Case: The Associated Cement Companies Limited Vs. Associated Cement Staff Union

of following management policy. At the prima facie stage the Industrial Court was of the view that no case of malafides has been established. Therefore, at this stage it was not possible to hold that there was a breach of item-3 of Schedule-IV.9.In Item -9 of Schedule-IV the unfair labour practice consists of a breach of a settlement or agreement. Now it is settled law that compliance of mandatory provisions of the Industrial Disputes Act is an implied term of a contract of employment. The question, therefore arises as to whether prima facie there was material before the Industrial Court to show that there was a breach of section 9-A of the Industrial Disputes Act, 1947.10.The conditions of service for which a notice of change is required under section 9-A are spelt out in the fourth schedule Item 11 of the fourth Schedule reads as follows:-"Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, (not occasioned by circumstances over which the employer has no control)."11.Item-11 requires an increase or reduction in the number of persons employed or to be employed in any occupation, department or shift. Now it is a settled position of law that before the provisions of section 9-A are attracted the change which is proposed by the employer must be such as would adversely affect the conditions of service of the workmen. The Supreme Court in Hindustan Lever Ltd. Vs.Ram Mohan Ray and Ors. AIR 1973 Supreme Court 1156 while interpreting Item 11 of Schedule-IV observed that:-"As regards item 11 it was urged that as one department out of three has been abolished,this item applies. Though to bring the matter under this item the workmen are not required to show that there is increase in the workload,it must be remembered that the 4th Schedule relates to conditions of service for change of which notice is to given and Section 9-A requires the employer to give notice under that section to the workmen likely to be affected by such change.The word affected in the circumstances could only refer to the workers being adversely effected and unless it could be shown that the abolition of one department has adversely effected the workers it cannot be brought under item 11." (emphasis supplied)12.Now so far as the complainant workmen are concerned, once it is held that transferability is prima facie an incident of service it is impossible to deduce as to how the Tribunal could surmise that the transferred workmen would be adversely affected by an order of transfer. Apart from this the learned counsel appearing on behalf of the management placed reliance upon (Amrit Banaspati Co.Ltd. Vs. S.Taki Bilgrami and Ors. 1997 (II) LLJ 317) in support of his submissions13.It is not necessary for the Court to express a conclusive view on any aspect of the case since the trial of the complaint is still to take place before the Industrial Court. Prima facie, however, having regard to the judgments of the Supreme Court construing Section 9-A, particularly in Hindustan Lever Ltd. Vs. Ram Mohan Ray and Ors. AIR 1973 Supreme Court 1156 it is not possible to accept the submission that a mere an order of transfer would affect adversely the workmen concerned where transferability is a condition of service.14.While the Industrial Tribunal has jurisdiction to grant interim orders, such orders ought not to be passed as a matter of course unless a prima facie case is made out in regard to the commission of an unfair labour practice. On the findings which the Industrial Court recorded the commission of unfair labour practices could not have been inferred at the interim stage. The finding in regard to the breach of section 9-A is prima facie unsustainable. Consistent with the parameters of the writ jurisdiction under Articles 226 and 227 of the Constitution, the interference of the learned Single Judge in the present case was warranted in order to correct a manifest error on the part of the Industrial Court. So far as the submissions urged on behalf of the respondents are concerned, the mere fact that the management has issued a notice of voluntary retirement on 4/2/2009 at all cement plants in the country would not at the interim stage furnish a ground for interfering with the order of transfer. It is for the management to determine how its work force should be deployed. The reasons indicated by the management, relating to a reduction in the work of the Share Department over a period of time, cannot be regarded as extraneous or colourable, in any event at the interim stage. Reliance was the placed on the evidence adduced on behalf of the management in an earlier complaint of unfair labour practices. Those proceedings arose out of the introduction of the S.A.P. technology by the management. The Industrial Court had injuncted the management from introducing or implementing the S.A.P. system till the disposal of the complaint or until a notice of change was issued under section 9-A.This Court while setting aside the order of Industrial Court by its order dated 3.4.2007 passed in Writ Petition no.1287/2007 directed that the management shall not effect retrenchment of any employee on the ground that the workman is rendered surplus as a result of S.A.P. technology and no workman shall be redeployed or transferred without prior permission of the Industrial Court. It was in the context of the allegations in that complaint that the evidence which was adduced on behalf of the management would have to be read. In any event the evidence in the earlier complaint was adduced some time in August, 2008 while the impugned order was issued much thereafter in the month of January, 2009. The management is entitled to demonstrate at the trial the change in circumstances as of January, 2009. The trial of the complaint is still to take place after evidence is adduced in the complaint on behalf of the workmen.