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2016 DIGILAW 3549 (ALL)

Bhartiya Khadya Nigam Mazdoor Sangh v. F. C. I.

2016-10-24

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya,J. Heard Sri Bhupendra Nath Singh, learned counsel for the petitioners and Sri S.K.Misra, learned counsel appearing for the respondents. The petitioner No.1 is a Union representing the cause of labourers and petitioners No.2 to 6 are working on the post of Ancillary Labourers at F.S.D.Depo., Naini, Allahabad. By means of this writ petition, the petitioners are challenging the legality and validity of the impugned order dated 16.8.2016 passed by the Area Manager, F.C.I., Allahabad, respondent no.3 transferring the petitioners from the Depo at Naini to Manduadih, Varanasi . The main ground of challenge as argued by Sri Bhupendra Nath Singh, learned counsel appearing for the petitioners is that clause (5) of the Standing Orders which prohibits such transfer has been violated. He further submits that there is no past practice for such transfer for the last sixty years and as such, the transfer resulted in unfair labour practice as provided in Article 7 of the 5th Schedule of Industrial Disputes Act, 1947 (in short, the Act) and no notice as required under section 9A of the Act has been issued before such transfer having been made. Sri Singh relied upon the judgement of Hon'ble Supreme Court in the case of Workmen Employed by Hindustan Lever Ltd. Vs Hindustan Lever Ltd. Vs. Hindustan Lever Ltd. AIR 1984 SC 1683 . In para 11 of the judgement, the Supreme Court while dealing with Article 16 of the Constitution with regard to the equality of opportunity in employment has gone on to hold that the condition of employment would ordinarily include not only the contractual terms and conditions of service but those terms which are understood and applied by the parties in practice or habitually or by common consent without ever being incorporated in the contract. The said judgement has been relied upon by Sri Singh on the ground that such transfer having never been practised would violate the conditions of service of petitioners and, therefore, violative of Article 14 of the Constitution also. Another judgement relied upon by Sri Singh is of The Workmen of the Food Corporation of India Vs. M/s Food Corporation of India AIR 1985 SC 670 to hold that any order that has been passed in violation of section 9A of the Act will amount to unfair labour practice as provided under section 2(ra) of the Industrial Disputes Act. Another judgement relied upon by Sri Singh is of The Workmen of the Food Corporation of India Vs. M/s Food Corporation of India AIR 1985 SC 670 to hold that any order that has been passed in violation of section 9A of the Act will amount to unfair labour practice as provided under section 2(ra) of the Industrial Disputes Act. At this juncture, it is to be noted that in similar circumstances, a set of petitioners of Allahabad Depo had approached this Court by filing a writ petition being writ petition No.38560 of 2016- Bhartiya Khadya Nigam Mazdoor Sangh And 40 Ors. Vs. F.C.I. Through Its Chairman And 3 Ors. which writ petition was considered by learned Single Judge and by a detailed judgement dismissed the writ petition by the order dated 26.9.2016. The contention of Sri Singh is that various arguments raised were not considered by learned single Judge and I may be persuaded to take a different view from that of the learned Single Judge and the matter may be referred to a larger Bench. The arguments raised by Sri Singh before the learned Single Judge as noted in para 2 of the judgement is quoted herein below: "The order is challenged, primarily on the ground that order of transfer cannot be a consequence of Government Notification dated 6.7.2016, nor the transfer is warranted in terms of it. It is contended that the entire departmental labourers, who are working at Naini depot since long, have been transferred en masse without any replacement. It is urged that transfer is in teeth of Clause 5 of the Certified Standing Orders, as well as provisions of Section 9-A of the Industrial Disputes Act readwith Item 8, 10 of the Fourth Schedule, inasmuch as their conditions of service are being changed without any notice. Violation of Section 2(ra) readwith Items 5, 6, 7 of the Fifth Schedule, specifying unfair labour practices is also alleged. Submission is that the order of transfer, in the facts and circumstances, is absolutely arbitrary, and is a glaring example of unfair practice being perpetrated by a State Agency, in the garb of directions issued by the Nagpur Bench. Learned counsel further states that there is already shortage of staff at Naini, and the union has no objection if contract workers are deputed to work here. Learned counsel further states that there is already shortage of staff at Naini, and the union has no objection if contract workers are deputed to work here. It is lastly urged that respondent Corporation being an agency and instrumentality of State cannot be permitted to act in an arbitrary manner, as it would be hit by Article 14 of the Constitution of India." The aforesaid would indicate that practically all the arguments that were raised here were also raised before the learned single Judge and the writ petition was dismissed. In the present case also the petitioners have been transferred from Naini Depo to Manduadih Depo as the petitioners in writ petition No.38560 of 2016. Sri S.K.Misra, learned counsel appearing for the respondents submits that most of the petitioners of the aforesaid writ petition have joined at Varanasi Depo and further goes on to argue that there is no reason to take any different view and I am bound by the decision of learned single Judge while deciding the case of the petitioners of that writ petition which is exactly on the same footing as the present petitioners. He further submits that no special appeal has been filed against the said judgement and, therefore, it has binding effect on the learned single Judge of co-ordinate jurisdiction. Considering the averments made in the writ petition and going through the judgement dated 26.9.2016, in my view, all the arguments raised by Sri Bhupendra Nath Singh raised here were also raised before learned single Judge and have been dealt with. Therefore, I am bound by the judgement of the learned single judge because I have not been persuaded or convinced to take a different view than what has been taken by the learned single Judge in the writ petition referred to above and I am in respectful agreement with same sitting in co-ordinate jurisdiction. The present controversy is fully covered by the aforesaid judgement. This writ petition is also decided in terms of the judgement in writ petition No.38560 of 2016 and is accordingly dismissed.