Punjab-Haryana High Court
State Bank Of India Staff Registered ... vs Union Of India (Uoi) Through Secretary ... on 13 September, 1991
Equivalent citations: (1992)101PLR141
JUDGMENT R.S. Mongia, J.
1. The Petitioners before me are State Bank of India Staff Registered Congress, Chandigarh Circle, Chandigarh, a registered trade union, Alam Singh, Bajar Singh and Mohinder Singh, all Record Keepers in the State Bank of India, Sector 17, Chandigarh (Local Head Office). They have filed the present writ petition inter-alia with the prayers : -
(i) that respondent No. 3 i. e. Assistant Labour Commissioner, Chandigarh be directed to perform his duties as envisaged by Section 12 of the Industrial Disputes Act (hereinafter called the Act); and
(ii) proceedings for prosecution should be initiated against State Bank of India, under Section 31 of the Act for allegedly contravening the provisions of Section 33 of the Act.
2. The facts giving rise to this petition are :-
That on 27-5-1988 a circular was issued by the Bank for sending the names of eligible persons for consideration for promotion to the posts of Cashiers/Record Keepers/Bill Collectors/Godown Keepers. In this circular, it was mentioned that a written undertaking be obtained from each employee who was being recommended for the test for the purpose of promotion that he was willing, on promotion, to be transferred anywhere within the State/same language area in which he was working at the relevant time in the subordinate cadre. This circular was circulated amongst all the employees who were desirous of being considered for promotion to the above-posts. Petitioner Nos. 2 to 4 gave their consent in writing to the effect that in case they were promoted, they would be willing to be transferred anywhere within the State/same language area, in which they were posted. After the written test and interview, which were held in December, 1988 and March, 1989 respectively, 6 guards including the petitioners were promoted as Record Keepers on 1-5-1989.
3. On 9-11-3990, a Strike Notice under Section 22(1) of the Act against the alleged unwarranted move to transfer the petitioner Nos. 2 to 4, was issued by the General Secretary of the petitioner No. 1 to the General Manager (P) of State Bank of India (Copy attached Annexure P-2). Copy of this notice was also sent to the Regional Labour Commissioner and Assistant Labour Commissioner, Chandigarh. In the Annexure attached with the notice, it was mentioned that the Bank is proposing to transfer petitioner Nos. 2 to 4 and that having sensed the mala fide designs of the Bank, the workmen vide their representation dated 22-5-1990, had submitted to the Bank that in case they could not be accommodated posted at Chandigarh, the representation may be treated as refusal for acceptance of promotion. [Annexure to the notice under Section 22(1) of the Act was not filed along with the writ petition and it is being disputed whether any such Annexure along with the notice was received by the Bank or not or whether any representation dated 22-5-1990 was ever received by the Bank, which is mentioned in the Annexure].
3. It is further mentioned that in July, 1989 the local head office of the Bank had shifted to its new building and to guard the building and other things, 47 guards were to be recruited. By November, 1990 the Bank had already made fresh appointments of guards and the new appointees had already taken over. In furtherance to the notice of strike, issued under Section 22(1) by petitioner No. 1, the Regional Labour Commissioner, Chandigarh issued a notice dated 9-11-1990 to the Bank to appear on 16-11-1990. The respondent-Bank filed a reply to the same on 16-11-1990 (copy Annexure R. 4/6). Copy of this notice issued by the Regional Labour Commissioner was also endorsed to Shri J. G. Verma, General Secretary of Petitioner No. 1. It was further mentioned in the notice that conciliation proceedings regarding disputes raised in the strike notice will be held on 16-11-1990 at 2 p.m.
4. When reply to the notice was filed by the Bank before the Assistant Labour Commissioner on 16-11-1990, nobody appeared on behalf of the petitioners and the following order was passed on that date :-
"Sh. V. K. Monga, present for management.
None, for workers.
Reply filed by Management.
To come up on 27-11-1990 at 1100 hrs. Workmen is given last opportunity and copy of reply is sent with this notice.
Management representative claims that these cases are filed up as a part of delaying tactics on part of the workmen representatives.
But demands of justice is met only, if we give at least one more chance to workmen to represent his case.
Sd/- Sd/-
V. K. Monga. A.L.C.(C)
Chd-II."
5. On the next date i.e. 27-11-1990 that was fixed vide order dated 16-11-1990, again nobody was present on behalf of the petitioners for conciliation proceedings and the following order was passed on that date :-
"Sh. V. K. Monga, present, for Management.
None, for workmen.
