Delhi High Court
Gen. Marketing And Manufacturing Co. ... vs The Presiding Officer And Others on 1 September, 1999
Equivalent citations: 2000IAD(DELHI)689
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. Rule.
2. With the consent of the parties, the matter is heard finally and disposed of at this stage.
3. Respondent workman had raised the dispute against her transfer from Delhi Office to Baroda Branch with effect from 15th April, 1997 alleging that the same was illegal and mala fide. The dispute was referred for adjudication to Industrial Tribunal No.1 vide reference order dated 5th June, 1989 passed by Secretary (Labour), Delhi Administration (now Govern- ment of National Capital Territory of Delhi). On resolving the reference the case was registered as ID No. 109 of 1989. After the completion of pleadings ID No. 109 of 1989. After the completion of pleadings and record- ing of evidence, the Industrial Tribunal passed impugned award dated 26th June, 1996 holding the transfer as bad in law on the ground that when the workman joined the employment of the management, Baroda Branch was not in existence and the same was set up later on. Relying upon the judgment of the Supreme Court in the case of Kundan Sugar Mills Vs. Ziyauddin and Other , the Industrial Tribunal held that employer has no right to transfer his employee to a new concern started by him subsequent to the date of employment of the concerned workman.
4. The Management/petitioner has filed the present petition challenging the aforesaid award.
5. It is contended by Mr. Lalit Bhasin, Advocate appearing for the peti- tioner that as per the condition of service relating to the workman the services of workman were liable to be transferred any where in India to any department and in view of this service condition the judgment of the Su- preme Court Kundan Sugar Mills Vs. Ziyauddin and Others (supra) has no application. There is force in the contention of the petitioner. In the aforesaid case decided by the Supreme Court there was no such condition of service regarding the transferability of the concerned workman. It was in this context the Supreme Court held that transfer cannot be treated as employee's condition of service. In paragraph 2 of the aforesaid case the court formulated two question which were to be decided. Para 2 of the judgment reads as under:-
"Learned counsel for the appellant raised before us the following two questions:
(1) The right to transfer an employee by an employer from one of this concerns to another is implicit in every contract of serv- ice: (2) the State Industrial Tribunal having held that both the concerns, i.e., the mills at Amroha and the mills at Bulandshar, formed one unit, the Appellate Tribunal had no jurisdiction to set aside that finding under section 7(1) of the Industrial Disputes (Appellate Tribunal), Act, 1950."
6. In para 3 of the afore-mentioned judgment Supreme Court noticed that the workman was appointed in a particular mills of the management at Amroha in the year 1996. The mill at Bulandshar, where the worker was transferred was purchased only in the year 1951 and it was started in the year 1955. It was further noticed that there was no express term of contract between the parties that the workman should serve in future concerns which the appel- lant might acquire or start and as per the evidence produced on record the two mills were two different concerns. The only connection between the two was in the identity of ownership but one had nothing to do with the other. Even the service conditions including payment of allowances, bonus, etc. at the two mills were different and the court concluded that the two were different entitles.
7. It is in the background of these facts the question raised in para 2 were decided and while proceeding to decides the aforesaid two questions, in paragraph 4 of the judgment, the Supreme Court clearly stated that the questions of law raised in the case were considered in relation to the facts of that case. The relevant portion of para 4 is reproduced as under :-
"The question of law raised in this case must be considered in relation to the said facts. The argument of the learned counsel for the appellant that the right to transfer is implicit in every contract of service is too wide the mark. Apart from any statuto- ry provision, the rights of an employer and an employee are governed by the terms of contracts between them or by the terms necessarily implied therefore. It is conceded that there is no express agreement between, the appellant and the respondents whereunder the appellant has the right to transfer the respond- ents to any of its concerns in any place and the respondents the duty to join the concerns to which they may be transferred. If so, can it be said that such a terms has to be necessarily im- plied between the parties? When the respondents 1 to 4 were employed by the appellant, the latter was running only one facto- ry at Amroha. There is nothing on record to indicate that at that time it was intended to purchase factories at other places or to extend its activities in the same line at different places. It is also not suggested that even if the appellant had such an inten- tion, the respondents 1 to 4 had knowledge of the same. Under such circumstances, without more, it would not be right to imply any such term between the contracting parties when the idea of starting new factories at different places was not in contempla- tion. Ordinarily the employees would have agreed only to serve in the factory then in existence and the employer would have em- ployed them only in respect of that factory. The matter does respect of that factory. The matter does not stop there. In the instant case, as we have indicated, the two factories are distinct entities, situated at different places and, to import a term conferring a right on the employer to transfer respondents 1 to 4 to a different concern is really to make a new contract between them.
