Karnataka High Court
V. Mookan, Major vs Branch Manager, Southern Roadways Ltd. ... on 24 January, 1989
Equivalent citations: [1990(60)FLR210], ILR1989KAR1322, (1991)ILLJ533KANT
JUDGMENT D.P. Hiremath, J.
1. Appeal coming up for admission. Admitted. Heard on merits.
2. The appellant herein is employed as a fitter under the second respondent - Southern Roadways which operates goods transport vehicles between different places spread over the States in Southern India. Initially he was appointed as a cleaner and thereafter promoted as a fitter. His appointment in the first instance was at Madurai in the Central Maintenance and Parts Department in the year 1966 and thereafter was transferred for the first time to Bangalore office in the year 1987. In the same year he was transferred to Madurai again in the month of September, and then to Bangalore on 1st January, 1988. Thereafter, by an order dated 11th April, 1988 he was transferred to Mangalore with effect from 12th April, 1988. This last transfer, according to him, was to a place where there was no Maintenance Department at all in which his services could be utilised and the action, of the respondents in transferring him to Mangalore lacks bona fides for the reason that he has enrolled himself as a member of the Workers' Union. He challenged this order in the Court of the City Civil Judge at Bangalore in O.S. 2180/88 and I.A. II was filed for temporary injunction restraining the respondents from giving effect to the said transfer order dated 11th April, 1988.
3. The respondents maintain that in the first instance the Civil Court has no jurisdiction as the only course open to the appellant is to raise an industrial dispute under the Industrial Disputes Act and the act of transfer clearly falls under Item No. 1 of Second Schedule of the Industrial Disputes Act read with Section 7. Secondly, on merits they contended that on 4th March, 1988 he was promoted as Assistant Fitter or Assistant Operator and due to the requirement of one person who knows the work of maintenance of vehicles and small repairs to the vehicles urgently at the Mangalore Depot, he was transferred to Mangalore. Under the probationary appointment letter he cannot question the transfer order. It is due to exigencies in the business and he is liable for transfer even in future.
4. The Court below addressed itself to the question of jurisdiction and found that the Civil Court has no jurisdiction to entertain the suit. It particularly pointed out at para 6 of its order that the nature of relief claimed by the plaintiff is a "dispute" under the Industrial Disputes Act. In view of the legislative law and the precedent law in this regard it found that this is not the forum in which the plaintiff could agitate against the order of transfer passed by the respondents. It also incidentally observed that mala fides could not be attributed to the respondents, in case the transfer order is not given effect to, the respondents would be put to greater hardship and injury inasmuch as they were to suffer.
5. In challenging this order of the Court below, it is urged on behalf of the appellant that the Court below went wrong in finding that the Civil Court had no jurisdiction. According to the appellant, the Union has not espoused his cause to raise the dispute and therefore the appellant's right to agitate against his transfer in a Civil Court is not taken away. Thus, the main ground on which the order is attacked is that as a fact the Union has not raised the dispute. Consequently there is no reference as required under Section 10 of the Industrial Disputes Act. The Industrial Disputes Act was amended in the year 1984 and Section 25-T came to be introduced which is as follows:
"No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice".
The 5th Schedule is also introduced by the same Amendment and in Item 7 what is unfair labour practice is also stated and this particularly refers to transfer. Thus, to transfer workman mala fide from one place to another under the guise of the management policy is one of the unfair labour practices falling under the 5th Schedule. Section 2(ra) further has particularly pointed out that 'unfair labour practice' means any of the practices specified in the fifth schedule. Therefore, Section 25-T read with Section 2(ra) and Item 7 of the Fifth Schedule clearly bring an order of transfer made mala fide within the purview of "unfair labour practice". This is the statutory position obtaining at the time the order which is challenged by the appellant came to be passed by the management transferring him to Mangalore. It is stated at the outset that this order is challenged on the ground that it is mala fide or lacks bona fides inasmuch as the management was unhappy that he was the member of a particular workers' Union. In such a situation whether the Civil Court has jurisdiction to entertain the suit or an industrial dispute should be raised is the point.
