Gujarat High Court
P.D. Patel Ayurveda Hospital vs Director Of Primary Education on 28 January, 2002
JUDGMENT K.M. Mehta, J.
1. P.D.Patel Ayurveda Hospital the petitioner herein has filed this petition against the judgment and order dated 12.7.2001 passed by the Labour Court, Nadiad below Application exh.2 in Complaint No. 5 of 2001 in Ref(LCN) NO. 1 of 2000. The Labour Court by its judgment and order allowed application exh.2 and granted permanent injunction against the transfer order and restrained the petitioner from implementing the transfer order dt. 20.6.2001. The petitioner transferred the respondent to Maha Gujarat Medical Hospital which is half kilo meter from P.D.Patel Ayurveda Hospital in the city of Nadiad..The Labour Court further directed not to prevent the respondent workman from discharging her duties as Laboratory Technician in P.D.Patel Ayurveda Hospital, Nadiad (hereinafter referred to as the Hospital) till the disposal of the main complaint.
2. The facts giving rise to this petition are as under:
2.1 The Mahagujarat Medical Society is a registered Charitable Trust under the provisions of the Bombay Public Trusts Act and running charitable hospitals, viz. P.D..Patel Ayurveda Hospital, Mahagujarat Medical Hospital, Nadiad and also Basudiwala TB Hospital at Palana. The Trust is also running Laboratories in the said hospitals. The P.D.Patel Ayurveda Hospital and Mahagujarat Medical Hospital are situated in the City of Nadiad in the vicinity of about half a kilometer from each other. All the employees of all the three hospital are inter transferable.
2.2 It is contended that the respondent was appointed as a daily rated Laboratory Technician and was working in the hospital of the Trust. Due to exigencies of work and on account of some administrative reasons on 19.6.2001 the respondent was transferred from the said P.D.Patel Ayurveda Hospital to Mahagujarat Medical Hospital in the City of Nadiad . The services of the respondent are more useful in the laboratory of Mahagujarat Medical Hospital and therefore, she was transferred to the laboratory in Mahagujarat Medical Hospital on the same terms and conditions with the same pay scale.
2.3. For sometime the respondent did not join duties. However on 3.7.2001 the respondent filed a complaint No.5 of 2001 along with application exh.2 for stay against the transfer in Ref (LCN) No. 1 of 2000 under the provisions of Section 33-A of the Industrial Disputes Act 1947 inter alia praying for injunction against the Transfer Order dated 20.6.2001.
2.4 In the Labour Court the petitioner herein filed written reply to the application exh.2 and denied each and every statement of facts and/or allegations made in the complaint and application for stay.
2.5 The Labour Court thereafter by its order dated 12.7.2001 allowed the application exh.2 and granted permanent injunction against the transfer and restrained the petitioner from transferring the respondent from the said hospital to Mahagujarat Medical Hospital and further directed not to prevent the respondent form discharging her duties as Laboratory Technician till the final disposal of the main complaint.
3. This petition has been filed somewhere on 28th July 2001. When this matter was placed for hearing before this Court on 29.8.2001, this Court passed an order staying the said proceedings.
4. Thereafter this matter reached hearing before me for interim relief. Before this Court also the respondent workman filed Civil Application No.10172 of 2001 for vacating interim relief dated 14.9.2001.
5. He submitted that the Labour Court without examining as to
(i) whether any condition of service is changed during the pendency of any proceeding connected with the dispute ?
(ii) whether the provisions of Section 33 of the Industrial Disputes Act are contravened during the pendency of proceedings ?
(iii) whether transfer of an employee is change in condition of service ? and
(iv) whether the Labour Court has any jurisdiction to grant injunction against the transfer order exercising its jurisdiction under section 33-A ? decided the matter.
5.1. All these relevant questions have not been considered by the Labour Court. The Labour Court has also not even considered the written submissions filed hospital authorities and granted interim injunction in favour of the respondent workman. He also submitted that the order of the Labour Court is illegal and bad.
5.2 In support of his contention he has relied upon the judgment of the Honourable Supreme Court in the case of Gujarat Electricity Board vs. Atmaram S Poshani (1989) 2 SCC 602 : AIR 1989 SC 1433. In para 4 of its judgment the Honourable Supreme Court has observed as under:
" 4. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted as any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose itself to disciplinary action under the relevant Rules, as has happened in the instant case."
5.3 He has also relied upon the decision of the Honourable Supreme Court in the case of State of M.P. vs. S.S.Kourav & ors. reported in 1995-II LLJ 849(SC) and in in para 4(page 850) the Honourable Supreme Court ihas iobserved as under:
"4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal there was no justification to retransfer him again to Jagdalpur. We cannot appreciate these grounds. The Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decisions and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place."
5.4 He has also relied upon the judgment of the Division Bench of this court in the case of Taragauri vs. Kalyanji Khimani vs. District Panchayat reported in 1984 GLH 589 in order to show as to what should be the approach of the court in dealing with the matters staying orders of transfer. He submitted that the subordinate courts should be slow in staying transfers.
