Karnataka High Court
Shri N Madhubabu vs Bharat Electronics Limited on 13 September, 2022
Bench: Suraj Govindaraj
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WP No. 12765 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
®
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 12765 OF 2022 (L-RES)
BETWEEN:
1. SHRI N MADHUBABU
S/O M NARAYANA
AGED ABOUT 53 YEARS
WORKING IN BHARAT ELECTRONICS LIMITED
JALAHALLI POST
BENGALURU-560013
R/A G-1, SHRUSHTI ANMOL APARTMENTS
SIDDALINGESHWARA LAYOUT
TINDLU, VIDYARANYAPURA
BENGALURU-97
2. BHARAT ELECTRONICS WORKERS UNION
REGISTERED TRADE UNION UNDER THE TRADE
THE TRADE UNION ACT, 1926
(REG NO.27/50-81)
(REPRESENTED BY ITS GENERAL SECRETARY)
Digitally signed by HAVING ITS OFFICE AT 154, SHRI LAKSHMI NIVAS
POORNIMA FIRST FLOOR
SHIVANNA
Location: HIGH SHRI JAYAKRISHNA COMPLEX
COURT OF
KARNATAKA DODDA BOMMASANDRA
VIDYARANYAPURA
BENGALURU-97
...PETITIONERS
(BY SRI K.SUBBA RAO, SENIOR ADVOCATE FOR
SRI L.MURALIDHAR PESHWA, ADVOCATE)
AND:
1. BHARAT ELECTRONICS LIMITED
(A GOVERNMENT OF INDIA ENTERPRISES)
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WP No. 12765 of 2022
REPRESENTED BY ITS CHAIRMAN
AND MANAGING DIRECTOR
JALAHALLI POST
BENGALURU-560013
2. MANAGER(HR) CO
BHARAT ELECTRONICS LIMITED
OUTER RING ROAD
NAGAVARA, BENGALURU-45
...RESPONDENTS
(BY SRI SANDISH J.CHOUTA, SENIOR ADVOCATE A/W
SRI ISMAIL MUNEEB MUSKA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUION OF INDIA PRAYING TO DECLARE THAT THE TRANSFER
ORDER, DTD 08.06.2022, IN ANNEXURE-A, ILLEGAL,
UNCONSTITUTIONAL AND VIOLATIVE OF ARTICLES, 14, 16 AND
ARTICLE 21 OF THE CONSTITUTION OF INDIA AND AGAINST THE
CERTIFIED STANDING ORDERS OF THE R1 COMPANY AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 25.08.2022, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the
following reliefs:-
a. A Writ of Mandamus or any other appropriate
Writ, direction or order be issued to declare that
the Transfer Order, dated 08.06.2022, in
Annexure A, illegal, unconstitutional and
violative of Articles 14,16 and Article 21 of the
Constitution of India and against the certified
standing orders of the First Respondent
Company.
WP No. 12765 of 2022
b. A Writ of Certiorari or any other appropriate
writ, direction or order, be issued against the
Respondent to quash the order of Transfer,
dated 08.06.2022, in Annexure-A, issued
against the petitioner as the same is illegal,
Unfair and capricious and amounting to
victimization;
c. All the consequential benefits consequent upon
the quashing the order dated 08.06.2022 and
such other suitable order/s and as this Hon'ble
Court deem fit and proper for the reasons and
circumstances as stated above in the interest of
justice and equity."
2. The first petitioner is a Junior Section Officer of the first
respondent-Company since 1991. It is stated that the
service conditions of the first petitioner and also the other
workmen is covered under the Certified Standing Orders
(CSO) of the first respondent-Company.
3. The second petitioner is a registered Trade Union
registered under the Indian Trade Unions Act, 1926, for
espousing the cause of the workmen of the first
respondent-Company. The second petitioner is a
recognized Union for collective bargaining from 1994 to
2003 and again, from 2006 to May, 2022.
4. The first petitioner is a workman and an office bearer of
the second petitioner-Trade Union and also a 'protected
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workman' as per Section 33(4) of the Industrial Disputes
Act, 1947. The first respondent-Company is a Central
Government Undertaking which is controlled and
supervised by different Departments of the Union of
India.
5. It is alleged that the first petitioner was unfairly,
arbitrarily and illegally transferred from Testing/NCS/MIL
Com. to NS (S & SC) on 23.04.2022. The first petitioner,
therefore, submitted a representation to the management
of the first respondent-Company on 02.05.2022
requesting to post him to NS-I SBU of Bengaluru Complex
on account of various personal difficulties which were
faced by him. In the meanwhile, elections were called for
and the first respondent-Company unilaterally appointed
an Election Officer and announced the calendar of events
for the election by a Notification dated 19.05.2022. The
election was conducted on 28.05.2022. The first
petitioner was defeated allegedly on account of tacit
propaganda by the agents of the management of the first
respondent-Company. Thereafter, the second
respondent-Manager issued a letter dated 08.06.2022
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arbitrarily transferring the services of the first petitioner
to Kochi Unit. It is in this background that the petitioners
are before this Court seeking for the aforesaid reliefs.
6. Sri K.Subba Rao, learned Senior Counsel appearing for
the petitioners would submit that
6.1. The order of transfer is completely arbitrary and
unfair inasmuch as, the first petitioner had been
working with the first respondent-Company for the
last thirty years.
6.2. The first petitioner, in pursuance of the order of
transfer from Testing/NCS/MIL Com. to NS (S &
SC) on 23.04.2022, submitted a representation
dated 02.05.2022 categorically stating that his wife
is suffering from imbalance of uric acid in her blood,
his son is studying in Engineering College and his
daughter is studying in second year of Pre-
university College. His daughter is also suffering
from depression and anxiety disorder. Apart
therefrom, his mother-in-law is also suffering from
various health issues and as such, the first
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petitioner having placed all these facts before the
Authorities concerned, they ought to have
considered his request and transferred him to NS-I
SBU at Bengaluru Complex. Instead of doing so,
the first respondent-Company transferred the first
petitioner to Kochi Unit which is mala fide.
6.3. By relying upon the CSO applicable to the first
respondent-Company, he submits that the
Company has been defined in the said Standing
Orders as 'Bharat Electronics Limited, Bengaluru'
which is only the first respondent and as such, the
first petitioner cannot be transferred outside
Bengaluru, more so, in view of Clause 7 of the said
Standing Orders which provides for transfers
between departments and not transfers between
different places. Clause 7 of the Standing Orders is
reproduced hereunder for easy reference:-
"Transfers between Departments:
Depending on the exigencies of work, workmen
may be transferred from one department to the
other or from one section to the other or from one
WP No. 12765 of 2022
job to the other, provided that their emoluments
and service conditions are not affected."
6.4. He relies upon Section 2(e) of the Industrial
Employment (Standing Orders) Act, 1946 (for short
'IESCO') to contend that the Standing Orders apply
only to an industrial establishment. In the present
case, the establishment is the Company in
Bengaluru and the IESCO does not contemplate any
other Unit of the Company. It is only in the
industrial establishment at Bengaluru that the first
petitioner could be transferred and not to any other
Unit of the employer. He submits that the first
respondent-Company has acted mala fide and has
unilaterally transferred the first petitioner only to
cause inconvenience to the trade union officers and
its members.
6.5. He relies upon the decision of the Hon'ble Apex
Court in the case of WESTERN INDIA MATCH CO.
LTD. VS. WORKMEN reported in AIR 1973 SCC
2650 more particularly, paragraphs 1, 4, 7, 8 and 9
WP No. 12765 of 2022
thereof which are reproduced hereunder for easy
reference:
"1.The Western India Match Company Limited,
Bareilly (hereinafter called the Company) is
governed by the Industrial Employment (Standing
Orders) Act, 1946 (hereinafter called the Act). It
appears that it has a separate Standing Order for
the Watch and Ward Staff. According to the
Standing Order, there are five categories of
workmen : (1) Permanent, (2) Probationer, (3)
Substitute, (4) Temporary and (5) Apprentice. A
permanent workmen is one " who has completed a
probationary period of two months as such and is
employed on a permanent post." A probationer is a
workman "who is provisionally employed to fill a
permanent vacancy and has not completed two
months service". (emphasis added).
4. Shri Daphtary, counsel for, the Company, has
submitted that the Labour Court has gone beyond
the terms of reference. It is pointed out that the
Government Order of reference does not expressly
empower the Labour Court to decide whether the
term regarding six months' probation was valid or
invalid. In our view, the Labour Court has not
travelled beyond the terms of reference. It was
called upon to decide whether the order of
discharge was legal and/or justified. The validity or
invalidity of the discharge obviously depended on
the validity or invalidity of the term regarding six
months' probation. If this term was invalid the
order of discharge also would obviously be invalid.
7. In view of the decisions of this Court cited
earlier, the decisions in M/s.J. K. Cotton
Manufacturers Ltd. Kanpur v. J. N. Tewari AIR 1959
A11 639 and the Banaras Electric Light and Power
Co. Ltd. Berhlupura v. Government of Uttar
Pradesh and others (1962) 1 lab. LJ 14 (All) no
longer lay down good law. They take the view that
notwithstanding the Standing Orders it is open to
the employer to conclude an agreement with an
individual workman which may be inconsistent with
WP No. 12765 of 2022
the Standing Orders. These decisions are
overruled.
8. In the sunny days of the market economy
theory people sincerely believed that the economic
law of demand and supply in the labour market
would settle a mutually beneficial bargain between
the employer and the workman. Such a bargain,
they took it for granted, would secure fair terms
and conditions of employment to the workman.
This law they venerated as natural law. They had
an abiding faith in the verity of this law. But the
experience of the working of this law over a long
period has belied their faith. Later generations
discovered that the workman did not possess
adequate bargaining strength to secure fair terms
and conditions of service. When the workmen also
made this discovery, they organised themselves in
trade unions and insisted on collective bargaining
with the employer. The advent of trade. union and
collective bargaining created new problems of
maintaining industrial peace and production for the
society. It was therefore considered that the
society has also an interest in the settlement of the
terms of employment of industrial labour. While
formerly there were two parties at the negotiating
table the employer and the workman, it is now
thought that there should also be present a third-
party the State as representing, the interest of the
society. The Act gives effect to this new thinking.
By Section 4 the Officer certifying the Standing
Order is directed to adjudicate upon "the fairness
or reasonableness" of the provisions of the
Standing Order. The Certifying Officer is the
statutory representative of the society. It seems to
us that while adjudging the fairness or
reasonableness of any Standing Order, the
Certifying Officer should consider and weigh the
social interest in the claims of the employer and
the social interest in the demands of the workmen.
