Madura Coats Ltd. and Millennium Mills vs Devadoss Sathraj

S. Ashok Kumar, J.—The petitioners are the defendants in O.S. No. 109 of 2002. The respondent/plaintiff filed the suit against the

petitioners/defendants for a declaration that the transfer order dated 27.12.2001 issued by the first petitioner to the respondent transferring him to

Bombay, is not sustainable, and for a permanent injunction restraining the petitioners/defendants from disturbing the respondent/plaintiff in his

continuous employment with the second petitioner/second plaintiff.

The petitioners/defendants filed I.A. No. 720 of 2002 wherein they had contended that u/s 2(k) of the Industrial Disputes Act (hereinafter

referred to as ""the Act""), plaintiff can approach only the Labour Court or the Industrial Tribunal, and the Civil Court has no jurisdiction to entertain

any suit with regard to the dispute between the workmen and the management u/s 2-A and 2(k) of the Act. The learned Principal District Munsif

has held that the Civil court has got jurisdiction to conduct an enquiry into the matter and to take the suit on file and try the same.

Had the learned Principal District Munsif decided that the maintainability of the suit can be decided along with other issues at the time of trial,

there will be no cause for this Civil Revision Petition being filed by the petitioners. Since the learned Principal District Munsif has held that the Civil

Court has got jurisdiction, this revision petition has been filed by the petitioners.

The learned Counsel, Mr. S. Jayaraman has contended that when the Civil Court has no jurisdiction to entertain a suit with regard to the service

conditions of a workman since the same is covered by the jurisdiction of the appropriate forums under the Industrial Disputes Act, the Civil Court

cannot pass an interim order of injunction which is the main relief sought for in the suit also. On the other hand, Mr. K. Srinivasan, learned Counsel

for the respondent would contend that the jurisdiction of Civil Court to entertain such a suit can be decided at the time of trial.

The fact that the plaintiff is an employee of the defendants is not in dispute. The transfer order issued by the first defendant transferring the

plaintiff to Bombay, is also not in dispute. The plaintiff has disputed that he is not an employee of the first defendant, but he is an employee of the

second defendant. According to the first defendant, the second defendant is only a branch of the first defendant. Who is the employer of the

respondent, i.e., whether the first defendant or the second defendant, or whether the second defendant is an independent organization or a branch

of the first defendant, are the matters to be proved later. But, whether a workman covered u/s 2(k) of the Act can file a suit against any dispute

regarding his service condition, is the only matter to be decided in this civil revision petition. Section 2(k) of the Act recites as under:-

industrial dispute"" means any dispute or difference between employers and employers, or between employers and workmen, or between

workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour,

of any person"".

According to the definition, any dispute or difference between the employers and workmen which is connected with the employment or non-

employment or the terms of the employment or with the conditions of labour, of any person, is an industrial dispute. In the Fifth Schedule of the Act

under the caption ""unfair labour practices"", item No. 7 is, to transfer a workman mala fide from one place to another, under the guise of following

management policy. Therefore, it is clear that the transfer of a workman, if it is mala fide, is an unfair labour practice, which can result in dispute

between the workman and the management. The Civil Court has got no jurisdiction to entertain a suit relating to transfer of an employee, when it is

in violation of Certified Standing Order or as a result of victimization, and the remedy of the employee is, to approach the forum constituted under

the Industrial Disputes Act.

In Thiruvalluvar Transport Corporation Ltd., vs. K.P. Ganesan (1997 (2) LLJ 166), this Court has held as follows:-

We have already extracted Clause-27 of the Standing Order. Clause-27, in my opinion, does not impose any restriction on the management

in transferring an employee and the only condition is that by virtue of such a transfer, the service condition of the employee shall not adversely be

affected when the only grievance of the respondent was that he was sought to be transferred notwithstanding the presence of a lot of juniors. In my

view, the Sub-Court has grossly mis-directed itself in holding that by virtue of the order of transfer to Pondicherry, the service conditions of the

respondent are altered and consequently holding that the transfer is in contravention of the Standing Orders.

It has also been held as follows:-

In my opinion, the orders of both of the Courts below are totally without jurisdiction and ought to be set aside. The relief claimed by the

respondent in this case is not recognised under Common Law as it does not impose any limitation on the power of the Master to transfer his

employees on the ground of mala fides or unfair labour practice or victimisation. Such a right being only the creation of the Industrial Disputes Act

which provides for a machinery for adjudication for resolving any such grievance, the Civil Court, in my view, would have no jurisdiction to

entertain the suit much less grant the interim order as prayed for. The Appellate Court has also failed to notice that the only grievance of the

respondent was that he was sought to be transferred notwithstanding the presence of his juniors in the same branch. That being the case, the

Appellate Court has grossly misdirected itself in proceeding as if by virtue of the transfer his service conditions are altered and the Appellate Court

has proceeded as if the respondent would become junior in the Pondicherry depot which was never the case of the respondent. My attention was

drawn to clauses-21 & 22 of Common Service Rules which is applicable to the employees of the Corporation. The management in my view, has

the power to transfer the respondent from one depot to branch or place of work to another of the Corporation by virtue of Clauses 21 and 22 of

the common Service Rules. When there is a power to transfer, and the same has been bonafidely exercised, the Civil Court has no jurisdiction to

interfere and grant an injunction restraining the management from giving effect to the said order. The respondent being a workman within the

meaning of Sec. 2(s) of the Act and relates to the enforcement of a right of or obligation created under the Act, the only remedy available to him,

would be to approach the forum created under the provisions of the Act and face if any grievance, and the jurisdiction on the Civil Court is ousted.

