Sulzer Pumps India Private ... vs Jayendra Arun Jog
2023 Latest Caselaw 10155 Bom

2023:BHC-AS:28949
                                                                       WP5613-2023.DOC

                                                                                      Santosh
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION


                                    WRIT PETITION NO. 5613 OF 2023

               Sulzer Pumps India Private Limited, a
               Company incorporated under the
               Companies Act, 1956 having its registered
               office at 9, MIDC, Thane-Belapuar Road,
               Digha, Navi Mumbai 400 708                                   ...Petitioner
                                     Versus
               1. Jayendra Arun Jog, adult, Indian
               Inhabitant residing at H-15/38, Godrej Hill
               Side Colony, L.B.S. Marg, Vikhroli (West),
               Mumbai - 400 079
               2. Amit Kumar Sirohi, AGM-HR IR, Sulzer
               Pumps India Pvt. Ltd., having office at 9,
               MIDC, Thane-Belapuar Road, Digha, Navi
               Mumbai 400 708
               3. Unnadha Raja, adult, Head-RES & SP
               India, Sulzer Pumps India Pvt. Ltd., having
               office at 9, MIDC, Thane-Belapuar Road,
               Digha, Navi Mumbai 400 708                              ...Respondents


               Mr. J. P. Cama, Senior Counsel, a/w Shweta Rathod, i/b
                     Elixir Legal Services, for the Petitioner.
               Ms. Jane Cox, i/b Ghanashyam Thombare, for Respondent
                     No.1/Workman.

                                                       CORAM: N. J. JAMADAR, J.

RESERVED ON: 27th JUNE, 2023 PRONOUNCED ON: 3rd OCTOBER, 2023 JUDGMENT:-

1. Rule. Rule made returnable forthwith and with the

consent of the learned Counsel for the parties heard finally.

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2. This petition under Article 227 of the Constitution of India

assails the legality, propriety and correctness of the judgment

and order dated 7th December, 2022 passed by the learned

Member, Industrial Court, Thane, in Complaint (ULP) No.138 of

2020 declaring that the petitioner - employer had engaged in

unfair labour practices under Items 3 and 9 of Schedule IV of

the Maharashtra Recognition of Trade Union and Prevention of

Unfair Labour Practices Act,1971 ("the Act, 1971") in issuing the

order dated 30th October, 2020, thereby transferring respondent

No.1 - the complainant - employee to Chennai, and setting aside

the said transfer order.

3. Shorn of unnecessary details, the background facts can be

stated as under:

(a) The petitioner is a company incorporated under the

Companies Act, 1958 and is a part of renowned Sulzer Group.

The petitioner is engaged in manufacturing and selling of the

specialized pumps, spare parts and after sales services. It has a

plant in MIDC, Digha. Respondent No.1 - the complainant was

appointed as a trainee with the petitioner - employer on 25 th

May, 1992. One of the terms of employment, specifically

mentioned in the letter of appointment, was that the services of

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the complainant were transferable to any of the department or

sister concerns of the employer.

(b) In the year, 2011 the complainant was promoted as

Supervisor - CSS-SAP Data Management, in the Rotating

Equipment Services (RES Department). The complainant was

responsible for creating, modifying and maintaining Bill of

Material (BOM), equipment masters and material masters to

support the Parts, Retrofit and Nuclear (PRN) Organization.

(c) Asserting that the work performed by the

complainant at the Digha establishment became redundant and

the employer had a Supervisor requirement at its Regional

Office at Chennai and found the complainant suitable for the

said position, the employer issued a transfer order on 30 th

October, 2020 thereby transferring the complainant to Chennai

to discharge the duties relating to RES and also be responsible

for cash collections in the Regional Office, assuming the role of

Credit Controller/Cash Controller. The complainant was

directed to report to his transferred place of posting by 4 th

November, 2020.

(d) The complainant filed a complaint of unfair labour

practice under Item 4(a) Schedule II and Item 3 and 9 of

Schedule IV of the Act, 1971, alleging the transfer as mala fide

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and an act of victimization. The complainant alleged he was a

workman. A dressed up designation of Supervisor CSS-SAP was

given to him. He did not discharge any managerial or

supervisory duties. Since the complainant was involved in

Union activities and had initiated proceedings against the

employer and management, he was subjected to transfer mala

fide with a view to break the collective bargaining power and it

was a clear act of victimization. The complainant alleged, inter

alia, that the additional responsibility to act as Credit

Controller/Cash Collector amounted to change in conditions of

service and, on that count as well, the transfer order was bad

and invalid.

