@JUDGMENTTAG-ORDER
A. Kulasekaran, J.@mdashBy consent of counsel on either side, the writ petitions are taken up for final disposal and common argument is
advanced in both the writ petitions, hence common order is passed.
2. The prayer in W.P. No. 5898 of 2004 is for a Writ of Declaration to declare that portion of the notice of the first respondent dated 2nd March
2004 under which the first respondent Management is requiring its workmen listed in the Annexure hereto to report at Limbasi, Gujarat to work
under the third respondent to be illegal and unenforceable and the consequent individual orders of transfers issued to the members of the Petitioner
Union, specimen of which dated 2nd March 2004 has been issued to the Petitioner to be illegal, void and unenforceable and amounting to unfair
labour practice and direct the respondent Management to permit the said workman to continue at Work at Hosur Plant forthwith on the lifting of
the lockout.
3. WP No. 7485 of 2004 has been filed praying for a Writ of Mandamus directing the second respondent to issue the conciliation failure report
with regard to the dispute about the legality of the lock out and wage dispute between the petitioner and the first respondent and consequently
direct the third respondent to refer the dispute for adjudication within such stipulated time as deemed fit and proper by this Court and further direct
the said respondent namely Government of Tamil Nadu to take action on the complaint of unfair labour practice dated 09-10-2003 against the first
respondent and authorise the petitioner to prosecute the first respondent.
4. The parties are hereinafter referred to as per status in W.P. No. 5898 of 2004. The petitioners in both the writ petitions are one and the same
trade union. The first respondent is running a factory at No. 46, SIPCOT Industrial Complex, Hosur, Tamil Nadu where the members of the
petitioners union are employed. The petitioner and the first respondent entered into a wage settlement on 10-09-1999 for a period of three years,
which expired on 04-08-2002. It is stated that the first respondent has been removing production machinery from Hosur Plant to Pondicherry and
Karnataka Plant gradually after the wage settlement. The first respondent had applied for permission for layoff u/s 25M of the Industrial Disputes
Act which was rejected on 17-10-2000. In the year 2000, there was a threat of retrenchment and closure, which necessitated the petitioner Union
to file WP No. 13787 of 2000 before this Court which was dismissed on 08-01-2003 on the ground that writ petition was filed on mere
apprehension, hence the writ petition cannot be entertained. There is a provision in certified standing orders of the first respondent company that
the employees are liable to be transferred throughout India and the petitioner Union also challenged the portion of the said certified Standing
Orders which is pending before this Court. On 03-09-2003, lock out was imposed by the first respondent Management which was lifted by the
impugned notice dated 2nd March 2004. In and by the said notice, the workmen were directed to report at Limbasi, Gujarat on or before 22-03-
2004, which is challenged in WP No. 5898 of 2004.
5. A charter of demands with regard to wage dispute was raised by the petitioners union on 21-08-2002 which is pending for conciliation. It is
stated that petitioners union submitted a memorandum dated 21-08-2002 to the Commissioner of Labour raising the dispute of wage and lockout.
The Joint Commissioner of Labour, without any request from the petitioners union seeking to include the issue of transfer of workmen to Limbasi in
the failure report which was not in the charter of demand dated 21-08-2002, hence WP No. 7485 of 2004 is filed to direct the joint
Commissioner of Labour to issue conciliation failure report with regard to the dispute about the legality of the lock out and wage dispute and
consequently direct the Government of Tamil Nadu to refer the dispute for adjudication within the said period.
6. Mr. Prakash, learned counsel appearing for the petitioners submitted that the Management, taking advantage of the clauses available in the
certified standing order that the workmen are liable for transfer to any department or section or establishment or to any other place of business
therein, transfer is made to work under GE Lighting India Private Limited, which is a different entity. In support of his contention, the learned
counsel pointed out the relevant passage in the impugned notice that ""...in the interregnum, on and with effect from 01-01-2004, GE Consumer and
GE Industrial Systems has been merged globally with a view to get closer to the customer, utilize our resources and infrastructure better and
thereby achieve competitive edge. Consequently in India, GE power controls India (P) Limited and GE Lighting India (P) Limited comes under
one Management..... As a result of the aforesaid decision, all the workmen of the Hosur factory have to be relocated to the new manufacturing
facility of the company at Limbasi in Gujarat."" On the very same day, i.e., 02-03-2004, the Management also sent transfer orders individually to
the workmen informing certain relocation benefits with effect from 03-03-2004, but except 10 workers 107 workers are not willing to join duty at
Limbasi. It is argued by the learned counsel that in the absence of a merger between the first respondent Management and GE Lighting India
Private Limited in accordance with the provisions of Indian Companies Act, it is not open to the first respondent Management to transfer the
workers to GE Lighting India Private Limited; that the transfer amounts to unfair labour practice as defined in Serial 7 of Vth Schedule to the
Industrial Disputes Act and is prohibited u/s 25T of the Act; that the complaint of unfair labour practice is pending before the Government of Tamil
Nadu, while so, the decision of the first respondent amounts to closure of factory in Tamil Nadu and cannot be treated as a case of transfer; that
the failure to adhere to the conditions prescribed u/s 25(O) of the Act violates the impugned decision, which is a flagrant violation of the provisions
of the Industrial Disputes Act and prayed for allowing of both the writ petitions.
