Jharkhand High Court
Usha Workers Union Etc. vs Usha Martin Industries Ltd. And Anr. on 9 January, 2003
Equivalent citations: [2003(2)JCR264(JHR)], (2003)IILLJ1058JHAR, 2003 LAB. I. C. 1375, 2003 AIR - JHAR. H. C. R. 495, (2003) 4 SCT 339, (2003) 2 JLJR 671, (2003) 2 LABLJ 1058, 2003 LABLR 760, (2003) 2 JCR 264 (JHA), (2003) 5 SERVLR 486
Author: Tapen Sen
Bench: Tapen Sen
ORDER Tapen Sen, J.
1. This appeal is directed against the judgment/order dated 9.7.2001 passed by a learned Single Judge of this Court in CWJC No. 1885 of 2001, by reason whereof the writ application preferred by the respondents was allowed and the award of the Presiding Officer, Labour Court was set aside.
2. The essential facts which need to be taken note of is that on 13.1.1996 the concerned workman, namely, Anil Kumar Jha was transferred from Jamshedpur to Bombay. At the relevant time he was working in the Purchase Department and by reason of the order of transfer he was directed to report for duty at Bombay by 24.1.1986. It was also intimated in the order of transfer that he would be relieved from his duties at Jamshedpur from the close of the working hours of 16th January, 1996. A dispute was then raised by the Union and on 17.9.1996 the same led to a reference being made by the Government of Bihar to the Labour Court, Jamshedpur to adjudicate as to "Whether the transfer of Shri Anil Kumar Jha, Ticket No. 72353, M/s. Usha Martin Industries Ltd. [Usha Alloys Steels Division], Jamshedpur from Jamshedpur to Bombay by the management is proper? If not, what relief the workman is entitled to?"
3. Before the Labour Court, the Union filed a Written Statement wherein they made specific statements in relation to the Trade Union Activities of the concerned workman and stated at paragraph 3 thereof that he was an active member of the Union and had been playing a very vital role in organising the workmen and representing their cause before the management under the banner of Usha Workers' Union. They further stated at paragraph 4 of the said Written Statement that the concerned workman was initially appointed as a Commercial Trainee by a letter dated 21.4.1979 [Annexure 'A' to the Memo of Appeal], but no formal training was given to him and he was made to perform duty like any other employee and on satisfactory completion of a period of one year he was given a formal letter of appointment dated 1.5.1980. According to the Union the aforementioned letter dated 1.5.1980 contained general terms and conditions of employment but did not contain any terms or conditions in respect of the right of the management to transfer him from one place to another or from the department to another.
4. The Union further specifically stated that the concerned workman had lost the original copy of the said letter of appointment dated 1.5.1980 but had put his acknowledgment on the original which had been retained by the management and therefore, the onus lay on the management to bring the said acknowledged copy of the letter on record of the case. They have further stated that the letter dated 1.5.1980 which was a formal letter of appointment designated the concerned workman as 'Staff on Special Duty' [SSD] for a period of one year. According to the Union this period was extended for a further period of six months by a letter 1.5.1981 inspite of representation filed by the workman on 19.8.1981. Thereafter he was placed as a Senior Clerk with effect from 1.11.1981 and was promoted as a Personnel Assistant with effect from 1.4.1982 and his work was found to be satisfactory.
5. Further case of the Union before the Labour Court was of malice and they specifically stated at paragraphs 6 to 17 of the Written Statement that the workman by reason of his being an employee of the Company became a member of the UMB Mazdoor Sangh, a recognised Union representing the cause of persons employed in the Company with effect from 1.10.1982. He was also elected as Joint Secretary of the said Sangh and in that capacity he brought irregularities to the notice of the management which was not appreciated by them. Consequently he was issued with a charge-sheet dated 3.11.1982 containing some allegations and which ended with the issuance of a warning to him and that too at the intervention of then Working President of the Sangh, Mr. M.P. Singh. They further stated that the concerned workman had been subjected to unfair labour practices, victimisation and harassment for his trade union activities. They started taking arbitrary action against him one after the other on account of his growing popularity. They firstly transferred him to the Security Department from the post of a Personal Assistant with effect 25.11.1982 as a measure of punishment. Being aggrieved, the Sangh filed a representation and it was also accompanied by a delegate of the Sangh consisting of about 15-20 active members, but it was also not appreciated by the management, which in turn, issued a charge-sheet dated 29.11.1982 and placed him under suspension pending inquiry. This result in a strong protest by the Sangh and a token strike for one day, i.e. 1.12.1982. In the meantime, the workman had also submitted his explanation to the above-mentioned charge-sheet and a domestic enquiry was also initiated, but when the management felt that it was not going to succeed, and at the intervention of the President of the UMB Mazdoor Sangh Staff Cell, his order of suspension was revoked and he joined in the Security Department. In the said department, the work of the workman was found to be very good but in order to further harass him he was again transferred to the Commercial Department as a Commercial Assistant with effect from 1.8.1983. He worked very sincerely but the management did not allow him to work peacefully and again a charge-sheet dated 13.8.1984 was issued and till the time of filing of the Written Statement, the Union stated that it was yet to hear from the management about further steps taken in that respect and since there was silence on the part of the management, the concerned workman was led to believe that the charge-sheet had been dropped and his explanation accepted. The Union further stated before the Labour Court that the workman was again transferred from the Commercial Department to the Accounts Department with effect from 2.7.1984 where again, he worked satisfactorily but once again in order to harass him, the management issued a letter dated 9.7.1985 warning him to perform his duties diligently. The concerned workman replied by his letter dated 1.7.1985 refuting the allegations but once again nothing was heard thereafter till the time of filing of the written statement before the Labour Court.
