bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5889 OF 2008 PETITION NO. 5889 OF 2008 PETITION NO. 5889 OF 2008 Maharashtra Rajya Rashtriya Kamgar Sangh, Mumbai. ... Petitioner v/s 1. Shree Mahila Griha Udyog Lijjat Papad, Mumbai & anr. ... Respondents Mr.Rahul L. Nerlekar for the petitioner. Mr.A.V.Anturkar with Mr.Sugandh B. Deshmukh for the respondents. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 2ND SEPTEMBER, 2008 2ND SEPTEMBER, 2008 2ND SEPTEMBER, 2008 P.C. P.C. P.C.: 1. The petition challenges the order of the Industrial Court rejecting the application Exh.U-2 i.e. the application for interim relief filed by the petitioner in a complaint under Item 3, 9 & 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971. The Industrial Court has expedited the hearing of the complaint and has observed that the complaint will be disposed of as far as possible within four months. The complaint now has been fixed for the respondents to file a reply to the amendment application filed by 2 the petitioner. 2. The main contention of the petitioner is that about 17 workmen have been transferred from Mumbai to Pune and Hyderabad, malafide. All the workmen are working in the Sales Division of Sasa Detergent Division of the respondents. Their services were initially terminated in 2000. The action of the management was challenged. The Labour Court directed the reinstatement of the workmen with full back wages and consequential benefits. The Industrial Court confirmed the order regarding reinstatement but reduced the back wages to 50%. The High Court has admitted the writ petition filed by the respondents, and has stayed the back wages only. Thus, the workmen were to be reinstated in service. This order was passed on 12.7.2006. The Court has recorded the statement made on behalf of the petitioners that the department in which the workmen were employed was closed and dismantled. The Court has observed, "Once an order of retrenchment (sic) is passed, it is for the petitioners to decide where to employ the workmen and how to utilise their services." The Court refused to stay the order of reinstatement on that ground. 3. The workmen were reinstated on 20.7.2006 but were 3 not given consequential benefits as directed by this Court. Wages have been paid to them at the same rate as in the year 2000. Negotiations which were held between the parties failed and, therefore, the petitioner was required to file a Complaint (ULP) No.127 of 2007 in order to have the order implemented. On 19.3.2008, the petitioner sought to argue the application for interim relief. An adjournment was sought by the respondents as their advocate was unwell on that day and the matter was adjourned to 24.3.2008. Immediately thereafter i.e. on 20.3.2008, the respondents transferred all the workmen to Hyderabad and Pune. A complaint was filed by the petitioner being Complaint (ULP) No.133 of 2008 challenging the transfer orders. It appears that, initially the respondents were restrained from initiating any disciplinary action against the workmen. By the impugned order, the Industrial Court has dismissed the interim relief application and has directed that the complaint be heard expeditiously and as far as possible within a period of four months. 4. Mr.Nerlekar, learned advocate for the petitioner submits that the entire conduct of the respondents indicates that they were determined to transfer the workmen and harass them in one way or the other. He 4 submits that the transfer order has been issued, malafide, after obtaining an adjournment in the complaint filed on behalf of the workmen for implementation of the award. According to him, the order of transfer smacks of malafides and, therefore, is required to be stayed. He submits that the appointment letters issued to the workmen do not indicate that they are liable to be transferred to any centre outside Mumbai. He points out that the workmen in fact did report for work at Hyderabad and Pune on 25.6.2008, after the Industrial Court refused to stay the transfer orders. However, no work was provided to the workmen at either place. This fact was brought to the notice of the respondents. The respondents terminated the services of the workmen on a false pretext that the workmen’s letters of resignation had been accepted. He submits that no resignation letters have been submitted by the workmen to the respondents. Letters which were submitted to the management only mentioned the difficulties faced by the workmen and informed the management that the workers had left Hyderabad since no work is available. The learned advocate submits that these have wrongly been treated as letters of resignation by the management. He relies on the judgment of the Kundan Sugar Mills v/s Kundan Sugar Mills v/s Kundan Sugar Mills v/s Ziyauddin Ziyauddin Ziyauddin & ors., reported in (1960) 2 SCR 918, & ors., reported in (1960) 2 SCR 918, & ors., reported in (1960) 2 SCR 918, and 5 various other judgments in support of his contentions that if there is no clause of transfer in the appointment order, the workman cannot be transferred. 