LPA/81220/2008 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 812 of 2008 in SPECIAL CIVIL APPLICATION No. 9258 of 2008 with CIVIL APPLICATION No.9428 of 2008 For Approval and Signature: HON'BLE MR.JUSTICE A.L.DAVE HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PARESH GULABBHAI MEGHNATHI & 1 - Appellant(s) Versus AVERY INDIA LIMITED - Respondent(s) ========================================================= Appearance : MR DG SHUKLA for Appellants MR KM PATEL, SR.ADVOCTE WITH MR JM PATEL FOR MR VARUN K.PATEL for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 12/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) LPA/81220/2008 2/17 JUDGMENT 1. The appellants challenge the judgment and order dated 17-18th July, 2008 passed in Special Civil Application No.9258 of 2008 by this Letters Patent Appeal. The said petition was preferred by the respondent herein to challenge the order dated 16th June, 2008, of the Labour Court, Ahmedabad, passed below Ex.2 in Complaint No.4 of 2008 in Reference (LCAD) No.8 of 2008, whereby the transfer of the appellants from Ahmedabad to Jaipur came to be stayed till further orders or till final disposal of the said complaint. 2. The facts of the case, in brief, are that the appellants are the employees of the respondent- Company, working with the respondent-Company for nearly ten years. They are the office bearers of the Union and by virtue of an order passed in April 2008, they came to be transferred from Ahmedabad to Jaipur, which two stations fall in different areas constituted by the Company for its administrative purposes. It was the case of the appellants that the Union had raised a Charter of Demand and the matter was pending by way of a dispute referred to the Labour Court since LPA/81220/2008 3/17 JUDGMENT January 2008. 2.1 The orders of transfer were challenged by the appellants mainly on the following grounds: (i) That the orders are signed by an authority which is not competent to sign or pass an order of transfer. (ii) That the orders are passed by way of a mala fide action in order to victimize the appellants as they had, as office bearers of the Union, raised a Charter of Demand. (iii)That both, the complaint filed under Section 33A of the Industrial Disputes Act, 1947 (“the Act” for short) as well as the Reference, are pending, and, therefore, the orders resulting into change in service conditions could not have been passed in the light of provisions contained in Section 33(1) and 33(2) of the Act. 2.2 The Labour Court, Ahmedabad, while passing the order impugned before the learned Single Judge, accepted the case of the appellants herein and granted LPA/81220/2008 4/17 JUDGMENT relief staying the operation of the transfer orders during the pendency of the complaint, by an order dated 16th June, 2008. 2.3 Aggrieved by the said order, the present respondent preferred Special Civil Application No.9258 of 2008 before this Court. The learned Single Judge, after hearing both the sides, allowed the said petition and set aside the order passed by the Labour Court below Ex.2. The learned Single Judge also directed that the complaint – application be heard and decided by the Labour Court on or before 31st October, 2008. The learned Single Judge also directed the petitioner (respondent herein) to cooperate in early hearing of the subject compliant-application and not to ask for unnecessary and avoidable adjournments. 2.4 Aggrieved by the said order, the present Appeal is preferred. 3. We have heard learned advocate Mr.Shukla for the appellants and learned Senior Advocate Mr.K.M.Patel appearing with Mr.J.M.Patel for the respondent, on Caveat. 4. Learned advocate Mr.Shukla submitted that the LPA/81220/2008 5/17 JUDGMENT transfer order is dated 8th April, 2008. It purports to have been signed by the Area Manager and the signature is put by one Mr.A.Modgil, who was, at that point of time, not the Area Manager. Mr.Shukla has drawn our attention to certain documents to show that Mr.Modgil was given charge of the Area Manager by communication dated 14th April, 2008, and was made full-fledged Area Manager by communication dated 22nd April, 2008, whereas the transfer orders appear to have been signed by him on 8th April, 2008. Mr.Shukla has relied on the decision in the case of Dr.Ramesh Chandra Tyagi v. Union of India and Others – (1994)2 SCC 416 to support his above contention. 4.1 As regards victimization and mala fide action, Mr.Shukla submitted that the Reference was to come up for hearing on 9th April, 2008, whereas the orders of transfer are passed on 8th April, 2008, transferring the appellants from Ahmedabad to Jaipur. It is thus clear that the orders are passed with a view to see that the appellants are unable to attend the Reference before the Labour Court. Mr.Shukla relied on a decision in the case of Krishna Kumar Verma v. M.P.Electricity Board, Jabalpur and Others LPA/81220/2008 6/17 JUDGMENT - 2002 IV LLJ (Suppli.) 612 in support of this contention. 4.2 It was submitted by learned advocate Mr.Shukla that the Reference as well as the complaint are pending. The appellants are the office bearers of the Union and their service conditions could not have been changed by the respondent-Company during the pendency of Reference. In support of this submission, he relied on the provisions contained in Section 33 and 33A of the Act. He also relied on decision in the case of Standard Vacuum Oil Company Ltd., Calcutta v. Their Employees (Standard Vacuum Employees' Union) – 1954 II LLJ 355. 4.3 Mr.Shukla submitted further that the learned Single Judge, while disposing of the Special Civil Application, has relied on the Settlement which was not produced before the Labour Court and was not forming part of the record and, therefore, prejudice is caused to the appellants. 