If the transfer of employee based on illegal consideration than court can interfere and reversed the decision

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE CIVIL JURISDICTION

WRIT PETITION NO. 8215 OF 2012

Larsen and Toubro Limited,

a Company registered under the

Companies Act, 1956 having its office at

Powai Campus, Saki Vihar Road,

Mumbai 400072 .... Petitioner

Vs.

1. Antony Jokim Patekar,

adult, Indian Inhabitant,

residing at 202, Sarovar,

Vasant Complex Coop.

Hsg.Soc.

Ltd., Near Kalpravruksh Building,

Link Road Signal, Extn: Mahavir Nagar,

Kandivali (West), Mumbai 400067.

2. The President, Industrial Court, Bandra,

Mumbai 400051. .... Respondents

Mr. J. P. Cama, Senior Advocate with Ms.Madhavi DeshpandeRavuri for the petitioner.

Mr.S.S.Pakale with Mr. Avinash Belge for respondent no.1.

CORAM: ANOOP V. MOHTA, J.

DATE: August 28, 2012

ORAL JUDGMENT:

Heard finally by consent of parties.

2. The Petitioner/management has challenged the impugned interlocutory order dated 26 July 2012 passed by the learned Industrial Court, Mumbai, thereby stayed/kept in abeyance the transfer order dated 10 May 2012 issued by them, transferring Respondent no.1 to Security Department.

3. Admittedly the main complaint is still pending. The learned Industrial court by impugned order dated 26 July 2012 has allowed the Interlocutory Application filed by Respondent no.1/complainant in the following terms:

“i) Application is allowed.

ii) It is hereby prima facie held and declared that the

Respondents have engaged in and engaging in unfair labour practice under items 3, 9 and 10 of Sch. IV of the Act.

iii)The transfer order dated 10.5.2012 issued by the Respondents is kept in abeyance and the Respondents are directed to allow the Applicant to work at Powai Works on\ his earlier post as a skilled employee, pending the hearing and final disposal of the Main Complaint.

iv)Costs into the cause.”

4. The Petitioner/management has always a right and power to transfer the employees from one place to another, subject to contingencies and the requirement. However, this, in no way, be read to mean that the employees and workers just cannot challenge such transfer orders in any circumstances. The Court also in no way debars entertaining and/or considering such application even for  interlocutory order and/or protection. It depends upon the facts and circumstances of each case. There cannot be a strict jacketed formula to say that no Court should interfere with the transfer order initiated by the management, at any point of time. The employer/employee relationship as based upon the contract, therefore, there are always so called disputes and conflicts, some time defined or some time undefined.

5. The learned senior counsel appearing for the Petitioner, referring to various averments made in the Petition, including Settlement/Voluntary Retirement Scheme (VRS) and facts and circumstances of the case, pointed out that there is no question of interference by the Court in such transfer orders which was made not only against Respondent No.1 but along with other persons also. The challenge is raised by Respondent No.1. Such order, if maintained and/or retained, it will disturb the day to day affairs, including so called discipline of the management. The learned Judge ought not to have interfered with the order of transfers so passed, based upon the material, and the administrative exigency also.

6. The Courts are normally reluctant to interfere with the interlocutory order, basically to grant and/or refusal to grant stay to such transfer orders. The scope and purpose of Article 226 of the Constitution of India is quite limited. The question is whether the impugned interlocutory order is perverse and totally illegal and without any basis.

7. After hearing both the parties and after going through the record, including the pleadings so referred and relied upon by the Court, as well as, by the parties, I find that there is no perversity and/or illegality in passing the order, basically to say that the Court should interfere and reverse the order to bring the situation back to square one.

8. Normally, if the order of transfer is based upon some particular instance and of the management's policy decision, then there is no question of interference. But the case is made out, though prima facie, that such transfer is based upon various consideration other than the socalled

administrative contingencies; and it has foundation of allegations of malafide, harassment, humiliation and degradation of the level of work also, the stay of such transfer orders, in the present facts and circumstances, cannot be stated to be unjust, and/or illegal.

9. Admittedly, Respondent no.1 has been in service for more than 33 years having unblemished record and is about to retire in 2014. The VRS scheme so floated, though accepted by the Union, for whatever may be the reason, Respondent No.1 was not willing to accept the same. The individual decision, even if taken rightly or wrongly, and he is insisting upon not to accept the same, irrespective of the settlement of Union, in no way, at this stage, can be stated to be illegal and/or impermissible. His individual rights and in a situation, where he is about to retire in 2014, in no way, can be stated to be deliberate act and/or any intention to destroy so called settlement. There is ample material on record and at least recorded by the Court that, though persuaded from time to time, he was not willing to accept the VRS scheme. The allegations are that these transfer

orders are result of such denial. The transfer order, as noted above, not provided the specific reasons, though transferred along with other workers, yet that itself cannot be the reason that the aggrieved person cannot challenge his individual transfer order. The challenge to such transfer orders, therefore, so raised supported by the pleadings/affidavit, prima facie has been considered by the Court in his favour.

