Full Judgment Text
2009:BHC-OS:19212
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.508 OF 2009
AnjumanIIslams M.H. Saboo Siddik College of Engineering
..Petitioner
Vs.
The General Secretary, Akhil Bhartiya Kamgar Sena & Ors.
..Respondents
Mr. J. P. Cama, Senior Advocate with Mrs. N. R. Patankar i/b Mr. Vishwajit P.
Sawant for the Petitioner
Mr. Anilkumar for the Respondents
CORAM: DR. D.Y. CHANDRACHUD, J.
DATE: 9 th November , 2009
ORAL JUDGMENT :
1. The Petition under Article 226 of the Constitution is directed against an
Interim order passed by the Industrial Court, staying an order of transfer, at
the interlocutory stage, in a complaint under the Maharashtra Recognition
of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The
Second Respondent was working as a clerk at AnjumanIIslams’ M.H.
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Saboo Siddik College, Mumbai. By a communication dated 24 December
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2008, the services of the employee were transferred to a Secondary School
under the same management at Vashi, Navi Mumbai. The Third
Respondent was working as a peon in the same institute at Mumbai. By a
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communication dated 24 December 2008, his services came to be
transferred to a Polytechnic at New Panvel under the same management.
2. Clause 35(1) of the Standard Code 1998, provides for transfer in the
following terms:
“The competent / Appointing authority may transfer the
employee on a post in the cadre in which the employee is
serving. Such employee may be transferred on administrative
exigencies, as a routine periodical transfer, as a measure of
discipline action or on a specific request of the employee. The
transfer may involve change in the headquarters / station of
work of the employee within the jurisdiction of the University
or the same Management, as the case may be.” (emphasis
applied).
The Industrial Court initially granted an exparte adinterim stay by its
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order dated 31 December 2008. The adinterim stay was confirmed by the
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impugned order. The Industrial Court has come to the conclusion that the
order of transfer prima facie was malafide and that there was no material
on record to show “on which administrative grounds it was necessary to
transfer the complainants”.
3. On behalf of the Petitioner, it has been submitted that the Industrial Court
was manifestly in error in interfering with the order of the transfer at the
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interlocutory stage. It was on 19 March 2008, that the Akhil Bhartiya
Kamgar Sena furnished an intimation about the formation of the union and
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on 19 June 2008, about the office bearers of the Union. On 10 November
2008, the Head Mistress at the Secondary School had notified that there
was a need for a clerk in the Institution upon the post falling vacant as a
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result of the resignation of the existing employee. Similarly on 26
November 2008 the Principal at the Polytechnic had communicated that,
there was a need for a peon as one of the employees engaged in that
capacity had left the Institution and there was a shortfall. Consequently,
orders of transfer were issued. These letters were placed on the record of
the Industrial Court.
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4. Even a bare perusal of the judgment of the Industrial Court would show
that the Court has failed to apply settled parameters relating to the exercise
of jurisdiction in matters of transfer of employees. Prima facie, at this
stage, it is evident under clause 35(1) of the Standard Code, that a transfer
within the jurisdiction of the same management is permissible. The
Industrial Court proceeded on the basis that the order of transfer was
malafide. One of the reasons is that the Management had not
demonstrated on which administrative grounds the transfers came to be
effected. The management had in its reply to the Application for Interim
relief drawn the attention of the court to the provisions of clause 35(1) of
the Code and had pointed out that the transfer was on administrative
grounds. The management denied that the school and polytechnic were
independent institutes.
5. The question as to whether a case of malafides has been been established
would have to be determined on the basis of the evidence which may be
adduced at the trial of the Complaint. At the interlocutory stage, it would
be open to the Industrial Court to draw such an inference with
circumspection, where there is clear material from which an inference of
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malafide can be drawn. No such material exists in the present case at the
interlocutory stage. Industrial Courts must be circumspect about
interference in matters relating to transfer which is an exigency of service.
The Industrial Court, merely observed that from the contents of the
Complaint, it appears that efforts of the office bearers of the Union were
not liked by the management. Those efforts were in regard to the release of
salary in December 2007. The orders of transfer were issued in December
2008. Therefore, it was wholly inappropriate for the Industrial Court both
as a matter of law and as a matter of fact, to grant an interim order staying
the orders of transfer. Such judicial intervention at the interlocutory stage
is liable to seriously affect the exigencies of the work and must be
eschewed.
6. Counsel appearing on behalf of the workmen submitted that the letters of
appointment do not contain a condition of transfer. The Industrial Court
noted the provisions of clause 35(1) of Standard Code in paragraph 9 of its
judgment. Clause 35(1) of the Standard Code contemplates that the
transfer may involve a change interalia in the station of work of the
employee within the jurisdiction of the same management. The Industrial
Court, after referring to clause 35(1), in fact observed thus;
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“No doubt, as per the Clause 35(1) of the Standard Code Rules
1998 the respondent can transfer the employees on administrative
exigencies”.
Despite this finding the Court proceeded to issue an order of injunction
restraining the management from transferring the service of the workmen.
It may also be noted, at this stage, that in paragraph 6 of its reply, the
management had placed on record instances where certain workmen had
in the past been transferred to the Polytechnic at New Panvel and
thereafter to the college of Engineering. On behalf of the workmen, it was
contended that this was not a transfer but a deputation. These are all
matters which have to be considered at the final hearing of the Complaint.
Once the trial Court accepted in paragraph 10 of its judgment that a power
of transfer was to be found in clause 35(1) of the Standard Code, the
intervention of the Tribunal at the interlocutory stage was not warranted.
7. Reliance was placed by Counsel for the workmen on the judgment of the
Supreme Court in M/s. Kundan Sugar Mills Vs. Ziyauddin & Ors., AIR
1960 SC 650. The facts of that case are clearly distinguishable as would be
evident from the following extract contained in paragraph 4 of the
Judgment:
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“When the respondents 1 to 4 were employed by the appellant, the
latter was running only one factory 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 intention, 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 contemplation.
Ordinarily the employees would have agreed only to serve in the
factory then in existence and the employer would have employed
them only in 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.”
It was noted by the Supreme Court, that when the Respondent workmen
were employed, the management was running only one factory and there
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was nothing on record to indicate that the management had ever any
intention to acquire other lines of business. It was in these circumstances,
that the Supreme Court, on the basis of the evidence on the record, held
that the employees ordinarily would have agreed only to serve in the
factory which was in existence when they joined service. In the present
case evidence is still to be adduced and the trial is still to take place. Once
prima facie, the Trial Court held that there was a power of transfer
relatable to clause 35(1) of the Standard Code, there was no question of a
power being implied . In any case, these are matters to be considered at the
trial.
8. The Petition is accordingly allowed. The order of the Industrial Court dated
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13 December 2008 is set aside. However, it is clarified that all the
observations in this order are confined to the disposal of the Application for
interim relief and shall not affect the trial of the Complaint on merits.
9. Having regard to the circumstances of the case, it would be appropriate to
expedite the disposal of the Complaint. The parties shall appear before the
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Industrial Court for seeking directions on 1 December 2009 when the
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Industrial Court is requested to set down a time schedule for the
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expeditious disposal of the complaint preferably by 30 April 2010.
10.Counsel appearing on behalf of the Respondent applies for stay. Stay is
refused.
(Dr. D.Y.Chandrachud, J)
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