7. Mr. Prakash, learned counsel appearing for the petitioner relied on the following decisions in support of his case:-
i) (Susmriti Das and others Vs. Basumati Corporation Limited) (No.87/1992 (Matter No.2388/1992) wherein a Division Bench of the Calcutta
High Court, held in para 39 as follows:-
39. .....We cannot persuade ourselves to agree with the submissions of the respondent that only steps have been taken to open a new department
at Siliguri, even though the management remains the same and it is same establishment that covers both the units, one at Calcutta and the other at
Siliguri. The learned trial Judge had observed in his interpretation of the definition of the ''department'' that it is so comprehensive as to include both
the Calcutta as well as the Siliguri units to be a part and parcel of the one and the same comprehensive whole. The opening of the unit of Siliguri
does not mean the opening of a new department at Siliguri but also opening of another separate establishment at Siliguri and that being so,
paragraph 7 of the Standing Order does not permit the nature of the transfer impugned. It cannot be held in such circumstances that the service
conditions are quite sufficient for the management to pass the impugned orders of transfer asking the writ petitioners to join at Siliguri. We,
therefore, set aside the order of the learned trial Judge impugned, quash the orders of transfer under challenge and direct the respondents
authorities to proceed in accordance with Law.
In this case, the Division Bench of the Calcutta High Court held that transfer of employees from Calcutta to Siliguri, the new establishment and the
certified standing orders does not permit the same.
ii) (Jawaharlal Nehru University and Dr. K.S. Jawatkar and others) in Civil Appeal No. 2948/1984 dated 12-05-1989, the Honourable Supreme
Court held in Para-7 as follows:-
7. ...The contract of service entered into by the respondent was a contract with the appellant university and no law can convert that contract into a
contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject
to the respondent''s consent. When the Manipur University Act provides for the transfer of the services of the staff working at the Centre of Post-
graduate studies, Imphal to employment in the Manipur University, it must be construed as a provision enabling such transfer of employment but
only on the assumption that the employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not
shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget; that must be regarded as
proceeding from an erroneous conception of the status of the respondent. The position in Law is clear, that no employee can be transferred,
without his consent, from one employer to another. The consent may be express or implied. We do not find it necessary to refer to any case law in
support of this conclusion.
In this case, the Honourable Supreme Court held that no employee can be transferred, without his consent, from one employer to another. The
consent may be express or implied.
iii) (Pyarchand Kesarimal Porwal Bidi Factory Vs. Omkar Laxman Thenge and others) in Civil Appeal No. 793 of 1966 dated 27 September
1968 wherein the Honourable Supreme Court held in para- 8 and 9 as follows:-
8. A contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected
by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of
service by mutual consent and to make a new contract between the employee and the third party....
9. Such being the position in law, it is of the utmost importance in the present case that the appellants at no time took the plea that the contract of
employment with the factory was ever terminated or that the respondents gave his consent, express or implied, to his contract of service being
transferred to the head office, or that there was a fresh contract of employment so brought about between him and the head office. Unless,
therefore, it is held from the circumstance relied upon by Sri Phadke that there was a transfer of the contract of service or that respondent 1 gave
his consent, express or implied, to such a transfer, respondent 1 would continue to be the servant of the factory....
In this case, the Honourable Supreme Court held that the workmen originally employed in the factory transferred to Head Office, both are treated
as separate entities for all purposes and in the absence of termination from service from the factory, the Head Office cannot impose punishment.
The contract of employment could not be transferred by the employer except with express or implied consent of the employee.
