1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO.311 OF 2008 Associated Cement Staff Union & Anr. : Petitioners versus ACC Ltd and others : Respondents. Shri.P.M.Patel, for the Petitioners. Shri.J.P.Cama with Shri Bharat Goyal i/by M/s.Haresh Mehta & Co. for the Respondent No.1. Shri A.I.Patel, AGP, for the State/Respondent No.4. Shri Neel Helekar for the Respondent Nos.2 and 3. CORAM : R.M.SAVANT, J. DATED : JANUARY 09, 2009 P.C. 1. By the above Contempt Petition, the Petitioners allege contempt of the order dated 3rd April 2007 passed by a learned Single Judge of this Court in Writ Petition No.1287 of 2007. The operative part of the said order is reproduced herein under :- i) the impugned order passed by the Industrial Court is quashed and set aside. 2 ii) The Petitioner is restrained from effecting retrenchment of any employee on the ground that they are rendered excess on introducing/implementation of SAP technology. Iii) The Petitioner shall also not redeploy or transfer the employees without prior permission of the Industrial Court and it shallo not redeploy/transfer any employee contrary to the terms of employment. 2. The Petitioners had filed a Complaint (ULP) No.541 of 2006 alleging unfair labour practice under Item No.9 of Schedule IV inasmuch as it was the allegation of the Petitioners that on introduction of SAP, which is a software, an employee who is not conversant with the operation of the system would become surplus and the change brought is without issuing notice of change under Section 9A of the Industrial Dispute Act which has effect of altering service condition. An interim order was passed by the Industrial Court restraining the Respondent No.1 from introducing the SAP technology till disposal of the complaint or till notice of change under Section 9A of the Industrial Dispute Act is given. It is aggrieved by the said 3 interim order that the Respondent No.1 filed the said Writ Petition No.1287 of 2007. What is relevant for the purpose of the instant Contempt Petition is that the said proceedings were relatable to the introduction of the SAP technology by the Respondent No.1 It is in the context of the said challenge to the introduction of the SAP that this Court had passed the directions contained in clauses (i), (ii) and (iii) of the said order. 3. It appears that the Respondent No.1 was desirous of transferring the Petitioner No.2 Mohit V. Thakar from its establishment at Kalamboli, New Mumbai to its establishment at Bangalore and, therefore as provided in Clause (iii) of the said order had sought permission of the Industrial Court by filing an application before it. The said application was considered by the Industrial Court and by its order dated 3rd July 2007, the said permission came to be granted to the Respondent No.1. The Industrial Court in the said order had recorded a specific finding that the transfer of the Petitioner No.2 to Bangalore is not on account of introduction of SAP and that the transfer of the employees of the Respondent No.1 is an incident of 4 their services. Thereafter pursuant to the permission granted by the Industrial Court by its order dated 3rd July 2007, the Respondent No.1 issued a transfer order of the Petitioner No.2 transferring him from Kalamboli, New Mumbai to Bangalore in a sister concern. On the issuance of the said transfer order, the Petitioners filed Complaint (ULP) No.398 of 2007 under the MRTU and PULP Act, 1971 challenging the said transfer order and in the said complaint, the Petitioner No.2 herein had filed an application for interim relief seeking stay to the said transfer order. The said application for interim relief came to be rejected by the Industrial Court by order dated 3rd October 2007. The Petitioner No.2 herein, therefore, filed two Petitions being Writ Petition Nos.863 of 2008 and 977 of 2008. In Writ Petition No.863 of 2008 the Petitioner No.2 had challenged the order dated 3rd July 2007 passed in Complaint (ULP) No.541 of 2006 and in the Writ Petition No.977 of 2008 the Petitioner No.2 had challenged the order dated 3rd October 2007 by which order the application filed by the Petitioner No.2 for interim relief in Complaint (ULP) No.398 of 2007 was rejected. 5 4. The said Writ Petitions came up for admission before a learned Single Judge of this Court on 27th February 2008. At the time of hearing of the said writ petitions, it appears that after the same were argued for some time, the learned senior counsel appearing on behalf of the Respondent No.1 made a statement that the impugned transfer order transferring the Petitioner No.2 to Bangalore would be withdrawn but without prejudice to all the rights of the Company i.e. the Respondent NO.1 as an employer. This Court, therefore, allowed withdrawal of the impugned transfer order without prejudice to the rights of the Company as an employer to issue a fresh order and consequently without prejudice to the rights of the Complainant- Petitioner to challenge such an order in the fresh proceedings. Both the said Writ Petitions were, therefore, disposed of as withdrawn as also the Complaint (ULP) No.398/07 which was pending before the Industrial Court, Mumbai. 