8. The aforesaid judgment is, therefore, not applicable to the facts and circumstances of this cases. In this case in the impugned award itself the Industrial Tribunal has stated it to be undisputed fact, as per the condi- tions of appointment of the workman, her services were liable to be trans- ferred anywhere in India to any department. It would be relevant to quote these observations from the award which are as under :-
"Her letter of appointment as well as letter of the workman dated 30.11.79 accepting the employment clearly show that it was the condition of appointment of the workman that her services are liable to be transferred anywhere in India to any department. The workman admitted the said condition while joining the services."
9. Once this is admitted condition of service as per the award, the Industrial Tribunal clearly fell in error in setting aside the order of transfer on the ground that employer had no right to transfer the workman to a new concern started by it subsequent to the date of appointment of the concerned workman. The Industrial Tribunal has referred to appointment latter dated 13th March, 1979 the relevant portion of which read as under :-
"Your services are liable to be transferred to anywhere in India or to any Department and the rules and regulations applicable thereto including days of work, hours or work leave, holidays, etc. will then apply to you.
10. Letter dated 30th November, 1979 of the workman accepting the employ- ment also stipulates the condition of transfer and paragraphs 4 to 8 there- of being relevant to determine the controversy in the instant case, are reproduced below :-
Para 4:
11. The management shall be at liberty to utilise service from time to time in any Department or Section and/or to transfer to any office of the Company in India and shall discharge honestly and whole heartedly all such duties as may be entrusted to me in co-operation with other members of staff under the supervision and to the satisfaction of the assigned superi- or. I shall not do or cause to be done anything that is detrimental to the interest of the Company. On such transfer to any Department/Section or anywhere in India, the rules and regulations applicable thereto including day of work, hours of work, leave, holidays, etc. will then apply to me.
Para 8:
12. If it is considered necessary by the Authorities, it shall be binding upon me to go to any outstation and work strictly in accordance with the current Rules of the Company.
13. According to the aforesaid stipulation in the appointment latter and conditions of appointment, it is clear that the services of the petitioner workman were liable to be transferred to anywhere in India or any depart- ment. It is further stipulated in these conditions that management is at liberty to utilise service from time to time in any department or any section/branch of the company in India. Once these are the service condi- tions, relating to transfer it cannot be said that workman could not be transferred to particular branch which was opened after the appointment of the workman. If the contention of the workman is accepted it would mean that workman can be transferred to any of the branches/departments anywhere in India which were in existence as on the date of her appointment only but not to those branches or departments which were opened by the management after her appointment. Such a position cannot be accepted in law and it would make the very condition of service regarding transferability to any department/section branch anywhere in India as redundant.
14. Moreover once it is established that transfer is one of the conditions of service, transfer can be challenged only the ground if it is in viola- tion of any statutory provisions or as an act of mala-fide on the part of the management.
15. In view of the aforesaid legal position, the impugned award warrants to be set aside.
16. Counsel for the respondent workman argued that the Industrial Tribunal has wrongly given the findings that it was admitted condition of service of the workman that her services were liable to be transferred anywhere in India. It is submitted that letter of appointment dated 13th March, 1979 was not given to the workman. It is also argued that the transfer order was challenged on various other grounds including the ground of mala fide and as well as on the ground that no other female employee was ever transferred earlier. In fact during the arguments even counsel for the respondents expressed her reservation in respect to the correctness of the award on these grounds.
17. The impugned award is accordingly set aside. The matter is remanded back to the Industrial Tribunal to decide the case afresh keeping in mind the aforesaid position in law and on the basis of material and evidence brought on them record. It would be open to the respondent workman to raise all the points on the basis of which she has challenged the transfer order.
18. The parties are directed to appear before the Industrial Tribunal on 4th October, 1999. Since only final arguments are to be advances and there- after award is to be pronounced, it is expected that the Industrial Tribu- nal would dispose of the matter within a period of two months.
19. There shall be no order as to costs.