Bombay High Court
Press Trust Of India, Employees' Union ... vs Press Trust Of India And Ors. on 15 October, 1998
Equivalent citations: [1999(81)FLR349], (2000)IIILLJ60BOM
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. This writ petition filed under Article 226 of the Constitution of India is directed against the order, dated July 22, 1998, passed by the Industrial Court, Mumbai, rejecting the complainant's application for interim relief.
2. The first petitioner is a trade union registered under the Trade Unions Act, 1926, and claims to be representing all the workmen employed by the first respondent-company at Mumbai. The second petitioner is the employee of the first respondent- company. The first respondent company is registered under the Companies Act and is active in the field of gathering news and distributing/selling the same to newspapers and magazines through telex, teleprinters and computer consoles. The second and third respondents are the General Manager and Assistant General Manager of the first respondent company. Petitioner 2 was initially employed by respondent 1 company in the year 1966-67 as wireless operator. He was confirmed in the service as wireless operator with effect from April 1, 1967. The second petitioner has been promoted from time to time. He was first promoted as junior technician and with effect from January 1, 1980 he was promoted from junior technician to senior technician. The second petitioner was promoted from senior technician to Engineer with effect from January 1, 1983. Again the second petitioner was promoted from Engineer to Regional Engineer with effect from January 1, 1987. By order, dated January 29, 1998, the, second petitioner has been promoted from the post of Regional Engineer to Senior Regional Engineer with effect from February 1, 1998 in the basic salary of Rs. 5,175 per month with permissible allowances. By an order, dated, May 14, 1998, the second petitioner was transferred from Bombay to Calcutta office of respondent 1 company on the post of senior Regional Engineer. The said transfer order was served on the second petitioner on May 18, 1998. According to the petitioners, respondent 1, company had no power to transfer the second petitioner from Bombay to Calcutta and that the said transfer was mala fide with an intention to victimise the second petitioner who participated in the agitation against respondent 1 company and, therefore, the transfer order was challenged by the petitioners by filing complaint before the Industrial Court, Maharashtra at Mumbai under items (3)(9) and (10) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, MRTU and PULP Act). In the complaint filed by the petitioners it is averred that from February 27, 1998 the complainant No. 1 union, its office-bearers and other members started staging peaceful agitation against respondent 1 company's move to shift their registered and head office from Mumbai to New Delhi and against the decision of respondents 1 to 3 to implement the so-called voluntary retirement scheme. The agitation was in the form of raising (sic) slogans during lunch hours and respondents 1 to 3 were duly informed of the agitational programme by the complainant No. 1 union. As a result of lawful and peaceful agitation launched by the office-bearers, activists and other members of the complainant No. 1 union, it is alleged by the complainants, that respondents 1, 2 and 3 as a measure of retaliation started naked victimisation of the office-bearers, activits and other members of the complainant 1 union. Respondents 1 to 3 threatened that the employees will be dealt with firmly by their letter, dated March 5 1998, addressed to the Federation of PTI Employees' Union. Thereafter vide notice dated April 14, 1998, respondents 1 to 3 gave threats to two members of the staff and levelled allegations against the employees that they were trying to sabotage the work of the office through illegal and unjustified means. It is averred in the complaint that on May 14, 1998 the respondents 1 to 3 issued letter calling upon the General Secretary of the union to give explanation regarding the demonstration by 5 P.M. on May 15, 1998 failing which the General Secretary of the union was threatened by appropriate action. On May 14, 1998 itself respondents 1, 2 and 3 addressed a letter to the General Secretary of the Federation of PTI Employees' Union New Delhi, mentioning of their illegal demonstration and slogans by the members of the complainant 1 union. Though the complainant 2 was on leave from May 4, 1998 to May 16, 1998, the transfer order was issued on May 14, 1998 which was served upon the complainant 2 on resuming of his duties on May 18, 1998 and from that date the complainant 2 was relieved. In the background of the aforesaid averments, the complainants alleged that the transfer order of complainant 2 was patently mala fide and intended to victimise him. Along with the complaint, the petitioners also made an application for interim relief praying that by way of an interim measure the order of transfer, dated 14 May 1998, be stayed and respondents 1, 2 and 3 be directed to allow the complainant 2 to work at Mumbai and further allow him to perform his normal duties.
