C.W.P. No.9205 of 2009 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.9205 of 2009 Date of Decision:18.09.2009 Kartar Singh Yadav and another .....Petitioners Versus Indian Oil Corporation and others ...Respondents Present: Mr. S.D. Singh, Advocate and Mr. Manjit Singh, Advocate for the petitioners. Mr. J.C. Verma, Sr. Advocate with Mr. Deepinder Kaur, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. The writ petition is at the instance of 2 workmen employed under the Indian Oil Corporation challenging the latter's communication dated 17.06.2008 of not recognizing the Petroleum Employees Union (PEU) and refusing to hold dialogue with the said Union and for a direction through a mandamus not to carry out any deployment/redeployment/transfer of the workmen except in accordance with the settlement entered into through the Union with IBP Co. Limited which later merged with Indian Oil Corporation. The workmen sought in the alternative for issue of a writ of mandamus directing the Assistant Labour Commissioner- cum-Conciliation Officer to conclude the proceedings pending C.W.P. No.9205 of 2009 -2- before him and not to act contrary to the settlement which according to the workmen provided that the management ought not to take any decision regarding transfer without at first entering into a dialogue with the representatives of the union. 2. The basis of the petitioners' claim was traced to Memorandum of Settlement signed between the IBP Co. Limited with the workmen belonging to four Workers' Unions including IBP Employees Union, Manesar as a constituent union of Federation of Unions of all-India IBP Employees and Petroleum Workers Union, New Delhi. The terms of settlement provided, inter alia, in Clause 2.7 in Annexure-1 to the Memorandum of Settlement that “in case of dispute in the matter of new jobs or in deployment/redeployment of workmen, the issue will be settled amicably between the management and union through discussions”. Subsequently when IBP Co. Limited was merged with the Indian Oil Corporation, the general terms of merger which were approved by the High Court included that with effect from appointed date (02.05.2007) and upon the scheme becoming effective any and all employees of the Transferor Company shall be employees of the Transferee Company employed on existing or similar terms and conditions as to remuneration and without any breach or interruption of service. Clause 3.11 (c) of the terms of merger provided that the Transferee Company would undertake to continue to abide by any agreements, settlements entered into with any labour unions/employees of the Transferor Company. The attempt of the learned counsel was, therefore, to show that the C.W.P. No.9205 of 2009 -3- Transferee Company was bound by the settlement that had already been entered into by the Transferor Company-IBP Company Limited which provided (as mentioned earlier), inter alia, that in case of dispute in the matter of redeployment, the matter would be settled amicably between the management and the unions. 3. The point of dispute arose when subsequent to the merger of IBP Company Limited with Indian Oil Corporation, the management of Indian Oil Corporation observed that 8 of the workmen at Manesar were surplus and made an order of transfer. This was originally challenged by means of a writ petition in C.W.P. No.6153 of 2009. The writ petition had been filed at the instance of Petroleum Employees Union through which the writ petitioners claimed themselves to be members but the High Court directed that the charter of demands which the union had placed against the management was pending consideration before the Assistant Labour Commissioner-cum-Conciliation Officer, Faridabad and directed the expeditious consideration of the matter within a period of four weeks from 06.05.2009 and further directed that till the decision was taken by the Assistant Labour Commissioner-cum-Conciliation Officer, the parties would maintain status quo. The status quo as on date was that the workmen continued in Manesar and had not joined at the place where they were transferred. As per the directions of the Hon'ble High Court, the Conciliation officer had concluded the conciliation process and reported to the Government on 25.05.2009 that the talks had failed and various suggestions given C.W.P. No.9205 of 2009 -4- to both parties to resolve the disputes amicably did not yield any fruit. The Conciliation Officer had recorded the fact that the applicants were ready for arbitration and for voluntary adjudication but the management was not prepared for the same. The 1st petitioner and some others had filed yet another writ petition in C.W.P. No.7068 of 2009 but it was allowed to be withdrawn with liberty to approach the management in the light of the order passed by the High Court in C.W.P. No.6153 of 2009 dated 06.05.2009. While the workmen, at all times, had been clamouring for the position that in terms of the settlement entered into by the union with the Transferor Company-IBP Company Limited, the Indian Oil Corporation was bound to take the members of the Petroleum Employees Union into confidence before taking any decision regarding redeployment that included order of transfer, the management had two reasons to reject it. One, that they