8. Mr. A.L. Somayaji, learned Senior counsel appearing for the respondents/Management submits that the transfer of the workmen to Limbasi,
Gujarat is to work only under the first respondent Management, while so the averment that the transfer is to work under GE Lighting India Private
Limited is factually incorrect; that the discontinuance of manufacturing activities at Hosur not amount to closure as defined u/s 2(cc) of the Industrial
Disputes Act, hence the Management need not follow the mandatory provisions of Section 25(O) of the Act; termination of the services of the
workers alone amounts to closure and not the transfer from one unit to another unit as per the certified standing orders; that the writ petition is not
maintainable when the dispute is an industrial dispute and Article 226 of the Constitution of India cannot be invoked and prayed for dismissal of the
writ petitions.
9. Mr. A.L. Somayaji, learned Senior counsel appearing for the respondents Management relied on the following decisions in support of his
contention:-
i) (Hindustan Lever Employees'' Union Vs. State of Maharashtra and others) 1990 I LLJ 90 wherein a learned Single Judge of the Bombay High
Court, held in Para-3 as follows:-
3. In my judgment, there is no merit in the aforesaid contentions. Merely because the second respondent has chosen to discontinue the
manufacture of one of its products, it cannot be held that it has closed down a part of its undertaking. The second respondent is multi- product
manufacturing company. It manufactures various products in its Sewri factory. Under clause 8 of the Standing Orders confirmed by the Industrial
Court, the Management has been given authority to transfer an employee from one department to another or from one shift to another. This is one
of the terms and conditions of service of the employees. I am not impressed by the contention of Mr. Singhvi that a closure which is contemplated
u/s 25-O need not be related to the retrenchment of workers....
In this case, the learned single Judge of the Bombay High Court held that mere discontinuance of manufacturing of one of the products not amount
to closure of a part of the undertaking. In Section 25-O, there is no specific reference to the retrenchment of workmen, having regard to the
scheme of the Act and the other provisions in Section 25-O it will have to be held that it is only when a closure of an undertaking brings about
retrenchment of workmen that the provisions of Section 25-O will apply.
ii) (Fertilizer Corporation of India Vs. Hindustan Fertilizer Corporation Limited and another) 1992 LAB I.C. 991 wherein in para-8 it was held
thus:-
8. Simply because the word closure has been used in Annexures A & B, it cannot be assumed that Corporation''s action in this behalf, amounted
to closure as defined u/s 2(cc) of the said Act. It has been argued on behalf of the Corporation that closure a held in General Labour Union (Red
Flag) Bombay Vs. B.V. Chavan and Others, implies closing of industrial activity as a consequence of which workmen are rendered jobless. Shri
Naolekar drew our attention to the form in which the employer is required u/s 25-O of the said Act to apply for permission to the appropriate
Government which requires information of the number of employees being thrown out of job to be included in the proforma. On this basis he
argued that since the Corporation had decided to accommodate the employee of its marketing unit in M.P. in its offices outside M.P. and such a
course was open to the Corporation in view of the clear condition in their appointment orders, their transfer is the result of shifting of the M.P. unit
to other places to avoid the harsh consequences of retrenchment and does not amount to closure u/s 2(cc) of the said Act. The bonafides of the
Corporation are made further clear from the fact that it offered to accommodate the remaining 22 employees in the adjoining State of U.P.
Unfortunately, this offer was not accepted by the petitioner. We are therefore, satisfied that in the facts and circumstances of the case the mass
transfers of its employees vide Annexure-K is not the result of the closure of M.P. Unit and therefore the Corporation was under no obligation to
have followed the procedure prescribed u/s 25-O of the said Act before issuing the impugned order.
In this case, the division bench of Madhya Pradesh High Court held that shifting of marketing division and consequent mass transfer of employees
to other State places an important service condition of transfer and seniority also protected as such shifting not amount to closure and procedure
u/s 25-O of the Act not required.
iii) U.P. State Bridge Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh, wherein the Honourable Supreme Court in
para 11 held thus:-
11. We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent- Union at all. The dispute was an
industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well as the UPIDA, 1947. The rights and obligations sought to be
enforced by the respondent-Union in the writ petition are those created by the Industrial Disputes Act. In The Premier Automobiles Limited V.
