Case: Kundan Sugar Mills Vs. Ziyauddin &amp; Others

joined such a service, the Privy Council found it easy to imply to term of transfer. That decision is therefore not of any relevancy to the present case. In Mary (Anamalai Plantation Workers Union) v. Selaliparai estate, 1956-1 Lab LJ 343 (LATI-Mad). Labour was recruited in the plantations without any differentiation being made between factory and field workers and it had been the common practice prevailing for several years to transfer the factory workers to the field and vice versa, according to the exigencies of work. A worker who had been appointed in such a plantation was transferred, owing to mechanisation in the factory, from the factory to the field. The Labour Appellate Tribunal of India held that in the circumstances of the case the liability to be so transferred must be deemed to be an implied condition of service. So too in Bata Shoe Company, Ltd. v. Ali Hasan, 1956-1 Lab LJ 278 : (AIR 1956 Pat 518 ), transfer of an employee in the circumstances of that case from one post to another was held not to be an alteration of any service condition within the meaning of S. 33 of the Industrial Disputes Act. That was case of a management employing a worker in one concern and transferring him from one post to another. In such a case it was possible to imply the condition of right of the management to transfer the employee from one post to another. S. N. Mukherjee v. Kemp and Co., Ltd., 1954 Lab AC 903, was a case arising out of S. 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950. The complaint there was that an employee was transferred by the management with a view to victimize him and that it amounted to alteration in the conditions of employment. It was held that if an employer employed a person it was implicit in the appointment that he could be transferred to any place where the business of the employer in the same line was situated, unless there was an express condition to the contrary in the contract of employment. In that case the worker was employed by Kemp and Co., Limited, which had branches in different places. The decision assumed that the business was one unit and that the only question raised was that he should not be transferred to a place different from the place where he was actually discharging his duties. These observations must be limited to the facts of that case. 6. It is not necessary to multiply the citation, for the other decisions relied on by the learned counsel for the appellant pursue the same reasoning followed in the aforesaid cases. 7. We have referred to the decisions only to distinguish them from the present case, and not to express our opinion as to the correctness of the decisions therein. It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization.None of these decisions deals with a case similar to that presented in this appeal, namely, whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment. None of these cases holds, as it is suggested by the learned counsel for the appellant, that every employer has the inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondent either express or implied that the employer has the right to transfer them to a new concern started by him subsequent to the date of their employment. 8. The respondent also relied upon a Government Order No. 6122(ST)/XXXVI-A-640(S)-T-1953 in support of their contention that the order of transfer was bad. By this Order the Government of U.P. had directed that the employment of seasonal workmen in all vacuum pan sugar factories in the Uttar Pradesh should be governed by the rules contained in the annexure thereto. Rule 1 in the said annexure is to the following effect :"A worker who has worked or but for illness or any other unavoidable cause would have worked in a factory during the whole of the second half of the last preceding season will be employed in this season in such factory." This rule has no relevancy to the question raised in the present case. This rule only enjoins upon an employer to employ a worker in the circumstances mentioned therein in the same factory in which he was working in the previous season during the next season also. This does no prevent the employer to transfer an employee if he has the right to do so under the contract of service or under any statutory provisions. We have already held that the employer in the present case has no such right. 9. Lastly it is said that the Appellate Tribunal had no jurisdiction to set aside the finding of the State Industrial Tribunal, as it did not give rise to any substantial question of law within the meaning of S. 7(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The question raised was one of law, namely, whether the appellant had the right to transfer the respondents 1 to 4 from one concern to another.A substantial question of law was involved between the parties and that raised also an important principle governing the right of an employer to transfer his employees from one concern to another of his in the circumstances of this case. We, therefore, hold that a substantial question of law arose in the case and that it was well within the power of the Labour Appellate Tribunal to entertain the appeal.