Ms. Chitra Srivastava vs Govt. Of Nct Of Delhi And Ors.
2004 Latest Caselaw 818 Del

JUDGMENT

Manmohan Sarin, J.

1. Ms.Chitra Srivastava who is working as Secretary to the Head, Human Resource Department of respondent No.3 impugns her transfer to Bhopal as a malafide one. Petitioner has sought the following relief:-

"Issue a writ of mandamus or any other writ, order or direction directing the Respondent No.3 not to give effect to the transfer order dated 1.11.2003 issued to the petitioner as the same is illegal, arbitrary, violative of the principles of natural justice and Articles 15 & 16 of the Constitution of India."

2. Notice to show cause was issued on 12.11.2003 and in the meanwhile impugned order of transfer dated 1.11.2003, Annexure P-7, transferring the petitioner to Bhopal, was stayed. It is stated that the petitioner is mother of two children and is attending also to her sick husband, who had undergone a neurosurgery and is not well. The impugned order is said to be malafide one. Petitioner is being made to suffer because of the disputes of respondent No.1 with another Steno Arifa Nauman's husband, who is Secretary of the Union of respondent No.3. The present transfer order, it is urged by counsel, has been passed to some-how canvass that the case of Arifa Nauman, who was transferred to Aurangabad was not a solitary one. Petitioner, it is stated, has been made a scape-goat.

3. Learned counsel for the petitioner Mr.Pradeep Gupta submitted that the Standing Orders do not contain any power to transfer. He submits that the Standing Orders have primacy over the individual contract and resort to the latter can be had if there were no Standing Orders. He seeks to draw support from provisions of sub-section (1) and Sub-section (2) of Section 33 of the Industrial Disputes Act, 1947 wherein in the case of pending proceedings of conciliation before Conciliation Officer or Board or pending proceedings before Labour Court, protection is provided to the concerned workmen against alteration of conditions of service or from discharge or dismissal, except with permission of Authority. Sub-section (2) of Section 33 carves out an exception for alteration of conditions of service unconnected with the dispute in accordance with Standing Orders and where there are no Standing Orders, in accordance with the terms of contract. On the same analogy it is urged that where there are no standing orders applicable, the contract between the parties could be resorted to. It is accordingly urged that as transfer is not permitted under the standing orders the same would govern.

4. Counter affidavit has been filed by respondent No.3. A preliminary objection has been raised by respondent No.3 on the maintainability of the writ petition. It is urged that there is an alternative efficacious remedy available under the Industrial Disputes Act, which the petitioner has failed to avail.

5. Mr. Gupta in support of his plea of petition being entertained by the Court, submits that this is a fit case for being entertained by the High Court as the petitioner's fundamental rights of earning and very livelihood to survive is sought to be infringed by this transfer. Secondly, he submits that the Industrial Tribunal does not have any power to grant any stay and as such it would not be an efficacious remedy.

6. Mr.S.N. Bhandari, Senior Advocate, for the Respondent denies the allegation of any mala fides. He submits that while it is true that husband of Ms. Arifa Nauman had been working as the General Secretary of Workers' Union, the action of the respondent has not emanated out of any malice or ill will. In fact, he submits that the management rather accommodated the petitioner by transferring her to Aurangabad as otherwise, her job was rendered surplus and she was liable to be retrenched. It is stated that respondent Nos.1 and 2 have been unnecessary imp leaded in an attempt to confer writ jurisdiction.

7. It is not necessary for me to go into the factual controversy of transfer being malafide or not, or on the merits of the case. The question to be considered by this Court is whether petitioner has an adequate efficacious alternate remedy and should the petitioner be relegated to the said remedy ? It is well settled that the bar of alternate remedy is not an absolute one. The Court has to examine whether there exists an efficacious alternate remedy, which can be conveniently exercised and availed of by the petitioner in the facts and circumstances of the case.

8. My attention has been drawn to Section 25-T of the Industrial Disputes Act, 1947, which is as under:-

"No employer or workman or a trade union, whether registered under the Trade Union Act, 1926 or not, shall commit any unfair labour practice."