Section 10 provides the mode of modifying the
Standing Orders- The employer or die workman
may apply to the Certifying Officer in the
prescribed manner for the modification of the
Standing Orders. Section 13(2) provides that an
employer who does any act in contravention of the
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Standing Order shall be punishable with fine which
may extend to one hundred rupees. it also provides
for: the imposition of a further fine in the case of a
continuing offence. The fine may extend to twenty
five rupees for every day after the first during
which the offence continues.
9. The special agreement, in so far as it provides
for additional four months of probation, is an act in
contravention of the Standing Order. We have
already held that. It plainly follows from sections 4,
10 and 13(2) that the inconsistent part of the
special agreement cannot prevail over the Standing
Order. As long as the Standing Order is in force, it
is binding on the Company as well as the workmen.
To uphold the special agreement would mean
giving a go by to the Acts principle of three party
participation in the settlement of terms of
employment. So we are of opinion that the
inconsistent part of the special agreement is
ineffective and unenforceable."
6.6. Relying on the above, he submits that the CSO
would prevail over any other documents including
any appointment letter or otherwise. The terms and
conditions of the CSO would govern all aspects of
the employment including transfer.
6.7. In the present case, it is only Clause 7 of the said
CSO which would apply which only provides for
inter-department transfer and not inter-Unit
transfer. Therefore, the first petitioner could not be
transferred outside Bengaluru.
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6.8. He relies upon the decision of the Hon'ble Apex
Court in the case of GENERAL OFFICER
COMMANDING-IN-CHIEF AND ANOTHER VS.
DR.SUBHASH CHANDRA YADAV AND ANOTHER
reported in (1988) 2 SCC 351, more particularly,
paragraphs 13 and 14 thereof which are reproduced
hereunder for easy reference:
"13. Our attention has been drawn to the provision
of sub- section (2) of section 281 of the
Cantonment Act, which provides that all rules made
under the Act shall be published in the official
Gazette and in such other manner, if any, as the
Central Government may direct and, on such
publication, shall have effect as if enacted in the
Act. It is urged on behalf of the appellants that in
view of sub- section (2) of section 281, rule 5-C
became a part of the statute and, accordingly, the
question of its being contrary to the provisions of
the Cantonment Act does not at all arise.
14. This contention is unsound. It is well settled
that rules framed under the provisions of a statute
form part of the statute. In other words, rules have
statutory force. But before a rule can have the
effect of a statutory provision, two conditions must
be fulfilled, namely, (1) it must conform to the
provisions of the statute under which it is framed;
and (2) it must also come within the scope and
purview of the rule making power of the authority
framing the rule. If either of these two conditions is
not fulfilled, the rule so framed would be void. The
position remains the same even though sub-section
(2) of section 281 of the Act has specifically
provided that after the rules are framed and
published they shall have effect as if enacted in the
Act. In other words, in spite of the provision of sub-
section (2) of section 281, any rule framed under
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the Cantonment Act has to fulfil the two conditions
mentioned above for their validity. The observation
of this Court in Jestamani v. Scindia Steam
Navigation Company, [1961] 2 SCR 811, relied
upon by Mr. Aggarwal, that a contract of service
may be transferred by a statutory provision, does
not at all help the appellants. There can be no
doubt that a contract of service may be transferred
by statutory provisions, but before a rule framed
under a statute is regarded a statutory provision or
a part of the statute, it must fulfil the above two
conditions. Rule 5-C was framed by the Central
Government in excess of its rule making power as
contained in clause (c) of sub-section (2) of section
280 of the Cantonment Act before its amendment
by the substitution of clause (c); it is, therefore,
void."
6.9. Relying on the above, he submits that any term in
the CSO can only be changed or modified by
following the procedure under Section 10 of the
IESCO. Since it is the only procedure which
provides for modification, without modification
thereof, the same cannot be relied upon by the first
respondent-Company to contend that it has powers
to transfer the first petitioner outside Bengaluru.
6.10. He relies upon the decision of the Hon'ble Apex
Court in the case of M/S.GLAXO LABORATORIES
(I) LTD. VS. PRESIDING OFFICER, LABOUR
COURT, MEERUT reported in 1983 LAB.I.C. 1909
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more particularly, paragraph 10 thereof which is
reproduced hereunder for easy reference:
"10. Every industrial establishment to which the
Act applies is under a statutory obligation to draw
up and submit to the Certifying Officer five copies
of the draft standing orders for adoption in the
industrial establishment (Sec. 3). Sec. 5 requires
the Certifying Officer to forward the copy of the
draft standing order to the trade union, if any, of
the workmen, or where there is no such trade
union, to the workmen in such manner as may be
prescribed, together with a notice in the prescribed
form requiring them to submit their objections, if
any Sub-sec. (2) of sec. 5 requires the Certifying
Officer to decide after hearing the representatives
of the employer and the trade union or the
workmen : whether or not any modification of or
addition to the draft submitted by the employer is
necessary. Such certified standing orders shall be
filed by the Certifying Officer in a register in the
prescribed form maintained for the purpose and the
Certifying Officer shall furnish a copy thereof to any
person applying therefor on payment of the
prescribed fee. Sec. 12 excludes oral evidence
having the effect of adding to or otherwise varying
or contradicting standing orders as finally certified
under the Act. Sec. 13C, which is in part pari
materia with Sec. 11A of the U.P. Industrial
Disputes Act, 1947 confers jurisdiction on the
Labour Court constituted under the Industrial
Disputes Act, 1947 to entertain an application for
interpretation of a standing order certified under
the Act. The scheme of the Act would show that the
certified standing orders have more or less a
statutory flavour. If that be so, ordinary canons of
construction of a statute would be attracted where
a dispute arises about the construction or
interpretation of a certified standing order."
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6.11. Relying on the above decision, he contends that the
CSO have more or less a statutory flavour and
should be given the same effect by any Authority is
dealing with it. In the present case, since the CSO
does not provide for transfer of the first petitioner
outside Bengaluru and only provides for transfer
within departments, the first respondent-Company
could not have transferred the first petitioner
outside Bengaluru.
6.12. He relies upon the Hon'ble Apex Court's decision in
the case of SUDHIR CHANDRA SARKAR VS.
TATA IRON AND STEEL CO. LTD. AND OTHERS
reported in AIR 1984 SCC 1064. Paragraphs 12,
13, 14, 19 and 20 thereof are reproduced
hereunder for easy reference:-
"12. The High Court recorded the finding that
service conditions of the plaintiff were governed by
the Works Standing Orders. No exception has been
taken to this finding. It may at once be noted that
the Works Standing Orders of the Company are
Certified Standing Orders, under the 1946 Act
evidenced by Certificate No. 45 dated March 18,
1950. S.O. 54 provides that every uncovenanted
employee of the Company shall retire from service
on attaining the age of 60 years. This S.O. 54 is
bodily incorporated in Rule 5 of the Gratuity Rules.
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Relying on S.O. 54 and the evidence recorded in
the case, the High Court reached the conclusion
that payment of gratuity was an implied condition
of service of the plaintiff. Rule 6(a) provides that
'subject to the conditions prescribed in the rules,
every permanent uncovenanted employee of the
Company will be eligible for a retiring gratuity in
the manner and to the extent for a retiring gratuity
in the manner and to the extent mentioned therein.
Retiring gratuity becomes payable on retirement,
which means termination of service by reason of
any cause other than removal by discharge due to
misconduct. On a combined reading of S.O. 54 and
the Rule 5 of the Gratuity Rules the High Court
rightly concluded that payment of gratuity was a
condition of service but somehow the High Court
qualified it by saying that it was an implied
condition of service. It is well-settled by a catena of
decisions, that Certified Standing Orders bind all
those in employment at the time of service as well
as those who are appointed thereafter.' Agra
Electricity Supply Co. Ltd. v. Sri Alladin & Ors. Now
upon a combined reading of S.O. 54 along with
Rule 5 and 6(a) of the Gratuity Rules, it becomes
distinctly clear that payment of gratuity was an
express or statutory condition of service and to this
limited extent the finding of the High Court has to
be modified.
13. If payment of gratuity is thus shown to be a
statutory or express condition of governing the
relationship between the plaintiff and the company,
it would be obligatory upon the company to pay the
gratuity on retirement of the plaintiff. If the
company declines or refuses to pay or discharge its
statutory obligation, could the claim be enforced by
a civil suit ? The High Court was of the opinion that
even though payment of gratuity was a condition of
service in view of the provision contained in Rule
10, the same cannot be claimed as a matter of
right or its recovery cannot be enforced by a civil
suit. The High Court was constrained to observe
that Rule 10 which confers absolute discretion on
the Company to pay the gratuity at its sweet will is
unconscionable and incompatible with the modern
notions or conditions which ought to govern the
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relations between employer and that upon an
industrial dispute being raised, the Industrial
Tribunal may be in a position to award the gratuity
as a matter or right even under the existing rules,
but according to High Court, it cannot be enforced
by a civil suit. In reaching this conclusion the High
Court overlooked the effect of certified Standing
Orders and the inter-relation between the Retiring
Gratuity Rules and S.O. 54.
14.At this stage it would be appropriate to examine
the effect of a breach of condition of service which
is either statutory in character or has the statutory
flavour. When under 1946 Act, an obligation is cast
on the employer to specifically and precisely lay
down the conditions of service, Sec. 13(2) subjects
the employer to a penalty if any act is done in
contravention of the Standing Orders certified
under the Act. It would appear that such conditions
of service prescribed in Standing Orders get
incorporated in the contract of service of each
employee with his employer. A facet of collective
bargaining is that any settlement arrived at
between the parties would be treated as
incorporated in the contract of service of each
employee governed by the settlement. Similarly
certified Standing Orders which statutorily
prescribe the conditions of service shall be deemed
to be incorporated in the contract of employment of
each employee with his employer. As far as the
incorporation of the results of collective bargaining
into the individual contract of employment is
concerned, the courts have in effect created a
presumption of more or less systematic translation
of the results of collective bargaining into individual
contracts where these results are in practice
operative and effective in controlling the terms on
which employment takes place: (Labour Law Text
and Materials by Paul Davies and Mark Freedland p.
233) O Kahn Freund describes collective bargaining
as crystalised custom to be imported into contracts
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of employment on the same basis as trade custom
(System of Industrial Relations in Great Britain p.
