Government of West Bengallabour Department

I.R. BranchN.S. Buildings, iz" Floor,1, K.S.Roy Road, Kol-1

.. No.Labr'/997(LC-IR)IR/llL-36/12

Date: 16.10.2017

ORDERWHEREAS under the Government of West Bengal, Labour Department Order No. 517-IR

dated 31.05.12 the Industrial Dispute between M/s. Writer Safeguard Pvt. Ltd., 86, Monohar Pukur Road,Kolkata-700029 and their workmen represented by Writer Safeguard Permanent Workers' Union, 1/26,Sucheta Nagar, P.O.-Haltu, Kol-700078 regarding the issue mentioned in the said order, being a matterspecified in the Third Schedule to the Industrial Dispute Act, 1947{14 of 1947), was referred for adjudicationto the Judge, First Industrial Tribunal, West Bengal.

AND WHEREAS, the Judge of the said First Industrial Tribunal, West Bengal, has submitted to theState Government its award on the said Industrial Dispute.

NOW, THEREFORE, in pursuance of the provisions of Section 17 of the Industrial Dispute Act, 1947(14 of 1947), the Governor is pleased hereby to publish the said award as shown in the Annexure her~

ANNEXURE(Attached herewith)

By Order of the Governor

Assistant Secretary to theGovernment of West Bengal.

No.Labr./997 /1{5 )/(lC-IR) Date: 16.10.2017

l.

2.3.

Copywith a copy of the Award forwarded for information & necessary action to :­M/s. Writer Safeguard Pvt. Ltd., 86, Monohar Pukur Road, Kolkata-700029.

The Secretary, Writer Safeguard Permanent Workers' Union, 1/26 Sucheta Nagar, P.O.-Haltu, Kol-78.

The Assistant Labour Commissioner, West Bengal in-Charge, Labour Gazette,

The Labour Commissioner, W.B. New Secretariat Buildings, {11th Floor),1, K.S. ~oy Road, Kol-LThe O.S.D., IT Cell, Labour Department, with the request to cast the Award in the Deptt.'s website.

~ \6'eIOT,4.-Assistant Secretary to the

Government of West Bengal

No.Labr./997/2(2)/(lC-IR . Date: 16.10.2017

Copy forwarded fo1. The Judge, First Indu trial Tribunal, West Bengal with reference to his Memo

No. 1486-L.T. dated 14. 9.2017.

2. The Joint Labour Commissi er (Statistics), West Bengal, 6, Church Lane, Kol-1.

Assistant Secretary to theGovernment of West Bengal

Sabita/IR/03052017

In the matter of an industrial dispute between Mis. Writer Safeguard Pvt. Ltd., 86,Monohar Pukur Road, Kolkata-700 029 and their workmen represented by WriterSafeguard Permanent Workers Union, 1126, Sucheta Nagar, P.O. Haltu, Kolkata-700078.

(Case No. VIII-25/2012)---------------------------------------------------------------------------------------------------

BEFORE THE FIRST INDUSTRIAL TRIBUNAL: WEST BENGAL.

PRESENT

SHRI TANMOY GUPTA, JUDGE,FIRST INDUSTRIAL TRIBUNAL, KOLKATA.

AWARD

The instant case arose out of an order of reference vide G.O.No.517-1.R./IR/11L-36/12, dated 31.05.2012 by which an industrial dispute betweenMis. Writer Safeguard Pvt. Ltd., 86, Monohar Pukur Road, Kolkata-700 029 andtheir workmen represented by Writer Safeguard Permanent Workers Union, 1126,Sucheta Nagar, P.O. HaItu, Kolkata-700 078 has been referred to this Tribunal foradjudication.

The issues specified in the order of reference for adjudication are as follows:

ISS U E (S)

l. Whether the orders of transfer of (i) Shri Palas Bayen, (ii) Shri Tarak Roy,(iii) Shri Soumitra Mondal, (iv) Shri Dipankar Dutta, (v) Shri MadhusudanSen, (vi) Shri Swapan Das, (vii) Shri Gobinda Halder and (viii) ShriSoumen Mondal by the management of Mis. Writer Safeguard Pvt. Ltd. arecases of victimisation.

2. What relief, if any, are these workers entitled to?

The case as made out by the union for the workmen namely, Palas Bayen

and 7 others in the claim statement is that the company namely, Mis. Writer

Safeguard Pvt. Ltd. is a leading company engaging in providing cash in

A™ counters of different banks with the help of sincere and diligent workmen

who are very low paid and deprived of various benefits to which they are entitled.

The company is now operating its function from 86, Monohar Pukur Road,

Kolkata-700 029 and its registered office is at Winter House, CTS 1377/1378,

Church Road, Andheri - Kurla Road, Maron, Andheri (E), Mumbai -400 059. The

company in spite of being monopoly organisation in the said business do not have

any regard to the laws of the land and indulges in unfair labour practices. The

company treats their workers as slaves and victimises them in case they raise their

voices against the atrocities of the management. The company had no pay scale and

no fixed working hours. The company is also defaulter in depositing Provident

- 2 -

Fund dues etc. Due to continuous oppression and atrocities of the management, the

workers decided to form a union for collective bargaining under the leadership of

workers named in the order of reference. The union was formed on 14.08.2011 and

applied for registration of the uruon to the Labour Department,

Govt. of West Bengal. The workers who took active part in the formation of the

union became an eye sore to the management and the management started to

victimise them who became its members so that the formation of the union becomes

a farce. The company after having knowledge of the formation of the union

immediately tried to transfer the services of Palash Bayen, an Executive Committee

member of the union to Kerala. The union and all workmen protested against such

illegal transfer on 01.10.2011 and the management had to sit with the union

members and signed an agreement in white paper wherein transfer of Palash Bayen

was withdrawn. The members of the union held bipartite meeting with the

management on different dates and on different issues. The union deposited challan

for registration fee for the union on 21.12.2011 and the company came to know of

the same and immediately decided to victimise the leading members of the union

and consequent to that, the transfer of services of 8 workmen vide a letter dt.

