1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8443 OF 2011 The General Manager, Forest Development Corporation .. Petitioner V/s Shri.H.S.Pawar & Ors. .. Respondents Mr.M.S.Karnik with Mr.Sanskar Marathe for the petitioner. Mr.S.V.Kotwal with Mr.A.R.Kapadnis for Respondent Nos.1 to 3, 5 to 13, 15 to 27 and 29. Mr.R.D.Suryawanshi for the Intervener in C.A.No.2258/2011. CORAM: R.G.KETKAR, J. DATE: 20th October, 2011. P.C.: 1. Heard Mr.M.S.Karnik, leanred counsel for the petitioner, Mr.S.V.Kotwal, learned counsel for the Respondents and Mr.R.D.Suryawanshi, learned counsel for the interveners in the Civil Application No.2258/2011. Mr.Karnik states that the transfer of Respondent Nos.4, 14 and 28 was cancelled by order dated 19.09.2011 and therefore seeks permission to delete these Respondents. On the application made by Mr.Karnik, names of Respondent Nos.4, 14 and 28 are allowed to be deleted from the petition. 2. Rule. Learned counsel for the Respondents waive service. By consent of the parties, Rule is made returnable forthwith and is 2 heard finally. 3. By this petition, the petitioners are challenging the judgment and order dated 05.10.2011 passed by the learned Member, Industrial Tribunal, Nashik below Exhibit U-2 in Complaint (U.L.P.) No. 139 to 167 of 2011. By that order, the Tribunal partly allowed the application made by the Respondents, hereinafter referred as complainants at Exhibit U-2. The Tribunal stayed the transfer order dated 15.09.2011 till the end of the current academic year (April/May-2012). The Tribunal permitted the petitioner to temporarily transfer the complainants after the expiry of current academic year subject to ensuring that the seniority and other benefits of the complainants are not adversely affected. The relevant and material facts for the purpose of disposal of this petition are as follows. 4. The complainants are working as clerks in Forest Development Corporation, Nashik Region (for short ‘Corporation’). They filed complaint under section 28 read with Item Nos.3, 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short the ‘Act’), challenging the transfer order dated 15.09.2011. The main 3 contention raised by the complainants is that when the complainants were appointed, in the appointment letter there is no clause pertaining to transfer. Their case is that under the service rules / regulations, the Corporation has no power to effect the transfer out of Nashik Region as their appointments were made in Nashik Region. 5. Pending this complaint, the complainants took out application under Section 30 (2) of the Act praying for interim relief. In support of this application, an affidavit was made by one of the complainants Mr.R.B.Shinde. 6. The Corporation resisted the complaints, as also the application for interim reliefs by filing their say. It is contended that in the initial years lot of forestry development work was carried out. However, for want of sufficient forest land, the Corporation has to reduce its activities. Due to reduction of work, certain forest divisions have been closed. Because of this, depending on availability of work, it has become imperative to curtail total strength of the staff. This aspect was considered by the Board of Directors of the Corporation and the resolution was passed. The said resolution was communicated to the Government of 4 Maharashtra. By order dated 24.01.2011 the Government of Maharashtra approved the staffing pattern of the Corporation consisting of 1688 posts. Prior to issue of this Government order dated 24.01.2011, the Corporation had transferred 14 clerks to other region on administrative ground. Out of these, some of them were taken back. However, 9 clerks of Nashik Region were still working in other regions. After reviewing the strength of clerical staff, it was found that as against the requirement of 32 clerks for Nashik region, 52 clerks are working. It therefore became imperative to either transfer the excess 20 clerks working in Nashik region to other regions or to remove them from the services. The Corporation however took a sympathetic view and decided to transfer the excess clerks to some other region and continue them in service. The Corporation also took into account the fact that 9 employees of the Nashik region were transferred in the year 2007 and they were working in other regions. Out of these 9 employees, 8 of them have been transferred back to Nashik region by order dated 15.09.2011 and the complainants have been transferred from Nashik region to other regions on 15.09.2011. It is also contended that there is shortage of staff in 5 Chandrapur / Nagpur/ W.F.P.and other regions i.e.posts of clerks sanctioned in this regions was 120 whereas only 90 emloyees were working. Thus 30 posts were vacant. In order to accommodate excess employees of the Nashik region, like the complainants herein, the Corporation under the letter dated 01.04.2011 requested the Government to sanction and enhance strength of 181 posts as a whole so that the complainants are accommodated in Nashik region itself. However, the said request was turned down by the Government by its letter dated 06.06.2011. After receipt of this letter the said issue was considered in the meeting of Board of Directors on 04.08.2011. As the additional posts were not sanctioned, the Corporation had two alternatives. One to either retrench the excess staff or two to accommodate them in other regions. It was decided in the said meeting that in order to ensure smooth administration and to accommodate the excess staff, they should be temporarily transferred out of the Nashik region by rotation as per their seniority. In view of this, transfer orders were issued by the Managing Director on 15.09.2011 and 19.09.2011 effecting transfer of excess employees of the Nashik region. 