Gujarat High Court
Avery vs Paresh on 17 July, 2008
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
Print
SCA/9258/2008 39/ 39 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9258 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
AVERY
INDIA LIMITED - Petitioner(s)
Versus
PARESH
GULABBHAI MEGHNATHI & 1 - Respondent(s)
=========================================================
Appearance
:
MR
KM PATEL for
Petitioner(s) :
MR. DG SHUKLA with Mr. TR Narayanan for
Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 17-18/07/2008
ORAL JUDGMENT
1. The petitioner in this petition is a Public Limited Company and respondents are two of its employees. By this petition, the petitioner has challenged an order dated 16.6.2008 passed below Exh.2 in Application No. 4 of 2008 in Reference (LCAD) No. 8 of 2008 whereby the Labour Court, Ahmedabad has allowed the application Exh. 2 and the transfer orders passed by the petitioner company qua the two respondents of present petition have been stayed till the further orders or till disposal of the application.
2. The facts giving rise to this petition are that the respondents are, as claimed by them, in the employment of the petitioner company since more than 10 years. The orders passed by the petitioner company transferring the two respondents from Ahmedabad to Jaipur are in the root of the controversy and dispute between the parties. At the time when the said transfer orders came to be passed in April 2008 certain demands raised by the Union were pending before the Labour court in form of a dispute referred by an order of Reference dated 18th January 2008. Upon service of the said transfer orders on 14.4.2008 the respondents approached the Labour Court by preferring an application being Complaint No. 4 of 2008 in the said Reference (LCAD) No. 8 of 2008. An ex parte order was passed by the Labour Court staying the operation of the subject transfer orders. Thereafter, the petitioner company filed its reply and opposed the complaint-application. After hearing the parties and upon taking into consideration the material available on record, the Labour Court passed the impugned order dated 16.6.2008. Aggrieved by the said order, the petitioner company has preferred the present petition.
3. Mr. Patel appears for the petitioner company and Mr. D.G. Shukla appears for the respondents. I have heard Mr. Patel and Mr. Shukla extensively.
4. Mr. Patel, for the petitioner, submitted that the impugned order and directions are without jurisdiction as well as against settled legal position and the relevant provisions. He also submitted that the impugned order and the ultimate directions are contrary to the finding recorded by the Labour Court that there is a condition regarding the transfer in the appointment letter and that the provision under Section 33(1)(a) is not applicable to the facts of the case. He also submitted that the subject transfer orders are in consonance with the terms and conditions of the respondents' appointment letters which contain condition regarding transferability since their appointments and also prior to the order of reference and that therefore it cannot be said or even presumed that the petitioner company has effected any alteration in their service conditions and thus the complaint itself is not maintainable and consequently such restrain order could not have been passed. In support of his submissions that the findings regarding alleged malafides are unwarranted he relied upon the judgment of this Court in the case between Taragauri Kalyanji Khimani Vs. District Panchayat, Jamnagar & Another, reported in 1984 (4) GLH 589, and the judgement of Hon'ble Bombay High Court in the case between Wimco Ltd and Wimco Employees Union, reported in 2002(1) LLJ 888.
5. On the other hand, Mr. Shukla, Advocate for the respondents vehemently defended the impugned order and submitted that the Labour Court, in the facts of the present case, is justified in staying the transfer orders. He submitted that the transfer orders are passed by an officer who lacked authority to pass such orders and thus they are non est. He further submitted that the action of the petitioner company is actuated by malafides inasmuch as the respondents are office bearers of the Union and the petitioner Company was averse to their presence and hence to harass the respondents the subject transfer orders came to be passed. Except assailing the transfer orders on the said 2 grounds, no other contention against the transfer orders has been raised by Mr. Shukla. He, of course, for supporting the allegations about malafide referred to the chronology of events starting from the date on which certain demands were raised against the petitioner company in respect of which the respondents had played lead role. In support of his submissions, Mr. Shukla relied on the judgments reported in 1994 (2) SCC 416; 2002 (4) LLJ 612; and 2006(2) LLJ 151.
