ORDER
K.P. Sivasubramaniam, J.
1. The petitioner prays for the issue of a writ of certiorarified mandamus to call for the records on the file of the fourth respondent in his proceeding in Form-E dated 5.1.2002, to quash the same and to direct the respondents to absorb the petitioner’s Union members at Chennai Port Trust or at Chennai Port Cargo Handling Division.
2. The brief facts which are sufficient for the disposal of the writ petition are as follows:- The members of the petitioner Union are the workers under Food Corporation of India at the Chennai Port Trust in six godowns inside the Chennai Harbour for the import and export of Food Grains and for carrying out the work of loading, bagging, filling, stitching, restocking of food grains. These workers form part of Chennai Port Trust and are the Departmental workers under the regular pay scale of the Food Corporation of India. Therefore, according to the petitioner, they are under the regular establishment. It is further stated that there is a separate department for import and export of food grains and food stuffs. Due to privatisation and handing over the job to the State Trading Corporation and to other private sectors, the work load of the FCI workers (Port Wing) was reduced. In these circumstances, the Port Trust Administration sought for vacating the godowns of FCI and to be handed over to the Port Trust. There are about 450 workers employed in the Port Wing at Chennai Port Trust. The FCI administration suggested accommodation of the godowns for their purpose, like Transit Food Grains and to use the godowns thereby giving employment to the existing 450 workers under the Port Wing.
3. The petitioner further submits that when the similar problem arose all over the major ports of India, the Union of India had decided to hand over the establishment of Food Corporation of India, to the concerned Port Trust. When the Corporation decided to hand over or surrender, the employees of the Corporation should also be transferred along with the units. This was the process followed by the Union of India in cases of all merger or privatisation of Public Sector undertakings. In Mumbai and Calcutta, the FCI workers were absorbed in the Port Trust.
4. According to the petitioner Union, when there was an attempt to deploy the petitioner workers, they had filed W.P.No.18143 of 2001 praying for a direction to the Chairman of the Port Trust, Chennai, to absorb the members of petitioner Union either at Chennai Port Trust or Madras Dock Labour Board or in its equivalent cadre or in the alternative, direct the Food Corporation of India to retain them at Madras District Unit under his control with all the consequential benefits. The said writ petition has been filed, admitted and the same is pending before this Court.
5. The grievance of the petitioner Union is that while the said writ petition is pending, the impugned notice in Form – E to Section 9-A of the Industrial Disputes Act, has been issued on 5.1.2002 expressing their intention to effect the change specified in the Annexure with effect from 1.2.2002 in so far as the conditions of the services applicable to workmen who were employed at Chennai were concerned. In the Annexure to the impugned order, it is stated that about 340 departmental workers are idling in Chennai and as workers are required at other stations in other Districts of Tamil Nadu Region where Food Corporation of India has opened new godowns and as the management wanted to utilise the FCI Departmental workers available at Chennai usefully at the needy stations, FCI intended to transfer the workers at Chennai to the needy stations. The present writ petition has been filed aggrieved by the said order.
6. Mr.V.Dhanapalan, learned counsel appearing for the petitioner Union raised the following contentions:-
(i)The transfer is not one of the items dealt with in Fourth Schedule to the Industrial Disputes Act and hence the invocation of Section 9-A of the Act was not correct.
(ii)The appropriate authority/employer in terms of the definition under Section 2(g) of the Industrial Disputes Act is only a Joint Manager (Port Operation) and not the Senior Regional Manager who has now issued notice under Section 9-A of the Act.
(iii) The notice now issued is not sustainable in view of the pendency of W.P.No.18143 of 2001.
(iv) Even other wise in terms of Section 33 of the Industrial Disputes Act, pendency of W.P.No.18143 of 2001 shall be considered to be a proceeding for the purpose of Section 33 of the Industrial Disputes Act and therefore, during the pendency of the same, no orders shall be passed to the disadvantage of the workers.
7. I have also heard learned counsel appearing for the Food Corporation of India as well as of the Port Trust. It is contended on their behalf that the post of Joint Manager (Port Operation) has long been abolished and the Senior Regional Manager is the appropriate authority now having proper control over the workers in question. The said post has been abolished with effect from 31.7.2000. It is further pointed out that all the workers of the petitioner union are now being paid monthly wages without even any work being assigned to them. Several lakhs of rupees are paid to them without any work and in the impugned proceedings, the Food Corporation of India is only attempting to transfer them to the places where there is work. Therefore, the petitioner’s Union cannot be heard to resist. The Corporation is a public institution and its funds cannot be frittered away to the petitioners.
8. In reply however, Mr.V.Dhanapalan states that they have no objection to work any where if they are provided with proper work with same salary and allowances. 9. I have considered the submissions of both sides.