did not recognize the Petroleum Employees Union and the representatives of the larger union namely Petroleum Workers Union had already accepted the proposals of transfer and therefore, they were entitled to ignore the pleas of the workmen claiming allegiance to PEU. The second objection was that even the terms of settlement contained two different categories of clauses, one which was mandatory, another which was merely expression of wish for a congenial industrial atmosphere and the provision for re-deployment to be undertaken after mutual consultations was one such exercise that cast no binding effect on the management of its right to transfer the workmen. C.W.P. No.9205 of 2009 -5- 4. Learned counsel appearing for the workmen who had filed the writ petition addressed his arguments with reference to the fact that the attempt of the management was discriminatory in having a dialogue only with one union and completely ignoring the views of the persons that had allegiance to PEU. The order of transfer, according to him, was, therefore, arbitrary and violative of Article 14 of the Constitution. The second objection was that when proceedings were pending before the Conciliation Officer that included the subject of the recognition of their union and the issue of transfer through redeployment without consulting the office bearers of the union, the management ought not to have altered the conditions without taking the permission of the Conciliation Officer himself. This was violative of Section 33 of the Industrial Disputes Act. The third objection was a fact that was sought to be enumerated through an additional affidavit filed on the date of hearing which made references to a recent incident of the management employing nearly 100 workers through contractors for the job which the workmen were always doing and by their conduct in transferring some persons belonging to the same category from some other place to Manesar made evident the falsity of the management's claim that the workers were required to be transferred only because they were to be treated as surplus; on the other hand, the management required additional hands for work at Manesar itself. The points which were taken through additional affidavit were countered by oral submissions by the learned Senior Counsel for the management on the ground that the C.W.P. No.9205 of 2009 -6- particulars brought on the basis of additional affidavit were filed on the date of hearing and the respondents did not have time to file their objection in writing. 5. The objection to the contentions raised on behalf of the workmen come through a stand of seeming defiance by the management that the prayer in the writ petition itself was not capable of being granted in view of the fact that the statement filed before the Conciliation Officer cannot be quashed for, it is merely an expression of the position of the management to the contentions raised by the workmen. Even a prayer for issue of a mandamus against redeployment except in accordance with the settlement cannot be granted by the Court for, the settlement nowhere mandated that the transfer would be ineffective if it was done without the concurrence of the Workers Union. The alternative prayer contained in the writ petition, according to the learned Senior Counsel, which was to the effect that the proceedings before the Conciliation Officer should be concluded by him was meaningless for, even by the time when the writ petition was filed, the proceedings before the Conciliation Officer had concluded and even the failure report had been filed by the petitioners themselves along with the writ petition and annexed as Annexure P-19. 6. In my view, the whole contentions between the parties have to be seen only from a singular aspect whether the writ petitioners could resist an action for transfer of some of the employees through a veiled process by writ petition containing omnibus prayers that sought for seemingly innocuous reliefs, C.W.P. No.9205 of 2009 -7- including that redeployment shall not be done except under the provisions of the settlement/scheme of amalgamation or merger. I have already referred to the fact that the settlement with IBP Company Limited makes reference to the fact that in case of dispute of new jobs or deployment or redeployment, the issue would be settled amicably through discussions. It is doubtful whether it constitutes a mandate that if the management decided not to negotiate with the workmen, it should be taken that the power to transfer itself would be lost. I desist from dilating further on this issue lest it should work against the interest of the workmen, in view of the fact that the workmen have taken this clause to be a contentious issue as an industrial dispute that assures to them the right to resist any attempt of transfer of the management without conferring with the members of PEU. 7. The discrimination that the petitioners complain, in order to merit acceptance, ought to be with reference to the order of transfer itself. The imputation however is to the differential treatment between Petroleum Worker's Union and Petroleum Employee's Union. It is nobody's case that the petitioners as members of PEU alone have been transferred. On the other hand, the admitted premise is the PWU had