Bombay High Court
Agricultural Finance Corpn. ... vs Agricultural Finance Corpn. Ltd. And ... on 14 January, 1986
Equivalent citations: (1994)IIILLJ146BOM
JUDGMENT Pendse, J.
1. By this petition filed under Article 226 of the Constitution of India, the petitioners are challenging the legality of order dated October 12, 1982 passed by the Industrial Court dismissing 5 the complaint filed by the petitioners under items 3 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the "Act"). The facts giving rise to the filing of this petition are as follows:
2. The respondent Company is floated by 37 Scheduled Commercial Banks in India is with a view to help the Agricultural sector throughout the country. The Company has its registered Office at Bombay and Regional Offices at Calcutta, Lucknow and Madras; and Branch Offices at Shillong, Patna, Kota and Surat. The Company has also opened Project Offices at Tuticorin and Raipur. The petitioner No. 2 was appointed by the respondent Company as Statistical Clerk on November 1, 1971 and was confirmed in that post on April 24, 1972. On July 11, 1979, the petitioner was informed that he is promoted as a Field Assistant in the Department of Agricultural Inputs and Services. The appointment letter, inter alia, recites that his services are liable to be transferred to any of the offices of the Corporation anywhere in India. The petitioner No. 2, at the relevant time, was posted in Bombay. The petitioner No. 2 sent reply on July 12, 1979 stating that with this petty promotion offered and the meagre rise in the monthly salary, he is not prepared to go on transfer to any of the offices of respondent Company but he should be placed as Assistant Project Officer (Statistics). The respondent Company informed petitioner No. 2 by letter dated July 17, 1979 that all the posts in the Corporation are transferable as per the Staff Rules and, therefore, it is not open for petitioner No. 2 to claim that he is not ready to go on transfer.
3. On October 1, 1980, petitioner No. 2 was informed that his services are transferred to the North Eastern Office of the Company at Shillong with immediate effect. The petitioner No. 2 made several representations against the order of transfer and ultimately filed Complaint in the Industrial Court claiming that the transfer was mala fide and was effected under the guise of management's policy. The complaint was filed jointly by the Employees' Association and petitioner No. 2 who was transferred to Shillong. The gravamen of the charge in the complaint was that the respondent Company had no right to transfer the employee from one place to another. It was further claimed that reliance by the Company on Rule 5 under the heading "General Rules" or "Staff Rules" is wholly incorrect and that Rule does not confer right to transfer the employee. It was further claimed that by effecting transfer from Bombay to Shillong, the petitioner is seriously affected because the conditions of service at the two places materially differ. The respondent Company denied the allegation that the transfer was mala fide and claimed that Rule 5 confers power to transfer the employee and these Staff Rules are accepted by the employees and are given effect to from year 1969. The parties led evidence, both oral and documentary and the Industrial Court by the impugned order came to the conclusion that Rule 5 of the Staff Rules does confer power on the Company to transfer the employees from one place to another and the contention that the transfer of petitioner No. 2 was mala fide was without any substance. The order passed by the Industrial Court is under challenge.
4. It is required to be stated that the learned Judge while admitting the petition declined to grant stay of the operation of order of transfer. Dr. Kulkarni, learned counsel appearing on behalf of the petitioners, submitted that there is no inherent right in the employer to transfer the employee from one Establishment to another and the action of the respondents in transferring petitioner No. 2 is illegal. The respondent Company is not claiming any inherent right of transfer but it asserts that the right flows from Rule 5 under the heading "General Rules" or "Staff Rules" framed in the year 1969. These rules are applicable to all the members of the Staff of the Company wherever employed and the relevant Rule reads as under:-
"All appointments and terms of employment will be subject to the approval of the Company. The employees of the Company are required to serve or undergo training anywhere in India as may be required by the Company on such terms and conditions".
