Bombay High Court
Maharashtra Rajya Rashtriya ... vs M/S Exide Industries Ltd on 28 April, 2023
Bench: N. J. Jamadar
2023:BHC-AS:12989
32-WP-13233-22 & WP-13792-22+.DOC
Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13233 OF 2022
1. Maharashtra Rajya Rashtriya
Kamgar Sangh (INTUC),
Rashtriya Mill Majdoor Sangh,
Majdoor Manzil, G.D. Ambedkar Marg,
Parel, Mumbai-12, through its
Organizing Secretary, Ishwar S/o
Sumant Wagh, Age-47 Years,
Occupation- Social Work.
2. Ravindra S/o Machindranath Dode,
Age- 55 Years, Occ. Service,
R/o. Scheme No.11/9/13, Tathastu
Nagar, Nigdi, Pune-411 044.
3. Sanjay S/o Gajanan Kandarkar,
Age- 58 Years, Occ. Service,
R/o-Anjana Niwas, Sandvik Colony,
Bhosari, Pune.
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4. Bhausaheb S/o Narayan Kadam,
Age-54 Years, Occ. Service,
R/o- Hari Om Niwas, S.No.36,
House No.1829, Behind Utkarsh
Classes, Dattawadi, Akurdi,
Pune-411 035.
5. Santosh S/o Pandit Bhosale,
Age- 43 Years, Occ. Service,
R/o- Bhosale Wasti, D.Y. Patil
College Road, Charholi (BK),
Tq. Haveli, Dist. Pune.
6. Shailesh S/o- Khandu Kute,
Age-40 Years, Occ. Service,
R/o- Purvanjay Niwas, Near
Inamdar Chicken Center,
Akurdi, Tq. Haveli, Dist. Pune. .... PETITIONERS
(Org. Complainants)
VERSUS
1. M/s. Exide Industris Ltd.,
Plot No. D-2, M.I.D.C. Industrial
Estate, Chinchwad (E), Pune,
Through its Managing Director. ....RESPONDENT
(Org. Respondent)
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AND
WRIT PETITION NO.13792 OF 2022
1. Maharashtra Rajya Rashtriya
Kamgar Sangh (INTUC),
Rashtriya Mill Majdoor Sangh,
Majdoor Manzil, G.D. Ambedkar Marg,
Parel, Mumbai-12, through its
Organizing Secretary, Ishwar S/o
Sumant Wagh, Age-47 Years,
Occupation- Social Work.
2. Revan S/o- Namdeo Bhakare,
Age- 52 Years, Occ. Service,
R/o. Mauli Housing Society, Vitthalwadi,
Dehugaon, Tq. Haveli, Dist. Pune.
3. Sunil Shyamlal Parse,
Age- 43 Years, Occ. Service,
R/o-S. No. 33, Opp. Rajalaxmi Niwas,
Maharashtra Nagari, Nakhate (Shastri)
Nagar, Rahatani, Pune-411 017
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4. Balasaheb S/o Saudagar Anbhule,
Age-51 Years, Occ. Service,
R/o- Dnyaneshwar Housing Society,
Near Padwal Hospital, More Wasti,
Chikhali, Pune.
5. Subhash Dagadu Gawade,
Age- 49 Years, Occ. Service,
R/o- Flat No. 303, Building B,
Tulsi Ratna, Banker Wasti, Moshi,
Tq. Haveli, Dist. Pune.
6. Atmaram S/o Ananta Dhumal,
Age-47 Years, Occ. Service,
R/o- Shramdeep Niwas, Sr. No. 135,
Near Santoshi Mata Mandir, Mohan
Nagar, Chinchwad, Pune- 411 019 .... PETITIONERS
(Org. Complainants)
VERSUS
1. M/s. Exide Industris Ltd.,
Plot No. D-2, M.I.D.C. Industrial
Estate, Chinchwad (E), Pune,
Through its Managing Director. ....RESPONDENT
(Org. Respondent)
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Mr. Shailendra Kulkarni with Mr. Nitin R. Bhavar Patil, Ms.
Nilima Sarvagod, for Petitioners.