3. Respondents 1, 2 and 3 filed written statement and contested the allegations made in the complaint. Respondents 1 to 3 set up the plea that complainant 2 was not workman since he was employed in supervisory capacity and, therefore, was not an employee within the definition of MRTU and PULP Act. Without prejudice to the said stand, respondents 1, 2 and 3 set up the plea that respondent 1 company was an all India organisation with nearly 100 offices in India and abroad. It is a co-operative of newspapers established nearly 50 years ago and is a non-profit sharing institution. It has about 1,500 employees which includes about 350 journalists and about 300 engineering staff all over India. The work of respondent 1 being of all India nature, transfer of employees is an inherent condition of employment and has been accepted as condition of service by the employees themselves. The respondents gave details of large number of employees who have been transferred from time to time much before petitioner 2 was employed and even in the year 1997 itself. The case has been set up by the respondents that the complainant 2 has been transferred on administrative grounds and for administrative exigencies. He has been transferred because Mumbai has three Senior Regional Engineers, Delhi office has two while Calcutta office has only one Senior Regional Engineer. In Calcutta office two Senior Regional Engineers were required and to make up that, the complainant 2 has been transferred from Mumbai to Calcutta It is also stated in the written statement by the respondents that they received a proposal from RPG Netcom to show PTI news in Calcutta through cable network. Similarly another company by name Technographics of Calcutta also wrote to the respondent company's Regional Manager in Calcutta offering a package to capture PTI news on a PC and thereafter automatically classifying the same in a rolling fashion on a colour monitor. For the aforesaid purposes one more Senior Regional Engineer was required at Calcutta and after consideration of matter by Additional Chief Engineer at New Delhi, the name of complainant was suggested to the General Manager for this transfer to Calcutta. It is also stated that the complainant No. 2 was appointed as a Wireless Operator and Communications Technique and this knowledge of complainant No. 2 was considered important in the context of the two contracts aforesaid and, therefore, on the recommendation of General Manager, the complainant No. 2 has been transferred to Calcutta. The allegations of mala fides have been strongly refuted in the written statement. In the background of the pleas set out in the written statement, the respondents contested the complainants' prayer for interim relief. The Industrial Court after hearing the learned counsel for the parties and upon consideration of available material found that the transfer of the complainant 2 was condition of service and that his transfer from Mumbai to Calcutta was neither mala fide nor for extraneous reasons.
4. Sri C.U. Singh challenged the correctness of the findings recorded by the Industrial Court and submitted that on the face of the confirmation of complainant No.2's services vide company's letter, dated April 25, 1967, the power of transfer cannot be traced.
He would thus submit that the respondents have no power to transfer the complainant No. 2 from Mumbai to Calcutta. He would urge that whenever the transfer was condition of service, such condition was mentioned in the appointment orders of the employees and since in the present case the company has not chosen to produce the appointment letter and the confirmation letter, dated April 25, 1967 does not mention about transfer, in the employment of the complainant 2 transfer cannot be treated as condition of service. Sri Singh also extensively referred to the pleading regarding mala fides and submitted that the transfer of complainant No. 2 has direct connection and nexus with his active participation in the agitation which was started in the month of February 1998 whereby the complainant No. 1 union resorted to and staged its peaceful and lawful agitation resenting the proposal of shifting of registered office and head office of respondent 1 company from Mumbai to New Delhi.
5. On the other hand, Sri Cama, the learned senior counsel appearing for respondents 1, 2 and 3 supported the order passed by the Industrial Court and urged that the Industrial Court has prima facie considered the available material and did not err in passing the impugned order, and therefore, no case for interference is made out in extraordinary jurisdiction.
6. It may be stated that the learned counsel for respondents 1, 2 and 3 sought to refer the additional affidavits filed before this Court on August 28, 1998 but In view of the objection raised by Sri Singh that the contents of these affidavits do not form part of the material before the Industrial Court and, therefore, the said affidavits should not be considered, I do not think it fit to consider and refer to the three affidavits filed by the respondents.