23.12.2011 illegally as a measure of punishment for formation of union and for

involving the trade union activities. The company sent a letter dt. 02.01.2012 along

with the said letter dt. 23.12.2011 relating to transfer of service. The union by a

letter dt. 05.01.2012 to the company protested against such illegal transfer as a

measure of victimisation and requested the management to withdraw the said

transfer of 8 workmen. The company also refused the said 8 workmen from their

duties since 24.12.2011 and the union lodged a complaint to the local police station.

Then the union also wrote a letter dt. 02.01.2012 to the D.L.C., regarding illegal

and malafide transfer and sought his intervention. By a letter dt. 17.02.2012 the

union and those workmen individually sent a letter to the management but the

management refused employment. Again on 16.02.2012 to which the company sent

its reply by a letter dt. 24.02.2012. the company illegally sent cash in unfit vehicles

having no permit and the union by its letter dt. 18.01.2012 to the Director of Motor

.~/"',. Vehicles lodged a complaint to that effect. The entire matter was brought to the

/~/:~ ,,' ~\~~otIce of the conciliation officer namely, D.L.C. for conciliation, but the

'l ',"".1, ',' f',C~,lnciliationproceeding failed due to adamant and uncompromising attitude of the; :J "." l fI. n" ~~ ·~~rrj,: ~,nagement and the matter was referred to this Tribunal for adjudication. Those 8, , ' '\\ ,;/<IJ?t, • «;r:\. "\._ ~lli:, ./ .:':"10rkmen who are transferred illegally are passing their days in great hardship as

'\~~~,,;~~, ~~~~~'they have no earning and unemployed. The company neither suspended them nor~~~

, . ,__ initiated any disciplinary action against them as yet. The company made such

alleged order of transfer as a measure of punishment with a malafide intention to

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rvictimise the workmen for their trade union activities. Accordingly, the union has

prayed for an award holding that the transfer of those 8 workmen are cases of

victimisation, illegal and malafide with a direction to the company to pay back

wages and other consequential reliefs.

The company has contested the case by filing written statement in two parts

namely, Part-I and Part-II. In Part-I, it is contented that the order of reference is

not maintainable either in law or in fact; that the union has no locus standi to raise

industrial dispute regarding transfer of 8 workmen; that the order of reference as

made by the government is in total non-application of mind and as such, notsustainable in the eye of law.

In Part-II, it is contended that the company is dealing with ATMs of various

nationalised and private banks situated at 86, Monohar Pukur Road, Kolkata-700

029 as well as various branches situate at different parts of India namely, Patna,

Giridhi, Ranchi, Deogarh, Ramgarh of lharkhand, Malda, Berhampore etc. the

workmen as named in the order of reference had been transferred to different places