Mr. D. J. Bhanage, for Respondent
CORAM:- N. J. JAMADAR, J.
RESERVED ON:- 21st MARCH, 2023
PRONOUNCED ON:- 28th APRIL, 2023
JUDGMENT:-
1) Rule. Rule made returnable forthwith and with the
consent of the learned Counsel for the parties heard finally.
2) These Petitions take exception to an identical order
passed by the learned Member Industrial Court, Pune on
applications for interim relief under Section 30(2) of the
Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices, Act, 1971 ("the Act, 1971"), whereby the
prayer of the petitioners to stay the transfer orders dated 27 th
June, 2022 and 24th June, 2022 in respect of the petitioner-
complainant Nos. 2 to 6, in the respective Petitions, came to be
rejected.
3) Since the Petitions arise out of an identical factual
backdrop, both the Petitions are decided together. Writ Petition
32-WP-13233-22 & WP-13792-22+.DOC
No.13233 of 2022 is considered as lead Petition and reference
hereinafter is to the facts in the said Petition.
4) Shorn of unnecessary details, the background facts
leading to this Petition can be stated as under:-
(a) The respondent is engaged in manufacturing of Lead Acid
Storage Batteries from its factory situated at D-2, M.I.D.C.
Industrial Estate, Chinchwad (E), Pune. Petitioner Nos. 2 to 6
are the workmen and have been working at the said factory
since more than 20 years. Petitioner No. 1 is a registered Trade
Union. The employees of respondent, including petitioner Nos. 2
to 6, are members of petitioner No. 1.
(b) By order dated 27th June, 2022 petitioner Nos. 2 to 6 have
been transferred to Exide Industries Ltd., Bawal, Rewari,
Haryana. The petitioners filed a complaint alleging unfair labour
practices under Item 3, 5 and 9 of Schedule IV of the Act, 1971.
The petitioners claim that transfer order was mala fide as it was
issued as a counterblast to an order dated 21 st June, 2022,
passed by the Industrial Court at Pune in another complaint
ULP No.50 of 2022, filed by petitioner No.1, whereby respondent
has been restrained from terminating the members of petitioner
No.1- Union without following due process of law. Petitioners
32-WP-13233-22 & WP-13792-22+.DOC
further contended that the factory at Pune was established in
the year 1971, whereas the plant at Bawal, to which the
petitioner Nos. 2 to 6, have been transferred was established in
the year 2005. There was no express term of contract
empowering the respondent to transfer its employees to a newly
established plant. The said transfer order, according to the
petitioners, were in teeth of the provisions contained in Section
9A of the Industrial Disputes Act, 1947 and constituted change
in service condition. Petitioners asserted, the transfer orders
were issued in order to break the Union activities. Even
otherwise, according to the petitioners, there was no exigency
which warranted the transfer of the petitioner Nos. 2 to 6 to
Bawal, a far off place.
5) The petitioners sought interim stay to the transfer order by
filing an application (Exhibit-U2). Respondent resisted the
application by filing its written statement cum reply.
6) Respondent categorically denied that the transfer order
was mala fide. According to the respondent, the respondent had
not been able to provide meaningful work to the workmen
employed in its Motorcycle Battery Division and, thus, the
petitioner Nos. 2 to 6 were transferred to another establishment.
32-WP-13233-22 & WP-13792-22+.DOC
The said transfer is in accordance with the contract of service,
and it did not amount to change in service condition.
7) Controverting the contentions that the transfer order has
been issued to give a counterblast to the interim order passed
by the Industrial Court on 21st June, 2022 in complaint (ULP)
No. 50 of 2022, the respondent contended that a decision to
transfer few employees of the respondent working at its Pune
plant had been taken long back and the said decision was in no
way influenced by the interim order passed by the Court. Thus,
there was no unfair labour practice.
8) The learned Member Industrial Court, after appraisal of
the pleadings and material on record, was persuaded to reject
the application for interim relief opining, inter alia, that the
management has a discretion to arrange its business in a
manner it considers best, the petitioners failed to establish that
the transfer orders were mala fide and transfer amounted to
change in service condition. Thus, in the view of the learned
Member Industrial Court, petitioners failed to make out a strong
prima facie case of unfair labour practice, the balance of
convenience tilted in favour of the respondent and any
32-WP-13233-22 & WP-13792-22+.DOC
interference in the transfer order would cause irreparable loss to
the respondent in arranging its business.
