1 AO-711-2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.711 OF 2007 IN NOTICE OF MOTION NO.2756 OF 2007 IN SUIT STAMP NO.2811 OF 2007 1. Singapore Airlines Limited 2. Mr.Foo Chai Woo .. Appellants (Orig. Defendants) Versus Mr.Quentin Rodrigues .. Respondent (Orig. Plaintiff) Mr.C.U. Singh Senior Counsel with Ms. Mitra Das Advocate i/b. Vasanti Kunder and V.M. Parkar for the Appellants Shri Mohan Bir Singh with Ms. Pooja Jalan for the Respondents CORAM : S.R. SATHE,J. DATED : 08/10/2007 ORAL ORDER :- 1. By consent appeal is heard finally at admission stage. 2. This is a case of Singapore Airline's employee who is at Mumbai for last 20 years but opposing his transfer to Jalandhar, on several grounds. 3. The Appellants-original defendants in Suit Stamp No.2811 of 2007 have preferred this appeal against the order passed in Notice of Motion No.2756 of 2 AO-711-2007 2007 by Judge, City Civil Court, Bombay whereby the Plaintiff's application for temporary injunction restraining defendants from implementing the transfer order of Plaintiff dated 09/07/2007 transferring him to Jalandhar till the disposal of suit was allowed. For the sake of convenience hereafter the parties shall be referred to as 'Plaintiff' and 'defendants'. 4. The brief facts giving rise to this appeal are as under :- The Plaintiff joined services of defendant No.1 Singapore Airlines Ltd. as clerk at Mumbai with effect from 05/01/1987 vide his appointment letter dated 22/12/1986. As per the term No.6 of the said appointment letter, the defendant No.1 Company was entitled to transfer the Plaintiff at any time at any SIA Station all over India at the discretion of the defendant No.1 Company. However, according to Plaintiff, the defendant Company had not transferred its employees from Bombay to outside. The Plaintiff was carrying out trade union activities in defendant No.1 Company for a period of about 10 years and he is also elected as President of the Union. According to 3 AO-711-2007 Plaintiff, as the defendant No.1 wanted to prohibit Plaintiff from participating in trade union activities and charter of demands made by the union was not accepted by the defendant, the defendant No.1 vindictively transferred Plaintiff to Jalandhar. They issued transfer order on 09/07/2007 at about 4.45 pm and relieved him at 5.45 pm. He was asked to join at Jalandhar within 15 days. According to Plaintiff, the said order of transfer was malafide and not in accordance with the model standing orders. Besides this, the defendant No.1 Company is not having office or establishment at Jalandhar and Jalandhar is not even on line station for Singapore Airlines. According to Plaintiff, defendant No.1 had in fact transferred Plaintiff services to 'Sondhi Enterprises' who are the general sales agents of defendant No.1 at Jalandhar. Plaintiff, therefore, issued letter dated 11/07/2007 to the defendant No.1 and requested to cancel or withdraw the said transfer order. However, the defendant No.1 did not accept the request of the Plaintiff. The defendant denied all the allegations made in Plaintiff's letter. Hence, on 19/07/2007, Plaintiff filed suit for declaration that the defendant's action 4 AO-711-2007 of transferring Plaintiff to Jalandhar is malafide, unlawful, inconsistent with the contract of employment and therefore prayed for permanent injunction restraining defendants from giving effect to the order of transfer dated 09/07/2007. 5. The Plaintiff also filed Notice of Motion and prayed for temporary injunction restraining defendant from implementing the transfer order till the disposal of the suit. 6. The defendants filed their affidavit in reply to the Notice of Motion and opposed the same. They admitted that Plaintiff has been appointed as clerk in defendant No.1 Company with effect from 05/01/1987 as per letter of appointment dated 22/12/1986. They contended that as Plaintiff is a workmen within the meaning of Section-2(s) of the Industrial Dispute Act, 1947 (hereinafter referred to as I.D. Act) and has raised a dispute about the terms and conditions of his employment, it was necessary for the Plaintiff to make the grievance about the same before the appropriate authority and the Civil Court has no jurisdiction to 5 AO-711-2007 try the present suit. The defendants further contended that the Plaintiff was aware of the terms and conditions of his service. He was also aware that his services were transferable to any location of the defendant No.1 Company or at a place where the defendant No.1 is having its business operations. According to them, though the Airport is at Amritsar most of the business operations of defendant No.1 with regard to the same are conducted and regulated from Jalandhar where defendant No.1 is having its office. The defendants further contended that as a result of administrative exigency and business requirements they transferred Plaintiff who had experience of about 11 years in Marketing Department to Jalandhar. They also contended that merely because they had not transferred Plaintiff for considerable period would not give him any right to stay at Bombay permanently. Defendants categorically denied that Plaintiff's services were transferred to 'Sondhi Enterprises'. On the contrary, they contended that Plaintiff would continue to be employee of defendant No.1 and defendant No.1 has other employees also at Jalandhar. They also denied Plaintiff's allegation that they have any malice or 6 AO-711-2007 grudge against Plaintiff. According to them, the allegations of the Plaintiff that the transfer order is malafide and bad in law is not correct. Defendants further contended that Plaintiff has failed to make out any prima facie case for granting temporary injunction and the balance of convenience is also not in favour of the Plaintiff. Hence, on all these grounds, the defendants prayed for the dismissal of the application. 