Karnataka High Court
Shri N Madhubabu vs Bharat Electronics Limited on 29 September, 2022
Bench: Acting Chief Justice, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. ALOK ARADHE
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
WRIT APPEAL NO.975/2022(L-RES)
BETWEEN:
1. SHRI N. MADHUBABU
S/O M. NARAYANA
AGED ABOUT 53 YEARS
WORKING IN: BHARAT
ELECTRONICS LIMITED
JALAHALLI POST
BENGALURU - 560 013
RESIDING AT 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)
HAVING ITS OFFICE AT # 154
SHRI LAKSHMI NIVAS FIRST
FLOOR SHRI JAYAKRISHNA
COMPLEX, DODDA BOMMASANDRA
VIDYARANYAPURA
BENGALURU - 97. ...APPELLANTS
2
(BY SRI K. SUBBA RAO, SR. COUNSEL FOR
SRI L. MURALIDHAR PESHWA, ADV.)
AND:
1. BHARAT ELECTRONICS LIMITED
(A GOVERNMENT OF INDIA
ENTERPRISES) REPRESENTED BY
ITS CHAIRMAN AND MANAGING
DIRECTOR) JALAHALLI POST
BENGALURU - 560 013.
2. MANAGER (HR) CO
BHARAT ELECTRONICS LIMITED
OUTER RING ROAD, NAGAVARA
BENGALURU - 45. ...RESPONDENTS
(BY SRI SANDESH J. CHOUTA, SR. COUNSEL FOR
SRI ISMAIL M. MUSBA, ADV., FOR C/R-1)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE JUDGEMENT DATED 13/09/2022,
PASSED IN WRIT PETITION NO.12765/2022 ON FILE OF
THIS HON'BLE COURT, WHICH HAS UPHELD THE ORDER
OF TRANSFER, DATED 08/06/2022, CAUSED BY THE
SECOND RESPONDENT TO THE FIRST APPELLANT.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, VISHWAJITH SHETTY J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This intra court appeal is filed by the unsuccessful
petitioners assailing the order dated 13.09.2022 passed
by the learned Single Judge of this Court in
W.P.No.12765/2022.
2. We have heard the learned Senior Counsel
appearing for the parties and also perused the material
on record.
3. Facts leading to filing of this appeal briefly
narrated are, appellant no.1 is a workman and also the
office bearer of appellant no.2-Trade Union. Appellant
no.1 was appointed as a Junior Section Officer (Trainee)
of the respondent no.1-Company on 02.09.1991 initially,
for a period of one year. After successfully completing
the training period, he was issued with a Gradation Order
on 13.10.1992 and ever since then, he has been working
with respondent no.1-Company. On 23.04.2022, an
inter-departmental transfer order was issued by appellant
no.1, and thereafter, he had filed a representation on
02.05.2022 requesting not to transfer him. Appellant
no.1 was given a specialized training in ACCS system for
the period from 02.05.2022 to 07.06.2022, and
thereafter, the order dated 08.06.2022 was issued
posting him at Kochi Project Site for a period of two
years. On 11.06.2022, appellant no.1 submitted a
representation citing personal difficulties and his inability
to report at Kochi Project Site, immediately. The said
representation was considered and appellant no.1 was
given time upto 25.06.2022 to report at the Kochi Project
Site. In the meanwhile, appellants filed
W.P.No.12765/2022 and initially, an interim order was
granted in the said writ petition. Subsequently, the
learned Single Judge dismissed the writ petition on
13.09.2022 and directed appellant no.1 to report at Kochi
Project Site within two weeks. Thereafter, an application
was filed before the learned Single Judge seeking
extension of time to report and considering the said
application, the learned Single Judge on 14.09.2022
extended the time upto 01.10.2022 for reporting to duty
at Kochi Project Site. Challenging the order of dismissal
of writ petition dated 13.09.2022 passed by the learned
Single Judge, the appellants/petitioners have preferred
this intra court appeal.
