IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 25602 of 2004(W) ID.19/2002 of INDUSTRIAL TRIBUNAL, ALAPPUZHA PETITIONERS: ------------ 1. MANAGING DIRECTOR, NOVOPAN INDUSTRIES LTD., SURYODAYA, BEGUMPET, HYDRABAD. 2. THE AREA MANAGER, NOVOPAN INDUSTRIES LTD., 44/2590, A FREEDOM ROAD, KALOOR, KOCHI-682 017. BY ADV. SRI.ALEXANDER JOSEPH SRI.M.V.SABU RESPONDENTS: ------------- 1. THE PRESIDENT, ERNAKULAM DISTRICT, INDUSTRIAL ENGINEERING WORKERS UNION (INTUC) LABOUR PORT, KALABHAVAN ROAD, COCHIN-18. 2. AMMINI FRANCIS, ANJENI H.NO.314, CHANGAMPUZHA NAGAR P.O., COCHIN-33. 3. THE INDUSTRIAL TRIBUNAL, ALAPPUZHA. 4. STATE OF KERALA, REP. BY SECRETARY TO GOVT., DEPARTMENT OF LABOUR, GOVT.SECRETARIAT, TRIVANDRUM. BY ADV. SRI.A.V.XAVIER FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: W.P.C.NO. 25602/2004. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF APPOINTMENT LETTER DT. 15-3-1985. EXT.P2 TRANSFER ORDER DT. 1-11-2000. EXT.P3 ORDER DT. 7-11-2000. EXT.P4 LETTER DT. 1-12-2000. EXT.P5 PAPER PUBLICATIO DT. 18-12-2000. EXT.P6 LEAVE APPLICATION DT. 18-12-2000. EXT.P7 CLAIM STATEMENT DT. 19-9-2002. EXT.P8 WRITTEN STATEMENT DT. 25-1-2003. EXT.P9 REJOINDER DT. 15-5-2003. EXT.P10 PROOF AFFIDAVIT DT. 10-10-2003. EXT.P11 DEPOSITION OF R2 DT. 27-2-2004. EXT.P12 PROOF AFFIDAVIT DT. 8-3-2004. EXT.P13 DEPOSITION OF MANAGEMENT. EXT.P14 AWARD DT. 21-6-2004 IN E.D.NO. 19/2002. EXT.P15 LETTER DT. 13-9-2004. EXT.P16 LETTER DT. 15-9-2004. EXT.P17 LETTER DT. 8-6-2004. EXT.P18 LETTER DT. 22-9-2004. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 25602 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th August, 2008. J U D G M E N T In this writ petition, the petitioner, the management in I.D.No. 19/2002 before the Industrial Tribunal, Alappuzha, is challenging Ext. P14 award passed by the Tribunal in that I.D. The issues referred for adjudication were: “(1) Whether the transfer of Smt. Ammini Francis from Kochi to Hyderabad by the management of M/s. Nevopan Industries Ltd., is justifiable or not? (2) If not, what are the reliefs she is entitled to?” The Tribunal found that the transfer of the 2nd respondent-workman was unjustified and directed reinstatement of the workman with full pay and allowances as if she was working in the Cochin branch from 1-11-2000 onwards. However, management was permitted to deduct the entire monthly allowance she had been receiving from the Municipality as an elected Councillor of the Municipality from the backwages due to her. This award is under challenge before me. 2. The ground alleged for challenging Ext. P14 award is that the findings on evidence in the award is perverse. The contention of the management before the Tribunal was that the transfer was on account of restructuring of its branches at the national level, as a result of which employees from branches which were over-staffed were to be transferred out to other branches. The contention was, since there was no sufficient business and work to maintain a steno-typist at Cochin Office, the 2nd respondent, who was a steno-typist, was transferred from Cochin to Hyderabad branch. The Tribunal, after assessing the evidence on both sides, disbelieved the evidence of the management. The Tribunal came to the finding that the transfer was a mala fide action for the workman having contested an election as a Councilor of the Municipality and won. The Tribunal found that there W.P.C. No. 25602/2004. -: 2 :- was no necessity to transfer the workman from the Cochin office. 3. The learned counsel for the petitioner took me through the evidence on both sides. He would assert that the evidence sufficiently proves that as a result of restructuring of the branches of the management, the 2nd respondent had no place in the Cochin office. Counsel would assert that the contesting of election by the workman has nothing to do with the transfer and the Tribunal went wrong in connecting these two to find mala fides on the part of the management. 4. Counsel for the 2nd respondent-workman refutes the contentions of the petitioner-management. According to him, the 2nd respondent was the only stenographer of the Cochin office. She was doing all the typing and correspondence of the Cochin office. He would submit that as noted by the Tribunal, Ext. W5 letter, which was concluded in Ext. P14 award, has sufficiently proved this. Counsel would assert that in so far as the management had no case that the Cochin office had closed business, it goes without saying that the services of at least a typist was absolutely essential in the Cochin office in so far as apart from the 2nd respondent-workman, there was no other employee senior to the workmen who could do the work of typing. He would also submit that as found by the Tribunal, the transfer was a mala fide action since the management did not like the petitioner contesting the election which the workman won. 5. I have considered the rival contentions in detail. 6. No doubt, the management had sufficiently proved that the employment of the 2nd respondent-workman was transferable in nature as per her service conditions. Simply because the management had power to transfer, that cannot be a justification for the transfer itself. The Tribunal has powers to adjudicate on the W.P.C. No. 25602/2004. -: 3 :- justifiability of that transfer even when the management has powers of transfer. As such, it is for the management to justify the transfer of the 2nd respondent-workman in this case. Their case is that as a result of the restructuring of the branches all over India, Cochin office being over-staffed, some of its employees have to be transferred out to other branches. Since the Cochin office, on restructuring, did not need the services of a stenographer, the management was forced to transfer out the 2nd respondent to Hyderabad, is the case of the management. As I have stated, for that, the management should essentially prove that the Cochin office did not need the services of at least a typist. The management has no case that the Cochin office stopped business altogether. On the other hand, the case is that the Cochin office continued to function. If that be so, necessarily, the Cochin office had to enter into correspondence with customers as well as its head office and other branches. The petitioner-management was not able to prove that such work was done by anybody else. In so far as the 2nd respondent-workman was the only person who knew typing and since the work of correspondence necessarily involving typing, I am satisfied that the management has not proved that it was necessary to transfer out the workman from Cochin office to some other office on account of restructuring. On the other hand, I find that the evidence is sadly lacking in that respect apart from the assertion in the witness box by the area manager to the effect that the services of a stenographer were not needed for the Cochin office. No attempt whatsoever was made to prove as to who was doing the work of typing and correspondence in the Cochin office. The inference of the Tribunal from Ext. W5 to the effect that the same was issued after the restructuring and the same proved that the petitioner was asked to do other work in addition to that of steno-typist also cannot be held to be W.P.C. No. 25602/2004. -: 4 :- unjustified. The fact that in spite of the necessity of such work in the Cochin office the 2nd respondent-workman was in fact transferred to Hyderabad itself would be sufficient to infer improper motive on the part of the management. In addition to that, the workman was able to prove to some extent ill-will on the part of the management towards her, because of the fact that she won the local body election as a Councilor to the Municipality. The finding relying on the above evidence by the Tribunal in Ext. P14 award cannot, by any stretch of imagination, be held to be perverse. Without entering a finding of perversity, I will not be justified in interfering with Ext. P14 award under Article 226 of the Constitution of India, which is the settled law on the subject. Therefore, I do not find any infirmity whatsoever in Ext. P14 award. Accordingly, the challenge against Ext. P14 fails and the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/