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AnjumanIIslams M.H. Saboo Siddik College of Engineering v/s The General Secretary, Akhil Bhartiya Kamgar Sena & Others

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- GENERAL ENGINEERING PRIVATE LTD [Strike Off] CIN = U45203AS1992PTC003782

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

Company & Directors' Information:- M,H AND P (INDIA) PVT. LTD. [Strike Off] CIN = U99999DL1998PTC093648

Company & Directors' Information:- GENERAL ENGINEERING CORPORATION LTD [Active] CIN = U99999MH1928PLC001400

Company & Directors' Information:- M.H. ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29299DL2008PTC185291

Company & Directors' Information:- MH INDIA PRIVATE LIMITED [Active] CIN = U74140DL2013PTC248880

Company & Directors' Information:- SABOO CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U52390KA2012PTC066093

Company & Directors' Information:- INDIA GENERAL ENGINEERING COMPANY LIMITED [Under Liquidation] CIN = U99999MH1955PLC009687

    Writ Petition No.508 of 2009

    Decided On, 09 November 2009

    At, High Court of Judicature at Bombay


    For the Petitioner: J. P. Cama, Senior Advocate with Mrs. N. R. Patankar i/b Vishwajit P. Sawant, Advocates. For the Respondents: Anilkumar, Advocate.

Judgment Text

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 Anjuman-I-Islams? M.H. Saboo Siddik College, Mumbai. By a communication dated 24th December 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 communication dated 24th 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 ad-interim stay by its order dated 31st December 2008. The ad-interim stay was confirmed by the 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 interlocutory stage. It was on 19th March 2008, that the Akhil Bhartiya Kamgar Sena furnished an intimation about the formation of the union and on 19th June 2008, about the office bearers of the Union. On 10th 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 result of the resignation of the existing employee. Similarly on 26th 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.

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 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 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;

?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:

?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 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(

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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 13th 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 Industrial Court for seeking directions on 1st December 2009 when the Industrial Court is requested to set down a time schedule for the expeditious disposal of the complaint preferably by 30th April 2010. 10. Counsel appearing on behalf of the Respondent applies for stay. Stay is refused.