that outside the Standing Orders, either it is prior agreement or post agreement, if there are inconsistency with the Standing Order, the agreement reached between the management and workmen will not have any force. In paragraphs 8 & 10, it has been held as follows:-
"8.If a prior agreement inconsistent with the standing orders will not survive, an agreement posterior to and inconsistent with the standing order should also not prevail. Again, as the employer cannot enforce two sets of standing orders governing the classification of workmen, it is also not open to him to enforce simultaneously the standing orders regulating the classification of workmen and a special agreement between him and an individual workman settling his categorization.
...
10.In the sunny days of the market economy theory people sincerely believed that the economic law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workman. Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the unity (sic) of this law. But, the exercise of the working of this law over a long period has belied their faith. Later generations discovered that the workmen did not possess adequate bargaining strength to secure fair terms and conditions of service. When the workmen also made this discovery, they organised themselves in trade unions and insisted on collective bargaining with the employer. The advent of trade unions and collective bargaining created new problems of maintaining industrial peace and production for the society. It was, therefore, considered that the society has also an interest in the settlement of the terms of employment were two parties at he negotiating table, the employer and the workman, it is not thought that there should also be present a third party, the State, a representing the interest of the society. The Act gives effect to this new thinking. By Section 4 the officer certifying the standing order is directed to adjudicate upon "the fairness or reasonableness" of the provisions of the standing order. The certifying officer is the statutory representative of the society. It seems to us that while adjudging the fairness or reasonableness of any standing order, the certifying officer should consider and weight the social interest in the claims of the employer and the social interest in the demands of the workmen."
Therefore, the reliance placed by the Management on the terms of appointment order has got no legal value and they cannot expand the terms of the Standing Orders provided for transfer. So long as the transfer is not to any department or section or to any place or business to the company or it does not come within the deputation in a company or institution, the reliance placed upon the appointment order will not be of any assistance to the respondents.
17.Even otherwise, the appointment order insofar as enabling the employees to be transferred to any subsidiary company is concerned, Mr.AnandaKrushnan, learned counsel for the petitioners, referred to the company's Balance sheet, wherein it was stated that the Tamil Nadu Petroproducts Limited has got no subsidiary, as reflected in the statement made in the Balance Sheet. Therefore, it has to be held that notwithstanding the so-called joint venture agreement between MAC and TICO, the Tamil Nadu Petroproducts Limited, TAC and SIDCO are independent companies, having their own name and seal and perpetual succession and they are distinct legal entities. In such circumstances, when an employee is transferred from one company to another company, in which he was not an employee, it requires the consent of the employee to be transferred to the new company, which practically becomes his employer. Unless there is a tripartite agreement between the workmen and the present employer as well as the new employer, there is no scope in industrial law for transferring the contract of service to another employer. This proposition of law has been clarified by the Hon'ble Supreme Court in judgement in Pyarchand Kesarimal Porwal Bidi Factory Vs. Omkar Laxman Thenge and others) reported in 1970(1) LLJ 492. After referring to several English decisions, in paragraphs 8 & 9 it has been laid down in the said Judgment as follows:-
"8.A contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party. Therefore, so long as the contract of service is not terminated, a new contract is not made as aforesaid and the employee continues to be in the employment of the employer. Therefore, when an employer orders him to do a certain work for another person, the employee still continues to be in his employment. The only thing that happens in such a case is that he carries out the orders of his master. The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pay his wages during the time that he has hired his services, but that is because of his agreement with the employer. That does not preclude the employee from claiming his wages from the employer. The hirer may also exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done. But if the employee fails to carry out his directions, he cannot dismiss him and can only complain to the employer. The right of dismissal vests in the employer.
9.Such being the position in law, it is of the utmost importance in the present case that the appellants at no time took the plea that the contract of employment with the factory was ever terminated or that the respondent gave his consent, express or implied, to his contract of service being transferred to the head office, or that there was a fresh contract of employment so brought about between him and the head office. Unless, therefore, it is held from the circumstances relied upon by Sri Phadke that there was transfer of the contract of service or that respondent 1 gave his consent, express or implied, to such a transfer, respondent 1 would continue to be the servant of the factory. Since the case has been remanded to the Assistant Commissioner, we refrain from making any observations as regards the effect of the admissions said to have been made by respondent 1 and relied on by the Assistant Commissioner."
18.Mr.Ravindran, learned senior counsel appearing for the contesting respondents stated that altogether 23 employees were transferred and three employees have accepted the transfer.
19.Insofar as the employees accepting their transfer, it becomes within the ratio of the Supreme Court, because in such cases there is an implied consent given by the employees. But, insofar as the present six petitioners are concerned, since they question the very order of transfer itself, it cannot be said that there is a tripartite agreement between the parties, wherein and by which, the employees have agreed to go under the new employer. Therefore, the contention that the order of transfer is legal, does not stand to reason.
20.As far as the other contention of the learned Senior Counsel for the contesting respondents that the writ petition is not maintainable against the respondent-company is concerned, it must be noted that a strong reliance is place upon the judgment of the Hon'ble Full Bench in Pitchumani case (cited supra) and more particularly a reference was made to Para 14 (iv), to contend that transfer effected does not involve any public duty and even otherwise, if there is any disputed questions of fact, they should be referred before the forum under Industrial Disputes Act.
