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2002 DIGILAW 300 (GAU)

Sekhar Rudra v. Oil India Ltd. and Ors.

2002-07-18

RANJAN GOGOI

body2002
RANJAN GOGOI, J- To understand and appreciate the challenge made in the instant writ petition, a brief recapitulation of the facts is considered necessary. 2. The petitioner who was working as a Grade VIII employee in Oil India Limited and posted at the relevant point of time at Narengi, Guwahati was sought to be transferred by an order dated 22.12.89 to Dumar in Bihar. The aforesaid transfer order was by way of promotion. The Union representing the writ petitioner took up the case protesting the aforesaid transfer and subsequently, a memorandum of settlement under Section 18 of the Industrial Disputes Act, 1947 (in short the Act) was signed by and between the parties on 7.8.90. In terms of the aforesaid settlement, it was agreed that the management of the Oil India Limited would not force the workman to go on transfer on promotion in case the workman was ready to forego the promotion. The petitioner thus continued to be stationed at Narengi until sometime in the year 1998 when he was transferred to Jorhat. The employees union once again took up the case protesting against the aforesaid transfer on the ground that the same was contrary to the memorandum of settlement signed by and between the parties on 7.8.90. The management, thereafter, issued a notice dated 16.5.98 under Section 19(2) of the Act and on the expiry of two months from the date of notice, the management of Oil India Limited once again transferred the workman concerned to Dumar in Bihar by an order dated 17.7.98. A conciliation proceeding was held by the Assistant Labour Commissioner, Guwahati but as no amicable settlement of the dispute could be reached, the same was referred to the appropriate authority of the Central Govt. under Section 12(4) of the Act for reference to the Industrial Tribunal. The appropriate authority of the Central Govt. by communication dated 10.2.99 refused to refer the matter to the Industrial Tribunal on the ground that the transfer of a workman is the privilege of the management and no industrial dispute can be said to have arisen in the instant case. Thereafter, it become obligatory on the part of the petitioner to comply with the transfer order. The same not having been done, a charge sheet dated 11.5.99 was issued against the workman. Thereafter, it become obligatory on the part of the petitioner to comply with the transfer order. The same not having been done, a charge sheet dated 11.5.99 was issued against the workman. It is in these facts that the present writ proceeding has been instituted calling into question the transfer order dated 17.7.98 as well as the charge sheet dated 11.5.99 along with the order of the Central Govt. refusing to refer the dispute to the Industrial Tribunal. The rejection of the writ petitioner's representation for reconsideration of the transfer order made by order dated 23.10.98 is the ancillary subject matter of the challenge in the present proceeding. 3. Mr P.J. Phukan, learned counsel appearing for the writ petitioner, in support of the challenge made in the instant writ application has argued that notwithstand­ing the revocation of the memorandum of settlement dated 7.8.90 by issuing notice under Section 19(2) of the Act, the terms of the earlier settlement would govern the relationship between the parties until a fresh settlement was arrived at. In support of the above, the learned counsel has placed has placed reliance on the decision of the Apex Court in the case of the Life Insurance Corporation of India-Vs-D.J. Bahadur and Ors. reported in (1981)1 SCC 315 . It has also been contended by the learned counsel for writ petitioner that the order of the Central Govt. refusing to refer the dispute for adjudication by the Industrial Tribunal under the provisions of the Act is an arbitrary action and the cryptic order passed in this regard discloses no reasonable basis for the same. The learned counsel, therefore, submits that the aforesaid refusal by the Central Govt. to make a reference would be amenable to the writ jurisdiction of this Court. That apart, it is the contention of the learned counsel for the petitioner, that the consequential charge sheet dated 11.5.99 as well as the rejection of the petitioner's representation made by communication dated 23.10.98 are wholly untenable in law, warranting necessary interference by this Court. 4. Mr S.N. Sarma, learned sr. counsel appearing on behalf of the respondents while controverting the arguments advanced by the learned counsel for the petitioner has placed reliance on the affidavit filed by the respondents. 