vide letters of transfer all dated 23.12.2011 in terms of their respective appointmentletters.

~~~..;;<1;~;:~~~~~!~l...~~\ The company transferred those 8 employees as per terms and conditions of;':'>'".:l'-'· _(~,.M. ,.~.)' G,.'~.t.Aleirappointment letters dt. 23/.12.2011 and the said transfer is a routine transfersc·-' ~"f~ll:( ~, "t~\~..,t '' ".,·U \\ ~~fcithe same can in no way be construed as victimisation for their trade union" a, 'f~~r£,l' l .~d.tvities as alleged.. '\ ''''''." If "'/1. C> \~. '1'~~:.;,"_"/~'..:~, All the allegations set forth by the union for the workmen in the written\~ '•.)) ~,: . ..-;~. or ~ ...~'~,''':I'

'Y..:.:,:''';: ()~"~~~;lli~~~,"'\1:::;:-'statement have stoutly been denied by the company. It is contended by the company"- f ¥'v~~.~that the transfers of 8 employees are routine transfer in terms of their appointment

letter like other employees. There was no such union and, as such, the question of

victimisation as a measure of punishment does not and cannot arise. There is no

Those workmen without joining their transferred posts were forcibly trying

to disrupt the normal running of the business of the company by squatting and

making dharnas in front of the main entrance gate of the said office, obstructing

egress and ingress of the other employees as well as the management staff and

officials to enter into the said office premises and also were shouting slogans,

inflicting abusive languages and threatening the management officialsf.staffto face

dire consequences if their transfer orders all dated 23.12.2011 are not withdrawn

forthwith and if they are not allowed to join their duties in the said Kolkata office

of the company immediately. There was no such alleged union existing and

operating in the company on the date of transfers of the employees named in the

order of reference and as such, the question of victimisation of the said employees

for their trade union activities as alleged does not arise at all.

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rule or law that no trade union leader andlor member of any trade union cannot be

transferred from one place to other even though there is a provision for transfer as

stipulated in the transfer order which has been accepted by the said employees at

the time of entering in the service of the company.

It is contended further that the company participated in the conciliation

proceeding all through and explained its position before the conciliation officer and

submitted a written comment to that effect before the conciliation officer.

On that score, the company has prayed for an order to the effect that the

transfer order of those workmen is just, legal by holding that the order of referenceis not maintainable.

The present reference has been made to this Tribunal by the government

framing two issues namely, (l) Whether the orders of transfer of (i) Shri Palas

Bayen, (ii) Shri Tarak Roy, (iii) Shri Soumitra Mondal, (iv) Shri Dipankar Dutta,

(v) Shri Madhusudan Sen, (vi) Shri Swapan Das, (vii) Shri Gobinda Halder and

(viii) Shri Soumen Mondal by the management of Mis. Writer Safeguard Pvt. Ltd.

are cases of victimisation. (2) What relief, if any, are these workers entitled to foradjudication.

Both parties have led evidences in support of their contentions as made out

in the respective written statement. Let us now decide these issues on the basis of

oral and documentary evidences adduced by the parties as well as from other

attending circumstances.

DECISION WITH REASONS

In support of the case put forward by the union, witness Dipankar Dutta has

been examined as W.W.-l. He has stated that he is working under Writer Safeguard

Pvt. Ltd. since 15.02.2008 as ATM/CIT Operator and his nature of job is to provide

cash in A™ counter and also he has to maintain accounts of the said cash. He has

stated further that no appointment letter was issued by the company in his favour,

but letter of confirmation of his service was duly issued by the company after one

year of service. Then he stated that his last drawn salary was Rs. 6443/-. He stated

,t-"'·',l:::~~;~~:~;"further that although the company used to show Rs. 11,000/- inclusive of incentive

'.~ .:;,.but the basic used to be shown as Rs. 2,9001-. Provident Fund used to be deducted~..:~ '.::: .,~\ ';J~king into consideration of their salary as Rs. 6,443/-. The aforesaid statement

::

which has come out in evidence-in-chief of the said witness (W.W.-J) has not been

challenged during his cross-examination. That being so, such statement which has

come out from the mouth of the witness as regards his salary and other matter

cannot be disbelieved.

- 5 -

The witness has stated that on 14.08.2011 they have formed their union and

applied for registration of the union to the Labour Department. The witness stated

that as they were subjected to victimisation by the company in different matter and

also as the company did not pay any heed regarding their pay scale and fixation of

working hours, they were prompted to form a union. The witness produce Ext. 1

which is a challan for trade union registration. He has also produced the certificate

of registration dt. 27.12.2011 which has been marked as Ext.2. According to the

witness after the formation of such union, the management transferred Palas Bayen

on 01.10.2011 and at the intervention of the union ultimately the said transfer order

was withheld and there was a bipartite meeting with the management on

15.10.2011,25.10.2011,03.11.2011,11.11.2011, 17.12.2011 and 21.12.2011 on

different issues in between the management and the union. The copies of said

minutes have been marked as Ext. 3 collectively. The witness then stated that on

24.12.2011 they were not allowed to join their duties by the management and the

police personnel who was standing in the gate told them that they have all being

transferred and the same was duly supported by the management. He has stated

further that on 02.01.2012 he received the letter of transfer sent by the management

and the date of the said letter was 23.12.2011. The said transfer order was issued

against him and 7 others namely, Shri Palas Bayen, Shri Tarak Roy, Shri Soumitra

Mondal, Shri Madhusudan Sen, Shri Swapan Das, Shri Gobinda Halder and Shri

Soumen Mondal. The witness filed six transfer letters excepting the transfer order

of Gobinda Halder and Palas Bayen and those have been marked as Ext. 4 to 4/5.

He stated that Gobindan Halder got no transfer order in his hand and the witness

failed to collect the transfer order of Palas Bayen. The witness also produced copy

of letter dt. 02.01.2012 marked as Ext. 5 series. He has then stated that after

registration of their union, they duly intimated the company giving details of the

respective posts of the member of the executive committee by a letter dt.27.12.2011 marked as Ext. 6.

Among other documents filed by the witness Exts. 7 series, 8 and 9 series

