1 wp1456-11 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1456 OF 2011 Sudhir D. Waghmare .. Petitioner Vs. Abhyuday Co-op.Bank Ltd. And Anr. .. Respondents Mr.A.S.Peerzada for the petitioner Mr.Ashok D. Shetty with Ms.Rita K. Joshi for the respondents CORAM: K.K. TATED, J. DATE: 7th MARCH, 2011 P.C. 1. Heard the learned counsel for the parties. 2. By consent, matter is taken for final hearing at the stage of admission itself. 3. By this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 24.12.2010 passed by the Industrial Court, Thane in complaint ULP NO.306 of 2009. 4. It is the case of the petitioner that the respondent bank with malafide intention issued the transfer order dated 21.10.09 transferring the petitioner from Airoli Branch to Nasik Branch. The said Transfer order 2 wp1456-11 was challenged by the petitioner before the Industrial Court. The learned counsel appearing on behalf of the petitioner challenges the judgment and order passed by the Industrial Court on the following three grounds, viz:- The Industrial Court failed to consider that : 1) The respondent bank issued transfer order dated 21.10.2009 with malafide intention to harass him. 2) The petitioner s services are not transferable. ’ 3) The respondent bank did not consider the personal difficulties of the petitioner that his father is suffering from cancer who is staying along with him. 5. With regard to the submissions made by the learned counsel appearing for the petitioner about the malafideness, he contends that respondent bank transferred in all six to seven persons from Mumbai to Nasik alongwith the petitioner. Thereafter, within short period, Bank transferred some of the persons from Nasik to Mumbai, without considering the petitioner s application. He submits that though the branch at Nasik did ’ not require his services, respondent bank has taken a decision with malafide intention. 6. For that purpose he relied on cross examination of Assistant General Manager which is at Ex.C-16. It is to be noted that the Industrial Court specifically recorded that there is no malafide on the part of the 3 wp1456-11 respondent bank for transferring the petitioner from Airoli to Nasik Branch and the same is required for their administration purpose. The Apex Court in the matter of Novartis India Limited Vs. State of West Bengal and Others (2009) 3 SCC 124 (para 34) held that unless an order of transfer is passed contrary to the provisions of the statutory rules or settlement, the same should not be interfered with. 7. I do not find any substance in the submission made by the learned counsel for the petitioner about the malafideness in transferring the petitioner from Airoli to Nasik Branch. 8. The next contention made by the learned counsel for the petitioner about services of the petitioner as non-transferable. 9. The learned counsel for the petitioner submits that in his appointment letter, no where it is stated that his services will be transferable at any place in Maharashtra. The Industrial Court accepted that there was no mention in the appointment letter of the Petitioner that his services were transferable. In order to counter the contention that the services of the petitioner were not transferable because there is no mention to that effect in his appointment letter, the Industrial Court relied on clause 27 of the Memorandum of Settlement under section 2(p) and section 18(1) of the Industrial Disputes Act, 1947 read with Rule 62 of the Industrial Disputes (Bombay) Rules 1957. Clause 27 reads as under: 4 wp1456-11 27. “ OUTSTATION AREA POSTING The Bank is having its branches in the state of Maharashra, Karnataka and Gurajat. In order to manage the business of these branches effectively it may require to deploy the staff members from their present place of posting to any of the branches. It is expected that all the staff members must render whole hearted co-operation to the bank and be ready and willing to work at outstation area branches away from their present place of domicile at least once in their service period. 10. It is crystal clear from clause 27 reproduced above that petitioner s’ services are transferable either in State of Maharashtra, Karnataka or Gujarat. Hence, I find no substance in the second contention raised by the learned counsel for the petitioner about his services are non- transferable. 11. The third contention made by the learned counsel for the petitioner is about non consideration of his personal difficulty, that is, illness of his father. The learned counsel for the petitioner submits that his father is suffering from cancer and he is staying along with him at Mumbai. This is negatived by the Industrial Court. It is specifically recorded in the order that the petitioner failed to prove that his father is staying along 5 wp1456-11 with him at Mumbai. It is categorically stated that his father is staying at Satara. Hence, there is no substance in the submission made by the learned counsel for the petitioner. 12. Considering these facts, I do not find any substance in the submissions made by the learned counsel for the petitioner. 13. Petition is dismissed. 14. No order as to costs. 15. Respondents are directed not to take any action till two weeks from today. (K.K. TATED, J.)