6 7. By the impugned judgment and order dated 05.10.2011 the Tribunal has stayed the transfers till the end of current academic year (April/May-2012). The Tribunal came to the conclusion that on one hand the case made out by the Corporation is that in Nashik region there are excess employees, and on the other, the Corporation brought back 8 employees from other regions to Nashik region. The Tribunal also found that though the transfer order recites that the complainants are transferred for temporary period, however the exact period of transfer is not mentioned and finally it also came to the conclusion that the Corporation has no power to transfer the employees from Nashik region to other regions. The Tribunal came to the conclusion that prima-facie the transfer effected by the Corporation is not as per the service conditions. 8. In support of this petition, Mr.Karnik submitted that in the facts and circumstances of the present case, it cannot be said that the action of the Corporation in transferring the complainants is malafide. He invited my attention to the steps taken by the Corporation and the correspondence made with the State Government for getting sanction for additional posts. However, 7 the proposal for sanctioning the additional posts was turned down by the State government on 06.06.2011 and therefore, in the meeting of Board of Directors dated 04.08.2011, decision was taken to transfer the complainants. The Corporation took a sympathetic view of the matter and rather than removing the complainants from the service, they were accommodated in the other regions where there are vacant posts. He therefore submitted that no malafide can be attributed to the transfer orders. 9. In so far as power to transfer is concerned, he invited my attention to the Memorandum of Association of the Corporation and in particular clause 36 thereof which reads as under:- “36. To employ foresters, cultivators, gardners, engineers, mechanics, mason, carpenters, scaffold settlers, painters, electricians and other technicians, salesmen, commercial and administrative staff and such other staff as may be found necessary to the efficient handling and conduct of the business of the Company.” 10.He also invited by attention to the Articles of Association of the Corporation and in particular Article 90 laying down the general powers of th Directors of the Corporation. He also pointed out Article 91 dealing with specific powers of the Board. Article 91 (5) empowers the Board to appoint officers, and the same reads as under:- 8 “91. Specific Powers to Board. Without prejudice to the general powers conferred by the last preceding Article, and the other powers conferred by these Articles and subject to the provisions of the Act the Board shall have the following powers, that is to say power:- (5) To appoint officers etc. to appoint at their discretion, remove or suspend such managers, secretaries, officers, clerks, agents, and servants for permanent, temporary or special services as it may from time to time think fit, and to determine its powers and duties and fix their salaries or emoluments and to require security in such instances and to such amount as it thinks fit; provided that no appointment to a post in the company carrying basic pay of or above Rs.75500/- per month shall be made without the prior approval of the Governor.” 11.He also relied upon Article 94 dealing with the general management in hands of Managing Director, and the same reads as under:- “94. The Managing Director, subject to the provisions of the Act, and these Articles shall be entitled to the management of the whole of the affairs of the Company and he shall exercise his powers as such Managing Director subject to the superintendence, control and direction of the Board of Directors of the Company.” 12.He submitted that the powers of Board of Directors have been delegated to the Managing Director. He relied upon Part II of Delegation of Powers and in particular he relied upon clause 3 of part II dealing with “postings and transfers”. The said clause 3 of 9 part II reads as under:- Sr.No. Nature of Power Extent of which delegated 3. Postings and Transfers Full Powers. Relying upon these provisions Mr.Karnik submitted that the Corporation has power to transfer the employees. He submitted that the transfer is incidence of service. It is an implied term of the service conditions. At any rate, submits the counsel, the power to appoint includes power to transfer. 13.Mr.R.D.Suryavanshi who appears for the interveners in Civil Application No.2258/2011 adopts the submissions made by Mr.Karnik. 14.On the other hand Mr.Kotwal supported the impugned order. He submitted that basically the Corporation has no power to transfer the complainants. He submitted that before appointing the complainants, an advertisement was issued, which was only in respect of Nashik region. He also submitted that there is no clause in the appointment letter pertaining to transfer. Even the Articles of Association do not authorize the Corporation to transfer the employees from one region to other region. He therefore submitted that the impugned order does not call for any interference. 10 15.I have considered the rival submissions made by learned counsel appearing for the parties. The Respondents have filed complaint under section 28 read with Item Nos.3, 5, 9 & 10 of Schedule IV of the Act. The Tribunal has prima-facie recorded a finding that the Corporation has committed unfair labour practice covered by Item Nos.3 & 9 of Schedule IV of the Act. Item Nos. 3 & 9 of Schedule IV of the Act read as under:- “3. To transfer an employee malafide from one place to another, under the guise of following management policy.” “9. Failure to implement award, settlement or agreement.” 