7. After hearing both the learned Advocates and considering the documents produced by both the parties, the learned Trial Judge came to the conclusion that Civil Court has jurisdiction to try the present suit. According to him, the transfer order in question was malafide and Plaintiff was transferred to non SIA Station and as such it was against the terms and conditions of the Contract of Service and as such bad in law. He, therefore, granted temporary injunction as prayed. 8. Being aggrieved by the above mentioned order, defendants have filed the present appeal. In this appeal before me, Shri C.U. Singh, learned Senior 7 AO-711-2007 Advocate for the defendants has urged several points. Firstly, he submitted that the dispute raised by the Plaintiffs in the present suit is an industrial dispute within the meaning of Section 2(k) of the ID Act and as such the Civil Court has no jurisdiction. Secondly, he canvassed before me that the present dispute is not an individual dispute and it is in fact espoused by the union or group of workmen. Thirdly, learned Senior Advocate submitted that transfer of an employee is a regular incident of service. As per the appointment letter, defendant No.1 Company has every right to transfer the Plaintiff and there is absolutely nothing on record to indicate that the transfer in question is malafide. Fourthly, he submitted that the defendant No.1 is having office at Jalandhar and Plaintiff was also aware that he can be transferred to Jalandhar but he has taken the contention that there is no on line station of Singapore Airline at Jalandhar. According to him, the transfer in question is in accordance with the terms and conditions mentioned in the appointment letter. Lastly, he submitted that it is well settled that normally Court should not interfere with the transfer order issued by the employer so long it is not 8 AO-711-2007 shown that it is malafide. He therefore submitted that Plaintiff has not made out a prima facie case and the order passed by the learned Trial Judge is not at all sustainable in law. He, therefore submitted that the appeal be allowed and the order passed by the learned Trial Judge be set aside. 9. As against the above arguments, Shri Mohan Bir Singh, learned Advocate for the Plaintiff submitted that as per the appointment letter of the Plaintiff his services are transferable only to SIA Station and Jalandhar is not a SIA Station. So, the transfer is against terms of employment and it is liable to be set aside on that ground alone. Secondly, he urged before me that dispute raised by the Plaintiff is an individual dispute. It is not at all espoused by the union. Plaintiff has not filed the present suit in his capacity as President of the Union. No group of workmen has supported the Plaintiff. So, the dispute in question is certainly not a industrial dispute and as such Civil Court has jurisdiction. The learned Advocate for the Plaintiff also submitted that initially Plaintiff was transferred from one department to other 9 AO-711-2007 and dispute in that behalf is raised by the union. As the defendants wanted to throw Plaintiff out of Bombay and restrain him from carrying out union activities he has been deliberately transferred to Jalandhar and the said transfer is malafide. He also submitted that such midterm transfer is bound to cause lot of inconvenience and hardship to Plaintiff and his family members including the children who are school going. He, therefore, submitted that the Plaintiff has made out a prima facie case for temporary injunction and the learned Trial Judge has also used his discretion rightly in favour of the Plaintiff. According to him, there is no necessity for this Court to interfere with the discretionary order of temporary injunction particularly when the same can not be said to be perverse or arbitrary. He, therefore, submitted that the appeal be dismissed. 10. It is not in dispute that as per the appointment letter dated 22/12/1986, Plaintiff took charge as a clerk in defendant No.1 Company on 05/01/1987 at Bombay. It is also an admitted fact that during the last about 20 years the Plaintiff was never 10 AO-711-2007 transferred out of Bombay. Admittedly, Plaintiff is carrying out trade union activities for last 10 years and he is elected as President of union. It is also an admitted fact that two months prior to the transfer order dated 09/07/2007 the union had placed charter of demands, however, negotiations in that behalf with the Management had failed and some further time was granted to find out some solution. 11. The first and for most objection of the learned Senior Advocate for the defendant is that the dispute raised by the Plaintiff is an industrial dispute within the meaning of Section 2(k) of the Industrial Dispute Act and as such in order to seek redress about the said dispute it was necessary for the Plaintiff to approach the labour Court or other competent authority as per the provisions of ID Act or other Labour legislation. According to him, the Civil Court has no jurisdiction to try the present suit. 12. In order to find out whether there is any substance in the argument advanced by the learned Senior Advocate for the Defendant in this behalf, it 11 AO-711-2007 would be worthwhile to see what section 2(k) of ID Act says. It runs as follows :- “(k) “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.” From the above definition of Industrial Dispute, it is very clear that it can be divided into four parts viz.:- (i) Factum of dispute. (ii) Parties to dispute; (a) employer and employers, or (b) employers and workmen, or (c) Workmen and workmen (iii) Subject-matter of dispute: The dispute should be connected with : (a) the employment or non-employment (b) terms of employment, or (c) the conditions of labour of any person. (iv) Industry and Industrial dispute : The dispute should relate to an 'industry'. It is not possible to conceive an industrial dispute within the meaning of the Act, unless and until all the four conditions stand satisfied.” 