58-59). This would be all the more true of certified
Standing Orders governing conditions of service
between workman and his employer. If the
employer commits a breach of the contract of
employment, the same can be en-forced or
remedied depending upon the relief sought by a
civil suit. If contract for personal service is sought
to be specifically enforced by a decree of civil court,
the court will have to keep in view the provisions of
Sec. 14 of the Specific Relief Act, 1963 which
provides that contract for personal service cannot
be specifically enforced. We are not concerned with
the exceptions to this rule such as the power of
Industrial Tribunal to grant relief of reinstatement.
We are concerned with the jurisdiction of civil
court. The jurisdiction of civil court amongst others
is determined by the nature of relief claimed. Now
if the relief claimed is a money decree by enforcing
statutory conditions of service, the civil court would
certainly have jurisdiction to grant the relief.
Plaintiff filed the suit alleging that he was entitled
to payment of gratuity on completion of service for
the period prescribed. He alleged it and the High
Court accepted it as a condition of service. Its
breach would give rise to a civil dispute and civil
suit would be the only remedy. In the case of
workman governed by the Industrial Disputes Act,
1947, Sec. 33(c)(2) may provide an additional
forum to recover monetary benefit. It is not
suggested that plaintiff was a workman governed
by the Industrial Disputes Act. The High Court was,
therefore, in error in holding that the remedy was
only by way of an industrial dispute and not by a
civil suit. In reaching this conclusion, the Court
High closed the door of justice to every employee
though entitled to gratuity but would not be a
workman within the meaning of the Industrial
Disputes Act, 1947 to recover the same, except
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where a prosecution can be successfully launched
for an offence under Sec. 13(2) against the
employer.
19.The question then is: Can the court ignore Rule
10 ? If gratuity is a retiral benefit and can be
earned as a matter of right on fulfilling the
conditions subject to which it is earned, any rule
conferring absolute discretion not testable on
reason, justice or fair-play must be treated as
utterly arbitrary and unreasonable and discarded. If
rules for payment of gratuity became incorporated
in the Standing Orders and thereby acquired the
status of statutory condition of service, an arbitrary
denial referable to whim, fancy or sweet will of the
employer must be rejected as arbitrary. Sec. 4 of
the 1946 Act which confers power on the Certifying
Officer or appellate authority to adjudicate upon
the fairness or reasonableness of the provisions
would enable this Court to reject that part of Rule
10 conferring absolute discretion on the employer
to pay or not to pay the gratuity even if it is earned
as utterly unreasonable and unfair. It must be
treated as ineffective and unenforceable. It is well-
settled that if the Certifying Officer and the
appellate authority under the 1946 Act while
certifying the Standing Orders has power to
adjudicate upon the fairness or reasonableness of
the provisions of any standing orders, this Court in
appeal under Art. 136 shall have the power to do
the same thing when especially it is called upon to
enforce the unreasonable and unfair part of the
Standing Order. It therefore follows that part of
Rule 10 which confers absolute discretion on the
employer to pay gratuity even if it is earned, at its
absolute discretion is ineffective and unenforceable.
This approach does not acquire any precedent but
if one is needed the decision of this Court in
Western India Match Company Ltd. case clearly
rules to that effect. In that case, the company
relied on a special agreement which was to some
extent in derogation of the provisions of the
certified Standing Order. The Court observed that
to uphold such special agreement would mean
giving a go-by to the principle of three party
participation, in the settlement of the terms of
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employment, as represented by the certified
Standing Orders and therefore, the inconsistent
part of special agreement is ineffective and
unenforceable. The claim to absolute discretion not
to pay gratuity even when it is earned is a
hangover of the laissez faire days and utterly
inconsistent with the modern notions of fair
industrial relations and therefore, it must be
rejected as ineffective and hence unenforceable.
20.Viewed from a slightly different angle, our
Constitution envisages a society governed by rule
of law. Absolute discretion uncontrolled by
guidelines which may permit denial of equality
before law is the anti-thesis of rule of law. Absolute
discretion not judicially reviewable inheres the
pernicious tendency to be arbitrary and is therefore
violative of Art. 14. Equality before law and
absolute discretion to grant or deny benefit of the
law are diametrically opposed to each other and
cannot co-exist. Therefore, also the conferment of
absolute discretion by Rule 10 of the Gratuity Rules
to give or deny the benefit of the rules cannot be
upheld and must be rejected as unenforceable."
6.13. Relying on the above, learned Senior counsel
submits that Rule incorporated in the CSOs would
acquire the status of statutory condition of service.
In the present matter, there being nothing in the
CSO permitting the employer to transfer the
employee out of Bangalore, therefore, there is an
exclusion of such power and as such the
respondent-employer cannot transfer the petitioner
out of within Bangalore.
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6.14. He relies upon the decision of the Hon'ble Apex
Court in the case of THE U.P.STATE ELECTRICITY
BOARD AND OTHERS VS. HARI SHANKAR JAIN
AND OTHERS reported in AIR 1979 SC 65, more
particularly, paragraph 5 thereof which is
reproduced hereunder for easy reference:
"5.Let us now examine the various provisions their
proper contact with a view to resolve the problem
before us. l the Industrial Employment (Standing
Orders) Act, 194(. Before the passing of the Act
conditions or service of industrial employees s were
invariably ill defined and were hardly over know
with even a slight Degree of precision to the
employees. There was no uniformity of conditions
of service f(hr employees discharging identical
duties in fl the same establishment. Conditions of
service were generally e and the result of oral
arrangements which left the employees The mercy
of the employer. With the growth of the trade union
movement and the right of collective bargaining,
employees started putting A forth their demands to
end this sad and confusing state of affairs.
Recognising the rough deal that was being given to
workers 1 employers who would not define their
conditions of service and he inevitability f industrial
strife in such a situation, the legislature intervened
and enacted the Industrial Employment Standing
Orders Act. It was stated in the statement of
objects and reasons;
"Experience has shown that "Standing orders"
defining the conditions of recruitment, discharge,
disciplinary action, holidays, leave etc., go a long
way towards minimising, friction between the
management and workers ill industrial
undertakings. Discussion on the subject at the
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WP No. 12765 of 2022
tripartite Indian Labour Conferences revealed a
consensus of opinion in favour of legislation. The
Bill accordingly seeks to pr vide for the framing of
"Standing orders" in all industrial establishments
employing one hundred and more workers".
It was, therefore, considered, as stated in the
preamble "expedient to require employers in
industrial establishments to define with sufficient
precision the conditions of employment under them
and to make the said conditions known to workmen
employed by them". The scheme or the Act, as
amended in 1956 and as it now stands, requires
every employer of an industrial establishment as
defined in the Act to submit to the Certifying officer
draft Standing orders, that is, "Rules relating to
matters set out in the schedule", proposed by him
for adoption in his industrial establishment. This is
mandatory. It has to be done within six months
after the commencement of the Act. 'Failure to do
so is punishable and is further made a continuing
offence. The draft Standing orders are required to
cover every matter set out in the schedule. The
schedule enumerates the matters to be provided in
the Standing orders and they include classification
of workmen, Shift working, attendance and late
coming. Leave and holidays, termination of
employment, suspension or dismissal for
misconduct, means of redress for wronged
workmen etc. Item No. 11 of the Schedule IS "Any
other matter which may be prescribed". By a
notification dated 17 1959 the Government of Uttar
Pradesh has prescribed "Age o superannuation or
retirement, rate of pension or any other facility
which the employer may like to extend or may be
agreed upon between the parties" as a matter
requiring to be provided in the Standing orders. On
receipt o the draft Standing Orders from the
employee, the Certifying officer is required to
forward a copy of the same to the trade union
concerned or the workmen inviting them to prefer
objections, if any. Thereafter the Certifying officer
is required to give a hearing to the employer and
the trade union or workmen as the case may be 7-
526SCI/78 and to decide "whether or not any
modification of or addition to the draft submitted
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by the employer is necessary to render the draft
Standing orders certifiable under the Act'. Standing
orders are certifiable under the Act only if provision
is made therein for every matter set out in the
schedule, if they are in conformity with the
provisions of the Act and if the Certifying officer
adjudicates them as fair and reason 3 able. The
Certifying officer is invested with the powers of a
Civil Court for the purposes of receiving evidence,
administering oaths, enforcing the attendance of
witnesses etc. etc. The order of the Certifying
Officer is subject to an appeal to the prescribed
appellate authority. The Standing orders as finally
certified are required to be entered in a Register
maintained by the Certifying officer. The employer
is required to prominently post the Certified
Standing orders on special boards in. maintained
for that purpose. This is the broad scheme of the
Act. The Act also provides for exemptions. About
that, later. The Act, as originally enacted,
precluded the Certifying officer from adjudicating
upon the fairness or reasonableness of the draft
Standing orders submitted by the employer but an
amendment introduced in 1956 now casts a duty
upon the Certifying officer to adjudicate upon the
fairness or reasonableness of the Draft Standing
orders. The Scheme of the Act has been sufficiently
explained by this Court in Associated Cement t Co.
LTD. v. f. D. Vyas(l), Rohtak Hissar District
Electricity Supply Co. Ltd'. v. State of U.P. &
Ors.(2), and Western dia Match Co. Ltd. v.
Workmen. The Industrial Employment (Standing
orders) Act is thus seen he an Act specially
designed to define the terms of employment of
workman in industrial establishments, to give the
workmen a collective voice in defining the terms of
employment and to subject the terms of
employment to the scrutiny of quasi-judicial
authorities by the application of the test of fairness
and reasonableness. It is an Act giving recognition
and form to hard-won and precious rights of
workman. We have no hesitation in saying that it is
a Special Act expressly and exclusively dealing with
the schedule-enumerated conditions of service of
workmen in industrial establishments."
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6.15. Relying on the above, he submits that CSO are
specifically designed to define the terms of
'employment' and to give collective voice to the
workmen and as such, the CSOs have to be given
due importance and preference.
6.16. He relies upon the decision of the Hon'ble Apex
Court in the case of D.K.YADAV VS.
J.M.A.INDUSTRIES LTD. reported in (1993) 3
SCC 259 more particularly, paragraphs 7 and 9
thereof which are reproduced hereunder for easy
reference:-
"7. The principle question is whether the impugned
action is violative of principles of natural justice. In
A.K. Kriapak and Ors. v. Union of India & Ors.,
[1969] 2 SCC 262 a Constitution bench of this
court held that the distinction between quasi
judicial and administrative order has gradually
become thin. Now it is totally clipsed and
obliterated. The aim of the rule of the natural
justice is to secure justice or to put it negatively to
prevent miscarriage of justice. These rules operate
in the area not covered by law validly made or
expressly excluded as held in Col. J.N. Sinha v.