Kemlekar Shantaram Wadke, it was held that when the dispute relates to the enforcement of a right or an obligation created under the Act, then
the only remedy available to the claimant is to get adjudicated under the Act. This was because the Industrial Disputes Act was made to provide
.....a speedy inexpensive and effective forum for resolution of disputes arising between workmen and their employers. The idea has been to ensure
that the workmen do not get caught in the labyrinth of civil courts with their layers upon layers of appeals and revisions and the elaborate
procedural laws, which the workmen can ill afford. The procedure followed by civil courts, it was thought, would not facilitate a prompt and
effective disposal of these disputes. As against this, the Courts and tribunals created by the Industrial Disputes Act are not shackled by these
procedural laws nor is their award subject to any appeals or revisions. Because of their informality, the workmen and their representatives can
themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just and appropriate. They can even
substitute the punishment in many cases. They can make and re-make the contracts, settlement, wage structures and what not. Their awards are no
doubt amenable to jurisdiction of the High Court under Article 226 as also to the jurisdiction of this Court under Article 32, but they are
extraordinary remedies subject to several self-imposed constraints. It is, therefore, always in the interest of the workmen that disputes concerning
them are adjudicated in the forums created by the Act and not in the civil Court. That is the entire policy underlying the vast array of enactments
concerning workmen. This legislative policy and intendment should necessarily weigh with the Courts in interpreting these enactments and the
disputes arising under them.
In this case, the Hon''ble Supreme Court held that when the dispute relates to the enforcement of a right or obligation created under the Act, then
the only remedy available to the claimant is adjudication under the Act and not under Article 226 of the Constitution of India.
10. Heard the learned counsel on either side and also considered the citations.
11. Arguments were advanced by the learned counsel Mr. V. Prakash that the impugned notice of transfer would amount to closure, as defined u/s
2(cc) of the Industrial Disputes Act, 1947; hence, the provisions of Section 25-O apply and non-compliance of Section 25-O would amount to
unfair labour practice and in any event the transfer is invalid.
12. Per contra, Mr. A.L. Somayaji, learned Senior Counsel appearing for the respondents, would submit that the provisions of Section 25-O
cannot be made applicable to the facts and circumstances of the case, since only when the closure of an undertaking brings about the retrenchment
of workmen, the same can be made applicable. It is also the case of the respondent management that the impugned order is only a shifting of the
industrial undertaking from Hosur to Pondicherry and also Bommachandra (Karnataka), which cannot be deemed to be a closure.
13. A close reading of the impugned notice and the averments made by the petitioner union is required for consideration. The Wage settlement was
entered into between the petitioner union and the management on 10.09.1999 for a period of three years, which expired on 04.08.2002. The
management started removing many of the production machineries from Hosur to Pondicherry and also Bommachandra (Karnataka). Thereafter,
the management has applied for permission u/s 25(M) of the Act, which was rejected on 17.10.2000. It is stated that the management transferred
32 workers to different parts of India, which was challenged in a Writ Petition, but, no interim order was granted, with the result, 22 of them
accepted VRS and workmen were allowed to resume duty in Hosur factory. It is also stated that 86 workers were also sent on VRS. The
remaining workers as on date are 117 in which 10 already joined Limbasi. After expiry of wage settlement, the petitioner union presented a charter
of demands, which is also pending for negotiations. In the year 2000, when there was a threat of retrenchment and closure, the petitioner union
filed W.P.No.13787 of 2000 on 27.07.2000, which was dismissed on 08.01.2003, on the ground that on mere apprehension, the same was filed.
In June, 2003, the management sought to transfer six workers to northern India, which was challenged in separate Writ Petition
Nos.16313,16314,16315,16316,16317 and 16507 of 2003, which is referred to Full Bench. In the place of the said six workmen, some other six
workmen were transferred, which was also challenged in separate Writ Petitions, which is also referred to Full Bench. As against the increase of
workload, this union has filed another Writ Petition No.24145 of 2003, which is also pending. Similarly, as against the engagement of contract
labourers, another Writ Petition No.11584 of 2003 is filed, which is also pending. Thereafter, the management has imposed partial lockout on
03.09.2003, which was lifted on 02.03.2004, in and by the said order of lifting of lockout, the members of the petitioner association were
transferred from Hosur to Limbasi.
14. The first respondent management submitted that though it has declared a partial lockout with effect from 03.09.2003, because of the attitude of
the petitioner, it continued further and lifted on 02.03.2004. With effect from 01.01.2004, GE Industrial System of which the first respondent is a
part and GE Consumer Division merged globally with a view to utilization of resources and infrastructure in a better manner and to achieve a
competitive edge. The factory at Hosur is situated on lease land, for which the first respondent has been paying huge rent of Rs.7.00 lakhs per
month. The products of manufcture at Hosur have to be transferred all the way to the customers in the northern and western region, where the
company has been doing a major portion of business. The third respondent also leased out a portion of the premises to the first respondent, which
will get a locational advantage. The averment that the production machineries were shifted from Hosur to Pondicherry and Bomachandra in
Karnataka is denied. The transfer of some of the workmen was made to meet the exigency. 108 workers accepted VRS and retired from service.
