Case: National Radio Corporation Vs. Their Workmen

Gajendragadkar, J.1. This appeal by special leave arises out of an industrial dispute between the appellant, the management of National Radio Corporation, and the respondents, its workmen. The dispute which the Chief Commissioner of Delhi referred for adjudication to the industrial tribunal was regard to the transfer of ten employees effected by the appellant; and the tribunal was asked to decide whether the said transfer was the result of victimization as alleged by the Engineering Mazdoor Sangh, and if so, to issue consequential directions.2. The appellant is the owner of National Radio Corporation which carries on the business of manufacturing radio parts in its factory at 2, D.L.F. Industrial Area, Najafgarh Road, New Delhi. This factory is otherwise known as the "Moti Nagar Factory." According to the appellant, in order to cope with its expanding business, it has started another factory at Nangloi, this factory being described as the "Nangloi Factory." The distance between the two factories is about eight miles.3. The appellants factory at Najafgarh Road was started in 1954 and at that time only 34 workmen were employed. Thereafter, the appellant got itself registered in 1957 with the Development Wing of the Ministry of Commerce and Industry and secured an expansion licence. In consequence, the appellant started manufacturing some more component parts. That led to the employment of more workmen. In 1958, another licence was obtained by the appellant and its production covered additional area. According to the appellant, on 30 August, 1960, it submitted further application to the Development Wing of the Ministry of Commerce and Industry for further expansion programmes and got the expansion licence on 16 January, 1961. This necessitated the starting of another factory, and so, the appellant started the factory at Nangloi to meet the requirements of its expanding work. In order to carry out its work at the new factory at Nangloi, the appellant had to transfer some of its employees from the Moti Nagar factory to the new factory. That is how the impugned order of transfer came to be passed. The i appellant, therefore, pleaded that the said orders have been passed bona fide and were not the result of unfair labour practice.The appellant urged that by standing order 7(c)(a) of the certified standing orders, the management had the right to transfer any worker from one of its workshops or factories to another workshop or factory of its own. The said standing order provides that"the management shall have the right to transfer any worker to any of their offices or workshops at any place in the country. However, there should be no adverse change in service conditions."4. Thus, the appellants case was that it had the right to transfer its employees from one factory to another and the said right had been exercised bona fide in the interests of the new factory which it had started at Nangloi.5. The respondents denied both these allegations. It was urged by them that the standing order did not apply to them, because the said standing order had been certified on 30 December, 1960. Since the employees who have been transferred were employed long before the said date, the said standing order cannot affect them; when they joined the appellants service, they did not know that they would be transferred and in fact, there was no occasion for transfer since the appellant then ran only one factory. The respondents also alleged that the transfer was not bona fide but had been effected with a view to victimize them. According to the respondents, the transferred employees were all members of the Engineering Mazdoor Sangh and the appellant did not like the activities of the said sangh. In fact, their case is that a rival union had been started at the instance of the appellant and the principal object of the making the impugned transfers was to punish the employees for being the active workers of the sangh which the appellant did not like.6. At the trial before the tribunal, both the parties led evidence, oral and documentary. The tribunal held that the standing order on which the appellant relied did not justify the orders of transfer in question; in its opinion, the said standing order did not confer any right on the management to transfer the workmen to a new independent factory in a different place that came into existence subsequent to the date of the standing order, and so, such a transfer was invalid. It also held that the impugned transfers were the result of an unfair labour practice and amounted to victimization :"On a consideration of all circumstances, " observed the tribunal, "I am of opinion that the order of transfer was passed against the workmen on account of the hostility of the management towards them, and the sangh, of which they were members, that it is not bona fide, and that it is an act of unfair labour practice, and victimization of the workmen for their union activities."7. On these findings, the tribunal held that the transfers were invalid and unjustified, and directed the retransfer of eight workmen whose case were pressed before it. The cases of the remaining two workmen were given up before the tribunal. The tribunal also ordered the appellant to post back the said eight workmen to the factory at Moti Nagar, Najafgarh Road, and allow them to work in their respective posts as before. It is against this award that the appellant has come to this Court