4. Learned Senior Counsel for the appellants
submits that respondent no.1-Company has a Certified
Standing Order (CSO) of its own and the Company as
well as its employees are bound by the same. He submits
that as per the CSO of the respondent no.1-Company,
the workman can be transferred only within the
establishment and not outside. He submits that if any
decision is taken which is inconsistent to the CSO, the
same is required to be overruled. He also submits that
the CSO has a statutory flavour and the same would
prevail over the other statutes. He submits that the
Industrial Employment (Standing Orders) Act, 1946 (for
short, 'the Act of 1946'), is a special enactment which
protects the rights of the workman and the provisions of
the Act of 1946 prevail over other enactments. He also
submits that the transfer order has been passed against
appellant no.1 for the reason that he was the office
bearer of appellant no.2-Union. He submits that though a
representation was given by appellant no.1 citing certain
personal reasons for his inability to report at Kochi
Project Site, the said representation was deliberately not
considered by respondent no.1-Company only with an
intention to victimize appellant no.1. In support of his
arguments, he has relied upon the judgments of the
Hon'ble Supreme Court in the case of WESTERN INDIA
MATCH CO. LTD. VS WORKMEN1, UP STATE ELECTRICITY
BOARD & ORS. VS HARISHANKAR JAIN & ORS. ,
PANDAVAPURA SAHAKARA SAKKARE KHARKHANE LTD.
VS THE PRESIDING OFFICER, BENGALURU , D.K.YADAV
VS JMA INDUSTRIES LTD.4, and M/S.GLAXO
LABORATORIES (I) LTD. VS PRESIDING OFFICER,
LABOUR COURT, MEERUT5.
5. Per contra, learned Senior Counsel appearing for
the respondents submits that appellant no.1 was initially
appointed as a trainee and his appointment was
confirmed only after issuing a Gradation Order on
13.10.1992. He refers to Clause 6 of the said Gradation
Order and submits that the same provides for transfer of
appellant no.1 to any factory under the management of
respondent no.1-Company. He submits that Indian Naval
Personnel are being trained on regular basis at Signal
School, Kochi and Advanced Composite Communication
System (ACCS) is supplied and commissioned at Signal
AIR 1973 SC 2650
AIR 1979 SC 65
ILR 1996 KAR 2069
(1993)3 SCC 259
1983 LAB.I.C. 1909
School, Kochi, and the same is being used during training
Naval officers. Regular maintenance and performance of
this system is critical during the training and it is in this
regard, appellant no.1 was given a specialized training
from April 2022 onwards. He submits that appellant no.1
who sensed that he was likely to be transferred after the
training, had given a representation putting forward his
personal difficulties and considering the same, the time
for reporting was extended by the Company. In the
meanwhile, he has approached this Court in the writ
petition and had obtained an interim order and even after
the dismissal of the writ petition, though he had sought
time before the learned Single Judge for reporting at
Kochi Project Site, he has preferred this writ appeal and
has not reported at Kochi Project Site till date even
though the transfer order is passed in the month of June
2022. He submits that the transfer of a workman is not
covered under the provisions of the Act of 1946. He
further submits that in the Gradation Order itself it was
made clear that appellant no.1 was liable for transfer to
any other factory of respondent no.1-Company and there
is no bar under the CSO for transferring any workman,
and therefore, the learned Single Judge was fully justified
in dismissing the petition. In support of his arguments,
he has relied upon the judgment of the Hon'ble Supreme
Court in the case of CIPLA LTD. VS JAYAKUMAR R. &
ANOTHER .
6. In reply, learned Senior Counsel appearing for
the appellants submits that the decision in Cipla Ltd.'s
case supra is not applicable to the facts of the present
case as there is no condition with regard to transfer in
the appointment order of appellant no.1 herein. He
submits that without amending the CSO, respondent no.1
cannot transfer its workman to any of its outstation unit.