9) Being aggrieved the petitioners have invoked writ
jurisdiction of this Court.
10) I have heard Mr. Shailendra Kulkarni, the learned Counsel
for the petitioners, and Mr. Bhanage, the learned Counsel for
the respondent at some length. With the assistance of the
learned Counsel for the parties, I have perused the material on
record.
11) Mr. Kulkarni, took a slew of exceptions to the impugned
order. Firstly, the learned Member Industrial Court, according to
Mr. Kulkarni, lost sight of the fact that issue of transfer orders
under a few days of the interim order in complaint (ULP) No. 50
of 2022 could not be explained on any other hypothesis than
that of a mala fide exercise of power to break the collective
bargaining power. Second, according to Mr. Kulkarni, the
learned Member Industrial Court misdirected himself in drawing
an inference that the transfer order was in conformity with the
condition of service as when the petitioner Nos. 2 to 6 were
appointed, the Bawal plant was not in existence. In the
circumstances, the Industrial Court committed an error in
32-WP-13233-22 & WP-13792-22+.DOC
drawing an inference that transferability was a condition of
employment. Thirdly, the learned Member proceeded on the
basis of bald pleadings to hold that there was exigency of
situation, which warranted transfer of the petitioner Nos. 2 to 6.
No material was placed in justification of the transfer order.
Fourth, according to Mr. Kulkarni, the learned Member
Industrial Court unjustifiably distinguished an order passed in
Writ Petition No. 11930 of 2017 in the matter of respondent-
company itself, wherein the stay to the transfer of 11 workmen
from respondent's Ahmednagar plant to Bawal was upheld. The
reasons which weighed with this Court in upholding the stay
order, according to Mr. Kulkarni, apply with equal force to the
instant case.
12) Per contra, Mr. Bhanage, the learned Counsel for the
respondent, would urge that none of the grounds sought to be
urged on behalf of the petitioners is worthy of consideration.
Laying emphasis on the appointment order, which contains an
express condition that the services of the employees were liable
to be transferred to any office or establishment of the
respondent or its associate-company, Mr. Bhanage would urge
that the very premise of the complaint of unfair labour practice
is flawed. Where there is an express condition of transferability,
32-WP-13233-22 & WP-13792-22+.DOC
according to Mr. Bhanage, the discretion of the management to
transfer its employee for better organization of business can not
be whittled down.
13) Mr. Bhanage would further urge that the ground of mala
fide is also wholly unsustainable. Taking the Court through the
minutes of the meeting, between the Maharashtra Labour
Union, which represented the employees at the respondent's
factory, and the management, dated 23 rd June, 2021, and the
communication dated 23rd May, 2022, addressed to the General
Secretary of Maharashtra Labour Union, Mr. Bhanage would
urge that employees of the respondent and the Union were
aware of necessity of transfer of employees to make the
manufacturing activity at the respondent's factory viable. Mr.
Bhanage submitted that order in WP No. 11930 of 2017, dated
13th October, 2017, in the matter of transfer of 11 workmen from
Ahmednagar to Bawal was rendered in a completely different
fact situation, where the Court noted that the Bawal factory was
established before the Ahmednagar plant and there had been no
transfer of a single employee from Bawal to Ahmednagar to train
the new workers. The situation at hand is converse, submitted
Mr. Bhanage.
32-WP-13233-22 & WP-13792-22+.DOC
14) Lastly, Mr. Bhanage submitted that neither a case of
change in condition of service nor mala fide in issue of transfer
order has been made out and, thus, learned Member committed
no error in refusing to stay the transfer order.
15) I have given anxious consideration to the rival
submissions. In the wake of the aforesaid submissions, I deem
it in the fitness of things to consider the challenge in two stages.
First, whether transferability is a condition of service. Second,
in the event it is found that the transferability is, prima facie, a
condition of service, then whether the order of transfer is
vulnerable for statutory violation or malafide.
