Six employees of the respondent-Corporation have jointly filed the present writ petition challenging the impugned proceedings of the respondent in No.E3/85296/2004 dated 03.08.2004, and to quash the same.
2. The respondent-Corporation is an undertaking of the Government of Tamil Nadu engaged in the task of purchase of paddy stock during harvest seasons from ryots through direct purchase centres at the price fixed by the Government. The stock so purchased/procured are moved to the storage points, hulled and thereafter sent to various regions for distributions to the public under the Public Distribution System and other welfare scheme of the Government. The Respondent-Corporation has several regions in the State and they are controlled by the Chairman and Managing Director. Since the procurement of foodgrains is seasonal, the respondent-Corporation adopted various methods to utilise the man-power and seasonal posts are sanctioned for procurement and such posts are temporary in nature made during seasons. Regular staff of the respondent-Corporation are also given postings in the seasonal posts i.e. from the post of Bill Clerks to Deputy Manager to utilise their services by transfer or redeployment. As and when the procurement is completed, the regular staff will be reverted back to their original position. On one such occasion, the Respondent-Corporation in order to set right the administrative machinery and to utilise the surplus staff in other regions, issued impugned order effecting transfer of junior most persons from among the surplus staff from one region to another invoking the provisions of Rule 17 (b)(i) of Chapter II of Tamil Nadu Civil Supplies Corporation Employees Service Regulation 1989. The said order was passed by the Chairman and Managing Director of the respondent Corporatiion. The six petitioners were transferred from Madurai region to Kanyakumari region on administrative grounds and the said order of transfer is under challenge in the present writ petition.
3.The contention of the petitioners is that the Respondent/Corporation is an 'Industry' within the meaning of
Section 2(j) of Industrial Disputes Act and each District is a separate unit for the purpose of seniority and promotion upto the post of Assistants. Before issuing the orders of transfer, which is in violation of service conditions and contrary to the provisions of the Industrial Disputes Act, a notice under
Section 9-A is mandatory. According to the petitioners, the number of posts of Bill Clerks in Madurai region cannot be treated as surplus and transferred to Kanyakumari Region without issuing a notice under
Section 9-A of the Industrial Disputes Act. The orders treating the petitioners as surplus and transferring them to Kanyakumari region amounts to alteration of the conditions of service, resulting in reduction of strength of Bill Clerks in Madurai Region, which is void ab initio for the failure to comply with the mandatory requirement of issuing notice under
Section 9-A of the Industrial Disputes Act. By virtue of an interim order passed by this Court, the petitioners continue to work at Madurai itself.
4. A detailed counter affidavit has been filed by the respondents stating that the service condition of the petitioners is governed by the Tamil Nadu Civil Supplies Corporation Employees' Service Regulations 1989. It has been clearly stated in the counter affidavit that sanctioned strength of Bill Clerks in Madurai regional is 54 and since 68 persons were employed as Bill Clerks, the junior most Bill Clerks were transferred to deficit regions which needs hands and the allegation that there is alteration of condition of service in contravention of the provisions of
Section 9-A of the Industrial Disputes Act is totally misconceived.
5. In paragraph 14 of the counter affidavit, which is relevant is as follows:
" I respectfully submit that with regrd to the averments made in para 6,7, 8 and 9 of the affidavit, this respondent submit that
section 9 A of Industrial Disputes Act, read with Schedule IV-Serial item No.10 reads as follows:
"Rationalisation, standardisation or improvement of branch or technique which is likely to led to retrenchment of workmen. The respondent submits that rationalisation, standardisation or improvement of branch or technique by itself would not fll under Item No.10 of Schedule IV unless it is likely to lead to retrenchment of workmen". This respondent submits that the Retrenchment is stated under Serial No.10 of Schedule Iv. Mere suspicious cannot be justified as an interference or likelihood of retrenchment. Notice is necessary under
Section 9A read with Schedule IV if it is likely to led to retrenchment or likely to affect prejudicially or adversely.
As the entire transactions of the Corporation are based on policy decision taken by the government from time to time, the Management has every right to del with the situation by utilising the manpower depending upon the need in the interest of administration.
The respondent submits that the question of issuing notice does not arise since the transfer does not lead to retrenchment as defined under Industrial Disputes Act. Section 9 A read with Schedule 4 will be applicable only if the following conditions are satisfied:
i) there must be change in conditions of service;
ii) Change must be such that it adversely affects the workmen.
iii) Change must be in respect of any matter provided in the IV Schedule of the Act.