4.4 Mr.Shukla submitted that identical matters are pending before the Court where this Court has interfered with the orders of transfer during the LPA/81220/2008 7/17 JUDGMENT pendency of Reference. 4.5 Lastly, Mr.Shukla submitted that apart from the above stated legal grounds, the Court may consider the fact that the appellants are Class-III employees earning about Rs.10,000/- per month. These transfers, if not stayed, would cause the appellants social and financial disturbance. Their children may suffer or the appellants may be required to run parallel establishments, one at Ahmedabad and another at Jaipur, which would disturb their financial arrangements. He submitted that the complaint is coming up for hearing on 29th August, 2008. Keeping all these aspects in mind, the Court may entertain this Appeal and stay the order of the learned Single Judge as well as the transfer orders passed by the respondent-Company. 5. Learned Senior Advocate Mr.K.M.Patel appearing with learned advocate Mr.J.M.Patel for the respondent-Company, submitted that admittedly, there were no Standing Orders produced before the Labour Court. The Labour Court has also recorded this aspect and as per the provisions contained in Section 33(2) LPA/81220/2008 8/17 JUDGMENT (a) of the Act, the Labour Court would have to fall back on the terms of contract and admittedly, the letters of appointment of the appellants bear a covenant to the effect that they can be transferred to anywhere in India. Mr.Patel also submitted that there is no change in the service conditions at all in the light of the above undisputed aspects and the Labour Court was, therefore, not justified in interfering with the orders of transfer. 5.1 Mr.Patel submitted that so far as the authority of Mr.Modgil to sign the transfer orders is concerned, it is clear that though the orders are dated 8th April, 2008, admittedly, they have been delivered on 14th April, 2008. In the affidavit-in- reply, it has been made clear that Mr.Modgil was given charge of the Area Manager on 14th April, 2008, because of resignation of the then Area Manager on 11th April, 2008, and after receiving that, the orders are signed and delivered. 5.2 Mr.Patel has also drawn our attention to the fact that the decision to transfer the appellants was taken at the Head Office level and it was only LPA/81220/2008 9/17 JUDGMENT communicated through Mr.Modgil by the so-called orders of transfer and since the draft was sent on mail, it was transmitted to the appellants after putting signature of Mr.Modgil. It is therefore not correct to say that the orders of transfer are passed by Mr.Modgil, holding charge of Area Manager. Thus, the decision to transfer was, in fact, taken by the Head Office and not by Mr.Modgil. 5.3 Mr.Patel relied on the decision in the case of M/s.Bharat Iron Works v. Bhagubhai Balubhai Patel and others – AIR 1976 SC 98 to show that this is not a case of victimization and to show further that to prove the case of mala fides and victimization, there has to be specific and detailed averments and evidence to support such allegations. 5.4 Mr.Patel submitted that in view of above position, the Appeal may not be entertained. 6. We have taken into consideration the rival side submissions. In order that we may be able to deal with these contentions appropriately without much repetition, certain undisputed facts need to be narrated. LPA/81220/2008 10/17 JUDGMENT (a) The appellants' appointment orders contain a specific covenant to the effect that the appointee may be transferred at any time from one job or section or department to another and from one Establishment to any other Establishment of the Company in any State within the Indian Union which exists at present or may come into existence in future, provided, however, that such transfer does not involve any loss in normal wages. (b) Before the Labour Court, the settled Standing Orders were not placed by either of the parties. (c) The communications of transfer, though dated 8th April, 2008, were served upon the appellants on 14th April, 2008. (d) Mr.Modgil, who has put his signature on these communications, was not holding the post of Area Manager till 14th April, 2008, when he was given charge of that post. (e) The then existing Area Manager resigned from LPA/81220/2008 11/17 JUDGMENT the post on 11th April, 2008. (f) Communication from the Head Office transmitting the orders of transfer was received by Ahmedabad Office of the respondent. (g) The transfer orders were to become effective from 1st May, 2008. 7. With the above undisputed facts in background, if the case is considered, the first allegation that the orders of transfer are passed by an incompetent authority cannot be accepted for the reason that decision to transfer the appellants was taken at the Head Office level and the same was sent from Head Office to Ahmedabad office of respondent- Company on 9th April, 2008, as submitted by learned Senior Advocate Mr.K.M.Patel on the basis of copy of communication with him. Though the communication is dated 8th April, 2008, it is served on the appellants only on 14th April, 2008, and it was to become effective on 1st May, 2008. It is thus clear prima- facie that when the order was served, the officer who has put his signature on the order was holding charge LPA/81220/2008 12/17 JUDGMENT of Area Manager. It is also indicated in the affidavit-in-reply that the decision was taken by the Head Office which is superior to Area Manager and it was communicated but was served only on 14th April, 2008. 