IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.04.2011 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.P. NO.3211 OF 2002 The Management of Tamil Nadu Electricity Board Rep.by its Secretary No.800, Anna Salai Chennai – 600 002. .. Petitioner Versus 1.The General Secretary Tamil Nadu Electricity Workers' Federation (Regd.No.2970) VGR Illam 49, Guruvappa Street Chintadripet, Chennai – 2. 2.The General Secretary TNEB Accounts & Executive Staff Union (Regd.No.2472) 4, Kurban Ali Street Woods Road, Chennai -2. 3.The General Secretary Central Organisation of Tamil Nadu Electricity Employees (Regd.No.158/CPT/CITU) 13, Misque Street Chepauk, Chennai – 5. 4.The General Secretary, TNEB Janatha Thozhilalar Sangam (Regd.No.873/MDS/NLO) 36, Raghavan Colony Vadapalani, Chennai – 26. 5.The General Secretary Tamil Nadu National Electricity Workers' Federation (Regd.No.1544/MDS (INTUC) 18, Ellaiamman Koil Street West Mambalam, Chennai – 33. https://hcservices.ecourts.gov.in/hcservices/ 6.The General Secretary TNEB Workers Progressive Union (Regd.No.38/CPT/LPT) B-52, VI Avenue Anna Nagar, Chennai – 40. 7.The General Secretary TNEB Engineers Sangam (Regd.No.124/MDS) 792, Electricity Avenue Anna Salai, Chennai – 2. 8.The General Secretary TNEB Draughtsmen Union Electricity Avenue 793, Anna Salai, Chennai – 2. 9.The General Secretary Akila India Minvariyam Kanakkeettalar Matrum Panam Vasulippavargal Sangam 18, Koya Arunagiri First Street Mirsahibpet, Chennai – 14. 10.The Presiding Officer Industrial Tribunal, Chennai. 11.D.Amutha (R-11 impleaded as per order dated 12.04.2007 in W.P.M.P.No.17346/2006 in W.P.3211/2002) 12.Manivel .. Respondents (R-12 impleaded as per order dated 28.10.2010 in W.P.M.P.No.655/10 in W.P.No.3211/2002) PRAYER : Writ Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the tenth respondent / Tribunal relating to its order dated 30.06.2000 passed in I.D.No.173 of 1994 and quash the same as illegal. For Petitioner : Mr.M.Vaidyanathan For Respondents-1, : No Appearance 3 to 6, 8 & 9 For Respondent-2 : Mr.R.Arumugam For Respondent-7 : M/s.Rita Chandrasekaran for M/s.Aiyar & Dolia https://hcservices.ecourts.gov.in/hcservices/ For Respondent-10 : Tribunal For Respondent-11 : Mr.S.Periyasamy O R D E R The Writ Petition has been filed by the petitioner, challenging the award passed by the tenth respondent in I.D.No.173 of 1994, in a dispute raised under Section 10(1)(d) of the Industrial Disputes Act, 1947 by the respondents 1 to 9. Pending the Writ Petition, the respondents 11 and 12 have been impleaded as party respondents in whose favour, a direction has been given by the Labour Court to consider the case for the appointment on compassionate grounds and in the latter's case to appoint her as a Sweeper in the ensuing vacancy. 2.The petitioner herein is a Statutory Body. The respondents 1 to 9 are the recognised Trade Unions. 21 demands have been made by the Trade Unions and since there was no settlement and conciliation, the Government of Tamil Nadu has referred the matter to the Labour Court. The Labour Court framed three issues mentioned in the reference and granted the benefits in favour of the respondents. Challenging the same, the petitioner has come forward to file the present Writ Petition. 3.Issue No.1 is concerned with the transfer policy of the petitioner. Admittedly, the Standing Orders of the petitioner, particularly Standing Order Nos .28 and 17 deal with the 'transfer of the workmen'. It is the case of the respondents 1 to 9 that the Standing Orders have not been complied with properly. Therefore, it was contended before the Labour Court by the respondents Unions that a transfer policy should be introduced after deliberations with the Trade Unions. 4.The Labour Court rightly found that the transfers being incidental to service, the same cannot be avoided on the mere ground of pendency of representations against the transfers. The Labour Court further found that a transfer cannot be interfered with unless it is tainted with malafides or by an extraneous consideration. However, the Labour Court was pleased to hold that even though the transfers are within the domine of the petitioner it is for the petitioner to evolve a policy and there is nothing in consulting the Unions for evolving such a policy. 