6. At this stage, it is appropriate to mention that in support the submission that transfer has been an existing service condition, Mr. Patel relied upon the settlement dated 20th September 2006. Mr. Shukla opposed Mr. Patel's attempt of making reference of the settlement on the ground that the said settlement was not produced before the Labour Court at the time of hearing of Exh. 2 application and that the said settlement is now terminated. So as to counter the said objection, Mr. Patel submitted that apart from the said settlement, the terms of the appointment letter itself are more than enough to establish that the transfer is and always has been service condition of the respondents, and that even after termination of settlement the terms remain binding until new settlement is arrived at.
7. So as to appreciate and deal with the first contention of Mr. Patel against the impugned order which rests on the ground of want of jurisdiction, it is necessary to take a close look at Section 33A and since the said provision is closely related to Section 33, it is appropriate to keep the said provision in focus as well. The said provisions read thus:-
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 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
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],__
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct nor connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
(3) Notwithstanding anything contained in sub-section (2), no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute__
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding; or
(b) by discharging or punishing whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.
(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub-section (3) shall be one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.
(5) Where an employer makes an application to a conciliation officer, Board, [an arbitrator, a] Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, [within a period of three months from the date of receipt such application], such order in relation thereto as it deems fit;]
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.] 7.1. It clearly flows from the reading of Section 33-A that breach or contravention of Section 33 by employer is the condition precedent for exercising jurisdiction under Section 33-A and/or for invoking the remedy available under Sec.33-A. 7.2. Unless it is shown by an applicant that (a) his employer has contravened Section 33; (b) such contravention is caused during pendency of dispute; and (c) he is a concerned workman in the dispute during pendency of which Section 33 is violated, the occasion for exercising jurisdiction under Section 33A does not arise. Hence, before exercising jurisdiction under Section 33-A, it is necessary for the Court or Tribunal to satisfy itself that employer has contravened Section 33 and that the applicant has, prima facie, demonstrated breach of S. 33.
8. Thus, in present case it is necessary to first decide whether petitioner-employer has contravened Section 33 and whether the learned court has recorded any finding about breach of Section 33 by petitioner employer. To examine the challenge posed by the petitioner against the impugned order, it is also necessary to find out whether the finding is legally tenable or not.
8.1. Section 33 (1) and 33(2) are in two parts. One part deals with the dispute which is connected with the pending dispute and the other part deals with the dispute which is not connected with the pending dispute. There is further sub-division which deals with disputes arising on account of dismissal/discharge etc., on one hand and on the other hand the disputes arising on account of alteration in service conditions. Section 33(1)(a) and 33(2)(a) relate to disputes about alteration in service condition and 33(1)(b) & 33(2)(b) relate to disputes about dismissal/discharge etc. 8.2. The learned Court has, after considering the subject matter of Ref. (LCAD) No. 8/2008, rightly held that present dispute is not connected with the subject matter of the pending Ref. No.8/2008. Further, the learned court has also, rightly, recorded that ?Sthere is no matter of transfer to be adjudicated. Therefore, the provision of the Section 33(1)(a) is not applicable to the facts of present case??.
8.3. Since this is not a case of dismissal or discharge question of applicability of S.33(1)(b) or 33(2)(b) does not arise. It is also not the case of the respondent that they were ?Sprotected workmen??, hence Section 33(3) also would not come in picture. This leaves behind Section 33(2)(a).
9. So far as S. 33(2)(a) is concerned it would come in operation if, and only if any alteration in any service condition as existing prior to commencement of pending dispute is made without seeking approval of the Court or Tribunal. Hence, it was necessary for the learned court to first find out whether the petitioner-employer, in issuing subject transfer order, had altered any service condition existing before the commencement of said Reference proceedings.
