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2005 DIGILAW 3 (CHH)

FERRO SCRAP NIGAM LIMITED. v. B. P. SHARMA

2005-01-06

FAKHRUDDIN

body2005
ORDER By this petition under Articles 226/227 of the Constitution of India, the petitioner challenges the order Annexure P-1 passed by the Industrial Court dated 28th June 2004 confirming the order Annexure P- 2 dated 25-2-2004 passed by the Labour Court, Durg. 2. Briefly stated the facts of the case are that the respondent No. 1 B.P. Sharma is an employee of petitioner-company. He was transferred from Bhilai unit of petitioner's company to its Duburi unit in Orissa as per order dated 25-8-2003 Annexure P-3. 3. It is stated that the respondent No. 1 was relieved on 26-8-2003 as per Annexure P-4. It is further stated that these orders were acknowledged by the respondent no. 1 and the acknowledgement is Annexure P-5. It is stated that the respondent No. 1 filed an application on 26-8-2003 before the Industrial Court for stay of transfer order in another promotion case. The Industrial Court granted interim relief on 27-8-2003 in that case and the said order was confirmed on 8-9-2003. It is stated that final order in that promotion case was passed on 5-11-2003. 4. It is pointed out by the learned counsel for the petitioner that the respondent No. 1 filed an application under Section 31(3) read with Section 61 of C.G. Industrial Relations Act before the Labour Court. It is further stated that an application under Section 107 of the Act for stay of transfer was also filed before the Labour Court, Durg. The Labour Court rejected the application on 10-11-2003 as per Annexure P-8. This order Annexure P-8 was challenged by the respondent no. 1 before the Industrial Court and the learned Industrial Court set aside the order of the Labour Court as per order dated 28-11-2003 and granted stay till the disposal of the case and remanded the matter to the Labour Court to decide it within three months. 5. It is stated that against order dated 28-11- 2003, the petitioner filed a writ petition before this Court on 6-12-2003 bearing W.P. No. 4055/2003 challenging the order of the Industrial Court. It is also stated that this Court as per order dated 4-2- 2004 directed the Labour Court to decide the matter within one month. In compliance of the order dated 4- 2-2004 of this Court and that of Industrial Court dated 28-11-2003, the labour Court passed the order dated 25-2-2004 Annexure P-2. 6. It is also stated that this Court as per order dated 4-2- 2004 directed the Labour Court to decide the matter within one month. In compliance of the order dated 4- 2-2004 of this Court and that of Industrial Court dated 28-11-2003, the labour Court passed the order dated 25-2-2004 Annexure P-2. 6. Before the Labour Court parties were given opportunity to lead evidence. The respondent No. 1 examined himself and the petitioner Company examined two witnesses namely N.A. 1 Vinit Bhanja and N.A. 2 K.L. Patel. It is further pointed out that the Labour Court framed the following issues:- (i) Whether the transfer order of the applicant dated 25-8-2003 issued by the non-applicant is illegal? (ii) Whether the transfer order has been passed with malafide intention ? If so, its effect ? (iii) Relief and cost ? 7. It is further pointed out that the learned Labour Court subdivided issue no. 1 into 5 questions:- (a) Whether the transfer order was issued as the respondent no. 1 was not inclined to take V.R.S. for which the management had put pressure upon the employee? (b) Whether the transfer order is liable to be interfered on medical ground? (c) (i) Whether by virtue of transfer, his seniority and promotional aspects would be adversely affected? (ii) Whether the transfer order has been issued during mid session? (d) Whether the transfer order has been issued without any administrative exigency? Whether the respondent No. 1 was deliberately relieved with immediate effect? Whether the hot haste has been shown in transferring the respondent no. 1 and immediately relieving him and there being no material to show the urgent need, the said order has been issued only to harass the respondent no. 1? (e) Whether the transfer order can be declared to be illegal as the place of transfer is very far? 8. It is stated that questions no. 1 and 2 were decided in favour of Management and questions No. 3, 4 and 5 were decided in favour of the employee. It is further submitted that the Labour Court allowed the petition and quashed the transfer order. 9. It is stated that against the order of Labour Court dated 25-2-2004, petitioner preferred an appeal before the Industrial Court under Section 65 of C.G. Industrial Relations Act. The memo of appeal has been filed as Annexure P-13. It is further submitted that the Labour Court allowed the petition and quashed the transfer order. 9. It is stated that against the order of Labour Court dated 25-2-2004, petitioner preferred an appeal before the Industrial Court under Section 65 of C.G. Industrial Relations Act. The memo of appeal has been filed as Annexure P-13. The Industrial Court rejected the appeal and confirmed the order passed by the Labour Court by the order dated 28-6- 2004, which is under challenge in the present petition. 10. Learned counsel for the petitioner contended that the transfer is an exigency of service and as such it has been made. The impugned order has also been assailed on the ground that the finding that the transfer is made malafide is not sustainable in law. It is also contended that transfer has not at all been made malafide and it is made in exigency of service as per law applicable. 11. Counsel for the petitioner further referred to appointment order of the respondent Annexure P-11 dated 27/28-9-1984 specially Clause 5 and contended that it is specifically mentioned in the order that he will be posted in Bhilai plant, however his service will be transferable to any branch, department of the company and MSTC etc. in any part of India at any point of time. It is submitted that since after the appointment, the respondent has remained at Bhilai plant for about 19 years. Counsel for the petitioner submitted that service condition of the respondent with respect to the seniority and promotional aspects shall be maintained. 