Union of India & Anr. [1971] 1 SCR 791. It is
settled law that certified standing orders have
statutory force which do not expressly exclude the
application of the principles of natural justice.
Conversely the Act made exceptions for the
application of principles of natural justice necessary
implication from specific provisions in the Act like
Ss.25F; 25FF; 25FFF; etc, the need for temporary
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hands to cope with sudden and temporary spurt of
work demands appointment temporarily to a
service of such temporary workmen to meet such
exigencies and as soon as the work or service are
completed, the need to dispense with the services
may arise. In that situation, on compliance of the
provisions of s. 25F resort could be had to retrench
the employees in conformity therewith particular
statute or statutory rules or orders having statutory
flavour may also exclude the application of the
principles of natural justice expressly or by
necessary implication. In other respects the
principles of natural justice would apply unless the
employer should justify its exclusion on given
special and exceptional exigencies.
9. It is a fundamental rule of law that no decision
must be taken which will affect the right of any
person without first being informed of the case and
be given him/ her an opportunity of putting forward
his/her case. An order involving civil consequences
must be made consistently with the rules of natural
justice. In Mohinder Singh Gill & Anr. v. The Chief
Election Commissioner & Ors. [1978] 2 SCR 272 at
308F the Constitution Bench held that 'civil
consequence' covers infraction of not merely
property or personal right but of civil liberties,
material deprivations and non- pecuniary damages.
In its comprehensive connotion every thing that
affects a citizen in his civil life inflicts a civil
consequence. Black's Law Dictionary, 4th Edition,
page 1487 defined civil rights are such as belong to
every citizen of the state or country they include
rights capable of being enforced or redressed in a
civil action. In State of Orissa v. Dr. (Miss) Binapani
Dei & Ors., this court held that even an
administrative order which involves civil
consequences must be made consistently with the
rules of natural justice. The person concerned must
be informed of the case, the evidence in support
thereof supplied and must be given a fair
opportunity to meet the case before an adverse
decision is taken. Since no such opportunity was
given it was held that superannuation was in
violation of principles of natural justice."
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6.17. Relying on the above decision, he submits that the
IESCO needs to be recognised and implemented to
protect the rights of the workmen. In terms of the
IESCO, the CSO are formulated so as to define with
sufficient precision the conditions of employment of
the workmen.
6.18. Clause 7 of the CSO categorically limits the right of
transfer to inter- departments. The right of the first
petitioner has been defined to be that of working
within Bengaluru and as such, the first respondent-
Company cannot act contrary to the same.
6.19. He relies upon the decision of the Hon'ble Apex
Court in the case of BUCKINGHAM AND
CARNATIC COMPANY LIMITED VS. VENKATIAH
reported in LAWS (SC)-1960- 8-10 more
particularly, paragraph 5 thereof which is
reproduced hereunder for easy reference:-
"5. Mr. Sastri for the appellant contends that the
case of Venkatiah falls squarely within the
provisions of Standing Order 8(ii) and the High
Court was in error in holding that the decision of
the appellant in refusing to condone the absence of
Venkatiah was either unfair or improper, or that it
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contravened the provisions of s. 73 of the Act. Let
us first examine Standing Order No. 8(ii) before
proceeding any further. The said Standing Order
reads thus:
"Absent without Leave: Any employee who
absents himself for eight consecutive working days
without Leave shall be deemed to have left the
Company's service without notice thereby
terminating his contract of service. If he gives an
explanation to the satisfaction of the management,
the absence shall be converted into leave without
pay or dearness allowance.
Any employee leaving the Company's service in this
manner shall have no claim for re- employment in
the Mills.
But if the absence is proved to the satisfaction of
the Management to be one due to sickness, then
such absence shall be converted into medical leave
for such period as the employee is eligible with the
permissible allowances."
This Standing Order is a part of the certified
Standing Orders which had been revised by an
arbitration award between the parties in 1957. The
relevant clause clearly means that if an employee
falls within the mischief of its first part, it follows
that the defaulting employee has terminated his
contract of service. The first provision in clause (ii)
proceeds on the basis that absence for eight
consecutive days without leave will lead to the
inference that the absentee workman intended to
terminate his contract of service. The certified
Standing Orders represent the relevant terms and
conditions of service in a statutory form and they
are binding on the parties at least as much, if not
more, as private contracts embodying similar terms
and conditions of service. It is true that under
common law an inference that an employee has
abandoned or relinquished service is not easily
drawn unless from the length of absence and from
other surrounding circumstances an inference to
that effect can be legitimately drawn and it can be
assumed that the employee intended to abandon
service. Abandonment or relinquishment of service
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is always a question of intention, and normally,
such an intention cannot be attributed to an
employee without adequate evidence in that behalf.
But where parties agree upon the terms &
conditions of service and they are included in
certified Standing Orders, the doctrines of common
law or considerations of equity would not be
relevant. It is then a matter of construing the
relevant term itself. Therefore, the, first part of
Standing Order 8(ii) inevitably leads to the
conclusion that if an employee is absent for eight
consecutive days without leave, he is deemed to
have terminated his contract of service and thus
relinquished or abandoned his employment."
6.20. Relying on the above, he submits that the Standing
Orders having statutory force would override any
similar terms and conditions which may be
contained in any other documents.
6.21. He relies upon the judgment of the Hon'ble Apex
Court in the case of HARJINDER SINGH VS.
PUNJAB STATE WAREHOUSING CORPORATION
reported in 2010 (1) SCR 591 more particularly,
paragraphs 17 and 21 thereof which are reproduced
hereunder for easy reference:-
"17. Before concluding, we consider it necessary
to observe that while exercising jurisdiction under
Articles 226 and/or 227 of the Constitution in
matters like the present one, the High Courts are
duty bound to keep in mind that the Industrial
Disputes Act and other similar legislative
instruments are social welfare legislations and the
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same are required to be interpreted keeping in
view the goals set out in the preamble of the
Constitution and the provisions contained in Part IV
thereof in general and Articles 38, 39(a) to (e), 43
and 43A in particular, which mandate that the
State should secure a social order for the
promotion of welfare of the people, ensure equality
between men and women and equitable distribution
of material resources of the community to sub-
serve the common good and also ensure that the
workers get their dues. More than 41 years ago,
Gajendragadkar, J, opined that "the concept of
social and economic justice is a living concept of
revolutionary import; it gives sustenance to the
rule of law and meaning and significance to the
ideal of welfare State" - State of Mysore v. Workers
of Gold Mines AIR 1958 SC 923.
21. In 70s, 80s and early 90s, the courts
repeatedly negated the doctrine of laissez faire and
the theory of hire and fire. In his treaties:
Democracy, Equality and Freedom, Justice Mathew
wrote:
"The original concept of employment was that of
master and servant. It was therefore held that a
court will not specifically enforce a contract of
employment. The law has adhered to the age-old
rule that an employer may dismiss the employee at
will. Certainly, an employee can never expect to be
completely free to do what he likes to do. He must
face the prospect of discharge for failing or refusing
to do his work in accordance with his employer's
directions. Such control by the employer over the
employee is fundamental to the employment
relationship. But there are innumerable facets of
the employee's life that have little or no relevance
to the employment relationship and over which the
employer should not be allowed to exercise control.
It is no doubt difficult to draw a line between
reasonable demands of an employer and those
which are unreasonable as having no relation to the
employment itself. The rule that an employer can
arbitrarily discharge an employee with or without
regard to the actuating motive is a rule settled
beyond doubt. But the rule became settled at a
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time when the words `master' and `servant' were
taken more literally than they are now and when,
as in early Roman Law, the rights of the servant,
like the rights of any other member of the
household, were not his own, but those of his pater
familias. The overtones of this ancient doctrine are
discernible in the judicial opinion which rationalised
the employer's absolute right to discharge the
employee. Such a philosophy of the employer's
dominion over his employee may have been in tune
with the rustic simplicity of bygone days. But that
philosophy is incompatible with these days of large,
impersonal, corporate employers. The conditions
have now vastly changed and it is difficult to regard
the contract of employment with large scale
industries and government enterprises conducted
by bodies which are created under special statutes
as mere contract of personal service. Where large
number of people are unemployed and it is
extremely difficult to find employment, an
employee who is discharged from service might
have to remain without means of subsistence for a
considerably long time and damages in the shape
of wages for a certain period may not be an
adequate compensation to the employee for non-
employment. In other words, damages would be a
poor substitute for reinstatement. The traditional
rule has survived because of the sustenance it
received from the law of contracts. From the
contractual principle of mutuality of obligation, it
was reasoned that if the employee can quit his job
at will, then so too must the employer have the
right to terminate the relationship for any or no
reason. And there are a number of cases in which
even contracts for permanent employment, i.e. for
indefinite terms, have been held unenforceable on
the ground that they lack mutuality of obligation.
But these case demonstrate that mutuality is a
high-sounding phrase of little use as an analytical
tool and it would seem clear that mutuality of
obligation is not an inexorable requirement and
that lack of mutuality is simply, as many courts
have come to recognize, an imperfect way of
referring to the real obstacle to enforcing any kind
of contractual limitation on the employer's right of
discharge, i.e. lack of consideration. If there is
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anything in contract law which seems likely to
advance the present inquiry, it is the growing
tendency to protect individuals from contracts of
adhesion from over-reaching terms often found in
standard forms of contract used by large
commercial establishments. Judicial disfavour of
contracts of adhesion has been said to reflect the
assumed need to protect the weaker contracting
part against the harshness of the common law and
the abuses of freedom of contract. The same
philosophy seems to provide an appropriate answer
to the argument, which still seems to have some
vitality, that "the servant cannot complain, as he
takes the employment on the terms which are
offered to him."
6.22. Relying on the above, he submits that the 'Doctrine
of Hire and Fire' would not apply in a socialistic
welfare society like our Country and the rights of
the workmen being recognised and contained in the
certified Standing Orders would apply.