(e) The employer resisted the complaint. It was

contended that the complainant was transferred in conformity

with the terms and conditions of employment. Transfer was

necessitated on account of the business exigency. The

complainant was not a workman. He was discharging

supervisory functions. Thus, a complaint of unfair labour

practice was not tenable. It was categorically denied that the

complainant was transferred on account of the alleged Union

activities to break the collective bargaining power.

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(f) Initially by an order dated 3rd November, 2020, the

Member, Industrial Court, directed the employer not to give

effect to the transfer order till 23 rd September, 2020. By an

order dated 24th September, 2021, on an interim application

(Exhibit-U2), the Industrial Court granted interim relief while

directing that the issue of tenability of the complaint on account

of the complainant not being a workman be decided as a

preliminary issue.

(g) The employer carried the matter to this Court in Writ

Petition No.8491 of 2022. By an order dated 3 rd February, 2022

this Court set aside the aforesaid order dated 24th September,

2021 with a direction to the Industrial Court to frame an issue

as to whether the complainant proves that he was a workman

under Section 2(s) of the Industrial Disputes Act, 1947 ("ID Act,

1947"), decide the same and, depending upon the decision on

the said issue, decide the entitlement to interim relief. As the

complainant agreed to forgo the wages till the decision by the

Industrial Court, it was directed that the complainant need not

report at his place of work at Thane.

(h) The learned Member, Industrial Court, after

appraisal of the pleadings and evidence adduced by the parties,

by the impugned judgment and order, was persuaded to return

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a finding that the complainant proved that he was a workman

and the employer committed unfair labour practice under Items

3 and 9 of Schedule IV of the Act, 1971 and thus quashed and

set aside the transfer order.

(i) Being further aggrieved the employer has invoked the

writ jurisdiction.

4. I have heard Mr. J. P. Cama, the learned Senior Advocate

for the petitioner - employer and Ms. Jane Cox, the learned

Counsel for respondent No.1 - complainant. With the assistance

of the learned Counsel for the parties, I have perused the

pleadings, evidence and material on record. The learned

Counsel have also tendered written submissions in elaboration

of the submissions canvassed across the bar.

5. Mr. Cama raised a slew of exceptions to the impugned

order. Firstly, Mr. Cama would urge, the learned Member,

Industrial Court, committed a manifest error in returning a

finding that the complainant was a workman without adverting

to the clear evidence to the contrary. The learned Member

proceeded to decide the issue on the basis of the contention in

the affidavit-in-reply without considering the evidence adduced

by two witnesses of the employer. Such non-consideration of

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crucial evidence, which had a significant bearing on the issue,

vitiated the finding.

6. Second, the learned Member, Industrial Court, committed

an error in holding that the complainant was a workman since

he had no power to sanction leave or initiate disciplinary

proceedings. Absence of these powers is not a safe test to

determine the question as to whether a person is a workman.

To bolster up this submission Mr. Cama placed a strong reliance

on the judgment of this Court in the case of Standard

Chartered Bank vs. Vandana Joshi and another1

7. Third, the Industrial Court was clearly in error in holding

that the transfer order was mala fide and an act of victimization.

In that process, the Industrial Court lost sight of the fact that

there was an express term of transferability in the appointment

order. It is well recognized that transfer is an incidence of

service and ought not be interfered with except on the ground of

proved mala fide. Adverting to the decision of the Supreme

Court in the cases of Pearlite Liners (P) Ltd. Vs. Manorama Sirsi2

and State of U.P. and ors. vs. Gobardhan Lal3, Mr. Cama would

urge that the learned Member, Industrial Court, committed an

12010 I CLR 163.

2(2004) 3 SCC 172.

32004 III CLR 78.

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error in interfering with the transfer order on wholly

unsustainable grounds.

8. Mr. Cama would urge that act of victimization attributed to

an employer is a serious charge. It has to be established with

cogent evidence. Such allegations are easy to make than prove.

Mere fact that the complainant was an office bearer of the Union

per se does not make transfer of the complainant mala fide. To

this end, Mr. Cama banked upon the decision of the Supreme

Court in the case of Bharat Iron Works vs. Bhagubhai Balubhai

Patel and ors.4

9. Fourth, the finding that the entrusting of the

responsibility of Credit Controller/Cash Collector amounted to

change in conditions of service, is equally vulnerable as it is

against the weight of the evidence on record, urged Mr. Cama.