16) It was urged on behalf of the respondent that the
transferability was an express condition of service. Appointment
order dated 1st November, 2003 of petitioner No. 5 was pressed
into service by way of illustration. Clause 7.0 of the terms and
conditions, subject to which the appointment was made, reads
as under:-
"7.0. This appointment is made on the express condition that
your services are liable to be transferred to any office or
establishment of this company or its associated companies"
17) Mr. Kulkarni would urge that the aforesaid condition can
not be construed as an all pervasive condition to include the
32-WP-13233-22 & WP-13792-22+.DOC
establishments which come up after the appointment of the
employee. It must be understood as a contract of transferability
to only those establishments, which were then in existence.
Since Bawal plant was established after the appointment of the
petitioner Nos. 2 to 6, the respondent can not draw mileage from
the aforesaid stipulation, urged Mr. Kulkarni.
18) To lend support to this submission, Mr. Kulkarni placed a
strong reliance on the judgment of the Supreme Court in the
case of M/s. Kundan Sugar Mills Vs. Ziyauddin and Others 1. In
the said case, the partners of the appellant-Mill purchased the
building machinery and other equipment of another sugar mill
and started a new factory at Bulandshahr. Respondent Nos. 1 to
4 therein, who were working at Kundan Sugar Mills at Amroha,
were transferred from Amroha to the new mill at Bulandshahr.
19) In the backdrop of the aforesaid factsituation, the
Supreme Court noted that there was no express term of the
contract of service between the appellant and the respondent
Nos. 1 to 4 that the latter should serve in any future concerns
which the appellant might acquire or start. The two mills were
situated at different places with accounts separately maintained
and governed by different service conditions, though they
1 AIR 1960 SC 650
32-WP-13233-22 & WP-13792-22+.DOC
happened to be under the common management and, therefore,
they were treated as two different entities.
20) The Supreme Court while holding that there was no
condition of service of employment of the concerned workmen
either express or implied that the employer had the right to
transfer them to a new concern started by employer subsequent
to the date of the employment observed, inter alia, as under:-
".....Apart from any statutory provision, the rights of an
employer and an employee are governed by the terms of
contracts between them or by the terms necessarily implied
therefrom. It is conceded that there is no express agreement
between the appellant and the respondents where under the
appellant has the right to transfer the respondents to any of its
concerns in any place and the respondents the duty to join the
concerns to which they may be transferred....."
21) Mr. Bhanage joined issue by canvassing a submission that
pronouncement in the case of M/s. Kundan Sugar Mills (supra)
is required to be appreciated in the light of the peculiar facts of
the said case. The judgment in the case of M/s. Kundan Sugar
Mills (supra) has been explained by this Court in the case of VIP
Industries Limited Vs. Maharashtra Kamgar Karmachari
Sanghatana and Others2.
22) In the case of VIP Industries Limited (supra) the employer
had acquired a plant at Sinnar. Thereupon the employees who
2 2008 III CLR 22
32-WP-13233-22 & WP-13792-22+.DOC
were working at its plat at Satara were transferred to Sinnar. In
the context of the challenge to the said transfer, based on the
enunciation of law in the case of M/s. Kundan Sugar Mills
(supra), this Court explained the import of the decision in the
case of M/s. Kundan Sugar Mills (supra) in the following
words:-
"....8. The judgment of the Supreme Court in Kundan
Sugar Mills would show that this was a case where the
contract of employment had no express condition
empowering the employer to transfer the workman to
any other place. The argument before the Supreme
Court was that the right to transfer was implicit in the
contract of service but that, the Supreme Court held
was not a universally correct preposition. Though the
two factories were owned by the same employer, they
were distinct entities situated at different places and
even the service conditions that were prevailing therein
were different. This distinction on facts in the
Judgment of the Supreme Court in Kundan Sugar
Mills have been adverted to in an unreported judgment
of Hon'ble Mr. Justice S.H. Kapadia (as the learned
Judge then was) dated 21st July 1994 in Associated
Breweries and Distilleries V/s. Shri Purshottam
Govindji Patel (Writ Petition 1570/1994).
