Karnataka High Court
The Management Of M/S Kles vs The Kle'S Hospoital'S Employees Union on 24 June, 2013
Author: B.S Patil
Bench: B.S.Patil
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 24 T H DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
WRIT PETITION No.3381/2013 [L-RES]
BETWEEN:
THE MANAGEMENT OF M/S KLES
DR.PRABHAKAR KORE HOSPITAL
AND MEDICAL RESEARCH CENTRE
NEHRUNAGAR, BELGAUM-590001
REP. BY ITS MEDICAL DIRECTOR
AND CHIEF EXECUTIVE,
DR. MALLIKARJUN V. JALI.
...PETITIONER
(BY SHRI S.N.MURTHY, SENIOR COUNSEL FOR
SRI.P.N.RAJASHWARA & SRI.NARAYANRAO,
ADVOCATE)
AND:
THE KLE'S HOSPITAL'S EMPLOYEES UNION
NO.1376/32, SADASHIVNAGAR
BELGAUM-590019
REP. BY ITS GENERAL SECRETARY
C/O.CITU OFFICE SURIBHAVANA
NO40/51, 2 N D "B" MAIN ROAD
16 T H CROSS, SAMPANGIRAMNAGAR
BANGALORE-560027
(WRONGLY SHOWN IN THE IMPUGNED
ORDER AS ENIRE WORKMEN.EMPLOYEE
OF KLES DR.P.K.HOSPITAL AND
MEDICAL RESEARCH CENTRE, BELGAUM
REP. BY K.L.E. SOCIETY HOSPITALS
EMPLOYEES' UNION, H.NO.1376/32,
SADASHIVNAGAR, BELGAUM)
... RESPONDENT
(BY SHRI S.ANANTHRAM, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO QUASH THE ORDER DATED 10.01.2013
ON I.A.NO.1 IN I.D. NO.152/12 PASED BY THE I.T.,
HUBLI IN SO FAR AS THE DIRECTIONS NOS.1, 2 AND
3 OF THE SAID ORDER ARE CONCERNED VIDE
ANNEXURE-A.
This writ petition is coming on for further
dictation, this day the Court made the following:-
O R D E R
In this writ petition, the petitioner-Ma nagement is challenging the order dated 10.01.2013, passed on I.A.No.1, in I.D.No.152/2012, by the Industrial Tribunal, Hubli, insofar as it pertains to the interim relief granted directing the Management to keep the orders of transfer issued in respect of the six employees working in KLES's Dr.Prabhakar Kore Hospital and Medical Research Centre, Belgaum, in abeyance till final adjudication of the Industrial dispute and permit them to resume their duties immediately.
2. This matter was heard at length on 12.06.2013. During the course of dictation of judgment, learned counsel appearing for the respondent-Union made a submission that insofar as :3: Smt.Sai C. Patil, General Secretary of the Union, who is transferred by the Management from Belgaum to Bangalore, if the Management takes favourable decision to post her at a nearby place, the matter can be put at rest, so far as the controversy raised in the writ petition regarding the transfers.
3. Learned counsel for the petitioner- Management took time to make necessary submissions. The matter was adjourned to 19.06.2013. On that day, learned counsel for the petitioner submitted that the employee could be accommodated at Ankola. However, learned counsel for the employees' union submitted that it would be convenient and feasible if the employee is accommodated in Hubli. Therefore, again the matter was adjourned to 21.06.2013 directing the management to consider the proposal and come up with a response to the request made by the learned counsel for the respondent union. On 21.06.2013, learned counsel for the Management, expressed the inability of the Management to accommodate the :4: petitioner at Hubli as they were unable to find any post for her without displacing the present occupant of the post. It was further submitted by him that as and when the vacancies arise in Hubli or in any nearby places they will try to accommodate Smt.Sai C. Patil in that post. In this background, the matter was again listed for further dictation on 24.06.2013.
4. It is useful to refer to the contentions already advanced by the learned counsel for both sides, which is part of the order dictated on 12.06.2013, which is as follows:
(i) Learned Senior Counsel appearing for the petitioner - management has contended that while the transfer order transferring six of the employees was effected on 25.08.2012, the information for the first time with regard to the formation of the Union and the details of its office bearers was furnished to the petitioner -
management only on 20.09.2012 as is
evident from Annexure-L Communication. He
has further pointed out that the Industrial Tribunal has erred in coming to a prima facie conclusion that the transfer was made in the :5: background of the meeting held on 23.08.2012, inasmuch no such meeting was held, wherein Dr.Jali allegedly participated and told the transferred employees to disassociate themselves from the Union activities and to give an undertaking in that regard. In support of this contention, he has invited the attention of the Court to Annexure-M - communication dated 03.10.2012 issued by the Union addressed to the petitioner - management, wherein no mention is made to the said meeting dated 23.08.2012 or of the participation of Dr.Jali in the meeting. He has also referred to the reply to the show-cause notice submitted by the transferred employees on 09.10.2012 vide Annexures-P, Q & R to contend that no mention is made of the alleged meeting convened by Dr.Jali and of the unfair labour practice resorted to.
