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2014 DIGILAW 392 (MAD)

Management of Exide Industries v. V. Vijayakumar

2014-02-18

M.DURAISWAMY, V.DHANAPALAN

body2014
Judgment : V. Dhanapalan, J. By consent of the learned counsel on either side, this Writ Appeal is taken up for final disposal. 2. Heard Mr.Sanjay Mohan, learned counsel appearing for the appellant / 3rd respondent Management, Mr.S.Ayyathurai, learned counsel for the 1st respondent / workman and Mr.M.Digvijaya Pandian, learned Additional Government Pleader for R2 and R3. 3. The writ appeal is filed against the interim order passed by the learned Single Judge in M.P.No.1 of 2013 in W.P.No.27489 of 2013, in and by which, the learned Single Judge, by holding that transfer of the 1st respondent / petitioner workman from factory at Hosur to New Delhi to the Marketing Division is in contravention of Order 15 of the Standing Order as well as definition to 2b of the Standing Order, has granted an order of interim injunction, restraining the respondents from enforcing the transfer until further orders. Aggrieved over the said interim order, the appellant / 3rd respondent has preferred the present writ appeal, seeking to quash the same. 4. The 1st respondent workman had filed a writ petition, seeking a direction to the 3rd respondent management not to enforce the order of transfer from appellant's factory at Hosur to New Delhi to the Marketing Division, issued vide Ref.No.EIL:P&A:2013:0120 dated 28.08.2013 till the dispute is resolved by either under Conciliation by the 2nd respondent Labour Officer or by adjudication on reference by the Government to Labour Court or Industrial Tribunal. The 1st respondent workman, by filing a miscellaneous petition along with main writ petition, had also prayed for an order of interim injunction, restraining the 3rd respondent management from enforcing the order of transfer, pending disposal of the writ petition. 5. The case of the 1st respondent / petitioner in the writ petition is that from the date of his appointment, he has been working as Technician in the production department and all of a sudden, he was transferred to the marketing division of the 3rd respondent company to look after marketing of its product at New Delhi in which field he has no relevant experience. The petitioner submits that it is a common knowledge that an employee cannot be transferred from production department to marketing division or vis-a-vis, unless or until he possesses knowledge in the particular field and thus, the order of transfer is not legal, being contrary to the certified standing order. 6. The petitioner submits that it is a common knowledge that an employee cannot be transferred from production department to marketing division or vis-a-vis, unless or until he possesses knowledge in the particular field and thus, the order of transfer is not legal, being contrary to the certified standing order. 6. Learned Single Judge, on consideration of the case of petitioner / 1st respondent and on notice to the learned Government Advocate, besides granting interim injunction, had come to a conclusion that transfer of the 1st respondent / petitioner workman from factory at Hosur to New Delhi to the Marketing Division is in contravention of Order 15 of the Standing Order as well as definition to 2b of the Standing Order. 7. Learned counsel for the appellant / 3rd respondent management has raised a preliminary objection as to the maintainability of the appeal, by inter alia contending that the company of appellant is only a private company and there is no scope to interfere with the transfer order passed by them by invoking Article 226 of the Constitution of India. He has submitted that 1st respondent workman in an earlier occasion had approached the learned District Munsif Court, Hosur, praying for a declaration to declare the order of transfer dated 28.08.2013 as null and void and also for permanent injunction restraining the defendant management from transferring him. However, learned District Munsif Court, Hosur had rejected the plaint, holding that there is no issue of civil nature. He has further submitted that the 1st respondent / workman has no locus standi to come before this Court under Article 226 of the Constitution of India to enforce the said right after availing the same before the District Munsif Court. Therefore, the order of interim injunction, restraining the appellant / 3rd respondent management from enforcing the order of transfer would be redundant and will cause serious prejudice to the appellant. 8. On the other hand, learned counsel for the 1st respondent workman has submitted that the learned Single Judge has rightly granted the order of interim injunction with reference to Clause 15 of the Standing Order, which states that transfer within establishment is permissible and therefore, transfer from one unit to another unit is in contravention of Clause 15 of the Standing Order. Similarly, Clause 2(b) of the Standing Order clearly indicates that establishment / factory menas the premises of the company at Hosur Plant and therefore, no interference is called for by this Court in respect of interim order granted by the learned Single Judge. 9. We have heard the learned counsel on either side and perused the impugned order in the writ petition as well as the interim order granted by the writ Court. 10. It is seen that the appellant / 3rd respondent company is a private industrial establishment, governed by the Standing Order, wherein Clause-15 describes the provisions for transfer of workman. Though it clearly indicates that depending upon the exigencies of work, all workmen are liable to be transferred from one job, department, section or shift to another in the industrial establishment and any contravention would attract disciplinary action under the standing orders, but definition clause of the standing order denotes that establishment / factory means the premises of the company situated at Hosur Taluk only. Therefore, this matter has to be dealt with in detail. 11. However, after exhaustive argument, learned counsel for the parties have come out with a suggestion that since the 1st respondent / workman had already approached the Preliminary Officer holding the post of Conciliation Officer, there could be every possibility of amicable conciliation within a time frame. In the event of any reconciliation between the parties, it is open to them to approach the Government for necessary reference to the concerned Labour Court. Therefore, learned counsel on either side have requested this Court to dispose of both writ petition and writ appeal with a direction to the Conciliation Officer to conclude the process of conciliation within a stipulated time as fixed by this Court with further direction to submit his report thereon to the Government for consideration and reference. 12. Before parting with, it is apposite to extract Section 12 of the Industrial Disputes Act, 1947, prescribing duties of conciliation officers, which reads as under: "12. Duties of conciliation officers – 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. Duties of conciliation officers – 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. 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 inducing the parties to come to a fair and amicable settlement of the dispute. 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. 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 circumstance, and the reasons on account of which, in his opinion, a settlement could not be arrived at. If, on a consideration of the report referred to in subsection (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may take such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. 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 may be extended by such period as may be agreed upon in writing by all the parties to the dispute. 13. 13. In the light of the above stated position, upon considering the submissions of the learned counsel for the parties and also taking into account the suggestions made by the parties for conciliating the matter, we hereby direct the Conciliation Officer to conclude conciliation within a period of two weeks from the date of receipt of a copy of this order and submit a report to the Government and if the Government, upon receipt of such report and on a consideration of the same, is satisfied that there is a case for reference to a Labour Court, it may take such reference and in the event of the Government not making any such reference, it shall record and communicate to the parties concerned its reasons therefor. The whole exercise shall be completed within a period of three weeks from the date of receipt of report. 14. However, in case either of the parties feels offended owing to the decision, it is always open to the parties concerned to work out their remedy before the appropriate forum in the manner known to law. It is made clear the Conciliation Officer as well as Government shall independently decide the issues raised, uninfluenced by any of the observations made by this Court in this order. 15. Both writ petition and writ appeal are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.