5. The learned advocate appearing for the respondents has relied on several judgments in support of his contention that transfer is an incidence of service and not a condition of service. He submits that a learned Single Judge of this Court has taken the view that the transfer is not a condition of service but an incidence of service and the employer would always be at liberty to transfer his employees to any place. He urges that an employee has no vested right to be posted in a particular place. He relies on the judgments in (i) Janata Commercial Co-operative Bank Janata Commercial Co-operative Bank Janata Commercial Co-operative Bank v/s v/s v/s The Member, Industrial Court & anr., reported in The Member, Industrial Court & anr., reported in The Member, Industrial Court & anr., reported in 1996 1996 1996 (4) Bom.C.R. 158; (ii) Shivaji A. More v/s (4) Bom.C.R. 158; (ii) Shivaji A. More v/s (4) Bom.C.R. 158; (ii) Shivaji A. More v/s Maharashtra Maharashtra Maharashtra State Farming Corpn. Ltd. & anr., State Farming Corpn. Ltd. & anr., State Farming Corpn. Ltd. & anr., reported reported reported in 1997 III L.L.J. 1082; and (iii) in 1997 III L.L.J. 1082; and (iii) in 1997 III L.L.J. 1082; and (iii) Industrial Industrial Industrial Workers Union v/s Allied Publishers Ltd., Workers Union v/s Allied Publishers Ltd., Workers Union v/s Allied Publishers Ltd., reported reported reported in 1997 (76) F.L.R. 315, in 1997 (76) F.L.R. 315, in 1997 (76) F.L.R. 315, besides other judgments. These judgments, in my opinion, need not detain me at this stage. It is suffice to say that the judgment in the case of Kundan Sugar Mills Kundan Sugar Mills Kundan Sugar Mills (supra) delivered by the Bench of three learned Judges of the Supreme Court, has not been taken into consideration 6 by the aforesaid judgments cited on behalf of the respondents. The Supreme Court has held that, in the absence of express terms of the contract of service between the employer and the employee that the employee cannot be transferred to another place or concern run by the same employer, the transfer cannot be implied as a condition of service. 6. Mr.Anturkar, learned advocate for the respondents has offered to employ all the workmen at Pune for four months during which time the Industrial Court is expected to dispose of the complaint. He submits that the respondents will provide bachelor’s accommodation to the workmen during this period. However, only one of the workmen would be given permission by the respondents to attend the Court on each date when the complaints are fixed for hearing. He submits that all the expenses for transport of the workmen will be borne by the management if the workmen agree to these conditions. 7. The petitioner in para 4 of the petition has stated that when the workmen went to both, Hyderabad and Pune after the interim relief application was rejected, no work was provided to them and instead they were made to sit idle. 7 8. If the workmen desire to accept the offer made by the advocate for the respondents, they may inform the respondents accordingly within one week from today. However, if any workman does not report to the place of transfer, no disciplinary action will be initiated against him nor will any coercive action be taken against the workman. This is because, in my view, no useful purpose would be served by transferring the workmen to Pune at this stage since the Industrial Court is expected to dispose of the complaint within four months. 9. The Industrial Court shall dispose of the complaint within four months as observed in its order dated 7.6.2008. If any workman does not report to the place of transfer and continues to remain in Mumbai, he will not be paid wages for this period till the Industrial Court decides the complaint. If the Industrial Court concludes that the transfer is malafide, then the workmen would be entitled to wages for this period as well. 10. Since the Industrial Court has decided to dispose of the complaint within four months from the date of its order dated 7.6.2008, parties will co-operate with 8 the Industrial Court. The Industrial Court will not grant unnecessary adjournments. 11. Writ petition disposed of accordingly.