:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 253 OF PETITION NO. 253 OF PETITION NO. 253 OF 2009 2009 2009 ACC Ltd. ... Petitioner. V/s. Associated Cement Staff Union. ... Respondents. Mr. J.P. Cama, Sr. Counsel with Mr. Bharat Goyal and Neha Mehta i/b. Haresh Mehta & Co. for the Petitioner. Mr. P.M. Patel for the Respondents ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 16TH 16TH 16TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . This is a Petition under Article 226 of the Constitution of India challenging the Interim order of Industrial Court in Complaint (ULP) No.14 of 2009. 2. By the order under challenge delivered on 30th January 2009, the Industrial Court has restrained the Petitioner - Employer from giving effect to the Transfer Orders issued on 2nd January 2009 to the Employees more particularly referred in the order of the Industrial Court. However, at the same time, the Respondents, that is the Petitioners before me, have been granted liberty to comply with Section 9A of the Industrial Disputes Act, 1947. 3. The complaint was filed by the Respondents to this :2: Petition seeking to represent 10 employees. Some of them are Typists and others are Clerks and Peons. 4. They have been transferred out of the State of Maharashtra. Except one who is transferred to Chandrapur in Maharashtra State all others are transferred out of Maharashtra. 5. The submission of Mr. Cama, learned Senior Counsel appearing for the Petitioner is that the Industrial Court has erred in staying the orders of transfer. He has invited my attention to the observations of the Industrial Court to the effect that prima-facie the transfer orders are not malafide. He submits that if the conclusion is that they are not malafide, then, there was no warrant for interfering with the same on the ground that Section 9A of the Industrial Disputes Act, 1947 has not been complied with. Apart from the fact that the Section has been amended recently to take care of the contingencies of Technological Advancement, Mechanization and Computerization and therefore, workforce being rendered surplus, still, a perusal of the unamended provision which has been relied upon to in the instant case, would go to show that unless there is an irreperable loss and injury to the workmen concerned, there was no reason to hold that the transfers are bad for want of compliance with Section 9A of Industrial Disputes Act, 1947. He submits that a case of transfer is not covered by the Item that is :3: referred to by the learned Judge. In other words, when there is no prima facie case made out of any malafides or the transfer order being vitiated otherwise, the Industrial Court should not have interfered with the same. 6. Mr. Cama has invited my attention to several decisions of this Court and the Supreme Court on the applicability of Section 9A and the power of Industrial Court to interfere with orders of transfer. The submission of Mr. Cama is that once the workmen are aware that the services are transferable, then, there was no reason to interfere with the orders transferring them. According to Mr. Cama, today the workmen sitting idle and the employer pays them idle wages. 7. Mr. Patel, learned Counsel appearing for the Complainant - Union on the other hand contends that this is not a case where the Court could not have passed any interim orders. Ultimately, this is an interim order protecting the services of Grade III and Grade IV employees. He submits that it is inconceivable and unimaginable that Managers and Assistant Managers have adequate and sufficient work whereas there is no work for Typists, Clerks and Peons in the Office. He submits that earlier there was an attempt made to resort to the same policies but the Industrial Court has not permitted the same. In other words, switching to another Technology was not permitted so as to reduce the work force. In such :4: circumstances and when full-fledged trial is yet to commence, if this Court interferes at this stage, the complaint itself would be rendered infructuous. Hence, the Petition be dismissed. 8. With the assistance of the learned Counsel appearing for both sides, I have perused the complaint the Interim Application and reply thereto, so also the order of the Industrial Court. In the complaint, the Respondents plead that the Petitioners have committed an Unfair Labour Practice by transferring the employees on whose behalf the complaint is filed. Amongst others, the grounds on which the reliefs are sought are that the Petitioners have put up a notice of voluntary retirement in May 2006 which was valid till 31st March 2007. The complaint was filed alleging Unfair Labour Practice with regard to this Voluntary Retirement Scheme. Thereafter, the transfer orders have been issued. The 10 employees from Share Department have been transferred. The nature of the work performed by each of them has been set out together with the composition of the Share Department. The necessary averments are made in the complaint in paragraph 3 and thereafter, it is alleged that the Petitioners have several Grades of employees. If the Petitioners case is that there is no work in the Share Department, then, one cannot justify their act on giving promotions in certain Grades. Only bargaining category employees that is Peons/Daftaries/Clerks are allegedly :5: rendered surplus whereas there is work available for all other Grades. This is a allocation made in the context of the work of dematerialization of shares. It is alleged that it may have reduced the work of transfer of shares but several other functions such as Dividend Distribution, Marking of Annual Report, Replies to shareholder’s querries/grievances, Filing of papers and Report with Stock Exchange, etc. is the work which has still to be performed. Thus, there is a serious challenge to the action taken on the purported ground of reduction of work. It is disputed that the work is reduced as alleged. That apart, if the Petitioners have reduced the work force was it necessary to comply with Section 9A of Industrial Disputes Act, 1947 or not. At this stage, no conclusive finding can be rendered on the applicability of the same. It is only when complete materials are placed on record that the Court can decide this Issue. It is not as if this is not an arguable Issue. In this case a perusal of the complaint will show that the Respondents have raised a serious Issue as regards the alleged transfer policy. Apart from urging that the Employees such as clerks and Peons were never transferred by the Petitioners despite transfer being allegedly a condition of service, it is alternately urged that such transfers were effected with consent of the employees of this grade. Reliance is placed in the complaint on the consent of one employee Mr. Adit Bhatena. Thus, on all Counts, namely, Power of Transfer, exercise of this power assuming that there is :6: such a power and necessity of effecting the same duty in the case of Typist, Clerks and Peons are matters, interalia raised in the complaint and surely they cannot be brushed aside with opportunity to the Respondents to prove their case. In such circumstances, without a notice of change under Section 9A, the Petitioner could not have resorted to the impugned action is one of the allegations in the complaint apart from the challenge to the transfer orders being vitiated otherwise. 