The other allegations, engaging contract labour and unilaterally imposing more workload, are also denied as incorrect. The certified standing order
of the first respondent empowers transfer of the workmen through out India, which has been invoked in this case.
15. In order to weigh two rival contentions, it is necessary to scrutinise the impugned order. It is stated in the impugned order as follows :
In the interregnum on and with effect from 01/01/04, GE Consumer and GE Industrial Systems has been merged globally with a view to get closer
to the customer, utilize our resources and infrastructure better and thereby achieve competitive edge. Consequentially, in India, GE Power Controls
India (P) Ltd. and GE Lighting India (P) Ltd. Comes under one management.
....
The consumer division of GE. has a large manufacturing facility at Limbasi situated at about 65 KMs south of Ahmedabad in Gujarat. By shifting
our manufacturing facility at Hosur to Limbasi, Gujarat the management is of the firm view that the company will get locational advantage and will
better subserve the operations of the company in the near future. Consequently, the Management has decided as a business exigency to shift
theplant and machinery from Hosur to the manufacturing facility at Limbasi in Gujarat. As a result of the shifting of the factory to Limbasi, Gujarat
to the premises owned by Group Company of GE., the company hopes to consolidate its industrial and consumer business to achieve greater
operational efficiency. As a result of the aforesaid decision, all the workmen of the Hosur factory have to be relocated to the new manufacturing
facility of the company at Limbasi in Gujarat.
16. It is stated in the impugned order that GE Consumer and GE Industrial Systems have been merged globally with a view to get closer to the
customer, utilize their resources and infrastructure better and thereby achieve competitive edge. Consequentially, in India, GE Power Controls
India (P) Ltd. i.e, first respondent and GE Lighting India (P) Ltd. i.e., second respondent comes under one management.
17. A separate transfer order was also issued to the individual workmen, wherein also, it is stated that GE Power Controls India (P) Ltd. and GE
Lighting India (P) Ltd. come under one management, requesting the workmen to join at Limbasi.
18. The global merger of GE Consumer and GE Industrial Systems has no legal significance. As far as the workmen of the first respondent are
concerned, the first respondent company is a different and separate entity and GE Lighting India (P) Ltd. is also a separate entity. In the absence of
merger between the first respondent company and third respondent namely GE Lighting India (P) Ltd., it is not open to the first respondent to
transfer the workmen to the third respondent. First and third respondents have stated that the surplus land and building are let out by the third
respondent to the first respondent.
19. I find some substance in the argument of the learned counsel Mr. Prakash that the impugned order is a clear indication that the workers of the
first respondent are transferred to the third respondent and denial in the counter is nothing but an afterthought. Even assuming that Limbasi Unit is
leased out, which can be deemed as opening of another separate establishment and the Certified Standing Order does not permit such transfer. No
relevant certified standing order is produced to justify that the workers liable to be transfered to altogether new establishment. I followed the
decision of a Division Bench of the Calcutta High Court in Susmriti Das and Others Vs. Basumati Corpn. Ltd., . If the workmen come forward to
give consent, the proposed transfer could be permissible, which is not followed in this case.
20. It is seen from the transfer order that the services of workmen are not terminated, on the contrary they have been given certain benefits,
including protection of pay. While so, I am of the considered view that it would not amount to closure and the provisions of Section 25-O are not
required to be followed. However, as mentioned above, the order of transfer is to the effect of directing the workers to join duty at Limbasi, which
is a new establishment. The Standing Order does not permit such a nature of transfer. The impugned order is exfacie violative of certified standing
order. When such apparent error on the face of record, this Court can certainly exercise its power under Article 226 of the Constitution of India.
Hence, I quash the order of transfer and W.P. No. 5898 of 2004 is allowed to the extent indicated above.
21. As far as the prayer in Writ Petition No.7485 of 2004 is concerned, the petitioner seeks a writ of mandamus, to direct the second respondent
to issue Conciliation Failure Report, with regard to the dispute of Wage and Lockout, such prayer cannot be granted since, the said dispute is
pending before the second respondent for quite sometime. I direct the second respondent/Joint Commissioner of Labour (Conciliation), without
any further delay, to investigate into the dispute and all matters affecting the merits and the right and submit his report either way and proceed
further in accordance with Law, within a period of two months from the date of receipt of copy of this order. W.P. No. 7485 of 2004 is disposed
of accordingly. No costs. Consequently, the connected W.P.M. Ps. are closed.