Section 2(ra) of the Act defines unfair labour practice as under:-

"Section 2(ra) "Unfair Labour Practice" means any of the practices specified in the Fifth Schedule."

Fifth Schedule of the Act specifies the various trade practices. S.No.7 of the said said Schedule is as under:-

"To transfer a workman mala fide from one place to another under the guise of following management policy."

9. It would thus be seen that transfer of a workman made mala fide under the guise of following management policy is an unfair labour practice in respect of which an industrial dispute can be raised. It is a statutory remedy specifically provided to deal with malafide transfers under the guise of management policies. Further, Section 25-T contains a prohibition on an employer for committing unfair labour practice. In the light of these statutory provisions, in my view, the Industrial Tribunal/Court would be vested with the inherent power to enforce the statutory provision, as given in Section 25-T. Accordingly, the submission that the Industrial Tribunal/Court would not have power to grant stay or transfer is misplaced and is devoid of merit.

10. Reference at this stage may also be made to the following decisions of the Supreme Court, dealing with entertainment of writ petition, when the alternate remedy under the Industrial Disputes Act is available.

(i) Scooters India & Ors. Vs.Vijay E.V.Eldred reported at 1999 II CLR 231. In the cited case, an employee had remained absent from duty and the employer proceeded on the basis that with the absence of more than 10 days, the contract of service stood terminated and the name of the employee was struck off. The employee belatedly filed a writ petition under Article 226 of the Constitution of India, which was entertained by the Allahabad High Court and on facts allowed the writ petition, ordering reinstatement with back wages. The Supreme Court allowed the appeal, holding that "the above facts alone are sufficient to indicate that there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute, involving determination of disputed questions of fact for which remedy under Industrial Laws was available to the workman.

(ii) Chairman Coal India Ltd., and another Vs.Madan Prasad Sinha and Ors reported at .

In the cited case, the Court was concerned with the question, whether the respondents-workmen, could claim to be continued as workmen on nationalisation of coal mines. The Court noting several disputed questions of fact arise for adjudication held that, "the writ petitions under Article 226 of the Constitution of India were not maintainable and the remedy, if any, available to the respondents, was under the Industrial law, relating to the adjudication of an industrial dispute.

11. Further, reliance is placed on Federal Bank Ltd. Vs.Sagar Thomas & Ors. Reported at 2003 III CLR 801, wherein it was held that a Bank would not fall within the definition of "other authority" under Article 12. The Court observed that merely because the bank was carrying on business or commercial activity of banking, it cannot be said that discharging any public function or public duty so as to come within the ambit of Article 12. Writ petition was not maintainable as disciplinary action was sought to be taken against an employee. No statutory duty against the Bank was sought to be enforced. Lastly, reliance is placed on Premier Automobiles Ltd.Vs.Kamlakar Shantaram Wadke and others , wherein the Court held that an extensive machinery has been provided for settlement and adjudication of industrial disputes and resort should be had to the same for resolution of Industrial Disputes.

12. It is not in dispute that the present case also raises disputed questions of fact and the various allegations would require evidence and to be established before the appropriate forum.

13. At this stage, Mr.Gupta, counsel for the petitioner sought to raise the issue of CM.No.47/2003, which is an application for amendment of writ petition. After some arguments and deliberation, Mr.Gupta does not press the application, which is dismissed as withdrawn.

14. In view of the foregoing discussion, I am of the view that the dispute is such for which specific provision and relief is provided under the Industrial Disputes Act, 1947. Hence there is an efficacious alternate remedy and petitioner should be relegated to the same. However, the facts of this case are such that interim protection needs to be given to the petitioner to enable her to avail of the alternate remedy under the Industrial Disputes Act. The impugned order of transfer shall remain stayed for a period of two months from today to enable the petitioner to avail of the legal remedy under the Industrial Disputes Act.

15. The writ petition is dismissed with the aforesaid directions.