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2015 DIGILAW 1074 (GAU)

Indian Tea and Provision Ltd. v. State of Assam

2015-08-24

UJJAL BHUYAN

body2015
JUDGMENT AND ORDER Ujjal Bhuyan, J. Heard Mr. Suman Chakraborty, learned counsel for the petitioners and Mr Santanu Chakraborty, learned counsel for the respondent No. 2 2. Challenge made in this writ petition is to the award dated 31.08.2005, passed by the Labour Court, Assam, Guwahati, in Reference Case No. 15 of 2003. 3. At the relevant point of time, respondent No. 2 was working as Accounts Clerk in Shyamguri Tea Estate, situated in the district of Sonitpur, Assam. On 29.12.2001, he was transferred to Pearacherra Tea Estate, situated in the State of Tripura w.e.f. 21.01.2002. Both the Tea Estates are under the management and control of Indian Tea and Provision Limited, i.e., the petitioner No. 1. 4. Contending that his transfer to Pearacherra Tea Estate in Tripura was not authorised and valid, respondent No. 2 raised an industrial dispute which was ultimately referred to the Labour Court for adjudication. Reference was made for adjudication of the below mentioned 2 (two) issues:- (1) Whether the management of Shyamguri Tea Estate, P.S.-Darrang, Panbari, District - Sonitpur are justified in transferring Sri Rajib Saikia, Accounts Clerk to Pearacherra Tea Estate, which is located in Tripura, w.e.f. 21.01.2002 ? (2) If not, whether the workman should be reposted at the same Tea Estate, with his full back wages or relief in lieu thereof ? 5. On receipt of the said reference from the appropriate Government the same was registered by the Labour Court as Reference Case No. 15 of 2003. Notice was issued to the contesting parties. Thereafter, they filed their respective written statements. Evidence was adduced by both the sides, 3 (three) from the side of the management and 1 (one) from the side of the workman. 6. On due consideration, Labour Court passed the impugned award dated 31.08.2005, taking the view that the management was not justified in transferring the respondent No. 2 to Tripura and accordingly, it was held that respondent No. 2 would be entitled to reposting as Accounts Clerk in Shyamguri Tea Estate with full back wages. 7. Management has challenged the validity of the said award in the present proceeding. 8. This Court by order dated 07.04.2006, had admitted the writ petition and in the meanwhile, stayed the impugned award dated 31.08.2005. 9. 7. Management has challenged the validity of the said award in the present proceeding. 8. This Court by order dated 07.04.2006, had admitted the writ petition and in the meanwhile, stayed the impugned award dated 31.08.2005. 9. On an application filed by respondent No. 2 under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter, in short, 'the Act'), for a direction to the management to pay the last wages drawn, which was registered as Misc Case No. 3018 of 2006, this Court passed order dated 12.12.2006, directing that the impugned award dated 31.08.2005 shall remain suspended subject to the condition that the workman was paid his last drawn wages by the management effective from the date of the award. However, on an appeal filed by the management, which was registered as Writ Appeal No. 51 of 2007, a Division Bench of this Court by order dated 14.06.2011, took the view that Section 17-B of the Act does not have any application to the facts of the present case. Consequently, the order dated 12.12.2006 was set aside. 10. At an earlier point of time, respondent No. 2 had filed an application for vacation of the interim order dated 07.04.2006, which was registered as Misc Case No. 2793 of 2006. From a perusal of the order-sheet, it appears that there were defaults on the part of the petitioners in prosecuting the case. On 03.01.2014 there was none to represent the petitioners when the case was called upon for hearing. Thereafter, on 25.02.2014, Mr K R Surana, the Advocate on record for the petitioners submitted before the Court that the case brief was taken away from him about 3 (three) years ago and despite intimation to his clients to make alternative arrangement, there was none to represent the petitioners on that day. However, the workman was represented by his counsel. In view of the above and noticing the lack of interest of the management, the case was dismissed for non-prosecution. 11. An application was filed on behalf of the petitioners for restoration of the writ petition, which as noticed above was dismissed for non-prosecution on 25.02.2014. The application was registered as Misc Case No. 2628 of 2014. By order dated 06.02.2015, Misc Case was allowed and the writ petition was restored to file. 12. 11. An application was filed on behalf of the petitioners for restoration of the writ petition, which as noticed above was dismissed for non-prosecution on 25.02.2014. The application was registered as Misc Case No. 2628 of 2014. By order dated 06.02.2015, Misc Case was allowed and the writ petition was restored to file. 12. On 12.03.2015, this Court noticing the nature of the dispute took a view that it would be better if an endeavour for amicable settlement was made by the parties. Accordingly, counsel for both the sides were requested to make sincere efforts for amicable settlement of the dispute. 