6.23. He relies upon the decision of this Court in the case
of PANDAVAPURA SAHAKARA SAKKARE
KHARKHANE LIMITED VS. THE PRESIDING
OFFICER, ADDITIONAL I.T.,BANGALORE
reported in ILR 1996 KAR 2069 more
particularly, paragraphs 15 and 16 thereof which
are reproduced hereunder for easy reference:-
"15. From the above decision, following
principles emerge : (1) The Act is Special
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Legislation dealing with the subject of
conditions of service enumerated in the
schedule to the Act, of workmen in industrial
establishments; (2) Being a Special Act, its
provisions over-ride other law on the subject,
covered by it, even if the industrial
establishment in question is constituted or
governed by such other law. (3) To exclude the
operation of the Act to any extent, in respect of
matters covered by some other rule or
regulation, a specific notification under Section
13-B of the Act has to be issued and the
appropriate Government should have applied
its mind to the question of excluding the
provisions of the Act to the particular industrial
establishment. (4) A publication of a rule or a
regulation in the gazette for a purpose other
than Section 13-B of the Act by itself, cannot
be treated as a Notification for the purpose of
Section 13-B also. These principles flowing out
of the decision of Supreme Court were not
properly appreciated by the Court while
deciding K.V.R. SHETTY's case.
16. The Act envisages finalisation of a standing
order only after hearing the affected parties
like the employer and employee, and only after
the Certifying Officer is satisfied that it is fair
and reasonable. There is also a provision for
appeal to a higher authority against the order
of the, Certifying Officer. A built-in machinery
under the Act looks after the requirement of
regulating the conditions of service of the
workmen in the establishment covered by the
Act."
6.24. Relying on the above, he submits that IESCO being
a special enactment defining the conditions and
services enumerated under the Scheme, none of
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the contents thereof can be excluded or violated by
any authority or employer as above.
6.25. He also relies upon the decision of Hon'ble High
Court of Allahabad in the case of SOMPAL SINGH
VS. ARTIFICIAL LIMBS MFG.CORPN. OF INDIA
reported in LAWS (ALL)-1993-10-39 more
particularly, paragraphs 6 and 8 thereof which are
reproduced hereunder for easy reference:-
"6. I have considered the submissions made
by the Learned Counsel for parties and, in my
opinion, the question for consideration in the
present writ petition is as to whether the
respondent could pass the impugned order
transferring the petitioner from Kanpur to
Calcutta in the absence of any provision in this
regard in the certified Standing Orders
applicable to the workmen of the
establishment. It cannot be denied that the
purpose and object of the Act is to have
uniform Standing Orders providing for the
matters enumerated in the schedule to the Act
and that it was not intended that there should
be different conditions of service for those who
are employed before and those employed after
the Standing Orders came into forces finally,
Once the Standing Orders come into force,
they bind all those presently in the
employment of the concerned establishment as
well as those who are appointed thereafter.
The learned counsel for the respondent placed
before me a copy of the order dated November
30, 1977 passed by the appellate authority in
the appeal filed by the respondent against the
order dated December 24, 1976 passed by the
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WP No. 12765 of 2022
Certifying Officer. Paras 7.1 and 7.2 of the
appellate order which deal with the draft
Standing Order No. 22 relating to the transfer
may be reproduced here for appreciating the
controversy properly:-"7.1 The management
have also appealed against Certified Standing
Order No. 22 relating to "transfer". The
Regional Labour Commissioner (Central),
Kanpur and Certifying Officer has provided that
workmen shall be liable to be transferred, at
the discretion of the management, from one
work, Section or establishment to another
department provided that in doing so, the
management shall keep in view the suitability
of the workmen for the particular work and also
that the pay, grade and seniority of the
workman concerned is protected. He has,
however, disallowed the portion of the draft
Standing Orders proposed by the management
wherein they had also proposed that the
workman shall be liable to be transferred
anywhere within the country, on the ground
that there is no other factory anywhere in the
country, of this establishment excepting at
Kanpur. 7.2 I find that item relating to
"transfer" is also not included in the schedule
to the Industrial Employment (Standing
Orders) Act, 1946. Hence, such an item cannot
be certified. I, therefore, order that the entire
Standing Order No. 22, as certified by the
Regional Labour Commissioner (Central),
Kanpur and Certifying Officer shall stand
deleted and other Standing Orders shall be
renumbered accordingly."
8. Hon'ble the Supreme Court in case of Agra
Electricity Supply Co. Ltd v. Shri Allahdin and
Ors., reported in (1969-II-LLJ- 540) specifically
held that the certified Standing Orders, once
they come into force, shall have uniform
application both to those who were employed
earlier and those who were employed
subsequently. Portion of the aforesaid
judgment of the Hon'ble Supreme Court may
be quoted usefully (p.546):
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WP No. 12765 of 2022
"This decision thus confirms the view taken by
us that the object of the Act is to have uniform
Standing Orders providing for the matters
enumerated in the Schedule to the Act, that it
was not intended that there should be different
conditions of service for those who are
employed before and those employed after the
Standing Orders came into force, and finding
that once the Standing Orders came into force,
they bind all those presently in the
employment of the concerned establishment as
well as those who are appointed thereafter."
In my opinion, in view of the view expressed
by Hon'ble Supreme Court, the condition of
transfer contained in the order of appointment
agreed between the parties before the
Standing Orders came into force cannot
prevail. Hon'ble Supreme Court in the case U.P.
State Electricity Board and another v. Hari
Shankar Jain and Ors. reported in (1978-II-
LLJ-399) specifically held that the Industrial
Employment (Standing Orders) Act is an Act
specifically designed to define the terms of
employment of the workmen in the industrial
establishments to give the workmen collective
voice defining the terms of employment and to
subject the terms of employment to the
scrutiny of the quasi-judicial authority by the
application of test of fairness and
reasonableness. It is an Act giving recognition
and form to the claim and rights of the
workmen. Therefore, it is a special Act specially
and exclusively dealing with the schedule-
enumerated conditions of service of workmen
in the industrial establishments. Since the
establishment has certified Standing Orders
covering the terms and conditions applicable
between the parties, i.e. the workmen and the
respondent employer, They will prevail and the
alleged condition in the order of appointment
cannot be applied. It is also note-worthy that
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the matter of transfer having been specifically
considered and adjudicated by quasi-judicial
authority and disapproved and deleted from
the draft Standing Order, the condition of
transfer cannot be enforced. The orders have
become final and are binding on the
respondent."
6.26. Relying on the above, he submits that the purpose
and purport of CSO are to have a uniform
mechanism or uniform tools applicable to one and
all with knowledge of applicability thereof. As long
as the CSO apply, the employer and workmen have
to act in consonance thereof. If either one of them
are unhappy with it, then they can approach the
concerned Authority under Section 10 of the said
Act of 1946 to seek for modification thereof. Unless
such modification is sought for, it is the Standing
Orders which would continue to apply to the matter
between the parties.
6.27. On the above basis, he submits that the transfer
which is made is contrary to the CSO and as such,
is required to be quashed.
7. Per contra, Sri Sandish J Chouta, learned Senior Counsel
appearing for the respondents would submit that:
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7.1. The first respondent is a Premier Public Sector
Undertaking rendering services to various defence
organisations including Indian Army and Indian
Navy.
7.2. The first petitioner is a highly skilled technical
person who is employed with the first respondent-
Company for the last thirty years.
7.3. The first petitioner was provided training in respect
of certain equipments/systems which are required
to be supplied to Indian Navy and in furtherance
thereof, after the training, the first petitioner was
transferred from Testing/NCS/MIL Com. to NS (S &
SC). The transfer which is made to Kochi Unit was
on account of the first respondent-Company having
entered into a contract with the Government of
India to supply certain sensitive equipment to the
Indian Navy.
7.4. The Indian Navy having a centre in Kochi where the
subject equipment was required to be supplied to,
the first petitioner has been deputed to Kochi Unit
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for a period of two years. There is no transfer per
se which has been effected. The first petitioner has
only been deputed for a fixed period of two years.
After the said period, he would be returning back to
Bengaluru.
7.5. A highly skilled workman like the first petitioner
having been trained particularly on that equipment
by the first respondent-Company to render services
to its customers including the Indian Navy, it would
be required that the services of the first petitioner
be made available at Kochi Unit to cater of the
requirement of Indian Navy to test and also to
ascertain if the equipment supplied is working
properly or not.
7.6. Considering the representation which has been
submitted by the first petitioner on 02.05.2022, he
was not immediately deputed to Kochi Unit. The
first respondent-Company gave the first petitioner
more than a month's time before the deputation to
enable him to sort out his family and domestic
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WP No. 12765 of 2022
issues and the deputation was finally made on
08.06.2022.
7.7. The first respondent-Company has acted in a
humane manner after taking into consideration the
difficulties faced by the first petitioner and as such,
the action of the first respondent-Company cannot
be found fault with.
7.8. Taking advantage of the benevolent attitude of the
first respondent-Company, the first petitioner,
having been able to obtain a period of one month
additionally and thereafter having requested for
some more time, has approached this Court by
suppressing the said facts and secured an order of
stay which speaks of the conduct of the first
petitioner. He, therefore, submits that the first
petitioner is not entitled for any equitable
consideration.
7.9. He relies upon the Gradation Order which was
issued on 13.10.1992 more particularly, Clause 6
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WP No. 12765 of 2022
thereof which is reproduced hereunder for easy
reference:
"6. Your duties will be allocated by the
Management, i.e., you should be prepared to
serve in any position and in any Department of
the company and in any shifts allotted to you
from time to time subject to provision of Factory
Legislation. You will be liable to serve in any part
of India or abroad at the discretion of the
Company and this liability will also include
transfer to any Factory under the Management of
BEL."
7.10. Relying upon the aforesaid Clause, he submits that
the duties of the first petitioner were to be allocated
by the management and that the first petitioner
would be liable to serve in any part of India or
aboard as per the discretion of the first respondent-
Company which would include transfer to a factory
under the management of Bharat Electronic
Limited. He, therefore, submits that the said term
of the Gradation Order has been accepted by the
first petitioner when he was confirmed in service.
After having undergone the training, the first
petitioner cannot object to the same and now
contend that he cannot be transferred.
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WP No. 12765 of 2022
7.11. Since the impugned order is only a deputation and
not being an order of transfer, the same does not
constitute a change in the service conditions
requiring this Court to intercede with the matter.
7.12. He relies upon the decision of Hon'ble Allahabad
High Court in the case of MOTI LAL VS. BHARAT
ELECTRONICS LIMITED (GOVERNMENT OF
INDIA, ENTERPRISE) AND OTHERS in Civil
Misc. Writ Petition No.26948/2001 dated
10.04.2003 more particularly, paragraphs 35, 36,
40, 48, 56, 74 and 75 thereof which are reproduced
hereunder for easy reference:-
"35. It is, thus, evident that the petitioner has got
an alternative remedy, which is equally efficacious.