10. Mr. Cama would further urge that the fact that the

complainant was not transferred for 30 years, or for that matter

no employee was ever transferred from Mumbai to Chennai,

could not have been arrayed against the employer. That does

not necessarily imply that the employer was denuded of the

power to transfer an employe on account of business exigency.

It is for the employer to decide how best to utilize human

4 AIR 1976 SC 98.

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resources. If the impugned order is not interfered with, Mr.

Cama would urge, the employer would be deprived of the power

to transfer any employee, and, therefore, the impugned order

deserves to be quashed and set aside.

11. Ms. Cox, the learned Counsel for respondent No.1 -

complainant, joined the issue with equal tenacity. Without

disputing that transferability is one of the terms of employment,

Ms. Cox stoutly submitted that it is the mala fide design which

impairs the transfer. Ms. Cox would urge that the complainant

does not claim any insulation for the mere reason that he is a

Union leader. Transfer of a Union representative by itself may

not constitute an act of victimization. However, in the case at

hand, according to Ms. Cox, there are concomitant

circumstances which lead to no other inference than that of

victimization and mala fide design.

12. On the aspect of the tenability of the complaint, Ms. Cox

would urge that from the pleadings and the deposition of the

witnesses of the employer, it becomes abundantly clear that the

complainant had all along been working as a workman. In fact,

functions discharged by the complainant were nothing more

that of the qualified data entry operator. Use of management

jargon and giving of dressed-up title would not change the

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principal nature of the duties discharged by the complainant. It

is the main duty which bears upon the determination of the

status and not incidental functions. To buttress these

submissions, Ms. Cox placed reliance on the judgement of the

Supreme Court in the case of Burmah Shell Oil Storage &

Distribution Company of India Ld. vs. The Burmah Shell

Management Staff Association and ors.5.

13. The aforesaid submissions now fall for consideration.

14. To begin with, uncontroverted facts. Indisputably, the

complainant came to be appointed as a trainee Marketing

Assistant on 25th May, 1992. Incontrovertibly, the appointment

order dated 25th May, 1992 contains condition of transferability

to any of the employer's department or sister concern. There is

not much dispute over the fact in the year 2011 the complainant

was designated as, "Supervisor as CSS-SAP Data Management

in RES Department", though the parties are at issue over the

import of the said purported promotion and designation as

Supervisor. By and large, the fact the complainant was involved

in Union activities could not be converted. There is no dispute

over the issue of transfer order on 30 th October, 2020,

whereunder the complainant was transferred to regional office

5 1970 (II) LLJ 590.

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at Chennai and in addition to normal RES responsibility, the

complainant was also to be responsible for cash collection in the

regional office and act as a Credit Controller/Cash Collector.

15. In the backdrop of the aforesaid rather uncontroverted

facts, the questions as to whether the complainant was a

workman and whether the transfer order was mala fide exercise

of managerial authority crop up for consideration.

16. The learned Memmber, Industrial Court, was persuaded to

hold that the material and evidence on record would indicate

that, though designated as supervisor, the complainant was, in

fact, discharging duty of a workman. The learned Member,

Industrial Court, was of the view that absence of a single

instance of transfer since 1992 from Mumbai to Chennai

coupled with the intent of the employer to curb the Union

activities, indicated that the transfer was actuated by mala fide.

Whether this approach of the learned Member, Industrial Court,

is justifiable?

17. At the outset, it is necessary to keep in view the nature of

the jurisdiction exercised by this Court. Undoubtedly the writ

jurisdiction is of plenary nature. However, this Court does not

sit in appeal over the decision of the Industrial Adjudicater.

Whether the Industrial Court has committed a patent error of

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law or the view taken by the Industrial Court is such that no

reasonable person, on the basis of the material available on

record, could have come to such conclusion, merits

consideration. Reappraisal of the evidence as a Court of appeal,

is not at all warranted.

18. With this clarity as to the remit of the enquiry, I propose to

delve into the twin questions of status of workman and transfer

being vitiated by mala fide, in seriatum.

19. On the aspect of determination of status of workmen,

within the meaning of Section 2(s) of the ID Act, 1947, the legal

position is fairly crystalized. Such determination must be based

on the appreciation of the nature of the duties performed by the

employee. Nomenclature of the post, which the employee holds,

is not of decisive significance. The description of the nature of

the duties also does not furnish a surer foundation for

determination. Use of grandstanding expressions and

management jargon to describe otherwise ordinary and normal

functions, is not uncommon. It is, therefore, necessary to

correctly appreciate the nature of the core duties discharged by

a person whose status is questioned.

