KOSHI PROJECT WORKERS ASSOCIATION Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ petition the petitioner Nos. 4 to 37 who are workmen of Water Resources Department of the State Government seek quashing of their transfer orders (Annexures 19, 20, 21, 22, 23, 24, 36, 37, 38, 39, 41 and 42) issued by the respondents-employer in between June 28, 1993 and September 9, 1994. The quashing is sought on the ground that they are office bearers of one or the other of the three Associations (Petitioner Nos. 1, 2 and 3) and the impugned orders are in violation of the tripartite agreement dated November 28, 1994 (Annexure 1) having statutory force and ultra vires the provisions of the Industrial Disputes Act, 1947 (hereinafter 'the Act'). The petitioners also pray for issue of mandamus for payment of their salary and direction to the respondents to discharge their duties and obligations under the Act.

(2.) Only such of the facts as are necessary to resolve the controversy need be noticed. Petitioner Nos. 4 to 37 are holding non-gazetted posts, such as, Accounts Clerk, Correspondence Clerk, Store Keeper, Typist, Steno Typist, Moharrir and Clerks in the field offices of the Water Resources Department (previously Irrigation Department) of the Government of Bihar (hereinafter referred to as the 'Department'). The Secretary to the Government and the Chief Engineer and other officials of the Department are Respondent Nos. 2 to 8. The Petitioner Nos. 4 to 16 claimed to be the office bearers of Gandak Yojna Karamchari Kalyan Sangh (Petitioner No. 2) with Petitioner Nos. 4, 5, 6 and 7 being the Vice President, General Secretary, Joint Secretary and Treasurer respectively and the rest being members of the Central Executive Committee. Petitioner Nos. 17 to 29 are said to be office bearers of Koshi Project Workers Association (Petitioner No. 1) with Petitioner Nos. 17, 18 and 19 being its Vice President, Secretary and Treasurer, respectively and likewise Petitioner Nos. 30 to 37 are office bearers of the Bihar Rajya Nadi Ghati Pariyojna Karamchari Sangh (Petitioner No. 3) with Petitioner Nos. 30 and 31 as its Vice President and Petitioner No. 32 its Central Executive Committee. All the three petitioners, Association are registered under the Indian Trade Unions Act, 1926 and under Section 2B of the said Act office bearer includes any member of the Executive Committee thereof. The petitioner-Association Nos. 1 and 2 are also recognised unions by the respondent-employer. All the three Associations are members of the Bihar Rajya Ja! Sansadhan Karamchari Federation, Patna, (hereinafter the 'Federation') with effect from November 7, 1993.

(3.) Some of the petitioners who were office bearers of the three unions who were transferred by the respondent employer in violation of the State Government policy not to transfer the office bearers of the unions raised a dispute on the issue of their transfers through their respective unions. Thereafter Respondent Nos. 2 and 3 employer stopped payment of monthly salary of all the concerned petitioners (Nos. 6, 7, 10, 11, 15, 18, 19, 23, 24, 25, 26, 27, 28, 29, 30 and 32) after their transfer in 1993. The three unions (Petitioner Nos. 1, 2 and 3) and the Federation raised an industrial dispute for stoppage of transfer of the office bearers and for cancellation of the transfers already made. They served notice that in case of non-fulfilment of demand of the workmen of the department, they will resort to strike with effect from February 15, 1994 through four separate demand-cum-strike notices all dated January 7, 1994. (Annexures 30, 31, 32 and 33). The Commissioner of Labour, Government of Bihar (Respondent No. 10) who is Conciliation Officer under the provisions of the Industrial Disputes Act, 1947, initiated conciliation proceedings in respect of the industrial dispute. In view of the on going discussion in between the employer and the Trade Unions representatives, the Unions on the request of the Labour Commissioner postponed their proposed strike with effect from February 15, 1994. While the conciliation proceedings were pending the respondent-employer (Respondent Nos. 4, 5 and 7) transferred petitioner Nos. 4, 5, 8, 9, 12, 13, 14 and 16, the office bearers of petitioner-Association No. 2 and petitioner No. 31 office bearer of petitioner-Association No. 3. The three unions submitted complaint against respondents-employer 2 and 3 before the Labour Commissioner cum-Conciliation Officer that the transfer of the office bearers during the pendency of the conciliation proceedings was violative of the provisions of Section 33 of the Act and demanded their cancellation. The Labour Commissioner requested the Respondent Nos. 4 and 7 to show cause by his notice (Annexure 40) as to why legal action be not taken against them for violating the above provisions of the Act. Ignoring the show cause as also the fact that the transfer of office bearers of the Union was a subject matter of Industrial Disputes, the Special Officer-cum-Deputy Secretary of the department (Respondent No. 7) transferred Petitioner No. 17 office bearer of petitioner--Association No. 1 and Petitioner Nos. 33, 34, 35, 36 and 37 office bearers of petitioner-Association No. 3 by orders dated May 4, 1994 and September 9, 1994 (Annexures 41 and 42). Petitioner-Association No. 1 submitted complaint to the Labour Commissioner against the transfer of office bearers of the Union made in September 1994 by letter dated September 22, 1994 (Annexure 43). Meanwhile the conciliation proceeding continued and in the proceedings held on November 29, 1994 by the Labour Commissioner-cum-Conciliation Officer a tripartite settlement (Annexure 1) was arrived at under Section 18(3) of the Act in between the management of the Water Resources Department, Government of Bihar (Respondent Nos. 2, 4, & 5) and all the Trade Unions (Petitioner Nos. 1, 2 and 3) and the Federation. The petitioners contend that as per Clauses 1 and 2 of the Tripartite agreement (Annexure 1) the transfer order of the petitioners (serial Nos. 4 to 37) are required to be cancelled by Respondent Nos. 3, 5, 6 and 7 -- employer. On the failure of the respondents to do so the Federation made a complaint to the Labour Commissioner who requested the Respondent No. 2 --employer to implement the agreement without any further delay saying that the failure to implement the agreement is punishable as an offence under Section 29 of the Act. A copy of the letter dated May 2, 1995 of the Labour Commissioner is Annexure 47. Respondent No. 7 despite all this issued a press note dated July 4, 1995 (Annexure 48) directing some of the petitioners to report to their place of postings threatening to terminate their services if they did not do so. Petitioner Nos. 7, 20, 22 and 33 subsequently joined their new place of postings out of fear of termination of their services.