10. With reference to the contention of learned counsel for the petitioner that the Fourth Schedule to the Industrial Disputes Act does not deal with transfer, I fail to understand as to how the said stand would be of any help to the petitioner. Schedule IV has enlisted the issues which require the management to give notice to the workers before effecting change of the service conditions to the detriment of the workers. Section 9-A provides a very valuable right to the working class namely, the employer shall not be entitled to alter such conditions of service to the disadvantage of the workers without giving proper notice. The existing conditions of service admittedly do not contemplate transfer and therefore, subjecting the workers to such a new condition of service certainly requires the compliance of Section 9-A. This is what has been done precisely in the present case. I am unable to appreciate as to how the petitioner is benefited in raising the said point.
11. As regards the question as to whether the Joint Manager, Port Trust is the competent authority, learned counsel for the fourth respondent has placed before me the office order dated 1.8.2000 wherein it has been stated that inasmuch as there was no staff sanction for Port operation and since there were no operations at Chennai, the office of the Joint Manager (Operations), will be closed with effect from 31.7.2000. It is also stated therein that the Regional Officer would take control over the said workers.
12. Therefore, I am unable to uphold the contention of the petitioner in the context of the jurisdictional authority who has issued the notice.
13. As regards the pendency of W.P.No.18143 of 2001, as stated earlier, the prayer in that writ petition is for a direction to the Port Trust to absorb the petitioner’s union members in the Port Trust or at Madras Dock Labour Board. The said prayer has nothing to do with the notice issued presently by the Food Corporation of India in seeking to post them in places where there is work for the Corporation. Therefore, the pendency of that writ petition cannot be an impediment for the proposed action. A public institution cannot be allowed to waste several lakhs of rupees by way of wages without being able to extract any work.
14. Learned counsel for the petitioner refers to the Report of the Committee to Review the Decasualisation Schemes and Allied Matters in the Major Ports. Reference is made to the demand which has been made in the context of the workers of the Food Corporation of India and that they should be registered under the Madras Dock Workers (Regulation of Employment) Scheme, 1956. The said extract is only a recommendation and which has not been implemented yet. Therefore, the reliance placed on the said report is of no help to the petitioner.
15. I am also unable to uphold the contention that the pendency of W.P.No.18143 of 2001 should be considered as a proceeding pending under Section 33 of the Industrial Disputes Act, 1947. Section 33 only envisages that during the pendency of any Conciliation proceedings before the Conciliation Officer or Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an Industrial Dispute, no employer shall alter the service conditions to the prejudice of the workmen concerned in such dispute. In this context, learned counsel refers to paragraph No.65 of the judgment in WHIRLPOOL CORPORATION v. REGISTRAR OF TRADE MARKS, MUMBAI holding that the expression “Registrar” or the “Tribunal” would also include a proceeding pending before the High Court. That is a case which arose out of the Trade and Merchandise Marks Act, 1958. The High Court is one of the hierarchy of authorities as envisaged under the said Act either under its original or appellate jurisdiction. It is only in that background the Supreme Court held that a proceeding pending before the High Court would be a proceeding under the Act. We are now concerned with the provisions of the Industrial Disputes Act, 1947 in which similar situation does not arise. The High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India, cannot by any stretch of imagination be construed as an authority under the Industrial Disputes Act.
16. For the aforesaid reasons, there are no merits in the above writ petition and the petitioners are entitled to work out their remedies provided under the Industrial Disputes Act. Writ Petition is dismissed. No costs. Connected W.P.M.P. is closed as unnecessary.
Case Note:
Labour and Industrial authority Article 226 of Constitution of India and Sections 9A and 33 of Industrial Disputes Act, 1947 petition for calling for records on file of 4th respondent in his proceeding in Form-E to Section 9A and quash same further prayer made to direct respondents to absorb members of petitioner-union at Chennai Port Trust or at Chennai Port Cargo Handling Division High Court while exercising extraordinary jurisdiction under Article 226 is not an authority under Act petitioners to work out remedies provided under Act petition dismissed.
JUDGMENT
K.P. Sivasubramaniam, J.
1. Today the matter is listed for being mentioned. In my order dated 21.02.2002 I had observed as follows:- “In reply however, Mr.V.Dhanapalan states that they have no objection to /work anywhere, if they are provided with proper work with same salary and allowance.”
2.The learned Counsel for the petitioner however, states that his submission was subject to the outcome of W.P.No.18143 of 2001 which has been directed in the context of their entitlement to be absorbed in the service of the fourth respondent.
3.The learned counsel states that the submission made by him was only subject to the result of the said main writ petition. I am inclined to record the said submission and it is made clear that the submission of the learned counsel as recorded in my order dated 21.02.2002 is subject to the outcome of W.P.No.18143 of 2001.