1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2507 OF 2009 Rajashtan Patrika Pvt Ltd. ..Petitioners Vs. Ajay Kumar Bihari & Anr. ..Respondents Mrs. N. R. Patankar with Mr. Vishwajit P. Sawant for the Petitioner Mr. R. D. Bhat for Respondents CORAM: DR. D.Y. CHANDRACHUD, J. DATE: 16th December , 2009 ORAL JUDGMENT : 1. Rule. 2. With the Consent of the Counsel, the Petition is taken up for final hearing. Learned Counsel for the Respondents waives service. 3. The First Respondent moved a complaint of Unfair Labour Practices under items 3, 9 and 10 of Schedule (IV) to the MRTU and PULP Act, 2 1971. The challenge in the complaint is to an order that was passed by the Petitioner, by which the service of the First Respondent was transferred from Mumbai to Barmer in Rajasthan. 4. The Petitioner publishes a Hindi news paper and has establishments in Jaipur, Rajasthan, Gujarat, Karnataka, Tamil Nadu, West Bengal and Madhya Pradesh. The Petitioner is stated to employ about 1858 employees all over India. Amongst, them are 600 reporters who are working journalists. 5. The First Respondent was initially employed as a reporter at Surat, on or about 15th October 2003. According to the First Respondent, he was assured that he would be placed at Mumbai after a period of three or four months, since an editorial office was to be set up at Mumbai. No letter of appointment has been issued to the First Respondent. According to the management the First Respondent had by his letter dated 11th December 2006, responded to the request of the management to submit his degree certificate. The First Respondent stated that he had completed his B.Sc from the University of Bihar at Muzaffarpur and that he was in the process of obtaining a duplicate of 3 his degree certificate. It is an admitted position that, the First Respondent was transferred from Surat to Mumbai and he continued to work in Mumbai, until he was informed on 19th August 2009, that he was being transferred to the Barmer establishment of the Petitioner. The Respondent moved a complaint for Unfair Labour Practices interalia complaining that he had not been furnished with a letter of appointment and there was no rule in the service conditions, providing for transfer of his service from Mumbai to other place. On this basis, it was urged that, there is a breach of item 9 of Schedule IV. As already noted earlier, the complaint is also founded on an alleged breach of item 3 of Schedule IV, in which the Unfair Labour Practice consists of a transfer of an employee malafide from one place to another under the guise of following management policy. 6. The Industrial Court noted that no letter of appointment had been issued to the First Respondent and that the First Respondent had declined to accept a contractual appointment which was sought to be effected under a letter dated 1st June 2009. The Industrial Court was of the view that there was no material on the record showing who was 4 working earlier at the place where the First Respondent has been transferred or who has been transferred in place of the First Respondent. The Industrial Court noted that it was not the case of the management that, the work has ceased at the place from where the First Respondent was being transferred. On this basis, the Industrial Court recorded the finding that, the complainant workman was being transferred with an ulterior motive without showing any exigency of work. 7. Counsel appearing on behalf of the Petitioner submitted that, in the present case the Certified Standing Orders provide for transferability from one place to another. The First Respondent was initially at Surat and was admittedly transferred to Mumbai in the past. Moreover, in the month of July 2009 about 41 transfers had been effected, to which a reference was made in the reply before the Industrial Court. The circumstances in which the transfer was effected, were referred to in the reply. In these circumstances, no case for staying the order of transfer was made out. 5 8. On the other hand, it has been urged on behalf of the First Respondent, that the reasons which were indicated in the reply filed by the management, would show that there were no plausible reason for the transfer and no exigency of work was shown. Counsel submitted that there was sufficient material before the Tribunal to support the finding, that the transfer was with an ulterior motive. The Tribunal having arrived at prima facie findings, it was submitted that the interference of this Court was not warranted in the exercise of the writ jurisdiction. 9. The order of the Industrial Court refers to the submission of the management that, under the Certified Standing Orders applicable to the establishment, the management did have the power to transfer the service of the First Respondent and, as a matter of fact, about 41 employees had been transferred. The Industrial Court, however, has not dealt with the question as to whether the management has the authority to effect a transfer under the Certified Standing Orders. This exercise was necessary since the Court was dealing with an application for restraining the management from giving effect to an 6 order of transfer, particularly at the interlocutory stage. A copy of the Certified Standing Orders is annexed to these proceedings. The definition of establishment under Certified Standing Order 2(5) includes all the establishments of the management situated in different parts of the country. A clause for transfer is specifically incorporated in Certified Standing Order 30. Therefore, prima facie, the order of the management transferring the service of the First Respondent from the office at Mumbai to Barmer, was within the purview of the Certified Standing Orders. The management in its Affidavit in reply filed before the Industrial Court, stated that since July 2009, 41 transfers of employees attached to the editorial department had been effected. The management also sought to support the order of transfer by furnishing certain reasons as to why the presence of the First Respondent was required at Barmer. At the interlocutory stage, once a power to transfer a workman is shown to exist in the management, the Industrial Court should have been circumspect while issuing an interlocutory injunction. The only reason which seems to have weighed by the Industrial Court is that, there is no material on record showing who was working earlier at the place 7 where the First Respondent was transferred and who was being transferred to the place from where the First Respondent is relieved at Mumbai. These reasons are wholly extraneous to the jurisdiction of the reviewing Court in a matter of transfer. The fact that the work at Mumbai had not ceased, is again not a relevant circumstance. The transfer was not on the ground that the work at Mumbai had ceased to exist, but on the ground that the exigencies of work required that a transfer should be effected. Such exigency of work is a matter for the management to decide. Undoubtedly, the Industrial Court does have the power to intervene where a prima facie case of unfair labour practices is made out, even at the interlocutory stage,(Brihan Mumbai Union of Journalists & Ors. Vs. Nav Bharat Press Ltd. & Anr.1). However, merely observing that an order of transfer has been passed with an ulterior motive or under the guise of the management policy, does not establish a case of malafides. Malafides have to be shown and demonstrated to exist and there must be a cogent line of reasoning in the order of the Industrial Court, before it can come to the conclusion that the transfer is malafide. Nothing of that kind is to be found in the impugned order of the Industrial Court. 1 2002 II CLR 67 8 10.For all these reasons, the order of the Industrial Court staying the operation of the order of transfer is manifestly unsustainable and would have to be quashed and set aside. The Impugned order of the Industrial Court dated 14th November 2009, is accordingly set aside and the Application for interim relief at Exhibit U-2 shall stand dismissed. The Petition is allowed and Rule is made absolute accordingly in the aforesaid terms. However, it is clarified that the observations contained in this order are confined to the disposal of the Application for interim relief and shall not come in the way of the trial of the complaint on merits. 11.In the circumstances, there shall be no order as to costs. 12.Counsel appearing on behalf of the workman has sought four weeks’ time to enable the workman to report at the place of transfer or, in the alternative, to challenge the present judgment. Having regard to the settled position in law relating to judicial interference in matters of transfer, no case for a stay of this judgment is made out. In the event 9 that the workman seeks an extension of time to report, it would be open to him to furnish a representation to the management. (Dr. D.Y.Chandrachud, J)