6. Thereafter, the Union stated before the Labour Court that the management started harassing the concerned workman by not assigning any work to him as a result whereof, he made several representations and he was also deprived of his annual increment without any valid reason.
7. According to the Union, when they did not find any other reason to proceed against him, they transferred him with effect 1.2.1986 from the Accounts Department to the Purchase Department, but even there the officials stopped assigning work to him without any reason. Representations and reminders were sent but once again, nothing was heard even till the date of filing of the written statement by the Union.
8. The Union further stated before the Labour Court that the entry of the workman inside the works premises was prohibited although he was in possession of a valid gate pass and he was neither allowed to have medical attention from the Company's doctor inside the works nor was he allowed medical attention from any outside doctor. He filed a representation to different authorities including the Inspector of Factories as also the Deputy Chief Inspector of Factories, Government of Bihar. This apart, the Union further stated that the management resorted to various irregularities in relation of payment of salary and other benefits to him and inspite of sanction of leave, he was deprived of his salary for 23.11.1995 and the forenoon of 24,11.1995.
9. The Union also stated that the company should not have deprived the concerned workman of his salary for the aforementioned dates as a complaint case bearing No. C/2-857 of 1995 was pending in the Court of the Judicial Magistrate First Class, Jamshedpur in which warrant of arrest had been issued against him. The workman was required to attend on 23.11.1995 and 24.11.1995. However, the warrants of arrest were recalled by order dated 24.11.1995 issued at 11.30 a.m. The management was aware of the aforesaid facts and therefore stopping his salary for those dates was a further act to harass him.
10. The Union further stated before the Labour Court that the concerned workman was again implicated in a proceeding under Section 107, Cr PC. Vide Miscellaneous Case No. 1358 of 1995. His presence was required in that case on various dates including 8.12.1995, 20.12.1995 and 5.10-1996. He consequently filed leave applications, but in order to harass him, leave was not sanctioned.
11. Thus, that the Union stated before the Labour Court was that the concerned workman was harassed at every stage of his functioning. They further narrated other instances of harassment and finally at paragraph 13 of the Written Statement they stated that after a well thought out plan and with the intention to remove him and put him in the unprotected category he was promoted as Assistant Officer (Commercial) and transferred to Vishakapatnam which, the workman declined to accept. Thereafter the management started entrusting jobs which were disproportionate to his capacity and also launched various criminal cases against him. They also issued charge-sheets and in each one of them explanations were filed and in some of the inquiries that were conducted, the same were held by following a procedure which was not in accordance with law and in one of the inquiries the concerned workman had filed a request for change in the Enquiry Officer and after receipt of the said letter dated 13.1.1996, the management issued the letter dated 13.1.1996 transferring him to Bombay and simultaneously relieved him of his duties from the close of the working hours of 16.1.1996.
12. The Union, therefore, specifically pleaded unfair labour practice, malice and transfer as a measure of punishment.
13. The management, on the other hand also filed a Written Statement and stated that it is the usual practice of the Company to transfer its employees from one branch to another or from one factory to another whenever required and whenever exigencies so required and it was also in the exigency of the work that the concerned workman was transferred to Bombay. They further stated that by reason of the order of transfer he ceased to have any connection with the Jamshedpur Office after 16.1.1996 and inspite of lawful orders he did not comply and did not join at Bombay.
14. The management had also filed a rejoinder to the Written Statement of the Union/concerned workman and in reply to paragraphs 6 to 17 they had stated as follows :--
6. Paragraph 6 of the WS.--No comments. The concerned workman is called upon to strictly prove the statements made therein as well as their relevance in the instant case.
7. Paragraphs 7, 8, 9, 10, 11 and 12 of the WS.--That in paragraph 7 of the WS Under reply, the concerned workman has admitted that while he was working in the Personal Deptt., he was transferred to the Security Deptt. of the management on 22.11.1982 where he ultimately joined, in other words, he accepted his transferability from one department to another department of the management as per the condition of his letter of appointment and as such now it does not lie in his month to take the plea that his services were not transferable.
So far as the Charge sheets allegedly issued to the concerned workman are concerned, the proceedings thereof are matters of record and shall abide by the same. At any rate the said matters bear little relevance to the present case. It is further asserted that at no stage did the management take any improper or undue step against the concerned workman with the intention of harassing or victimising him.
The statements made in paragraphs 7 and 8 of the WS under reply prove the transferability of the services of the concerned workman and the fact that he accepted and acted in compliance of his transfer orders without raising objection that his services were not transferable.
He has stated no where in the said paragraph of the written statement that he had raised the objection that his services were not transferable. That makes it clear that the objection that his services were not transferable is an incorrect and false plea raised as an after thought for the sake of convenience in the instant case for the first time.
