Kerala High Court
The New Indian Express Employees ... vs State Of Kerala on 13 September, 2024
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W.P(C) No.3896 of 2022 2024:KER:69871
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WP(C) NO. 3896 OF 2022
PETITIONERS:
1 THE NEW INDIAN EXPRESS EMPLOYEES ASSOCIATION (KERALA),
REG NO.07/06-2009 REPRESENTED BY GENERAL SECRETARY,
NARAYANEEYAM, NEAR STATUE JUNCTION, THRIPUNITHURA,
KOCHI-682 301.
2 REKHA SUDHEER, AGED 48 YEARS,
W/O.SUDHEER, SREEMANDIR, VIII/1095A, R.G.PAI ROAD,
MATTANCHERRY, PIN-682 002, (AFFECTED EMPLOYEE).
BY ADVS.
K.S.MADHUSOODANAN
M.M.VINOD KUMAR
P.K.RAKESH KUMAR
K.S.MIZVER
M.J.KIRANKUMAR
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY,
LABOUR DEPARTMENT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM , PIN-695 001.
2 MANAGING DIRECTOR,
EXPRESS PUBLICATIONS (MADURAI) LTD, EXPRESS GARDENS,
29 2ND MAIN ROAD, AMBATTUR INDUSTRIAL ESTATE,
CHENNAI, PIN-600 058.
3 DEPUTY GENERAL MANAGER,
EXPRESS PUBLICATIONS (MADURAI) LTD, EXPRESS HOUSE,
KALOOR, KOCHI, PIN-682 017
2
W.P(C) No.3896 of 2022 2024:KER:69871
BY ADVS.
P.BENNY THOMAS
D.PREM KAMATH
TOM THOMAS (KAKKUZHIYIL)
ABEL TOM BENNY
JYOTHISH KRISHNA
KURIAN OOMMEN THERAKATH
SRUTHY J. MAMPILLY
JAIKRISHNAN.M.PISHARODI
BY GOVERNMENT PLEADER, SMT. SUNY K.B.
By
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.08.2024,
THE COURT ON 13.09.2024 DELIVERED THE FOLLOWING:
3
W.P(C) No.3896 of 2022 2024:KER:69871
"C.R."
JUDGMENT
The 1st petitioner, a registered trade union, functioning at the
2nd and 3rd respondents' establishment, along with the 2nd petitioner-
affected employee-has filed this writ petition challenging the findings
contained in Ext.P7 award of the Labour Court, Ernakulam.
2. The short facts, arising for consideration in this writ petition,
are as under:
The 2nd petitioner-affected employee-entered the services of
the management pursuant to Ext.P5 appointment order dated
31.10.1996. She was working as a Senior Clerk in the 2nd respondent
establishment, at its office at Kaloor represented by the 3 rd
respondent herein. It is pointed out that the 2nd petitioner
participated in certain lawful union activities which were not tolerable
for the management. Therefore, it is alleged that by Ext.P1 order
dated 20.01.2018, the management victimized the 2nd petitioner by
transferring her from Kaloor Office to Thrissur Bureau office. It is
pointed out that on 23.01.2018, the 2nd petitioner went to Thrissur
office, but the office was found locked and on enquiry, it was made
known to her that the office was not regularly functioning. The
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petitioner points out that this was intimated to the Deputy General
Manager on 23.01.2018 itself and that she proceeded on leave on
medical grounds for 15 days from 22.10.2018 onwards, which leave
is being extended till date-on medical grounds.
3. The Union preferred a claim statement at Ext.P2 contending
that the transfer is illegal, since the same is issued against the Model
Standing Orders in force in the State of Kerala. It was pointed out
that, with reference to Ext.P3 notification dated 23.03.2010, the
clause regarding "transfer" was deleted from the Model Standing
Orders. Ext.P4 was relied upon by the petitioner to point out that the
Deputy Labour Commissioner, Ernakulam, had also effected deletion
of the "transfer clause" in the Certified Standing Orders of the
management dated 29.04.2014. The management filed a written
statement producing the appointment order and contending that
even as per the appointment order, the 2nd petitioner could be
transferred. It was further pointed out that there is no victimisation
or unfair labour practice as alleged by the union.
4. However, the Labour Court, Ernakulam issued Ext.P7 award
dated 23.11.2021, finding that on an analysis of the entire evidence,
the transfer is found to be one in connection with the administration
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of the establishment and not based on any victimisation or pursuant
to any unfair labour practice. It is noticed that the distance between
Kochi and Thrissur is only around 70 kilometres and the allegations
levelled by the 2nd petitioner have not been proved. In the result, the
award at Ext.P7 was issued justifying the transfer of the 2nd petitioner
from Kaloor office to Thrissur branch.