20. Section 2(s) of the ID Act, 1947 defines the expression

workman to mean any person employed in any industry to do

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any manual, unskilled, skilled, technical, operational, clerical or

supervisory work for hire or reward. In the case of H.R.

Adyanthaya and ors. vs. Sandoz (India) Ltd. 6, the Constitution

Bench of the Supreme Court enunciated that to be qualified to

be workman under Section 2(s), the person must be employed to

do the work which falls in any of the specified categories,

manual, unskilled, skilled, technical, operational, clerical or

supervisory. To put it in other words, it is not enough that a

person is not covered by any of the four exceptions to the

definition. It is also fairly well settled that the burden is on the

person, who asserts the status of the workman under Section

2(s) to establish with reference to the dominant nature of his

duties that the work which the said person performs falls within

one of the specified categories under Section 2(s).

21. In the case of Burmah Shell (supra) the Supreme Court

adverted to a situation where an employee is entrusted to

discharge multifarious duties. In such cases, the Supreme

Court held, it would be necessary to determine under which

classification the employee will fall for the purpose of finding out

whether he does not go out of the definition of "workman" under

the exceptions. The principle is now well settled that for this

purpose, a workman must be held to be employed to do that

6(994) 5 Supreme Court Cases 737.

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work which is the work he is required to do, even though he may

be incidentally doing other types of work. The Supreme Court

referred to its earlier decision in the case of Ananda Bazar

Patrika (P) Ltd. Vs. Workmen7, where the principle was

enunciated as under:

"3. The question whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere act that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity. ...."

(emphasis supplied)

22. In the case of Arkal Govind Raj Rao vs. CIBA Geigy and

India Ltd.8, another three-judge Bench of the Supreme Court re-

exposited the principle in the following words,

"6. where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. ......"

71970(3) SCC 248.

8(1985) 3 SCC 371.

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23. The aforesaid enunciation indicates that it is the dominant

nature of work or duties which determines the status and not

the incidental work, which an employee may be called upon to

perform. Herein lies the task before the industrial adjudicator

or Court to decipher the dominant nature of duties and remove

the gloss. Often the industrial adjudicator and Court come

across a verbose and labyrinth description of the duties. Still

an effort is warranted to remove the gloss and find out the

dominant nature of the duties.

24. In the case at hand, it was the stand of the employer that

the complainant was responsible for creating, modifying and

maintaining BOM's (Bill of Material), equipment masters and

material masters to support the PRN (Parts, Retrofit and

Nuclear) Organization. In paragraph 5(d) the employer furnished

the description of the predominant duties performed by the

complainant. It would be contextually relevant to note that

there is evidence to indicate what the terms 'BOM', 'RES' and

'material masters' signify. Mr. Unnadha Raja, witness of the

employer, who was in-charge of RES Department, informed the

Court that RES means Rotating Equipment Services and it

supported after sales of pump equipments sold by the employer.

BOM means Bill of Material and that was a structure of

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individual part required to produce components or equipments.

Master of Material means identification of material,

specification, unit of measure, price, tax, varieties of produce

and suppliers name etc. details.

25. In the backdrop of aforesaid nature of duties entrusted to

the complainant, Mr. Cama would urge that, the complaint

conceded in no uncertain terms that he was appointed as a

Supervisor - SAP Data Management and one of his duty was

relating to BOM (Bill of Material) and he was required to load

data in the SAP system. In the face of these admissions, Mr.

Cama would urge, it was for the complainant to establish that

he was still a workman.

26. I am unable to persuade myself to accede to the

submission that since the complainant conceded that he was

appointed as supervisor SAP, the issue ought to have been

decided against the complainant. As indicated above, neither

the nomenclature is decisive nor the description of the duties. It

is the core function which is of determinative significance.

27. In the case at hand, there is material to indicate that the

complainant neither supervised work of any other employee nor

any machine. The nature of the work performed by the

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complainant was that of maintaining and updating a Bill of

Material (BOM), primarily. The said BOM was in essence record

of the spare parts used or procured for a particular pump. As

noted above, the RES Department in which the complainant was

employed was entrusted with after sales spare parts business of

the employer. That remained the core function of the

complainant. Use of the various expressions to describe the

incidental or peripheral work does not dilute or affect that

dominant nature of duty which the complainant was expected to

discharge.