16.It is not in dispute that pursuant to the advertisement issued by the Corporation, the complainants were appointed. Perusal of the advertisement dated 17.03.1983 indicates that the applications were invited for the posts of clerks in the Nashik region. After the selection process, the complainants were issued appointment letters and it is not in dispute that there is no clause about transferability of the employees. Mr.Karnik relied upon clause 36 of the Memorandum of Association. Perusal of clause 36 indicates that the Corporation is empowered to employ certain category of persons as may be found necessary for efficient handling and conduct of the business. Mr.Karnik submitted that the power to 11 employ and appoint, includes power to transfer. He also relied upon the Articles of Association of the Corporation and in particular clause 91(5) thereof to contend that the Board of Directors are authorized to appoint at their discretion, remove or suspend the managers, secretaries, officers and clerks etc., as it may think fit. He therefore submitted that the power to appoint clerks, among others, would also include power to transfer. Finally he relied upon the delegation of powers by the Board of Directors to the Managing Director and in particular Clause 3 of Part II which authorizes the Managing Director to transfer the employees. 17.I do not find any substance in the submissions made by Mr.Karnik. The proposition that the power to appoint also includes power to transfer cannot be accepted in the absence of any contract between the parties or any provision in the service rules/regulations. As noted earlier, in the appointment letter there is no clause about transfer of the employees. The reliance placed on the Articles of Association and in particular clause 91(5) is therefore of no assistance to the Corporation. Prima-facie therefore it cannot be said that the Board of Directors has power 12 to transfer the employees. If that be so, the question is whether the Board of Directors can delegate its power of transfer to the Managing Director. 18.Perusal of Part I of Delegation of Power shows that the Delegation of Power is subject to the provisions of the Indian Companies Act, Memorandum of Association & the Articles of Association of the Corporation. Prima-facie I find that there is no provision in the Memorandum of Association and the Articles of Association of the company authorizing the Corporation to transfer the employees. Since the Board of Directors has prima- facie no power to effect the transfer, there is no question of delegating the said power to the Managing Director. In view thereof, I do not find any substance in the submission made by Mr.Karnik that the petitioner has power to effect the transfer. 19.It has been observed by Division Bench of this Court in the case of Darakshan S.A.Shaikh (Ms.) V/s.State of Maharashtra & Anr., 2007 III CLR 973, that it is a settled principal that transfer is an essential incidence of service. It is primarily in the domain of the concerned authority. To claim or prevent transfer to a particular place is not for the employee. The guidelines or rules 13 framed in relation to the transfer do not vest any indefeasible right in an employee (Paragraph 5). It has been further observed that ordinarily the orders of transfer are made in the exercise of administrative authority to meet the exigencies of service and in public interest. How the administration has to run its affairs is not a matter which squarely falls in the judicial domain. Unless the orders of transfer were in conflict with Rules and were made for ulterior motives or in patent arbitrary exercise of powers, the Court would decline to interfere in such matter (Paragraph 7). 20.The Industrial Court has undoubtedly jurisdiction to pass interim orders under section 30 (2) of the Act. As noted earlier, the complaint invokes Items 3 & 9 of Schedule IV of the Act. Therefore the question is whether the transfer is a condition of service in the present case. I have already held that prima-facie, the Corporation has no power to transfer employees from one region to another region. No rule/regulation or the term of contract prima-facie permits the Corporation to transfer the employees. As held by this Court in the case of Maharashtra General Kamgar Union V/s.All India Handloom Fabrics Marketing Co-op.Society Ltd. & Anr., 1991 II CLR 293, the 14 lack of legality to an act or omission amounts to legal malafides and that would be covered by Item 3 of Schedule IV of the Act. 21.Apart from this, there is one more reason for declining to exercise powers under Article 226 of the Constitution of India. The Tribunal has stayed the transfer order dated 15.09.2011 till the current academic year (April/May, 2012). The Tribunal has permitted the Corporation to temporarily transfer the complainants after expiry of current academic year, subject to ensuring that the seniority and other benefits of the complainants are not adversely affected. 22.By the impugned order, the Industrial Court has granted stay on the ground that prima-facie order of transfer is not in accordance with the service conditions and that the petitioners have not shown under what powers they have transferred the complainants and therefore amounts to unfair labour practice covered by Item Nos.3 & 9 of Schedule IV of the Act. I do not find that the Tribunal has committed any error while passing the impugned order. It cannot be said that the Tribunal has committed any error of law apparent on the face of the record or that the impugned order suffers from any perversity. In the result petition fails and 15 the same is dismissed. Rule is discharged. In the circumstances of the case, however, there shall be no order as to costs. 23.In view of disposal of the Writ Petition No.8443/2011 nothing survives in the Civil Application No.2258/2011 and hence, Civil Application No.2258/2011 also stands dismissed. (R.G.KETKAR, J.)