It is reiterated that at no stage did the management act in any manner to torture or victimise the concerned workman by adopting any unfair labour practice.
It is submitted that the plethora of allegations made in the said paragraphs under reply, hardly bear any relevance in the present case wherein the moot question is whether the services of the concerned workman were transferable as per one of the conditions of his service. It is however, pertinent to point out that the concerned workman is taking resort to the volumes of allegations against the management as contained in the paragraphs under reply for the first time in the written statement filed by him in the instant case did never before that. He would have been better advised to take appropriate steps against the management or any of its officers in accordance with the legal remedies provided in the Industrial Disputes Act regarding workman's harassment, torture or unfair labour practice at the relevant time and not having done so, he can not be permitted to fall back upon all those allegations of the past for the first time in the Instant case.
All these allegations are matters of record and subjudice in the competent Courts of law and can not be permitted to be agitated before this Hon'ble Court in the instant case.
8. Paragraphs 13, 14, 15 and 16 of the WS.--That the statements made in paragraph 13 of the WS are self contradictory in as much as it is admitted therein that the concerned workman was promoted in service and still he wants to make out the case of victimisation. It is worth noticing that his statements are vague against the management, as a whole without naming any of the officials, who had the intention pr motive to harass or victimise the concerned workman and for what reasons. The allegation of conspiracy against any management, as a whole can be of no avail. It is reiterated that the matters and facts which are involved in GR Case No. 1798 of 95 and Misc. Case No. 1356 of 95 can not be permitted to be agitated in the present proceeding of this Hon'ble Court. It is stated that the management has not implicated the concerned workman in any Criminal Case falsely.
As regards the charge-sheets and departmental enquiries against the concerned workman, suffice to say that those proceedings have been dropped and no punishment has been imposed upon the concerned workman on those counts, which clearly shows that the management has had no intention to victimise the concerned workman at any stage or bore any notice against him.
As regards the grievance of the concerned workman in the matter of appointment of Enquiry Officer as stated in paragraph 16 of his WS, it is clear that on his request, Shri S.K. Pande was removed and Shri B.P. Sharma was appointed as the Enquiry Officer and ultimately no action was taken against the concerned workman nor was any penalty imposed upon him. Obviously therefore, the plea of victimisation stands negative in his own written statement.
9. Paragraph No. 17 of the WS.--In reply to the paragraph No. 17 of the WS, it is hereby refuted by the management that the concerned workman has transferred because the charges levelled against him in the departmental proceedings were baseless and can not be proved. On the other hand, the concerned workman was transferred in accordance with the condition of his service about his transferability and purely in the exigencies of services of the management without any ulterior motive. It is patently clear that had the management any idea or intention of imposing any penalty upon the concerned workman, the management could have continued to go on with the departmental proceedings against him instead of dropping those proceedings and merely transferring him as per the condition of service.
10. Paragraph No. 18 of the WS.--It is vehemently denied that the transfer of the concerned workman from Jamshedpur to Bombay was not unjustified, improper, illegal or against the terms and conditions of his service. The concerned workman is called upon to substantiate the false statements made in respect of his order of transfer by corroborate evidence. As a matter of fact, the Criminal Cases in question are the results of the misdeeds of the concerned workman himself and as such, the pendency of the said cases can not be considered to be good, valid or proper ground for not transferring the concerned workman which was necessary in the exigencies of services of the management. In one of the Criminal Case namely GR Case No. 1798 of 95 the concerned workman is being prosecuted for having committed forgery in a valuable Register of the Management.
15. Mrs. Anubha Rawat Choudhary has argued and has submitted that the impugned order of transfer was illegal basically for three reasons :--
(a) That it was resorted to as a measure of punishment for the trade union activities of the concerned workman;
(b) That the management did not have the power to transfer the workman from Jamshedpur to Bombay; and
(c) The concerned workman was a petty employee and by being forced to join at Bombay, his living conditions would totally change and he would be subjected to acute harassment as cost of living in Bombay and higher than that in Jamshedpur.
16. She has further stated that the letter of appointment which was issued on 1.5.1980 contained various terms and conditions but it did not contain any condition that the management could transfer the concerned workman. In this context it would be relevant to mention that the letter dated 1.5.1980 upon which such heavy reliance has been placed by the management was brought on record by them before the Labour Court vide Exhibit 'X'. The same has been marked Annexure 'B' to this Memo of Appeal. This letter was shown to the concerned workman in his cross examination but he denied that it was a photocopy of the actual appointment letter dated 1.5.1980. The Labour Court has dealt with this issue and while refusing to rely on Exhibit 'X' he has very rightly stated that the concerned workman had all along taken the plea that this exhibit is not the original letter of appointment and that the real copy on which he had signed was retained by the management. The workman had put his endorsement of receipt with date on the original copy but it was never produced by the management and when Exhibit 'X' was shown to the concerned workman he denied that it was a copy of the actual appointment letter. Thus, the contention of the management to the effect that there was a term that the concerned workman could be transferred was rightly not taken into consideration and the Labour Court therefore, correctly held that the Exhibit 'X' cannot be relied upon.