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8.In evaluating the rival contentions of the learned counsel it would be necessary to emphasise that the Industrial Court allowed an application for the grant of interim relief in the complaint of unfair labour practices which arises out of the orders of transfer served by the employer on the employees concerned. Undoubtedly the Industrial Court has jurisdiction to pass interim orders under section 30(2) of the M.R.T.U.and P.U.L.P. Act, 1971. The complaint invokes items 3 and 9 of Schedule IV. Underthe unfair labour practice consists in the transfer of an employeemalafide from one place to another in the guise of following management policy. At the prima facie stage the Industrial Court was of the view that no case of malafides has been established. Therefore, at this stage it was not possible to hold that there was a breach ofIn ItemIV the unfair labour practice consists of a breach of a settlement or agreement. Now it is settled law that compliance of mandatory provisions of the Industrial Disputes Act is an implied term of a contract ofso far as the complainant workmen are concerned, once it is held that transferability is prima facie an incident of service it is impossible to deduce as to how the Tribunal could surmise that the transferred workmen would be adversely affected by an order of transfer. Apart from this the learned counsel appearing on behalf of the management placed reliance upon (Amrit Banaspati Co.Ltd. Vs. S.Taki Bilgrami and Ors. 1997 (II) LLJ 317) in support of his submissions13.It is not necessary for the Court to express a conclusive view on any aspect of the case since the trial of the complaint is still to take place before the Industrial Court. Prima facie, however, having regard to the judgments of the Supreme Court construing Sectionparticularly in Hindustan Lever Ltd. Vs. Ram Mohan Ray and Ors. AIR 1973 Supreme Court 1156 it is not possible to accept the submission that a mere an order of transfer would affect adversely the workmen concerned where transferability is a condition of service.14.While the Industrial Tribunal has jurisdiction to grant interim orders, such orders ought not to be passed as a matter of course unless a prima facie case is made out in regard to the commission of an unfair labour practice. On the findings which the Industrial Court recorded the commission of unfair labour practices could not have been inferred at the interim stage. The finding in regard to the breach of sectionis prima facie unsustainable. Consistent with the parameters of the writ jurisdiction under Articles 226 and 227 of the Constitution, the interference of the learned Single Judge in the present case was warranted in order to correct a manifest error on the part of the Industrial Court. So far as the submissions urged on behalf of the respondents are concerned, the mere fact that the management has issued a notice of voluntary retirement on 4/2/2009 at all cement plants in the country would not at the interim stage furnish a ground for interfering with the order of transfer. It is for the management to determine how its work force should be deployed. The reasons indicated by the management, relating to a reduction in the work of the Share Department over a period of time, cannot be regarded as extraneous or colourable, in any event at the interimwas the placed on the evidence adduced on behalf of the management in an earlier complaint of unfair labour practices. Those proceedings arose out of the introduction of the S.A.P. technology by the management. The Industrial Court had injuncted the management from introducing or implementing the S.A.P. system till the disposal of the complaint or until a notice of change was issued under sectionCourt while setting aside the order of Industrial Court by its order dated 3.4.2007 passed in Writ Petition no.1287/2007 directed that the management shall not effect retrenchment of any employee on the ground that the workman is rendered surplus as a result of S.A.P. technology and no workman shall be redeployed or transferred without prior permission of the Industrial Court. It was in the context of the allegations in that complaint that the evidence which was adduced on behalf of the management would have to be read. In any event the evidence in the earlier complaint was adduced some time in August, 2008 while the impugned order was issued much thereafter in the month of January, 2009. The management is entitled to demonstrate at the trial the change in circumstances as of January, 2009. The trial of the complaint is still to take place after evidence is adduced in the complaint on behalf of the workmen.