5.5A. In this connection it is necessary to reproduce the relevant portions of sections 33 and 33-A of the I.D.Act which read as under:
"33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings. (1) 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 a 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"
"33-A Special provision for adjudication as to whether conditions of service etc. changed during pendency of proceedings-
Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a conciliation officer, Board an arbitrator a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention, may make a complaint in writing in the prescribed manner.-
(a) to such conciliation officer or Board and the conciliation officer or Board shall take such complaint into account in mediating in and promoting the settlement of such industrial dispute and
(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator Labour Court Tribunal or National Tribunal as the case may be shall adjudicate upon the complaint as if it were a dispute referred to or pending before it in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly. "
5.6. The learned advocate for the petitioner has relied upon section 33 of the Industrial Disputes Act which provides that conditions of service etc. to remain unchanged under certain circumstances during pendency of proceedings . Section 33-A of the Act provides special provision for adjudication as to whether conditions of service etc. changed during pendency of proceedings. He submitted that section 33 of the Industrial Disputes Act broadly bars alteration in the conditions of service, prejudicial to the workmen concerned in the dispute and disciplinary punishment of discharge or dismissal when either is connected with pendente lite industrial dispute save with the permission of the authorities before which the proceeding is pending or where the discharge or dismissal is for any misconduct not connected with the pendente lite industrial dispute without approval of such authority. He submitted that section 33-A of the Industrial Disputes Act is designed to provide instant remedy to a workman aggrieved by the contravention of S. 33 . In otherwords where an employer has contravened the provisions of S. 33 the aggrieved workman has been given the option to make a complaint in writing to the authority before which an industrial dispute is pending with which the aggrieved workman is concerned. He submitted that in this case the dispute between the workmen and hospital which was pending was regarding wage revision and other service conditions; whereas in this case the respondent employee was transferred and therefore, it has not connection with the pendency of the proceedings before the Labour Court and therefore, the complaint under section 33-A of the Industrial Disputes Act filed by the respondent employee was not maintainable at law.
6. Learned advocate for the petitioner has relied upon the judgment of the Honourable Supreme Court in the case of Delhi Cloth & General Mills Co. Ltd. vs. Shri Rameshwar Dayal & anor. reported in AIR 1961 SC 689 and more particularly para 7 of the said judgment. The Honourable Supreme Court has held that in a complaint under section 33-A of the Industrial disputes Act, the only remedy reinstatement may be given at the final stage and no interim relief can be passed in this behalf . Therefore the Honourable Supreme Court set aside the order of the Tribunal granting reinstatement at the interim stage.
7. He has also relief upon the judgment of this court in the case of Nadiad Municipality vs. Ghanshyam Barot & Co. reported in 1998 (2) GLH 728 In para 13 (page 735) this court has observed as under:
" 13. Thus, in my opinion, the Labour Court before giving relief to an employee to an employee under Section 33-A has to find out first that there has been a contravention of provisions of Section 33. The contravention of provisions of Section 33 is the foundation for the exercise of the jurisdiction under Section 33-A. The only condition precedent presented by Section 33-A is that the Employer/Industry must have contravened the provisions of Section 33 during the pendency of the proceedings before the Industrial Tribunal/Labour Court.In absence of the contravention, the Industrial Tribunal'/Labour Court does not have jurisdiction for taking action under Section 33-A. If the Employer/Industry happened to contravene of provisions of Section 33 then the provision of Section 33-A empowers the Industrial Tribunal/Labour Court to give the appropriate relief as required by the facts of the case.
8. He has further relid upon the decision of the Kerala High Court in the case of Dhanalakshmi Bank Limited vs. Parameshwara Menon reported in 1956 FJR 373. On page 376 of the judgment. the Kerala High Court has observed as under:
"In the present case what the Tribunal was invited by the writ petitioner to grant was an order virtually granting the very relief that has been sought for in the complaint filed under section 33-A, namely, to prevent the bank from proceeding to make appointments to the cadre of junior officers by promotion and by direct recruitment. Section 33-A does not, in our opinion, contemplate the grant of such anticipatory relief for prevention of any apprehended contravention of section 33. If and when it is established before the Tribunal that there has been in fact a contravention of section 33 by the employer, the Tribunal will in such event, pass appropriate orders granting effective relief to the workmen so as to obliterate the consequences that may have resulted from the act of the management performed in contravention of section 33. It is only to this extent that the jurisdiction of section 33-A stretches. The grant of an interim relief in the nature of injunction is not within the competence of the Tribunal since no such power has been conferred on it by any of the provisions of the Act..."
9. Ms. Sangita Pahwa learned advocate for the respondent workman has submitted that the respondent employee was a member of the union and thus her transfer order has been made because of the malafide exercise of power in this behalf. The Labour Court has further held that the transfer order has been passed with ulterior motive and it is not due to administrative exigency and the Labour Court has given clear finding on this aspect. She further submitted that the respondent workman was pregnant and if the transfer order is passed it will affect the mental and physical condition of the respondent workman in this behalf.
