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2020 DIGILAW 550 (CAL)

Statesman Limited v. State Of West Bengal

2020-07-01

SUBRATA TALUKDAR

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JUDGMENT Subrata Talukdar, J. - Under challenge in this writ petition is the Industrial Award (for short the ID) passed by the Learned 5th Industrial Tribunal, Kolkata (for short the Learned Tribunal) dated the 22nd of February, 2013. 2. By the said impugned Award the Learned Tribunal was pleased to set aside the order of transfer issued by the Employer transferring the Industrial Workman/the Employee/the Respondent No.3 (R3) from Kolkata to Chennai. 3. The Learned Tribunal was further pleased to direct the employer to pay 50% of back wages to R3 from the date of reference till R3 is fully reinstated in his previous place of posting. 4. Mr. Saha, Learned Counsel for the Employer/the writ petitioner, submits that the Learned Tribunal erred by not holding that the order of transfer, being the subject matter of the Reference under Section 10 of the Industrial Disputes Act, 1947 (for short the ID Act), was issued on the ground of exigencies of service. There was, therefore, no change in the terms and conditions of service of R3. Such would clearly appear from the order of transfer dated 17th of May, 2004. Accordingly, the provisions of Section 9A of the ID Act are not attracted to the present facts. 5. It is submitted that the Learned Tribunal lost sight of the fact that R3 had previously filed a Title Suit as well as claimed an Industrial Dispute Reference under the ID Act on the self-same issue. Both the Title Suit and the Industrial Dispute Reference were however ultimately not proceeded with by R3. Accordingly, it is the stand of the Employer before this Court that the Learned Tribunal ought to have held that the pending Industrial Dispute Reference being Case No.VIII-40-10 dated 22nd February, 2013 was not maintainable. 6. Learned Counsel for the Employer/ writ petitioner relies on the authority of 1993 (1) SCC 148 to buttress the argument that no inference of mala fides can be culled out from the order of transfer in the absence of firm materials. Similarly, a transfer in respect of a post which is transferable ought not to be readily interfered with by a Court purely on the ground of personal hardship claimed by the Employee. 7. Similarly, a transfer in respect of a post which is transferable ought not to be readily interfered with by a Court purely on the ground of personal hardship claimed by the Employee. 7. Reliance is also placed on 2005 (2) CHN 439 to make the point on behalf of the Employer that a Notice as contemplated by Section 9A of the ID Act would be necessary whenever there is an attempt to withdraw a customary right or concession granted to an Employee apropo Clause 8 of the Fourth Schedule to the ID Act. 8. It is submitted that in the facts of the present case no customary right or concession pertaining to the service of R3 in Kolkata was changed following his transfer to Chennai. To the contrary R3 continued to enjoy House Rent Allowance (for short HRA) as well as other allowances commensurate to his posting at Chennai. Such allowances being favourable to R3 did not, at the highest, amount to any material change in the terms and conditions of his service. 9. Supporting the Award and opposing the writ petition, Mr. Kar, Learned Counsel for R3, submits that the Learned Tribunal was right in every respect. Foremost, Mr. Kar questions the maintainability of this writ petition which has been filed in 2017, that is 4 years after the making of the Award in February, 2013. It is also pointed out that far from being the subject matter of a challenge in this writ petition, the Award is deserving of implementation since it was published on 2nd May, 2017. 10. Therefore, it is submitted that the limits of limitation reasonably applying to a writ petition be also applied to this writ petition. It is pointed out that the defence of the Employer/the writ petitioner on the delay citing the ground that there was a change of law officers of the Employer since one of the law officers had mishandled/misplaced the records, is untenable. Mr. Kar submits that in the absence of specific supporting materials, such a defence on the part of the Employer only requires to be discarded. 11. In support of his arguments on limitation, Mr. Mr. Kar submits that in the absence of specific supporting materials, such a defence on the part of the Employer only requires to be discarded. 11. In support of his arguments on limitation, Mr. Kar relies on the authority of AIR 1970 SC 898 to make the point that limitation in respect of a writ petition should be reasonably construed on the touchstone of what ought to have been the outer statutorily prescribed time period to enable a Court to consider whether ventilation of such right is barred by limitation or, has otherwise become stale. 12. It is argued on behalf of R3 that after the Award was passed on 22nd February, 2013, the Employer wrote to R3 as well as the Union of Workmen representing R3 before the Learned Tribunal, calling upon R3 to rejoin duties in terms of the Award. However, the communication of the Employer was not honoured and the Award remained unimplemented. Relying on AIR 2014 SC 3004 , it is submitted that the Employer cannot on the one hand call upon the Employee/R3 to rejoin duties in terms of the Award and, on the other hand, challenge the Award by filing this writ petition. In other words, settled legal authority prohibits such approbation and reprobation. It is judicially recognised that the Doctrine of Approbate and Reprobate is a species of Estoppel. 