1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.548 OF 2009 IN WRIT PETITION NO.508 OF 2009 The General Secretary, Akhil Bharatiya Kamgar Sena and Ors. .... Appellants V/s. Anjuman-I-Islam’s M.H.Saboo Siddik College of Engineering ..... Respondent WITH NOTICE OF MOTION NO.4138 OF 2009 IN APPEAL NO.548 OF 2009 IN WRIT PETITION NO.508 OF 2009 The General Secretary, Akhil Bharatiya Kamgar Sena and Ors. .... Appellants V/s. Anjuman-I-Islam’s M.H.Saboo Siddik College of Engineering ..... Respondent Mr.K.P.Anil Kumar, for the appellants. Mr.J.P.Cama, Sr.Advocate a/w Ms.N.R.Patankar i/by V.P.Sawant, for the respondent. CORAM :P.B.MAJMUDAR, & R.V.MORE, JJ. DATE : DECEMBER 14, 2009 P.C. 1. This appeal is directed against the judgment and order of the learned Single Judge dated 09-11-2009, by which the learned Single 2 Judge allowed the writ petition filed by the respondent-Management and the order of the Industrial Court dated 13th December, 2008 is set aside by the impugned order. However, the learned Single Judge directed the Industrial Court to dispose of the complaint preferably by 30th April, 2010. 2. The learned counsel for the appellants strenuously argued that the appellants could not have been transferred from one institution to another one against his wish and that the Standard Code 98 is not applicable to him and therefore, there is no question of applicability of Clause 34 of the Standard Code. The learned counsel for the appellant submitted that since respondent had no power to transfer the appellant from one institution to another, the transfer order is required to be set aside. He submitted that though the distance where the appellant is transferred, may be less, however, since there was no powers for such transfer, the transfer order is bad in law. He further submitted that even in the past, he was transferred only by way of deputation and he was not transferred by way of regular transfer. He submitted that the learned Single Judge has not properly appreciated the ration laid down by the Supreme Court in the case of M/s.Kundan Sugar Mills V/s. Ziyauddin and Ors., AIR 1960 SC 650. He submitted that in any case, the learned Single Judge could not have interfered with the interim order passed by the Industrial Court, especially when the interim order was already in force 3 since nine months at the time when the petition was taken up for hearing. 3. On the other hand, the learned Senior Counsel for the respondent submitted that the Standard Code is applicable and as per Clause 35(1), it is open to the management to transfer the appellant, as in a given case, for administrative exigencies, an employee can be transferred from one place to another belonging to the same institution. The learned counsel for the respondent further submitted that when the power of transfer of an employee is available, normally the Courts should not interfere with the administrative decision of the management and it is for the management as to who should be posted at which place for the better administration. He further submitted that allegations levelled by the appellant that he is transferred out of vengeance is not correct. He submitted that in any case, the Tribunal should not have given interim relief against the transfer order and the learned Single Judge has rightly set aside the order by remanding the matter back with a direction to dispose of the matter within the stipulated period. 4. We have heard the learned counsel for the appellant and the learned Senior Counsel for the respondent-Management. The Industrial Court in Para 10 of its order observed as under : “No doubt, as per the Clause 35(1) of the Standard Code Rules, 1998, the respondent can transfer the employees on administrative exigencies. The transfer 4 orders are issued to the complainants No.2 and 3 goes to show that the complainants are transferred on administrative grounds by the respondents and both the complainants are relieved by the respondent on 31-12-2008”. 5. The learned Single Judge was of the opinion that unless entire complaint is adjudicated on merits, the Industrial Court should not have granted stay against the transfer order and under the facts and circumstances of the case, the learned Single Judge interfered with the said order and directed the Industrial Court to dispose of the complaint within the stipulated time. In our view, whether the standard code is applicable or not and whether transfer is by way of punitive action to jeopardize trade union activities, are the questions which are required to be decided after considering the evidence on record. After appreciating the evidence on record, the Industrial Court will have to give findings on these aspects. But this is a pre-matured stage at which any opinion can be expressed one way or other. Considering the said aspect, we would not like to interfere with the order passed by the learned Single Judge, as ultimately if the appellant succeeds, he can get necessary reliefs in connection with the challenge to the transfer order. Suffice it to say that point in issue can be determined after considering the evidence on record. It is clarified that the opinion expressed by the learned Single Judge and 5 whatever we have observed here is to be treated as of tentative in nature for deciding interim relief only. The Industrial Court will have to decide the complaint on its own merits and as per the evidence on record without being influenced by the order of the learned Single Judge and this order. 6. Subject to what is stated above, we see no point in interfering with the order passed by the learned Single Judge. The appeal is accordingly dismissed. The Industrial Court now may dispose of the complaint latest by 30-03-2010. 7. In view of the disposal of the appeal, the notice of motion does not survive and the same is accordingly disposed of. ( R.V.MORE, J. ) ( P.B.MAJMUDAR, J.)