are the copies of letters issued by the workmen to the Lake police station. Ext. 10. _' ...~~, - ' .: , "~~ is the copy of letter addressed to A.L.C., West Bengal issued by one Sankar- . ~~'~ , " ,<":-:\Chowdhury by the management. Ext. 1011 is a letter dt. 20.01.2012 issued by

v- <, -;toumitra Mondal for Writer Safeguard Permanent Workers Union addressed to the. _.•~t~

" . }isstt. Labour Commissioner Ext. 11 is a letter of complaint lodged with RTO,

F" '" ¢ ;Beltola Road on 18.01.2012 by the union. Ext. 12 is a letter dt. 01.03.2012-. _,.f·~~"1 I"

'. '. :.:I.;!)' .,,:~ t:'l:r.t!..lAI~:'*~'~(::'!,:'''''~f~;':/addressed to the Deputy Labour Commissioner by those 8 workmen. Ext. 13 is a",.~ ... list mentioned therein some persons who are going to be recruited by the

management.

-6-

rThe management, on the other hand, examined one witness namely, C.W.-

1, Sankha Subhra Chowdhury by way of tendering an evidence-in-chief supported

by an affidavit. The said witness has stated that he has been working as Asstt.

Manager (HR) in the company and the employees named in the order of reference

were transferred from Calcutta office to different sites vide letter of transfer all

dated 23.12.2011 in terms of the respective appointment letters. Since the workmen

refused to accept the transfer order, the management sent those letters of transfer

vide registered post with AID to the employees and after receiving the same they

have not joined their respective place of transfer till today. He then stated that the

workmen without joining their place of transfer forcibly trying to disrupt the normal

business of the company by squatting and making dhamas in front of the main

entrance gate and threatened the management with dire consequences. The witness

then stated that for such conduct of the workmen, the management has to obtain the

order u/s. 144 (2) of the Cr. P.C. praying for refraining those workmen from doing

such violent and illegal activities. According to the witness there was no union in

the name of Writer Safeguard Permanent Employees Union on the date when the

transfer order was issued. Those workmen were transferred as per terms and

conditions of their appointment letters so the question of victimisation for their

trade union activities does not arise. The witness relied on some document namely,

copy of confirmation letter of Dipankar Dutta (Ext. A), copy of confirmation letter

of Swapan Das (Ext. B) and the signature of Shri Swapan Das (Ext. B/l) on the

said letter. Ext. A to AI6 are the confirmation letters in respect of six workmen. Ext.

C series are the copies of transfer order dt. 23.12.2011 issued to the workmen. Ext.

D series are copies of company's letter dt. 23.12.2011,24.12.2011,28.04.2012 and

31.12.2011 addressed to the Lake police station. Ext. E is the copy of letter dt.

11.01.2012 issued to the Asstt. Labour Commissioner. Exts. F and F11 are the

copies of the applications u/s. 144 (2) Cr. P. C. filed by thye management on

21.05.2012 and 21.08.2012 against Madhusudan Sen and others. Exts. G and Gil

are the copies ofletter of appointment of Palas Bayen and S. Mondal on 19.02.2010':o~

.. ,:~ .~ and 02.05.2010 respectively. Ext. H series are the 8 copies of letters of reminder.. ". ':" ...~"""

=. " J},~sged to the 8 workmen on 02.01.2012 asking them to join the transfer place.. 'co \\

""

On the basis of the aforesaid oral and documentary evidences as adduced

. \..

, by the parties, let us now consider and decide the issue involved in this case as~. ...'!;mentioned in the order of reference .

From the aforesaid evidences it has become an admitted fact that out of the

aforesaid 8 workmen, 7 were appointed by the management to perform the job of

ATM/CIT Operators excepting Gobinda Halder who was appointed as Driver

(WSG). It is also admitted fact that the company namely, Mis. Writer Safeguard

,.

- 7 -

Pvt. Ltd. confirmed their services vide Ext. A series. The W.W.-l, Dipankar 'Dutta

has stated in his evidence-in-chief that he is working under Mis. Writer Safeguard

Pvt. Ltd. since 15.02.2008 and no appointment letter was issued by the company in

his favour, but the letter of confirmation as to his service was duly issued after one

year. The said statement has not been challenged during the cross-examination.

C.W.-1 while examining himself has produced the letter of appointment in

respect of two said workmen namely, Palas Bayen and S. Mondal dt. 15.02.2010

and 02.05.2010 respectively which have been marked as Exts. G and GIl. The said

witness deposed that the company were in search for copies of appointment letter

of other six employees and as soon as those will be traced out the same will be filed

before this Tribunal. But, actually I find from the materials on record that besides

such G and Gil, the appointment letter in respect of other workmen has not been

filed by the company. On perusal of the said Exts. G and Gil, I find that the one

such letter of appointment in respect of Palas Bayen was dated 19.02.20 10 and in

respect of Soumen Mondal it was dated 02.05.2009. On perusal of those two

exhibits I find that the terms and conditions of those two appointment letters

appears to be identical. C.W.-I has not stated that the appointment letter in respect

of six other workmen were different from that of Exts. G and GIl. So, we can very

well come to a conclusion that all the 8 workmen were appointed with same terms

and conditions as appeared in Exts. G and Gil. However, the date of such

appointment may differ.

From the evidences as adduced by the witnesses of the parties, it is clear

that services of those workmen were confirmed by issuing letters of confirmation.

From Ext. A series as relied upon by the companylmanagement are the letters of

confirmation issued to the workmen with effect from different dates in respect of

the categories mentioned therein. So, from the materials it is very much clear that

after the expiry of one year from the date of appointment of each workman, their

services were confirmed by the management. It can safely be concluded in absence

of any contrary materials that the company obviously confirmed the services of

those workmen as the management was fully satisfied as to the job rendered andperformed by the workmen.

Now, the issues involved in the instant proceeding relates to the transfer of

those 8 workmen in different places by the management. Ext. 4 series are the copies

of transfer orders issued to the workmen by the management all dated 23.12.2011.

C.W.-I has stated in his evidence-in-chief that those transfer orders dt. 23.12.2011

issued in respect of those 8 workmen from the Calcutta office of the company to

other sites is a routine transfer as per administrative policy of the management.

- 8 -

It is argued by the ld. counsel for the company that from the documents and

materials it would be evident that transfer order was passed in respect of8 workmen

which is nothing but a routine transfer as per administrative policy of the

management. In support of his contention ld. counsel has placed reliance on Ext. A

series which are the letters of confirmation issued to those workmen in respect of