10. It is not in dispute that in case of both respondents transfer has been one of the terms/conditions of service made applicable since their appointment by virtue of specific provision in the appointment letters. This is evident from Clause 7 of the appointment letters. The said Clause reads thus:
(7) TRANSFER You may be transferred at any time from one job or section or department to another and from one Establishment to any other Establishment of the Company in any State within the Indian Union which exists at present or may come into existence in future, provided, however,that such transfer does not involve any loss in normal wages.
11. Apart from this, transfer is an accepted and settled position in the petitioner company by way of negotiated settlement also. The settlement, however, aims at restricting the area/zone within which the employees can be transferred. The said Clause 21 of the settlement, reads thus:-
21. REDEPLOYMENT/TRANSFER ? ARISING OUT OF BUSINESS NEED:
For smooth and efficient functioning of the service network, it becomes necessary to transfer/redeploy/relocate the workmen from one place of work to another place of work. This issue has been discussed in detail with the federation. In order to minimize the hardships faced by the workmen due to such transfers, it has been agreed that the workmen in Area establishments will be transferred/redeployed/relocated in the same area or the adjoining area as detailed in annexure II.......??
12. From the aforesaid discussion, it follows that transfer has been the condition of service of respondents since the initial stage of their employment. This aspect of the matter is not denied by the respondents.
13. When an employer passes transfer order in exercise of powers flowing from such provision, then it would not constitute alteration of condition of service existing before commencement of the proceedings of the Reference/dispute.
14. In such cases the transfer order is only manifestation of, or implementation of, existing service condition and that therefore it would not constitute contravention of Section 33.
15. Hence, it does not appear that in present case the petitioner-employer has contravened Section 33 of the Act by issuing transfer orders.
15.1. The learned court has, however, in para 26 of the impugned order held thus:-
26.
....In the present case the opponent has not produced any copy of the standing orders applicable to the complainants. It is also not the case of the opponent that there is no standing orders applicable to the complainants. Therefore, the provisions of the section 33(2) of the Industrial Dispute Act, 1947 are clearly attracted to the facts of the present case, according to me. Therefore, it can be believed, prima facie, at this stage, that the opponent has violated the provisions of the I.D.Act and transferred the complainants in violation of the standing orders. Therefore, the transfers being in violation of the standing orders, itself can be termed as illegal or malafide, at this stage. Therefore, I cannot agree with learned advocate Mr. B.K. Oza appearing for the opponent that the opponent has not changed the conditions of the service of the complainants.??
15.2.
The learned Court, while recording such conclusions, ignored or lost sight of the specific provision about transfer in the appointment letter as well as the Clause 21 of the settlement. Further, it is not even the case of the respondents that in the Standing Orders there is a provision which prohibits transfer.