Therefore, the present writ petition is liable to be
dismissed on the ground of the availability of
alternative remedy to the petitioner. However, as
the present writ petition has already been
entertained by this Court, and the counter-affidavit
has already been filed pursuant to the notices
issued to the respondents, it would not be proper to
dismiss the writ petition on the ground of alternative
remedy. Reference in this regard may be made to
the decision of the Apex Court in L. Hirday Narain v.
Income Tax Officer, Bareilly, AIR 1971 Supreme
Court 33 (Paragraph 12), wherein it has been laid
down that if a writ petition is filed instead of availing
of statutory remedy and the High Court entertains
the writ petition and gives hearing on merits, then
the writ petition cannot, thereafter be rejected on
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WP No. 12765 of 2022
the ground that statutory remedy was not availed
of.
36. Before proceeding further, it would be pertinent
to deal with the submissions made by the learned
Counsel for the parties on the question as to
whether the certified Standing Orders have
statutory force or not.
40. Having considered the submissions made by the
learned Counsel for the parties, I am of the opinion,
that the submission made by Sri K.P. Agarwal,
learned Senior Counsel appearing for the petitioner
cannot be accepted. In view of the observations
made by their Lordships of the Apex Court quoted
above in the Rajasthan State Road Transport
Corporation cases, it is evident that the Certified
Standing Orders do not constitute statutory
provisions themselves, nor do they have statutory
force. It is further, evident that the writ petition for
enforcement of certified Standing Orders would,
therefore, not lie. Hence, the present writ petition is
liable to be dismissed on this ground.
48. In view of the aforesaid provision contained in
the said order dated 12th May, 1990, it is evident
that all the staff of the Internal Audit located at the
Corporate Office, at the various Units and locations
would be functionally and administratively under the
direct control of the General Manager (Audit),
Corporate Office, Bangalore. Hence, when the
petitioner was transferred to the Internal Audit
Department by the transfer letter dated 7.5.1992
(Annexure CA-3 to the counter-affidavit), the
petitioner came under the direct control of the
General Manager (Audit), Corporate Office,
Bangalore functionally as well as administratively.
The petitioner has remained under the direct control
of the General Manager (Audit), Corporate Office,
Bangalore functionally as well as administratively
even during the posting/attachment of the petitioner
at the Ghaziabad Unit of the respondent-Company.
However, in my opinion, even though, the petitioner
has remained under the direct control of the General
Manager (Audit), Corporate Office, Bangalore
functionally as well as administratively during the
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WP No. 12765 of 2022
posting/attaching of the petitioner at the Ghaziabad
Unit of the respondent-Company, it does not mean
that the Standing Orders applicable to the Corporate
Office at Bangalore would remain applicable to the
petitioner even during his posting/attachment at the
Ghaziabad Unit. Once, the petitioner was
posted/attached to the Ghaziabad Unit, the
Standing Orders applicable to the Ghaziabad Unit
would be applicable to the petitioner also, and the
petitioner would be governed by the said Standing
Orders during his posting/ attachment at the
Ghaziabad Unit. Therefore, in my opinion, merely
because the petitioner remained under the direct
control of the General Manager (Audit), Corporate
Office, Bangalore functionally as well as
administratively even during the posting/attachment
of the petitioner at the Ghaziabad Unit of the
respondent-Company, it would not mean that the
Standing Orders applicable to the Ghaziabad Unit
would not be applicable to the case of the petitioner.
The Standing Orders of the Corporate Office,
Bangalore would, in my opinion, not apply to the
petitioner during his posting/attachment at the
Ghaziabad Unit.
56. Hence, instead of prohibiting transfer from one
Unit to another Unit of the respondent-Company,
the Standing Orders applicable to the present case
(Annexure CA-9 to the counter-affidavit), in fact,
permit the transfer of a workman from one Unit of
the respondent-Company to another Unit of the
respondent-Company. Therefore, it was permissible
under the Standing Orders applicable to the present
case, to transfer the petitioner from the Ghaziabad
Unit of the respondent-Company to the Corporate
Office of the respondent-Company at Bangalore.
The said transfer order dated 5.7.2001 transferring
the petitioner from the Ghaziabad Unit of the
respondent-Company to the Corporate Office of the
respondent-Company at Bangalore cannot be said to
be in violation of the Standing Orders applicable to
the petitioner.
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WP No. 12765 of 2022
74. However, as submissions have been made by
the learned Counsel for the parties on the premise
that the Standing Orders annexed as Annexure 5 to
the writ petition are applicable to the present case, I
proceed to deal with the submissions made by the
learned Counsel for the parties in this regard.
75. It is submitted by Sri K.P. Agarwal, learned
Senior Counsel for the petitioner that the said
Standing Orders (Annexure 5 to the writ petition) do
not contain any provision permitting the transfer of
an employee from one Unit of the respondent-
Company to another Unit of the respondent-
Company. It is submitted that under Standing Order
No. 7 of the said Standing Orders (Annexure 5 to
the writ petition), transfer is permissible from one
department to another or from one section to other
or from one job to the other. The said Standing
Order, it is submitted, permits transfer only within
the Unit itself, and not from one Unit to another
Unit."
7.13. Transfer is an incident of service. Though in the
present case, it is not a transfer, but a deputation,
no person can claim exemption from transfer which
is effected by employer on the basis of
requirements of the employer and the employee
would be required to follow the same. In this
regard, he relies upon the decision of the Hon'ble
Madras High Court in the case of
R.KARUNAKARAN VS. THE BHARAT
ELECTRONICS LIMITED AND OTHERS IN
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WP No. 12765 of 2022
W.P.Nos.240, 241 of 2017 and CMP
No.3912/2017 dated 23.08.2017 more
particularly, paragraph 21 thereof which is
reproduced hereunder for easy reference:
"21.As pointed out in the impugned judgment ,
the appellant has given representation to be posted
in the original place after being relieved and
transfered to new place. On 03.07.2015 when
interim order was passed, he had already been
relieved. The joining time upto one month or further
extension of one month in normal course does not
mean that order of relief also gets postponed. In the
representation dated 29.03.2016 which is the cause
of action for the second writ petition, the appellant
has not offered to join the new place, but has
reiterated his request to join duty in the old place
(Chennai Unit) from where he was relieved as early
as 23.06.2015. Had he offered to join the
transferred place (Navi Mumbai) and if the
respondents had refused to acceed his request,
then, he has every right to claim wages and other
benefits on the ground he was declined to join duty.
Having consciously remained absent from reporting
duty at the new place, taking advantage of the
interim stay order which has later got vacated and
merged with the order of dismissal of the main writ
petition, the principle 'no work no pay' alone will
operate the field. Therefore, this Court does not find
any infirmity in the common order passed by the
learned single judge. Accordingly, the common
order passed by the learned Single Judge is
confirmed."
7.14. He relies upon the decision of the Hon'ble Apex
Court in the case of SK NAUSAD RAHAMAN AND
OTHERS VS. UNION OF INDIA AND OTHERS
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WP No. 12765 of 2022
reported in AIR 2022 SCC 1494 more particularly,
paragraphs 42 and 51 thereof which are reproduced
hereunder for easy reference:
"42. For the above reasons, we have arrived at
the conclusion that the High Court was justified in
coming to the conclusion that:
(i) RR 2002 contained a specific provision for ICTs;
(ii) There is an absence of a provision comparable to
Rule 4(ii) of RR 2002 in RR 2016;
(iii) On the contrary, Rule 5 of RR 2016 specifically
stipulates that each CCA shall have its own separate
cadre unless directed by the CBEC;
(iv) Any ICT would violate the unique identity of
each cadre envisaged in Rule 5;
(v) Any ICT order would transgress a field which is
occupied by the rules which have been framed in
terms of the proviso to Article 309 of the
Constitution;
(vi) The circular dated 20 September 2018 makes it
absolutely clear that RR 2016 do not have any
provision for recruitment by absorption and no ICT
application could be considered after the coming
into force of RR 2016;
(vii) Transfer is a condition of service and it is within
the powers of the employer to take a policy decision
either to grant or not to grant ICTs to employees;
and PART D
(viii) The power of judicial review cannot be
exercised to interfere with a policy decision of that
nature.
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51. The State in the present case has been guided
by two objectives: first, the potential for abuse of
ICTs and second, the distortion which is caused in
service leading to plethora of litigation. The State
while formulating a policy for its own employees has
to give due consideration to the importance of
protecting family life as an element of the dignity of
the person and a postulate of privacy. How a
particular policy should be modulated to take into
account the necessities of maintaining family life
may be left at the threshold to be determined by
the State. In crafting its policy however the State
cannot be heard to say that it will be oblivious to
basic constitutional values, including the
preservation of family life which is an incident of
Article 21."
7.15. Transfer is a condition of service and that it is
within the power of employer to take a policy
decision either to grant or not to grant ICTs to the
employees.
7.16. He relies upon the decision of the Hon'ble Apex
Court in the case of PUNJAB AND SIND BANK
AND OTHERS VS. DURGESH KUWAR reported in
(2020) 19 SCC 46 more particularly, paragraph
17 thereof which is reproduced hereunder for easy
reference:-
"17. We must begin our analysis of the rival
submissions by adverting to the settled principle
that transfer is an exigency of service. An employee
cannot have a choice of postings. Administrative
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circulars and guidelines are indicators of the manner
in which the transfer policy has to be implemented.
However, an administrative circular may not in itself
confer a vested right which can be enforceable by a
writ of mandamus. Unless an order of transfer is
established to be malafide or contrary to a statutory
provision or has been issued by an authority not
competent to order transfer, the Court in exercise of
judicial review would not be inclined to interfere.
These principles emerge from the judgments which
have been relied upon by the appellants in support
of their submissions and to which we have already
made a reference above. There can be no dispute
about the position in law."
7.17. The representation which has been submitted by
the first petitioner deals with two issues. First, as
regards the immediate domestic problems that the
first petitioner had and the second being a request
for posting to a particular department. As regards
the first issue, the same was taken into
consideration and deputation was kept pending for
one month. As regards the second aspect, he
submits that an employee would not have any right
to seek posting to a particular place and there is no
choice of posting which would be conferred on an
employee.
