(-1-) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 39 OF 2005 WRIT PETITION NO. 39 OF 2005 WRIT PETITION NO. 39 OF 2005 Shri. D.B. Patil ...Petitioner Versus S.G. Kadam, Member Industrial Court, Solapur & Anr ...Respondents ..... Ms. Jane Cox, counsel for Petitioner Mr. J.P. Cama, Sr. counsel i/b M/s. R.M.G. Law Associate for Respondent No.2. ..... CORAM: CORAM: CORAM: B. H. MARLAPALLE, J. B. H. MARLAPALLE, J. B. H. MARLAPALLE, J. DATED: 4TH FEBRUARY, 2005 DATED: 4TH FEBRUARY, 2005 DATED: 4TH FEBRUARY, 2005 P.C.:- P.C.:- P.C.:- 1. Heard Ms. Jane Cox, the learned counsel for the petitioner who is an employee of the Press Trust of India-respondent No.2 and has been transferred from the present posting at Solapur to Raipur (Chhatisgarh State) vide order dated 7.10.2004. 2. Rule. Mr. Cama waives service of Rule for respondent No.1. By consent taken up for final hearing. Respondent No.1 be deleted forthwith. 3. The petitioner was transferred to Solapur some times in the month of November, 2002 from his posting at Mumbai and he joined at Solapur on 20.11.2002. Before he completed the tenure of two years, he was issued a transfer order dated 7.10.2004 and he (-2-) challenged the same by filing Complaint (ULP) No. 57 of 2004 under Items 3,5,9 and 10 of Schedule IV of M.R.T.U. and P.U.L.P. Act, 1971. He had contended that he came to be appointed as a Peon by order dated 3.7.1989 and was confirmed by order dated 26.6.90. There are two Unions operating and representing the employees of the Respondent. He is an activist of P.T.I. Employees Union (Western Region) and the other Union i.e. the Federation of Press Trust of India Employees is purportedly a reval Union. The Management by and large followed the desires of the Federation. He alleged that his transfer from Mumbai to Solapur was effected as the said Federation had approached the Management to take appropriate actions against the activists of the P.T.I. employees Union and in perpetuation of the said act of showing favours to the Federation he was again shifted from Solapur to Raipur by order dated 7.10.2004. This order was issued in the midst of the academic year and therefore, it would be difficult for him to shift his family. It was contended that there was vacancy for the post of Peon available at Solapur and the transferred post was not filled in. On the other hand at Raipur there was no post existing and it is located out of the State of Maharashtra. Arguments were advanced before this Court contending that for the post of Peon, transfer orders out of the State/Region were not ordinarily effected though no (-3-) documentary proof by way of settlement or circular in this regard was placed on record. 4. The Management had appeared before the Industrial Court and opposed the complaint as well as the application for interim relief filed Under Section 30(2) of the M.R.T.U. and P.U.L.P. Act, 1971. After hearing both the parties on the application for interim relief at Exh.U-2, the learned Member of the Industrial court at solapur by his order dated 21.10.2004 was pleased to allow the said application partly and directed to revoke the subject transfer order temporarily. The learned Member had given detailed reasonings and by referring to a number of decisions of this Court as well as the Supreme Court. However, instead of staying the order of transfer, he directed the transfer order to be temporarily revoked by recording the prima facie findings that the Management had engaged in the acts of Unfair Labour Practice. Though number of decisions were referred to, the learned Member was impressed by the submissions that the complainant had not completed the tenure of three years and he was sought to be shifted from Solapur to Raipur in the midst of the academic year. He, therefore, observed that the transfer was made in haste and in case the employer was intending to transfer the complainant, the transfer order could have been issued in the month of (-4-) May i.e. after the academic year. 5. The Management filed review application on or about 23.11.2004 i.e. after about a month of the earlier order passed on Exh.U-2 and prayed for recalling of the said order. The complainant filed his reply and opposed the review application. By order dated 18.12.2004, the learned Member was pleased to allow the application for review and set aside the order dated 21.10.2004 passed below Exh.U-2. The application for interim relief filed at Exh.U-2 was consequently rejected. 6. The learned counsel for the petitioner at the threshold submitted that though the complainant had filed his reply to the review application, he was not heard. But the certified true copy of the Roznama placed on record does show that the complainant was represented by a lawyer who was present before the Court on 18.12.2004. The order also shows that he was heard. The first ground therefore, has no substance. 7. Though Under Section 30(2) of the M.R.T.U. and P.U.L.P. Act, 1971 the Industrial Court has the powers to entertain an application for review, having regards to the detailed orders passed by the learned member on 21.10.2004 and 18.12.2004, it is clear that (-5-) he exercised the appellate jurisdiction on his own order. The learned Member, therefore, fell in manifest errors in entertaining the review application. More so when the order dated 21.10.2004 had given a detailed reasonings whether right or wrong and corrections of the same could have been sought to be done by the higher forum. It would be therefore, necessary for this Court to take corrective steps by setting aside the impugned order dated 18.12.2004. 8. Nonetheless, it is not disputed that the terms of the employment of the complainant provided for his transfer from place to place. There is no circular or settlement at least at present placed on record to indicate the transfer was normally required to be done after two or three years and transfers are not to be effected outside the State or Region for a particular class of employees. The mid term transfer itself would not amount to an act of Unfair Labour Practice at least at the prima facie stage specially when the employer’s right to transfer is not disputed. Therefore, prima facie findings recorded in the order dated 21.10.2004 below Exh.U-2 cannot be sustained and inconvenience caused to the employee for such mid term transfer is an issue which is required to be placed by the employee in a representation to be submitted by him which would be (-6-) considered by keeping in mind the exigencies of administration. 9. After having heard the learned counsel for the respective parties at length, I am of the considered opinion that the main complaint filed by the employee should be heard expeditiously and that too by another Member of the Industrial Court. In the meanwhile, the complainant should report at the transferred place, more so, when it is contended by the management that it is not out of the Western Region and his reporting for duty would be subject to the final decision in the complaint i.e. if the complaint is allowed, he would be restored at Solapur and if the complaint fails, he would continue at Raipur. At the same time, it would be appropriate to transfer the complaint for trial to some other Industrial Court which would be convenient to both the parties. 10. Ms. Cox, the learned counsel for the complainant has also drawn my attention to the prayer made in the review petition that was filed by the management before the Industrial Court and she therefore, urged that if the complaint is decided within a fixed period, the complainant should be allowed to continue at Solapur till the end of April, 2005. This is an issue which the employer can (-7-) consider, if the petitioner submits a representation. 11. In the result, this petition succeeds partly. The impugned order dated 18.12.2004 is hereby quashed and set aside. At the same time, the prima facie findings recorded by the Industrial Court in the earlier order dated 21.10.2004 are unsustainable. The employee is at liberty to submit a representation to the management setting out his request for his retention at Solapur, within a period of one week from today and the same shall be decided within two weeks thereafter, on its own merits. The complaint (ULP) No. 57 of 2004 will be placed before the learned President of the Industrial Court at Mumbai for assigning to any other Industrial Court at Mumbai which does not appear to be inconvenient to either of the parties. Trial of the complaint is expedited and it may be completed preferably within a period of six months. 12. The petition is disposed of in the above terms. Rule made absolute with no order as to costs. 13. Ms. Cox, the learned counsel for the petitioner at this stage, submitted an oral application for stay to this order for a period of two weeks from today and to continue the status-quo to be operated for a further period of two weeks. Oral application is (-8-) hereby rejected.