17. The second submission of Mrs. Rawat was that the actual letter of appointment did not contain any such term and condition and therefore in absence of such a condition, only the standing orders could prevail. She further submitted that at the relevant time, there was no such Standing Order save and except the Works Standing Order (Annexure-J and 4/1 to this Memo of Appeal) which did not contain any power to transfer an employee.
Countering the aforementioned submission, Mr. A.K. Mehta, learned counsel for the respondent stated that the power to transfer an employee is inherent and under the provisions of the Industrial Employment Standing Orders Rules, 1946 the power to transfer is provided under Rule 2(A). According to him Rule 2(A)[10(B)] of the aforementioned rules makes transfer an inherent right of the management and is to be provided in the standing orders relating to all industrial establishments. The aforesaid contention of Mr. Mehta cannot be accepted inasmuch as Rule 10(B) of Rule 2(A) was inserted for the first time by GSR No. 30(E) dated 17.1.1983. The appointment of the concerned workman was firstly made on 21.4.1979 and thereafter on 1.5.1980. The power to transfer became an inherent right as per the amendment brought in the Industrial Employment (Standing Orders) Central Rules 1946 on and from 17.1.1983 but as per the Works Standing Order which was marked Exhibit W/12 of Usha Martin Black Limited [Annexure 4/1 of the memo of appeal], and which appear to have been in force at the time when the concerned workman was appointed, there is no such charging provision that gives the right of transfer to the management. In that view of the matter the argument to the effect that the Industrial Employment (Standing Orders) Central Rules. 1946 confers an inherent power of transfer cannot be accepted. Moreover, Mr. Mehta was unable to establish that the management had incorporated the provisions of Rule 10(B) of Rule 2(A). In fact during the course of arguments and when confronted, Mr. Mehta frankly admitted that even after 1983 the management had not incorporated Rule 10(B) of Rule 2(A) of the aforementioned Rules. Even the Works Standing Orders that is marked Annexure-J and 4/1 to this Memo of Appeal cannot come to the rescue of the learned counsel for the respondents inasmuch this was in existence at the time of appointment of the concerned workman but this does not provide any enabling provision by which the management can be said to have the inherent right to transfer a petty employee. All that it provides for is Rule 17 and it merely says that refusal to accept a transfer order or non-compliance of a transfer order would amount to a misconduct. The learned counsel for the respondent has not been able to produce any document which can be said to confer power upon the management to transfer a petty employee from Jamshedpur to Bombay.
18. Thus, from what has been stated above what appears is that prior to 1983, the management has not been able to show nor bring on record even a chit of paper to show that they had right to transfer.
19. Be that as it may and, noticing that the Standing Orders did not provide any power to transfer, we must hasten to add that, that by itself, cannot be said that the Management has no inherent right to transfer. In the case of State of Punjab and Ors. v. Joginder Singh Dhatt, reported in AIR 1993 SC 2486, it has been held by the Supreme Court as follows :--
"....This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present place of posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused"
The aforesaid judgment of the Supreme Court relates to a public servant and to a public body. In the instant case, the employer is a private organization and therefore the right to transfer must flow from the contract of employment/service regulations. In public bodies, the management has the inherent right to transfer its employee and the Courts normally do not interfere unless it can be shown that the order of transfer :--
(a) is punitive in nature;
(b) is not in administrative exigencies;
(c) is mala fide; and
(d) is influenced by political recommendations.
20. In the Instant case, we must take note of the detailed facts pleaded by the parties and which have been narrated both in this memo of appeal as well as in the Written Statement filed by the Union. From a bare reading of the pleadings and upon reading between the lines one has no option but to reach to the inescapable conclusion that a number of events took place which perhaps forced the employers to take the extreme decision of extricating the workman from Jamshedpur and flinging him to a far-flung place like Bombay with the hope that an ordinary employee like him would be forced to face the rigours of a modern city life and would perhaps relent. These are just thoughts but they become fortified when we find that the management did not even bother to produce the original letter of appointment thereby remaining silent to the repeated assertions of the workman that it did not contain any provision to transfer. If the management was so sure that it did have this power and that it was one of the terms and conditions of the letter/contract of employment, then they should have jumped at this opportunity and should have brought that letter on record before the labour Court. Their action in not doing so forces us to have grave doubts and makes us inclined to accept the contention of the workman that in fact there was no such stipulation in the letter of appointment. In the instant case, the letter of appointment was a crucial document which the management should have been brought on record. The Letters Patent Appellate Court cannot reappraise evidence nor can it go into the exercise which has already been resorted to by the original Court, i.e., the Labour Court. In the instant case, we have already held that the Labour Court rightly did not rely upon Exhibit 'X', i.e., the letter of appointment dated 1.5.1980. Since, the concerned workman repeatedly stated that this was not the original document and that the original was with the management and which contained his signature, it was the duty of the management to produce that document before the Labour Court. The management is the custodian of service documents of an employee and having chosen not to produce the original before the Labour Court, we cannot hold the action of the Labour Court in not placing reliance on Exhibit 'X' to be improper. In fact, we uphold the view of the Labour Court and we repeat that he correctly did not rely on Exhibit 'X'. In view of the non-production of the original letter by the management, we are compelled to draw an adverse inference that the concerned workman held a "non-transferable" post and his order of transfer was not in the exigencies of administration. This being the position, an employee of a private organization cannot be deemed to be ipso facto subject to the inherent right of the management to transfer whenever it so desired. Administrative exigency is the watch word and unless the management is able to establish that there was in fact such exigency, it must be held that the transfer was used for oblique reasons. Let it be recorded that we are not, even for a moment suggesting that the above mentioned criteria will be applicable in public sector undertakings also because in such undertakings a public servant can be transferred by the employer whenever and wherever it wants and the Courts cannot interfere unless the conditions referred to above exists. In private organizations however, the right to transfer cannot be canvassed as an inherent right and it would depend on either the contract of employment or the Standing Orders. It would also depend upon the category of employment and a low paid employee should not be transferred in a routine matter because of so many reasons that may make his/her life miserable. For example, if a low paid employee like the concerned workman is suddenly made to go to a metropolis, his very existence there would become fraught with problems. His family would stand uprooted, his children may not get admission into good institutions and his paltry salary may hardly be sufficient to meet the expenses of a city life. Consequently, such an order of transfer in respect of petty workmen must be exercised very sparingly and only in the exigencies of administration.
