The need to exhaust remedies under the Industrial Disputes Act before resorting to writ proceedings under Article 226 of the Constitution.

1. The petitioner is a trade union. In this Writ Petition, they have come forward to challenge an order of transfer dated 4.1.2012 granted against one of its member, who was a Technical/Commercial Supervisor (by name V.Rajendiran) transferring him from the existing station to TL BU Site (West Bengal State).

2. Admittedly the 2nd respondent company is a private construction company and no such Writ Petition will lie against the said Company that too against the order of transfer. However, according to the petitioner, they have a raised a dispute before the Government Labour Officer (Conciliation) at Puducherry and since the Conciliation proceeding is pending, there is a violation of Section 33 of the Industrial Disputes Act and therefore without the approval of the Conciliation Officer, the management cannot effect the impugned order of transfer.

3. It is also stated that as against the Standing Order certified by the Certifying Authority, the Trade union has filed an appeal under Section 6 of the Industrial Employment Standing Orders Act before the appellate authority and therefore a clause relating to transfer cannot be given effect to. However, this Court is not inclined to consider either of the submission.

4. A perusal of the proceedings pending before the Labour Officer shows that the Labour Officer has not issued any Conciliation Notice in terms of Section 12(4) of the Industrial Disputes Act. Assuming that there was conciliation proceedings pending, as to how under Section 33(2)(b) of the Industrial Disputes Act, it has to be given effect as a regular dispute. It is not a case where the employer lacks power of transfer as the appointment order given to the workman clearly shows that he is liable for transfer. Even otherwise, once there is a power of transfer and when such power has been exercised, it would not amount to alteration of conditions of service.

5. The learned counsel for the petitioner also referred to the advice given by the Labour Officer at page 79 of the typed set of papers. It is not clear as to how the said advice given by the Conciliation Officer will help the case of the petitioner, as this Court is strictly concerned with the maintainability of the Writ Petition against the private company and the alleged infraction of Section 33(2)(b) of the Industrial Disputes Act.

6. If according to the petitioner union it is a victimization by way of transfer, that matter will have to be decided only in a regular Industrial Dispute. Assuming without admitting that there was infraction of Section 33(2)(b) of the Industrial Disputes Act, the Supreme Court vide its judgment in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, reported in (2002) 2 SCC 244 has categorically held provisions under Section 33(2)(b) of the Industrial Disputes Act are mandatory and non-compliance with the provision will render an order of dismissal void abinitio. Therefore, when the workman can raise a dispute for claiming benefits, such an order becomes void abinitio.

7. The fact that whether any conciliation proceedings is pending is essentially a question of fact and the documents filed by the petitioner only show that the Conciliation Officer has not taken a final conciliation in respect of the dispute raised by the trade union.

8. The learned counsel for the petitioner also referred to the judgment of Division Bench of this Court in Writ Appeal No.3540 of 2004 in Hotel Ambassador Pallava vs. the Presiding Officer, II Additional Labour Court, Chennai and others, wherein the Court dealt with the award passed by the Labour Court and granted relief. As per the order cited by the learned counsel for the petitioner, there is no necessity for delegating the trade union in the Writ Petition seeking for a direction against the present employer. On the other hand, when the matter came up by way of judicial review against the order of the Labour Court, the Division Bench pronounced its own order. It is not clear as