12. Learned Sr. counsel for the petitioner also submits that there is no prohibition on transfer. He submits that since there is no prohibition on transfer in the certified standing orders, therefore, there is no conflict between the two. He referred to Clause 36 of the Standing Orders which provides that nothing contained in these standing orders shall operate in derogation of any law or to the prejudice of any right under written contract of service, settlement of award for the time being in force nor shall any agreement or award between the employer and the workman prejudicially affect the rights of the workmen under these standing orders. 13. Counsel for the petitioner contended that the Courts below have committed grave illegality in holding that the petitioner company has no right to transfer. 13. Counsel for the petitioner contended that the Courts below have committed grave illegality in holding that the petitioner company has no right to transfer. It is further contended that such finding affects not only the case of respondent no. 1 but all the employees. It is vehemently urged that transfer is an exigency and unless it is specifically prohibited, the employer has a right to transfer its employees. 14. Shri Pradeep Saxena, Counsel appearing for the respondent No. 1 on the other hand contended that Standing Orders Act 1946 do not contemplate transfer. Annexure P-17 is the copy of certified Standing Orders. The Schedule is annexed under Sections 3(b) and 6(3) of M.P. Industrial Employment (Standing Orders) Act, 1961. He also submits that Certified Standing Orders Act is applicable only in those matters, which are enumerated in the Schedule and in the Schedule, transfer is not included, in that view of the matter, the persons governed under the certified standing orders cannot be transferred. He contends that there is no permission of transfer in the schedule. He also contends that in the instant case, transfer has not been made in exigency of service but it is made as punishment. He submits that the Certified Standing Orders are framed under the M.P./C.G. Industrial Employment (Standing Orders) Act 1961 and the Schedule annexed with the State Act does not contain the matters relating to transfer. Counsel submits that the petitioner has no power to transfer his services. He read the entire impugned judgment passed by the Industrial Court. He submits that if there is a conflict between a contract and the provisions of certified standing orders, then the provisions of certified standing order shall prevail. 15. Counsel for the petitioner placed reliance in the decision in National Hydroelectric Power Corporation Ltd. -v- Shri Bhagwan and another (AIR 2001 SC 3309). In that matter, letter of appointment and recruitment rules were considered. He referred to para 2 of the judgment to demonstrate that that matter relates to Corporation - a public undertaking and further that in that case Model Standing Orders framed under the Industrial Employment (Standing Orders) 1946 were applicable. It was alleged that the motive of transfer was to penalize the Trade Unions activities of the respondents. In that case also, the employee had contended malafide. It was alleged that the motive of transfer was to penalize the Trade Unions activities of the respondents. In that case also, the employee had contended malafide. In para 5 of the judgment it was observed that no Government servant or employee of Public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Paragraph 5 of the judgment is relevant and quoted below:- "5. On a careful consideration of the submissions of the learned counsel on either side and the relevant rules to which our intention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well settled and often reiterated by this Court that no Government servant or employee of Public Undertaking has any legal right to be posted for ever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4.1.1 of the Seniority Rules interdicts any transfer of the employees from one Office or Project or Unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the project undertaken to which the respondents have been transferred is itself as new one and, therefore, we see no rhyme or reason in the alleged grievance." 16. Counsel for the petitioner also placed reliance in the case of Union of India and others -v- Sri Janardhan Debanath and another 2004 (100) F.L.R. 1015 (SC). He referred to para 12 of the judgment and submitted that in the instant case also, the seniority or promotion will be maintained and terms and conditions will be the same. 17. Shri Agrawal, learned Sr. Counsel also placed reliance on the decision of the Apex Court in the case of State of U.P. and others -v- Siya Ram and another reported in 2004 (5) Supreme 750. He referred to para 5 of the judgment, which is also relevant and quoted below: - "5. The High Court while exercising jurisdiction under Article 226 and 227 of the Constitution of India, 1950 (in short the `Constitution') had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in the public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr. 18. Counsel for the respondent no. 1 placed reliance on the decision in the case of Rohtak and Hissar Districts Electric Supply Co. Ltd. -v- State of Uttar Pradesh and others (AIR 1966 SC 1471). He referred to para 3 and 15 of the judgment. Para 15 of the judgment is relevant and quoted below:- "15. Then in regard to the matters which may be covered by the Standing Orders, it is not possible to accept the argument that the draft Standing Orders can relate to matters outside the Schedule. Take, for instance, the case of some of the draft Standing Orders which the appellant wanted to introduce these had reference to the liability of the employees for transfer from one branch to another and from one job to another at the discretion of the management. These two Standing Orders were included in the draft of the appellant as Nos. 10 and 11. These two provisions do not appear to fall under any of the items in the Schedule; and so, the certifying authorities were quite justified in not including them in the certified Standing Orders." Counsel for the respondent no. 1 submitted that the Standing Orders Act 1946 do not contemplate transfer. He further submits that the Certified Standing Orders Act is applicable only in those matters which are included in the Schedule and in the Schedule, transfer is not included. He further submits that in the above judgment, it has been observed that it is not possible to accept the argument that the draft Standing Orders can relate to matters outside the Schedule. Learned Sr. Counsel on the other hand submitted that that the case is distinguishable from the present case. 19. Counsel for the respondent no. 1 also referred to the decision in the case reported in 2004 (5) Supreme 750 (State of U.P. and ors.