9. In the present case, both the establishment at
Sinnar as well as the establishment at Satara belong to
one and the same employer. The service conditions of
the workmen are not to be adversely by the order of
transfer. On the contrary, the Petitioner has agreed to
provide additional payments to the workmen, as
already noted in the earlier part of the judgment. It is
an admitted position that transferability is a condition
of service in the letters of appointment of 55 workmen.
The fact that in the case of some of them, the clause
may be more widely worded would make no difference.
Once transferability is a condition of service, and the
conditions of service are not being adversely affected by
32-WP-13233-22 & WP-13792-22+.DOC
the order of transfer, the action of the employer in
exercising the right to transfer the employee cannot be
faulted except for mala fides or where there is a
statutory violation. In a judgment of a learned Single
Judge of the Delhi High Court (Hon'ble Mr. Justice A.K.
Sikri) in General Marketing and Manufacturing Co.
Ltd. V/s. Presiding Officer (2000 III LLJ 1171), it has
been held as follows: -
According to the aforesaid stipulation in
the appointment letter and conditions of
appointment, it is clear that the services of
the Petitioner workman were liable to be
transferred to anywhere in India or any
department. It is further stipulated in these
conditions that the management is at liberty
to utilize service from time to time in any
department or any section/branch of the
company in India. Once these are the service
conditions, relating to transfer it cannot be
said that workman could not be transferred to
particular branch which was opened after the
appointment of the workman, If the
contention of the workman is accepted it
would mean that workman can be transferred
to any of the branches/departments
anywhere in India which were in existence as
on the date of her appointment only but not
to those branches or departments which were
opened by the management after her
appointment. Such a position cannot be
accepted in law and it would make the very
condition of service regarding transferability
to any department/section/branch anywhere
in India as redundant.
10. I am in respectful agreement with the view
formulated in the judgment. This view is consistent
with the law laid down by the Supreme Court in a line
of authority, and reference may be made to the
judgment in Pearlite Liners Pvt. Ltd. V/s. Manorama
Sirsi 2004 II CLR 965".
(emphasis supplied)
32-WP-13233-22 & WP-13792-22+.DOC
23) Another leaned Single Judge of this Court in the case of
Engineering Workers Association, Thane Vs. Radium Creation
Ltd., Mumbai and Others3 considered the aspect of transfer of
the employees to a unit which was not in existence when the
employees were appointed. Repelling the challenge, the learned
Single Judge, after following the judgment in the case of VIP
Industries Limited (supra), observed as under:-
"....55. This Court in the case of VIP Industries
Limited, Satara (supra), after adverting to the
judgment of the Supreme Court in the case of
M/s.Kundan Sugar Mills (supra), held that in the
case of M/s.Kundan Sugar Mills (supra), the
contract of employment had no express condition
empowering the employer to transfer the workman to
any other place. The employer had urged before the
Supreme Court that the right to transfer was implicit
in the contract of service but the Supreme Court
held that it was not a universally correct proposition.
Supreme Court had considered that though two
factories were owned by the same employer, they
were distinct entities situated at different places and
even the service conditions that were prevailing
therein were different. This Court distinguished the
said judgment of the Supreme Court and held that
in the case before this Court in the case of VIP
Industries Limited, Satara (supra), both the
establishments i.e. establishment at Sinnar as well
as the establishment at Satara belong to one and the
same employer and the service conditions of the
workmen were not to be adversely affected by ppn 27
wp-2941.16 (j).doc the order of transfer. It was also
an admitted position that transferability was a
condition of service in the letters of appointment.
..............
3 2016 (3) Mh.L.J. 547
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57. This Court also adverted to the judgment of the
Delhi High Court in the case of General Marketing
and Manufacturing Co. Ltd. Vs. Presiding Officer,
reported in 2000 (III) L.L.J. 1171(Del.) in which it was
held that if the service condition provides that
workman were liable to be transferred to anywhere in
India or any department and the management was at
liberty to utilize services from time to time in any
department or any section/branch of the company in
India, it could not be said that the workman could
not be transferred to a particular branch which was
opened after the appointment of the workman. This
Court agreed with the views formulated by the Delhi
High Court in the said ppn 28 wp-2941.16 (j).doc
judgment and has accepted the arguments of the
employer that transfer of the workmen from the plant
at Satara to the plant at Sinnar which came to be
vested in the petitioner as a consequence of a
scheme of amalgamation subsequently was within
the rights of the employer under the terms and
conditions of the contract agreed between the parties
and could not be considered as mala fide.