5.The learned counsel appearing for the petitioner submitted that the transfers are effected by following the procedure https://hcservices.ecourts.gov.in/hcservices/ contemplated under the Standing Orders. For effecting the each and every transfer, Unions need not be consulted. It is further submitted that the transfers being incidental to service, Unions do not have any role to play. What the Labour Court has sought for was, if the petitioner has decided to evolve a transfer policy for future, there is nothing in consulting the Unions. Therefore, the Labour Court has made it very clear that the Unions do not have any say in any future policy to be evolved by the petitioner regarding the transfers. Hence, this Court is of the view that the observation made by the Labour Court cannot be construed to hold that for every transfer, the Unions will have to be consulted as the law is settled that the employer has got every right to transfer an employee as an order of transfer is incidental to service and governed by the Standing Orders. A mere consultation in a case of evolving a future policy regarding transfer with the Unions would not be binding on the petitioners and it is always open to the petitioner to evolve its own policy. Therefore, the issue regarding transfer dealt with by the Labour Court is clarified by this Court in the above manner. This Court is of the view that there is no necessity to go into the said contentions raised by the learned counsel for the petitioner for the reason that the Labour Court has never said that for ordering transfer in each and every case, the Unions will have to be consulted. 6.In so far as the Issue No.2 is concerned, the same pertains to the nomenclature for the two equivalent posts namely, Junior Engineer (Grade-I) and Assistant Engineer. It is the request of the Unions that both the posts are carrying the same pay and duties and therefore, both should be combined and a common nomenclature should be given as Assistant Engineer. The Labour Court has passed an order that Junior Engineer (Grade-I) can be re- designated as Assistant Engineer (D) and Assistant Engineer which is applicable to the graduate Engineers can be re-designated as Assistant Engineer (G). It is seen from the records that the Junior Engineer (Grade-I) consist of diploma holders and the post of Assistant Engineer is occupied by decree holders. The promotional post for the above said two categories is Assistant Executive Engineer. The ratio has been fixed at 3:1 between the cadre of Junior Engineer (Grade-I) and Assistant Engineer. It is further seen that an experience is required in the cadre of Junior Engineer (Grade-I) for the promotion to Assistant Executive Engineer, whereas a person holding the post of Assistant Engineer can be promoted as Assistant Executive Engineer based upon seniority alone and no experience is required. Therefore, a classification has been made based upon intelligible differentia by the petitioner. 7.The Labour Court has made an error in taking up the role of the petitioner by creating the nomenclature. The power of the https://hcservices.ecourts.gov.in/hcservices/ Labour Court in such matters is very much limited. When the petitioner has adopted a rational basis for having two categories, one for the diploma holders and another for the graduate engineers, the Labour Court cannot act as an appellate authority and go into the wisdom of the petitioner. The said decision being the sole prerogative of the employer the Labour Court has got no jurisdiction to go into the same. 8.As discussed above, both the categories are distinct and different from each other, one category consist of diploma holders and another consist of graduate engineers. Therefore, the Unions cannot claim as a matter of right that both should be combined into one. Admittedly, the ratio fixed for both categories are different. When there are four vacancies in the post of Assistant Executive Engineer three will have to be filled up from the feeder cadre of graduate engineers, one has to be filled up from the category of diploma holders of Junior Engineer (Grade-I). There is no allegation of lack of bonafides on the part of the petitioner in the method of classification. 9.Considering the scope of judicial review, this Court in MADRAS HARBOUR WORKERS' UNION vs. I.T., MADRAS [1972 I L.L.J. 8] has held as follows: "13.The question is whether in exercise of such power, the Industrial Tribunal can do anything which will have the effect of amending a statutory provision. Mr.Ramaswami was unable to cite any authority to show that such wide powers can be exercised by an Industrial Tribunal. The jurisdiction of the Industrial Tribunal is no doubt wide in dealing with terms of contract between the employer and the workman as pointed out by the Supreme Court in the case cited above. It can even substitute a new contract if it is indeed essential for industrial peace. But it would be