The respondent submits that the changes effected by the Corporation does not affect the workmen and would not lead to retrenchment as defined under
Section 2(oo) of the Act."
6. Chapter II of the said Regulations deals with Appointment Regulations. Regulation 17 (b) (i) of Chapter II the said Tamil Nadu Civil Supplies Corporation Employees' Service Regulations 1989 relates to seniority in cases of transfers, which runs as follows:
"17.Seniority: (a) The Seniority of a person in a class or category shall unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the Appointing Authority, subject to the rule of reservation of appointments wherever it applies.
The seniority shall be maintained irrespective of the actual date of joining. The unit of seniority shall be the Region (Head Office to be a separate Unit) in respect of the post for which Regional Managers/General Manager A(Admn.) are appointing authorities . For all other posts, the State is the unit for seniority.
b. Seniority in Certain cases of Transfers: (i) where an employee for whom the Appointing Authority is Regional Manager/General Manager (Admn.,) is transferred from one region to another on administrative ground, he shall not forego seniority in the region to which he is transferred, but retain it with reference to his/her regular service in that category."(Emphasis supplied)
7. Regulation 24 relates to Postings and Transfers, which reads as follows:
"Postings and Transfers: All transfers and postings shall be made by the Appointing Authority or any authority to whom the appointing authority is administratively subordinate within his jurisdiction."
8. Under Annexure II, in terms of Regulation 28 of the Tamil Nadu Civil Supplies Corporation Employees' Service Regulations 1989, the Regional Manager/General Manager (Admn,.) is the appointing authority. According to the respondent, the Chairman and Managing Director is the authority under whom the appointing authority is administratively subordinate and therefore, he has the power to issue the order of transfer from one region to other. In the present case, the transfer orders have been issued by the Senior Regional Manager based on the Chairman's Communication, who is a senior officer to the appointing authority.
9. Regulation 17 of the Tamil Nadu Civil Supplies Corporation Employees' Service Regulations 1989, specifies as to how seniority should be maintained in case of transfers from one region to another. Relying upon the above said Regulation, it is stated that for the purpose of carrying out the task of public distribution of essential commodities entrusted to the Civil Supplies Corporation, transfer is effected on administrative grounds by utilising the surplus staff and this was effected based on the administrative needs and exigencies. The contention of the respondent is that there is no alteration in the conditions of service, seniority is not affected and the power to transfer from one region to another is contained in Regulation is justified for the reasons set out above. Therefore, the grievance of the petitioners that their service conditions have been altered is without any basis and on a misconception of the relevant provisions.
10. The challenge to the proceedings in this writ petition, on the face of it, clearly establishes that the petitioners have mis-construed the orders of transfer as alteration in the condition of service. In this case, the petitioners are governed by the Tamil Nadu Civil Supplies Corporation Employees' Service Regulations 1989. Regulation 24, as has been stated above, provides for Transfers and Postings by appointing authority or any authority to whom the appointing authority is administratively subordinate. In this case, the Chairman and the Regional Manager have passed the impugned transfer orders and such order is in consonance with Rule 24.
11. As far as the plea with regard to the seniority is concerned, the apprehension of the petitioners is not justified, in view of Regulation 17(b)(i), which clearly provides for seniority on transfer from one region to another on administrative grounds, the transferred persons will not forego seniority. Hence, the apprehension of the petitioners that their seniority will be affected is misconceived.
12. Reliance is placed on a decision of this Court in W.P.No.39938 of 2003. The same is not applicable to the facts of the present case, as the said c ase relates to reversion or retention in the service, without following the provisions of
Section 9A of the Industrial Disputes Act. Whereas that is not the issue in the present case. The orders of transfer from one region to another were issued purely on administrative grounds, and the Regulation provides for the same. The provisions of the Industrial Disputes Act does not apply to the facts of the present case. The impugned orders of transfer is well within the power of the authority. The challenge to the orders of transfer has no basis and the same is liale to be dismissed.
13. In the result, the Writ Petition fails, and the same is, accordingly, dismissed. Connected miscellaneous petition is closed. No order as to costs.
PAL To Tamil Nadu Civil Supplies Corporation Limited rep. By its Chairman and Managing Director, No.42, Thambusamy Road, Kilpauk, Chennai 10