.........
59. In my view, since there is no term to the contrary
in the contract of service and in view of specific
provision in the contract providing for transferability
of the services of these workmen as recorded in the
letter of appointment and in the Memorandum of
Settlement, a transfer order issued by the
respondents was a normal incidence of service
unless the workmen would prove mala fides on the
part of the employer. The allegation of mala fides
cannot be vague and without particulars and have to
be specifically pleaded and proved with clear and
cogent material.......... "
(emphasis supplied)
24) The position in law which thus emerges is that in the
absence of the term to the contrary in the contract of service, a
transfer order is a normal incidence of service. In the absence of
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a term prohibiting the transfer of an employee, ordinarily the
transfer orders can not be called in question. Where
transferability is a condition of service, it would be
impermissible for a Court or Tribunal to interdict an order of
transfer which flows from the express term of the contract. Even
in the absence of an express term of contract, the Court may
embark upon an inquiry as to whether the transferability is an
implied term of employment. In the face of an express condition
of transferability, the broad proposition that the employee can
only be transferred to a unit or branch which was in existence
on the date of appointment, can not be countenanced, unless
there is a clear stipulation against transfer to new
establishment. Such an interpretation would amount to taking a
very constricted view of the business dynamics. It has the
propensity to render the condition of transferability to any unit,
branch or even associated company, as in the case at hand,
redundant.
25) Reliance placed by Mr. Kulkarni on the judgment of this
Court in the case of Crest Communication Ltd., Vs. Sheetal
Shenoy4 does not seem to advance the cause of the petitioners.
The facts in the case of Crest Communication Ltd., (supra) were
4 2001 (4) Mh.L.J. 919
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quite distinct. The respondent therein was appointed without
any written appointment order. Subsequently, the petitioner
therein framed rules and regulations to govern the terms,
conditions and privileges of employment of its employees. It is in
that context, this Court observed that the right of employer to
frame rules can not be doubted but if the rules are framed
posterior to the date of joining of service by the employee, then
it was mandatory to obtain express consent of the employee
concerned or the consent of the workers union. Evidently, the
aforesaid enunciation does not govern the facts of the case at
hand.
26) The judgment of this Court in the case of Group
Pharmaceuticals Ltd., Vs Blossom Godinho And Another5 also
proceeds on a similar line. In that case also, when the employee
joined the service there was no stipulation in the contract that
she was not liable to transferred from one place to another in
the employer company. The Court, in the facts of the said case,
observed that the decision of the employer to shift the marketing
division from Mumbai to Bangalore was bonafide but by such
decision of shifting the marketing division from Mumbai to
Bangalore employee could not have compelled to join the duties
5 (1998) I LLJ 1182
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outside Mumbai, which was not contemplated under her
contract of service.
27) Both these pronouncements, relied upon by Mr. Kulkarni,
turn on the pivotal aspect of absence of term of transferability in
the contract of employment, which is not the case at hand.
28) I am, therefore, not persuaded to accede to the submission
of Mr. Kulkarni that since Bawal plant was established after the
appointment of the petitioner Nos. 2 to 6, they could not have
been transferred to the said plant by invoking the transferability
clause in the appointment order. This propels me to challenge to
the transfer order on the ground of mala fide.
29) Under Item 3 of Schedule-IV of the Act, 1971, the act of
transfer of an employee would amount to an unfair labour
practice if the transfer is actuated by mala fide. The concept of
Mala fide has two facets; one, malice in law and the other,
malice in fact. The term mala fide has a definite juridical
connotation. It envisages want of good faith, personal bias,
grudge, oblique or improper motive or ulterior purpose.
