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Gujarat High Court · body

2019 DIGILAW 898 (GUJ)

Gujarat State Road Transport Corporation v. Jasminaben Jaydevbhai Nayak

2019-10-14

SONIA GOKANI

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ORDER : SONIA GOKANI, J. 1. All these three petitions are taken up for hearing together at the stage of admission. 2. The facts are drawn from Special Civil Application No. 15852 of 2019 for the purpose of adjudication. 2.1. It is a question of non-consultation of office bearers at the time of transfer within the same division i.e. Palanpur division. The petitioners are the office bearers of the Gujarat State Road Transport Corporation (GSRTC) which is a statutory corporation. 2.2. The Corporation is aggrieved by the interim relief granted in Complaint (IT) No. 32 of 2019, 33 of 2019 and 34 of 2019 respectively in the aforesaid petitions, whereby, the petitioners have been directed to maintain service conditions of the respondents. 2.3. There are 57 personnels who have been transferred from Palanpur division to Bhuj Division to meet with the exigencies, so that the work of Bhuj division does not suffer. It was decided on administrative ground to transfer the respondent in the respective matters, following due process. It is the say of the petitioner Corporation that Bhartiya Mazdoor Sangh (BMS) had been invited for consultation in writing by communicating through the letters. Thrice they had been invited and the matter had been kept for consultation on different dates. However, office bearers had chosen not to remain present, except once when the Divisional Controller was not in the office as the respondent concerned had attended the process of consultation belatedly. There also the date was to be fixed for the purpose of consultation, however, without waiting for this process to be completed, on the very next day i.e. on 21.08.2019, under Section 33-A of the Industrial Disputes Act, 1947, (hereinafter referred to as 'the I.D. Act' for short), the complaint came to be filed before the Industrial Tribunal, Ahmedabad. 2.4. The Industrial Tribunal granted ex-parte interim relief in favour of the respondent and directed the petitioner corporation not to transfer these persons / respondents. 2.4. The Industrial Tribunal granted ex-parte interim relief in favour of the respondent and directed the petitioner corporation not to transfer these persons / respondents. This is aggrieved the petitioner Corporation, therefore, petitioner has approached this Court with the following main reliefs: "(A) This Hon'ble Court may be pleased to issue a writ of certiorari or in the nature of certiorari or any other appropriate writ, direction or order quashing and setting aside the impugned order passed by the learned Industrial Tribunal below application for interim relief in Complaint (IT) No. 34 of 2019 after calling for the record and proceeding of the case. (B) This Hon'ble Court may be pleased to stay the operation, implementation and execution of the order passed by the learned Industrial Tribunal below application for interim relief in Complaint (IT) No. 34 of 2009." 3. The affidavit-in-reply on issuance of notice has been filed urging inter-alia, that the petition is misconceived, as preferred on the basis of the interim relief granted by the concerned authority. The authority concerned can always decide the matter and can also choose to decide on merits. It is further the say of the respondent that, the consultation has been subsequent to the order of transfer. The Labour Settlement is from 01.08.1987 to 31.07.1992. This proviso according to the parties has continued to operate and govern their relationship. It is the say of the respondent that Clause-24 since provides that office bearers of the recognized union at a State level and connected divisions cannot be transferred in a normal course, and in the event of administrative exigencies, the transfer has to be effected only after the consultation. With this having not been followed by the petitioner Corporation, at the time of issuing an order dated 26.06.2019, they have chosen to carry out the consultation, subsequently in the month of August, 2019. 4. According to the respondent, on three different dates, the respondents had been invited, on 20.08.2019, the representative of the Union had remained present in the office of the Divisional Controller on 3rd occasion. He also made a request to supply certain necessary documents in support of their version. The process of consultation is not being completed, and the respondent submits that, on 20.08.2019 the same had been completed. It is repeatedly emphasized that Divisional Controller did not choose to remain present on 20.08.2019. He also made a request to supply certain necessary documents in support of their version. The process of consultation is not being completed, and the respondent submits that, on 20.08.2019 the same had been completed. It is repeatedly emphasized that Divisional Controller did not choose to remain present on 20.08.2019. Therefore, they were constrained to approach the Industrial Tribunal. 