1. Regard being had to the similitude in the controversy involved in the present cases, the miscellaneous petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Miscellaneous Petition No. 2469/2019 are narrated hereunder.
2. The petitioner before this Court is a Company registered under the Companies Act, 1956 has filed present petition being aggrieved by order dated 03/05/2019 passed in CA No. 1/MPIR/2019 by the Industrial Court, Indore (M.P.).
3. The facts of the case reveal that the originally the petitioner Company was named as Ranbaxy Laboratories Ltd. and later on, on account of acquisition of the Company by M/s. Sun Pharmaceutical Industries Ltd., it is owned and controlled by M/s. Sun Pharmaceutical Industries Ltd. The Company is having manufacturing plants all over India in about 25 cities. The respondents No. 1 to 14 are the employees and respondent No. 15 is representative Union as defined under Section 2(27) of the Madhya Pradesh Industrial Relations Act, 1960.
4. The facts further reveal that respondent No. 15 served a notice of change upon the petitioner Company, which ultimately culminated in settlement. The settlement was arrived at on 22/09/2017 and the same was duly registered under the provisions of Section 43(1) of the Madhya Pradesh Industrial Relations Act, 1960. As per settlement, new pay structure was granted to the workmen giving rise in wages, giving rise in increments, giving rise in HRA, giving rise in allowances as well as yearly increments. The benefit given to the workmen was ranging from Rs. 2,700/- to Rs. 4,500/- per month.
5. As the petitioner Company is having manufacturing Units all over India, issued an order of transfer on 03/01/2018 transferring the respondents No. 1, 2, 6 and 14. The order of transfer was in English and the workers refused to receive the same, hence, a Hindi version was also send to them through registered post and it was returned back with acknowledgment.
6. On 05/01/2018, respondents No. 1 to 14 filed an application before the Labour Court, Dewas under Section 31(3) read with Section 61 and 62 of the Madhya Pradesh Industrial Relations Act, 1960 stating that they are contemplating their transfer from Dewas to some other Units amounts on account of victimization.
7. A detailed and exhaustive reply was filed by the petitioner Company in the matter and it was stated that the specific transfer was not challenged and the management does have a right to transfer an employee keeping in view the terms and conditions mentioned in the appointment order and as per the settlement arrived at between the parties and the representative Union.
8. The petitioner Company has further stated that after an order was passed in respect of amalgamation by the High Court of Punjab and Haryana, a merger took place in the year 2015 and two big Companies came on one common platform in respect of business relating to pharmaceutical products. It has been stated that transfer of an employee from different categories from one site to another is regular phenomena and till date, 50 Managers/Officers and 09 workmen have been transferred out of Dewas to other localities and 14 Managers/Officers and 08 workmen have been transferred from other localities in the country to Dewas.
9. Before the Presiding Officer, Labour Court an interim application was also filed for grant of Stay and the Labour Court has dismissed the application on 17/01/2018. Thereafter, the respondents No. 1 to 14 preferred an application before the Industrial Court under Section 67 read with Section 64A of the Madhya Pradesh Industrial Relations Act, 1960 and the Industrial Court by an order dated 23/02/2018 has allowed the application granting an stay in respect of transfer.
10. The order passed by the Industrial Court was subjected to judicial scrutiny before this Court by filing a writ petition and the same was dismissed by an order dated 03/05/2018 passed in Misc. Petition No. 1149/2018. The petitioner Company has finally filed a SLP i.e. SLP No. 13222/2018 and the Hon'ble Supreme Court directed the Labour Court to decide the main case within six months on merits in accordance with law without being influenced by any finding recorded by the Industrial Court or by the High Court. Issues were framed and thereafter, witnesses were examined and the Labour Court finally decided the matter on 03/01/2019 dismissing the application preferred by the workmen against transfer.
