Bombay High Court

Rajashtan Patrika Pvt Ltd vs Ajay Kumar Bihari & Anr on 16 December, 2009

Bench: Dr. D.Y. Chandrachud

                                             1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                      
                        WRIT PETITION  NO. 2507 OF 2009




                                                              
Rajashtan Patrika Pvt Ltd.                                             ..Petitioners




                                                             
       Vs. 

Ajay Kumar Bihari & Anr.                                               ..Respondents




                                                 
                                 
Mrs. N. R. Patankar with Mr. Vishwajit P. Sawant for the Petitioner

Mr. R. D. Bhat for Respondents 
                                
                                       CORAM: DR. D.Y. CHANDRACHUD, J.

DATE: 16th December , 2009

ORAL JUDGMENT :

1. Rule.

2. With the Consent of the Counsel, the Petition is taken up for final

hearing. Learned Counsel for the Respondents waives service.

3. The First Respondent moved a complaint of Unfair Labour Practices

under items 3, 9 and 10 of Schedule (IV) to the MRTU and PULP Act,

1971. The challenge in the complaint is to an order that was passed

by the Petitioner, by which the service of the First Respondent was

transferred from Mumbai to Barmer in Rajasthan.

4. The Petitioner publishes a Hindi news paper and has establishments in

Jaipur, Rajasthan, Gujarat, Karnataka, Tamil Nadu, West Bengal and

Madhya Pradesh. The Petitioner is stated to employ about 1858

employees all over India. Amongst, them are 600 reporters who are

working journalists.

5. The First Respondent was initially employed as a reporter at Surat, on

or about 15th October 2003. According to the First Respondent, he was

assured that he would be placed at Mumbai after a period of three or

four months, since an editorial office was to be set up at Mumbai. No

letter of appointment has been issued to the First Respondent.

According to the management the First Respondent had by his letter

dated 11th December 2006, responded to the request of the

management to submit his degree certificate. The First Respondent

stated that he had completed his B.Sc from the University of Bihar at

Muzaffarpur and that he was in the process of obtaining a duplicate of

his degree certificate. It is an admitted position that, the First

Respondent was transferred from Surat to Mumbai and he continued

to work in Mumbai, until he was informed on 19 th August 2009, that

he was being transferred to the Barmer establishment of the

Petitioner. The Respondent moved a complaint for Unfair Labour

Practices interalia complaining that he had not been furnished with a

letter of appointment and there was no rule in the service conditions,

providing for transfer of his service from Mumbai to other place. On

this basis, it was urged that, there is a breach of item 9 of Schedule IV.

As already noted earlier, the complaint is also founded on an alleged

breach of item 3 of Schedule IV, in which the Unfair Labour Practice

consists of a transfer of an employee malafide from one place to

another under the guise of following management policy.

6. The Industrial Court noted that no letter of appointment had been

issued to the First Respondent and that the First Respondent had

declined to accept a contractual appointment which was sought to be

effected under a letter dated 1st June 2009. The Industrial Court was

of the view that there was no material on the record showing who was

working earlier at the place where the First Respondent has been

transferred or who has been transferred in place of the First

Respondent. The Industrial Court noted that it was not the case of the

management that, the work has ceased at the place from where the

First Respondent was being transferred. On this basis, the Industrial

Court recorded the finding that, the complainant workman was being

transferred with an ulterior motive without showing any exigency of

work.

7. Counsel appearing on behalf of the Petitioner submitted that, in the

present case the Certified Standing Orders provide for transferability

from one place to another. The First Respondent was initially at Surat

and was admittedly transferred to Mumbai in the past. Moreover, in

the month of July 2009 about 41 transfers had been effected, to which

a reference was made in the reply before the Industrial Court. The

circumstances in which the transfer was effected, were referred to in

the reply. In these circumstances, no case for staying the order of

transfer was made out.

8. On the other hand, it has been urged on behalf of the First

Respondent, that the reasons which were indicated in the reply filed

by the management, would show that there were no plausible reason

for the transfer and no exigency of work was shown. Counsel

submitted that there was sufficient material before the Tribunal to

support the finding, that the transfer was with an ulterior motive. The

Tribunal having arrived at prima facie findings, it was submitted that

the interference of this Court was not warranted in the exercise of the

writ jurisdiction.

9. The order of the Industrial Court refers to the submission of the

management that, under the Certified Standing Orders applicable to

the establishment, the management did have the power to transfer the

service of the First Respondent and, as a matter of fact, about 41

employees had been transferred. The Industrial Court, however, has

not dealt with the question as to whether the management has the

authority to effect a transfer under the Certified Standing Orders. This

exercise was necessary since the Court was dealing with an

application for restraining the management from giving effect to an

order of transfer, particularly at the interlocutory stage. A copy of the

Certified Standing Orders is annexed to these proceedings. The

definition of establishment under Certified Standing Order 2(5)

includes all the establishments of the management situated in

different parts of the country. A clause for transfer is specifically

incorporated in Certified Standing Order 30. Therefore, prima facie,

the order of the management transferring the service of the First

Respondent from the office at Mumbai to Barmer, was within the

purview of the Certified Standing Orders. The management in its

Affidavit in reply filed before the Industrial Court, stated that since

July 2009, 41 transfers of employees attached to the editorial

department had been effected. The management also sought to

support the order of transfer by furnishing certain reasons as to why

the presence of the First Respondent was required at Barmer. At the

interlocutory stage, once a power to transfer a workman is shown to

exist in the management, the Industrial Court should have been

circumspect while issuing an interlocutory injunction. The only reason

which seems to have weighed by the Industrial Court is that, there is

no material on record showing who was working earlier at the place

where the First Respondent was transferred and who was being

transferred to the place from where the First Respondent is relieved at

Mumbai. These reasons are wholly extraneous to the jurisdiction of

the reviewing Court in a matter of transfer. The fact that the work at

Mumbai had not ceased, is again not a relevant circumstance. The

transfer was not on the ground that the work at Mumbai had ceased

to exist, but on the ground that the exigencies of work required that a

transfer should be effected. Such exigency of work is a matter for the

management to decide. Undoubtedly, the Industrial Court does have

the power to intervene where a prima facie case of unfair labour

practices is made out, even at the interlocutory stage,(Brihan

Mumbai Union of Journalists & Ors. Vs. Nav Bharat Press Ltd. &

Anr.1). However, merely observing that an order of transfer has been

passed with an ulterior motive or under the guise of the management

policy, does not establish a case of malafides. Malafides have to be

shown and demonstrated to exist and there must be a cogent line of

reasoning in the order of the Industrial Court, before it can come to

the conclusion that the transfer is malafide. Nothing of that kind is to

be found in the impugned order of the Industrial Court.