JUDGMENT (Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records in order dated 05.05.2004 passed by the learned Principal Labour Court, Chennai in I.D.No.392 of 2000 and quash the same and further to direct the respondent to join duty at Bhivandi Office of the petitioner company.) This Writ Petition has been filed to call for the records in order dated 05.05.2004 passed by the learned Principal Labour Court, Chennai in I.D.No.392 of 2000 and quash the same and further to direct the respondent to join duty at Bhivandi Office of the petitioner company. 2. The petitioner company is a transport company having branches all over the country. The employees are appointed by the petitioner company with the condition that their services are liable to be transferred to any of the branches of the petitioner company throughout the country. 3. The 2nd respondent was appointed as clerk by the petitioner on 01.06.1979 and at the time of appointment, the respondent agreed to be transferred to any of the petitioner-s branches in the country and the same is mentioned under Sub Clause 6 under the caption Duties and Responsibilities. In view of the experience of the respondent with the organisation for nearly twenty years, the respondent was promoted from clerk and transferred to Bhivandi, Maharashtra State as a godown incharge which is a senior and very responsible job by letter dated 27.07.1998 and it is only to utilise the experience and expertise of the respondent in transport field. The petitioner refused to join duty at Bhivandi eventhough he was relieved of his duties at Chennai with effect from 31.07.1998 and the petitioner has submitted his medical certificate and requested for sixty days time and the same was obtained only for the purpose of avoiding the transfer and not due to any real illness. The petitioner gave him time, even after that the respondent did not report for duty at Bhivandi. Therefore, a department enquiry was conducted against the respondent and the respondent did not attend and hence, ended against him. The respondent approached some union for compromise but also failed. The respondent filed I.D.No.392 of 2000 on the file of the Principal Labour Court, Chennai, claiming reinstatement with backwages, continuity of service and other attendance benefits. Therefore, a department enquiry was conducted against the respondent and the respondent did not attend and hence, ended against him. The respondent approached some union for compromise but also failed. The respondent filed I.D.No.392 of 2000 on the file of the Principal Labour Court, Chennai, claiming reinstatement with backwages, continuity of service and other attendance benefits. The respondent did not seek to set aside the order of transfer. The Labour Court passed an award dated 05.05.2004 holding that the non-employment of the petitioner is not justified and the petitioner is entitled to the relief of reinstatement in service with backwages, continuity of service and other attendance benefits. Aggrieved by this award the petitioner has come forward with the present Writ Petition. 4. The learned counsel appearing for the petitioner submitted that the respondent was transferred to Bhivandi branch at Maharashtra by the petitioner vide order dated 27.07.1998. The relieving order was also issued on 31.07.1998 to the respondent, relieving of Chennai office with immediate effect and to return to duty at Bhivandi office at Maharashtra. The petitioner also issued a letter dated 24.11.1998 in which the respondent was requested to obey the transfer order passed by the Director on 27.07.1998 and since the headquarters is at Mumbai, the Director alone has the power and authority to cancel the transfer order. Then not being satisfied with the explanation dated 24.03.1999 given by the respondent, the Management has decided to conduct an enquiry and the date for enquiry was fixed on 24.08.1999 for which the respondent vide letter dated 17.04.1999 submitted that there is a case pending with regard to the payment of salary to him and he has to attend the Court and was not able to attend the enquiry on 29.04.1999. After this issue is resolved by the Labour Officer, I request you to go to the issue of transfer. 5. The respondent, himself has stated in the petition filed before the Labour Court that the transfer order is a colourable exercise of power with an malafied intention and it will squarely fall under the Schedule V of the I.D. Act, 1947. The petitioner issued a charge memo on 22.03.1999 and the respondent also submitted his explanation on 24.03.1999. The past services of the respondent was not considered by the petitioner and no dismissal order was issued by the petitioner/ Management. 6. The petitioner issued a charge memo on 22.03.1999 and the respondent also submitted his explanation on 24.03.1999. The past services of the respondent was not considered by the petitioner and no dismissal order was issued by the petitioner/ Management. 6. The learned counsel further submitted that in the award itself it is clearly mentioned that the petitioner was getting a sum of Rs.2,500/- as pay per month in July 1998 and the petitioner has put in twenty years of service till Jully, 1998. The MW1 during the cross-examination has accepted that the appointment orders were issued to all the employees and the petitioner is ready to produce the same. On 31.07.1998, the respondent was transferred and he preferred a petition before the Labour Officer. The further facts admitted by the MW1 is that “the respondent has not issued any notice nor compensation was paid to the petitioner before he was dismissed form service. It is evident from the evidence by the MW1 that no fair and proper enquiry was conducted by the petitioner/ Management. 7. The learned counsel further relied upon the following order made in The Management Gedee Weiler Pvt. Ltd., Vs P.Swaminathan and Another reported in CDJ 2006 MHC 1897. For better understanding the relevant paragraphs 3 and 8 of the said order is extracted hereunder: 3. The learned counsel for the petitioner submitted that the complaint itself is not maintainable because I.D.No.140 of 1997 is with regard to a reference which dealt only with the question of individual transfers issued to six workmen. As per G.o.204 dated 12.3.1997 there is no issue with regard to the alteration of conditions of service. The learned counsel therefore submitted that to maintain a complaint under section 33 of the Industrial Disputes Act, 1947, there should be a change in the conditions of service of the workman and the said condition having not been satisfied in this case, the second respondent has no jurisdiction to entertain the complaint under section 33 of the Industrial Disputes Act. The learned counsel also submitted that the Model Standing Order 33(2)(b) contemplates not only express powers of right but also implied powers as well and the Management exercised the implied powers and transferred the first respondent, which the Management did earlier also by transferring the first respondent on several occasions i.e., on 5.5.1994, 12.8.1994, 7.7.1995, 3.9.1995, etc., and the first respondent also accepted the said transfers without any demur. According to the learned counsel, some of the transfer orders were passed at the request of the first respondent himself and therefore the power to issue transfer order is available to the petitioner Management and the second respondent erroneously passed the order cancelling the same. The learned counsel contended that once there is power to transfer, then the petition under section 33A concerning such transfer would not lie at all. The learned counsel also cited the decision of the Full Bench reported in 1998 (4) LLN 804 (Correspondent, Malankara Syrian Catholic School, Marthandam v. J. Rabinson Jacob and others) and stated that the power of transfer may be express or implied and the implied power can be reasonably inferred to be included directly in the power of appointment and suo-motu recorded as an ancillary power. 