11. The workmen - respondents No. 1 to 14 preferred an appeal before the Industrial Court and the same was registered as Civil Appeal No. 1/MPIR/19. The appeal was fixed on 06/02/2019 and the counsel for the petitioner filed his Vakalatnama on 06/02/2019 and requested for grant of time to file reply to the stay application. It has been further stated that the petitioner Company appeared on a Caveat and finally an order was passed on 03/05/2019 allowing the appeal holding that transfer order has been passed on account of victimization and mala fide.
12. Various grounds have been raised by the petitioner and it has been stated that there was no material on record to held that transfer orders are mala fide transfers and in absence of sufficient and proper evidence in support of such finding, the same is bad in law. It has also been argued that Industrial Court has taken a erroneous view that even on apprehension of transfer, application can be preferred before the Labour Court and such a theory is unacceptable.
13. It has also been stated that the Industrial Court committed another blunder by examining the requirement of workmen to the location they have been posted. It has been argued that it is a pure managerial function, which is required to be done by the management and no Court is required and supposed to go into such details to find out whether work is available to a workman at a particular place or not.
14. Learned Senior Counsel for the petitioner has placed reliance upon a judgment delivered in the case of Bharat Kalakendra Vs. R.K. Baveja reported in : ILR 1980 Delhi 1355, wherein the Delhi High Court has held as under:-
"We are of the opinion that the finding of the Labour Court that there was victimisation in the present case is not based on any material. The principles in this regard are well settled. Victimisation is a serious charge by an employee against an employer and must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them.
The onus of establishing a plea of victimisation will be upon the person pleading it. The mere fact that there is an employees' union and that the concerned employee is a member or an active office-bearer is not sufficient to establish a plea of victimisation."
It has been submitted that the objections raised by some workmen against the settlement with recognized Union or to withdraw the character of recognition given to them were of no avail as no action was permissible at the instance of these workmen.
15. Reliance has also been placed upon a judgment delivered by the apex Court in the case of Bharat Iron Works Vs. Baggu Bhai reported in : AIR 1976 SC 98, wherein the apex Court has held that mere allegation, vague suggestion and insinuation are not enough to establish a plea of victimization. Similarly, in the case of Bengal Bhatdee Coal Co. Vs. B.P. Singh reported in 1963 1 LLJ 291, the apex Court has held that the fact that relation between employer and employee are not happy and the workman was an active union member would, by itself, be no evidence to prove victimization.
16. The contention of learned counsel for the petitioner is that it is unfortunate that petitioner has cited judgment delivered in the case of TNEF Vs. K. Ramesh reported in : 1985 I LLJ 164, in which the very question of exigency of transfer was there and the Court has held that Court cannot enter into that question whether there is any exigency or not. Industrial Court has conveniently ignored the point, which was raised by citing this judgment and by relying on paragraph 14 of the same judgment has given findings against petitioner.
17. Learned Senior Counsel has placed reliance upon a judgment delivered by this Court in the case of H&R Johnson Ltd. Vs. Sanjay Belapurkar (Writ Petition No. 830/2004, decided on 25/11/2004), wherein this Court has observed that the relief in the nature of restraining the employer not to practice unfair labour practice against the appellant cannot be a relief. In the aforesaid case, Court has held as under:-
"In my view the main application u/s. 31(3) of MPIR Act, out of which these proceedings arise, is misconceived, untenable and cannot be entertained. The relief for which main application is made and quoted supra cannot be granted by taking recourse to section 31(3). In fact, filing of main application itself was abuse of process and the stay application had to be dismissed as its threshold, rather than at a fag end of so called trial or merit.
Main application made u/s. 31(3) is misconceived. The relief for which the main application is made and quoted cannot be granted by taking the recourse to section 31(3)."
A prayer has been made for quashment of the order passed by the Industrial Court.
18. A reply has been filed by the workmen - respondents No. 1 to 14 in the matter and it has been stated that Industrial Court was justified in setting aside the transfer order. Its a case of victimization of the employees on account of the fact that they were protesting against unfair labour practices and therefore, the question of interference with the order passed by the Industrial Court does not arise.