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is true that the partners of the Sugar Mills at Amroha own also the Sugar Mills at Bulandshahr; but they were proprietors of the former Mills in 1946 whereas they purchased the latter mills only in the year 1951 and started the same in Bulandshahr in or about 1955. The respondents 1 to 4 were employed by the owners of the appellant-Mills at the Sugar Mills at Amroha at a time when they were not proprietors of the Sugar Mills at Bulandshahr. It is conceded that it was not an express term of the contract of service between the appellant and the respondents 1 to 4 that the latter should serve in any future concerns which the appellant might acquire or start. It is also in evidence that though the same persons owned both the Mills they were two different concerns. In the words of the Appellate Tribunal, the only connection between the two is in the identity of ownership and, but for it, one has nothing to do with the other. It is also in evidence that an imported workmen at Amroha is entitled to house-rent, fuel light and travelling expenses both ways, while at Bulandshahr the workmen are not entitled to any of these amenities. The workmen at Amroha are entitled to benefits under the Kaul Award while those at Bulandshahr are not so entitled. The General Manager, E. W. 1, in his evidence stated that "the interim bonus of the Bulandshahr factory as ordered by the Government in November 1955 was Rs. 11,000 while for Amroha it was nearly 1 1/2 lacs". He also stated that "the bonus for last year at Amroha would be probably equal to 1 1/2 months wages and at Bulandshahr equal to about 4 or 5 days wages". It is also in evidence that apart from the disparity in the payment of bonus the accounts are separately made up for the two mills. It is clear that the two mills are situated at different places with accounts separately maintained and governed by different service conditions, though they happened to be under the common management; therefore, they are treated as two different entities4. The question of law raised in this case must be considered in relation to the said facts. The argument of the learned counsel for the appellant that the right to transfer is implicit in every contract of service is too wide the mark. Apart from any statutory provision, the rights of an employer and an employee are governed by the terms of contracts between them or by the terms necessarily implied therefrom. It is conceded that there is no express agreement between the appellant and the respondents whereunder the appellant has the right to transfer the respondents to any of its concerns in any place and the respondents the duty to join the concerns to which they may be transferred. If so, can it be said that such a term has to be necessarily implied between the parties? When the respondents 1 to 4 were employed by the appellant the latter was running only one factory at Amroha. There is nothing on record to indicate that at that time it was intended to purchase factories at other places or to extend its activities in the same line at different places. It is also not suggested that even if the appellant had such an intention, the respondents 1 to 4 had knowledge of the same. Under such circumstances, without more, it would not be right to imply any such term between the contracting parties when the idea of starting new factories at different places was no in contemplation. Ordinarily the employees would have agreed only to serve in the factory then in existence and the employer would have employed them only in respect of that factory. The matter does not stop there. In the instant case, as we have indicated, the two factories are distinct entitled, situated at different places and, to import a term conferring a right on the employer to transfer respondents 1 to 4 to a different concerns is really to make a new contract between them6. It is not necessary to multiply the citation, for the other decisions relied on by the learned counsel for the appellant pursue the same reasoning followed in the aforesaid cases7. We have referred to the decisions only to distinguish them from the present case, and not to express our opinion as to the correctness of the decisions therein. It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization.None of these decisions deals with a case similar to that presented in this appeal, namely, whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment. None of these cases holds, as it is suggested by the learned counsel for the appellant, that every employer has the inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondent either express or implied that the employer has the right to transfer them to a new concern started by him subsequent to the date of their employment9. Lastly it is said that the Appellate Tribunal had no jurisdiction to set aside the finding of the State Industrial Tribunal, as it did not give rise to any substantial question of law within the meaning of S. 7(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The question raised was one of law, namely, whether the appellant had the right to transfer the respondents 1 to 4 from one concern to another.A substantial question of law was involved between the parties and that raised also an important principle governing the right of an employer to transfer his employees from one concern to another of his in the circumstances of this case. We, therefore, hold that a substantial question of law arose in the case and that it was well within the power of the Labour Appellate Tribunal to entertain the appeal.