-v- Siya Ram and ors.) It is stated that in the judgment, it has been held that unless an order of transfer is shown to be an out come of malafide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunal normally cannot interfere with such orders as a matter of routine. He submits that the transfer has been made with malafide intention and the Schedule does not contemplate the transfer, therefore the Court should interfere in the matter. 20. Counsel for respondent no.1 placed reliance in the case reported in 1999 (II) LLJ 1197 (Jeep Industrial Syndicate Ltd. -v- Geep Industrial Syndicate Employees' Union, Mysore and ors). He also placed reliance on the decision reported in 1994 (III) LLJ Suppl. 459 (The Indian Tobacco Company Ltd.-v-the Industrial Court and others). Counsel for respondent no. 1 submitted that in the Schedule, matters relating to transfer have not been included and the transfer of the petitioner would affect his seniority and promotional aspects. Counsel for respondent No. 1 also placed reliance on the decision reported in 1994 (III) LLJ 877 (Ganesh Rajan Servai -v- M/s. Bennett Coleman & Co. Ltd. and others). It is stated that it was a case where the services of employees were terminated and the Court held in para 8 that termination orders passed against the petitioners were in contravention of the certified standing orders governing the service conditions of the petitioner and the termination orders would be void ab initio. Counsel for the respondent No. 1 also placed reliance on the decision reported in 1995 (I) LLJ 81 (Sompal Singh -v- Artificial Limbs Mfg. Corpn. of India). 21. Having considered the rival contention of the learned counsel for the parties, in the opinion of this Court, the transfer is an exigency of service. It is well settled that no Government servant or employee of Public Undertaking has any legal right to be posted forever at any one particular place as it is not only an incident but a condition of service. The contention of the learned counsel for the respondent that he cannot be transferred is not correct. That part of the order of the learned Industrial Court is not sustainable. The finding of the Industrial Court that the respondent no. 1 cannot be transferred, is against the canon of service jurisprudence. 22. As regards the finding of the Courts below regarding malafide that since the respondent no. 1 was earlier terminated but the court directed his reinstatement and some litigation regarding promotion is pending, he has been transferred, there is no material to hold that the transfer has been effected because of this. 22. As regards the finding of the Courts below regarding malafide that since the respondent no. 1 was earlier terminated but the court directed his reinstatement and some litigation regarding promotion is pending, he has been transferred, there is no material to hold that the transfer has been effected because of this. It is stated that learned Industrial Court has held that there is no cordial relation between the petitioner and respondent no. 1. Even when cordial relation is not there between the employer and employee, it cannot be said that the transfer has been made only because of that reason. In certain cases, if situation warrants, the transfer has to be made as exigency or in the interest of employee. The finding of the learned Labour Court and that of learned Industrial Court that the transfer has been made with malafide intention and to harass respondent no. 1, is not sustainable. 23. So far as the seniority and promotional aspect of the respondent no. 1 is concerned, counsel for the petitioner has already stated that the seniority and promotional aspect will be maintained and it is reiterated at the bar. 24. So far as power of this Court under Article 226/227 is concerned, the matter has been dealt with in great detail by Hon'ble the Supreme Court in the case of Surya dev Rai -v- Ram Chander Rai and Others (2003(6) SCC 675). In the above case of Surya Dev Rai (Supra), the Hon'ble Apex Court has held that:- "Under Article 227 of the Constitution of India, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior Court or Tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction may substitute such a decision of its own in place of the impugned decision, as the inferior Court or Tribunal should have made. In appropriate cases the High Court, while exercising supervisory jurisdiction may substitute such a decision of its own in place of the impugned decision, as the inferior Court or Tribunal should have made. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction." In view of decisions in Surya Dev Rai (supra), National Hydroelectric Power Corporation Ltd. (supra), Union of India and others (supra) and State of U.P and others, in the opinion of this Court, this Court has power to interfere in the matter in exercise of powers vested under Article 226/227 of the Constitution of India. 25. Having considered the facts and circumstances of the case and material on record and in view of the discussion made in the foregoing paragraphs and particularly since the petitioner is already working since last 19 year in Bhilai, the orders passed by the Industrial Court dated 28th June 2004 and order passed by the Labour Court dated 25th February 2004 are set aside. The respondent no. 1 to join at Duburi (Orissa) and after some time if he finds any difficulty, he may make a representation before concerned authority, and if the representation is made, the same shall be decided on its own merits in accordance with law. 26. Accordingly, the petition is allowed.