19. It has been contended that this Court is dealing with a miscellaneous petition preferred under Article 227 of the Constitution of India and the scope of interference in a petition under Article 227 is quite limited. Learned counsel has also argued before this Court that an employee can certainly approach the Labour Court apprehending his transfer and the Labour Court has erroneously dismissed the application preferred by the workmen and as the transfer order was suffering from mala fides, Industrial Court was justified in reversing the order passed by the Labour Court. It has been stated that in case a transfer order is passed on account of extraneous reason, the same can be interfered with and the same has rightly been done by the employer. A prayer has been made for dismissal of the miscellaneous petition.
20. Heard learned counsel for the parties at length and perused the record.
21. Undisputedly, the facts reveal that there are more than 700 employees working with the petitioner Company at Dewas and Madhya Pradesh Industrial Relations Act, 1960 is applicable. Respondents No. 1 to 14 are the employees and respondent No. 15 is a registered Trade Union. It is also an undisputed fact that employees have preferred an application only on probability and apprehension of their transfer and the transfer order is issued in the matter was not the subject matter of challenge. In respect of respondents No. 1, 2, 6 and 14 the employees were transferred to Dadra and Bhatolikalan.
22. Before the Labour Court evidence was recorded and after framing the issues, the matter has been decided. The Labour Court has arrived at a conclusion that the transfer is an incident of service and the employee and has rightly been transferred. The Industrial Court has given a finding that the Labour Court has failed to consider the fact in respect of victimization. The Industrial Court after appreciating the same evidence, which was appreciated by the Labour Court has given a finding that the transfer orders are on account of mala fides involved in the matter and its a case of victimization.
23. The petitioner Company is having 25 Units all over the country and the service conditions do provide for transfer from one Unit to another Unit. The management has produced witnesses namely Rajesh Upadhyay (DW-1) and Harshad A. Patel (DW-2) and they have categorically stated that workers have been transferred keeping in view the administrative exigency on the basis of manpower requisition received from various Units.
24. The Industrial Court has given a very strange finding in paragraph No. 31 by stating that employer has failed to discharge his onus of proof in regard to the fact that authority, who passed the order of transfer has applied its mind to the matter in question and he has made transfer of such employees from one Unit to another.
25. It is for the employee to establish mala fides and the material on record does not establish that transfer order has been passed on account of mala fides. An employee having all India transfer liability can be transferred any time to other Unit keeping in view the service conditions and its not a case of transfer in isolation. The Company in the past also has transferred large number of employees. 50 Managers/Officers and 09 workmen were transferred from Dewas plant to other locations and 14 Managers/Officers
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and 08 workmen were transferred to Dewas from other locations of the country. In such a big organizational setup transfer are bound to happen and the Labour Court was justified in dismissing the application preferred by the workmen. 26. In the considered opinion of this Court, in absence of any cogent material and keeping in view the findings arrived at by the Labour Court, the order passed by the Industrial Court is bad in law. The findings arrived at by the Labour Court can never said to be perverse findings and should have not been interfered with in the manner and method done by the Industrial Court. 27. The net result is the miscellaneous petition stands allowed and the order passed by the Labour Court dated 03/01/2019 is upheld and the order passed by the Industrial Court dated 03/05/2019 is set aside. At this juncture, as the workmen have not carried out transfer order, they are granted 30 days time to carry out transfer order and in case the transfer order is carried out by them, there will be no disciplinary action against them on account of non-compliance of the transfer order passed by the employer. With the aforesaid, petition stands allowed. 28. In other connected matter i.e. Misc. Petition No. 2596/2018, no further orders are required to pass as this Court has set aside the order dated 03/05/2019 passed by the Industrial Court, Indore (M.P.). The same stands disposed of. Certified copy as per rules.