7. Since the complaint filed by the complainants/petitioners is pending before the Industrial Court, I intend not to deal with the matter at length lest it may prejudice the case of either of the parties during trial of the complaint. However, suffice it to observe that respondents 1, 2 and 3 have placed on record an agreement dated November 29, 1984, entered into between respondent 1 company and the Federation of PTI Employees' Union. Complainant No. 1 union is admittedly affiliated to Federation of PTI Employees Union. This agreement was to be effective from January 1, 1985. Clause 4 (b) of the said agreement reads, "that while transfer is a condition of service, computerisation as such will not result in dislocation of personnel." Thus, it was accepted by the Federation of PTI Employees' Union that transfer of employees is a condition of service and that is duly reflected in the agreement dated November 29, 1984, which is effective from January 1, 1985 up to December 31, 1985. According to Sri Cama, the learned senior counsel appearing for respondents 1, 2 and 3 the said agreement is still operative though this fact is disputed by Sri Singh, the learned counsel for the petitioners. Be that as it may, the fact remains, looking to the nature of the business run by respondent 1 company, which is all over India having large number of officers at various places and the strength of nearly 1,500 employees, at this stage prima facie it cannot at be said that the transfer of the employees of respondent 1 Company was not incident of service. It is true that in the appointment letter of some employees it is specifically stated that service of such employees is transferable while there is no specific appointment order placed on record regarding the appointment of the complainant No. 2, but taking into consideration overall nature of employment, nature of business run by respondent 1 company and large number of its offices all over the country, at this stage it cannot be said that the Industrial Court erred in prima facie reaching the conclusion that the complainant No. 2 was holding a transferable post. Transfer being condition of his service, it cannot be said that respondent 1 company had no power to transfer the complainant No. 2. The first contention raised by Sri Singh, therefore, cannot be accepted prima facie.
8. Adverting now to the challenge to the transfer order on the ground of mala fides, it may be observed that complainant No. 2 employee is in the employment of respondent 1 company for more than 30 years. There is no dispute that the complainant No. 2 was office-bearer of the complainant No. 1 union for about seven years, i.e. for the period from 1985 to 1992 and during that time neither the complainant No. 2 was transferred nor any action was taken against him as a trade union leader. There is no dispute that the complainant No. 2 employee was initially appointed on the post of wireless operator and thereafter has been promoted from time to time from the post of junior technician to senior technician, Senior technician to engineer, engineer to regional engineer and regional engineer to senior Regional Engineer. As late as on January 29, 1998 the complainant No. 2 has been promoted from the post of Regional Engineer to Senior Regional Engineer. The mala fides are sought to be inferred by the complainant by alleging that from February 27, 1998 complainant No. 1 union, its office-bearers and other members started staging peaceful agitation against the respondent company's move to shift their registered and head office from Mumbai to New Delhi. The agitation was in the form of giving slogans during lunch hours. It was urged by Sri Singh during the course of arguments that the complainant No. 2 actively participated in the said agitation and was one of the two employees who gave fiery speech on April 13, 1998 and thereafter immediately on April 14, 1998, the respondents gave threats to two members, obviously one related to the complainant No. 2 and, therefore, to victimise the complainant No. 2 the transfer order was passed. The allegations in the complaint relating to in mala fides of transfer order reads thus:
(b) The complainants state and submit that from around February 27, 1998, the complainant No. 1 union, its office-bearers and other members are staging peaceful agitations against the respondents' move to shift their registered and head office from Mumbai to New Delhi and against decision of the respondents to implement the so-called voluntary retirement scheme. The agitation in the form of giving slogans during lunch hours. In fact, the complainant 1 union has duly informed the respondents about the agitational programme. The complainant union, with a view to protect the interest of its members, has also made representation to the State Government officials and other concerned authorities to stop shifting of the company's office from Mumbai to New Delhi. The complainants state and submit that as a result of lawful and peaceful agitation launched by the office-bearers, activists and other members of the complainant union, respondents 1, 2 and 3 as a measure of retaliation, have started naked victimisation of the office-bearers, activists and members of the complainant No. 1 union. The respondents have threatened that the employees will be dealt with firmly, in their letter, dated March 5, 1998, addressed to the Federation of the PTI Employees' union. Thereafter, vide notice, dated April 14, 1998, the respondents have given threats to two members of the staff and the respondents have levelled patently false allegations that the employees are trying to sabotage the work of the office through illegal and unjustified means.
