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2020 Supreme(Gau) 640
IN THE HIGH COURT OF GAUHATI
Manish Choudhury, J.
Naresh Sahani And Others - Appellant
Versus
Food Corporation Of India And Others - Respondent
Writ Petiton (Civil) No. 3314 of 2020, 3381 of 2020
Decided On : 11-11-2020
A. Dasgupta, Advocate
The main legal point established in the judgment is that transfer is an incidence of service and should not be interfered with unless there is a violation of statutory provisions or mala fide intent.
Headnote:
Transfer - Departmental Labourers - Contract Labour (Regulation and Abolition) Act, 1970, Industrial Disputes Act, 1947 - Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, Circular no. 9/2016 dated 07.08.2016 - The judgment discusses the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the Industrial Disputes Act, 1947, and their interpretations in the context of the transfer of departmental labourers from one depot to another by the Food Corporation of India. It highlights the court's consideration of the legality and fairness of the transfers, the policy of transfer formulated by the respondent FCI, and the absence of mala fide exercise of power or violation of statutory provisions in the order of transfer.
Fact of the Case:
The petitioners, departmental labourers of the Food Corporation of India (FCI), challenged an office order transferring them from one depot to another due to excess and deficit labour at different depots. The petitioners contended that the transfers violated the Contract Labour (Regulation and Abolition) Act, 1970 and the Industrial Disputes Act, 1947, and amounted to unfair labour practice.
Finding of the Court:
The court found that the transfers were made in accordance with the policy formulated by the FCI and were based on a consistent approach of transferring gangs in descending order. The court held that there was no mala fide exercise of power or violation of statutory provisions in the order of transfer. It emphasized that transfer is an incidence of service and should not be interfered with unless there is a violation of statutory provisions or mala fide intent.
Issues: The main issues revolved around the legality and fairness of the transfers of departmental labourers, the compliance with the Contract Labour (Regulation and Abolition) Act, 1970 and the Industrial Disputes Act, 1947, and the presence of mala fide exercise of power in the order of transfer.
Ratio Decidendi: The court's decision was based on the absence of mala fide exercise of power or violation of statutory provisions in the order of transfer, the consistent approach of transferring gangs in descending order, and the principle that transfer is an incidence of service and should not be interfered with unless there is a violation of statutory provisions or mala fide intent.
Final Decision: The court dismissed the writ petitions, finding them devoid of any merits, and recalled the interim orders passed earlier. The petitioners were not awarded any costs.
JUDGMENT
Manish Choudhury, J. - In both these writ petitions filed under Article 226 of the Constitution of India, an office order dated 12.08.2020 issued under the hand of the respondent no. 2 has been put to challenge. By the said office order dated 12.08.2020, the petitioners in the two writ petitions along with others have been transferred from Food Storage Depot (FSD, for short), New Guwahati under the Divisional Office, Food Corporation of India (FCI) to either FSD, Hojai or FSD, Senchowa, as the case may be, on the grounds that there are excess labour at FSD, New Guwahati and deficit labour at FSD, Hojai and FSD, Senchowa in terms of the volume of works.
2. There are 22 writ petitioners in W.P.(C) no. 3314/2020 and 19 writ petitioners in W.P.(C) no. 3381/2020. All these petitioners are regular employees of FCI and are engaged in loading and unloading works at the FSD. In a depot of FCI, labourers are divided in different groups. In the FCI parlance, each group is called departmental labourers gang and each such gang usually comprises of 14 (fourteen) members 1 (one) Sardar, 1 (one) Mandal and 12 (twelve) labourers.
3. By the impugned order of transfer dated 12.08.2020, the departmental labourers gangs identified as Gang no. 11, Gang no. 12, Gang no. 13 and Gang no. TNL-1 (also known as Gang no. 14) of which the writ petitioners are members, have been transferred. In W.P.(C) no. 3314/2020, the petitioner nos. 1 11 are members of Gang no. 13 whereas the petitioner nos. 12 22 are members of Gang no. 14 (Gang no. TNL-1). In W.P.(C) no. 3381/2020, the petitioner nos. 1 12 are members of Gang no. 11 and the petitioners nos. 13 19 are members of Gang no. 12.
4. By the impugned order dated 12.08.2020, the Gang no. 11 and Gang no. 12 have been transferred from FSD, New Guwahati to FSD, Senchowa. By the same order, Gang no. 13 and Gang no. 14 (Gang no. TNL-1) have been transferred from FSD, New Guwahati to FSD, Hojai.
5. Heard Mr. A. Dasgupta, learned Senior counsel assisted by Ms. B. Das, learned counsel for the petitioners in both the writ petitions. Also heard Mr. P.K. Roy, learned Standing counsel, FCI for respondent nos. 1, 2 & 3 and Mr. A.K. Dutta, learned Central Government Counsel for respondent no. 4.
6. At the outset, learned Senior counsel for the petitioners and learned Standing counsel, FCI have conjointly submitted that the petitioner nos. 12 22 in W.P.(C) no. 3314/2020 who are members of Gang no. 14 (Gang no. TNL-1), have already joined at FSD, Hojai in deference to the order dated 12.08.2020. Similarly, the petitioner no. 14 and the petitioner no. 18 in W.P.(C) No. 3381/2020 have joined at FSD, Senchowa on 28.08.2020 in compliance of the order dated 12.08.2020.
7. Mr. Dasgupta, learned Senior counsel appearing for the petitioners has submitted that though the petitioners are regular employees of FCI and members of departmental labourers gangs, such gang transfer of labourers is in violation of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the Industrial Disputes Act, 1947. He has submitted that in effecting the transfers, the authorities have resorted to unfair labour practice. In view of the notifications issued under the Contract Labour (Regulation and Abolition) Act, 1970, employment of contract labour is permitted at FSD, New Guwahati; FSD, Hojai and FSD, Senchowa. Similarly, FCI has one FSD at Changshari where contract labourers are engaged. It is his further contention that a major part of the works (loading/unloading) had been shifted from FSD, New Guwahati to FSD, Changshari which, in turn, had resulted in lesser works at FSD, New Guwahati and on that pretext of reduction of works at FSD, New Guwahati the petitioners terming them as excess labour, have been transferred from FSD, New Guwahati. Elaborating further, he has submitted that it is an unfair labour practice in view of Section 2 (ra) r/w Item no. 6 in the Fifth Schedule to the Industrial Disputes Act, 1947. It is further s