5. It is challenging the order at Ext.P7 that the captioned writ
petition is filed, also pointing out to the judgment of this Court in
O.P.No13150 of 1991 produced as Ext.P8 whereby, it is held by this
Court that "transfer" is not a condition of service enumerated in the
Model Standing Orders. The petitioner has also produced Ext.P9
Government order, dated 16.02.1999 as per which the "transfer"
provisions were introduced in the Standing Orders which have been
subsequently deleted pursuant to Exts.P3 and P4.
6. I have heard Sri.K.S.Madhusoodanan, the learned counsel
appearing for the petitioners and Sri. Benny P. Thomas, the learned
senior counsel appearing for the management.
7. Sri.K.S.Madhusoodanan, the learned counsel for the
petitioners contends that the award at Ext.P7 is issued without taking
note of Exts.P3 and P4 by which "transfer clause" has been deleted
W.P(C) No.3896 of 2022 2024:KER:69871
from the Standing Orders. He points out further that the findings as
regards the transfer in paragraph 15 of the impugned award are also
not correct or legal. Sri. K.S.Madhusoodanan also relies on the
judgments of the Apex Court in Western India Match Company
Ltd. v. Workmen [(1974) 3 SCC 330], Bharat Petroleum
Corporation Ltd. v. Maharashtra General Kamgar Union and
Others [(1999) 1 SCC 626], Bharatiya Kamgar Karmachari
Mahasang v. Jet Airways (M/s.) Ltd. [AIR 2023 SC 3596] and
Somesh Thapliyal and Another v. Vice Chancellor, H.N.B.
Garhwal University and Another [AIR 2021 SC 4158].
8. Per contra, Sri.Benny P. Thomas, the learned senior counsel
for the management would contend that the letter of appointment,
the Standing Orders as well as the settlement between the workmen
were regulated. However, the transfer has taken place since by the
letter of appointment issued in the year 1996, the second petitioner
is liable to be transferred. He points out that in 1999, the transfer
clause was included in the Standing Orders which stood deleted in
2010, adding that even after such deletion, the transfer can be
effected on the basis of the provisions under the appointment order.
He points out further that the 2nd petitioner is even as of now
W.P(C) No.3896 of 2022 2024:KER:69871
continuing on medical leave, and therefore the writ petition is not to
be entertained.
9. I have considered the rival submissions as well as the
connected records.
10. In the impugned order at Ext.P7, the findings are
essentially contained in paragraph 15 of the order. In the said
paragraph, there is a positive finding to the effect that the transfer
order dated 20.01.2018 was in connection with the administration of
the management and not based on any victimisation or unfair labour
practice as alleged by the workman. Though Sri.K.S.Madhusoodanan
has contended that the said finding is not correct, I notice that the
above finding has been entered into on the basis of the evidence
adduced before the Labour Court, Ernakulam. No reasons have been
pointed out, by which, the said findings can be said to be perverse.
The petitioners, apart from contending that the transfer was
pursuant to victimisation, have not produced any sort of evidence
before the Labour Court. In such circumstances, the findings
contained in paragraph 15 with reference to the alleged
victimisation-unfair labour practice, is upheld.
12. The next contention raised by the petitioners in this writ
W.P(C) No.3896 of 2022 2024:KER:69871
petition is to the effect that the transfer effected by the management
after the "transfer clause" was deleted pursuant to Exts.P3 and P4,
is illegal and arbitrary. It is true, by Ext.P3, the Government had
deleted the transfer clause from the Kerala Industrial Employment
(Standing Orders) Rules, 1958. On the basis of Ext.P3, Ext.P4 is also
issued by the Deputy Labour Commissioner, Ernakulam by deleting
Clause No.16 of the Certified Standing Orders as regards the 2 nd
respondent management. Therefore, the question to be considered
is as to whether the transfer can be effected by the management
dehors Exts.P3 and P4. The learned Senior Counsel Sri.Benny
Thomas, on behalf of the management, took me through Ext.P5
appointment order dated 31.10.1996. In Clause 9 of the said
appointment order, it is specifically pointed out that "you are liable
to be transferred to any place in India, in any of our Branch offices,
associate concerns, or publications or allied offices in existence or to
be established hereafter as and when necessary".
13. Therefore, a reading of Clause 9 of the appointment order
at Ext.P5 makes it clear that the 2nd petitioner has also admitted to
the condition in the appointment order to the effect that the
appointment is not a permanent one at a particular place. She was
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informed that she is liable to be transferred to any place in India, to
any of the Branches of the management, as and when necessary.
Therefore, it is for the management to decide as to whether under
the exigencies of service, the workmen is to be transferred to any of
the Branch offices.
