1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.1378 of 2008 With Writ Petition No.1380 of 2008 Vidyut Metallics Pvt. Ltd. Petitioner Vs. Maharashtra Rajya Rashtriya Kamgar Sangh (INTUC) and anr. Respondents Mr.K.M.Naik with Mr.S.P.Salkar for petitioner. Mrs.Gayatri Singh withMs.Seema Chopda for resp.no.1. CORAM: B.H.MARLAPALLE, J. March 5, 2008 ORAL ORDER: 1. Heard Mr.Naik with Mr.Salkar, the learned counsel for the petitioner - company and Ms.Singh with Ms.Chopda, the learned counsel for the respondent no.1 - Union. The respondent no.2 be deleted forthwith. 2. Both these petitions arise from the interlocutory orders passed by the Industrial Court at Mumbai in Complaint (ULP) Nos.287 of 2007 and 2 of 1998, allowing the applications for interim relief filed at Exhibit U-2 and directing the orders of deputation to be kept in abeyance. In the first complaint a group of five workmen and in the second 2 complaint a group of seventeen workmen including the five workmen covered under the first complaint were deputed and, therefore, the respondent - Union approached the Industrial Court by filing two separate complaints under Item 9 of Schedule IV read with Section 28 of the MRTU & PULP Act, 1971 (for short "the Act"). The company has challenged both these orders and hence these petitions are being disposed off by this common order. 3. As per the respondent - union, the petitioner - company does not have a right to send any of the employees on deputation to its another establishment either in Guwahati or any other place and unless such a right is set out either in the appointment order, Standing Orders or a settlement signed between the parties, the company cannot issue an order of deputation. As per the company the quality control staff is required to be deputed to meet certain exigencies of business and more particularly in the market where the company is facing some unexpected issues on account of spurious product being thrown in the market by competitors or by some other unknown manufacturers and, therefore, quality checks of the products in the market are required to be undertaken 3 so as to detect the spurious products at the earliest and this will last for some time. In addition the company claims that it has set up a factory about 20 Kms. away from Guwahati and in the project stage some technicians from the factory at Mumbai are required to be deputed in some specialised areas. The complaints filed by the union have been opposed by the company and it has been averred specifically that deputation is not transfer and the company has the inherent powers to send any of its employees on deputation for a short period. It has also been stated that the employees on deputation would be looked after and more particularly they will be provided with a guest house for staying and a special allowance to meet the expenses towards meals and other outgoings. To dispel the fear of the employees of Assam being a disturbed area, the company has undertaken to take care of the security aspect as well. 4. The Industrial Court was not impressed by the averments made by the company and the assurances to take appropriate measures for compensating the expenses as well as to provide for security. The Industrial Court held that the company is, prima 4 facie, guilty of unfair labour practice by issuing the orders of deputation. It would be appropriate to refer to the specific observations made by the Industrial Court in the impugned order as reproduced hereinbelow: "...Thus, in the present case, taking into consideration all the facts, case laws and the ratio developed by our Apex Court, from time to time, I do not find any merit in the argument of learned counsel for the respondent company, who failed to point out vide such and such clause respondents are having exclusive right to depute its employees even anywhere. From the case laws and citations referred by the rival parties, it reflects that private employer like the respondent can and have every right to depute its employees taking into consideration either for business or administrative exigencies. If at all the argument of learned counsel are concerned regarding exigencies of the workers concerned at remote place at Guwahati. Even it reflects from the documents on record i.e. from the officer one Shri Debdutta, who has asked that 5 he is in need of 3 to 4 employees working at Thane having skill in quality control, in order to make market survey in which regarding circulation of fake blades for Nail Buffer project and the fact is there on record as per documents placed on record by rival parties, about 4 to 5 workers have been deputed by the respondent at Guwahati, for the said purpose and as on today more than 15 employees have been asked to go for deputation at Guwahati. There is no any clarification have been given by the respondent, no doubt the employees who have been sent there might have consented for the same and taking into consideration the present position and provisions of law which are applicable in the present proceeding, like issue involved in the present complaint and in the Complaint (ULP) No.287 of 2007, ie whether the private employer is having right to depute its employees when there is no right or power or authority even then can depute its employees to any other place from the present place of work..." 5. I have no doubt in my mind that the Industrial 6 Court misdirected itself. The employer came out with a case that deputation was to meet the specific challenges in the market and for setting up of a new factory. To depute its employees for such exigencies, it is not necessary to refer to the Standing Orders or appointment orders. In fact it is an inherent power of the employer to depute its employees to meet such specific exigencies and so long as the said deputation is not being ordered to transfer the employees in the guise of managerial authority, there was no case to interfere with the order of deputation. The employer came out with a case that the deputation period would not be more than three to four months. To dispel the fear of the union and its members that the employees deputed once may continue on deputation and thus indirectly get displaced by way of transfer, the company was called upon to file a specific affidavit and Mr.Anant Rajadnye who is the Head of the Human Resources Department of the petitioner - company has filed an affidavit. 6. As per the affidavit the employees on deputation will be provided residential accommodation at the company’s guest house at Roay Choudhury 7 Complex, 2nd floor, Dr.J.C. Das Road, Pan Bazar, Guwahati free of cost and its area if about 2300 sq. ft. The petitioner - company has its office, depot and godown at 29, Gopinath Bardoloi Road, Pan Bazar, Kamrup, Guwahati. The affidavit gives the telephone number of the office. It has also been clarified that the present office is not at the earlier place i.e. 43/A, Kaliram Choudhury Road, Kumarpara, Bharalumukh, Guwahati-Assam. It has been further stated that the factory premises is located at Plot No.136, Khankar Gaon, Panikhaity, Kamrup, Assam and it is about 20 Kms. away from Guwahati. To and from transport arrangement is going to be provided by the company to visit the factory. The affidavit also clarifies that the security arrangements at the guest house, office and the factory have been made. In addition the employee on deputation will be paid a daily allowance of Rs.200/- over and above the monthly salary to meet the expenses towards food and other incidental expenses. If the deputation period is going to be more than 50 days in continuation, the employee concerned will be granted a special leave for one week to visit his family at Mumbai / Thane if such an application is made in writing and for such visit the employee concerned will be reimbursed to 8 and fro second sleeper class train ticket. This special leave will be over and above the leave earned by the concerned employee in the normal course and it will not be adjusted against the leave so earned. However, while on special leave the employee concerned will not be entitled to the payment of daily allowance of Rs.200/-. 7. Though the affidavit states that r. Biswajeet Bose is the Regional Manager of the company at its Guwahati office, it would be appropriate that each group of employees on deputation from Mumbai has a group leader (separately for quality control and nail buffer factory) holding the post of Supervisor / Chargeman / Foreman, so that the employees on deputation are accountable to him and also he would supervise their work. The company to provide accordingly. In my considered opinion the above stated measures would certainly protect the interest of the employees on deputation and they would also dispel the fear that such employees have for being deputed in a disturbed area and at the same time they would not be cut off from their families for a continuous period of three or four months. Even financially they would not be adversely affected and 9 in any case the deputation is going to be in rotation. I, therefore, accept the affidavit submitted by and on behalf of the company with the modifications as set out hereinabove. 8. Consequently the impugned orders are quashed and set aside and the petitions are disposed off on the basis of the undertaking set out in the affidavit and reproduced hereinabove with the above modifications. While issuing the deputation orders the company will provide at least one week’s time to report for duty. 9. Petitions are disposed off accordingly (B.H.MARL