Section 33 A

Dear Sir,

I am a medical representative at Sanofi Pharma Company. The company management is threatening to transfer me anywhere in India. On 11th December 2014, my regional business manager called me to Delhi and informed me to join by 1st January 2015. Following that, I filed a case in the conciliation office in Udaipur. On 21st August 2015, the management informed the conciliation office that I was right and the report on 21st August 2015 was a failure.

I have a few questions:
1. How many days are required to write a failure report?
2. After that, can the company transfer Praveen, and would that be right or wrong?
3. If Praveen does not join in Delhi, does the company have the right to terminate?
4. Does this violate Section 33A and 25T?
5. If he requests a stay order, are there any rules for a stay order against a Malefied transfer?
6. Can the Labor Commissioner be authorized to issue a stay order against the transfer and violation of Section 33A and 25T?

Sir, please do the needful.

Regards

Transfer is an incidence of service. It is the employer's prerogative and discretion to decide who is to work where and how long depending upon the requirements of work. However, such an exercise of discretion is regulated either by the certified Standing Orders of the establishment or the terms of the contract of employment.

So, if any aspersions of malafides or victimization or disregard of the Standing Orders or violation of the specific terms of the contract of employment could be cast upon the orders of transfer, the employee, if he is a workman, has the right to raise a dispute against the employer under Section 2k of the Industrial Disputes Act, 1947. At the same time, raising a dispute or its pendency against such orders of transfer, ipso facto, cannot prevent the employer from implementing it or instituting disciplinary action against the employee for non-compliance of the transfer orders.

However, the employer's right to punish the concerned employee for having disobeyed the orders of transfer by way of dismissal or otherwise is subject to the restrictions imposed by Section 33 of the Industrial Disputes Act, 1947. It is a must that the employer should obtain prior permission or post-approval, as the case may be, from the concerned authority before whom the dispute is pending as on the date of the employer's such final decision. There is no provision for a stay against such an order. If it is held to be violative of the provisions of Section 33 upon a complaint made under Section 33-A, it has to be set aside by the authority so as to render it inoperative.

To,
The Labour Commissioner
Labour Department,
Jaipur.

Applicant:
RMSRU, Udaipur unit, Udaipur through its Unit secretary Mr. Surendra Singh, Office Shirali Bhawan, Machhla Magra, opposite Paras Mahal Hotel, Udaipur in respect of Sh. Praveen Kumar.

V/s

Respondents:
Sr. Director, Human Resources, Sanofi India Ltd., Sanofi House, CTS NO. 117-B, L&T Business Park, Saki Vihar Road, Pawai, Mumbai-400072 and others.

COMPLAINT UNDER SECTION 33-A OF THE INDUSTRIAL DISPUTES ACT, 1947.

1. Mr. Praveen Kumar was appointed to the post of S.S.E. on 30.12.2011. He was posted at Sheoganj headquarter.
2. In December 2013, Praveen Kumar submitted an application to join the Hoechst All India Representative Committee (HAIRC), a committee working for the welfare of Medical Representatives and related positions.
3. After submitting the application, Praveen Kumar was threatened by the company officials that he would face dire consequences if he joined the union, including being transferred to Delhi or another distant location.
4. He was granted membership in the union on 1.4.2015.
5. Due to the threats from company officials, Praveen Kumar raised an industrial dispute which is currently pending before the Conciliation Officer.
6. Section 33 of the Industrial Disputes Act, 1947 states that conditions of service should remain unchanged during certain proceedings.
7. Section 33-A allows for a complaint to be made when conditions of service are changed during pending proceedings.
8. Praveen Kumar was transferred to Delhi on the grounds of low productivity in the Udaipur territory after joining the union, which he believes is a malicious and unjustified action.
9. Due to the transfer during the ongoing dispute, Praveen Kumar is submitting an application under Section 33-A to challenge the transfer order and requesting a stay on its operation.

It is therefore requested that this application under Section 33-A of the Act of 1947 be approved, the order dated 16.9.2015 be quashed, and the operation of said order be stayed during the application process.

Sir, can I seek help from the High Court to stay the order?

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