10. Ms. Pahwa the learned advocate for the respondent stated that when the Labour Court has passed interim order staying the order of transfer, this court may not entertain the present petition under Articles 226 and 227 of the Constitution of India in this behalf. She has relied upon the judgments of the Honourable Supreme Court in the case of Central Bank of India vs. Rooplal Bansal reported in (1999) 9 SCC 254 and in the case of Koyilerian Janaki & ors. vs. Rent Controller (Munsiff) Cannaore and ors. reported in (2000) 9 SCC 406 and also judgment of this Court (Coram: K.M.Mehta.J) in Special Civil Application No.2606 of 2001 in the case of State of Gujarat vs. Jagdishbhai I Patel decided on 3.10.2001.
My conclusions:
10.1 I have considered the submissions of the learned advocate for the respondent. In the case of Central Bank of India (supra), the matter arose out of a commercial transaction where the Honourable Supreme stated that the High Court should not interfere in the interim order. As regards the case of Koyilerian Janaki (supra) is concerned, the order of the District Judge was sought to be challenged under under 227 of the Constitution of India. There also Honourable the Supreme Court has observed that the High Court should not interfere with the interim order. However, in this case the Labour Court, without considering the provisions of sections 33 and 33-A of the Industrial Disputes Act and also without considering the fact that the transfer of the respondent employee has been done from one hospital to another hospital which is situated 1/2 kilo meter from the place where she is working at present and therefore, in any view of the matter the Labour Court ought not to have interfered with the said order of transfer. In my view the order of the Labour Court is without jurisdiction and contrary to sections 33 and 33-A of the Industrial Disputes Act and even against the general principles of transfer which I have discussed in the case of Gujarat Electricity Board (supra) and also in the case of State of M.P. vs. S.S.Kourav & ors. (supra) have not been considered by the Labour Court in this behalf. In view of this the two judgments of the Honourable Supreme Court i.e Central Bank of India and Koyilerian Janaki (supra)and the judgment of this Court (Coram:K.M.Mehta-J) which I have referred to are clearly distinguishable on facts of the case. In the case of State of Gujarat vs. Jagdishbhai I Patel (supra) which I have decided the facts are clearly distinguishable in this behalf because in that case the Government employee was sought to be transferred from Thara of Banaskantha to Haripura and there were clear allegations of malafides also. In view of the same I did not interfere with the order of the Industrial Tribunal staying the transfer order. But that case and this case are distinguishable on facts in this behalf.
11. In my view, there is no malafide intention in this behalf, merely because the respondent happens to be a trade union worker, it cannot be said that the employer cannot transfer the workman in this behalf. In my view the employee has no vested right to serve at a particular place even if the employee is a pregnant woman. She could have requested the administrative department to give certain facilities while performing her duties. But that does not mean that she cannot serve at other establishment viz. a hospital which is only half kms. away from the hospital where she is serving at present in this behalf. In my view the Labour Court has not considered the judgment of the Honourable Supreme Court regarding transfer in this behalf as well as the judgment of this Court. The Labour Court has not considered the provisions of sections 33 and 33-A of the Industrial Disputes Act and the judgments which I have quoted above in this behalf.
12. It is no doubt true that the order of Labour Court is an interim order and normally this court may not exercise its jurisdiction under Articles 226 and 227 of the Constitution of India for interfering with the interim order of the Labour Court. In my view the Labour Court has entertained the application under section 33-A of the Industrial Disputes Act which was not maintainable at law and therefore, the order of the Labour Court is without jurisdiction In fact the Labour Court has not considered the cardinal principle of transfer in this case and the order of the Labour Court is contrary to and inconsistent with the judgment of the Honourable Supreme Court and the judgment of this Court which I have extracted in this case.
13. In my view transfer of a servant appointed to a particular cadre of transferable posts from one place to the other is an incidence of service. The employee has no legal right for being posted at particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. If there is any genuine difficulty in proceeding on transfer, it is open to the employee to make a representation to the competent authority for stay, modification or cancellation of the transfer order. He cannot avoid or evade the transfer order merely on the ground of having made a representation or on the ground of his difficulty in moving from one place to the other.
13.1. In my view a transfer order cannot be lightly interfered with unless clear malafides are raised. The court cannot go into the question of relative hardship and it would be for the administration to consider the real hardship in the interest of good and efficient administration.
13.2 In my view the order of the Labour is without jurisdiction.There is inherent lack of jurisdiction in view of sections 33 and 33-A of the Industrial Disputes Act. In my view the order of granting stay of the order of transfer by an interim order by the Labour Court amounts to allowing the application at the interim stage and therefore, this court has no other alternative but to interfere with the same.
14. In the circumstances the petition is allowed and the order dated 12.7.2001 passed by the Presiding Officer, Labour Court Nadiad below Application Exh.2 in Complaint No.. 5 of 2001 in Ref. (LCN) No. 1 of 2000 in the matter between Hetalben Y.Parmar and Chairman P.D.Patel Ayurvedic Hospital, Nadiad is quashed and set aside. No order as to costs.
15. In view of the order passed in the main SCA , Civil Application No.10172 of 2001 stands disposed of.