by special leave.8. Mr. Rameshwar Nath for the appellant argued that the principal point on which wanted a decision from this Court was in regard to the power of the appellant to transfer its employees from the Moti Nagar factory to the new factory at Nangloi. He contends that the view taken by the tribunal about the scope and effect of the relevant standing order 7(c)(a) is erroneous. We do not propose to decide this point in the present appeal because, in our opinion, the other finding recorded by the tribunal that the impugned transfers amount to victimization is enough to dispose of the present appeal. We are, therefore, not expressing any opinion of the correctness or the validity of the conclusion recorded by the tribunal about the scope and effect of the said standing order. In fact, we are dealing with the present appeal on the assumption that the appellant has the power to transfer its employees from one factory to another.Turning then to the finding about mala fides recorded by the tribunal, Mr. Rameshwar Nath attempted to argue that the said finding is not supported by any evidence. In the alternative, he urged that it is perverse. We do not think there is any substance in either of the two pleas thus raised by Mr. Rameshwar Nath. The tribunal has elaborately examined the oral evidence led both by the respondents and the appellant. It has considered the documents on which the respondents relied and it has come to the conclusion that the oral evidence led by the employees is more reliable than that led on behalf of the appellant. That is a pure matter of appreciating evidence and the appellant is not entitled to ask this Court to reappreciate the said evidence in an appeal under Art. 136. The evidence which the tribunal has believed shows that the relations between the appellant and the sangh have been strained for considerable time past and that the appellants manager told some of the employees under orders of transfer that the transfer orders would be revoked if they resigned from the sangh. Besides, there are two other facts which have been found by the tribunal that strongly corroborate its conclusions about the mala fides of the transfers. It appears that the first transfer order was passed on 7 January, 1961 (Ex. M. 23) and it would be recalled that licence was given for expansion to the appellant on 16 January, 1961. It is thus clear that the first order of transfer was passed even before the licence for expansion was obtained. It is suggested that the transfer was made in anticipation of obtaining a licence. That, in our opinion, cannot be accepted as a sensible explanation. Besides, the tribunal was not satisfied that at that time any machinery had been purchased by the appellant for the new factory at all and so, it held that at least the first transfer order was passed not bona fide, but with a view to teach a lesson to the employees concerned.The other fact found by the tribunal is that as a result of the struggle which was going on between the appellant and the members of the sangh, the appellant deliberately held out a threat of closing down the factory, and so, put up a notice of closure (Ex. W. 10). The appellants denied that such a notice was put up on the board and in fact, it examined Baz Singh to show that no such notice was types and it was only types notices that were put on the notice board. The tribunal has disbelieved this evidence and has accepted the story of the respondents that such notice was put up on the notice board; as a result of the tension between the sangh and the management, the only object of doing so was to threaten the sangh.9. It also appears that the appellant had sent an advertisement to the Hindustan Times purporting to put its undertaking for sale. This was another attempt made by the appellant to frighten its employees. The explanation given on behalf of the appellant was that the proprietor found that the concern was in financial difficulties, and so, he was thinking of winding it up and going abroad. This explanation also has been rejected by the tribunal. The tribunal has observed that it is not shown that the proprietor had applied for a passport, and the documentary evidence shows that his story, that the business was running in loss, is absolutely untrue. Fortunately, the factory has made very good progress. The number of its workmen has increased from 24 to 200 in three years between 1957 and 1960 and during the same period, its turnover has shown as remarkable progress. Thus, it would be seen that these two facts strongly corroborate the conclusion of the tribunal that the appellant was not acting bona fide when it purported to issue orders of transfer in question. As we have already said, the appellant cannot challenge the correctness or propriety of these findings of fact in its appeal under Art. 136; and the contention that these findings are not supported by any evidence, or, in the alternative, are perverse, is patently ill-founded.The result is that the award of the tribunal is confirmed on the basis of the finding of the tribunal that the impugned transfers amounted to victimization and were the result of unfair labour practice. There can be no doubt that even if the appellant has the right to transfer its employees from one factory to another, the present transfers cannot be justified because they have not been effected bona fide for ordinary, normal reason of trade or business, but have been the result of an unfair labour practice.

