Asiatic Oxygen and Acetylene Co. Ltd. vs Industrial Court of Maharashtra Bench and Another

J.N. Patel, J.—Rule made returnable by consent of the learned Counsel for the parties. Heard forthwith. The petitioner/employer impugns the order dated August 3, 1998 passed by the learned Member of the Industrial Court, Nagpur, on an application u/s 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, in Complaint (ULP) No. 460 of 1990.

The respondent No. 2 employee had challenged the transfer order dated May 14, 1998 issued by the petitioner/employer, transferring him to their Chandrapur Depot on the same terms and conditions of service as from May 25, 1998. It was the case of the respondent/employee that because he requested for extending the benefits available under the Standing Orders, the petitioner/employer was annoyed by the said representation and effected his transfer from Nagpur (Kamptee) to Chandrapur Depot, during the period when he was on medical leave. It was also contended that the condition of transfer put in the appointment order dated February 14, 1994 is against the provisions of the Standing Orders and, therefore, the transfer, in pursuance of the said condition in the appointment order, is in violation of the provisions of the Standing Orders. It is further contended that no post of Clerk-cum-Typist is sanctioned at Chandrapur Depot, which is managed by a Depot Keeper and, therefore, the transfer order has been effected with an ulterior motive and mala fide intention, thereby the respondent/employee is compelled to give up the employment.

Shri Ghate, learned Counsel appearing for the petitioner/employer, submitted that the learned Member of the Industrial Court has overlooked the fact that the case of the respondent/employee would not be governed by the provisions of the Industrial Employment (Standing Orders) Act, 1946. Section 1(4) of the said Act clearly provides that nothing in this -Act shall apply to any industry to which provisions of Chapter VII of the Bombay Industrial Relations Act, 1946, apply, and as it is not disputed that the industry of the petitioner is governed by the provisions of the Bombay -Industrial Relations Act, 1946 and the Standing Orders framed thereunder, the learned Industrial Court has erred in relying upon the Industrial Employment (Standing Orders) Act, 1946, in order to come to a finding that the petitioner/employer lacks power of transfer in respect of his employees being governed under the said Act.

It is pointed out by Mr. Ghate, learned Counsel for the petitioner that in case the learned Member of the Industrial Court considers the case of the parties before him from the view point that the industry of the petitioner is governed by the Bombay Industrial Relations Act, 1946, there will be no justification in arriving at a finding that the petitioner/employer has no power to transfer his employees.

It is submitted that the learned Member of the Industrial Court has otherwise found no mala fides in the transfer of the respondent/employee and the order of transfer has been stayed only on the basis that the petitioner/employer lacks such power to transfer him, which is not so. It is submitted that as per the Standing Orders given in Schedule I of the Bombay Industrial Relations Act, 1946, question of transfer of an employee cannot be provided for as the Standing Orders do not contemplate it, and that the provision for transfer will be governed under the general powers of contract of service, and in case of the respondent No. 2/employee, his appointment letter, dated February 14, 1994, clearly provides that the petitioner/employer is entitled to transfer him anywhere in India, as per Clause 10 thereof.

Mr. Feroz Khan, learned Counsel appearing for the respondent/employee, submitted that the matter can be remanded back to the Industrial Court to consider the point raised by the learned Counsel for the petitioner, that the case of the petitioner would not be governed by the Industrial Employment (Standing Orders) Act, 1946.

It is submitted by the learned Counsel for the parties that as this point was not raised and agitated, it was not considered by the learned Member of the Industrial Court.

In this view of the matter, this Court would not like to make any observations on merits of the case, as it will suffice if the learned Member of the Industrial Court is directed to reconsider the order dated August 3, 1998, after hearing the learned Counsel for the parties on the issues, as to whether, by virtue of inapplicability of the Industrial Employment (Standing Orders) Act, 1946 and the fact that the case of the parties would be governed by the provisions of the Bombay Industrial Relations Act, 1946, it can be still held that the petitioner employer does not have power of transfer of his employees, and will pass appropriate order in accordance with law, within a period of four weeks from the first date of appearance of the parties. The learned Counsel for the parties agree that they will appear before the learned Member of the Industrial Court, Nagpur, on January 27, 1999.

Rule is made absolute in the aforesaid terms, with no order as to the costs.