15.3. On this count i.e. regarding the aforesaid findings with reference to the Standing Orders there are serious infirmities in the impugned order. Firstly, the learned court has not addressed the issue as to whether the provisions of Standing Orders are applicable to the respondents' place of employment i.e., petitioner's office at Ahmedabad or not. It is relevant to note that the Standing Orders apply to ?Sindustrial establishments?? and it is petitioner's case that its office, being a commercial establishment, would not fall within the purview of said term. This issue should have been decided first before holding the transfer orders contrary to Standing Orders. Secondly even if the applicability of Standing Orders is presumed then also without looking at the Standing Orders and the provisions it could not have been presumed that the transfer orders are in violation of Standing Orders. It is recorded by the learned Court that Standing Orders are not produced on record, which means that the Court has not even perused, much less examined, the Standing Orders. Thus, without examining the Standing Orders and the provisions, such a finding-conclusions could not have been reached. Thirdly the learned Court has not recorded any finding that the applicable Standing Orders contains a provision which prohibits transfer. In absence of such finding, it could not have been declared that the transfer orders are in violation of Standing Orders. Further, what the learned Court was required to consider and decide was whether there was any alteration in service conditions which were applicable immediately before the commencement of proceedings of pending dispute (in present case Ref. 8/2008). It is already seen, and even the learned Court has recorded, that the appointment letters include condition of transfer. So, prima facie, this is not a case of alteration of service condition existing prior to commencement of Reference proceedings. The most important part of the infirmities, besides those mentioned above, in the impugned order ? in the context of the findings on the ground of Standing Orders ? is that the learned court appears to have lost sight of the relevant part of the provision under Section 33(2) which reads:- ?S....or, where there are no such standing orders, in accordance with the terms of the contract....?? The said provision, thus, contemplates, and provides for, a situation where there are no Standing Orders, and it is provided that in such cases the terms of contract i.e., appointment letters would apply. Thus, when the respondents could not bring to the notice of the learned Court any Standing Orders ? either settled Standing Orders or model Standing Orders ? and also could not satisfy the learned Court on the issue of applicability of Standing Orders and could not show any provision under applicable Standing Orders prohibiting ? in express terms ? transfer, then it was too risky, premature and erroneous to hold, at this stage, that the transfer orders are in violation of Standing Orders. The impugned finding by the learned court is, for the aforesaid reasons, not acceptable, justified and tenable. Thus, it is not possible, at this stage, to hold that contravention of Section 33 has occurred at the hands of the petitioner.
16. In this regard, it would not be out of place to refer the judgment in the case between Management of Cipla Ltd. And Jayakumar R. & Another, (1999) 1 SCC 300 wherein the Hon'ble Supreme Court has observed as follows;
?S12. In our opinion, the aforesaid construction does not flow from the provisions of the Standing Orders when read along with the letter of appointment and, therefore, the conclusion arrived at by the High Court was not correct. As has already been noticed the letter of appointment contains both the terms namely for the respondent being transferable from Bangalore as well as with regard to the applicability of the Standing Orders. These clauses, namely, clauses 3 and 11, have to be read along with the Standing Orders, the relevant portion of which has been quoted hereinabove. Reading the three together we do not find that there is any conflict as has been sought to be canvassed by the learned counsel for the respondent. Whereas the Standing Orders provide for the department wherein a workman may be asked to work within the establishment itself at Bangalore, clause 3 of the letter of appointment, on the other hand, gives the right to the appellant to transfer a workman from the establishment at Bangalore to any other establishment of the Company in India. Therefore, as long as the respondent was serving at Bangalore he could be transferred from one department to another only in accordance with the provisions of the Standing Orders but the Standing Orders do not in any way refer to or prohibit the transfer of a workman from one establishment of the appellant to another. There is thus no conflict between the said clauses.??
17. When the respondents could not demonstrate or establish contravention of Section 33, which is sine qua non for exercising jurisdiction u/s. 33-A, the learned Court erred in proceeding further to examine and that too before recording evidence - the transfer orders, the competence of the officer who issued the orders and the intention behind the orders.
18. This discussion, now takes the Court to deal with the submissions of Mr. Shukla, for the respondents. He has, while supporting the impugned order, assailed the transfer orders on ground of lack of authority with the officer who issued the said orders and secondly on the ground of malafides. During the hearing of the petitioner also Mr. Shukla attacked the orders on these two grounds only and restricted his submissions to the said two grounds. The discussion regarding the aspect of Standing Orders is undertaken, at some length, in this order because the learned court has faulted the transfer orders on said ground.
18.1. While elaborating his submissions regarding authority of the officers who issued the orders, Mr. Shukla submitted that Mr. Arvind Modgil, who was Area Service Manager, has signed and issued the orders whereas the competent officer to pass order in respect of the respondents, would be the Area Manager and that therefore Mr. Modgil was not competent to sign and issue the said transfer orders.