21.In Pitchumani case (cited supra) the question arose was not the transfer to another employer, but the transfer by the same employer to same establishment outside the State. Therefore, the factual position in this case and the factual position in Pitchumani case are entirely different.
22.In the present case, as rightly contended by Mr.AnandaKrushnan, learned counsel for the petitioners, that if the petitioners accept the transfer, then ultimately they become the employees of some other employer and the contract of service with the present employer will stand terminated. He also submitted that TAC is becoming a sick company and is facing proceedings before the BIFR and it is likely to be closed at any time and under such circumstances, no one will take the risk of going to a company, which is already a sinking boat. He also submitted that the employer has got right to reorganize their business and if for some reason, it is not viable for them, there are remedies open to the employer under the provisions of the Industrial Disputes Act to streamline their own business, for which they will have to get appropriate approval from the State Government. But, they cannot do it directly and they cannot be allowed to do it indirectly.
23.Apart from this, it must also be noted that the term Unfair Labour Practice in factories is defined under Section 2(ra) of the Industrial Disputes Act and it means, any of the practices specified in the 5th Schedule. The 5th Schedule sets out the types of such Unfair Labour Practices and it states that a transfer of an employee from one place to another place under the guise of following management policy is an Unfair Labour Practice. Section 25 (T) of the ID Act prohibits the commission of unfair labour practice by an employer and Section 25(U) provides for a penalty for committing unfair labour practice. ID Act has not given any forum, under which the workman can make a complaint regarding the unfair labour practice of an employer. In such a case, a penalty of six months imprisonment, with or without fine, has been made for commission of unfair labour practice and there is total prohibition of commission of such practice. It has to be taken in mandatory in character. Therefore, when an employer transfers an employee, it has to be within the terms of Standing Orders. If the employer breaches the terms of Standing Orders, certainly it would amount to violation of such Standing Orders and commission of unfair labour practice and in such event, certainly a writ petition under Article 226 of Constitution is maintainable. The effect of Schedule 5 and Section 25 (T) & (U) of ID Act were not considered by the Full Bench in the above cited case. Therefore, in this case, sending the workmen out by virtue of transfer and the contract of service to new employer, cannot be allowed.
24.This is, especially in this context, when a public sector company viz., TIDCO, admittedly, is having 26% share in the Tamil Nadu Petroproducts Limited, the argument that the writ petition is not maintainable cannot be accepted by this Court.
25.As far as the last contention of the learned Senior Counsel for the contesting respondents that since the workmen have, through their Union, raised a dispute before the 1st respondent, they cannot maintain a writ petition is concerned, it must be noted that except sending a notice inviting the parties for a talk, no conciliation proceedings have been initiated by the said officer. Even otherwise, a dispute relating to transfer can only have a collective dispute, in which workmen have no say in the matter. Merely because the Union has raised a dispute, that does not extinguish the right of the workmen, even otherwise they are entitled to move an appropriate forum.
26.Further, even if the conciliation ends in failure report, it will depend upon whether the State Government will refer the dispute or not, and even if there is a reference, the workmen will have to wait for a final adjudication for their relief. Under such circumstances, the status of the employees will be ambivalent and virtually, they will be without any relief. Under such circumstances, the objection that they will have to move the forum under Industrial Disputes Act, also does not stand to reason.
27.A Division Bench of this Court in Voltas Volkart Employees Union Vs. Volta Limited reported in 2000 (1) CTC 184 has held that if there is a gross infringement of statutory provision and consequential violation of principles of natural justice, regarding deprivation of the right, then a writ petition is maintainable, notwithstanding the alternative remedy available to the workmen.
28.Mr.AnandaKrishnan learned counsel for the petitioners also referred to the judgment of the Hon'ble Supreme court in BCPP Mazdoor Singh Vs. N.T.P.C (AIR 2008 SC 336), wherein it was held that a person who is working in a public sector enterprises cannot be transferred to a private concern on the basis of the bipartite agreement between the employer and the transferee company and such agreement is violative of Section 23 of the Contract Act as well as Article 14 of the Constitution.
29.In view of the above discussions, this Court has no hesitation to allow these writ petitions. Accordingly, the writ petitions are allowed and the impugned orders stand set aside. Consequently, connected Miscellaneous Petitions are closed. No costs.
31.01.2013 Index : Yes/No Internet : Yes/No ssv To
1.The Assistant Commissioner of Labour (Conciliation) II, Kuralagam, 3rd Floor, Chennai-600 108.
2.The Chairman, Tamil Nadu Petroproducts Ltd., (Principal Secretary Industries Dept, Government of Tamil Nadu) Fort St. George, Chennai-600 009.
3.The Managing Director, Tamil Nadu Petroproducts Ltd., Manali Express Highway, Manali, Chennai-600 068.
4.The General Manager (HRM), Tamil Nadu Petroproducts Ltd., Manali Express Highway, Manali, Chennai-600 068.
5.The Managing Director, Tuticorin Alkali Chemicals & Fertilisers Ltd., Tuticorin-628 005.
6.The Manaing Director, Southern Petrochemicals Industries Ltd., Tuticorin-628 005.
K.CHANDRU, J.
ssv W.P.Nos.35136 to 35141 of 2012 and M.P.Nos.1, 1, 1, 1, 1, & 1of 2012 and M.P.Nos.1, 1, 1, 1, 1 & 1 of 2013 31.01.2013