13. Taking this Court to the West Bengal Second Amendment, 1980 to the ID Act, Learned Counsel for R3 submits that Section 9A of the ID Act provides for a period of Notice to the workman before effecting any change in his terms and condition of service. It is pointed out that the Employer by the order of transfer dated 17th May, 2004 violated Section 9A (supra) since it was not preceded by a statutory notice. It is submitted that R3 was appointed as a Peon and thereafter promoted as Counter Packer in Kolkata. No appointment letter was issued in his favour. On being transferred to Chennai R3 was designated as Attendant. The facility of a residential quarter as extended in Kolkata to R3 was substituted by HRA at Chennai as applicable to such category of staff, i.e. Attendant. 14. No appointment letter was issued in his favour. On being transferred to Chennai R3 was designated as Attendant. The facility of a residential quarter as extended in Kolkata to R3 was substituted by HRA at Chennai as applicable to such category of staff, i.e. Attendant. 14. The stand is therefore taken on behalf of R3 that the order of transfer amounts to a change in the terms and conditions of service of R3 and, sans a notice under Section 9A of the ID Act, such order of transfer cannot be sustained. Particular reference is made by Learned Counsel, Mr. Kar, to the discussion by the Learned Tribunal which, for the benefit of this discussion, is extracted below:- The pertinent point that needs to be considered and decided is whether the company has effected change in the conditions of service of the workman Sri Deonath Singh by transferring him to Chennai from Kolkata Office. In other words, it can be said whether the transfer of the workman is violative of the provisions of Section 9A of the Industrial Disputes Act, 1947. It appears that the workman was designated as Counter-packer at Kolkata Office. Exhibit-4 i.e. the order of transfer shows that on transfer to Chennai, the designation of the workman will be Attendant . It has not been stated in exhibit-4 whether the nature of work of Counter-packer is akin to that of Attendant . Therefore, it can be said that the nature of work and duty of Counter-packer is not the same as that of Attendant. This is propped up and buttressed by the statement O.P.W.-1. In his cross-examination, O.P.W.-1 has stated that there is some difference between work-schedule of Counter-packer in the company and that he was posted in the factory of their office building and that there is no factory in their Chennai office. It has been averred in the Written Statement filed by the union that the workman was provided with accommodation inside the company s premises before transfer to Chennai and that the workman will get house rent allowance to the extent of 15% on Basic Pay and that the company will not provide house accommodation to the workman in Chennai. These are, indeed, changes in the conditions of service of the workman. It has been argued by the learned representative for the Union that holidays at Chennai are different from those in Kolkata. These are, indeed, changes in the conditions of service of the workman. It has been argued by the learned representative for the Union that holidays at Chennai are different from those in Kolkata. Though the Workman examined as P.W.-1 has not stated anything in this regard in his evidence, O.P.W.-1 has stated in his cross-examination that the holidays given in their Kolkata Office are given in all their branches in India. Local festival holidays may vary from state to state in India. But it can be gathered from the statement of O.P.W.1 that all over India, holidays enjoyed by the staff of the company at Kolkata and elsewhere are same. So the transfer of the workman to Chennai will not deprive him of enjoying the national holidays. The argument advanced by the learned representative of the union in this regard has no force at all. The learned representative for the union has disputed the canteen allowance to be given to the workman at Chennai by the company. So far as the canteen allowance and canteen benefits enjoyed by the workman at Kolkata Office are concerned, there is no pleading in the Written Statement of the union in this regard. P.W.-1 has not stated anything in his deposition so far as the dispute regarding the canteen allowance as raised by the learned representative for the union is concerned. Therefore the submission of the learned representative in the matter of canteen allowance and benefits should not in my view, be taken into consideration. In the Written Statement, it has been averred by the union that the company asked the workman Sri Deonath Singh to accept V.R.S. Scheme be not accepted by the workman. P.W.-1 has stated in his evidence that he was Verbally told by the management to opt for V.R.S. What has been stated by P.W.-1 in this regard, is not corroborated by any witness or by any documentary evidence. So the statement of P.W.