The plain reading of this Rule makes it clear that the employees are liable to serve anywhere in India as may be required by the Company. The expression "to serve anywhere in India" makes it very clear that the Company has right to transfer the employee from one place to another. Dr. Kulkarni urged that the expression "liable to serve anywhere in India" should be so construed that the Company has right to transfer an employee for a particular Project or for the purpose of training. It is impossible to accede to this submission. The plain reading of the Rule makes it clear that the employees are liable to serve anywhere in India and this liability is not restricted for serving on a particular Project or for a short duration. It is obvious that the conditions of service prescribe that the employees are liable to transfer anywhere in India for the purpose required by the Company. Dr. Kulkarni urged that the Staff Rules which were framed in the year 1969 were not consented by the employees or their Union and, therefore, they have no force of law. The submission is entirely misconceived because in the first instance, the consent of the employees for coming into operation of the Staff Rules is not called for. Secondly, the Staff Rules were framed in the year 1969 and at no juncture the employees or Union raised any objection, to the framing of the Staff Rules or its implementation, but, on the other hand, the employees had secured advantages conferred under the Staff Rules. The Union of the Employees was formed in the year 1973 and at no stage, the Union complained that the expression "to serve anywhere in India" does not confer right upon the Company to transfer its employees. Dr. Kulkarni urged that all transfers effected by the Company were either by consent of the employees or at the instance of the employees, but the submission of the learned counsel cannot be accepted in the face of evidence led by the Company and on which the Industrial Court has relied. The Company examined Raut and Doshi - two Officers-working from the year 1969 onwards and both the witnesses stated that at the time of joining the Company, they were furnished with the Staff Rules and they were transferred from place to place, not at their instance or with their consent.
5. Shri Ramaswami, learned counsel appearing on behalf of the Company, invited my attention to the deposition of K.K. Nair, the General Secretary of the Employees' Union. The witness has stated in paragraph 7 of his evidence that he had not written to the management for clarification of the word "serve" appearing in Rule 5 because all transfers have taken place with the consent of the employees. In the next breath, Nair admitted that he is claiming that the transfers were effected with the consent of the employees only because those employees have not objected. It is impossible to jump to the conclusion from this kind of evidence that all the transfers effected from the year 1969 onwards were only with the consent or at the instance of the employees. In my judgment, the Industrial Court was perfectly right in concluding that the right to transfer flows from Rule 5 and the construction placed by the Industrial Court on Rule 5 suffers from no infirmity.
6. Dr. Kulkarni then submitted that by effecting transfer of petitioner No. 2 from Bombay to Shillong, the petitioner No. 2 would be at loss because the conditions of service in existence at two stations materially differ. The learned counsel urged that the advantage of the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act are not available at Shillong and, therefore, the transfer is not permissible. It is not possible to accept the submission as once the right of the Company to effect transfer is accepted, then the mere fact that the protection of service by statutory provisions is not available at one place or other is no ground to hold that the power of transfer comes to an end. Dr. Kulkarni then urged that petitioner No. 2 was not willing to go to Shillong as the conditions prevalent at that place at the relevant time were quite disturbing. Shri Ramaswami countered the submission by pointing out that before the Industrial Court, the Company offered to petitioner No. 2 to select any other place where the Company has Branches, but the petitioner No. 2 refused to do so and set up the contention that his wife is in employment in Bombay. Shri Ramaswami points out that even then the Company agreed to provide employment to the wife of petitioner No. 2 at Shillong or any other place of choice of petitioner No. 2, but he declined to go out of Bombay for one reason or the other. In these circumstances, the contention of Dr. Kulkarni that petitioner No. 2 was not willing to go to Shillong because of disturbed conditions loses all its force. The Industrial Court has found that the complainant did not lead any material to indicate that the transfer was mala fide and the contention of Dr. Kulkarni that the Court should draw inference that there was legal mala fide is not acceptable. In my judgment, the conclusion of the Industrial Court is in accordance with the material on record and is not required to be disturbed in this petition.
7. Accordingly, the petition fails and the rule is discharged. In the circumstances of the case, there will be no order as to costs.