13. When the case was thereafter called upon for hearing, learned counsel for the petitioners submitted that despite best efforts the dispute could not be amicably resolved. 14. In the light of the aforesaid development, the case was heard on merit. 15. Learned counsel for the petitioners submits that Labour Court committed a grave error on the face of the record by ignoring the fact that both the Tea Estates belong to petitioner No. 1 having common management. Management has the inherent power and authority to transfer its employees in the exigencies of company's work. No illegality of any kind or any malafide exercise of power is discernible in the impugned transfer order. It is vehemently argued that the Labour Court had misconstrued the main issue referred for adjudication. Question for adjudication was whether the management was justified in transferring the workman from Sonitpur, Assam to Tripura and not whether the General Manager of the Shyamguri Tea Estate was justified in transferring the petitioner. The words 'management' and 'manager' have different connotations and are not synonymous. Therefore, the view taken by the Labour Court is wholly unsustainable and is required to be interfered with. 16. On the other hand, learned counsel for the workman, i.e., respondent No. 2 submitted that the transfer order was issued by the General Manager of Shyamguri Tea Estate in the State of Assam. He has no jurisdiction over Pearacherra Tea Estate situated at Tripura, though both the Tea Estates belong to the same management, i.e., petitioner No. 1. However, there is nothing on record to show that transfer order was issued by the management based at Kolkata. He has no jurisdiction over Pearacherra Tea Estate situated at Tripura, though both the Tea Estates belong to the same management, i.e., petitioner No. 1. However, there is nothing on record to show that transfer order was issued by the management based at Kolkata. On the contrary, the transfer order was issued by the General Manager of Shyamguri Tea Estate, who had no jurisdiction to transfer the petitioner to the Tea Estate at Tripura. Therefore, the view taken by the Labour Court is the correct view and no interference is called for. 17. Submissions made by the learned counsel for the parties have received the due consideration of the Court. 18. At the outset, it would be apposite to refer to the impugned award of the Labour Court, the relevant portion of which reads as under: "7. On careful perusal of the evidence on record both oral and documentary, along with the written statements of both sides, it is found that Shyamguri Tea Estate of Assam and Pearacherra Tea Estate of Tripura are two sister concern of the same Establishment 'M/s Indian Tea and Provisions Ltd.', 17 R N Mukherjee Road, Kolkata-1. It is thus clear that both Shyamguri Tea Estate and Pearacherra Tea Estate are under the control and supervision of their Head Office in Kolkata. Both of these two Tea Estates have General Managers independent of each other. They exercise their right of control and supervision in their respective Tea Gardens. The General Manager of Shyamguri Tea Estate cannot and do not have control and supervision over Pearacherra Tea Estate as admitted by him during cross-examination in Court. 8. Now the General Manager of Shyamguri Tea Estate had transferred Shri Rajib Saikia to Pearacherra Tea Estate in Tripura where he had no control or supervision. It is also not on record that Pearacherra Tea Estate had sent requisition for an accounts clerk from its sister concern Shyamguri Tea Estate. The General Manager of Shyamguri Tea Estate, M.W.1, simply stated during cross examination that he had transferred Shri Rajib Saikia to Pearacherra Tea Estate in Tripura as per verbal order of the Managing Director. Now the question arises whether the General Manager of Shyamguri Tea Estate can transfer its employee to Pearacherra Tea Estate in Tripura where he has no control or power of supervision. Now the question arises whether the General Manager of Shyamguri Tea Estate can transfer its employee to Pearacherra Tea Estate in Tripura where he has no control or power of supervision. As there was no requisition from the Pearacherra Tea Estate to its sister concern Shyamguri Tea Estate to transfer its Accounts Clerk, Pearacherra Tea Estate may refuse to allow the transferee to join there. In that case, the transferred employee would be in unnecessary trouble and face great hardship. It has not clarified in this case why the Head Office in Kolkata M/s Indian Tea & Provisions Ltd. which had full control and supervision over both the Tea Estates did not itself issue the transfer order directing both the Tea Estate and the transferred employee to comply with the order. Thus, I find that transfer of Rajib Saikia by the General Manager of Shyamguri Tea Estate in Assam to Pearacherra Tea Estate in Tripura is not only beyond his jurisdiction but also without authority. 