their job. It is pointed out that in Clause No. 9(a) it has categorically been mentioned

that the company reserve the right to change job function, duties or place of work

at any time during employment of the workman and/or require the workman to

carry out services for any subsidiary or related company. Accordingly, it is then

argued that workmen by putting their signatures beneath the said confirmation letter

in the last page has accepted the terms and conditions as mentioned in the said letter

of confirmation. Relying upon the same it is argued that in the aforesaid context

neither the workmen nor the union has any right to challenge the said order of

transfer on the ground that such order of transfer are the cases of victimisation. It

is further argued that the date when the orders of transfer were issued at that point

of time there was no existence of any such union.

Ld. counsel appearing for the workmen, on the other hand, argued that there

are enormous materials which are available on record to justify that the

management has made such order of transfer which are nothing but a case of

victimisation. It is argued by him that from the materials it would be evident that

those workmen already formed union and applied to the Labour Department to have

the registration and from Ext. 1 it would be evident that office of the Labour

Commissioner and the Registrar of Trade Union, West Bengal issued a challan on

21.12.2011 (Ext.l ) for registration of a new union in the name of Writer Safeguard

Workers Union and in consequent to such application submitted with the concerned

department of the government, a registration certificate (Ext. 2) was issued in the

name of the said union by Registrar of Trade Union, West Bengal.,..~.".~~

~~S" F\ ,"" r~~h d . id . I' f h h bi d .... b h.;i,,;j.:~~;;~,,,'1.J.1.""c,~,:,"('/,..:~ as state 111 eVI ence-m-c ue t at as t ey were su jecte to vicumisation y t ej',. ,I.;) ." \~_.-J"I""" \;i- "

1/ ,;' (;.~. ~f! '\ ':::..\\company 111 different matters and also as the company did not pay any heed to their1,1(,,, i, "0 ':, "\

j C~ (! : :pay scale, fixation of working hours etc. they were prompted to form a union. Exts.(:;) <,:f;,:,' ~.~~\":~:1 .- '...\~Gl '.~. If'''' " + ;' :

1 and 2 are the challan showing the deposit of requisite fee with the Labour

~<~ .1~:P::;s~:rf:~~:~~~e~:~:sd:.~]e]~~oOnl::::~I~~a~~IO]f:::::~;~:l:i:::t:~evidence of W.W.-l it has come out that after the formation of such union the

Considered the submissions of both sides. Perused the materials. W.W.-I

management transferred Shri Palas Bayen on 01.10.2011 and at the intervention of

the union ultimately the said transfer order was withheld and there were bipartite

meetings with the management on 15.10.2011, 25.10.2011, 03.1l.2011,

-9-

11.11.2011, 17.12.2011 and 21.12.2011 on different issues between the

management and the union. Copies of such minutes of meeting have been marked

as Ext. C collective. During course of cross-examination of the witness, he has

categorically stated that he has filed relevant documents to show that the company

recognised their union and in Ext. 3 collectively will prove that the company has

recognised the union because times without number meetings were held with the

union. However, he has admitted during cross-examination that Ext. 3 collectively

there is no seal of the union and designation of signatories thereon. Be that as it

may during cross-examination of the said witness, the management did not

challenge the authenticity and genueinity of Ext. 3 series. W.W.-I categorically

stated that after being formed the said union the management transferred Palas

Bayen on 01.10.2011 and at the intervention of the union ultimately the said order

was withheld. Such statement has not been specifically challenged during his cross­

examination. On careful perusal of Ext. 3 collectively r find that on different dates

some discussions were held between the workmen and the management and as it

appears that there are signatures of those workmen on some papers and also the

signatures of one Amlan Adhikary, Sankha Chowdhury and another. It is pointed

out by the ld. counsel for the union that Amlan Adhikary has signed written

statement filed by the company. The company has not made any attempt to examine

the said Amlan Adhikary to challenge the authenticity of the said Ext. 3

collectively. C.W.-l Sankha Subhra Chowdhury in his evidence-in-chiefhas stated

nothing challenging the authenticity of Ext. 3 collectively. He has also not stated

anything in his evidence-in-chiefthat at nopoint of time, the company withheld the

order of transfer of Palas Bayen on 01.10.2011 at the intervention of the union as

come out in the evidence of W.W.-1. Moreso, such statement of the said W.W.-l

has not been challenged specifically during the cross-examination of the said

witness. On perusal of first sheet of Ext. 3 collectively I find that there is mention

.~~~1;:, ,~>, about some points out of which in Sl. No. 1 it has been stated that the transfer of",-;" \ ':"'1' -:-4'. ~'I.~ __• ~ r ;'~ ..~~I

l/,,,,'0 .r, r·,"'· ':".:"\ Palas Bayen was withheld. In the left lower portion of the said document there are

,:,::',./r :;:.' . .' . signatures of some workmen, namely, Soumen Mondal, Dipankar Dutta, Soumitra; .. - -r,; ," J ,1\\',: . ,. Mondal, Jayanta Chakraborty, Swapan Das and Subrata Roy and in the right lower\: >~,.,.. '" " / .j/J,ortion of the said document there appears the signatures of Amlan Adhikary,

,;;_::;~!~~~",.~.,;~~::;;/rAninda Som and Sankha Chowdhury. C.W.-I has categorically admitted during

'''~~ cross-examination that Ext. 3 collectively goes to show that one meeting was held

on 01.10.20 II by the company and in the said meeting transfer of Palas 8ayen was

withheld. In view of such statement of C.W.-l, it can safely be said that he was

present in the said meeting. In fact, from Ext. 3 collectively it appears that there

appears signature of one Sankha Chowdhury (H.R.). In his evidence the C.W.-l has

- 10-

described himself as Assistant Manager (RR.). The document was signed by those

persons on 01.10.2011. The company not having challenged the authenticity of the

said Ext. 3 collectively and there having no denial even in respect of the said

document in the testimony ofC. W.-I and also considering such admission of C,W.-

1, I find no reason to disbelieve the said document. From the other sheets of the

said Ext. 3 collectively I find that there are some demands of the workmen

submitted for discussions with the management. So, considering the totality of the

matter and also for considering the other attending circumstances convinced me to

believe that the workmen working in the said company were formed a union to

ventilate their demands to the management and applied to the Labour Department,

Govt. of West Bengal for registration of the said union and ultimately they got the

said union registered in the name of Writer Safeguard Workers Union. Relying

upon the testimony of W.W.-I coupled with Ex.t. 1 and Ext. 3 collectively, it is