6. On behalf of the respondents my attention was invited to a decision of this Court in the case of Darshak Limited v. industrial Tribunal (1986-I-LLJ-253) and at page 261, this Court observed that it was not possible to agree with the contention of the petitioner therein that in respect of an industrial establishment having one or more branches any demand by the workmen that office-bearers should not be transferred so long as they are officebearers cannot be a subject matter for industrial adjudication, it could be a subject-matter of demand under the provisions of the I.D. Act, as it is intimately connected with the conditions of service. The incorporation of such a condition in the Sastry Award and the fact that it had been a term of settlement between management of banks and their employees also indicated that it could be a condition of service incorporated in a settlement or award. In this behalf it was urged that even in the instant case settlement has been reached between the management and the workmen that the management has a right to transfer its employees.
In the case of Nippani Electricity Company (P) Ltd. v. Bhimarao Laxman Patil (1969-I-LLJ-268), this Court pointed out that it is obvious that all suits of a civil nature have to be tried by Civil Courts excepting those whose cognizance is expressly or impliedly barred. Industrial Disputes Act provides elaborate machinery for the implementation of the rights and settlement of disputes relating to matters specified in Schedules 2 and 3 thereof. In the instant case even Schedule 5 came to be added in the year 1984. This decision was quoted with approval by the Supreme Court in the case of The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke of Bombay (1975-II LLJ-445) and at para 26 Supreme Court referred to the decision in this case as well as in some other cases. Referring to the case of Krishnan decided by the Madras High Court and reported in (1964-I-LLJ-217) the Supreme Court pointed out with approval what the learned single Judge of the Madras High Court has held that the jurisdiction of the Civil Court is ousted impliedly to try a case which could form subject matter of an industrial dispute between the workman and an employer. The parties could not therefore approach the ordinary Civil Court.
7. The learned Counsel for the appellant made an effort to persuade me to hold that the appellant has got a choice either to approach the Union or the Civil Court especially when the Union does not espouse his cause. I am unable to agree with him for the simple reason that the various provisions of Industrial Disputes Act which have been referred to above take away the jurisdiction of the Civil Court to entertain the grievance of the appellant. A more recent case came before the Kerala High Court in the case of Kerala Rubber and Reclaims Ltd. v. P.A. Sunny (1988) 73 FJR 507, wherein the learned Chief Justice of the High Court had occasion to deal with a case of transfer identical to one at hand in which the workman had alleged mala fides and had also contended that Civil Court has jurisdiction to entertain the suit. His Lordship, the Chief Justice who decided the case observed that merely because a workman is not in a position to satisfy all the conditions prescribed by the statute for the purpose of enforcing the rights created by the statute, it cannot be said that the statute does not provide a remedy for enforcing the rights created by the statute. An "industrial dispute" as defined by Section 2(k) includes within its ambit disputes connected with the terms of employment or the conditions of labour of any person. One term of employment is that a workman is not liable to transfer in contravention of Section 25-T read with Item No. 7 of Schedule V. That an individual workman is not able to seek relief against such transfer under Section 10 does not mean that the statute does not provide a remedy for enforcing the right created by Section 25-T read with Item No. 7 of Schedule V. The remedy has been provided in Section 10 of the Act. Referring to these sections and schedule the learned Judge concluded that there is no hesitation in taking a view that the case of transfer before that Court was a case in which the right as well as the remedy have been provided by the Industrial Disputes Act in the matter of transfers by the management.
8. The facts of the instant case are identical with the facts before the Kerala High Court. The view taken by the learned Judge is in line with the earlier view taken by this Court as well as by the Supreme Court in the cases referred to above. As a transfer mala fide is stated to be an unfair labour practice, the workman has got a remedy in the forum created under the I.D. Act and when this is the case which should go before the forum established under special enactment, the juridiction of the Civil Courts is impliedly barred. The trial Court, therefore, was justified in rejecting the application of the appellant and there is no need to express any opinion especially in regard to the contention of mala fides in this appeal. I, therefore, find no merit in this appeal. The appeal is therefore dismissed.