9. The Industrial Employment (Standing Orders) Central Rules, 1946 provides in Rule (4) as follows: "(4) Transfer A workman may be transferred according to exigencies of work from one shop or department to another or from one station to another or from one establishment to another under the same employer: Provided that the wages, grade, continuity of service and other conditions of service of the workman are not adversely affected by such transfer order: Provided further that where a workman is transferred from one job to another, which he is capable of doing and provided also that where the transfer involves moving from one state to another such transfer shall take place either with consent of the workman or where there is a specific provision to that effect in the letter of appointment, and provided also that (1) reasonable notice is given to such workman, and (ii) reasonable joining time is allowed in case of transfers from one station to another. The workman concerned shall be paid travelling allowance including the transport charges, and fifty percent thereof to meet incidental charges" In our instant case, Shri Rajib Saikia was transferred from Assam to Tripura. The workman concerned shall be paid travelling allowance including the transport charges, and fifty percent thereof to meet incidental charges" In our instant case, Shri Rajib Saikia was transferred from Assam to Tripura. It was therefore mandatory on the part of the transferring authority either to obtain consent of the employee to be transferred or to serve him a notice giving reasonable joining time along with payment of fifty percent of the journey and transporting of goods expenses to enable him to meet the incidental expenses. But the General Manager of Shyamguri Tea Estate had not acted as per norms and established procedure stated. He had neither obtained prior consent nor issued prior notice giving reasonable joining time nor offered fifty percent of the journey expenses. 10. In view of my above discussions and findings, I decide point No. 1 of the Schedule in the negative against the Management of Shyamguri Tea Estate. 11. The workman Shri Rajib Saikia is accordingly entitled to reposting as Accounts Clerk in Shyamguri Tea Estate with full back wages." 19. From a careful perusal of the award passed by the Labour Court, it is seen that the Labour Court had taken the view that it was the General Manager of Shyamguri Tea Estate who had transferred respondent No. 2 to Pearacherra Tea Estate in Tripura, over which, he had no control or supervision. The record did not disclose that Pearacherra Tea Estate had sent any requisition for the services of an Accounts Clerk from its sister concern Shyamguri Tea Estate. The record also did not disclose that the management at Kolkata had passed any order transferring the respondent No. 2 from Shyamguri Tea Estate in Assam to Pearacherra Tea Estate in Tripura. Accordingly, the Labour Court held that transfer of respondent No. 2 by the General Manager of Shyamguri Tea Estate in Assam to Pearacherra Tea Estate in Tripura was not only beyond his jurisdiction but also without authority. 20. Sri Krishna Chandra Bordoloi, General Manager of Shyamguri Tea Estate adduced evidence on behalf of the management as witness No. 1. In his cross-examination, he stated that in Pearacherra Tea Estate, there was a General Manager and that he as the General Manager of Shyamguri Tea Estate did not exercise any supervision or control over the affairs of Pearacherra Tea Estate. In his cross-examination, he stated that in Pearacherra Tea Estate, there was a General Manager and that he as the General Manager of Shyamguri Tea Estate did not exercise any supervision or control over the affairs of Pearacherra Tea Estate. Respondent No. 2 was transferred from Shyamguri Tea Estate in Assam to Pearacherra Tea Estate in Tripura as per verbal instruction of Managing Director, Sri Dipankar Chatterjee. He admitted that Shyamguri Tea Estate is affiliated to Assam Branch of Indian Tea Association (ABITA), whereas Pearacherra Tea Estate is affiliated to Tripura Tea Planters' Association. Assam Tea Plantation Labour Rules and Provident Fund Rules are applicable to Shyamguri Tea Estate. In addition, there are several settlements between the employers and Assam Chah Karmachari Sangha representing the employees, which has resulted in extending of a number of benefits to the employees of the Tea Estates in Assam including the employees of Shyamguri Tea Estate. 21. Witness No. 2 on behalf of the management was one Sri Shashanka Banerjee, who is the Assistant Manager of Shyamguri Tea Estate. In his cross-examination, he stated that nature of duties discharged by him was field related. He was not associated in the transfer matter of respondent No. 2 by the management. 