21. Mr. A.K. Mehta, learned counsel for the respondents referred to the judgment of National Hydro-Electric Power Corporation Ltd. v. Shri Bhagwan and another and submitted that the transfer of an employee from one place to another is not only an incident of service but it is implied condition of service whenever public interest and efficiency of administration is necessary. But in this case, we are not impressed by this argument inasmuch as nothing has been brought to us to show that was the public interest or administrative exigency that warranted the transfer the workman from Jamshedpur in Jharkhand to Bombay in Maharashtra. From the pleadings made, what stands revealed to us is the repeated harassment caused to the employee narrated in the manner stated above and when he wanted a change of the Enquiry Officer, the management immediately transferred him to Bombay. The case therefore stings of implied malice and it also points to an action resorted to as a measure of punishment. Additionally, the Company is not a public sector undertaking and therefore the management cannot claim immunity and assert that it has an inherent right to transfer its employee.
22. Mrs, Anubha Rawat Choudhary, learned counsel for the petitioner further submitted that from a perusal of the judgment/order of the learned Single Judge it was itself clear that at paragraphs 9 and 10 it was taken note of the fact that the Standing Orders are absolutely silent in so far as it relates to the matter of transfer. Having so held, she submitted that the learned Single Judge should have, therefore, come to the inevitable conclusion that the management, in the instant case, had no right to transfer the concerned workman. Instead of doing so, the learned Single Judge came to a conclusion that "transferring a person, because of troublemaker or because of his being a troublesome, in cases, may become a good weapon to transfer such employee in the interest of administration and cannot be characterised as punitive."
The learned Single Judge, therefore, held that in that background, it was not open to the Presiding Officer to interfere with the order of transfer on the mere ground that the management had failed to prove that it had the power to transfer.
23. We are unable to agree to such reasonings because the "tool" of transfer cannot be allowed to be used as a "weapon" in the "interest of administration".
The interest of administration can be safeguarded by setting into motion the disciplinary law but certainly not by removing an employee by transferring him.
The pleadings in this case show that prior to 1983 the service conditions did not contain any provision to transfer. Neither did the management bring on record any document to prove that it had that right. In that event, the management could have transferred but only on extreme administrative exigencies. But what was the nature of administrative exigency in the instant case, has not been proved. On the contrary and as has already been stated above, we are left with only the pleadings of the parties which show that the petitioner who was a member of a trade union and who was exercising his rights in that capacity was subjected to repeated proceedings including charge sheets and criminal cases, and only when he prayed for a change of the Enquiry Officer that the management proceeded to transfer him. We therefore hold that the Order of transfer was not in the administrative exigencies. It was an indirect act to remove the concerned workman to a distant and far flung place like Bombay. So far as the question of malice is concerned, we are of the view that the sequence of the factual happenings does point to an action resorted to by the management to remove the concerned workman to a far flung place which definitely would have caused extreme hardships to him. It would have entailed various consequences to the prejudice of the concerned workman and these consequences include non appearance in the criminal cases launched against him and also to fend for himself in a highly expensive place such as Bombay. We cannot lose sight of the fact that he was a petty employee. In a judgment of the Supreme Court in the case of the State of Madhya Pradesh v. Shankar Lal and Ors., reported in AIR 1980 SC 643 it has been held as follows :--
"We, must however, hasten to add that in case of employees getting small emoluments the power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of Mpl. employees getting small salaries..."
24. It is true the Presiding Officer, Labour Court did not accept mala fide in the absence of supportive evidence. However, we are of the view that that part of the award of the Labour Court was not proper inasmuch as if the pleadings and documents are read between the lines, implied malice is writ large on the face of the records and the order smacks of an order passed on punitive considerations.
25. Mr. Anoop Kumar Mehta, learned counsel for the respondents raised a preliminary objection and stated that by order dated 17.9.2001 passed in this case, a Division Bench of this Court had, while modifying the earlier order dated 18.7.2001 and while passing an order of stay of the interim order had directed that in the meantime the workman has to report for duty at his present place of posting and his failure to do so shall entail all consequences. According to Mr. Mehta, the concerned workman has not yet reported for duty at Bombay and has therefore not complied with the order dated 17.9.2001. He has further stated that being aggrieved by the aforesaid order dated 17.9.2001, the Union had preferred as SLP before the Supreme Court which was also dismissed on 11.1.2002 with the observation that the appeal pending before the High Court should be expedited. According to Mr. Anoop Kumar Mehta, therefore, the order dated 17.9.2001 having not been complied with, no relief should be granted in favour of the concerned workman.
