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Madhya Pradesh High Court

President vs Director on 27 August, 2015

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                             Writ Petition No.12934/2015




27.8.2015.
                   Shri Anoop Shrivastava, learned counsel for petitioner.

                   Shri Anil Khare, learned Senior Counsel with Shri H.S.

             Chhabra, learned counsel for respondent.

Heard.

Petitioner-Union takes exception to an order-dated 21.7.2015 passed by Labour Court, Bhopal; whereby, application preferred by the petitioner for stay of transfer of its members, namely, Pankaj Jain, Sanjeev Kumar, Sandeep Kumar Tiwari to Coimbatore, Sirohi Distt. Pali and Bangalore respectively from Bhopal, has been rejected.

That, dispute was raised by the petitioner on 5.6.2015 before Deputy Labour Commissioner, Bhopal in respect of the action of respondent as to transfer and removal from service of some of its members, alleging that the same was arbitrary and with mala fide intention. With the failure of conciliation, the dispute was referred to for adjudication to Labour Court on 13.7.2015. The dispute which is referred for adjudication is -

1- D;k vkosndx.k loZJh v:.k dqekj lq;Zoa'kh] c`tsUnz ljofj;k] lanhi dqekj frokjh] latho dqekj ds'kojkt ik.Ms] izoh.k lkojdj] 'kdhy [kku] ;ksxs'k iaMkxjs] iadt dqekj tSu] fot; dqekj 'kekZ ,oa Jherh latuk latho dqekj }kjk izLrqr fookn ethfB;k osrueku dh voekuuk ds vk/kkj ij :: 2 ::

Writ Petition No.12934/2015

LFkkukarj.k ,oa lsok i`Fkdhdj.k dh dk;Zokgh vukosnd i{k }kjk fd;k tkuk oS/k ,oa mfpr gS ?

2- ;fn gka] rks bl lac/a k esa vkosndx.k fdl lgk;rk ds ik= gS ? bl laca/k esa vukosnd i{k dks D;k vkns'k@funsZ'k fn, tkus pkfg, ?

During pendency of adjudication of reference before the Labour Court, petitioner-Union filed an application for stay of transfer of three of its members, which was by orders-dated 26.5.2015 and 8.7.2015 on the ground that the same was in violation of Section 33 of the Industrial Disputes Act, 1947 (for brevity '1947 Act'), tantamounting to change in the condition of service. The application was opposed at by the respondent-

employer contending inter alia that transfer being incidence of service and being not the condition of service under Section 9A read with Fourth Schedule of 1947 Act, it was within the administrative power of the respondent to have transferred its employees who happen to be members of the petitioner-Union.

The Labour Court while dwelling upon these contentions and counter contentions, declined to interfere with the order of transfer on the finding that the petitioner-Union has failed to establish that transfer was the condition of service. As regard that the transfer is out of mala fide, Labour Court stated that :: 3 ::

Writ Petition No.12934/2015

being a matter of adjudication, the same will be considered only after evidence is recorded.

Learned counsel for the petitioner has reiterated the submissions as were putforth before Labour Court that the members of petitioner-Union during pendency of proceedings being change in the condition of service, Labour Court ought to have stayed their transfer. On the contrary, learned counsel for the respondent supports the order passed by Labour Court.

The issue which crops up for consideration is as to whether the transfer is the condition of service qua members of the petitioner-Union.

Section 9A of 1947 Act envisages that 'No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or within twenty-one days of giving such notice'. Exceptions are carved out in proviso appended to sub-section

(a) and (b) of Section 9A of 1947 Act.

Matters which are specified in Fourth Schedule are -

1. Wages, including the period and mode of payment;

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Writ Petition No.12934/2015

2. Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force;

3. Compensatory and other allowances;

4. Hours of work and rest intervals;

5. Leave with wages and holidays;

6. Starting, alteration or discontinuance of shift working otherwise than in accordance with standing orders;

7. Classification by grades;

8. Withdrawal of any customary concession or privilege or change in usage.

9. Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders;

10. Rationalisation, standardization or improvement of plant or technique which is likely to lead to retrenchment of workmen;

11. Any increase or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, not occasioned by circumstances over which the employer has no control.

Transfer being not one of the conditions of service, it is not obligatory for the employer to cause any notice for effecting transfer.

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Writ Petition No.12934/2015

Section 33 of 1947 Act which extends protection to the workman during pendency of industrial dispute reference is in respect of change effected to in condition of service. Sub- section (1) of Section 33 contemplates that during the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute.

Thus, unless it is established that transfer is the condition of service of workmen engaged with the respondent-employer, protection under Section 33(1) of 1947 Act is not available. In the case at hand, the petitioner miserably fails to establish that the transfer is condition of their services.

When the impugned order is tested on the anvil of above analysis, it cannot be faulted with as there is no jurisdictional error committed by the Labour Court.

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Writ Petition No.12934/2015

Since no indulgence is caused, petition fails and is dismissed. No costs.

However, Labour Court to make endeavour to expeditiously decide the reference preferably within a period of six months from the date of communication of this order.

(SANJAY YADAV) JUDGE vinod