The workmen was not present on 16-11-1990. He was issued a last opportunity notice for 27-11-1990 at 1100 hrs. But now till 1500 hrs, no workman representative has turned up. It seems that workman is not interested in pursuing the case. It is further mentioned here that no strike has taken place and according to management representative there is no apprehension also.
The case is, therefore, closed and dismissed.
Sd./- Sd./- V. K. Monga A.L.C.(C) Chandigarh."
6. Petitioner Nos. 2 to 4 were relieved to join at the new places on transfer vide orders dated 27-11-1990, copies of which have been attached as Annexures P-4, P-5 and P-6.
7. On 28-11-1990, petitioner No. 1 filed a complaint under Section 31 of the Act before the Assistant Labour Commissioner (copy Annexure P-7), in which it was mentioned that the Assistant Labour Commissioner had ordered the closure of the disputes arbitrarily under the pressure of the management which was totally unwarranted. It was requested to reopen the matter. It was further mentioned that management had violated the provisions of Section 33 of the Act by relieving petitioner Nos. 2 to 4, although conciliation proceedings had not come to an end. According to the complaint, conciliation proceedings come to an end seven days after the report is received by the Ministry. A prayer was made to take legal action against the Bank under section 31 of the Act. It may be observed here that a detailed report regarding the conciliation proceedings which came to an end on 27-11-1990 was sent by the Assistant Labour Commissioner to the Secretary Government of India Ministry of Labour, New Delhi on 3-12-1990 (copy of the same has been attached as Annexure P-5). Reply to the complaint, Annexure P-7 was filed by the management before the Assistant Labour Commissioner. The Assistant Labour Commissioner, on 20-12-1990 passed the following order on the complaint, Annexure P-8 :-
"Present : Sh. P. K. Gupta, for Management.
Sh. J. G. Verma, for Workman.
Reply is filed one copy given to Shri Verma. Since the case was closed after giving due opportunity to the workmen's representative, so no case is being made out under Section 31 of the Industrial Dispute Act, 1947 against office Manager L. H. O., Chandigarh.
However, Shri J. G. Verma is at liberty to raise fresh dispute, in case if he so desires.
Sd./- Sd./- Sd./- P.K. Gupta J. G. Verma A.L.C.(C)-II 20-12-1990 20-12-1990 20-12-1990". On 16-1-1991, the present writ petition was filed.
8. I have heard Mr. J. G. Verma, General Secretary of the Petitioner No. 1-Union, as also counsel for respondent Nos. 1 to 3 and counsel for respondent No, 4.
9. Mr. Verma contended that the conciliation officer had failed to carry out the duties as envisaged under Section 12 of the Act, inasmuch as he was required to investigate into the matter regarding the dispute which was raised before him inspite of the fact that the petitioners had not appeared before him. He drew my attention to Section 12 of the Act which is in the following terms :-
"12. (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall hold conciliation proceedings in the prescribed manner.
(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of including the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government (or an officer authorised in this behalf by the appropriate Government) together with a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, (Labour Court, Tribunal or National Tribunal) it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties its reasons thereof.
(6) A report under this Section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government :
Provided that (subject to the approval of the conciliation officer) the time for the submission of the report maybe extended by such period as may be agreed upon in writing by all the parties to the dispute."
10. On the basis of Section 12(2) quoted above, Mr. Verma submitted that the conciliation officer is duty bound to investigate the dispute without delay for the purpose of bringing about the settlement of the dispute arid since the conciliation officer had passed order dated 27-11-1990 (quoted in earlier paragraphs of this judgment), closing the case without investigating the matter, the order dated 27-11-1990 was without jurisdiction and in violation of Section 12 of the Act. He further submitted that the report of the conciliation officer dated 3-12-1990 was also bad in view of the abovementioned submissions as really no effort was made by the conciliation officer to resolve the dispute between the parties.
11. I find no merit in the submissions of Mr. Verma. The workmen chose not to be present before the conciliation officer i.e. Assistant Labour Commissioner, Chandigarh on 16-11-1990. On that date, the management had filed reply before the Assistant Labour Commissioner. It is none of the duties of the conciliation officer, under Section 12 of the Act that he must investigate the dispute even when the persons who raise the dispute are not present to substantiate as to what the dispute is. If the parties raising the dispute are not interested to got a settlement, it is not the duty of the conciliation officer to try to resolve the dispute in the absence of the persons raising the dispute. The conciliation officer could close the case on 16-11-1990 itself, but still gave another opportunity to the workmen to appear on 27-11-1990. On that date also, nobody appeared on behalf of the workmen. The conciliation officer was correct in, these circumstances to close the case. It is the duty of the persons raising a dispute to assist the conciliation officer regarding the facts of dispute and how the same can possibly be resolved.