clear that the workmen started functioning collectively prior to 23.12.2011 when the

management issued order of transfer. In this connection, it would be relevant to

mention the testimony ofW.W.-l which has come out during his evidence-in-chief

that on 14.08.2011 they formed their union and applied for registration of the union

to the Labour Department. Such submission has not been challenged during cross­

examination of the witness by the company.

Let us now tum to the most vital aspect of the matter. It is claimed by the

company that the transfer of 8 workmen has been issued on 23.12.2011 from the

Kolkata office to other sites was/is a routine transfer as per administrative policy of

the management and also in terms of Clause 9 (a) which is the letter of confirmationof the workmen.

On the other hand, it is claimed by the union for the workmen that such

order of transfer are all cases of victimisation as and when the management got

~;,~~~:~ e-. scent that they joined together to form a union, the management most arbitrarily, -, ~'......·.0~·.,~t..:. "'~'/.--::.'':''j~/,

-" ; ''',-"(.<-\issued such order of transfer.:.j ~ , ,:;. »:

" "':;-, ", It is argued by the ld. counsel for the company that the management has a

night to transfer any workman in the interest of administration. It is argued further, ;-'/ft·;" ,,( .c',:),~ihatworkmen cannot claim immunity from transfer merely for reason of their being

. ~-.'!r:":I:~'~~;"\iY::' office bearers of union. In support of his contention ld. counsel has placed reliance. .J,. '_;','.;"..;._....1.-::.........'.---.-:-~~~~ ...

on following case laws: 1) 2004 (3) L L J pg. 243 S C, 2) 2003 (96) F L R 1048 S

C, 3) 2005 (105) F L R pg.869, 4) 2004 (97) C L T pg. 596, 5) 2002 (92) F L R pg.

1128,6) 2012 L L R pg.l038, 7) 1995 (2) L L J pg.35, 8) 1993 F L R (66) pg.586and 9) 1996 Lab. I.C. pg. 2653.

Ld. counsel of the union for the workmen argued that the management can

transfer a workman from one place of work to another place of work. But the such

- 11 -

right cannot use as mode and method of punishment. It is argued further that the

Tribunal has right to interfere with any such order of transfer if it is shown that the

same is so done by the management with some malafide intention. In support of his

contention, ld. counsel for the union has placed reliance on the case laws as reported

in 2003 (II) L L J pg.l 058 and 2003 (II) L L J pg.5I2.

In case as reported in 2004 (3) L L J pg. 243 S C it has been held by the

Hon 'ble Apex Court that "It is well-settled that the transfer is an incidence of

service and this Court should be very slow in interfering with the order of transfer

unless the same is mala fide and violative of statutory rules." In another case relied

upon by the ld. counsel for the company as reported in 20032 (96) F L R pg. 1048

S C wherein Hon'ble Apex Court held that "Transfer is an incident of service and

is made in administrative exigencies. Normally it is not to be interfered with by the

courts. This Court consistently has been taking a view that orders of transfer should

not be interfered with except in rare cases where the transfer has been made in avindicti ve manner."

Perused the aforesaid two case laws as relied upon by the ld. counsel for the

company. The facts of the case of the case before the Hon'ble Apex Court is not

almost identical with the facts of the case before us. But, we can certainly rely upon

the principles as enunciated by the Hon'ble Apex C01ll1in those two reported cases.

It has clearly been observed by the Hon'ble Apex Court that normally the order of

transfer issued by the management to the workman/employee should not be

interfered with by the Tribunal unless such order of transfer appears to be malafide

and that same has been made in vindictive manner. Therefore, such observation and

guideline as set forth by the Hon'ble Apex Court is very much relevant in decidingthe present case before us.

Considered the case laws as relied on by the Id. counsels of the union for

the workmen. In the case as reported in 2003 (II) L L J pg.I 058 at para 23 it has

been observed by the division bench of the Hon'ble Court that "We are unable to

agree to such reasonings because the "tool" of transfer cannot be allowed to be used

as a "Weapon" in the "interest of administration". The interest of administration

can be safeguarded by setting into motion the disciplinary law but certainly not by

removing an employee by transferring him." In another case as reported in 2003

(II) L L J pg.512 it has been held by the Hon 'ble Court as appearing in paragraph

No. 11, relevant portion of which runs as follows: "I am satisfied that the action of

the petitioner Bank to transfer its employees was the mala fide exercise of the

power. The sole object appears to me of transferring the award employees under

the guise of restructuring, reorganisation and rationalisation was to make them sit

idle in RMC/ AMER, humiliate them and force them to quite by accepting the VRS

.-,,7-!

- 12 -

which cannot be permitted. Undoubtedly, it is permissible for the employer to

engage services of the contract labour, that does not mean that such statutory power

could be exercised malafidely. Mala fide exercise of power cannot be considered

to be the legal exercise of the power given by law."

On perusal of the case laws as relied upon by the parties on the point of

issuance of order of transfer by the management to the workman I find that the

Hon'ble Court has taken a consistent view that normally the Tribunal will not

interfere with the order of transfer unless it is shown that the said transfer has been

issued by the management as mode and method of punishment or that such transfer

order is a mala fide one. In the aforesaid backdrop of the matter we have to decide

the present case before us.

In the instant case, the workmen working in the company are very low paid

workmen which would be evident from the oral and documentary evidences. The

same will be apparent from the Ext. A series wherein the basic salary of the

workman has been stated to be Rs. 2300/- per month and House Rent Allowance,

Medical Allowance, Conveyance Allowance and other allowance has been noted

therein at Rs. 230/-, Rs.IOOO/-, Rs. 800/-, Rs. 170/- respectively per month. W.W.­

I has stated in his evidence-in-chief that his last drawn salary was Rs. 6443/-. So,

there cannot be any manner of doubt to come to a conclusion that all the 8 workmen

were very law paid employees and that aspect, in my considered opinion, must be

taken into consideration for adjudicating the present issues involved in the

proceeding. Moreso, from the materials we find that all such workmen are the

resident at Calcutta and its adjoining places and almost all of them have been

transferred in a separate state. It appears from Ext. C that W.W.-I Dipankar Dutta

was transferred to Ramgarh, Jhakhand. The workman Gobinda Halder and Palas

Bayen have been transferred to different places at Patna, Bihar. The workman