7.1 The second fold of argument to support the plea of victimization is that the appellants are the office bearers of the Union and because they have raised a Charter of Demand and a Reference is made, they are sought to be victimized. To a pointed query to the learned advocate for the appellants, it was indicated that the appellants are the office bearers of the Union for a long time and during that time, several negotiations have taken place, demands have been raised. Therefore it is not possible to accept that because they are the office bearers, they are being victimized. If that was to be done, that would have been done long back. 7.2 The above aspects would negative the case of the appellants that the transfer orders were passed just on the previous day of day on which the Reference was to come up for hearing and that the transfer LPA/81220/2008 13/17 JUDGMENT orders were passed to ensure that the appellants are unable to appear before the Labour Court to support the Reference. The reason is that the orders were served admittedly on 14th April, 2008 and that they were to come into effect from 1st May, 2008, and, therefore, it is not possible to accept that the orders were passed with mala fide intention of preventing the appellants from appearing before the Labour Court to support the Reference. 8. In the light of above observations, the decision in the case of Krishna Kumar Verma v. M.P.Electricity Board, Jabalpur and Others (supra) relied upon by learned advocate Mr.Shukla will not be of any help to the appellants as prima-facie, we are of the view that mala fide or victimization is not proved. 9. So far as pendency of proceedings is concerned, particularly the Reference, it was contended that the condition of service could not have been altered to the detriment of the appellants during the pendency of proceeding. In this regard, we may refer to the provisions contained in Section 33 of the LPA/81220/2008 14/17 JUDGMENT Act. Section 33(2) of the Act provides that during the pendency of any proceeding in respect of an industrial dispute, the employer may alter in regard to any matter not connected with the dispute, the conditions of service applicable to the workman immediately before the commencement of such proceeding in accordance with the Standing Orders applicable to the workman concerned in such dispute or where there are no such Standing Orders, in accordance with the terms of contract, whether express or implied between the employer and the workman. In the instant case on our hand, there is no dispute that the Standing Orders were not produced before the Labour Court and if there are no such Standing Orders, the Court will have to fall back on the terms of contract. The terms of contract in the case of appellants, as indicated earlier, specifically provide for transfer to any State in the Union of India and, therefore, it cannot be said that the powers are exercised in breach of this provision. The Labour Court, in paragraph-26 of its order, has also observed that conditions of appointment letter would be applicable in absence of Standing Orders as such Standing Orders were not LPA/81220/2008 15/17 JUDGMENT before the Labour Court. Still, the Labour Court has proceeded on a premise that the transfers were in violation of the Standing Orders. The Learned Single Judge was, therefore, justified in interfering with the order of the Labour Court. 9.1 Section 33(1)(a) of the Act provides that during the pendency of any conciliation proceeding before the Conciliation Officer or a Board or any proceeding before an arbitrator or a Labour Court in respect of an industrial dispute, no employer shall in regard to any matter connected with the dispute alter to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding, except with the express permission in writing of the authority before which he proceeding is pending. It was therefore contended that in absence of such permission, the orders are passed and, therefore, the orders of transfer are in violation of the said provision. In our view, this contention also cannot be accepted for the reason that the condition of service applicable to the appellants immediately before the commencement of the proceeding cannot be said to have LPA/81220/2008 16/17 JUDGMENT been violated in view of the transfer clause in the appointment orders. 10. It was then contended that the Settlement, though not on record of the Labour Court, is relied upon by the learned Single Judge while passing the order. Factually, this aspect seems to be true. But that is not the sole ground on which the order is passed. The learned Single Judge has taken into consideration other relevant aspects while setting aside the order of the Labour Court. 11. So far as pendency of identical matters before this Court is concerned, we may only observe that the orders relied upon by the appellants are of interim nature, do not divulge the details of the facts of that case and, therefore, it is not possible for us to act on these orders once we do not find merit in the Appeal. 12. In view of the foregoing discussion, it is clear that none of the contentions raised by the appellants merit acceptance. The appeal, therefore, must fail, and stands dismissed. 13. We may hasten to add that the petition as LPA/81220/2008 17/17 JUDGMENT well as this Appeal arise out of an order passed by the Labour Court below Ex.2 in Compliant No.4 of 2008 in Reference (LCAD) No.8 of 2008, which itself is in the nature of an interlocutory order and the complaint is still pending. The observations made by us are only for the limited purpose of deciding this Appeal and may not be taken as conclusive findings on plea of either side. That stage is yet to come before the Labour Court when the parties would adduce their evidence. The Labour Court shall therefore decide the complaint without being influenced by any observation that we may have made in this order. 14. In view of dismissal of Appeal, Civil Application No.9428 of 2008 for stay stands disposed of. (A.L.Dave, J.) (Smt.Abhilasha Kumari, J.) (sunil)