Madhya Pradesh High Court
Ashutosh vs Rajasthan Patrika Private ... on 10 March, 2021
Author: Sujoy Paul
-1-
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Writ Appeal No.1298/2020
Ashutosh & Others v/s Rajastha Patrika Private Limited & Others
Indore, dated 10.03.2021
Shri Umesh Gajakush, learned counsel for the appellants.
Shri Amol Shrivastava, learned Government Advocate for
the respondent / State.
Heard on the point of admission.
ORDER
This intra-court appeal assails the transfer order dated
02.11.2020 passed in Writ Petition No.686/2020, whereby the writ
petition filed by the petitioner is allowed and the award passed by
Labour Court dated 09.11.2016 was set aside by the Courts below.
02. Briefly stated, the case of the appellants is that they were
transferred to different places from Indore. Since the appellants
preferred applications for grant of financial benefits arising out of
recommendations of 'Majethia Wage Board' the employer was
disturbed and annoyed with the demand of appellants. In order to
deprive the appellants from the fruits of Wage Board benefits, they
were subjected to transfer. Thus, the said exercise of employer was
not arising out of any 'Administrative Exigency' and amounted to
'Unfair Labour Practice' as per Entry No.7 of Schedule V of
Industrial Disputes Act, 1947.
03. Learned counsel for the appellants by taking this Court to
the affidavit filed by the appellants under Order 18 Rule 4 of CPC
submits that the appellants discharge their burden to show that the
transfer order was not arising out of any administrative exigency
and therefore, onus was shifted on the shoulders of employer. The
employer did not produce any transfer policy and did not disclose
as to how many posts were lying vacant in the Department and
therefore in para 33 of the award, the Labour Court has rightly
opined that the transfer order amounts to malafide transfer order
and falls within the ambit of 'Unfair Labour Practice'. Learned
counsel for the appellants has taken pains to assail the impugned
order dated 02.11.2020 by contending that (i) the Labour Court was
best suited to give finding of fact regarding 'Unfair Labour Practice'
adopted by the Employer and such finding could not have been
disturbed by the learned Writ Court (ii) the transfer policy was not
placed on record by the Employer (iii) the agreement dated
25.09.2012 mentioned in page-3 of the impugned order was filed
for the first time before the learned Writ Court. Since the employer
failed to establish that the transfer order was passed in
administrative exigency and further miserably failed to discharge
the onus to establish that the transfer order does not falls within the
ambit of 'Unfair Labour Practice' and (iv) the standing orders were
also not placed on record along with Ex.P/19 and Ex.P/20.
04. No other point is pressed.
05. We have heard the learned counsel for the appellants at
length and perused the record.
06. The learned Single Judge has specifically taken into
account the appointment orders issued to the present appellants. In
para 7 of the impugned order, it is opined that appointment order
contains stipulation/condition regarding 'All India Transfer
Liability', thus, the transfer order was a condition/incident of
service for the present appellants. Merely because the appellants
instituted a litigation for getting the benefits of 'Majethia Wage
Board', it cannot be said that the impugned transfer orders were
issued by the employer to deprive them from said benefits.
07. It is trite that the transfer order can be interfered if it is
issued by incompetent authority, passed contrary to any statutory
provision (Not policy guidelines), proved to be malafide, changes
service conditions of an employee to his detriment etc. Personal
inconvenience etc. cannot be a ground for interference.
08. Even assuming that the agreement dated 25.09.2012, the
standing orders and transfer policy were not produced before the
Labour Court, the appointment orders of appellants were very
much produced which are pregnant with a condition/stipulation of
All India Transfer Liability. Thus, non-production of those
documents are of no significance in the present matter.
09. The labour Court on the basis of affidavits of appellants
filed under Order XVIII Rule 4 of the C.P.C. opined that transfer
orders are malafide and amounts to unfair labour practice. Heavy
reliance was placed on these affidavits. In these affidavits,
appellants made a bald statement that since they have filed the
litigation seeking benefit of Wage Board, they have been
transferred to deprive them from the fruits of said Wage Board. The
learned Single Judge gave a specific findings in the impugned order
that even if appellants are transferred, they will not be deprived
from the benefits of Wage Board which has a Pan India Effect. We
do not find any infirmity in this finding of the learned Single Judge.
10. As noticed, making allegations of malafide is not sufficient.
It must be proved with accuracy and precision. We are unable to
hold that merely because appellants were litigating for Wage Board
benefits, their transfer during pendency of such litigation will
automatically become malafide transfers or will amount to unfair
labour practice.
11. The labour Court gave a finding of malafide transfer by
holding that employer has not mentioned as to how many posts are
created, available and lying vacant at transferred place. In our view,
the Writ Court has rightly set aside the award of labour Court
because such a finding was without any legal basis. Transfer is
basically a managerial function. It was not the case of appellants
that they have been transferred to a place where there exists no
vacant post. Hence, question of a vacant post etc. was totally
irrelevant. On this basis, transfer order could not have been termed
as malafide.
12. The learned Single Judge after taking note of relevant
judgments of Supreme Court rightly opined that the labour Court
erred in passing the impugned award. The appellants will not be
deprived from higher wages as per 'Magethia Wage Board' if they
are transferred outside the district / state. We do not find any
infirmity in the order passed by the learned Single Judge which
warrants interference.
The Writ Appeal fails and is hereby dismissed.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Ravi
Digitally signed by Ravi Prakash
Date: 2021.03.15 10:41:24 +05'30'