28. It is true, the fact that the complainant had no power to

sanction leave or initiate disciplinary proceeding is not of

conclusive significance and could not have weighed in deciding

the status of the complainant. Reliance placed by Mr. Cama on

the decision of this Court in the case of Standard Bank (supra)

wherein it was enunciated with the fact that an employee is not

vested with power to sanction leave or to initiate disciplinary

proceeding is not conclusive of the question as to whether the

work that was performed by the employee falls within one of the

categories stipulated in Section 2(s), is well founded. However,

in the case at hand, there is material to show that the

complainant in fact did not supervise the work of any other

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employee much less had the authority to sanction leave or

initiate disciplinary proceeding.

29. An endeavour was made to bank upon an admission in the

cross-examination of the complainant that he was nominated as

a Project Leader for 1701 new ERP Plant Creation, to draw home

the point that the complainant was indeed discharging

supervisory functions. This admission, even if construed to be

one, does not advance the cause of the employer. Mr. Unnadha

Raja, employer's witness, informed the Court that the

complainant was nominated as the Project Leader for 1701 new

ERP Plant Creation to define all transaction codes with

respective functions and associated trainings. That exercise was

necessarily one of carving out a different plant code 1701 from

1700. The core function, however, remained the same.

Maintenance and updation of BOM. Mr. Unnadha Raja

conceded in the cross-examination that there was a proposal to

start manufacturing of spare parts business at Rabale and the

said proposal was referred as roll out of 1701.

30. The upshot of the aforesaid consideration is that the

learned Member, Industrial Court, was justified in returning a

finding that the essential work of the complainant was that of

data entry as per the values made available to the complainant,

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and the employer failed to demonstrate as to how the said work

involved the element of managerial or supervisory functions.

31. This leads me to the aspect of the transfer being mala fide

and an act of victimization. Where transferability is a term of

employment, the Industrial Tribunal or Court cannot interdict

the transfer unless it is found to be mala fide or in violation of

the statutory prescription.

32. In the case of Pearlite Liners (supra) the Supreme Court

enunciated that unless there is term to the contrary in contract

of service, a transfer order is a normal incidence of service.

33. In Gobardhan Lal (supra), which arose out of transfer of a

Government employee, the Supreme Court enunciated that a

challenge to an order of transfer should normally be eschewed

and should not be countenanced by the Courts or Tribunals as

though they are appellate authorities over such orders, which

could assess the niceties of the administrative needs and

requirements of the situation concerned. This is for the reason

that Courts or Tribunals cannot substitute their own decisions

in the matter of transfer for that of competent authorities of the

State and even allegations of mala fides when made must be

such as to inspire confidence in the Court or are based on the

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concrete materials and ought not to be entertained on the mere

making of it or on consideration borne out of conjectures or

surmises and except for strong and convincing reasons, no

interference could ordinarily be made with an order of transfer.

34. 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.

35. It is equally well recognized that the allegations of mala

fide are easy to make than prove. The Tribunal or Court must

bestow a thoughtful consideration before interdicting a transfer

on the ground of mala fide. All the attendant circumstances

must enter the judicial determination. It is more so, where

there is an express term of transferability.

36. In the case of State of Bihar and Another Vs. P.P. Sharma,

IAS and Another9, the Supreme Court, observed that the

determination of a plea of mala fide involves two questions,

91992 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.

37. 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 Others 10

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.

38. In the case of Union Of India and Others Vs. Ashok

Kumar and Others11, 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 fide are often more easily made than proved,

and the very seriousness of such allegations demands proof of a

high order of credibility.

10     (2020) 3 SCC 86.
11     (2005) 8 SCC 760.




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39. Readverting to the facts of the case, the following factors

assume importance. No other employee was ever transferred out

of the employer's Dighi establishment to Chennai. Surely, that

cannot be the basis of attributing mala fide to the employer.

However, the attendant circumstances and correlation of the

transfer order thereto may render the exercise of the managerial

authority vulnerable. It cannot be controverted that the

complainant had specifically asserted in the complaint that after

the new management took over, there was a hostile attitude

towards the Union activities. The complainant claimed to have

filed a writ petition being Criminal Writ Petition (St) no.2486 of

2020 in respect of demolition of the Union office allegedly by the

employer illegally and unlawfully. The said writ petition was

disposed of on 26th September, 2020 with liberty to avail an

appropriate remedy as available in law. The complainant

thereafter instituted a suit being Special Civil Suit No.330 of

2020 before the Civil Court at Thane. Even before the

institution of the said writ petition the complainant had signed

a caveat filed on behalf of the Union in the Industrial Court on

8th September, 2020.

