IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 OP.No. 6697 of 2003(V) ---------------------- PETITIONER: ------------ THE FIBRE FOAM PVT. LTD., BALIAPATTOM PO KANNUR, REPRESENTED BY ITS EXECUTIVE DIRECTOR BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) SRI.E.K.MADHAVAN SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA SMT.UMA GOPINATH SRI.DEVIDAS.U.K SRI.SAJEEV ASOKAN SRI.SANDEEP.E. SRI.AMRITHA JAYARAM RESPONDENTS: ------------- 1. THE SECRETARY, BALIPATTOM FIBRE FOAM EMPLOYEES UNION (CITU), BALIAPATTOM, KANNUR 2. THE SECRETARY, FIBRE FOAM STAFF UNION (CITU), A.K.G.CENTRE, CHIRAKKAL P.O., KANNUR 3. THE SECRETARY, FIBRE FOAM MAZDOOR SANGHAM (BMS), BALIAPATTOM, KANNUR. 4. THE SECRETARY, BALIAPATTOM FIBRE FOAM WORKERS UNION (INTUC), BALIAPATTOM, KANNUR 5. THE SECRETARY, FIBRE FOAM EMPLOYEES UNION (INLC), BALIAPATTOM, KANNUR. 6. THE INDUSTRIAL TRIBUNAL, KOZHIKODE. BY ADV. SRI.P.V.SURENDRANATH FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.6697/03. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE APPOINTMENT ORDER OF SRI.P.V.SIVASANKARAN. P2. COPY OF THE -DO- A.RAVIKUMAR. P3. COPY OF THE -DO- SAVITHA. P4. COPY OF THE GOVT. ORDER DTD.17.11.98. P5. COPY OF THE REFERENCE ORDER DTD.1.12.98. P6. COPY OF THE LETTER DTD.23.4.01 TO SAVITHA. P7. COPY OF THE LETTER DTD.8.5.01 TO SAVITHA. P8. COPY OF THE RECEIPT DTD.14.5.01 BY SAVITHA. P9. COPY OF THE ORDER DTD.25.9.98 TO P.V.SIVASANKARAN. P10. COPY OF THE ORDER DTD.25.9.98 TO A.RAVIKUMAR. P11. COPY OF THE ORDER DTD.25.9.98 TO SAVITHA. P12. COPY OF THE COMMON AWARD. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.6697 of 2003 ================== Dated this the 12th day of June, 2008 J U D G M E N T The management in I.D.No.4/1999 before the Industrial Tribunal, Kozhikode, is the petitioner herein. They are challenging Ext.P12 common award passed by the Tribunal in I.D. Nos.4 and 17 of 1999. In both the industrial disputes essentially the issue referred for adjudication was the same, namely, whether the transfers of three employees viz., M/s.P.V.Sivasankaran, M.A.Ravikumar and P.Savitha, were legal and justified and if not, what relief, they are entitled to. Those workers were working in the Kannur unit of the petitioner company. The petitioner had branches at Madras and Hyderabad. Two of the workers were transferred to Madras and one to Hyderabad. The union raised two industrial disputes which were referred for adjudication to the Tribunal which resulted in Ext.P12 award holding that the transfers are illegal, incompetent and unsustainable, and granting relief to the workmen. 2. The contention of the management is that it was a o.p.6697/03 2 condition of service of the workmen that they are liable to be transferred to any of the offices of the company in India, which was incorporated in the appointment order itself and it is accepting that service condition, that the workmen entered service. That being so, according to the counsel for the petitioner, the Tribunal could not have entered a finding that the transfers effected pursuant to that condition of service are illegal. The contention is that on account of certain employees leaving the service of the company, certain rearrangements of the employees became necessary, as a result of which only transfers were effected. The Tribunal considered every aspect of the matter and went to the extent of saying that the condition of transfer incorporated in the appointment order itself is unconscionable and against public policy. The Tribunal further held that the employees were transferred to the posts in the transferred place, the duties and functions of which were not the ones which were being carried out by the workmen at their Kannur Unit. It was also found that the employees were very lowly paid employees drawing about Rs.2000/- per month and if they are asked to work in big cities like Madras and Hyderabad with only an o.p.6697/03 3 additional amount of Rs.500/-, they cannot survive. The Tribunal disbelieved the contention of the management that it was consequent to rearrangement of personnel on account of resignation of certain employees that these transfers were necessitated in the absence of materials on record to prove the same. The petitioner challenges those findings. 3. The other contention raised by the management is that out of the three employees, Sri.P.V.Sivasankaran joined at the transfered station and thereafter absented from duty. In respect of Sri.Ravikumar and Smt.Savitha, later resigned from service and left accepting the amounts offered by the management in full and final settlement of all dues from the management. Therefore, according to the counsel for the management, the reliefs granted to Sri.Ravikumar and Smt.Savitha are clearly unsustainable. 4. On the other hand, the counsel for the Union would contend that the mere fact that a service condition is incorporated in the appointment order empowering the management to effect transfers of employers does not mean that such transfers cannot be challenged as unsustainable. He would o.p.6697/03 4 submit that every action of the management should be reasonable and just, and the Tribunal can certainly go into the reasonableness and justifiability of such transfer. He submits that evidence has been there aplenty to support the contention of the Union to the effect that the transfers were totally unjustifiable. He particularly stresses the meager amount of salary paid to the employees as also lack of evidence to prove the contention of the management that transfers were effected on account of rearrangement of the personnel of the company. He also submits that the resignation itself cannot be regarded as a voluntary act since the workmen have been left in the lurch for quite a long time and only because of the very difficult pecuniary circumstances they were in, they had to succumb to the pressure of the management which details have been elaborately discussed by the Tribunal himself. He therefore, argues for sustaining the award. 5. I have considered the rival contentions in detail. 6. The learned counsel for the management would argue that the Tribunal had no justification to hold that the service condition in the appointment order is against public policy. I am o.p.6697/03 5 not going into that question now, because even otherwise, notwithstanding the powers of transfer as per the service conditions, I am of opinion that such power of transfer has to be exercised reasonably and justly. The Tribunal has certainly powers to consider whether the transfers effected are reasonable and just in the circumstances of the case. Here the Tribunal, after discussing the evidence before it elaborately, has come to the conclusion that there was absolutely no material to hold that the transfers were reasonable and justified in any manner. I am also of opinion that lowly paid employees drawing just Rs.2000/- could not have been subjected to such inhuman transfers forcing them to even quit the job. An elaborate discussion of evidence is necessary to hold that with such paltry salary they would not be able to survive in big cities like Madras or Hyderabad even for a day. As such, I am fully satisfied that the Tribunal was correct in holding that the transfers were totally unreasonable and unjustified. I am also not inclined to consider the contention of the management that since two of the employees have resigned and left, they could not have been given the reliefs given by the Tribunal directing payment of eligible wages and benefits upto o.p.6697/03 6 the date of resignation. In view of the circumstances which forced the workmen to quite the job, I am not inclined to consider that contention also. I am also satisfied that, as held by the Tribunal, the poor workmen were pressurised by the management to resign. In the above circumstances, I have no hesitation whatsoever to dismiss the writ petition and uphold the award. Ordered accordingly. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.6697/03 7 S.SIRI JAGAN, J. ============== O.P.6697 of 2003-V ============== J U D G M E N T 12th June, 2008