10. The aspect of malafide, humiliation and reduction in rank read with the change in cadre, as dealt with by the learned Judge. Those reasons are recorded in paragraphs 24, 25 and 26, in the following terms. As I am not deciding the issue finally, but taking for the purpose of adjudicating this writ petition finally, in my view, the reasoning so given, in no way can be stated to be bad in law and contrary to law.

“24. After going through both the transfer orders, it is explicit that the same do not show the reasons for transfer of the Applicant from the ACB Shop to the Security department. Nowhere it is mentioned that the business where the Applicant was working as a skilled employee has been closed or to come to an end. On the contrary the Applicant in clear terms mentioned in the Complaint that after his transfer one Shri Ajit Ghagare is transferred in his place. This fact is not denied by the Respondents. When Shri Ghagare is accommodated in place of the Applicant, then what was the necessity to transfer the Applicant from his working place to the security department, nowhere the same has been clarified by the Applicant much less satisfactorily.

25. Considering the pleadings at this prima facie stage and taking into consideration the documentary evidence, it clearly demonstrates that only because the Applicant has not accepted the VRS floated by the Respondents, the Applicant is being harassed by transferring him from his parent department to security department. Admittedly the Applicant was working as a skilled employee. The post of Security Guard does not fall within the grade of skilled employee. Therefore, it clearly indicates that this is humiliation by way of demoting the employee from the grade of skilled employee to the post of security guard. The Respondents have not justified why the Applicant is required to be transferred to the security department though there is provision under the settlement signed with the Bharatiya Kamgar Sena about ratiionalization, restructuring, flexibility, mobility, productivity and discipline. But nowhere it is agreed by the Union that under the said rationalization, restructuring, flexibility, mobility, productivity and discipline, the employees will be transferred to any grade irrespective of their present grade. The Union has not allowed the Respondent Company to demote any employee under the said nomenclature. No doubt the Union and the workmen agreed for mobility of the workmen within the department and between the departments in all areas of operations as and when required without any delay, as agreed and reflected on page No.7 of the settlement, but it does not mean that the workmen have agreed for demotion, Mobility of workmen is allowed within the department itself and not out of the department. The Respondents have misinterpreted the said terms of the agreement and only because the Applicant has refused to accept the VRS, forced him to work in the security department which is totally illegal and improper.

26. By transferring the Applicant who is a skilled employee to the post of security guard in the security department, the Respondents have changed the service conditions of the Applicant. Admittedly the Respondents have not given any notice of change under section 9A of the Industrial Disputes Act, 1947. The Applicant is forced by the Respondents to accept the transfer order and to go to the transferred place. All these acts on the part of the Respondents are nothing but unfair labour practices which prima facie squarely fall under items 3, 9 and 10 of Sch. IV of the Act. Considering all these aspects on the available material, in my considered view, the Applicant succeeded in proving that the Respondents have engaged in and engaging in prima facie unfair labour practices under items 3, 9 and 10 of Sch. IV of the Act. With this, Point No.1 is answered in the affirmative.”

11. The aspects of “change of cadre”, “the transfer is on the verge of retirement” and “for want of compelling reasons”, in my view, in the present case, supports the case of Respondent No.1 rather than the management/Petitioner. The contingencies and/or administrative reasons is basic aspect, but if case is made out of malafide and harassment and no compelling reasons and compelling the workmen to do the particular lower grade work and/or asking him to work somewhere else, specially when he is on the verge of retirement; these facts and facets, supports the case of the complainant.

12. Both the learned counsel appearing for the parties cited their respective judgments to support their rival contentions. Those judgments are distinguishable on facts itself.

13. In view of above circumstances, the Writ Petition is dismissed. However, considering the fact that the complaint itself is pending and Respondent No.1 is about to retire by 2014, it is desirable that the main complaint be decided and disposed of as expeditiously as possible and preferably within a period of three months.

14. There shall be no order as to costs.

15. The learned counsel appearing for the Petitioner makes statement that the trial Court, after passing the impugned order, has stayed the same for two weeks, and as of today, the same has been in operation, therefore, I am inclined to extend the stay as granted by the trial Court for two weeks from today.

(ANOOP V. MOHTA, J.)