reportedly acceded to the transfer policy. The petitioners cannot, therefore, attack the issue of transfer through the writ petition. If there was an element of unfair labour practice, it could be canvassed only through the adjudicatary mechanism provided under the Industrial Disputes Act and not through a writ petition. The other contention on C.W.P. No.9205 of 2009 -8- behalf of the petitioners is in the context of how even during the pendency of proceedings before the Conciliation Officer, the management decided to go ahead with its decision to transfer the workmen, violating the procedure laid down under Section 33 of the Industrial Disputes Act. The learned Senior Counsel appearing for the management would seek a telling answer to the petitioners' claim by reference to Section 33-A of the Industrial Disputes Act, which reads as follows: "33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceeding- Where an employer contravenes the provisions of Section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal] any employee aggrieved by such contravention, may make a complaint in writing, [in prescribed manner;- (a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and (b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly. 8. The contention of the learned Senior Counsel was that there was a statutory remedy available for the workmen in case of violation of Section 33 and the workmen cannot seek for assistance of this Court in a writ petition when an effective alternative remedy was available under the provisions of Industrial C.W.P. No.9205 of 2009 -9- Disputes Act itself. This contention is not tenable for the reason that Section 33-A of the Industrial Disputes Act could be invoked only if the proceedings had been pending before the Conciliation Officer. The terminus quo for the proceeding was the dispatch of failure report and thereafter a petition under Section 33A of the Industrial Disputes Act would not be maintainable at all. This proposition finds judicial expression through the decision in BPL Ltd. Vs. Sudhalkar (2004) 7 SCC 219, where the Hon'ble Supreme Court has held that if there is no proceeding pending at the time when change of service condition is made, a complaint is not maintainable. Therefore, the workmen shall not be able to have any relief under Section 33-A of the Industrial Disputes Act. 9. However, I am still of the view that even the objection of the petitioners that the decision of the management to transfer the workmen is bad, even assuming that the proceedings were pending under Section 33 of the Industrial Disputes Act is equally without substance. The relevant provision under Section 33(1) reads as follows: "33.Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings-(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceedings before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall- (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or C.W.P. No.9205 of 2009 -10- otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending." The interdict contained in the above section is only as regards alteration in the conditions of service, immediately before the commencement of the proceeding. An order of transfer is not a specie of 'condition of service' contemplated under Section 9A of the Industrial Disputes Act and enumerated in Schedule IV of the Industrial Disputes Act. That transfer is itself not a 'condition of service' to be interdicted by reference to Section 33 has been laid down in State Bank of India Staff Registered Congress, Chandigarh Vs. Union of India 1992 LIC 1062; K. Devender Reddy and others Vs. Singareni Collieries Company Ltd. 1999 (1) LLN 149. The contention against the action of the management on the above ground of violation of Section 33 of the Industrial Disputes Act is, therefore, untenable. 10. It is too fundamental a proposition that the Court will be loath to interfere with orders of transfer, unless it is shown to be violative of the terms of contract or when the decision is afflicted with mala fides. No imputation of mala fides has been made in the writ petition and the whole argument stays confined to the so- called discriminatory character of the management's ways in choosing to confer only with one union to the exclusion of another. Since issue whether the PEU could be discarded or ignored and whether the union was entitled to obtain a recognition is very much an issue which had been identified as a point of dispute before the Conciliation Officer, that issue could not be C.W.P. No.9205 of 2009 -11- decided in the present case where the union itself is not a party. It cannot be canvassed by individual petitioners by the only fact that they are members of the said union. The affected party would be the only union itself and in its absence, the petitioners cannot complain of infraction of rights to the union. 11. In my view, the petitioners shall not be entitled to any reliefs in the writ petition. The petitioners shall have appropriate reliefs only under the provisions of the Industrial Disputes Act before the forum constituted under the same. The writ petition for the reliefs claimed in the petition are untenable and it is accordingly dismissed. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE September 18, 2009 Pankaj*