18.2 So far as the said contention is concerned, the learned Court has recorded findings in Para 27 of the impugned order. The learned Court has taken note of present petitioner's submission that the instructions for issuing order of transfer were received from Head Office and the said Mr. Arvind Modgil, Area Service Manager had merely issued the orders by signing the same, and that it was not his decision. After noting the said submission of present petitioner, the learned court has observed and recorded thus;
?S.....No document has been produced in the present case by the opponent to show that the opponent ever empowered the person who has signed the transfer orders to do so on 8.4.08 or the transfer orders came from the Head office. Therefore, in absence of such document it can be said, at this stage, that the transfer orders have been signed by the unauthorised person, prima facie. Therefore, the transfer orders cannot be said to be valid, primafacie, at this stage, according to me.??
18.3. It can be seen from the said observations that the learned court has agreed with the contention of present respondents for the reason that no document in support of the submission that instructions were received from head office, was produced. While assailing the said finding Mr. Patel heavily relied on the documents at Annexure 'G' (Pages 94 and 95). From the said 2 documents, it transpires that on 14.4.2008, the management, through the Vice President (Sales & Service), Head Office, had informed said Mr. Modgil that in view of resignation by Mr. Dipak Tyagi, (the then Area Manager) he, (i.e., Mr. Modgil) was authorised to officiate as Area Manager till further orders. The date of the said communication is relevant inasmuch as the said communication is dated 14.2.2008 and the respondents have, in para 7 of their complaint-application, stated that the orders were served on them on 14.4.2008 and as per the orders they had to report at Jaipur office on 1.5.2008. Thus, it prima facie appears that the said Mr. Modgil was authorised to officiate as Area Manager when the orders were served. The communication dated 22.4.2008, (Annexure G colly -- (Page 95) is also relevant inasmuch as by the said communication-order said Mr. Modgil has been appointed-designated as Area Manager, Ahmedabad with effect from 1st May, 2008. At this stage, it would not be out of place to also note that the transfer orders in question, though served on 14.4.2008 on the respondents, transferred the respondents with effect from 1.5.2008. This is evident from perusal of the transfer orders.
19. It is also relevant that the said documents were available on the record before the learned trial court inasmuch as in Para 12 of the impugned order, reference of the said documents is made by the learned trial Court. However, while recording the impugned findings, the learned court has not taken into account the said documents and they do not find any place in the discussion by the Court on the point of competency of the person issuing the transfer orders.
20. The learned Court could have, after duly considering the effect, value and relevance of said documents either accepted or rejected the petitioner's case and explanation but it committed serious error in altogether overlooking the said documents. Thus, the said finding is, at this stage, unsustainable since it is arrived at and recorded without considering relevant documents available on record.
21. Lest it be said that this court has recorded final conclusions or observations regarding the issues in question before the learned trial court it is clarified that the observations made in this order regarding factual aspects are only prima facie and this Court has not pronounced opinion on the issue of the authority of Mr. Modgil to issue the said orders.
22. This leaves behind the second and the last contention of the respondents, which is made on the ground of malafides. The respondents have alleged malafides and submitted that the said transfer orders have been actuated with malafides and came to be issued only to harass the respondents who are office bearers of the union.
22.1. So as to buttress the said contention he submitted that in respect of certain unattended demands of the employees, a demand notice dated 12.9.2006 was raised against the petitioner company and as a result of the efforts by the respondents that the Conciliation Case No. 82/2006 was registered and the conciliation proceedings were commenced some where in January 2007 and then order of reference dated 18.1.2008 was passed which culminated into Reference (LCA Demand) No. 8/2008 and the first date of hearing of the said Reference was 9.4.2008. By narrating the said chronology, Mr. Shukla submitted that the said notice and the Reference proceedings irked the management and as a retaliation and to harass the respondents the subject transfer orders came to be passed. In this background, the respondents have alleged malafides. Thus, in present case, malafides is ?Sfact in issue??.