4. Mr S.N. Sarma, learned sr. counsel appearing on behalf of the respondents while controverting the arguments advanced by the learned counsel for the petitioner has placed reliance on the affidavit filed by the respondents. According to the learned counsel, the memorandum of settlement dated 7.8.90 was one time measure and in any case the same was rescinded in accordance with the provision of Section 19 of the Act after due and proper notice. The said rescission, according to the learned counsel become effective on the expiry of 2 months from the date of issue of notice. The impugned transfer order was made thereafter. There is no infirmity with the transfer order, it is argued. It is also argued that transfer is a managerial prerogative and no allegation of mala fide a abuse of power is discernable in the pleadings advanced by the writ petitioner. According to the learned counsel as it had become obligatory on the part of the writ petitioner to comply with the transfer order, his failure to do so was an act of indiscipline and insubordination for which the charge sheet in question had to be issued. Insofar as the refusal of the Central Govt. to make a reference of the dispute to the Industrial Tribunal is concerned, it has been argued by Mr Sarma that not only the writ petition does not disclose the specific grounds of challenge against the said order; the order of the Central Govt. does disclose sufficient reasons for the impugned refusal and in any case, the writ power of this Court under Article 226 of the, Constitution would not enable a writ of mandamus to be issued to compel the appropriate authority of the Central Govt. to make a reference of the alleged dispute for adjudication by the Industrial Court under the provisions of the Act. 5. The rival submissions advanced by the parties have been duly noted and considered. The core argument on behalf of the petitioner is that in the case of Life Insurance Corporation of India-Vs-D.J. Bahadur (supra), the Apex Court had held that notice under Section 19(2) of the Act does not by itself terminate the settlement arrived at by and between the parties under the provisions of Section 18 of the Act and until a fresh settlement is arrived at, the earlier terms would govern the relationship between the parties. On the aforesaid basis, it is contended that the transfer order is bad being contrary to the earlier settlement dated 7.8.90. 6. I have considered the submissions advanced in the light of the decision of the Apex Court in the case of Life Insurance Corporation of India-Vs-D.J. Bahadur (supra). The subject matter in the case before the Apex Court was one relating to the entitlement of the workmen to non profit sharing bonus. The said question was governed by a settlement under Section 18 of the Act notwithstanding the provisions in the Service Regulations to the said effect. The aforesaid settlement continued to remain operative for several decades before the management sought to renunciate the same by issuing a notice under Section 19(2) of the Act. It is in these facts that the Apex Court, on an elaborate consideration of the case law on the subject, held that the notice under Section 19(2) of the Act would not ipso facto bring the settlement to an end until the same is replaced by a fresh settlement arrived at in accordance with the provisions of the Act. What is significant and, therefore, ought not to be lost sight of, is the observation of the Apex Court that notice under Section 19(2) of the Act opens the door for an industrial adjudication as regards the decision of the management to supersede the terms of the existing settlement as also the question of what fresh terms should given the parties. In the instant case, the said question was adjudicated in a conciliation proceeding and no worthwhile result having been reached, the matter was referred to the Central Govt. for reference of the dispute, if any, to the Industrial Court. The said reference was, however, refused bringing the curtains down on the episode. In the above facts, the proposition that the learned counsel for the petitioner contends as emanating from the Apex Court decision in the case of Life Insurance Corporation of India-Vs-DJ. Bahadur (supra) would have no application, once the door to an industrial adjudication stood closed by a refusal of the statutory authority to recognise the existence of any industrial dispute over the management's decision to rescind the existing settlement, subject, however, to the legality and validity of the said refusal, a question to which I shall now turn. 7. The order of the authority of the Central Govt. 7. The order of the authority of the Central Govt. dated 10.2.99 refusing to make a reference for adjudication by the Industrial Tribunal has not been challenged by the writ petitioner on any specific ground. Not only the pleadings lack any precision and clarity, even the oral arguments advanced by the learned counsel for the petitioner do not convince the Court. Apart from the contention that the said order is arbitrary and cryptic, no other tangible form of challenge is discernible. This Court can not impose the necessity on the authority of the Central Govt. to pass a 'judgment' as the said expression is normally understood while making or refusing to make a reference. It will be sufficient for the authority to indicate how the mind has been applied to the question before it and if the scrutiny of the order itself shows due application of mind, the writ Court's scrutiny must come to an end. In the instant case, the appropriate authority of the Central Govt. had refused to make a reference on the ground that the transfer is a managerial prerogative and there was no allegation of victimisation or discrimination. The aforesaid reasons which are apparent from a reading of the order dated 10.2.99 can not be said to be in any way irrelevant or extraneous warranting interference under Article 226 of the Constitution. 8. For the foregoing discussions, I do not find any merit in this appeal and the same, therefore, shall stand dismissed but without any costs.