26. We refrain from making any comments in respect of the aforementioned interim order inasmuch as we are now finally convinced that the order of transfer was not proper and therefore we do not propose to make any indications in this regard.
27. For the reasons stated above, this appeal is allowed and the order of the learned Single Judge is set aside. Consequently, the award dated 21.10.2000 holding that the transfer of the concerned workman was not proper and justified is upheld. However, there shall be no. order as to costs.
V.K. Gupta, C.J.
1. I have had the advantage of going through a very lucid, very well reasoned and detailed judgment of my learned brother Tapen Sen, J. with which I fully agree and concur, but because I thought the facts of this case so warrant, I should write a few lines of my own, expressing in addition to what my learned brother Tapen Sen, J. has held, my own views and also highlight some facets of the controversy between the parties.
2. Undisputedly, the workman was initially employed as a trainee in April, 1979 and it was only on 1st May, 1980 that he was confirmed in service by way of his regular appointment as an Inspector. The appointment order dated 21st April, 1979 did contain a stipulation that the workman was liable to be transferred to any branch or office of the Company etc. etc. This was contained in para 7 which reads thus :--
"While you will be initially placed at our Jamshedpur works for your general training as well as specific on the job learning, you can be transferred to any Branch or Office of the Company or any other Company allied to Usha Martin Black (Wire Ropes) Limited,"
3. In para 4 of the same appointment order, however, it was clearly mentioned that subject to successful completion of training, the workman would be offered a suitable position on mutually acceptable terms and conditions. Para 4 reads thus :--"After your training period has expired, your progress will be reviewed. Subject to your successful completion of training, you will be offered a suitable position on mutually acceptable terms and conditions."
4. It was on 1st May, 1980 accordingly that the workman was offered the post of Inspector, but by styling him as "Staff on Special Duty". Since heavy reliance was placed by the respondents before the Labour Court upon the power of transfer as is contained in the said Appointment Order, it shall be advantageous to reproduce para 5 of the Appointment Order :--
"While your appointment is at our Jamshedpur Works your services are transferable to any Branch or office of the company or to any other company allied to Usha Martin Black Limited."
5. As per the finding of the Labour Court, April 79 order was only with respect to appointment as a trainee and May, '80 order actually was the order which appointed the workman on the post of Inspector. Not only that, April, 1979 order contained a clause that after successful completion of training, the appointment would be given on mutually acceptable terms and conditions. Therefore, as per the finding of the Labour Court, any stipulation regarding transfer as contained in April, 1979 order lost its effect because of the subsequently issued 1st May, 1980 order. As far as the 1st May, 1980 order is concerned, it is the finding of fact by the Labour Court that the workman had lost the original of that Order and the workman had informed the appellant about the loss of the original. Therefore, the onus was upon the appellant to produce the authenticated genuine office copy of the said Order. The workman's contention was that the office copy should have contained an endorsement reflecting the acknowledgement of the workman of having received the original. Since the office copy as produced by the respondent in the Labour Court did not contain such an endorsement of the acknowledgement, the Labour Court found (on a question of fact) that the office copy, as produced by the respondent, was not genuine and authentic and that it was a manufactured document. In view of this finding of fact by the Labour Court, any stipulation in the so called office copy of the 1st May, 1980 Order with respect to the transferability of the workman lost merit and significance. We may reproduce hereinbelow the aforesaid finding of the Labour Court :--
"It will be relevant to mention in this connection that from the very beginning the workman has contended that the appointment letter which has been served to the workman is missing and in this connection the workman had written several letter to the officers of the management since year 1982. The several letter had been written by the workman to management Ext. W/D and W/e endorsement of receipt of the petition of the workman dated 29.11.1982, Ext. W/1 (q) a letter dated 3.2.1986 written by the workman to the management and Ext. W/1 (R) a letter issued by the officers of the management to the workman that the letter of the workman dated 3.2.1986 has been forwarded to the concerned department. In this letter, it has been clearly mentioned that on the ground of transfer and adjustment of table lock of the drawer of the workman has been broken and several document of the workman including appointment letter had been taken away by the officers of the company. In this connection the workman has also sent a letter dated 5.8.1994 Ext. W/l (t), letter dated 22.3.1994 Ext. W/1 (q), letter dated 25.10.1994, Ext. W/l(w). In respect of non-production of office copy of the appointment letter dated 1/5/1980 of the workman. No satisfactory explanation has been given by the management and in this connection only at the time of cross-examination of the workman, it has been tried to suggest that the workman has taken away the office copy of the management from the office of the management. This suggestion of the management has been denied by the workman. In this connection my attention was also drawn towards para 13 of the MW/1 Shri M.K. Srivastava that according to this witness once upon a time the workman was working in Time Office of the Personnel Department of the company and at the same time he has also stated that the employee who was working in the Time Office of the Management did not use to see or peruse the personal file of other employee. Thus on the basis of above discussed facts and evidence it is clear that the ...management had neither produced office copy of the appointment letter dated 1.5.1980 and nor given any satisfactory evidence for non-production of the above appointment letter which bears the endorsement of receipt given by the workman. In the circumstances, in my opinion no safe reliance can be given on alleged letter of appointment dated 1.5.1980 which has been marked as X for identification."