23. It is, by now, settled legal position that the allegations about malafides are required to be proved by cogent and direct evidence. It has been time and again held that it is easier to allege malafides than to prove it. Any presumption and/or allegations about malafides cannot replace, and cannot be allowed to replace, evidence. At this stage, it is relevant to refer to the observation by the Hon'ble Division Bench of this Court reported in 1984 GLH Page 84 in the case between Taragauri Kalyanji Khimani vs, District Panchayat Jamnagar & Another. The same read thus:
?SAny subordinate civil court merely because a suit is filed alleging that there is mala fides in the transfer would not be justified in passing an interim order staying the transfer even if there is a plea of mala fides remembering that mala fides succeed very rarely and it is not easy to make out successfully the case of mala fides. Courts should well be aware that it is not to take any and every statement of mala fides as deserving of notice for grant of interim relief. The practice of staying such transfers by subordinate civil courts, we notice, from figures supplied to us, has become so rampant that it is time that we consider whether this does not amount to an abuse. The best illustration of the use of the civil court for purposes of putting off implementation of transfer is furnished by the case before us and we are well aware that there may be many other similar cases.??
Mr. Patel also relied upon the judgment in the case of Wimco Ltd Vs. Wimco Employees' Union and Others, reported in 2002-I-LLJ Bombay 888 where the Hon'ble Bombay High Court has held that;
?S4.....The conditions of service are those provided for in the letter of appointment which expressly contemplates that the workman can be transferred and that upon transfer he will be governed by the rules and regulations of the unit or establishment to which he is transferred.
5. There is, therefore, no alteration in the conditions of service within the meaning of Section 33(1)(b). Having regard to the aforesaid situation, I am of the view that this was not one of those exceptional cases where the Industrial Court should have at the interim stage interfered with the order of transfer....??
24. Thus, the respondents have to lead evidence and establish the allegations about malafides and at the stage of interim relief application, when the evidence is not let-in, it is premature to arrive at a conclusion that the action is infected by malafides. The said conclusion, being premature, is not acceptable or tenable.
25. So as not to influence the proceedings before the learned trial Court this Court considers it appropriate and necessary to refrain from making any observations on this issue or on factual aspects of the matter, however so as to deal with the contention of the respondents, it is but necessary to at least observe that it does not appear to be the case of the respondents that this was the first time that the demands were raised by the union and/or that every time when the union raised demands, the company indulged into retaliation with such actions of transfers etc., and this was merely a repetition. It appears that in past, settlements with regard to employees' demands have been arrived at and this was not the first time that demands were raised in the petitioner company. This apart, the chronology mentioned by the respondents goes to show that the union, through the respondents, had raised the demands way back in 2006 and conciliation proceedings had also commenced in 2006. Thus, it is too hazarduous to presume at this stage and before sufficient evidence is brought on record, that the company has, after almost 2 years, resorted to transferring the respondents out of malafides.
26. As regards the contention about malafides, the learned Court has recorded a finding in favour of the respondents in Para 29. The same reads thus;
29. There are other circumstances too which cannot be ignored. First, admittedly that the complainants have not been transferred for the last many years. It is true that any employee cannot claim to serve at the same place. However, considering the above mentioned factors, this circumstance, is relevant. Secondly, the opponent has not allowed the complainants to work, considering letters produced at exh. List 17 ------- Had the transfer ordered bonafide, no wise employer would have stopped the workmen from working. It is not understood why the complainants were stopped from working. This circumstance is also relevant, according to me. The employer could have waited till deciding the application. Therefore, considering these all circumstances along with the circumstances mentioned in for going paras, it seems, at this stage, the orders have been passed with some malafide intentions.??