7. Section 2(g) of the Act of 1946 defines 'Standing
Order' and the same reads as under:
"Standing Orders" means rules relating
to matters set out in the Schedule.
8. The matters to be provided in the standing
orders under the Act of 1946 can be found in the
Schedule of the Act of 1946. The transfer of a workman
(1999)1 SCC 300
is not a matter which is provided in the Schedule.
Therefore, it is clear that the transfer of a workman is not
governed by the CSO or by any other provisions of the
Act of 1946. From the perusal of the CSO of respondent
no.1-Company, it is seen that Clause 7 of the same
provides for transfers between the departments. The said
clause reads as under:
"7. 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 job to the other,
provided that their emoluments and service
conditions are not affected."
9. From a reading of the aforesaid clause, it is clear
that there is no bar for transfer of workman from one
unit to another unit of respondent no.1-Company.
10. The Gradation Order issued to appellant no.1
on 13.10.1992 provides for transfer to any factory under
the management of respondent no.1-Company. Clause 6
of the said Gradation Order reads as under:
"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."
11. There is no conflict between the CSO of
respondent no.1 and the Gradation Order issued to
appellant no.1 in the year 1992. Further, undisputedly,
till date, appellant no.1 has not raised any objection with
regard to Clause 6 of the Gradation Order which provides
for his transfer to any factory managed by respondent
no.1-Company. Appellant no.1 has an experience of more
than 30 years in various communication systems
including ACCS and he has been given specialized
training by respondent no.1 in the equipment to be
supplied to Indian Navy and taking the said aspects into
consideration, to meet the exigencies, respondent no.1
has transferred appellant no.1 to its Kochi Project Site for
a period of two years. We therefore do not find any legal
infirmity in the said transfer order passed by respondent
no.1.
12. Since we are of the considered view that the
transfer order passed by respondent no.1 is not
inconsistent to the CSO and since the validity or
otherwise of the CSO or the enforcement of the CSO is
not being adjudicated in this appeal, the judgments
which have been relied upon by the learned Senior
Counsel for the appellants cannot be made applicable to
the facts of this case.
13. In Cipla Ltd.'s case supra, the Hon'ble Supreme
Court has held that if the letter of appointment
empowers the employer/company to transfer the
employee to any of its establishment and if the standing
orders of the company only provides for intra-
establishment transfer and mentions nothing about the
inter-establishment transfer, in such circumstances, the
provision for transfer as contained in the letter of
appointment cannot be held to be in conflict with the
standing orders of the company.
14. In the present case, the Gradation Order issued
to appellant no.1 on 13.10.1992 immediately after he
successfully completed the training period, it provides for
his transfer to any factory under the management of
respondent no.1-Company, whereas the CSO does not
provide for any inter-establishment transfer, and
therefore, the judgment in Cipla Ltd.'s case supra would
be squarely applicable to the facts of the present case.
15. The contention that since appellant no.1 was an
elected office bearer of appellant no.2-Union he was
deliberately targeted, has no legs to stand since the
material on record would go to show that he is not an
office bearer of the Union as on this date and he had lost
in his elections.
16. Further, the representation made by appellant
no.1 was also considered by respondent no.1-Company
and time to report at Kochi Project Site was extended by
the management appreciating the personal difficulties put
forward by appellant no.1 in his representation.
17. The learned Single Judge has appreciated all
the contentions urged on behalf of the appellants thread
bare and has held that there is no conflict between the
CSO of the respondent and the Gradation Order issued to
appellant no.1 which provides for his transfer. The
learned Single Judge has also recorded a finding that the
transfer order of appellant no.1 does not suffer from any
legal infirmity and there are no mala fides in his transfer
order.
18. We find no illegality or irregularity in the said
finding recorded by the learned Single Judge. Under the
circumstances, we decline to entertain this appeal.
Accordingly, the same is dismissed.
SD/-
ACTING CHIEF JUSTICE
SD/-
JUDGE
KK