6. Learned Single Judge in the judgment under challenge in this appeal did not upset the aforesaid finding of fact by the Labour Court. The respondent also did not challenge the aforesaid finding of the Labour Court in this appeal nor did it file any cross appeal seeking the Court's permission to challenge the aforesaid finding. In this Appeal at this stage, it is neither permissible for us nor do we feel inclined on a proper appreciation of evidence to upset the aforesaid finding of fact as returned by the Labour Court. We are of the firm view that the aforesaid finding of fact by the Labour Court with respect to non-genuineness of the copy 1st May, 1980 Order does not suffer from any perversity and is a finding based on proper appreciation of evidence.
7. What, therefore, emerges on a question of fact is that in the service contract between the workman (the appellant) and the employer-respondent, there is no stipulation that the workman is liable to serve anywhere. In other words, the service contract does not contain any provision or stipulation that the employer-respondent has the right to transfer the appellant from one place to another.
8. Mr. A.K. Mehta, learned counsel appearing for the respondents made a halfhearted reference to the provisions of Industrial Employment (Standing Orders) Act, 1946, particularly, Section 12A thereof which deals with the temporary application of Model Standing Orders and submitted that on the basis of the applicability of Section 12A, we should presume that the respondent-employer had the right to transfer the workman from one place to another. Section 12A (supra) reads thus :--
"12A. Temporary application of model standing orders.--(1) Notwithstanding anything contained in Sections 3 to 12, for the period commencing on the date on which this Act becomes applicable to an industrial establishment and ending with the date on which the standing orders as finally certified under this Act come into operation under Section 7 in that establishment, the prescribed model standing orders shall be deemed to be adopted in that establishment, and the provisions of Section 9, Sub-section (2) of Section 13 and Section 13A shall apply to such model standing orders as they apply to the standing orders so certified.
(2) Nothing contained in Sub-section (1) shall apply to an industrial establishment in respect of which the appropriate Government is the Government of the State of Gujarat or the Government of the State of Maharashtra."
9. When pointedly asked by us, Mr. Mehta, however, very fairly and frankly submitted that there was no Standing Order, either a Certified Standing Order or a Model Standing Order which contained any provision or stipulation whereby it could be said, or even inferred or gathered that the employer had the power to transfer the workman from one place to another, Section 12A (supra) undoubtedly does contain a provision that till such time as the Standing Order (as finally certified under the Act) comes into operation, the prescribed Model Standing Orders would be deemed to be adopted in the concerned establishment. We have no quarrel with that legal proposition, but on a question of fact, we had to find out, (1) whether there was any Certified Standing Order which contained any provision empowering the employer to transfer the workman, or (2) before any such Certified Standing Order came into effect, whether in any Model Standing Order there was any such power (of transfer) vesting in the employer. On a question of fact, Mr. Mehta very frankly and fairly submitted before us that neither the Certified Standing Order nor the Model Standing Order contained any such provision empowering the employer to transfer the workman from Jamshedpur to Bombay.
10. "Transfer is an incidence of service" is an adage which may be applicable to the Government servants or the employees of Public Sector Undertakings or such Institutions which are governed by the constitution or statutory Rules or Regulations. An Industrial establishment, the like of the respondent which is covered by the Industrial Employment (Standing Orders) Act, 1946, cannot claim any inherent right of transferring an employee from once place to another. In such an employer, the right of transfer does not inhere. With respect to the workman, working in such an industrial establishment, it cannot be said that transfer is an incidence of service. The transfer in such an industrial establishment not being an incidence of service, and the employer not having any inherent right to transfer, the only way a transfer can be effected is either if the transfer provision is contained, legitimately and on proper application of 1946 Act, in the Certified Standing Orders or the Model Standing Orders, or alternatively if the service contract contains any stipulation to that effect.
11. Mr. Mehta relying upon a Division Bench Judgment of Allahabad High Court in the case of U.P. State Sugar Corporation and Anr. v. Bipin Kumar Mishra, reported in 1994 (I) LLJ 1004 and a Single Bench judgment of Karnataka High Court in the case of Shanmugam v. Mysore Mineral Ltd., reported in 1986 (1) LLJ 464, submitted that it is open to an employer to frame Rules and Regulations and to prescribe in the Rules and Regulations its power to transfer an employee from one place to another. Even though on facts, both these judgments can easily be distinguished from our case, but applying the aforesaid proposition of law, we have no hesitation whatsoever in holding that Mr. Mehta could not bring to our notice any Rule, Regulation or even an administrative order or an executive instruction framed or issued by the respondent, whereby it reserved to itself the power to transfer an employee from one place to another. On the other hand, in the case of Kundan Sugar Mills v. Ziyauddin and Ors., reported in AIR 1960 SC 650, their Lordships of the Supreme Court very clearly held that apart from any statutory provision, the right of an employer for transferring an employee from one place to another is covered by the terms and conditions of employment between employer and the employee or by the terms necessarily implied therefrom.