9. In the reply affidavit which has been filed on behalf of the Petitioners, the deponent has stated that on account of business necessities, a system was introduced for System Application & Products Technology (for short "SAP"). That was challenged by filing a complaint. On the Union’s complaint, interim relief was granted and that interim order was challenged in this Court whereby the Petitioners were called upon to protect the services. 10. However, what is overlooked, in my view, is that the interim order even in that case did not permit the Petitioners to redeploy or transfer an employee without prior permission from the Industrial Court. Today all allegations are denied and the action is sought to be justified on merits by pointing out that the work has reduced. There is an exhaustive reply to the complaint allegations. The complaint is yet to be tried. At this stage, only obligation on the Court below is to find out :7: whether a prima-facie case is made out and the Balance of convenience lies in whose favour. Similarly, who shall suffer irreparable loss if Interim Order is not granted. 11. While it is true that the findings of the Industrial Court at this stage in para 5 would go to show that the Court has prima-facie concluded that there are no malafides behind the transfer and that the employees cannot be kept idle, yet, all these are tentative and prima facie. It is not as if the Court was required to give a finding on each of the aspects that have been raised before it during the course of arguments on the Application for Interim Relief. If the Court finds upon the material produced that this is a case where the Petitioners seek to by-pass Section 9A of the Industrial Disputes Act and therefore, it refers to the materials in that behalf and holds that a prima-facie case is made out, it is not as if it cannot grant any interim protection. It is not necessary that in the facts of this case, the Court must record a finding that the transfer is prima-facie malafide and only then it can stay the Order of Transfer. If the Court has satisfied itself, prima-facie, that the statutory provision in the field has not been complied with and therefore, grants an interim protection does not mean that its order is vitiated as contended by Mr. Cama. 12. In this behalf, it is pertinent to note that the :8: complaint is filed invoking Item 3 and 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971. Therefore, the Industrial Court was in no error in granting Interim Protection, after perusing the entire complaint and considering the reply of the Petitioners. From the chart that has been produced alongwith the complaint, it is apparent that some of the persons before the Industrial Court have been taken out from this Share Department while retaining others in the same Department. Whether that would amount to a case of simplicitor Transfer as a part of the terms and conditions of service or whether it is a reduction in the workforce necessitating compliance with Section 9A or not are matters which must be decided on the basis of the materials placed before the Court at Trial. It is not permissible to hold at this stage that Section 9A was not required to be complied with. Even on the aspect of malafides or the transfer being vitiated otherwise, this is not the stage at which one can conclude that there are no malafides at all. If the allegations in the complaint are perused as a whole coupled with the grievance that only Typists, Clerks and Peons are being transferred and that to too distant places in India then, it would be necessary for the Court below to allow the parties to place their version completely. Whether the work in the Share Department has gone down to such an extent so as to conclude that there is no work for Typists or Clerks/Peons/Daftaries is something which must be decided after a full-fledged trial. If persons of these :9: grades are being protected by interlocutory order, then, merely because the Petitioners will have to pay some wages to them is no reason to interfere. Ultimately, the Petitioners can allot them work and no order of the Court below and no direction in the same can be construed as taking away that authority of the Petitioner - Employer. If the interim order is passed on the basis that compliance should be made with the provisions of law and until that is done, the Employer is restrained from giving effect to its orders, then, in my view, this is not a case for interference in my Extra-ordinary, Equitable and Discretionary jurisdiction under Article 226 of the Constitution of India. 13. It is not necessary to make a detailed reference to the Judgments and decisions cited inasmuch as none of them is rendered at the stage of Interim Relief. The order of the Single Judge/Division Bench of this Court interfering with the Industrial Court’s Interim order turns upon its own facts. All other decisions and principles therein are laid down after a full-fledged trial and after evidence was led. In such circumstances, not to prejudice the case of rival parties, it is desirable that no detailed reference is made to them. 14. In the aforesaid circumstances, the Petition is dismissed. However, it is clarified that all findings are tentative and prima-facie and shall not influence the :10: Court below while trying the compliant which must be decided on its own merits and in the light of the evidence placed before the Court below. In the peculiar facts of this case, hearing of the main complaint is expedited. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)