It appears that the learned Court has recorded the said conclusion because in Court's view if the transfer orders were bonafide, a wise employer would not stop the workman from working at the original place during the pendency of the case. In this regard, it is given out by the petitioner company that the orders were served on the respondents on 14th April 2008 and the complaint was filed on 16.4.2008 and ex parte order staying the operation of the transfer orders was passed on 16.4.2008 and that therefore the respondents were allowed to mark their presence at the place of their posting i.e. Ahmedabad office and their salaries also have been paid. Be that as it may. It is a matter of evidence before the learned court who will have to arrive at definite findings after evaluating the rival contentions and evidence from both sides.
27. It, prima facie, appears that in absence of any other cogent and legally sustainable evidence, merely on the premise that the petitioner company could not or did not assign any job, it was premature for the Court to record a finding that the transfer orders have been passed with malafide intentions.
28. Since the learned court has interfered with and stayed the orders of transfer, the observations by the Hon'ble Apex Court, in the judgment in the case between Mrs. Shilpi Bose and others vs. State of Bihar and others reported ? AIR 1991 S.C. 532, though in respect of Government employee, with reference to the issue of transfer are relevant. The Hon'ble Supreme Court has observed;
?SEven if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest.??
The situation is case of companies having its establishments in various States, cannot be much different.
29. It is also noticed from the record that on account of transfer the salary of the respondents would be revised and they would stand to benefit by 2 increments and the respondents would also be paid Rs. 2000 each towards reimbursement expenses-transportation of belongings etc. It has also come out that the salary of the respondents is more than about Rs. 10,000/- and by virtue of the subject transfers neither their salaries nor the nature of their duties are going to be changed. It would not be out of place to mention that it does not appear to be the case of respondents also that there is going to be any change in their duties because of the transfer.
30. Mr. Shukla, to support his submissions, relied on the judgment of the Hon'ble Apex Court in the matter between Dr. Rameshchandra Tyagi vs. Union of India & Others ? (1994) 2 SCC 416, wherein the concerned employee was a Government servant and the question of the transfer order and of the competence of the officer who issued the order was examined from that perspective. Further, in present case the evidence regarding competence and authority to issue the order and the position existing on the date of issue/service of the transfer orders, as flowing from Ann.G. to the petition are yet to be examined after the evidence is let-in. Hence, at this stage of the matter the said judgment would not help the respondents, more particularly because in view of the documents Ex. 13/5 & 13/6, it prima facie appears that the said vital documents and their effect and relevance has to be examined while considering the contention based on the ground of lack of authority and to that extent the facts of this case differs from the facts of the case before the Hon'ble Apex Court and while holding that Mr. Modgil lacked the authority to issue the orders the learned Court has missed the said documents. The finding is pre-mature and without due regard to documents at Pages 94 and 95. The second judgment relied upon by Mr. Shukla i.e. the judgment reported in 2006(ii) LLJ Page 151 rests on the fact that the employer, in the said case, did not possess either in appointment or by Standing Order the power to transfer, whereas in present case the appointment letter contains the condition and thus power is possessed by way of service condition. Further in the said case transfer were made to other company ? through associate company ? and not within the same company, while that is not the case here. Hence, the said judgment also does not help the respondents. In the case between K.K. Verma and Madhya Pradesh Electricity Board (2002-L-LLJ-612) on which Mr. Shukla placed reliance apart from the fact that union leader was transferred, the superimposed fact is that the transfer was against the accepted and approved policy to not to transfer employees in the twilight years of their service, and since the union leader was transferred when he was about to retire the Hon'ble Court in writ jurisdiction was persuaded to believe that the transfer was malafide, and yet in the said case also the Hon'ble Court observed that ?S....merely being an office bearer of a trade union a person does not earn immunity from transfer and does not denude the management of its right....?? In present case, the full evidence is yet to be entered and thus it is premature to record a finding about malafides. Thus, at this stage, the said finding also isi not acceptable or tenable.