arrogating too much power if the Tribunal were to make an award altering a statutory provision. The scheme framed by the Central Government under S.4(1) of the Act is by virtue of the power of delegation conferred on them by the said Act. The scheme has all the characteristics of a subordinate legislation. Instead of the Legislature itself making the scheme, it laid down the principles and conferred upon the Central Government the power to embody those principles and make a scheme in conformity https://hcservices.ecourts.gov.in/hcservices/ with the conditions of labour obtaining in the respective ports. In Vine vs. National Dock Labour Board, [1956] 3 All E.R. 939, the question arose regarding the scope of Dock Workers (Regulation of Employment) Order, 1947, where, the plaintiff instituted a suit claiming damages for wrongful dismissal and also prayed for a declaration that the order of dismissal was illegal, ultra vires and invalid. Dealing with the question whether the plaintiff was entitled to the declaration Lord Keith observed at page 948: "This is not a straightforward relationship of master and servant. Normally, and apart from the intervention of statute there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages. Here we are concerned with a statutory scheme of employment... The scheme gives the dock worker a statute". In Barber vs. Manchester Hospital Board, [1958] I All E.R. 322, the question arose whether the plaintiff working in a Regional Hospital Board as medical consultant was entitled to a declaration that his employment was not validly terminated. Negativing the claim of the plaintiff Barry J., observed at page 331: "I am unable to equate this case to the circumstances which were being considered by the Court of Appeal and the House of Lords in Vine vs. National Dock Labour Board, [1956] 3 All E.R. 939, where the plaintiff was working under a code which had statutory powers and clearly in those circumstances all the Lords of Appeal who dealt with the case in the House of Lords took the view that the case could not be dealt with as though it were an ordinary master and servant claim in which the rights of the parties were regulated solely by contract. Here despite the strong statutory flavour attaching to the plaintiff's contract, I have reached the conclusion that in essence it was an ordinary contract between master and servant and nothing more". https://hcservices.ecourts.gov.in/hcservices/ 14.In Sarat Chatterjee & Co. vs. C.G.I. Tribunal, A.I.R. 1962 Pat. 472, the question arose whether an Industrial Tribunal had jurisdiction to decide the question of bonus and incremental scales of pay of dock workers working in Calcutta Dock Labour Board, a Board similar to the Madras Board formed under the Act. Under the scheme framed for the Calcutta Port as in the Madras scheme, there was a provision conferring power upon the Board to make an endeavour to settle disputes about which a request for adjudication has been made to the Central Government by the parties concerned. Construing that provision a Bench of the Patna High Court held that the question raised in that case regarding bonus and incremental scales of pay was one which could be raised and could be decided by the Board itself and that there was no scope for taking the view that the dispute was an industrial dispute which could be referred to the Industrial Tribunal for adjudication. At page 478 it is observed: "Even assuming that such a claim can be made on behalf of the workers, there is no doubt in my mind that the Board is the competent authority to deal with such a claim under its power under cls.8(f) and 41 of the scheme. Even if the said provisions of the scheme are not wide enough to cover the question of the bonus and if the Government be of the view that such a claim can and should be entertained on behalf of the dock workers, it is competent though under S.4 of the Act to amend or vary the scheme and make provision for it. But in the present set of things as provided for in the scheme, I am of the view that there cannot be any industrial dispute in regard to the claim of bonus made on behalf of the monthly dock workers and hence the Tribunal is not competent to decide the said question referred to it for its adjudication". In my view this decision applies on all fours to the facts of the instant case. The Tribunal was, therefore, right in holding that it had no power to adjudicate upon the dispute referred to it." https://hcservices.ecourts.gov.in/hcservices/ 10.The Honourable Apex Court while considering the judicial review over an administrative decision made by an employer in the nature of appointment, promotion, condition of service of employees rendered in TRANSPORT & DOCT WORKERS UNION AND OTHERS vs. MUMBAI PORT TRUST AND ANOTHER [(2011) 1 MLJ 755] has held as follows: "36.It is nobody's case before us that the decision of the Port was not bona fide. In our opinion, the decision of the Port was bona fide, and hence no fault can be found with the said decision and it cannot be said that it violates Article 14 of the Constitution. 