6 5. After the said Writ Petitions were allowed to be withdrawn on 27th February 2008, the Respondent No.1 issued a fresh transfer order dated 28th February 2008 transferring the Petitioner No.2 to its Lakheri Cement Work, PO-Lakheri, Dist-Bundi, Rajasthan. It is the case of the Petitioners that the said order order is in breach and violation of the said order dated 3rd April 2007 passed by the learned Single Judge of this Court especially clause (iii) thereof. It is the case of the Petitioners that the Respondent No.1 could not have transferred the Petitioner No.2 without seeking permission of the Industrial Court as mandated by the said order and having not sought permission and having transferred the Petitioner No.2, the Respondent No.1 acted in breach and violation of the said order dated 3rd April 2007. 6. In the context of the allegations made in the Contempt Petition, a short question that arises is whether the Respondent No.1 was required to obtain permission of the Industrial Court before 7 transferring the Petitioner No.2, and whether there is breach and violation of the said order dated 3rd April 2007. As indicated herein above, the said proceedings before the Industrial Court by way of Complaint (ULP) No.541 of 2006 had arisen on account of introduction of SAP technology as a consequence of which a large number of employees of the Respondent No.1 were likely to turn surplus. It is in the said context that the said order dated 3rd April 2007 came to be passed by the learned Single Judge of this Court. The said order would therefore be relatable to the retrenchment or transfer on account of SAP technology. It would be pertinent to note that whilst considering the application for transfer of the Petitioner No.2 from Kalamboli to Bangalore, the Industrial Court has recorded a specific finding that the said transfer order was not on account of introduction of SAP technology but was an incident of service in so far as employees of the Respondent No.1 were concerned. It would also be pertinent to note that whilst disposing of the said two Writ Petitions i.e. Writ Petition Nos.863 of 2008 and 977 of 2008, this Court had permitted the Respondent No.1 to issue a fresh transfer order and 8 had also reserved the rights of the Petitioner No.2 to challenge the said order in the fresh proceedings. This Court, therefore, had not deemed it fit to direct the Respondent No.1 to seek permission of the Industrial Court. 7. It would also be significant to note that the Petitioners had filed a fresh complaint challenging the transfer order dated 28th February 2008 in which complaint an application for stay of said transfer order was filed by the Petitioner No.2. However, the Industrial Court but its order dated 19th July 2008 declined to stay the said order of transfer. The Petitioner No.2 had, therefore, filed a Writ Petition No.6305 of 2008 against the said order of the Industrial Court dated 19th July 2008. The said Writ Petition came to be dismissed by this Court by its order dated 11th November, 2008 holding that the transfer of the Petitioner No.2 was an incident of service. 8. It is not the case of the Petitioners that the said transfer of the Petitioner No.2 to Lakheri is on account of introduction of SAP 9 technology whereas it is the case of the Respondent No.1 that on account of the fact that the activities at Kalamboli were discontinued that the Petitioner No.2 had to be transferred. 9. In my view, considering the fact that the activities at Kalamboli establishment were discontinued and hence the Petitioner No.2 had to be transferred to Bangalore (which transfer order was withdrawn) as also the fact that the Industrial Court has recorded a specific finding that the said transfer order was not relatable to introduction of SAP technology. The Respondent No.1 was well within its rights as an employer to transfer the Petitioner No.2 to Lakheri Cement Works, Rajasthan, and same cannot be said to be in breach or violation of the order dated 3rd April 2007 passed in Writ Petition No.1287 of 2007. 10. In my view, therefore, no case for proceeding against the Respondents in the instant Contempt Petition is made out. The Contempt Petition is accordingly dismissed. 10 [R.M.SAVANT, J]