DIVGI METAL WARES EMPLOYEES ASSOCIATION, SIRSI v. DIVGI METAL WARES LIMITED, SIRSI
2006-03-20
ANAND BYRAREDDY
body2006
DigiLaw.ai
ORDER The petitioner, which is an association of employees of the first respondent-Company, has sought to challenge the order of the Appellate Authority under the Industrial Employees (Standing Orders) Act, 1946 (hereinafter referred to as 'the Act' for brevity). 2. The facts are as follows.- The first respondent-Company is engaged in the manufacturing of automobile gears and supplies the same to automobile manufacturers. The dispute between the petitioner and the respondent-Company was with regard to the transfer of 85 members of the respondent-factory to its factory situated at Pune. This according to the petitioner was in violation of the Standing Orders governing their employment. The petitioner has produced the Standing Orders of the respondent-Company at Annexure-A to the petition and would point out that from Clause 20 of the Standing Orders, only an intra establishment transfer is provided for and there cannot be an inter establishment transfer. The petitioner further submits that the petitioner had been furnished with the Kannada version of the Standing Orders, which is inconsistent with Annexure-A and accordingly had filed a dispute before the Appellate Authority under the Act. The same was dismissed on the ground of delay and it was challenged before the Deputy Labour Commissioner, who is the authority sitting in appeal over the orders passed by the Industrial Tribunal. The said appeal having been allowed and the modification of Clauses 16, 20, 21 and 28 having been set aside and the petitioner having brought to the attention of the Appellate Authority, the certified standing order as per Annexure-A, the Appellate Authority has proceeded to pass the order ignoring the same. 3. Sri B.S. Hadimani, appearing for the petitioner would contend that the petitioner was not taken into confidence by the respondent management as to the correct version of the Standing Orders. It was lead to believe that the Kannada version of the Standing Orders, was a true translation of the certified Standing Orders and the actual Standing Orders produced before the Appellate Authority not having been considered, is a circumstance, which warrants interference of the order and it is appropriate that the matter be remitted for a reconsideration on the actual fact as to the proper Standing Orders to be applied. 4.
4. In this regard, he would submit that in terms of the model Standing Orders appended to the Industrial Employment (Standing Orders) Rules, 1961 (hereinafter referred to as 'the Rules' for brevity), there is no provision for transfer and accordingly incorporation of a provision in the Standing Orders is inconsistent with the same. The Counsel would rely on the judgment in the case of Air Gases Mazdoor Sangh, Varanasi v. Indian Air Gases Limited and Others, wherein, it has been held that where matters relating to transfers are not included in the schedule, the employer would not have a right to frame Standing Orders enabling him to transfer his employees nor would the certifying officer have jurisdiction to certify the same and would submit that the petition be allowed. 5. Per contra, Sri M.S. Padmarajaiah, Senior Advocate appearing for the Counsel for respondent 1, would submit that three points would arise for consideration: Firstly, the power of the management to frame Standing Orders; Secondly, whether a writ can be issued to a private party to follow a particular mode in framing its Standing Orders; and Thirdly, that the certified Standing Orders of the respondent 1 are not in Kannada and whether it would be open to consider the translated version of the certified Standing Orders in dealing with the dispute as between the parties. On the first issue, Sri Padmarajaiah, would submit that First Schedule to the Rules is silent as regards transfer. The Schedule to the Act at Item 11 provides for any matters, which may be prescribed. He would submit that this item of the schedule would require to take into account the items that may be prescribed under the Rules and by incorporation of Rule 2-A, item 10-B has been inserted in the Central Rules. Item 10-B provides for additional matters provided in the Standing Orders relating to all industrial establishment and item 11 provides for transfers and he would submit that notwithstanding the operation of the Karnataka Rules, in terms of Article 254 of the Constitution of India, the Central Rules would prevail and therefore it cannot be said that "transfer" is not subject provided for under the Standing Orders Act. He would further submit that what has been relied upon by the petitioner is not the actual certified Standing Orders.
He would further submit that what has been relied upon by the petitioner is not the actual certified Standing Orders. The actual certified Standing Orders, which is produced in Court, does provide for inter establishment transfers and were not deleted by the Certifying Officer. What in fact has been deleted is a provision to transfer anywhere in India and it is misleading on the part of the petitioner to indicate that inter-establishment transfers which are considered under the said item have also been deleted by the said certifying officer. This is a fact, which is apparent from an examination of the certified Standing Orders, which are produced in Court and this not being inconsistent with the position of law, it cannot be said that the order of Appellate Authority warrants interference and coupled with this the appointment orders insofar as the employees are concerned also carrying a condition that they shall be transferred to other establishments of the respondent, there is no ground whatsoever for interference. In this regard, he would rely on the judgment in the case of Management of Bangalore Woollen, Cotton and Silk Mills Company Limited v. State of Mysore and Others wherein it has been held that the Act does not prohibit inclusion of matters not mentioned in the said Act. What would be required is the minimum to be provided for in the Standing Orders to be framed under the Act and if such a minimum is found to be reasonable, then the Certifying Officer is bound to certify the same and it does not follow that the workers cannot insist on further terms being provided for and if they do so, the dispute which arises out of their inconsistent may be referred for adjudication by the Industrial Tribunal under the Industrial Disputes Act, 1947 and the Tribunal in such a case would be competent to give its award on such a dispute.
He would also rely on the case of Management of M/s. Cipla Limited v. Jayakumar R. and Another, which was a case where the relevant clause of the Standing Orders provided for a department wherein a workman may be asked to work within the establishment itself at Bangalore, Clause 3 of the letter of appointment, on the other hand, gave the right to the appellant to transfer a workman from the establishment at Bangalore to any other establishment of the Company in India. Therefore, as long as the respondent was serving at Bangalore, he could be transferred from one department to another only in accordance with the provisions of the Standing Orders. But the Standing Orders do not, in any way refer to or prohibit the transfer of a workman from one establishment of the appellant to another establishment elsewhere and in such an event, the Supreme Court held that there is no conflict between the said clauses and set aside the order of this Court. By the same token of reasoning, he would submit that the respondent 1 in the present case stands on a stronger footing. 6. On these rival contentions, the question for consideration in the present petition would be whether the Appellate Authority has acted in a manner, which can be said to be capricious or arbitrary in order that interference is warranted in writ jurisdiction. From the facts and circumstances as stated above, it cannot be said that the Appellate Authority is in error. In any event, on the face of it, it is seen that the Standing Orders prohibited transfer of the workman anywhere in India, but it does not prohibit an inter-establishment transfer and it is not correct on the part of the petitioner to seek to place reliance on the translated version of the Standing Orders to claim inconsistencies warranting further adjudication on the dispute and hence, I do not find any ground for interference. 7. Accordingly, the petition is dismissed. 8. Sri Honnappa, High Court Government Pleader is permitted to file his memo of appearance within two weeks.