31. Further, the time lag also does not prima facie allow the presumption of malafides. Thus, at this stage of the proceedings, the said judgment also does not help the case of respondent or does not support the impugned order. In present case, there is no conflict also inasmuch as the model standing orders, as claimed by petitioner and not disputed by respondent, are silent on the point of transfer while the appointment letter and the settlement expressly confer the power on the petitioner-employer to transfer its employees. Actually it is the case of the petitioner that its office at Ahmedabad is a commercial establishment and not industrial establishment, hence, standing orders are not applicable. However, even if its applicability is presumed then also in view of absence of any prohibition against transfer under Standing Orders the question of conflict or lack of power would not arise when the appointment letters contain the provision for transfer. Thus, the said judgment would not be applicable in this case from which it becomes clear that the impugned order is, at this stage, unsustainable.
32. At this stage, it would not be out of place to refer to the observations of The Hon'ble Rajasthan High Court in the case between Kishori Lal Verma And Hindustan Zinc Ltd. & Another, reported in 1995 LLJ Page 35 -
?S10. Transfer of a trade Union leader does not ipso facto imply that the transfer is an act of victimisation. Trade Union activities performed by the office bearers of the Union are solely for the benefit and welfare of the workmen and not connected with the establishment itself or the members of the public whose interest the establishments are intended to serve. The duties rendered by the office-bearers to the Union are not part of the duties rendered to the establishment.??
33. The Hon'ble Andhra Pradesh High Court in the judgment in the case between Cement Corporation of India Employees Union, Adilabad vs. Assistant Commissioner of Labour and others, 2204 Labour Law Notes, Page 685 has observed that;
?S4. ......In the instant case from a reading of the appointment order issued to one of the members of the petitioner-union, it is clear that transfers can be effected from one unit to another unit. In view of the said condition in the very appointment order, prima facie, it cannot be said that the members of the petitioner-union cannot be transferred from one unit to another unit of the respondent-Corporation.??
34. From the appointment letters of the respondents, it transpires that transfer is one of the conditions incorporated therein and that therefore if the employer acts in pursuance and in consonance with the terms of appointment, then it would not amount to alteration in service conditions. Hence the action would not constitute contravention of Section 33. The learned court has, after examining the subject matter of pending Reference No. 8/2008 held that transfer is not one of the subject matters of said reference and therefore the dispute of subject transfer orders is not a dispute connected with pending dispute. In view of such finding by learned court, it follows that contravention of Section 33 is yet not established. The Court appears to have proceeded in the matter on the premise that Standing Orders are not shown to the Court and it is also not shown that there are no Standing Orders applicable to workmen. Despite such observations, and without actually considering the provisions of Standing Orders and/or whether Standing Orders would be applicable to the petitioner, the learned Court has recorded a finding that the transfer order is in violation of Standing Orders and as recorded earlier the said finding is based on presumptions and the findings regarding authority of the officer are recorded without considering relevant documents.
35. Hence, on the overall view of the matter and for the reasons recorded above, the impugned order is not sustainable and deserves to be set aside. Consequently, the impugned order is set aside. Rule is made absolute. No order as to costs.
36. The observations in this order are not to signal that it would not be open for the court to examine as to whether the orders are actuated by the malafides or not and/or as to whether the officer had the authority or not. After appropriate and necessary evidence comes on record, it would be open to the learned court to examine the impugned orders and contentions of the respondents on all grounds that are raised before it including those which are addressed in present order. Considering the fact that the respondents are transferred to Jaipur, it appears in fitness of things that the request of the respondents that the Labour Court will decide the complaint expeditiously is granted. In this view of the matter, the Labour Court is directed to decide the subject complaint-application on or before 31st October, 2008. The petitioner shall cooperate in the early hearing of the subject complaint-application and shall not ask for unnecessary and avoidable adjournments. The same applies to the respondents as well.
37. After the order is dictated, Mr. Shukla for respondents requested that the order may be stayed for a period of two weeks. Considering his request, this order is suspended upto 14th August, 2008.
[ K.M. Thaker, J. ] rmr.
Top