IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WA.No. 2200 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25602/2004 Dated 28/08/2008 .................... APPELLANT(S): --------------------- 1. MANAGING DIRECTOR NOVOPAN INDUSTRIES LTD., SURYODAYA, BEGUMPET, HYDRABAD. 2. AREA MANAGER, NOVOPAN INDUSTRIES LTD., 44/2590, CHENNAI CENTRE, 11ND FLOOR, NUGAMBAKKAM, CHENNAI-34. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENT(S): ----------------------- 1. PRESIDENT, ERNAKULAM DISTRICT INDUSTRIAL ENGINEERING WORKERS UNION INTUC, LABOUR PORT, KALABHAVAN ROAD, COCHIN-18. 2. AMMINI FRANCIS, ANJERI H.NO.314, CHANGANPUZHA NAGAR PO., COCHIN-33. 3. INDUSTRIAL TRIBUNAL ALAPPUZHA. 4. STATE OF KEALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR, GOVERNMENT SECRETARIAT, TRIVANDRUM. ADV. SRI.DILEEP VARGHESE FOR R1,2 SRI.K.A.TOMY F3 AND R5 BY GOVT.PLEADER SRI.JAMES MATHEW THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 2200 of 2008 APPENDIX APPELLANT'S EXHIBITS: ANNEXURE A1: COPY OF LETTER DATED 4.9.2008 OF THE APPELLANT TO THE 2ND RESPONDENT. /TRUE COPY/ PS TO JUDGE MANJULA CHELLUR, Ag.C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No.2200 of 2008 ---------------------------------------------- Dated this the 16th day of November, 2011 JUDGMENT Manjula Chellur, Ag.C.J. Heard learned counsel for the appellant. 2. Though the matter was listed for several days, it came up for hearing yesterday, 15.11.2011. Learned counsel for the appellant alone was present on that day and he was heard in part. Today also, when the matter is listed again for hearing, neither respondents nor counsel are present. Therefore, we proceed to hear the appellant and dispose of the appeal on merit. 3. The brief facts of the present appeal is as follows: The second respondent herein was appointed as a stenographer in the appellant's establishment by virtue of appointment letter at Exhibit P1 dated 15.3.1985. The letter of appointment indicates several terms and conditions of employment including pay scale of the second respondent employee. It is not in dispute that in the year 2000, on account of restructuring policy of the appellant WA.2200/08 2 management, the excess staff in several branches of the appellant were transferred from one place to another place and by virtue of such policy decision, while restructuring the entire administration, the second respondent came to be transferred to Hyderabad on account of the post of stenographer at Kochi branch office was abolished. Aggrieved by the said order of transfer, the second respondent approached the District Labour Officer for conciliation. When the conciliation failed, the dispute was referred to the Industrial Tribunal for adjudication. The allegation made by the second respondent against the appellant employer was that one or two months prior to the order of transfer, municipal election in the Kalamassery Municipality was conducted and the second respondent was elected as the Councilor in the said election and therefore, the transfer is on account of the fact that she would bring her work as Municipal Councilor in conflict with the job she was conducting in the appellant's office at Kochi. The Tribunal, after considering the entire matter and giving opportunity to both the parties to bring on record several facts, held that the appellant has not closed entire business transactions at Kochi and therefore, having regard to the duty of the second respondent as a Councilor at local WA.2200/08 3 Municipality, in the interest of the public, her transfer to Hyderabad has to be cancelled. Accordingly, the Tribunal opining that there was no bar or prohibition in contesting the election by the employees in a private employment, proceeded to say that second respondent's transfer has to be cancelled in the interest of public. Aggrieved by the said award of the Tribunal, the appellant approached the learned Single Judge in W.P(C).No.25602 of 2004. 4. The learned Single Judge though opined that the post of the second respondent was a transferable post, since the management has not stopped the business altogether at Kochi, necessarily the Kochi office needs services of the second respondent as a stenographer to attend correspondence of the employer and in the light of the management not having any other person to do such correspondence, there was no justification on the part of the employer to transfer the second respondent to the office at Hyderabad. Aggrieved by the dismissal of the said Writ Petition, the appellant is before this Court. 5. According to learned counsel for the appellant, the terms of employment clearly indicate that entire working hours have to be devoted to the duties of office held by the second respondent and the post in which second respondent came to be appointed is WA.2200/08 4 a transferable post. According to the learned counsel, in the absence of the second respondent establishing any malafides on the part of the employer in transferring the second respondent, in a matter of transfer of employees, the Courts should not normally interfere. With these arguments, he sought for the relief of setting aside the award of the Tribunal as well as the judgment of the learned Single Judge. 6. On going through the records, we note two important conditions of employment as per Exhibit P1 dated 15.3.1985, which read as follows: “During your term of employment with the Company, you shall not serve any other employer or engage yourself in any other business or occupation and shall devote your whole time to the faithful and diligent performance of your duties. xx xx xx xx You are liable to be transferred to any other place of work/department/section depending upon exigencies of work at the discretion of the Management.” 7. The above two conditions are very relevant for the purpose of disposal of this appeal on merits. The first condition indicates that she is not entitled to engage in any other business or occupation and shall devote entire time faithfully and diligently WA.2200/08 5 in the discharge of duties as a stenographer. The other condition is that the management has the discretion to transfer the second respondent to any other place of work, department or section depending upon the exigencies of work at the discretion of the management. There is no dispute that the services of the second respondent was never found fault with by the management. It is not on account the second respondent securing the position as a Municipal Councilor the transfer was made, but on account of the policy decision by the management. While restructuring the entire establishment of the appellant, they had to transfer excess staff found in different branches. It so happened, the services of the second respondent was found in excess of the requirement at Kochi office. Therefore, in terms of employment, later she was transferred to Hyderabad. As a matter of fact, before the Tribunal the evidence let in by the employer was to the effect that after restructuring of the establishment except a Manager and a Peon, no other person was required at Kochi office and hence they closed the office and shifted the remaining stock to the godown. The witnesses also specifically denied the allegation that only on account of the second respondent getting elected as a Municipal Councilor, she was transferred. In the absence of any material WA.2200/08 6 forthcoming on record that her position as a Municipal Councilor was the main reason for her transfer, the policy decision of the management could not be found fault with. As a matter of fact Exhibits P15 and P16 would indicate that the appellants have correspondence with the commercial tax office indicating that they were not doing any business activities at Kochi branch from May, 2003 onwards. Exhibit P16 indicates that remaining work at the branch office was conducted at the godown. If really the branch office at Kochi was conducting business as usual, the second respondent ought to have placed some materials like securing the orders at Kochi branch office and other correspondence. Even otherwise as per the terms of employment, the second respondent had to devote to the work undertaken by the employee. Transfer of an employee goes with the service. Unless it is utilised by malafides, the Courts should not generally interfere with the policy decision of the management. In that view of the matter, in the absence of the second respondent bringing on record any material indicating that the transfer of the second respondent as per Exhibit P2 was with malafide intention, we are of the opinion, the award of the Tribunal and the judgment of the learned Single Judge are not sustainable. WA.2200/08 7 Accordingly, we allow the Writ Appeal setting aside the award of the Tribunal dated 21.6.2004 as well as the judgment of the learned Single Judge. MANJULA CHELLUR, ACTING CHIEF JUSTICE P.R.RAMACHANDRA MENON, , JUDGE vgs