Brihanmumbai Union Of ... vs Indian Express Newspapers ...
2003 Latest Caselaw 646 Bom

ORDER

R.M.S. Khandeparkar, J.

1. Heard learned advocates for the parties.

The petitioner challenges the Judgment and Order dated March 31, 2003 passed by the Industrial Court, Mumbai. By the impugned order the Industrial Court has dismissed the complaint filed by the petitioner making grievance about the transfer of the employees of the respondent from Mumbai to Delhi and Calcutta being mala fide and therefore, in violation of item Nos. 3 & 9 of Schedule-IV of MRTU & PULP Act. The Industrial Court has held that the complainant has not established the allegation of mala fide in the matter of transfer of the employees and has further held that the transfer has been on the ground of managerial need of running of business and due to the business exigencies and the same is in consonance with the terms of the employment. While challenging the impugned Judgment and order it was sought to be argued on behalf of the petitioner that the issue of mala fide has not been considered in proper perspective in as much as that the contention that the transfers have been effected to compel the employees to accept V.R. Scheme has not been considered even though the same has been clearly established from the fact that the operation of the industry has been suspended for more than three years. Besides the fact that establishment at Delhi itself has surplus employees and even therein V.R. Scheme has been floated to enable the employees to submit their resignations. It is the contention of the petitioner that the Industrial Court has not addressed itself to the issue of mala fide in the manner it was required to be addressed to and has not considered the aspect of continuous suspension of operation of industry for more than 3 years which is only to avoid the right of the employees to claim necessary benefits which they would be otherwise entitled to in case of closure of the industry. The transfers therefore apparently disclose mala fide on the part of the management. While considering that the right of the employer to transfer the employees cannot be disputed, it was necessary for the Industrial Court to analyze the materials on record in proper perspective to find out whether the action of transfer is mala fide or not and having failed to do so, the impugned order needs to be set aside and therefore, calls for interference. The learned advocate for the petitioner has also drawn attention to the decision of the learned single Judge of this Court in the matter of Standard Chartered Bank Ltd. v. Grindlays Bank Employees Union & Anr. in Writ Petition No. 398 of 2003 2003-II-LLJ-512 delivered on February 11, 2003.

2. On the other hand, the learned advocate for the respondents submitted that Industrial Court after analysing the entire materials on record has arrived at finding about the failure of the complainant to establish mala fide and further that the employer having established that the transfer on the ground of managerial need of running the business and as a part of business exigencies, there is no case for interference in the writ jurisdiction in the impugned order. He has further submitted that the transfer orders are issued immediately after the suspension of the publication of Jansatta and therefore, merely because suspension of publication has continued thereafter for number of years that would not enure to the benefit of (sic) the petitioner to contend that the same discloses mala fide on the part of the employer in the matter of transfer. The issue of transfer is to be considered on the basis of the factual position as on the date of the order of transfer and not by considering the subsequent events.

3. Perusal of the impugned Judgment and order discloses that the Industrial Court after analysing the entire evidence on record has arrived at a finding that the transfers of the employees of the respondent have been effected on the ground of managerial need of running the business. Further it has been held that the corresponding loss incurred and decline in circulation of the paper publication having been considered, it was revealed that the suspension of publication of the papers was not for any victimisation of the workmen as was sought to be contended. Besides, the terms of employment clearly entitled the employer to transfer the employees from one place to another. The Industrial Court has also held that the alleged mala fide in transfer of the employees has not been proved and materials on record do not disclose the company having been indulged in any act of lay-off or lock-out or breach of Standing Orders or closure without due process of law and further that there is no relinquishment of business but mere suspension of publication. It has also been held by the Industrial Court that the reasons given for the transfer of the employees are not unreasonable nor the same disclose mala fide on the part of the employer. It has also been held that the petitioners were not able to establish that the employees who had accepted V.R.S. had ever complained of any force or pressure tactics been utilised for acceptance of the V.R.S. and no evidence in that regard was produced by the petitioner. The transfer is an incidence of service and not a condition of service. Considering the facts and circumstances of the case, the Industrial Court has dismissed the grievance of the petitioner in relation to the allegation of mala fide.

4. Apart from the fact that transfer is an incidence of service and not a condition of service, there is a clear provision in the terms of the appointment of the employees empowering the management to transfer the employees from one office to another. The petitioners have not been able to point out nor in fact has contended that the findings arrived at by the Industrial Court are not borne out from record or that they are perverse in any manner. Once it is not the case of the petitioner that the findings which disclose absence of any mala fide on the part of the employer in the action of transfer of the employees are neither being perverse nor are contrary to the materials on record, as rightly submitted by the learned advocate for the respondents there can be hardly any scope for interference by this Court in its writ jurisdiction. In the matter in hand the whole or sole grievance of the petitioner is in relation to the action of transfer being mala fide on the part of management and the same is on the basis of V.R. Scheme floated by the management and for three years suspension of the publication of the paper. There is nothing on record to show that any of the employees was ever compelled to accept benefit under V.R.S. The suspension of publication of paper has continued for 3 years subsequent to order of transfer. Being so one fails to understand how the event which has occurred subsequent to the action of transfer can be of any help to contend that the past action was mala fide.

5. The decision in Standard Chartered Bank Ltd. (supra), is of no help to the petitioner in as much as that in the said case undisputedly, some of the employees were sought to be transferred to RMC section inspite of the fact that the work was available and the said available work was sought to be given on contract basis by engaging services of contract Labour and considering the same, the transfer of the employees to RMC section was not approved by the Court and was held to be not justifiable. That is not the case in hand. On the contrary, the fact that the publication of paper for which the said employees in question were employed has been suspended and immediately thereafter the employees were transferred to Delhi and Kolkata in accordance with the terms of the employment and without causing any change in the service conditions of the employees. Being so, the decision in Standard Chartered Bank Ltd., is clearly distinguishable and can be of no help to the petitioner.

6. As regards the contention of the learned advocate for the petitioner that the suspension cannot continue for 3 years, the same is not warranted to be considered in the case in hand as it has no relevancy whatsoever to the matter in issue. It is not the case of the petitioner that the transfer was effected after the expiry of the period of 3 years or more of suspension of the publication of the paper. On the contrary, admittedly the transfer was effected soon after the suspension of publication of paper.

7. The Industrial Court having analysed all the materials in proper perspective and having arrived at correct findings which are not perverse in any manner, there is absolutely no justification for interference in the impugned Judgment and Order and therefore, no case is made out for entertaining the writ petition. Hence, the petition fails and is rejected.

8. At this stage, the learned advocate for the petitioner prays for continuation of status-quo as on today for a period of 4 weeks. The same is objected to by the learned advocate for the respondents. However, I am inclined to grant continuation of status-quo for a period of 4 weeks. Accordingly, parties to maintain status-quo for a period of 4 weeks from today.

9. Parties to act on ordinary copy of this order duly authenticated by the Associate/P. S. of this Court as true copy.