37.The policy decision of the Port cannot be said to cause any prejudice to the interest of the personnel recruited after 1.11.1996 because before their recruitment they were clearly given to understand as to what would be their working hours, in case they accept the appointment. In our opinion, the introduction of the new policy was a bona fide decision of the Port, and the acceptance of the conditions with open eyes by the appellants and the recruits after 1.11.1996 means that they can now have no grievance. It is well settled that Courts should not ordinarily interfere with policy decisions. 38.In our opinion, since the classification with reference to the date of appointment of typist-cum-computer clerks was for the purpose of bringing about uniformity in working hours of the personnel working in indoor and outdoor establishments, and its aim was to make the organization competitive and efficient, it cannot be said that it was unreasonable and hence violative of Article 14 of the Constitution. Also, avoidance of labour disputes is a reasonable basis for the classification. 39.In our opinion, Article 14 cannot be interpreted in a doctrinaire or dogmatic manner. Absolute and inflexible concepts are an anathema to progress and change. As observed by the great Justice HOLMES of the U.S. Supreme Court, the machinery of the government would not work if it were not allowed some free play in its joints vide Missourie, Kansas and Tennesee Railroad vs. May 194 U.S. 267(1904). Excessive interference by https://hcservices.ecourts.gov.in/hcservices/ the judiciary in the functions of the executive is not proper. In several decisions, we have held that there must be judicial restraint in such matters, vide Divisional Manager, Aravali Golf Club vs. Chander Hass (2008) 1 SCC 683 : (2008) 1 MLJ 155. In Government of Andhra Pradesh vs. P.Laxmi Devi (2008) 4 SCC 720 the doctrine of judicial review of statutes has been discussed in great detail, and it has been observed that the judiciary must show great restraint in this connection. 42.Differential treatment in our opinion does not per se amount to violation of Article 14 of the Constitution. It violates Article 14 only when there is no conceivable reasonable basis for the differentiation. In the present case, as pointed out above, there is a reasonable basis and hence in our opinion there is no violation of Article 14 of the Constitution. 43.In our opinion, it is not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies, as in the present case. In view of the inherent complexities involved in modern society, some free play must be given to the executive authorities in this connection. 46. As LORD DENNING observed: "This power to overturn executive decision must be exercised very carefully, because you have got to remember that the executive and the local authorities have their very own responsibilities and they have the right to make decisions. The Courts should be very wary about interfering and only interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise, you would get a conflict between the Courts and the government and the authorities, which would be most undesirable. The Courts must act very warily in this matter."(See "JUDGING THE WORLD" by GARRY STURGESS PHILIP CHUBB). https://hcservices.ecourts.gov.in/hcservices/ 47.In our opinion, Judges must maintain judicial self restraint while exercising the powers of judicial review of administrative or legislative decisions. 48."In view of the complexities of modern society", wrote Justice FRANKFURTER, while Professor of Law at Harvard University, "and the restricted scope of any man's experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution. These insights Mr.Justice HOLMES applied in hundreds of cases and expressed in memorable language: It is misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong." 51.In administrative matters, the Court should, therefore, ordinarily defer to the judgment of the administrators unless the decision is clearly violative of some statute or is shockingly arbitrary. In this connection, Justice FRANKFURTER while Professor of Law at Harvard University wrote in "THE PUBLIC AND ITS GOVERNMENT"- "With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of government. The great judges are those to whom the Constitution is not primarily a text for interpretation but the means of ordering the life of a progressive people." 