(ii) He has placed reliance on the judgment of the Apex Court in the case of THE DELHI CLOTH AND GENERAL MILLS CO. LTD. Vs. THE WORKMEN AND OTHERS
- AIR 1967 SC 469 to contend that the Tribunal cannot go beyond the order of reference, as otherwise it will be acting without jurisdiction. He also points out that :6: the question regarding transfer of an employee being part of the efficient management of the institution, interference by way of an interim relief by the Tribunal was totally uncalled for. It is urged that the dispute raised and referred in the instant case is with regard to the withdrawal of transfer orders effected consequent to the formation of the Union. But, in fact, the transfer has been effected prior to the formation of the Union inasmuch as the Union was formed as is evident from Annexure-K on 16.09.2012 and it applied for registration on 18.09.2012 much prior to the order of transfer. Therefore, he submits that the order passed by the Tribunal suffers from patent illegality calling for interference.
(iii) Learned counsel for the respondents strongly supports the order passed by the Tribunal. He draws the
attention of the Court to the demand letter issued by the Indian Nursing Association through its President/Secretary on 20.08.2012 vide Annexure-C to contend that the fact, that there was an association formed to safeguard the interest of the employees employed under the petitioner -
management and that a demand notice was :7: served on the management and it is only, thereafter, that the order of transfer had been effected, itself clearly indicates that there has been unfair labour practice and the transfer order is actuated by malafide intention. He also points out that the association through its Secretary had indeed approached the Labour Officer seeking his intervention by a letter dated 22.08.2012 vide Annexure-AK and it is thereafter that the transfer order has been effected on 25.08.2012. Therefore, there was prima facie material placed before the Tribunal which has been rightly appreciated and hence, the matter does not warrant interference in exercise of the writ jurisdiction.
(iv) Learned counsel for the
respondents has placed reliance on the
judgment of the Division Bench of this Court in the case of DARSHAK LIMITED VS.
INDUSTRIAL TRIBUNAL AND ANOTHER -
1986(1) L.L.J. 253, KARNATAKA.
5. The main thrust of the argument of Sri.S.N.Murthy, learned senior counsel is that, order of transfer was made on 25.08.2012 and the union :8: was formed on 16.09.2012 and only on 20.09.2012 the list of office bearers was submitted to the Management. Hence, it was clear that the transfer was made much earlier to the formation of the union and that after the formation of the union, the Management has not effected any transfer. Therefore, the action of the Management cannot be termed as mala fide amounting to unfair labour practice. He has further asserted that due to exigency of work, the 2 n d party management has transferred some of the employees on 25.08.2012 to different places.
6. On the other hand, the main emphasis of the learned counsel for the respondent union is on the fact that only after the demand notice was issued on 20.08.2012 by the Indian Nurses Association Karnataka to the Management and also after the meeting held on 28.03.2012 by one Dr.Jali, wherein the office bearers of the Union i.e., the transferred employees were told to disassociate themselves from the union activities, for which the employees refused :9: to give any undertaking, the second party management passed the transfer order on 28.05.2012.
7. A careful perusal of Annexure-K produced along with the writ petition, which is an application for registration of the trade union submitted in Form-A discloses that, KLES's Hospital employees union applied for registration of trade union under such name only on 18.09.2012. In para-3 of the said application, it is stated as under:
"3. The Union came into existence on the date of 16/09/2012. The Union is a union of Employees Working in KLE's Hospital".
Therefore, admittedly, the Union came into existence on 16.09.2012 and applied for its registration on 18.09.212. The order of transfer was effected much earlier on 25.08.2012. Though the demand notice dated 20.08.2012 was issued by the Indian Nurses Association, listing certain charter of demands, there is no reference to the second party union, its formation or the names of the office : 10 : bearers. None of the six transferred employees have signed the said demand. Therefore, the contention that the Management has singled out the office bearers of the union to transfer them to different places in an unfair manner, meeting out arbitrary treatment to them cannot be accepted.