Madhusudan Sen has been transferred to Deogarh, Jharkhand. Soumitra Mondal

has been transferred to Giridih, Jhakhand, Tarak Roy has been transferred to

Ranchi. Only two namely, Swapan Das and Somen Mondal have been transferred

to the districts of Murshidabad and Maida. one can very well imagine that how far

it will be possible for those workmen to meet up and manage the livelihood with

such a meagre amount of salary by way of staying and working in such a distant

place where they have been order to join on transfer. A man is supposed to earn not

only for survival of himself and also for other member of his family.

Then we get from the cross-examination of C.W.-I wherein he has stated

that all the branches including Calcutta in India are monitored by Head Office,

Bombay. Only Bombay office take decision regarding transfer including place of

transfer. But, to substantiate such contention no document or paper could be

- 13 -

produced by the witness. It is argued by the ld. counsel of the union for the workmen

that the witness has cleverly tried to shift the matter on the shoulder of the Head

Office at Bombay by making such statement. On due consideration I find substance

in the argument as advanced by the Id. counsel for the union particularly due to

non-production of any rules and regulations of the company by the witness on thatpoint.

In the written statement filed by the company it has been stated that the

company is dealing with A™of various nationalised and private banks situated at

86, Monohar Pukur Road, Kolkata-700 029 as well as its various branches situated

at different part of India i.e. Patna Giridih, Ramgarh, Deoghar, Ranchi, MaIda,

Berhampore etc. The company has not mentioned therein as to whether the

company has its branches in other districts of this state. In my considered view had

there been any administrative exigencies in issuing such transfer order, the

company could very well come up with such administrative reason which

necessitated the company to issue such transfer order at a time in respect of 8

workmen in a place which is far off from their place of residence. Moreso, when

according to C.W.-I everything is monitored by the Head Office at Bombay, then

there must be some communications between Kolkata office and Bombay office in

the matter of bulk transfer of eight such workmen at a time. Unfortunately, nothing

could be produced by the company to that effect.

It is true that in Ext. A series which is a confirmation letter relating to the

job of the workmen in column No. 9(a) it has been stated that the company has right

to change the job functions, duties, or place of work at any time during employment

of the workman. In my considered view by way of taking recourse of the said clause

in the confirmation letter the company cannot and should not transfer a person from

Calcutta to different state. While doing so, the company certainly would have

considered the financial position of a workman and to see whether it is humanly

possible for workman to arrange for his sustenance and survival with such meagre

amount of salary. I am sorry to say that the company has completely ignored such

a vital aspect of the matter and thereby did not apply its mind in taking suchdecision.

Considering the totality of the evidences and materials on record and in

view of the foregoing discussions and reason stated thereon, I am convinced to hold

that as soon as the company got scent that the workmen are going to form a union

to protect and secure their interest themselves collectively through such union, the

company decided to issue such transfer orders in respect of such 8 workmen at a

time which is my opinion can surely be said to have been done with mala fide

intention on the part of the company. Moreso, the company has failed to explain

- 14-

any reason which necessitated the company to transfer 8 workmen at a time. All

such aspect clearly to establish the vindictiveness on the part of the company.

It is then argued by the ld. counsel for the company that all workmen have

not deposed in this case and as such, they are not entitled to get any relief. It is

submitted further that on the date of issuance of such transfer order there was no

existence of any union and as such, the union in question cannot ventilate the matterfor the workmen.

Ld. counsel of the union for the workmen argued that it would be evident

that there was existence of union for the workmen at the relevant point of time

which would be evidence from the materials on record and the company has also

accepted the existence of such union. In support of his contention he has placed

reliance on Ext. 3 collectively and also Ext. 1 and Ext. 2 namely, the challan dt.

21.12.201 1showing deposit of registration fee with the Labour Department and the

certificate of registration issued by the Registrar of Trade Union, West Bengal on

27.12.201 I.he also placed reliance on Ext. 16 collectively which are minutes of the

resolution of the union duly signed by the members.

Considered the submissions of both sides. Perused those documents

including the statements of the witnesses. I am constrained to repeat the evidence

of the witness in respect of some portions. C.W.- 1 during his cross-examination

has denied the suggestion that on 14.08.2011 Writer Safeguard Workers Union was

formed and since after that Palas Bayen was transferred. However, he has admitted

that Ext. 3 collectively goes to show that a meeting was held on 01.10.2011 by the

company and in the said meeting Ext. 3 collectively, transfer of Palas Bayen was

decided. It clearly indicates that prior to issuance of order of transfer dt. 23. 12.20 I I

the workmen working under the company formed a union for the purpose of interest

of the workmen working there. On perusal of Ext. 3 collectively J find that there is

signature of some workmen and also the signatures of one Amlan Adhikary and

Sankha Chowdhury dt. 01.10.2011 wherein it has been decided that the transfer of

Palas Bayen was withheld. The said Amlan Adhikary signed the written statement

filed on behalf of the company and the said Sankha Chowdhury in one such

document put his signature in the capacity of H.R. So, considering the totality of

the evidence on record there cannot be any manner of doubt to come to a conclusion

that the workmen formed union on 14.08.2011 which ultimately got its affiliation

by way of issuance of the certificate of registration of trade union issued by the

authority vide Ext. 2. Therefore, I am unable to accept the argument as advanced

by the ld. counsel for the company that there was no existence of any union on the

relevant date for the workmen. Furthermore, I find that conciliation proceeding

before the appropriate authority of the Labour Department, the said union ventilated

- 15 -

the matter for the workmen before the said authority namely, the conciliation officer

and it would be evident from the fact that the copy of order of reference made by

the government was also supplied to the Secretary, Writer Safeguard Permanent