14. In this connection, I notice that the petitioner has relied
upon Ext.P8 judgment of this Court in O.P.No.13150 of 1991 dated
11.03.1997. That was a case where the Union approached this Court
seeking for a declaration that the Certified Standing Orders
concerning "transfer" is null and void. This Court in Ext.P8 judgment,
after making reference to the provisions under which the Standing
Orders were issued, came to the following findings:
"14. So I am of the view that relying on item No.11 in the
Schedule to the Act anything cannot be included in the standing
order unless it is a matter prescribed by the State Govt. and
included in the Model Standing Orders. As transfer is not a
condition of service enumerated in the model Standing Orders or
has not been prescribed as an additional item to the Schedule to
the Act, it cannot be included as a condition in the certified
Standing Orders. In the case of the workers under the first
respondent, the standing orders were certified as early as in 1978
and that did include a standing order regarding transfer, obviously
because no one did contest with regard to the legality of inclusion
of the said standing order. But the Certifying Officer had a duty
W.P(C) No.3896 of 2022 2024:KER:69871
cast on him under Sec.4 of the Act to see that the standing orders
were otherwise in conformity with the provisions of the Act and it
was fair and reasonable. Some thing opposed to the Statute
cannot be said to be fair. Therefore, while certifying the standing
order in 1978, this duty cast upon the Certifying Officer under
Sec.4 of the Act was not properly performed.
17. Apart from that, in this case, as I have already found above,
the standing orders certified in 1978 contained a standing order
on transfer which could not have been included in it. Therefore it
is not in conformity with the provisions of the Act. The Certifying
Officer has a special function or duty under Sec.6 of the Act to see
that standing orders are in conformity with the provisions of the
Act and are fair. Something opposed to the statute is not fair.
Apart from exercising power under Sec. 10, he can also modify
the standing orders by reason of the power conferred by Sec.6
deleting that part of the certified Standing Orders which is not in
conformity with the provisions of the Act. So it cannot be said
that, as decided by the Certifying Officer in Ext.P5, an application
for deletion of a clause is not an application for modification or
that he has no jurisdiction to delete any standing order."
Thus, this Court has only found in the afore judgment that the
Standing Orders cannot be issued independent of the power under
which the said orders are issued. It was found that insofar as the
transfer is not an item upon which the Standing Order can govern,
the challenge raised in the writ petition was justified. However, in the
case at hand, it is noticed that even on the face of Exts.P3 and P4,
the right of the management to effect transfer on the basis of the
W.P(C) No.3896 of 2022 2024:KER:69871
letter of appointment is existing. The letter of appointment is issued
in 1996. At that point of time, the Standing Order did not contain
any clause regarding transfer since that is included only in the year
1999 as evidenced by Ext.P4. Even the said inclusion is subsequently
deleted by Ext.P3. However, as already noticed, the letter of
appointment gives an independent power to the management to
carry out a transfer and the said power of the management is not
curtailed in any manner by the Standing Orders relied on by the
petitioners.
15. Coming to the decisions cited on behalf of the petitioners,
the judgment in Western India Match Company Ltd. v.
Workmen [(1974) 3 SCC 330] was rendered in a situation where
there were agreements which were inconsistent with the Standing
Orders. It was found by the Apex Court in paragraph 8 of the said
judgment that an employer cannot enforce two sets of Standing
Orders governing the classification of workmen and it is also not open
to him to enforce simultaneously the Standing Order regulating the
classification of workmen and a special agreement between him and
an individual workman settling his categorisation. However, the case
at hand is not similar to the facts and circumstances considered by
W.P(C) No.3896 of 2022 2024:KER:69871
the Apex Court. Here, the management is seeking for the
enforcement of the power reserved by virtue of the letter of
appointment. The judgment of the Apex Court in Bharat Petroleum
Corporation Ltd. v. Maharashtra General Kamgar Union and
Others [(1999) 1 SCC 626] is cited by the learned counsel for the
petitioners to contend that the Certified Standing Orders constitute
the conditions of service which are binding upon the management
and the employees. However, the Apex Court did not consider the
question as to whether transfer of an employee can be affected on
the basis of the conditions in the letter of appointment while
rendering the above judgment. The judgment of the Apex Court in
Bharatiya Kamgar Karmachari Mahasang v. Jet Airways
(M/s.) Ltd. [AIR 2023 SC 3596] held that the Certified Standing
Orders would not prevail over the private agreement/settlement
between union and employees. The judgment of the Apex Court in
Somesh Thapliyal and Another v. Vice Chancellor, H.N.B.
Garhwal University and Another [AIR 2021 SC 4158] is cited
by Sri.K.S.Madhusoodanan, the learned counsel for the petitioners,
to contend that the employee is perfectly justified in challenging the
conditions in the appointment orders. He relies on paragraphs 42 and
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43 of the judgment, which reads thus:
"42. The submissions of the learned counsel for the respondents that
the appellants have accepted the terms and conditions contained in
the letter of appointment deserves rejection for the reason that it is
not open for a person appointed in public employment to ordinary
choose the terms and conditions of which he is required to serve. It
goes without saying that employer is always in a dominating position
and it is open to the employer to dictate the terms of employment.