12. I may notice here that in the complaint, Annexure P-7 dated 28-11-1990, it was mentioned that the petitioners did not appear before the conciliation officer on 16-11-1990 as they telephoned the office of the conciliation officer, but they were advised by Mr. Thakur, Clerk attached to Assistant Labour Commissioner that all the cases were adjourned to 11-12-1990. Apart from the fact that this, is no way to know whether the cases are being taken up by a Court or not, I find that there is an affidavit filed by Mr. Thakur Chand, Clerk of the office of Regional Labour Commissioner, Chandigarh, that nobody had ever contacted him on 16-11-1990 and that he never informed any member of the State Bank of India, Chandigarh Staff Congress regarding the adjournment of the cases. That being so, there was no justification with the petitioners not to appear before the Assistant Labour Commissioner and consequently, as observed above, the Assistant Labour Commissioner rightly closed the case and later on sent a report as envisaged by Section 12(4) of the Act to the concerned quarters.
13. Rule 9 of the Industrial Disputes (Central) Rules, 1957 envisages that the conciliation officer on receipt of notice of strike shall forthwith arrange to interview both the employer and workmen concerned with the dispute at a given place and time, as he may deem fit. If on calling the workman, who raised a dispute, the conciliation officer finds that the concerned workman has failed to appear, there is no duty cast upon him to go ahead with the matter.
14. Now coming the second aspect of the matter, Mr. Verma on behalf of the petitioner submitted that the conditions of service in regard to any matter connected with the dispute are to remain unchanged during the pendency of any conciliation proceedings before the conciliation officer. For this, reliance on section 33(1)(a) of the Act, was placed, which is quoted as under:-
"During the pendency of the conciliation proceeding before a conciliation officer or a Board of any proceeding before (an , arbitrator or) a Labour Court of 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 workman concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding;
save with the express permission in writing of the authority before which the proceeding is pending."
Mr. Verma submitted that the conciliation proceedings shall be deemed to have concluded under section 20(2)(b) of the Act, a report of the conciliation officer is received by the appropriate Government that no settlement has been arrived at. According to Mr. Verma the conciliation proceeding can be taken to have been concluded sometime after 3-12-1990, when the report by the conciliation officer was sent to the appropriate Government. However, according to him, before the conciliation proceedings were concluded, the petitioners workmen were sought to be transferred on 27-11-1990 vide Annexures P-4, P-5 and P-6. This, according to Mr. Verma, amounted to the change of service conditions of the petitioners in regard to the matter connected with the dispute i. e. transfer of the petitioners and is, therefore, there was violation of Section 33 . of the Act (supra). According to Mr. Verma, since provisions of Section 33 had been contravened by State Bank of India, proceedings should be initiated against them under Section 31 of the Act, which is in the following terms:-
"31. (1) Any employer who contravenes the provisions of Section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand, rupees, or with both.
(2) Whoever contravenes any of the provisions of this Act or any rule made thereunder shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with fine which may extend to one hundred rupees."
15. The question that calls for determination is whether the transfer was a condition of service of the, petitioners. No basis have been laid down before me to show that the transfer was a condition of service of the petitioners. It is always inherent right, of the employer to post any employee anywhere in the exigencies of service and according to the requirement of the administration. Mr. Verma cited a judgment of Supreme Court reported as Bhavnagar Municipality v. Alibhai Karimbhal, 1977 (1) L. L. J. 407, to contend that the transfer was a condition of service. I have gone through this judgment carefully and find that there is no whisper even that transfer is a condition of service. No employee can insist that he must continue at a particular place. Unless and until the transfer is held to be mala fide, the same cannot be questioned, but in that eventuality also, transfer would not become a condition of service. Mr. Verma referred to a booklet containing Award on the Industrial Disputes between certain Banking Companies and their Workman popularly known as Sastry Award. From this also, I do not find that the policy regarding transfer had become a condition of service. Even if it is considered, for the sake of arguments that transfer was a condition of service, then all the petitioners had given, in writing, their consent to the transfer, which was to the following effect :-
"I confirm that in any case I am promoted. I will be willing to be transferred anywhere within the State/same language area in which I am presently posted".
That being so, the petitioners cannot make any grievance that they were being transferred as because of the consent the condition of service was that they were willing to be transferred anywhere within the State/same language area, in which they were posted.
16. For the view I am taking, it is not necessary to go into the question as to when to the conciliation proceedings really concluded under Section 20(2)(b) of the Act,
17. For the foregoing reasons, I find no merit in this petition, which is dismissed with no order as to costs.