Workers Union having its office at 1/26, Sucheta Nagar, P.O. Haltu, Kolkata-78. In

my considered view had there been no existence of such union the concerned officer

certainly would not have sent such copy to the Secretary of the union.

Consequently, I further hold that the union has the jurisdiction to move for the

workman and to take necessary steps in the instant proceeding for those workmen.

Ld. counsel of the union for the workman then raise a legal question. It is

argued by him that the matter relating to the transfer has not been included in the

3rd schedule of the Industrial Disputes Act and as such, the reference is bad in law.

Ld. counsel of the union for the workmen further argued that Sec. 10 (1B) of the

Industrial Disputes Act empowers the appropriate Government to refer an industrial

dispute to the Industrial Tribunal or to the Labour Court for adjudication. It is

argued that the matter relating to the transfer, suspension etc. would certainly come

within the purview of CI. (II) of the 3rd schedule of the Industrial Disputes Act. In

this connection he has placed reliance on a case law as reported in 2017 (II) C L Rpg.S47.

Perused the said case law. Considering the provisions of Sec. 2(k), 7 (A) (1)

and 10 (1) of the Industrial Disputes Act and also legislative intention of enacting

the said Act it has been observed by the Hori'ble Court in paragraph 28 of the said

reported case law the relevant portion of which runs as follows:

" Under the provisions of the Act, a reference to an Industrial

Tribunal will lie where the parties to an industrial dispute apply for such reference

and also where the appropriate Government considers it expedient so to do. The

power to refer disputes to Industrial Tribunals and enforce their awards is an

essential corollary to the obligation that lies on the Government to secure

conclusive determination of the dispute with a view to redressing the legitimate

grievance of the parties thereto. In my view, if the definition of the terms industrial

dispute' in S.2(k) of the 1. D. Act is understood in the proper perspective,

suspension of workmen in contemplation of disciplinary proceedings must also be

held to be an industrial dispute referable to the Industrial Tribunal. " The

instant case before us is not a case of suspension but it is a case of transfer. Neither

the word 'suspension' nor 'transfer' takes place in schedule 3 of the Industrial

Disputes Act. However, following provision of Sec. 2(k) of the Industrial Disputes

Act and the observation as made by the Hon'ble Court in the aforesaid reported

case, I am of the view that the matter relating to transfer of those workmen though

do not find mentioned in the 3rd schedule of the Industrial Disputes Act still it is an

- 16 -&

industrial dispute referable to an Industrial Tribunal. That being so, I am unable to

accept the argument as advanced by the ld. counsel for the company that this

reference is not entertainable by this Tribunal.

Let us now come to the other aspect of the matter. Admittedly, all the 8

workmen were issued with an order of transfer on 23.12.2011 by the company to

different places which has already been discussed earlier which has been challenged

under the instant order of reference. Admittedly, the 8 workmen have not yet

complied with such order of transfer. But curiously till today the company has not

taken any administrative measure against those 8 workmen for non-compliance

with such order of transfer either by way of termination or suspension. During

course of hearing, it is argued by the ld. counsel for the company that the workmen

are at liberty to join their duties in terms of such order of transfer if they so desire

since the company has no desire to terminate them from service. This conduct of

the company appears to me to be very unusual. No explanation could be given by

the company what prevented them to take any such administrative measure against

those 8 workmen for non-compliance with order of transfer.

In the aforesaid backdrop of the matter, it is argued by the Id. advocate for

the union that the management is under legal and moral obligation to allow the

workmen to join in the post where they were working prior to issuance of such

order of transfer with a' further direction to give the workman back wages. It is

further argued that it is the discretion of the Tribunal to allow to the workmen such

back wages to such extent as the Tribunal deems fit and proper.

Ld. counsel for the company, on the other hand, argued that the workmen

~. are not entitled to any back wages and in support of his contention he has placed~\~L r~!11 ~"~y\Jfl:~",,~~,~~reliance on a case law as reported in 2009 (2) S C C pg.288.

4 ~ 4{~" \ ".'), Considered the submissions of both sides. Perused the said case law. The

f ': ~r t~;·;.;:.~.:;:i~~CtSof the said case law before the Hon 'ble Court are not identical with the facts

\. ~<:., :t'~;'1)'!"'" /'JYf the case before us. The W.W.-I, Dipankar Dutta has stated in his evidence-in-';,;~~.q '/chief that he is the Vice President of the union. He has stated in his evidence-in-~l>"" ~~«?I~: "_. Of chief further that they are all still lying unemployed. Such statement made by the

witness has not been challenged during cross-examination. C.W.-l has also not

claimed in his evidence that those 8 workmen are working for gain in any other

concern. Considering such situation, I think that the interest of justice deserves that

the workmen are entitled to get back wages to a certain extent.

Therefore, having considered all aspect of the evidences and materials on

record and foregoing discussions and the reasons stated thereon, I have no

hesitation to hold that the order of transfer dt. 23.12.2011 of Shri Palas Bayen, Shri

Tarak Roy, Shri Soumitra Mondal, Shri Dipankar Dutta, Shri Madhusudan Sen,

- 17 -

Shri Swapan Das, Shri Gobinda Halder and Shri Soumen Mondal issued by the

management of Mis. Writer Safeguard Pvt. Ltd. are the cases of victimisation and

as such, the management cannot act upon the same.

On giving an anxious consideration of the matter and the circumstances of

the case, I think that the interest of justice would be sub served if the management

is asked to pay those 8 workmen their back wages @25%.

The management namely, Mis. Writer Safeguard Pvt. Ltd. is directed not to

give any effect or further effect of the order of transfer dt. 23.12.2011 in respect of

the aforesaid 8 workmen. Said management is directed to allow those 8 workmen

to join their normal duties where the workmen used to perform such duties prior to

23.12.2011. The said management is also directed to pay to the each of the said 8

workmen their back wages to the extent of25% from the date of last payment made

to them till the date of their joining, in default, the said amount will carry simple

interest @7% per annum.

This is my AWARD.

Dictated & corrected by me.

S at ,~ ((/'ltWYY-\1q 6ut/~)Judge.

(Tanmoy Gupta)Judge,

First Industrial TribunalKolkata.

12.09.2017

JUDGEFIRST INDUSTRIAL TRIBUNAL

WEST8ENGAL