Bombay High Court
The Janta Commercial Co-Operative ... vs The Member, Industrial Court And Anr. on 19 February, 1996
Equivalent citations: 1996(4)BOMCR158
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. Since the arguments on Rule on stay as well as the writ petition were identical, the learned Counsel for the parties were directed to address the Court on merits in the writ petition itself.
2. Heard Mrs. Patil, learned Counsel for the petitioner and Mr. Ghare, learned Counsel for respondent No. 2 respectively.
3. The order passed by the Industrial Court, Amravati, on 10-10-1995 is impugned in the present writ petition. By this order, the Industrial Court, Amravati, Camp at Akola, directed the petitioner-Bank to transfer respondent No. 2 herein to Murtizapur by cancelling the earlier order of transfer whereby respondent No. 2 was transferred from Akola to Manora.
4. The respondent No. 2 Punamchand (for short, 'the employee') is litigating for almost 8 months challenging his transfer from Akola to Manora. By the transfer order dated 15-6-1995, the employee was transferred from Main Branch Akola to Manora Branch. This transfer order dated 15-6-1995 was not an isolation order transferring the employee alone but along with him 50 other employees were transferred from various places. The transfer order dated 15-6-1995 whereby the employee was transferred from Akola to Manora was challenged by the employee by filing a complaint before the Industrial Court and he also moved an application under section 30(2) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short, 'the Act of 1971) and the Industrial Court by the order dated 24-7-1995 rejected the application filed by the employee for interim relief challenging the transfer order dated 15-6-1995. Aggrieved by the order passed by the Industrial Court on 24-7-1995, the employee filed a writ petition before this Court which was registered as Writ Petition No. 2298 of 1995. Before this Court, the employee urged that he has already made a representation to the petitioner-Bank (for short, the 'employer') and the Bank has not considered his representation. In view of this submission made by the employee, the learned Counsel for the Bank in the aforesaid writ petition urged before this Court that the representation made by the employee shall be considered within 15 days and till that time the interim stay order dated 25-7-1995 shall continue to be operative. In the light of the submissions made by the learned Counsel for the parties, this Court on 4-9-1995 disposed of the writ petition directing the employer-Bank to consider the representation of the employee within 15 days therefrom. Pursuant to the order dated 4-9-1995 passed by this Court, the employee was informed by the employer that though the employee made a statement before this Court that his representation dated 2-8-1995 was not considered by the Bank, on verification it appeared that no such representation had been made by him, but despite that an opportunity was given to him to show why the transfer order should be cancelled. On 13-9-1995 the employee along with two other employees wrote to the Managing Director of the Bank that the representation of these employees may be heard together and they may be called together to consider their representations seeking cancellation of the transfer. On 13-9-1995 the employee appears to have again written a letter to the Managing Director of the Bank to consider his request for cancellation of his transfer order. By the order dated 15-9-1995 the representation and the request made by the employee for cancellation of transfer was rejected. This order dated 15-9-1995 was again challenged by the employee by filing fresh complaint and alongwith the complaint he moved an application for interim relief and the Industrial Court by the order dated 10-10-1995 directed the employer to transfer the employee to Murtizapur by cancelling his order of transfer to Manora. The order dated 10-10-1995 reads as under:
"Heard learned Advocate Mr. Thakur and Puradupadhye appearing for the applicant and N.A. By the impugned relieving order dated 15-9-1995 the N.A. Bank has only given effect to the previous transfer order of the applicant dated 15-6-1995. In fact both the parties had given pursis before the Hon'ble High Court in W.P. No. 2298 of 1995 that the Bank will reconsider the representation of the petitioner/employee and it appears that on that assurance the High Court disposed off the writ petition with directions accordingly. Now to honour the direction of the High Court some modification was certainly expected in the petitioner's transfer to Manora and not that he should be retained only at Akola by cancelling his original transfer order. So after consultation with both the counsel, I hereby direct that the N.A. Bank should transfer the applicant to Murtizapur Branch by cancelling his order of transfer to Manora. This application is disposed off."
The aforesaid order passed by the Industrial Court appears to have been passed because the Industrial Court thought that by the order dated 4-9-1995 this Court while disposing of the writ petition of the employee directed some modification in the transfer order dated 15-6-1995 whereby the employee was transferred from Akola to Manora and in any case by the direction of this Court dated 4-9-1995 certain modification was expected in the employee's transfer from Akola to Manora. The order passed by this Court on 4-9-1995 reads as under:-
"Parties by counsel. Rule. Heard forthwith with consent of parties.