30) In the case of State of Bihar and Another Vs. P.P. Sharma,
IAS and Another6, the Supreme Court, observed that the
determination of a plea of mala fide involves two questions,
6 1992 Supp (1) SCC 222
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namely (i) whether there is a personal bias or an oblique motive;
and (ii) whether the administrative action is contrary to the
objects, requirements and conditions of a valid exercise of
administrative power.
31) Following the aforesaid Judgment in the case of State of
Bihar (Supra), the Supreme Court in a recent pronouncement in
the case of Rajneesh Khajuria Vs. Wockhardt Ltd and Others7
observed that in terms of the provisions of the Act, 1971, the
transfer by itself can not be said to be an act of unfair labour
practice unless it is actuated by mala fide. Therefore, to sustain
a plea of mala fide, there has to be an element of personal bias
or an oblique motive.
32) It is also well recognized that the allegations of mala fide
are easy to make than prove. In the case of Union Of India and
Others Vs. Ashok Kumar and Others 8, the Supreme Court
enunciated in clear terms that it cannot be overlooked that
burden of establishing mala fide is very heavy on the person
who alleges it. The allegations of mala fides are often more easily
made than proved, and the very seriousness of such allegations
demands proof of a high order of credibility.
7 (2020) 3 SCC 86
8 (2005) 8 SCC 760
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33) The challenge to the transfer order on the ground of mala
fide is required to be appreciated on the aforesaid touchstone.
Mr. Kulkarni would urge that action of transfer in the instant
case is clearly actuated by malice as it was made to achieve an
ulterior purpose of breaking the Union activity. Two,
circumstances were pressed into service. One, the petitioner No.
1- Union was formed in the month of May, 2022 and majority of
employees of the company became the members of the petitioner
No. 1 - Union to the consternation of respondent. Two, in
complaint (ULP) No. 50 of 2022, on 21 st June, 2022, the
respondent was restrained from terminating the members of the
petitioner No. 1- Union without following due process of law.
34) Mr. Kulkarni would urge that the fact that respondent was
bent upon breaking the Union activity becomes evident from the
documents sought to be relied upon by the respondent itself,
especially, the letter dated 23rd May, 2022. In the said letter
dated 23rd May, 2022, addressed to General Secretary of
Maharashtra Labour Union, the respondent adverted to the fact
that recently there had been some movement regarding change
of Union, raising new demands, possibility of industrial unrest
and law and order situation at Chindchwad location. This,
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according to Mr. Kulkarni, betrays a clear intent to break the
collective bargaining power by transferring petitioner Nos. 2 to 6.
35) Mr. Bhanage would submit the aforesaid contents of the
letter can not be read in isolation. The said letter adverts to
many of factors of which the management was then concerned.
36) It is trite a document has to be read as whole and a
sentence or two thereof, can not be read torn out of context. The
letter dated 23rd May, 2022, addressed to the General Secretary
of Maharashtra Labour Union, in a sense, contains a litany of
grievances as regards the alleged failure on the part of the
Union to achieve the productivity target, how the business
activity was becoming increasingly unviable and the possible
scenarios which may emerge. In the said letter, indeed there is a
reference to movement regarding change of Union. However, if
read in totality, the said letter does not justify an inference that
being alarmed by the possible change of Union, the respondent
resorted to the device of transfer of petitioner Nos. 2 to 6, to
break the Union activity.
37) The learned Member Industrial Court was justified in
taking note of the Minutes of Meeting dated 23rd June, 2021
between the management and the representatives of the Union.
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One of the decisions taken therein was the possible transfer of
120 MC workers from Chinchwad plant to Ahmednagar and
Bawal as MC section at Chinchwad would get closed. This
circumstance is of material significance. It prima facie runs
counter to the contention that the transfer was a retaliatory
measure. Said minutes of meeting lend, prima facie, credence to
contention on behalf of the respondent that matter of transfer
was under contemplation since the month of June, 2021.
38) Mr. Kulkarni submitted that punitive nature of the
transfer becomes evident from the fact that Ten employees have
been transferred to Bawal and none to Ahmednagar. I am afraid
this circumstance can be arrayed against the respondent. This
brings in the element of exigency of the business and the right
of the management to organize its affairs. Transfer of petitioner
Nos. 2 to 6 can not be termed mala fide for the reason that no
employee has been transferred to the Ahmednagar plant, which
is relatively near.