12. The Supreme Court in the case of Employers in relation to the Madhuband Colliery v. Their Workmen, reported in 1966 (12) FLR 274, while dealing with the question as to whether workman can be transferred from one place to another clearly observed and held that either the service contract expressly should contain a provision regarding transfer or the Certified Standing Orders may provide for the stipulation of transferring a workman from the place to another, or in the absence of either of the aforesaid, the Service Rules of the employer which apply to the concerned workman should contain a provision regarding the transfer. The following observations are apposite :--
"In the absence of any express contract between the parties or in the absence of certified Standing Orders it must be held that the conditions of service of the respondent are governed by the Service Rules of Karam Chand Thapar and Brother Ltd. Ex.M. which applied to the employees of all the Companies under the Management and control of Karam Chand Thapar and Brothers Ltd. It is admitted that Madhuband Colliery and Central Sounda Colliery are both under the management of Karam Chand Thapar and Brothers Ltd. who are the Managing Agents of these Collieries."
13. Their Lordships of the Supreme Court in the aforesaid judgment, therefore, were clearly of the view that it is either the service contract or the Certified Standing Orders or if none of them, the Rules of the Company which may provide for the transfer of a workman from one place to another and if the transfer provision is not contained in any one of these three, it is not open to an employer to transfer a workman from one place to another.
14. A Division Bench of Gujarat High Court in the case of Automotive Manufactures Ltd. v. Nanalal Panachand Vakharla and Anr., reported in 1977 Lab IC 1188 was of the view that unless the service contract contained express condition about the transferability of the workman, it was not open to the employer to order his transfer and that the transfer, as an implied term of service could also be read into a contract of service if there was some compulsion to read the same into the said contract by necessary implication having regard to the very nature of the employment. The expression "very nature of employment" does commend to us very strongly because we also feel that the nature of employment in a given situation can have a direct bearing and a close linkage to determine whether by implication one can read into the service contract a provision or power to transfer. In the aforesaid case, the following observations of the Division Bench of the Gujarat High Court are pertinent to be noted :--
"Now admittedly transferability out of the city was not an express condition of service. Can it then be imposed on an employee by ascribing it to him under the doctrine of an implied term of service? It can be read into the contract as an implied term if there is some compulsion to read it to into a contract of service by necessary implication having regard to the very nature of the employment. Not otherwise. One must be able to say; what is obvious need not be explicitly stated and may be taken to have been understood by both the sides. To hold that it was an implied condition could be to attribute to the employee a deliberate desire to subject himself to transferability. He was occupying a house on Rs. 20/- per month in Rajkot presumably because of the Rent Act. In Ahmedabad he would not be able to secure a house for possibly less than Rs. 200/-. Rent cost as percentage of his income might rise from 10% to 50%. Education of children would suffer for want of admissions at transferred place. Some of members of his family might be employed in his home-town and they would have to remain back and remain a separate house-hold. His whole family would be disrupted. One cannot ascribe to the respondent, a lowly paid employee, such a desire to subject himself to transfer to a branch outside the city in which he secured employment as it would have disastrous consequences on his economic and family life. The Labour Court by a well considered judgment has decided the pivotal issue against the petitioner. Other points indicated in the petition were not even argued in the Labour Court. The petitioner cannot be permitted to raise these points (which even otherwise are devoid of substance) in this petition under Article 227 of the Constitution of India. No error apparent on the face of the record is shown. The petition is, therefore, summarily dismissed."
15. The comparison between Rajkot and Ahmedabad in the aforesaid judgment with respect to the house rent, education expenses of the children etc. etc. can very well be brought home in our case by comparing Jamshedpur to Bombay. In fact, the comparison here is more glaring because Rajkot and Ahmedabad are two towns in the same State, perhaps, not very far from one to another. But between Jamshedpur and Bombay, there is absolutely no comparison because undoubtedly Jamshedpur and Bombay are in two extreme directions of the country and in two States which are far too distant from each other.
16. Apart from the aforesaid legal position, on appreciation of facts in the present case and looking to the trend of evidence led by the parties the Labour Court as also the findings returned by the Labour Court (which neither were con sidered perverse by the learned Single Judge nor have been over-turned by him), we feel that transferring a petty and lowly employee from Jamshedpur to a far off place like Bombay sure can be said per se to amount to his victimization without anyone insisting for any proof of victimization as such. In the absence of employer demonstrating to the full satisfaction of the Court the conclusive existence of any compelling reasons warranting the transfer of the workman, victimization would be the only inevitable inference in the fact situation of the present case. Taking a cue from the observations made in Gujarat judgment, the only compelling reason in the present case could be the employee's very very eminent and inevitable suitability on the job at Bombay and the imperative need and requirement of the employer at Bombay for this particular employee. This was a pure question of fact which was not even pleaded by the respondent-management either in the Labour Court, before the learned Single Judge or even before us in this appeal. Since the respondent did not even plead, what to speak of establishing, that it eminently and imperatively needed the service of this workman at Bombay, we can safely hold that the workman's transfer to Bombay was by way of victimization of a lowly employee by compelling him to fall into submission.