8. The Industrial Tribunal has fallen into serious error in making such an inference of unfair labour practice as the respondent-union had not at all come into existence and the Management had no occasion to know the names of the office bearers of the respondent-Union while ordering transfer of the six employees. The Industrial Tribunal has also misdirected itself in recording the finding that there was a meeting on 23.08.2012 called by one Dr.Jali, who had given some closed covers to the employees to sign them or to give an undertaking and when the employees refused to comply with the same, the orders of transfer were issued. As rightly contended by the learned senior counsel appearing for the petitioner-Management, if that was so, in the : 11 : representation dated 03.10.2012 addressed to the Deputy Labour Commissioner, Belgaum Division, Belgaum by the respondent-union, they would have mentioned about the meeting convened by Dr.Jali and the pressure exerted to give written undertaking.
9. The representation addressed to the Deputy Labour Commissioner by the Union on 03.10.2012 is produced at Annexure-M to the writ petition. It does not make any reference to Dr.Jali or to the meeting dated 23.08.2012 called by him. It is further relevant to notice here that, even in the reply to the show cause notice dated 05.10.2012 given by Smt.Sai C.Patil, dated 09.10.2012, which is produced at Annexure-P to the writ petition, there is no reference to such unfair labour practice let alone to the meeting convened by Dr.Jali, where written undertakings were sought from the employees. Therefore, in my view, the Industrial Tribunal has committed apparent illegality in not referring to the important documents and in drawing inference on the basis of the mere assertion made by the respondent- : 12 : union while recording prima facie findings regarding the alleged unfair labour practice by the management in effecting the transfer of these employees.
10. The order of appointment of one of the employees by the Management is produced at Annexure-E3. It shows that one of the terms and conditions of appointment is that the employee may be transferred to any of the institutions/ unit/ department/ location at any place without any extra remuneration. It is thus clear that the employee cannot make any grievance regarding the transfer, having expressly agreed to such terms and conditions. In addition, it is seen from Annexure-B, list of employees transferred from the Hospital to other organization that from time to time employees have been transferred from one place to another depending on exigency. Therefore, as long as the action is not the result of mala fide intention or unfair labour practice, the Tribunal could not have interfered with the orders of transfer by granting interim relief. Transfer being an incidence of service : 13 : cannot be lightly interfered with, as otherwise, it will affect the efficiency of the Management in the administration of the institutions run by the petitioner-management.
11. The judgment in DARSHAK LIMITED vs. INDUSTRIAL TRIBUNAL AND ANOTHER - 1986(1) LLJ 253 (KAR), does not support the case of the respondent-union. In fact, in the said judgment reference is made to the judgment reported in SYNDICATE BANK LTD., vs. THEIR WORKMEN - 1966-1 LLJ 440, wherein one of the contention of the workman was that as he was an office bearer, in terms of the Sastry award, an office bearer of the Union could not be transferred. This contention was rejected on the ground that, at the time of transfer the workman was not an office bearer. Therefore, it is clear that as the six employees were not the office bearers when the order of transfer was issued, it cannot be said that there was unfair labour practice targeting the office bearers of the Union. Hence, the : 14 : judgment in DARSHAK LIMITED has no application to the present case.
12. For the reasons stated above, I am of the view that the impugned order passed by the Tribunal granting interim relief regarding transfer of six employees deserves to be interfered with. Accordingly, to this extent, this writ petition is allowed. The order passed by the Industrial Tribunal only insofar as it interferes with the order of transfer issued by the Management is set aside.
13. At this stage, it is necessary to observe that Smt.Sai C. Patil has pleaded serious hardship for her to join her duties at Bangalore. In fact effort was made by calling upon the learned counsel for the Management to consider if she could be accommodated in Hubli or at any nearby place. The Management has responded saying that she can be accommodated at Ankola as there were no vacancies at Hubli. Therefore, if Smt. Sai C.Patil wants to join at Ankola and makes a representation in this regard to the Management, she shall be permitted to join : 15 : her duties to the post at Ankola. It is also observed that she will be at liberty to make a representation to the Management to post her to any other Hospital at Hubli or to any other nearby places or even at Belgaum pleading her difficulties. In such an event, this order shall not be treated as a shield to reject such representation. On the contrary, the Management may take sympathetic view of the matter taking into consideration the hardship faced by Smt.Sai C.Patil.
The writ petition is accordingly allowed in terms stated above.
Sd/-
JUDGE Vnp*