12 AO-711-2007 So, one thing is certain that in order to fall the dispute within the definition of Industrial Dispute, the dispute must be between employer and employees and not between employer and a single employee. However, it is an admitted fact that certain individual dispute can be deemed to be industrial dispute. For this purpose, useful reference can be made to Section-2(A) of the ID Act. The said Section runs as follows :- “{2-A. Dismissal etc. of an individual workman to be deemed to be an industrial dispute- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute}” 13. However, it must be noted that the dispute in question is not in respect of discharge, dismissal, retrenchment or termination and as such the provisions of Section 2(A) are not strictly applicable. 13 AO-711-2007 14. It was argued on behalf of the defendants that though the present suit is filed by one employee, from the pleadings in the plaint it is very clear that the dispute is espoused by the union or by the group of workmen and as such it is an industrial dispute. It is submitted that only with a view to show that Civil Court has jurisdiction the plaint is drafted skillfully to depict that the dispute raised is an individual dispute. However, according to Shri Singh, learned Senior Advocate the very fact that the Plaintiff has averred in the plaint that his transfer is against the provisions of the Model standing orders goes to show that the dispute in question is an Industrial Dispute. Besides this, he also submitted that when Plaintiff has alleged that he has been victimized only because he was acting as President of Union, in a way the dispute is raised by the union. He, therefore, submitted that the dispute in question be treated as an Industrial Dispute. 15. It is needless to say that the ID Act nowhere contemplates that Industrial Dispute can come into existence in any particular, specific or prescribed 14 AO-711-2007 manner. So, whether a dispute which is apparently raised only by an individual has acquired the category of Industrial Dispute or not shall have to be determined from all the facts and other attending circumstances. Similarly, whether the said dispute is espoused by the union or not shall have to be determined by having regard to the relevant circumstances. Some times, though apparently one may get impression that dispute is individual dispute, in fact, it may be the dispute espoused by the union. In support of this proposition, Shri C.U. Singh, learned Advocate for defendants has placed reliance on a case J.H. Jadhav V/s. M/s. Forbes Gokak Ltd. Wherein the Apex Court has observed :- “As far as espousal is concerned there is no particular form prescribed to effect such espousal. Doubtless, the Union must normally express itself in the form of a resolution which should be proved if it is in issue. However proof of support by the Union may also be available aliunde. It would depend upon the facts of each case. The Tribunal had addressed its mind to the question, appreciated the evidence both oral and documentary and found that the Union had espoused the appellant's cause.” In the instant case, admittedly, the union has 15 AO-711-2007 not passed any resolution supporting or aiding the case of Plaintiff. In fact, we find that at one point of time, Plaintiff had also an intention that the union should take up his issue of transfer and for that purpose he had even forwarded a copy of his transfer order to the Secretary of Union and requested to take necessary steps. But admittedly, no further action is taken by the union in this behalf. What is more to be noted is that if really the Plaintiff had an intention to raise the dispute about his transfer as an industrial dispute he could have also called a special meeting for that purpose by exercising his special powers as President. This he could have done as per Clause-17 of the Constitution of the Union. However, we find that he has not done so. So, this is a very important circumstance which goes to show that Plaintiff had decided to fight with employer about his transfer, individually and dispute was certainly not espoused or taken up or supported by the Union. Merely because the Plaintiff has stated that he has been transferred as he is president of trade union, it can not be said that the dispute is raised by the union or group of workmen. Here is a case, where an individual 16 AO-711-2007 who incidentally happens to be the president of union is alleging that he has been transferred because he is acting as president of the union. This is not a case, where some other workmen are saying that Plaintiff has been transferred as he is carrying out union activities and he is president of union. If some other workmen would have made such grievance and if they had come forward with that allegation then it could have been said that the individual dispute is espoused by union and converted into industrial dispute. So, having regard to these facts and circumstances, I have no hesitation to hold that this is a case where there is an individual dispute and not industrial dispute as contemplated by Section-2(k) of the Industrial Dispute Act. 16. Once it is said that the dispute in question is not an industrial