7.18. In this regard, he also relies upon the decision of
Hon'ble Apex Court in the case of NAMRATA
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VERMA VS. THE STATE OF UTTAR PRADESH
AND OTHERS in SLP No.36717/2017 dated
06.09.202. The said order is reproduced hereunder
for easy reference:
"Heard Mr. Parvez Bashista, learned counsel
appearing for the petitioner and Mr. Sanjay Kumar
Tyagi, learned counsel appearing for the
respondent-State of U.P.
It is not for the employee to insist to transfer
him/her and/or not to transfer him/her at a
particular place. It is for the employer to transfer an
employee considering the requirement.
The Special Leave Petition is dismissed. Pending
applications stand disposed of."
7.19. He relies upon the decision of the Hon'ble Apex
Court in the case of RAJENDRA SINGH AND
OTHERS VS. STATE OF UTTAR PRADESH AND
OTHERS reported in (2009) 15 SCC 178 more
particularly, paragraphs 8 and 9 thereof which are
reproduced hereunder for easy reference:-
"8. A Government Servant has no vested right to
remain posted at a place of his choice nor can he
insist that he must be posted at one place or the
other. He is liable to be transferred in the
administrative exigencies from one place to the
other. Transfer of an employee is not only an
incident inherent in the terms of appointment but
also implicit as an essential condition of service in
the absence of any specific indication to the
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contrary. No Government can function if the
Government Servant insists that once appointed or
posted in a particular place or position, he should
continue in such place or position as long as he
desires [see State of U.P. v. Gobardhan Lal; (2004)
11 SCC 402].
9. The courts are always reluctant in interfering
with the transfer of an employee unless such
transfer is vitiated by violation of some statutory
provisions or suffers from malafides.
In the case of Shilpi Bose (Mrs.) & Ors. v. State
of Bihar & Ors.1, this Court held :
"4. In our opinion, the courts should not interfere
with a transfer order which is made in public
interest and for administrative reasons unless the
transfer orders are made in violation of any
mandatory statutory rule or on the ground of mala
fide. A government servant holding a transferable
post has no vested right to remain posted at one
place or the other, he is liable to be transferred
from one place to the other. Transfer orders issued
by the competent authority do not violate any of his
legal rights. Even if a transfer order is passed in
violation of executive instructions or orders, the
courts ordinarily should not interfere with the order
instead affected party should approach the higher
authorities in the department. If the courts continue
to interfere with day-to- day transfer orders issued
by the government and its subordinate authorities,
there will be complete chaos in the administration
which would not be conducive to public interest. The
High Court overlooked these aspects in interfering
with the transfer orders."
7.20. He relies upon the decision of the Hon'ble Apex
Court in the case of STATE OF U.P. AND OTHERS
VS. GOBARDHAN LAL reported in (2004) 11 SCC
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WP No. 12765 of 2022
402 more particularly, paragraph 8 thereof which is
reproduced hereunder for easy reference:-
"8. 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 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."
7.21. Relying on all the above orders/judgments, he
submits that the terms and conditions of
employment of the first petitioner being covered by
the Gradation Order, the same should be read in
addition to the CSO and if that is done, the
employer would have a right to transfer the first
petitioner from one place to another. He submits
that the CSO which have been produced by the first
petitioner came into effect way back in the year
1961 and amended in the year 1970. At that point
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of time, the first respondent-Company had one only
unit in Bengaluru and there were no other units
established across the Country. As of now, there
are eight units established across the Country and
as such, it would be required of the employees of
the first respondent-Company to be transferred
from one unit to the other. Apart therefrom, in the
current situation when there are site offices which
are established for the purpose of providing service
to the customers of the employer, an employee
cannot be allowed to contend that he would not go
to another place/unit because there is no transfer
which is provided in the CSO. The same would
adversely affect the business of the employer. On
this basis, he submits that the writ petition is
required to be dismissed.
7.22. He also submits that there is no mala fide in the
deputation inasmuch as, it is after necessary
training and for the benefit of the first respondent-
Company that the first petitioner has been deputed.
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7.23. Insofar as 'protected employee' is concerned, he
submitted that as on the date on which the first
petitioner was deputed to Kochi Unit, he was no
longer an office bearer having lost in the elections.
8. In rejoinder, Sri S.Subba Rao, learned Senior Counsel
appearing for the petitioners, submits that
8.1. The judgments relied upon by the learned counsel
for the respondents more particularly, the decision
of the Hon'ble Allahabad High Court in MOTI LAL'S
case cited supra, the CSO relied upon in that
matter is completely different from the present case
inasmuch as, the Company in that judgment is
defined as 'Bharat Electronics Limited' having its
registered office at Bengaluru and having its units,
factories, regional sales offices and also marketing
centres in India and aboard. Therefore, the said
definition of Company being much wider and having
a larger connotation than the meaning of the
Company in the present CSO, the question of the
first respondent-Company either deputing or
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transferring the first petitioner to Kochi Unit would
not arise.
8.2. The decision of the Hon'ble Allahabad High Court in
MOTI LAL'S case cited supra has considered
Clause 7 of the Standing Orders of that matter
which stands completely on a different footing from
the present matter inasmuch as, Clause 7 of the
Standing Orders of that matter provided for
transfer from one unit to another unit which is not
so provided in the present case.
8.3. In this regard, he relies upon paragraphs 53 and 54
of MOTI LAL'S case which are produced hereunder
for easy reference:
"53. Clause (a) of Standing Order No. 2 of the
said Standing Orders defines the word "Company"
as follows :
"(a) "The Company" means Bharat Electronics
Limited having its registered office at Bangalore
(or any other place in which it may be located in
future) having various constituent Units/Factories,
Regional and Sales Offices Marketing Centres etc.,
in India and abroad including Bharat Electronics
Limit6d, P.O. Bharat Nagar, Ghaziabad."
54. Standing Order No. 7 of the said Standing
Orders provides as follows :
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"7. Transfer.-A workman may be transferred
due to exigencies of work from one job to another,
from one Shop to another, one Department to
another or Unit to another Unit or one office to
another office under the management of Bharat
Electronics Limited, on protection of Basic Pay and
continuity of service provided that on transfer to
another Unit or office he will be entitled to the
benefits available to the other employees of that
Unit in the same category.
Standing Order 2(a) shows that the
respondent-Company has its registered office at
Bangalore and has various constituent
Units/Factories, Regional and Sales
Offices/Marketing Centres etc., in India and
abroad including Bharat Electronics Limited, P.O.
Bharat Nagar, Ghaziabad.
Standing Order No. 7 provides, inter alia, that
a workman may be transferred due to exigencies
of work from one "Unit to another Unit" under the
management of Bharat Electronics Limited."
8.4. As regards the other submissions made relating to
transfer being a condition of service and an
employee not having a right to a particular posting,
he submits that there is no quarrel with the said
submissions except that in the present case,
transfer is not provided in the service conditions
and as such, the decisions relied by the learned
counsel for the respondents are not applicable.
9. Heard Sri.K.Subba Rao, learned Senior counsel for
Sri.L.Muralidhar Peshwa, learned counsel for the
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WP No. 12765 of 2022
petitioners and Sri.Sandesh J.Chouta, learned Senior
counsel along with Sri.Ismail M.Musba, learned counsel
for the respondents. Perused documents.
10. The points that would arise for determination of this
Court are:
1. Whether the appointment order would
override the certified Standing Orders
certified under the Industrial Employment
(Standing Orders) Act, 1946?
2. Whether the order of transfer transferring the
petitioner suffers from legal infirmities
requiring interference of this Court?
3. Are there any malafides in the transfer of the
petitioner to Kochi?
4. What order?
11. I answer the above points as under:
12. ANSWER TO POINT NO.1: Whether the appointment
order would override the certified Standing Orders
certified under the Industrial Employment
(Standing Orders) Act, 1946?
12.1. The object of the IESCO is reproduced hereunder
for easy reference:
"An Act to require employers in industrial
establishments formally to define conditions
of employment under them.
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Whereas it is expedient to require employers in
industrial establishments to define with sufficient
precision the conditions of employment under
them and to make the said conditions known to
workmen employed by them".
12.2. I have in W.P. No.58467/2013 (M/S. Stumpp
Schuele & Somappa Pvt Ltd VS.
Sri.Basavaraja.M) held that CSO would apply to
an industrial establishment and not to the employer
per se I have further held that there could be
different CSOs for different industrial
establishments. Thus any CSO which is notified
would apply only to the industrial establishment as
regards which the employer, the workmen
representative of the Union of workmen were to
agree to for application. In the present case, the
CSO relates to the company viz., Bharat Electronics
Limited, Bangalore [BEL].
12.3. The contention of Sri.K.Subba Rao, learned Senior
counsel for the petitioner is that since the company
is defined to be the Bharat Electronics Limited,
Bangalore, the CSO would apply only to Bangalore
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WP No. 12765 of 2022
and does not apply to any other units of the
respondent. CSO-7 which has been produced
hereinabove only provides for transfers between
the departments and therefore, the petitioner could
not have been transferred from Bangalore to Kochi.
In this regard, he has relied upon several decisions
which have been referred to and the relevant
paragraphs extracted hereinabove viz., the
decisions in Dr.Subhash Chandra Yadav, Hari
Shankar Jain, D.K.Yadav's cases.
12.4. A perusal of CSO-7 indicates that depending on the
exigencies of the work, workman can be transferred
from one department to the other or from one
section to another or from one job to the other. In
my considered opinion, there is no particular
restriction in terms of CSO-7 restricting Bharat
Electronics Limited from transferring a workman
from one place to the other. It is only if such a
restriction was explicitly stated in CSO-7, then
would arise a need to consider if there is a conflict
between CSO-7 and the appointment letter. There
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being no restriction or embargo under CSO-7, such
an embargo cannot be read in to that CSO on the
ground that the employer is defined to be Bharat
Electronics Limited, Bangalore.
12.5. The definition of a company under CSO-2 would
only relate to the name of the Company and
nothing else. The said definition does not define an
industrial establishment to be that in Bangalore. It
is the definition of a Company which is situate in
Bangalore, admittedly the registered office of the
respondent is situate in Bangalore.
12.6. The petitioner was appointed as a Trainee Highly
Skilled Mechanic Trainee (Radio) on 2.09.1991. A
perusal of clause (3) thereof, indicates that the
petitioner would undergo training for a period of
one year in CTD or in any other place as decided by
the company. Thus, it is clear that the training also
could be at any place and not restricted to
Bangalore. Upon the completion of the training
period, it was agreed that the petitioner would be
subjected to final gradation. Upon failure, the
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petitioner would be discharged, if successful, the
petitioner would be confirmed and absorbed. The
said appointment letter of a trainee dated
2.09.1991 does not in any manner restrict transfer
of the petitioner nor does it categorically state that
the petitioner would be based only in Bangalore.