The employee who is at the receiving end can hardly complain of
arbitrariness in the terms and conditions of employment. This Court
can take judicial notice of the fact that if an employee takes initiation
in questioning the terms and conditions of employment, that would
cost his/her job itself.
43. The bargaining power is vested with the employer itself and the
employee is left with no option but to accept the conditions dictated
by the authority. If that being the reason, it is open for the employee
to challenge the conditions if it is not being in conformity with the
statutory requirement under the law and he is not estopped from
questioning at a stage where he finds himself aggrieved."
There is no dispute regarding the propositions laid down in the above
judgment. As regards the case at hand, it is noticed that the clause
regarding transfer stood omitted from the Standing Orders. However,
the appointment of the 2nd petitioner is not on the basis of any
condition regarding "transfer" which was there in the Standing Order,
on the date of her appointment. Therefore, the reliance placed by
the learned counsel on the above judgment does not appear to be
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apposite.
16. On the other hand, it is noticed that the Labour Court has
referred to the judgment of the Apex Court in Cipla Ltd. v.
Jayakumar R. and Another [1999(1) SCC 300]. There, in the
letter of appointment, there was a clause by which the employer
company could transfer the employee to any of its establishments.
It was further declared that the Standing Orders of the Company
would be applicable and the said Standing Orders only permitted
intra-establishment transfer mentioning nothing about inter-
establishment transfer. In the above situation, the question arose as
to whether an inter-establishment transfer can be effected.
Considering this question, the Apex Court held as under:
"12. In our opinion, the aforesaid construction does not flow from
the provisions of the Standing Orders when read along with the
letter of appointment and, therefore, the conclusion arrived at by
the High Court was not correct. As has already been noticed the
letter of appointment contains both the terms namely for the
respondent being transferable from Bangalore as well as with
regard to the applicability of the Standing Orders. These clauses,
namely, clauses 3 and 11, have to be read along with the Standing
Orders, the relevant portion of which has been quoted
hereinabove. Reading the three together we do not find that there
is any conflict as has been sought to be canvassed by the learned
counsel for the respondent. Whereas the Standing Orders provide
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for the department wherein a workman may be asked to work
within the establishment itself at Bangalore, clause 3 of the letter
of appointment, on the other hand, gives the right to the appellant
to transfer a workman from the establishment at Bangalore to any
other establishment of the Company in India. Therefore, as long
as the respondent was serving at Bangalore he could be
transferred from one department to another only in accordance
with the provisions of the Standing Orders but the Standing
Orders do not in any way refer to or prohibit the transfer of a
workman from one establishment of the appellant to another.
There is thus no conflict between the said clauses."
The principles laid down in the above judgment would apply to the
facts and circumstances of the case at hand. Insofar as the letter of
appointment issued by the management to the 2nd petitioner
specifically provided for transfer from one office to another, the
transfer effected by the management cannot be found fault with.
On the whole, I do not find any merit in this writ petition.
Resultantly, the writ petition would stand dismissed.
Sd/-
HARISANKAR V. MENON
JUDGE
ln
W.P(C) No.3896 of 2022 2024:KER:69871
APPENDIX OF WP(C) 3896/2022
PETITIONERS' EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF THE TRANSFER ORDER OF THE 2ND
PETITIONER DATED 20.1.2018
EXHIBIT P2 PHOTOCOPY OF THE CLAIM STATEMENT IN I.D
5/2019 DATED 10.6.2019 FILED BY 1ST
PETITIONER-UNION
EXHIBIT P3 PHOTOCOPY OF THE NOTIFICATION BEARING GO(RT)
NO 530/2010/LBR DATED 23.3.2010
EXHIBIT P4 PHOTOCOPY OF THE ORDER BEARING NO D.1670/2013
DATED 29.4.2014 OF DEPUTY LABOUR COMMISSIONER
ERNAKULAM
EXHIBIT P5 PHOTOCOPY OF THE APPOINTMENT ORDER OF 2ND
PETITIONER DATED 31.10.1996
EXHIBIT P6 PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY
MANAGEMENT IN ID 5/2019 DATED 29.10.2019
EXHIBIT P7 PHOTOCOPY OF THE AWARD IN ID 5/2019 DATED
23.11.2021 OF THE LABOUR COURT, ERNAKULAM
EXHIBIT P8 PHOTOCOPY OF THE JUDGMENT IN OP NO 13150/1991
DATED 11.3.1997 OF THIS HON'BLE COURT
EXHIBIT P9 PHOTOCOPY OF THE NOTIFICATION BEARING NO
GO(P) NO 18/99/LBR DATED 16.2.1999