dispute then question arises whether the Civil Court has jurisdiction to try the present suit? It is needless to say that Section-9 of the Code of Civil Procedure envisages jurisdiction of the Civil Court. As per Section-9 of the CPC all cases of civil nature are entertainable in the Civil Court except 17 AO-711-2007 those which are expressly or impliedly barred. It is well settled that while determining the question of jurisdiction of Civil Court one must see the averments in the plaint and to find out what in substance the suit is for. What is the relief claimed in the suit ? If the reliefs claimed in the case are within the exclusive jurisdiction of the Labour Court or whether the reliefs claimed can be granted either by the Civil Court or by the Industrial Court or Labour Court. While considering this aspect reference must be made to a case Apollo Tyres Limited V/s. C.P. Sebastian 2003 i cir 423 on which reliance has been placed by the learned Advocate for the Plaintiffs. In this case, Division Bench of the Kerala High Court has observed :- “There are three kinds of rights and remedies. One is where a right is created under the common law, in which case the right can be enforced through civil Court. The second is a case where the right may be created by statute. But remedy may not be provided under the statute. In that case the remedy can be pursued in the civil Court. Another case is where both right and remedy are prescribed under the enactment. It is contended that the action of the authorities under the I.D. Act is malafide and against the principles of natural justice or the provision under 18 AO-711-2007 which the right is exercised is unconstitutional.” 17. Bearing in mind the above observations and having regard to the averments in the plaint and relief claimed by the Plaintiff, I have no hesitation to hold that the present dispute is not an industrial dispute and the Civil Court has jurisdiction to try the present suit. Shri C.U. Singh, learned Senior Advocate for the defendants relying on a case Rajasthan State Road Transport Corporation V/s. Zakir Hussain 2005 III CLR 424 S.C. submitted that when the daily wager conductor was terminated during probation period, the Apex Court held that the only remedy available to him is by way of reference under the provision of Industrial Act and the Civil Court has no jurisdiction. However, it must be noted that the facts of the said case and the facts of the case in hand are quite different. In that case, the provision of Section-2(k) and 2(A) of the ID Act were made applicable and as a result of the same, it was held that remedy available was by way of reference. However, in the instant case, neither Section-2(k) nor 2(A) of the I.D. Act are applicable. So, the above 19 AO-711-2007 cited rulings is of no use to the Defendants. 18. The learned Senior Advocate for the Plaintiff has also laid his hands on a case Pearlite Liners Pvt. Ltd. V/s. Manorama Sirsi, 2004 II CLR 965 S.C. that was a case filed by the Plaintiff making grievance about his transfer. He had claimed civil reliefs including declaration regarding continuance of service employments etc and as the Apex Court held that none of the three reliefs claimed by the Plaintiff in the plaint can be granted by Civil Court as that would indirectly mean that the Court is assisting the Plaintiff in continuing the employment and thus, enforcing contract of personal service which is barred under law, the suit was dismissed. The facts of the above mentioned case are also different from the facts of the case in hand and as such the above cited ruling is not helpful to the present Defendants. 19. Learned Advocate for the Appellant-original defendants has also drawn my attention to a case P.Pitchumani V/s. Management of Sri Chakra Tyres Ltd. 20 AO-711-2007 2004(II) CLR 741 to show that Civil Court has no jurisdiction to try the present suit. I have carefully gone through the above cited ruling. The facts of the said case and the facts of the case in hand are quite different. In that case, the dispute was an industrial dispute. However, as mentioned earlier in the instant case the dispute is an individual dispute and has not acquired character of an industrial dispute and as such the above cited ruling is also of no use to the present defendants. 20. Shri C.U. Singh, learned Senior Advocate has also relied upon a case Jitendra Nath Biswas V/s. M/s. Empire of India and Ceylon Tea Company AIR 1990 Supreme Court 255 to show that Civil Court has no jurisdiction. However, the facts of the above cited ruling are different from the facts of the case in hand. In that case, Plaintiff had sought relief of re-instatement and backwages and so, it was held that such relief is available only under ID Act and can not be granted by Civil Court. Here I.D. Act is not at all applicable. So, the above cited ruling will also not help the 21 AO-711-2007 defendants. 21. Shri Mohan Bir Singh, learned Advocate for the Plaintiff has drawn my attention to a case Rajasthan State Road Transport Corporation V/s. Krishnakant and others (1995) 5 SCC 75 wherein the Apex Court has observed :- “Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in Civil Court can not be said to be not maintainable, even though such a dispute may also constitute an “industrial dispute” within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.” In this very authority, the Apex Court has also observed :- “Any violation of the Certified Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated herein.” In the instant case, the Plaintiff is only asking for permanent injunction restraining defendants 22 AO-711-2007 from implementing the transfer order dated 09/07/2007 on the