39) The next submission on behalf of the petitioners that the
contention of the respondent that there was exigency of the
situation to warrant transfer of the employees to Bawal has not
been supported by any credible material and the learned
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Member Industrial Court decided the issue on the basis of bald
pleadings, does not merit acceptance. At the interim stage, the
Industrial Court was required to take a prima facie view of the
matter. The learned Member after appraising the pleadings of
the parties and the documents adverted to above, arrived at a
prima facie finding. Such a finding is not susceptible to
challenge on the ground that the respondent did not place on
record material to establish its case to the hilt.
40) At the first blush, the transfer of petitioner Nos. 2 to 6
under a few days of the interim order passed in complaint (ULP)
No. 50 of 2022, may render the allegation of mala fide on the
said count attractive. However, the said contention,if evaluated
in the light of entire setting of the matter does not pass judicial
scrutiny. If viewed through the prism of the circumstances
which have been brought on record on behalf of the respondent,
touching upon the challenges faced at the Chinchwad plant,
since at least a year prior to the transfer orders, and the
necessity of transfer of the employees to other plants as a
measure of organization of business, the short interval between
the order in complaint (ULP) No. 50 of 2022 and the impugned
transfer order can not be the sole barometer to test the mala
fide.
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41) The learned Member Industrial Court was prima facie
satisfied that respondent could demonstrate that most of the
customers of the company had started their manufacturing
activity in North India and, therefore, in order to supply the
material in time and thereby arrest the delay and the
consequent losses the respondent had decided to increase
production at Bawal plant and that necessitated the transfer of
some of its employees to the said plant. In my view, in exercise
of writ jurisdiction, this Court would not be justified in delving
into the correctness of factual finding and that too at an
interlocutory stage.
42) The submission on behalf of the petitioners that the
transfer order constitutes a change in the conditions of service
does not seem to be prima facie borne out by the record. The
transfer order dated 27th June, 2022, explicitly records that the
employee is transferred without prejudice to the existing
emoluments and job responsibility, and the other terms and
conditions of employment shall remain the same. It would be
contextually relevant to note that the transfer order also makes
reference to the facilities extended to the employee, post
transfer, albiet for a limited period.
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43) For the foregoing reasons, I am not persuaded to accede to
the submission on behalf of the petitioners that the transfer
orders were actuated by mala fide.
44) Reliance on the decision of this Court in Writ Petition No.
11930 of 2017, dated 13th October, 2017, wherein the transfer of
11 employees from Ahmednagar to Bawal was interdicted by this
Court, in my view, does not advance the cause of the
submissions on behalf of the petitioners. I find substance in the
submission of Mr. Bhanage that the fact situation in the said
case was quite distinct. The stated reason that experienced
employees were required to be posted at the Bawal was found to
be factually incorrect as Bawal plant was established at a much
earlier point of time and, in the past, none of the employees had
been transferred from Bawal to Ahemadnagar. In any event, the
question as to whether a transfer suffers from the vice of malice
is essentially rooted in the facts of a given case. Such decision
on facts in one case may not be applied and imported to the
facts of another case, unreservedly.
45) The upshot of aforesaid consideration that the Petitions
deserve to be dismissed.
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Hence, the following order.
-:ORDER:-
(i) The Petitions stand dismissed.
(ii) Rule stands discharged.
(iii) All the Interim Applications also stand disposed.
(iv) There shall be no order as to costs.
[N. J. JAMADAR, J.]
At this stage, Ms. Nilima Sarvagod, the learned counsel for
the petitioners seeks continuation of interim protection granted
by this Court by an order dated 15th November, 2022.
Mr. Vishal Muglikar, the learned advocate holding for Mr.
Bhange, learned counsel for respondent opposes the prayer for
continuation of the protection. By the said order this Court had
restrained the respondent from taking coercive steps against the
employees only on the ground that they have not reported to
work at the transferred place of posting.
The said protection shall continue to operate for a period
of four weeks from today.
[N. J. JAMADAR, J.]