(c) The complainant state and submit that on May 14, 1998, the respondents have issued a letter calling upon the General Secretary of the union to give explanation regarding the demonstrations by 5.00 P.M of May 15, 1998, failing which the General Secretary of the union was threatened with appropriate action. On May 14, 1998 itself the respondents have addressed a letter to the General Secretary of the Federation of PTI Employees Union, New Delhi, mentioning about the illegal demonstrations and slogans by the members of the complainant No. 1 union. The respondents have also questioned the federation as to whether the Federation is supporting the complainant No. 1 union, i.e., Mumbai union and further the respondents have asked the Federation as to what steps the Federation has taken to ensure that the Mumbai union does not indulge in illegal actions. In fact, letters, dated May 14, 1998, addressed respectively to the General Secretary of the complainant No. 1 union the General Secretary of the Federation are too vague and these letters also contain patently false allegations because, the demonstrations which are conducted, by the workmen/employees are absolutely peaceful and the respondents, with a view to victimise, have started taking punitive actions against the activists, office-
bearers and other members of the complainant No. 1 union."
9. This is only an interim stage and parties have yet to lead evidence, but suffice it to observe that in the complaint nowhere it is stated that the complainant No. 2 gave fiery speech on April 13, 1998. Though the complainants have sought to connect the transfer of complainant 2 with his active participation in the agitation which commenced from February 27, 1998, prima facie the material placed on record does not lead to that inference and is not sufficient to hold at this stage that the transfer order of the complainant No. 2 was intended to victimise him for his participation in the agitation initiated by the union on February 27, 1998. Moreover, the reasons of complainant 2's transfer from Mumbai to Calcutta set out by respondents 1 to 3 inspire confidence prima facie. It is worthwhile to note and to which, there is no dispute that respondent 1 company has three Senior Regional Engineers at Mumbai, two Senior Regional Engineers at Delhi and one Senior Regional Engineer at Calcutta. There is prima facie material on record to show that in the month of October 1997 and some time near that the respondents received a proposal from RPG Netcom to show PTI news in Calcutta through cable network and also got some proposal from, Technographics. For effectual implementation of the contract, it is averred by respondents 1 to 3 that services of one more senior Regional Engineer were required at Calcutta in addition to one Senior Regional Engineer who was already working at Calcutta. After due consideration, the complainant No. 2 was chosen for the job at Calcutta since he had the requisite skill and knowledge of communications technique which was essential for the discharge of duties relating to the two contracts. In the background of these reasons, the transfer of complainant from Mumbai to Calcutta as Senior Regional Engineer cannot be said to be actuated with ulterior motive or mala fide or in colourable exercise of power.
10. I have already indicated that since the complaint is pending and parties have yet to lead evidence the elaborate and detailed discussion by me at this stage may prejudice the rights of either of the parties in the complaint and, therefore, I am restraining from doing so, but I am satisfied that the impugned order does not suffer from any infirmity warranting interference by this Court in extraordinary jurisdiction under Article 226 of the Constitution of India.
11. The writ petition accordingly has no merit and is dismissed. Upon dismissal of the writ petition, the statement made by the counsel for respondents 1, 2 and 3 before this Court stands discharged. Sri Singh, the learned counsel for the petitioners, prays for continuation of the interim arrangement as the statement made by the learned counsel for respondents 1, 2 and 3 for a period of three weeks. Sri Cama, the learned counsel appearing for respondents 1, 2 and 3, seriously objects and submits that though the transfer order was passed way back in the month of May 1988, due to non-joining of duty by complainant No. 2 at Calcutta the work of respondent 1 company at Calcutta had suffered severely and, therefore, he is not in a position to make any statement to continue the statement made by him.
12. Since I do not find any merit in the contentions of the petitioners and I have dismissed the writ petition, I am satisfied that neither of the petitioners are entitled to any stay order nor respondents 1 to 3 can be compelled to continue their statement made by them during the pendency of writ petition. The oral prayer for stay made by Sri Singh is, accordingly, rejected. .
13. Hearing of the complaint is expedited. The complainants are given liberty to move the concerned Industrial Court for fixation of calendar of dates of hearing and completion of the trial of the complaint keeping in view the fact that the hearing of the complaint is expedited. Sri Cama, the learned senior counsel appearing for respondents 1, 2 and 3 makes a statement that as and when personal presence of complainant No. 2 is required at Bombay for prosecuting the complaint, and an application for leave is made by complainant No. 2 for that purpose, the respondent 1 company and its concerned officers shall pass appropriate orders and grant the same. In the background of the statement made by Sri Cama, Sri Singh, the learned counsel appearing for the complainants states mat complainant No. 2 shall not make an application for leave unless it is really necessary and his presence is required at Bombay.
14. Certified copy expedited.