Decision:
0[ds]We do not propose to decide this point in the present appeal because, in our opinion, the other finding recorded by the tribunal that the impugned transfers amount to victimization is enough to dispose of the present appeal. We are, therefore, not expressing any opinion of the correctness or the validity of the conclusion recorded by the tribunal about the scope and effect of the said standing order. In fact, we are dealing with the present appeal on the assumption that the appellant has the power to transfer its employees from one factory totribunal has elaborately examined the oral evidence led both by the respondents and the appellant. It has considered the documents on which the respondents relied and it has come to the conclusion that the oral evidence led by the employees is more reliable than that led on behalf of the appellant. That is a pure matter of appreciating evidence and the appellant is not entitled to ask this Court to reappreciate the said evidence in an appeal under Art. 136. The evidence which the tribunal has believed shows that the relations between the appellant and the sangh have been strained for considerable time past and that the appellants manager told some of the employees under orders of transfer that the transfer orders would be revoked if they resigned from the sangh. Besides, there are two other facts which have been found by the tribunal that strongly corroborate its conclusions about the mala fides of the transfers. It appears that the first transfer order was passed on 7 January, 1961 (Ex. M. 23) and it would be recalled that licence was given for expansion to the appellant on 16 January, 1961. It is thus clear that the first order of transfer was passed even before the licence for expansion was obtained. It is suggested that the transfer was made in anticipation of obtaining a licence. That, in our opinion, cannot be accepted as a sensible explanation. Besides, the tribunal was not satisfied that at that time any machinery had been purchased by the appellant for the new factory at all and so, it held that at least the first transfer order was passed not bona fide, but with a view to teach a lesson to the employees concerned.The other fact found by the tribunal is that as a result of the struggle which was going on between the appellant and the members of the sangh, the appellant deliberately held out a threat of closing down the factory, and so, put up a notice of closure (Ex. W. 10). The appellants denied that such a notice was put up on the board and in fact, it examined Baz Singh to show that no such notice was types and it was only types notices that were put on the notice board. The tribunal has disbelieved this evidence and has accepted the story of the respondents that such notice was put up on the notice board; as a result of the tension between the sangh and the management, the only object of doing so was to threaten the sangh.9. It also appears that the appellant had sent an advertisement to the Hindustan Times purporting to put its undertaking for sale. This was another attempt made by the appellant to frighten its employees. The explanation given on behalf of the appellant was that the proprietor found that the concern was in financial difficulties, and so, he was thinking of winding it up and going abroad. This explanation also has been rejected by the tribunal. The tribunal has observed that it is not shown that the proprietor had applied for a passport, and the documentary evidence shows that his story, that the business was running in loss, is absolutely untrue. Fortunately, the factory has made very good progress. The number of its workmen has increased from 24 to 200 in three years between 1957 and 1960 and during the same period, its turnover has shown as remarkable progress. Thus, it would be seen that these two facts strongly corroborate the conclusion of the tribunal that the appellant was not acting bona fide when it purported to issue orders of transfer in question. As we have already said, the appellant cannot challenge the correctness or propriety of these findings of fact in its appeal under Art. 136; and the contention that these findings are not supported by any evidence, or, in the alternative, are perverse, is patentlyresult is that the award of the tribunal is confirmed on the basis of the finding of the tribunal that the impugned transfers amounted to victimization and were the result of unfair labour practice. There can be no doubt that even if the appellant has the right to transfer its employees from one factory to another, the present transfers cannot be justified because they have not been effected bona fide for ordinary, normal reason of trade or business, but have been the result of an unfair labour practice.