52.In the same book, Justice FRANKFURTER also wrote- https://hcservices.ecourts.gov.in/hcservices/ "In simple truth, the difficulties that government encounters from law do not inhere in the Constitution. They are due to the judges who interpret it. That document has ample resources for imaginative statesmanship, if judges have imagination for statesmanship." 53.In legal scholarship, Roscoe Pound challenged the rigid formalism of Justice FIELD. Pound strongly argued against a jurisprudence founded upon immutable first principles and sought in the social sciences and related fields a means for making the law responsive to a changing world. 54.As observed by Justice FRANKFURTER: "It would be comfortable to discover a Procrustean formula......... If such were the process of Constitutional adjudications in this most sensitive field, it would furnish an almost automatic task of applying mechanical formula and would hardly call for the labors of Marshall or Taney, of Holmes or Cardozo. To look for such talismanic formula is to assume that the broad guarantees of the Constitution can fulfill their purpose without the nourishment of history." 55.In Keshavanand Bharti v. State of Kerala AIR 1973 SC 1461: (1973) 4 SCC 225 (vide paragraph 1547) KHANNA, J. observed: "In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error."" 11.It has been further held by the Honourable Apex Court in B.MANMAD REDDY vs. CHANDRA PRAKASH REDDY [(2010) 3 SCC 314] in the following manner: "15.This Court in State of J&K v. Triloki Nath Khosa [(1974) 1 SCC 19] held that a classification must be truly founded on substantial differences that distinguish persons grouped together from those left out of the group and such differential attributes must bear a just https://hcservices.ecourts.gov.in/hcservices/ and rational relation to the object sought to be achieved. Having said so, this Court observed: (SCC pp.33-34, para 33) “33. Judged from this point of view, it seems to us impossible to accept the respondents’ submission that the classification of Assistant Engineers into degree-holders and diploma-holders rests on any unreal or unreasonable basis. The classification, according to the appellants, was made with a view to achieving administrative efficiency in the engineering services. If this be the object, the classification is clearly co- related to it, for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved here is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterised as arbitrary or absurd. That is the farthest that judicial scrutiny can extend.” The Court also observed that the classification made on the basis of educational qualifications with a view to achieving administrative efficiency can not be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. 16.The ratio of the decision in Roshan Lal Tandon vs. Union of India [(AIR 1967 SC 1889] was reiterated by Their Lordships in the following words: (State of J&K v. Triloki Nath Khosa [(1974) 1 SCC 19], SCC p.38, para 44) “44. The key words of the judgment are: ‘The recruits from both the sources to Grade D were integrated into one class and no discrimination https://hcservices.ecourts.gov.in/hcservices/ could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade C. By this was meant that in the matter of promotional opportunities to Grade C, no discrimination could be made between promotees and direct recruits by reference to the source from which they were drawn. That is to say, if apprentice train examiners who were recruited directly to Grade D as train examiners formed one common class with skilled artisans who were promoted to Grade D as train examiners, no favoured treatment could be given to the former merely because they were directly recruited as train examiners and no discrimination could be made as against the latter merely because they were promotees. This is the true meaning of the observation extracted above and no more than this can be read into the sentence next following: ‘To put it differently, once the direct recruits and promotees are absorbed into one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade C.’ In terms, this was just a different way of putting what had preceded.” (emphasis in original)" 12.Therefore, considering the principle of law, coupled with the facts analysed above, this Court is of the view that the Labour