2. Petitioner has challenged the order dated 24-7-1995 passed by the Member, Industrial Court, Amravati, Bench Amravati in Complaint ULP No. 578 of 1995. The respondent No. 2 - The Janta Commercial Co-operative Bank, by order dated 15-6-1995 transferred the petitioner from Akola to Manora Branch. Being aggrieved by the same, the petitioner approached the Industrial Court. Initially stay was granted and by the order dated 24-7-1995, the stay was vacated and the application for interim relief dismissed. This is the impugned order.
3. The impugned order is challenged on various grounds. The learned Counsel for petitioner Mr. Ghare has stated that two employees of the respondent No. 2 Bank, viz., Shri Dadarao Yedutkar and Javed Ahmed Khan Abdul Jabbar Khan have made representations to the Bank and Bank has not considered the representations so far. The learned Counsel for the respondent No. 2 has stated that the Bank will consider the representation of the petitioner dated 2-8-1995 within 15 days from today. In view of this statement, respondent No. 2 Bank is directed to consider the representation of the petitioner and till that time the interim stay granted on 25-7-1995 shall remain in operation. Petition is disposed. No order as to costs. Rule in the above terms."
Upon reading of the aforesaid order passed by this Court, no inference can be drawn that this Court directed some modification in the transfer order of the employee or from the aforesaid order of High Court some modification was expected in employee's transfer to Manora. What this Court directed in the order was that the representation said to have been made by the employee to the employer should be considered by the employer Bank within 15 days from the date of passing of the order. There was no further direction and, therefore, the Industrial Court was not justified in observing in its order that "now to honour the direction of the High Court some modification was certainly expected in the petitioner's transfer to Manora and not that he should be retained only at Akola by cancelling his original transfer order." On its face, therefore, the direction given by the Industrial Court directing the employer-Bank to transfer the employee to Murtizapur by cancelling his order of transfer to Manora was uncalled for. Much emphasis has been placed by the learned Counsel for the employee by urging that the said direction was given by the Industrial Court after consultation with the counsel for the parties and the said order being consent order, the question of interference by this Court did not arise. Firstly, the order passed by the Industrial Court dated 10-10-1995 does not reveal nor does it show that the counsel for the employer-Bank agreed that the employer would transfer the employee to Murtizapur and cancel his transfer from Manora nor there was any consent. Secondly in the context, expression 'after consultation' can at best be construed as after hearing the parties and not that both the counsel have consented that the employee would be transferred by the employer to Murtizapur.
5. Transfer is never a condition of service and rather it is an incident of service and thus it is always open to the employer to transfer the employee in the interest of administration and no vested right is created in favour of the employee to a particular place of positing. Order of transfer is ordinarily not interfered with by the courts unless it is violative of Rules or is mala fide. By the order dated 15-6-1995 not only the present employee but also 50 other employees were transferred from their place of posting to some other places. Obviously and apparently it was not an isolation transfer but transfer of large number of employees and therefore the grievance of the employee that the transfer was mala fide inasmuch as the employee actively participated in the legal advice of the Union and that the Managing Director of the Bank apprehended that the brother of the employee was directly or indirectly helping a group with was opposed to the Managing Director, was unfounded. When mass transfer takes place and inasmuch as 51 employees have been transferred by the order dated 15-6-1995, on its face there is no merit in the allegation made by the employee that the transfer order was actuated with ulterior motive and was not in the interest of administration.
6. For the aforesaid reasons, it cannot be said that there was any malice in transfering the employee from Akola to Manora by the order dated 15-6-1995 or that the said suffer from any vice or infirmity and for the self-same reasons the order dated 15-9-1995 rejecting the representation of the employee cannot be faulted.
7. The writ petition is accordingly allowed and the order passed by the Industrial Court, Amravati, on 10-10-1995 is quashed and set aside. Rule made absolute in aforesaid terms. No costs.
8. At this stage, the learned Counsel for the employee submits that complaint has been made challenging the transfer order and it would be in the interest of justice if appropriate directions are given to the Industrial Court for expeditious disposal of the complaint. In case the parties co-operate with the Industrial Court in expeditious disposal of the complaint, it is expected of the Industrial Court to hear and decide the complaint as expeditiously as possible and preferably within six months from the date of production of the order of this Court.
9. Any observation made at this stage cannot influence the ultimate decision in the complaint and the apprehension of the learned Counsel in that connection is wholly misconceived and unfounded.