12.7. Upon competition of training and completion of the
gradation test, a gradation order came to be issued
on 13.10.1992. In terms of clause (7) thereof, it
was made clear that the petitioner would have to
serve in any position, in any department of the
company and in any shifts allotted to the petitioner
from time to me. The said clause (7) is reproduced
hereunder for easy reference:
7. Transfers between Department:
Depending on the exigencies of work, workmen
may be transferred from one department to the
other or from one section to the other or from on
job to the other, provided that their emoluments
and service conditions are not affected.
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12.8. There is no dispute as regards the gradation order
being issued and or the contents of clause (7)
extracted above. In view of the above, it is clear
that in terms of gradation order, the petitioner
would be required to serve in any part of India or
abroad at the discretion of the company.
12.9. The petitioner has also produced the inter-unit
transfer rules and benefits issued by the
respondent on 11.04.2008 at Annexure-Q. A
reading of the same would indicate that various
provisions have been made under the said Rules
relating to HRA, City Compensatory Allowance,
retention of residential telephone and company
accommodation at previous station, transit
accommodation, medical benefits, reimbursement
of cost of travel, eligibility of daily allowance, T.A.,
D.A, transfer grant, disturbance allowance,
transportation of personal assets, reimbursement of
hostel expenses when children are studying in the
previous station, reimbursement of school/college
fee when children are staying and studying with
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friends/relatives, etc., etc., The fact that said unit
transfer rules have been prepared for the
respondent having its corporate office at Outer Ring
Road, Nagawara, Bangalore and the same has been
produced by the petitioner would indicate that
transfer of a personnel/executive is contemplated
as per the service rules. In that view of the matter,
the reference to the CSO by Sri.K.Subba Rao,
learned Senior counsel to contend that there is no
transfer contemplated would not be of much avail.
12.10. As held above, the CSO not specifically barring
transfer, the gradation order providing for transfer,
so also the inter-unit transfer rules providing for
transfer, I am of the considered opinion that there
is per se no conflict between the CSO and gradation
order. The gradation order and inter-unit transfer
rules and benefits for executives would apply to the
present case.
12.11. The decision in Western India Match Co. Ltd.'s
case (supra) relating to CSO was one where the
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WP No. 12765 of 2022
special agreement was in contravention of the
Standing Order imposing an obligation more than
that contained in the CSO. It is in that background
that the Hon'ble Apex Court held that the CSO
would be binding on the company and the workmen
and the special agreement cannot be enforced. The
said decision, in my considered opinion would not
be applicable to the present fact situation when
there is no embargo in the CSO and the same has
been further explained in the Inter Unit Transfer
Rules.
12.12. The decision in Dr.Subhash Chandra Yadav's
case (supra) related to rules framed under an
enactment being required to be changed by
following necessary procedure is not applicable to
the present case. As held above, the CSO not
imposing an embargo for transfer, it is only in the
event of an embargo to be lifted would necessary
procedure under Section 10 of IESCO be required to
be followed.
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12.13. The decision in Black Glass Laboratory's case has
been pressed into service to contend that the CSO
has a statutory flavour. Similar is the decision in
Sudeep Sarkar's case. The decision in
Harishankar Jain's case requiring the certifying
officer to adjudicate on fairness and reasonableness
of the CSO, as also the decision in Harjinder
Singh's case and Pandavapura Sahakara
Sakkare Karkhane's case, have no relevance to
the present matter for the reason that in the
present matter there is no adjudication being made
as regards the validity or otherwise of a CSO nor is
a proceeding in furtherance of application under
Section 10 of IESCO in question.
12.14. Thus, I answer Point No.1 by holding that
there is no conflict between the CSO of the
respondent and the gradation order issued by
the respondent. The gradation order
permitting and recognizing the authority of
the employer to transfer the workman, the
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WP No. 12765 of 2022
exercise of such power by respondent is
proper and correct.
13. ANSWER TO POINT No.2: Whether the order of
transfer transferring the petitioner suffers from
legal infirmities requiring interference of this
Court?
13.1. The petitioner was initially on 23.04.2022
transferred from Testing/NCS/MIL Com. to
NS(S&SC) SBU in the existing wage group pay and
pay scale with immediate effect. It is thereafter
that the petitioner vide its letter dated 2.05.2022
had indicated that his daughter was suffering from
severe depression and anxiety disorder due to
COVID 19 pandemic, his wife was suffering from
imbalance in uric acid, his mother-in-law is very old
has chronic ailment like diabetes, high BP, his
mother is suffering from knee pain and he has to
take care of his younger and elder brother. He
himself is suffering from diabetes for last ten years,
he is suffering from stones in his kidneys and as
such, he had prayed to post him in a department
NS-1-SBU(BG) CS.
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13.2. The said letter issued by the petitioner dated
2.05.2022 at Annexure-J to the petition does not in
any manner refer to CSO or an embargo for such
transfer. The petitioner who is aged about 53 years
has given a list of problems which are being faced
by him on which basis he has asked for transfer to
a unit in Bangalore complex. It is considering the
same that the transfer was not immediately given
effect to. Subsequently, the respondent vide
transfer order dated 8.06.2022 posted the
petitioner to TS-CS, Kochi project site for a period
of two years in his existing wage group and pay
scale. Thereafter the petitioner vide his letter
dated 11.06.2022 by referring to his earlier
representation dated 2.05.2022 stated that he was
not in a position to immediately report at project
site since his daughter was appearing for CET
examination to be held on 16.06.2022 and
17.06.2022 as also she was required to attend
COMED-K examination on 19.06.2022. He had
once again requested the respondent to permit him
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to continue in Bangalore complex of Bharat
Electronics Limited, Bangalore. It is thereafter that
the above petition came to be filed on 23.06.2022.
13.3. Admittedly, the petitioner has been given training
in the equipment which was required to be supplied
to the Indian Navy. Admittedly, the supply and
installation of that equipment by respondent is at
Kochi. The various communication system for
installation on board Indian Naval ships is being
supplied from NS(S&CS)SBU of the respondent at
Bangalore which is being installed in all naval ships
and platforms.
13.4. Signal School has been established in Kochi which
is stated to be strategically important training
establishment of Indian Navy where all naval
personnel are trained. The Advance Composite
Communication SYSTEM (ACCS) was supplied by
the respondent at Kochi in February 2021 and is
being maintained by the respondent at Kochi in the
premises of the Indian Navy, as regards which site
office has been established at Kochi in the premises
of the Navy.
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WP No. 12765 of 2022
13.5. Petitioner who possesses Diploma in
Telecommunication engineering has experience of
30 years in testing various communication systems
including ACCS and he is qualified to maintain the
ACCS System he having been trained from
2.05.2022 to 7.07.2022 for the same. It is in order
to cater to the said needs of the Indian Navy that
the respondent is stated to have transferred the
petitioner for a short duration of two years to Kochi
and it is submitted that after the competition of the
said two years, the petitioner would continue to
work in Bangalore.
13.6. The petitioner having worked for over 30 years in
the respondent-company and having derived all the
benefits therefrom, I am of the considered opinion
that when a installation of the equipment of the
respondent is made at Kochi, it is for the petitioner
who possesses the suitable qualification and trained
in the matter, to have agreed to go to Kochi,
instead of doing so, the petitioner has sought to
contend that there is a prohibition of transfer of any
employee of the respondent from Bangalore to any
other place. If such a contention of petitioner were
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to be accepted, then the respondent would never
be able to supply any equipment outside of
Bangalore, as also to service and maintain them. If
that be so, not only would the respondent lose out
on the business, but Indian Navy would also lose
out on the equipment that it needs. This being so,
since no employee of the respondent could be
deputed or transferred to the site office for purpose
of installation and maintenance of the equipment
supplies.
13.7. The various ailments, etc. that the petitioner has
referred to are common ailments faced by one and
all. Diabetes and Hyper tension are not diseases
which would prevent the petitioner from rendering
service in Kochi and or going to Kochi. Other
ailments faced by the family members viz., his wife
and daughter, as also his brother are also general
ailments which affects most of the people. Those
ailments cannot be a reason for refusing to adhere
to the transfer order and render services to the
employer at Kochi. If the same were to be
accepted, doubt also arises as to whether the
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WP No. 12765 of 2022
petitioner is discharging his duties in Bangalore or
not.
13.8. The decision of Allahabad High Court in Motilal's
case (supra) also relates to a unit of respondent,
though the CSO relating to transfer is worded
differently than the present CSO inasmuch as the
CSO in that matter is an enabling provision where
transfer is enabled and detailed would have no
different bearing in the present matter since as
held above, there is no embargo in the CSO of the
respondent. Thus the interpretation given to the
Standing Order by the Allahabad High Court, in my
considered opinion would be equally applicable to
the present CSO of the respondent.
13.9. In view of the above, I am of the considered
opinion that the order of transfer transferring
the petitioner does not suffer from any legal
infirmities and does not require any
interference.
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14. ANSWER TO POINT NO.3: Are there any malafides
in the transfer of the petitioner to Kochi?
14.1. As referred to supra, the petitioner is a technically
qualified person who has been trained to maintain
the equipment which is supplied to the Indian
Navy. The transfer is for a limited period of two
years. The contention urged is that since the
petitioner was an elected officer of the Union, he is
being targeted. Admittedly, the petitioner has lost
his elections and is no longer an office bearer of the
Union. When the petitioner is not an office bearer
he can neither be a protected employee nor could
he claim that he was targeted since no particular
document or evidence has been placed on record to
indicate any animosity and/or any issue which
would prompt the respondent to transfer the
petitioner to Kochi as a punishment. This is again
premised on the contention that the transfer to
Kochi is a punishment which is also not the
allegation made.
14.2. Thus, I am of the considered opinion that no
malafides in the transfer having been
established, the transfer cannot be said to be
malafide.
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15. ANSWER TO POINT NO.4: What Order?
15.1. In view of my answer to the above points, transfer
being an incidence of service as held by the Hon'ble
Apex Court in Durgesh Kuwar, Rajendra Singh
and Gobardhan Lal's case, it is required for the
petitioner to report to the place where he has been
transferred and render necessary service, hence I
pass the following
ORDER
i. Petition is dismissed.
ii. Petitioner is directed to report to his post at
Kochi within two weeks from today.
iii. No order as to costs.
Sd/-
JUDGE
KPS/ln
