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2012 DIGILAW 1203 (BOM)

Dharmarajya Kamgar Karmachari Mahasangh v. S. P. Fabrications Pvt. Ltd.

2012-07-05

ANOOP V.MOHTA

body2012
Judgment : Heard finally by consent of the parties. {2} The petitioner has challenged an interlocutory order pending the main complaint whereby the challenge was raised to the transfer order issued by the respondent-Management against some of the employees who are members/office bearers of recently formed Union. The impugned transfer order is only for a period of six months. {3} The learned counsel appearing for the petitioner on instructions restricted the case only with regard to one Mr.Sandesh Damodar Sutar. Therefore, the present petition is concerned only his transfer. {4} The learned Industrial Court, after considering the issue, including the merit of the contentions that were raised specifically with regard to alleged case of malafide action of Management, rejected/refused to pass interim order of staying the transfer pending the main complaint. {5} There is no serious dispute with regard to the service conditions and the right of Management to transfer the employees from one place to another, subject to exigency of work and/or for the administrative reason. {6} Reliance on the judgments by the learned counsel appearing for the petitioner also reflect the same that except the case of malafide and illegal action, the transfer order so passed need to be obeyed by the employees. {7} The case of malafide revolves around the foundation of the formation of the new Union. It is not disputed that the employees were also member of the other Union or before formation of the present Union. The submission based around the connected correspondences about the formation of the Union and so called alleged opposition of just cannot be the reason to deny the right of Management to transfer the employees. The normal practice of retaining at their respective place is also reasonable expectation. The balance needs to be struck. {8} There is no serious dispute that such employee involved in Union activities just can be transferred if there is work exigency and/or for the administrative reason. The Management is entitled to consider and to take decisions to transfer employees for efficient and/or proper working of their business. They may also require to consider the representation of such employees. The employees cannot, unless establishes malafide and illegality, object to such transfer, if Management decides that it is necessary. The Management is entitled to consider and to take decisions to transfer employees for efficient and/or proper working of their business. They may also require to consider the representation of such employees. The employees cannot, unless establishes malafide and illegality, object to such transfer, if Management decides that it is necessary. {9} Admittedly, the Management has transferred not only this petitioner but other four to five employees who are also alleged to be the office bearers/members of the newly formed Union. I am not inclined to accept the case that in a situation where only because the employees have formed just a new Union, all of them have been transferred. Admittedly, they were also members of the earlier staff Union till the new formation. The Management just cannot stay and/or prevent the employees from forming their Union and/or taking steps to make agitation for their rights but at the same time the Management can definitely do needful and specifically when the service condition provides for transfer for a short period also. In the present case, the transfer orders are for only six months. For whatever may be the reason, till this date i.e. for more than three months, it could not be executed. {10} Therefore, taking over all view of the matter without giving further details and as the main complaint itself is pending, I am not inclined to interfere with the order already passed as the learned Member of the Industrial Tribunal has given reason based upon the material, as well as, considering the submissions made by the parties and which in no way can be stated to be perverse. On the contrary, it is well within the framework of law. There is no case for interference. However, the main complaint is expedited and the same shall be disposed of within three months. {11} It is further made clear that pending the final decision of the complaint, the orders passed by this Court not to take action against Mr.Sandesh Damodar Sutar for not reporting to the posting of transfer be continued. {12} However, it is made clear that the stay of disciplinary action need not be taken as a ground for not to take action if ultimately complaint fails. It is also made clear that if the concerned employee reports within three weeks, the employer will not take any disciplinary action for not having reported till date. {12} However, it is made clear that the stay of disciplinary action need not be taken as a ground for not to take action if ultimately complaint fails. It is also made clear that if the concerned employee reports within three weeks, the employer will not take any disciplinary action for not having reported till date. Petition is disposed of accordingly. No costs.