Calcutta High Court (Appellete Side)
Writer Safeguard Private Limited vs State Of West Bengal & Ors on 16 December, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
HON'BLE MR. JUSTICE ABHIJIT GANGOPADHYAY
WPA 5129 of 2018
With
CAN 1 of 2019
(Old CAN 1987 of 2019)
Writer Safeguard Private Limited
-Versus-
State of West Bengal & Ors.
For the petitioners : Mr. Bikash Ranjan Bhattacharya,
Mr. Partha Bhanja Chowdhury,
Mr. Ravi Kumar Dubey
For the State : Mr. Susanta Pal,
Mr. Prabir Kumar Roy
For the Respondent No. 3 : Mr. Soumya Majumdar
Mr. Victor Chatterjee
Heard on : 08.01.2021, 22.01.2021,
02.02.2021, 23.02.2021
& 25.02.2021
Judgment on : 16.12.2021
Abhijit Gangopadhyay, J .:
1. This writ application has been filed by the employer against an
award passed by the Labour Court/Tribunal dated 12.09.2017.
2. The Tribunal has awarded that the employees who were
transferred from Calcutta to some other place outside the State
and some other distant place within the State of West Bengal
cannot be transferred because the transfer is wholly mala fide as
a counter measure against them for formation of a Trade Union.
The Tribunal has also directed the petitioner to pay 25 per cent
back wages to the respondent from the date of last payment
made to them till the date of joining.
3. The affidavits have been exchange between the parties.
4. The petitioner has submitted that transfer is an incident of
service and it can never be termed as mala fide and it cannot be
challenged at all. The transferred employees can get a
compensatory allowance for such transfer after they join the
transferred place.
5. The Tribunal has held after analysing the evidence that there was
no appointment letters (except one) given to the employees but
confirmation letters were given to them, after one or two years of
satisfactory service. No document has been produced and no
document has been marked as exhibit to show that any
appointment letter was given to the employees concerned. It is
found from the materials before me that in fact there was only
confirmation letters.
6. This act is extremely irregular which shows the mindset of the
employer. The confirmation letters indicate that all of the
concerned employees were duly appointed by the employer.
7. The employees were driver/security man. It was the business of
the employer to put currency notes to ATMs through its
employees. These employees are very very lowly paid which is
evident from the record. Their gross salary was less than
6,500.00 per month.
8. The employees' contention before the Tribunal was that they were
compelled to work almost for the whole day without any special
duty hours like slaves.
They were ill-paid.
They always faced misbehaviour from the employer's officers.
9. As a result they took step for forming a Trade Union under the
Trade Unions Act, 1926. The Trade Union was ultimately formed
and was registered on 27.12.2011.
10. Their allegation is that as soon as the employer came to know
that Trade Union was being formed by the employees, daggers
were drawn against them by the employer and just three days
before the registration of the Trade Union the transfer order was
issued. The employees were transferred in some other place in
other states like to Deoghar, Patna, Bhubaneswar, Ranchi etc.
Their further cases was that with the meagre amount of salary of
6,500.00 they could somehow manage their miserable existence
with their family while staying in this state but transferring them
to other state and to a distant place within this state with the
same salary and only a little amount of compensatory allowance
would actually put them under slave like condition and knowing
this fully well, to create inhuman pressure on them for resigning
from service the transfer was made. Therefore, they prayed for
setting aside and quashing the transfer order and for direction
upon the employer to allow them to work.
11. After taking evidence, both documentary and oral, and
considering the documents marked as exhibits, the Tribunal held
that the order of transfer was made with mala fide intention as
the employees formed Trade Union and did not believe the
contention and therefore, rejected the contention of the employer
that there was no proof that after coming to know about the
formation of the Trade Union the employer retaliated by issuing
order of transfer of eight employees. On the basis of the evidence
and the facts and circumstances of the matter the Tribunal has
also held that it was not a transfer which could come within the
concept of incident of service; it is something more than that. The
extra thing is the mala fide attitude and therefore, the award was
passed against the writ petitioner.
12. Against this award quashing the transfer order and direction for
25 per cent back wages, the employer has filed this writ
application.
13. This Court is not an appeal Court in respect of award where the
evidence can be reassessed and the matter can be heard again on
merit on assessment of evidence. Writ Court is concerned with
the decision making process of the Tribunal whether there is any
legal perversity in the award of the Tribunal to see and while
deciding the question of legal perversity it is to be checked
whether something has been held without evidence or some
evidence were not considered which is material in respect of the
merit and whether the decision is of such nature to which no
person of ordinary prudence can come to.
14. After hearing argument of the parties and after going through the
pleadings I find that principles of natural justice have been fully
complied with by the Tribunal. Full and complete opportunity
was given to the parties to produce witness and examine and
cross-examine. The evidence adduced, I have found, have been
correctly assessed.
15. On the basis of the evidence the Tribunal held that no
appointment letter was issued to the employees (except one).
After one or two years of service confirmation letters were issued.
On the basis of evidence or in other word non adducing of any
evidence to establish that the policy of transferring the employees
were taken in Bombay office of the petitioner for any justifiable
reason the Tribunal has disbelieved that it was a transfer
simpliciter. The registration of the Trade Union was on
27.12.2011 and issuance of transfer order was on 24.12.2011 are
so proximate and in absence of any evidence as to policy of the
employer of transfer, the Tribunal has correctly held and without
any legal perversity that company or employer after coming to
know about forming the Trade Union issued the transfer orders.
This view is wholly reasonable as under Rule 4 of West Bengal
Trade Unions Rules 1998 every notice under sub section (1) of
Section 28B to other Trade Union functioning in the concerned
industrial establishment or the class of industry in a local area
as a case may be, has to be given by the Registrar in a prescribed
form and simultaneously the notice shall be published by the
Registrar in the official gazette. Therefore, the stand taken by the
company that there is no proof that after coming to know about
the steps taken by the employees to form a Trade Union the
transfer order were issued is against the facts.
16. There is no challenge to the fact that the Trade Union has been
formed by the employees and no such thing has also been
mentioned in the written statements filed by the employer before
the Tribunal. Therefore, it can be safely presumed that the notice
by Registrar of Trade Union under Rule 4 of the abovementioned
rules was given and was published in the official gazette. Now,
therefore, there can be no doubt that the endeavour to form a
Trade Union was not in any clandestine form and it was widely
known to all concerned persons. Thus the claim of the employee
that there is no proof as to the knowledge of formation of Trade
Union before issuance of the transfer order is wholly
disbelievable.
17. Therefore, I do not find any merit in the writ application and the
same is dismissed.
No costs.
(Abhijit Gangopadhyay, J)