8. The power of transfer vested with the management is considered by this Court and the Honourable Supreme Court in very many decisions. (a) In W.P.No.14291 of 1992 (The Workmen rep. by the Secretary, Addisons Paints and Chemicals Ltd., Madras v. The Management of Addisons Paints and Chemicals Ltd, Madras and another) by order dated 23.4.1993, Justice M.Srinivasan (as he then was as follows, “I agree with the learned Judge and hold that the absence of a provision in the Standing Orders does not disentitle the management to pass an order of transfer, particularly when in the contract of service, the employee has undertaken to serve the company in any capacity as may be decided by the company. It is only when the terms of the contract of service are inconsistent with or contrary to the provisions of the Standing Orders, the same is unenforceable. It is only when the terms of the contract of service are inconsistent with or contrary to the provisions of the Standing Orders, the same is unenforceable. When there is no provision in the Standing Orders with reference to a particular term in the contract of service, the latter can be enforced.“ (b) In the decisions reported in 2004 (3) LLJ 749 (State of U.P. v. Gobardhan Lal), the Honourable Supreme Court in paragraph 7 held as follows, “7. It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place, or position as long as he desires. Transfer of an employee is not only an inherent capacity in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the con sequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.“ (c) A Full Bench of this Court in the decision reported in 1998 (4) LLN 804 (Correspondent M.S.C. School v. J.Rabinson Jacob) at paragraph 26 held as follows, “26. From the resume of the observations made above it can be safely concluded that transfer is not necessarily included in the conditions of service as a term of the conditions of service. Transfer is specie of appointment and being one of the terms of appointment, cannot be included in the appointment itself unless it is expressly or impliedly provided for. Thus the assumption that the power to transfer is included in the power of appointment is unsustainable. Power to transfer involving the cessation of appointment would depend upon the nature of the transaction involved. May be in peculiar facts where it does not bring about any alterations of the conditions of service, change of master, change of place, alteration in the terms of appointment, usage prevalent in the statutory provisions, rules and regulations and structure, duration of employment and various other circumstances may provide for a lead that it is an incident of service. The question whether it is an incident of service has to be determined in the facts and circumstances of each and every case is a question of facts.“ 8. The learned counsel appearing for the respondent submitted that the respondent was transferred from Chennai to Bhivandi, Maharashtra only with a malafied intention and ulterior motive since he was involved in Union activities. The respondent was working in Chennai office for twenty years from 1979 to 1999 and getting a monthly salary of Rs.2,500/- and suddenly was transferred from Chennai office to Bhivandi by the petitioner/ Management without assigning any reasons. It is also admitted that the transfer order was not challenged by the respondent. Hence, the order passed by the Labour Court was correct. 9. Heard the learned counsel for both sides and perused the materials available on record. 10. It is not in dispute that the respondent was working in the petitioner-s office at Chennai for twenty years that is from 1979 to 1998. Then in the year 1999 he was transferred to Bhivandi, Maharashtra due to administrative reasons. But the respondent did not join the duty there. The respondent did not challenge the tranfer order issued by the Director at headoffice at Mumbai. Instead, he requested to permit him to join duty at Chennai itself. Then in the year 1999 he was transferred to Bhivandi, Maharashtra due to administrative reasons. But the respondent did not join the duty there. The respondent did not challenge the tranfer order issued by the Director at headoffice at Mumbai. Instead, he requested to permit him to join duty at Chennai itself. At the time of appointment in the year 1979, as per Sub Clause 6 under the caption Duties and Responsibilities, it was agreed by the respondent that he agree to transfer to any branches of the petitioner-s company throughout the country. The respondent was relieved of his duties on 31.07.1998 from Chennai office. Even then he did not report at Bhivandi office as directed by the petitioner/ Management. The respondent also produced medical certificate to the petitioner/ Management and requested time for joining and the petitioner/ Management gave him time. But even then the respondent did not report to duty at Bhivandi. 11. The only issue in this case is the transfer order transferring the respondent from Chennai to Bhivandi, Maharashtra and the respondent failed to join duty at Bhivandi, Maharashtra and this Court fails to understand how it will amount to non-employment as held by the Labour Court. There is no dismissal order issued by the petitioner/ Management and only the transfer order was issued to respondent and even the transfer order was not at all challenged by him in any Court of law. The Labour Court has erred in holding that the non-employment of the petitioner is not justified and the petitioner is entitled to relief of reinstatement in service with backwages, continuity of service and all other attendant benefits. 12. It is a well settled law that this Court cannot interfere with the award passed by the Labour Court under Article 226 of the Constitution of India only in exceptional cases where the award passed by the Labour Court is perverse, arbitrary, discriminatory, error apparent on the face of the record, illegal and unsustainable in law. In this case, the award passed by the Labour Court is error apparent on the face of the record and the same is liable to be set aside. 13. Accordingly, this Writ Petition stands allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also closed.