5. This Court has heard learned advocate Mr. Hamesh Naidu appearing for the petitioner who has vehemently argued along the line of the petition and learned advocate Mr. N.D. Songara with learned advocate Mr. Rajiv Desai appearing for the respondents who have argued along the line of the affidavit-in-reply defending the case of the respondents. 6. Upon thus hearing both the sides and also noticing the Clause of Labour Settlement which was to operate and govern the relationship of parties from 01.08.1987 to 31.07.1992, since, admittedly has continued till date, it was incumbent upon the petitioner corporation to carry out the consultation with the recognized union, prior to issuance of the order of transfer. Although, it is attempted to be maintained that there is no order of transfer but it is only proposed list of transfer. The language in the said list has created an issue, which reflects that the corporation has made up its mind to transfer these 61 employees. The understanding on the part of the petitioner Corporation, according to the learned advocate, is that this order impugned is a proposed list, and unless the consultation is completed, office bearers are not to be transferred is, in fact, missing on record. He also make a statement at bar that unless the process of consultation is completed, the corporation does not contemplate to transfer these office bearers. 7. This Court has considered the fact that twice the respondents had been called for the purpose of consultation, after once, this order came to be passed. They have chosen not to attend the same, as per the rojnama dated 02.08.2019, 14.08.2019 and 20.08.2019. In case of Special Civil Application No. 15853 of 2019, the Divisional Controller was not present, when that respondent had chosen to remain present on the 3rd date, however, the date was given for further consultation. Before that process got completed, complaint under Section 33-A of the I.D. Act has been initiated before the Industrial Tribunal, which has granted interim relief in favour of the respondents. 8. Before that process got completed, complaint under Section 33-A of the I.D. Act has been initiated before the Industrial Tribunal, which has granted interim relief in favour of the respondents. 8. This Court also notices that the respondents have not approached the Industrial Tribunal with the complete requisite details, as they appear to be right in stating therein that the order dated 26.06.2019 had been passed without prior consultation. However, the factum that for subsequent process of consultation on 02.08.2019, 14.08.2019 and 20.08.2019 they had not remained present (except on 20.08.2019 by petitioner of Special Civil Application No. 15853 of 2019) though they continued to be at the work place, where they were serving, are the averments which are missing in the complaints made before the Industrial Tribunal. This has led the Tribunal to grant interim relief in favour of the respondents. Although, the Court could have straight away not entertained these petitions and chosen to relegate the petitioner Corporation to the concerned Tribunal for revealing the true details. However, when both the parties have agreed to carry-on the consultation, and the Corporation has also agreed not to transfer the office bearers, till the process of consultation is completed, all the three petitions are entertained and allowed with the following directions: (A). The interim relief granted in Complaint (IT) No. 32 of 2019 to 34 of 2019 by the Industrial Tribunal, Ahmedabad stands quashed and set aside. The parties shall continue the process of consultation, for which the respondents shall attend the office of the petitioner Corporation-Divisional Controller at Palanpur on 22.10.2019 at 01:00 p.m. (B). For the documents which the respondents are desirous to have during the consultation to enable the respondent to effectively participate in the said process, they may make a request before the concerned officer, who shall deal with such request in accordance with law and shall also provide the same within a reasonable time period. (C). Let this entire process of furnishing documents (if, needed) and the process of consultation be completed within 4 weeks from 22.10.2019. Till then, as undertaken before this Court by the Corporation, no transfer of the respondents shall be effected. The respondents shall withdraw the complaints pending before the Industrial Tribunal, Ahmedabad, as their very grievance has been satisfied in wake of the parties having jointly decided this modus. Till then, as undertaken before this Court by the Corporation, no transfer of the respondents shall be effected. The respondents shall withdraw the complaints pending before the Industrial Tribunal, Ahmedabad, as their very grievance has been satisfied in wake of the parties having jointly decided this modus. If the outcome aggrieves either side, needless to say that they have future course of law available. This Court has not entered into the merits of the matter which shall be looked into independently. In view of the above, these petitions stand disposed of.