22. Management witness No. 3, is Sri Utpal Aich, who had joined as Accounts Clerk in Shyamguri Tea Estate from Manobag Tea Estate. From his evidence-in-chief, it is seen that Manobag Tea Estate is situated at Dhekiajuli in the district of Sonitpur and that it is also a sister concern of Shyamguri Tea Estate. He was transferred on 05.02.2002 after the transfer order of respondent No. 2. In his cross-examination he admitted that he had written his affidavit (evidence-on-affidavit) after hearing from other persons, i.e., evidence of management witness No. 1, Sri Krishna Chandra Bordoloi and admitted that statements made in his affidavit were based on hearsay. 23. In his evidence, respondent No. 2 stated that standing orders regulating the conditions of service of the employees in Shyamguri Tea Estate in Assam and Pearacherra Tea Estate in Tripura were different. He stated that he was a member of Assam Tea Plantation Provident and Pension Funds Scheme set up under the Assam Tea Plantation Provident and Pension Funds Act, 1955, and regular deductions were made from his salary as his contribution. He stated that he was a member of Assam Tea Plantation Provident and Pension Funds Scheme set up under the Assam Tea Plantation Provident and Pension Funds Act, 1955, and regular deductions were made from his salary as his contribution. His transfer to Pearacherra Tea Estate would jeopardise his provident fund and pension and cause prejudice to him. 24. From a careful and dispassionate examination of the materials on record, it becomes evident that respondent No. 2 was transferred from Shyamguri Tea Estate in Assam to Pearacherra Tea Estate in Tripura by the General Manager of Shyamguri Tea Estate. It is the admitted position that General Manager of Shyamguri Tea Estate had no authority to transfer an employee of Shyamguri Tea Estate to a Tea Estate outside Assam. Though management would contend that the transfer order was issued as per oral instruction of the Managing Director of the Company, i.e., petitioner No. 1, Sri Dipankar Chatterjee, however, Sri Dipankar Chatterjee did not come forward to adduce any evidence in the case. No order or instruction of Sri Dipankar Chatterjee or of anyone from the Head Office of the company transferring the respondent No. 2 could be produced or placed on record. Therefore, the fact remains that the order of transfer was issued by the General Manager of Shyamguri Tea Estate and not by the management of Indian Tea and Provision Limited, which is the company owning the 2 (two) Estates in question. 25. In the light of the above discussions, this Court is unable to find any patent error or infirmity in the view taken by the Labour Court. Principles governing judicial review of transfer of a Government employee may not be applicable in the case of transfer of an employee of a private establishment covered by the provisions of the Act. In the present case, transfer of respondent No. 2 from one State to another had given rise to an industrial dispute leading to a reference by the appropriate Government which was adjudicated upon by the Labour Court. The purpose of adjudication of industrial disputes under the provisions of the Act is to maintain industrial peace and harmony. Therefore, unless the view taken by the Labour Court suffers from patent illegality or perversity, interference should be avoided. 26. The purpose of adjudication of industrial disputes under the provisions of the Act is to maintain industrial peace and harmony. Therefore, unless the view taken by the Labour Court suffers from patent illegality or perversity, interference should be avoided. 26. The Hon'ble Supreme Court in the case of Calcutta Port Shramik Union v. Calcutta River Transport Association, reported in 1988 (Suppl.) SCC 768 held that attempt should be made by Courts exercising powers of judicial review to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on hypertechnical grounds. In (1999) 2 SCC 143 ; Savita Chemicals (P) Ltd. v. Dyes & Chemicals Workers' Union, the Apex Court took the view that unless there was a patent error committed by the Labour Court, the High Court under Article 227 should not interfere with the findings of the Labour Court as if it is hearing an appeal. Again in General Manager, Oil and Natural Gas Commission, Silchar v. Oil and Natural Gas Commission Contractual Workers' Union; reported in (2008) 12 SCC 275 , the Apex Court reiterated the position that the High Court has the authority to enquire as to whether the finding arrived at by the Industrial Tribunal was based on evidence and to correct an error apparent on the face of the record. High Court would be justified in interfering with an award of an industrial tribunal on account of patent illegality or on account of perversity. It was held that interference would be limited only to a few cases, i.e., in the case of patent illegality or perversity. 27. As already discussed above, this Court finds no perversity or patent illegality in the impugned award of the Labour Court. The view taken by the Labour Court is a plausible view. That would not be a sufficient ground for interference. 28. Accordingly and in the light of the above, this Court is unable to accede to the prayer of the petitioners and is of the considered view that no interference in the impugned award is called for. 29. Writ petition is, therefore, dismissed. No costs.