-1 that the company asked him to accept V.R.S. Scheme and threatened him with repressive measure to be resorted to by the company in the event of the workman not accepting the V.R.S. Scheme floated by the company, is hard to believe. In the Written Statement, the company has pleaded that there is no violation of Section 9A of the Industrial Disputes Act. In the Written Statement, the company has pleaded that there is no violation of Section 9A of the Industrial Disputes Act. 1947 and that transfer of the workman to Chennai from Kolkata Office has not affected any change in the conditions of service of the workman. In exhibit-19 being the Memo No2476/208/04/LCC written by the Personnel Manager of the company to the Assistant Labour Commissioner, Government of West Bengal on 18.06.04, it has been stated that the transfer does not come under the purview of the Fourth Schedule of the Industrial Disputes Act, 1947. There is no denying the fact that the word transfer has not found place in the Fourth Schedule. But in the instant case, it can be gathered from exhibit-4 that the designation of the workman on transfer to Chennai Office will be Attendant instead of Counterpacker. Therefore, the designation of the workman as Attendant is, no doubt, a change in the conditions of service of the workman. So the company has effected change in the conditions of the service of the workman by changing his designation. It has transpired in evidence that the nature of work and duty of the workman as Counter-packer in Kolkata Office is different from that as Attendant in Chennai Office. In the case of S.T.P. Ltd. vs. Second Labour Court,2002 11 LLJ 594 Calcutta, it has been held at page-599 that Section 9-A has been engrafted in the Industrial Disputes Act to protect the interest of the workman with regard to the conditions of service. It prohibits unilateral changing of conditions of service to the prejudice of the workman without giving opportunity to the workman. The mandate provided in Section 9-A requires a fulfilment of certain conditions in order to bring about change in the service conditions. The tests are that there must be: (a) A proposal by the employer to effect change in the condition of service; and (b) A notice issued in the prescribed manner to the workman likely to be affected; and (c) Such changes take effect only after expiry of 21 days of such notice, it has been further held at page-600 that any change in the condition of service that affects workman prejudicially, is hit by the mischief of Section 9-A unless it is so followed. Since Section 9-A imposes a prohibition on the employer s right to unilaterally change the condition of service to the prejudice of the workman, any such change brought about without complying with Section 9-A, would be ineffective and void. In the case of M/s. Tata Iron and Still Co. Ltd. vs. The workmen,2002 11 LLJ 259 Supreme Court, it has been held at page-266 that the appellant having thus effected a change in the weekly days of rest without complying with S.9A read with the Fourth Schedule this change must be held to be ineffective. Section 9-A of the Industrial Disputes Act, 1947 provides a very valuable right to the working class. The employer has no right to effect change in the conditions of service to the disadvantage of the worker without giving proper notice as mandated by Section 9-A of I.D. Act. in the instant case, the existing conditions of service do not contemplate transfer. Therefore, subjecting the workman to such a new condition of service certainly requires the compliance of Section 9-A of the Industrial Disputes Act. In this connection, reference may be made to 2002 (94) FLR Madras 1072. In view of what has been stated above and the decisions as referred to supra, it can be said that the company has effected change in the conditions of the service of the workman by way of transferring him to Chennai from Kolkata Office without complying with the provisions of Section 9-A of the Industrial Disputes Act, 1947 and that such change is ineffective and void. 15. Having heard the parties and considering the materials placed, this Court is of the view that the Learned Tribunal did not err in passing the Award dated 22nd February, 2013. In the view of this Court the Learned Tribunal has correctly appreciated the scope of application of Section 9A of the ID Act in the context of the present facts. This Court further notices the language of the order of transfer dated 17th May, 2004, an extract of which, inter alia, reads as follows:- There will be no change (emphasis supplied) in the terms and conditions of the service save and except (emphasis supplied) the following....... 16. This Court further notices the language of the order of transfer dated 17th May, 2004, an extract of which, inter alia, reads as follows:- There will be no change (emphasis supplied) in the terms and conditions of the service save and except (emphasis supplied) the following....... 16. To the mind of this Court the above referred expressions inherently imbibe the colour of Section 9A of the ID Act read in the light of the State Amendment, 1980 (supra) and the Employer/the writ petitioner erred in not following the statutory prescription. 17. In the backdrop of the above discussion, the writ petition fails. 18. The Award dated 22nd of February, 2013 as published on 2nd May, 2013 stands affirmed. 19. There will be no order as to costs. 20. W.P. No. 18137 (W) of 2017 stands accordingly dismissed. 21. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.