40. What is of critical salience is an order passed by the

learned Member, Industrial Court, in Complaint (ULP) No.1421

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of 2020 dated 5th March, 2021, filed by the Union against the

employer. After extracting the correspondence addressed on

behalf of the employer, the learned Member, Industrial Court,

inter alia, observed as under:

"18. The company not only is making allegations against the Union leadership but has also making serious efforts to cut away members from the Union. It is seem to have succeeded in taking away the white-collared persons and the same is apparent, as it is alleged that as soon as the SEUGC claims existence, same white-collared group want to join the same Union. This, itself prima-facie shows involvement of the management to bring about a financial crunch to the Union by stopping of contribution of white collared persons.

19. Another attempt is to stop the levy and contributions payable to the Union. For arguments it could be considered that it is incorrect, considering the conflict of interest to take deposits in persona name, but there is specific remedy to it. Sudden withdrawal of such levy or contributions agreed upon was only with an intention to cause financial crunch to the complainant Union as till it was an issue of ego. Another attempt is seen to be made to cause financial crunch through SEUGC to say that they have approved that no levy will be taken from the bonus for the Union and thus, may be deprived the Union of one of the sources of income.

20. Thus, the company has tried prima-facie to (a) make allegations against Union leadership, (b) grant additional funds for opting out of Union, (c) stop finances of the Union.

21. The aspect that company wants to control the Union is also clear from the facts that the company calls out the workers to change the Union leadership as is apparent from the above letters. They not only call the Union leadership a 'Ravana' and 'Meghnath', but also want them to be removed and actively promote their removal. They quote such plan as "joint moto", thus in my view prima-facie certainly exceeds to the boundaries of the limits of management and Union."

41. Holding thus the learned Member restrained the employer

and its officers from issuing letters and circulars, making verbal

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or personal statements, suggestions and allegations in respect of

discouraging the workers for their membership with the

complainant's Union and from indulging in the propogation or

advocating for any particular Committee or members or against

any particular Committee or members or office bearers of the

Union.

42. The aforesaid observations indicate that there was prima

facie a concerted effort to break a particular Union and set up a

rival one, which the employer found more favourable.

43. Mr. Cama attempted to salvage the position by asserting

that no other office bearer of the Union had been transferred. If

the employer intended to victimize the office bearers, it could

have proceeded against others as well.

44. I find it difficult to accede to this submission. As noted

above, in close proximity to the withdrawal of the writ petition

and institution of the suit by the complainant, the latter was

visited with the transfer order. Evidently, the complainant was

at the forefront in picking the cudgels on behalf of the Union.

The management would not have been naive enough to transfer

all the office bearers of the Union and instantaneously risk the

charge of mala fide. If the entire material on record is

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cumulatively considered, the mala fide design, with which the

transfer was actuated, becomes explicitly clear.

45. The learned Member, Industrial Court, was also justified

in holding that at the place of transfer the complainant was

proposed to be entrusted with additional duties, which he had

never performed. He was supposed to be the Credit Controller/

Cash Collector. The employer could not bring material on

record to show that the said duty was ever performed by the

complainant while being posted at Digha. Mr. Unnadha Raja

conceded that he had not known whether the complainant ever

performed the duties of cash collector and credit controller and

the complainant had the experience of the said work. Prima

facie, entrustment of the said duty constituted a change in the

service condition.

46. For the foregoing reasons, I am persuaded to hold that the

learned Member, Industrial Court, committed no error in

holding that the employer engaged in unfair labour practices

under Items 3 and 9 of Schedule IV of the Act, 1971 and

quashing and setting aside the transfer order. Thus, no

interference is warranted with the impugned order in exercise of

writ jurisdiction.

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47. Before parting, it must be clarified that the apprehension

of Mr. Cama that if the impugned order is not set aside the

employer will be precluded from exercising the managerial

authority in respect of any other employee, does not seem to be

well founded. As and when the question of justifiability of the

transfer arises; undoubtedly, it would be required to be

determined on the basis of the attendant facts and

circumstances, prevailing situation and the circumstances

peculiar to the employee concerned.

48. The petition, therefore, deserves to be dismissed.

49. Hence, the following order:

:ORDER:

       (i)     Petition stands dismissed.

       (ii)    Rule discharged.

(iii) In the circumstances of the case, there shall be no

order as to costs.

[N. J. JAMADAR, J.]