1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6305 OF 2008 Mohit V. Thakar ..Petitioner. Vs. ACC Ltd. and others .. Respondents. .... Mr. P.M. Patel for the Petitioner. Mr. C.U. Singh, Senior Advocate with Mr. Bharat Goyal i/b M/s. Haresh Mehta & Co. for Respondents 1 to 3. .... CORAM: DR. D.Y. CHANDRACHUD, J. 11th November, 2008. P.C. : 1. The Petitioner has challenged the interlocutory order passed by the Industrial Court on 19th July, 2008 to the extent that the Court declined to stay an order of transfer. Admittedly, transferability is a condition of service in the present case. The services of the Petitioner, who is engaged as an accountant were transferred in 2004 from the head office to Kalamboli. It is an admitted position that interim relief was refused in a complaint of unfair labour practices and the writ petition filed by the Petitioner (Writ Petition 2486 of 2004) was dismissed by a Learned Single Judge of this Court (Hon'ble Mr. Justice F.I. Rebello). However, 2 there was a direction of the Industrial Court to the effect that the conditions of service shall not be prejudicially altered at the place of transfer. The management had proposed to introduce Systems Application Process (SAP). The introduction of the SAP was the subject matter of a complaint of unfair labour practices in which an interim order was passed by the Industrial Court injuncting the company from doing so. The order of the Industrial Court was challenged in writ proceedings before this Court. By an order of 3rd April, 2007 the order of the Industrial Court was set aside subject to the condition inter alia that the management shall not effect retrenchment on the ground of surplusage and shall not redeploy and transfer an employee without the prior permission of the Industrial Court. The Petitioner continued to be allocated to the Kalamboli establishment. The management moved an application for the permission of the Industrial Court in terms of the order passed by this Court on 3rd April, 2007 seeking permission to transfer the Petitioner to its establishment at Bangalore on the ground that the activities at the Kalamboli establishment were discontinued. Permission was granted by the Industrial Court on 3rd July, 2007. In pursuance thereof an order of transfer was served on 13th September, 2007 recording that the activities of the company at the plant at 3 Kalamboli had been discontinued with effect from 6th October, 2006 consequent upon which the services of the Petitioner were being transferred to the plant at Bangalore. 2. The order of transfer was challenged again before the Industrial Court in complaint of unfair labour practices in which interim relief was refused. The order of the Industrial Court granting permission and the order declining interim relief were once again challenged in writ proceedings before this Court. When the Petition came up for hearing before the Learned Single Judge on 22nd February, 2008 it transpired that with effect from 1st January, 2008 the division of the management at Bangalore had been reconstituted into a new company. In view of the aforesaid position, a statement was made on behalf of the management that without going into the question as to whether it was entitled to transfer an employee to an associated company, the management shall withdraw the order of transfer without prejudice to its right to issue a fresh order. The order of transfer was accordingly withdrawn leaving it open to the employer to pass a fresh order of transfer. Thereupon an order was passed on 28th February, 2008 transferring the Petitioner to the establishment of the management 4 at Lakheri in the State of Rajasthan. The Industrial Court has declined to injunct the management from acting upon the order of transfer. The Industrial Court has taken note of the fact that transferability is the condition of service. The Court has recorded a prima facie finding of fact that there was no assurance to the effect that the consent of the employee would be taken before an order of transfer was implemented. The Industrial Court has also found prima facie that the order of transfer was neither relatable to the Voluntary Retirement Scheme nor did it constitute an act of victimization. It has also been found prima facie that there are no vacancies in the head office. 3. Counsel appearing for the Petitioner submitted that in the reply which was filed on behalf of the management before the Industrial Court it has been averred in paragraph 3(s) that in the establishment at Lakheri there was a requirement of a clerical hand having knowledge of RMC (ready mix concrete) accounting procedures. It was urged that the admitted position is that with effect from 1st January, 2008 the RMC division has been hived off by the constitution of a new company and that consequently the reason which has been set up in paragraph 3(s) of the reply is 5 without substance. 4. Having heard the learned counsel, I am of the view that consistent with the well settled parameters relating to the interference of Courts in matters of transfer, no case for interference has been made out under Article 226. Transferability is admittedly a condition of service. The services of the Petitioner were transferred in the past in the year 2004 to Kalamboli from the head office. The challenge by the Petitioner to the order of transfer did not succeed at the interim stage since the order of the Industrial Court declining interim relief was confirmed by the Learned Single Judge of this Court. In relation to the introduction of the SAP system, an order was passed by this Court permitting the management to introduce the system subject to certain safeguards, one of them being that no order of transfer shall be implemented without the permission of the Industrial Court. The Industrial Court had as a matter of fact permitted the management to transfer the Petitioner to Bangalore. However, with effect from 1st January, 2008 the division at Bangalore was reconstituted into a new company following which a statement was made before this Court on 27th February, 2008 that the management would withdraw the order of 6 transfer to Bangalore without prejudice to its right to issue a fresh order of transfer. The Industrial Court has furnished cogent reasons for declining to stay the operation of the order of transfer. The fact finding Court having arrived at prima facie conclusions on the basis of the material on the record, this Court would not be justified in the exercise of its extra-ordinary jurisdiction under Article 226 to reassess the evidence and to substitute its conclusion for the findings of the Industrial Court. No case for interference has therefore been made out. The Petition is dismissed. Parties would, however, be at liberty to move the Industrial Court for an expeditious hearing of the complaint. *****