Jagdish Narain Sharma And Anr. vs Rajasthan Patrika Ltd. And Anr. on 21 June, 1993
25. As already observed earlier, transfer of an employee by the employer is a normal incidence of service. Even before coming into force of the Industrial Dispute (Amendment) Act, 1982, by which Section 2(r- a), Section 25T and Fifth Schedule were added along with some other provisions. The Court has recognised protective right of the employer to transfer his employee and also that an employee is free to challenge the order of transfer on the ground of mala fide and victimisation, unfair labour practice etc. That has been done by the Amending Act which statutorily treats the transfer of a workman as an act of unfair labour practice. This amendment, however, does not lead to a further conclusion that other transfer effected by the employer automatically becomes an industrial dispute. Before any challenge regarding transfer of an employee who is working under the Industrial Disputes Act, 1947, can be made a subject matter of reference, it has to be satisfied that industrial dispute exists or is apprehended. Labour Court or Industrial Court will get jurisdiction to make an adjudication in the matter of transfer only when it can be treated to be an industrial dispute. Although in the decisions of the Madras High Court in Tamil Nadu Mercantile Bank Ltd., Tuticorin v. T. Venkatesan, T. Rajaiah v. Southern Roadways Ltd., decision of the Kerala High Court in Kerala Rubber and Reclaims Ltd. v. PA. Sunny (supra) and decision of the Karnataka High Court in Y. Mookan v. Southern Roadways (supra) to which reference has been made hereinabove, it has been held that Civil Courts have jurisdiction to examine the validity of transfer of a workman, a thorough reading of all these decisions shows that neither of the High Courts has examined the issue in the context of the definition given to the term 'industrial dispute' by the Supreme Court in Bombay Union of Journalists v. 'The Hindu', Bombay (1961-II-LLJ-436). In all these judgments, the Courts have proceeded on an assumption that a dispute relating to transfer is always an industrial dispute, even though it may not be espoused by the Trade Union or by a substantial number of workmen.