It has been further held as under:-

I am unable to subscribe to the views expressed by the learned single Judge of the Madhya Pradesh High Court, in view of the catena of

judgments rendered by our High Court in the matter of transfer. The power to transfer employees has been considered by this Court in numerous

decisions and it has been unilaterally held by this Court that transfer is a general condition of service of the employees, that such transfers are to be

effected for the administrative convenience of the employer, that the Court does not sit in appeal nor call for details of administrative exigencies. In

B. Varada Rao v. State of Karanataka (1986-II-LLJ-516), the Supreme Court held that it is well understood that transfer of Government servant,

who is appointed to a particular cadre of transferable post from one place to another is an ordinary incident of service and therefore, does not

result in any alteration of any of the conditions of service to his disadvantage. The Supreme Court declined to accept the case of the petitioner

therein, that he should not be transferred. S. Mohan, J. (as he then was) in M. Syed Ali v. The General Superintendent, Ennor Thermal Power

Station, W.P. No. 4214 of 1983, while dealing with the challenge to the order of transfer of a workman from the Ennore Thermal Station, and

referring to Standing Order No. 17 dealing with the Clerical staff of the Board which is similar to Standing Order 28 for the workmen, held that

there is absolutely no bar for transfer from Ennore Thermal Power Station to another circle. S. Nainar Sundaram, J., (as he then was) also took the

same view in W.P. No. 5781 and 5869/84. S. Natarajan, J., (as he then was, in the case of Pakkiri v. The Chief Engineer/Personnel, TNEB,

W.P. Nos. 1144 to 1146 of 85 dated April 19, 1985, after referring to clause-28 of the Standing Order, held that the contentions advanced on

the basis of the Standing Order were not sustainable. This Court also (AR. Lakshmanan, J.) in Bomman v. Tamil Nadu Electricity Board 1992

WLR 852, after considering the case of the petitioners therein based on Clauses 17 and 18 of the TNEB Standing Orders held that the allegations

of mala fides were not made out on the facts of the case. I further observed that only in cases, where the order of transfer is found to be mala fide

or in cases where such orders are in colourable exercise of power, the orders would become wholly illegal and void and that transferring a person

because he is trouble-some or trouble-maker would in the interest of administration and that such transfers cannot be characterised as punitive.

The transfer of the petitioners therein outside the circle in which they were employed was held to be within the competence of the authorities. In

N.K. Singh Vs. Union of India and others, , the Supreme Court has observed that no roving inquiry into the matter is called for or justified within

the scope of judicial review of a transfer scrutinised with reference to the private rights of an individual. It was further held that the transfer of a

Government servant in a transferable service is a necessary incident of the service career and that assessment of the quality of men is to be made

by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration.

It has been also held as under:-

For all the foregoing reasons, I am of the view that the respondent being a workman within the meaning of Sec. 2(s) of the Act, the only

remedy available to him would be to approach the forum created under the Industrial Disputes Act, and not to approach the Civil Court which is

ousted.""....

In Tamil Nadu Cement Corporation Ltd. v. Jabamalai and Others 1996 (III) LLJ 471, this Court has held as under:-

In effect and subsisting prayer of plaintiffs is that the settlement between management and Union is not binding upon them. Such a settlement

cannot be filed in a Civil Court.

It has been also held as under:-

The dispute which plaintiffs raised being one connected with the seniority, there cannot be any doubt that the same is an Industrial Dispute u/s 2(k)

of the Industrial Disputes Act, 1947.

It has been further held as under:-

The dispute raised by plaintiffs in the suit relates to the enforcement of rights created under the Industrial Disputes Act and therefore the plaintiffs

have to get an adjudication only under the Industrial Disputes Act. The plaintiff''s claim, a right, which the Industrial Disputes Act has created. It is

not as if their claim is one which exists as common law and it is only re-enacted by the statute. The reliefs claimed by the plaintiffs is not existing

one under the Common-law.

It has been also held as under:-

In the present case, the transfer of plaintiffs from Alangulam Cement Factory to Ariyalur Cement Factory is not said to be an illegal one and they

have asked for the transfer for their own convenience and the Unions have arrived at a settlement with management as to how these transferred

employees are to be accommodated for seniority, promotion and other benefits. Therefore, the availability of the rights and benefits for which the

plaintiffs make a claim be said to be flowing only under the Industrial Disputes Act and therefore, the Civil Court''s jurisdiction has to be ousted

impliedly.

In Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, , it has been held by the Hon''ble Supreme Court

as under:-

We may now summarise the principles flowing from the above discussion:

(1) Where the dispute arises from general of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even though such a dispute may also constitute an ""industrial dispute"" within the meaning of Section

2(k) or Section 2-A of the Industrial Disputes Act, 1947.

(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial

Disputes Act, the only remedy is to approach the forums created by the said Act.

(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946 - which can be called ""sister enactments"" to Industrial Disputes Act - and which do not provide a forum

for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute

industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute

shall be either treated as an Industrial dispute or says that it shall be adjudicated by an Industrial dispute or says that it shall be adjudicated by any

of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided by the Industrial Disputes Act not equally effective for the reason that access to the forum

depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the government is to be

exercised to effectuate the object of the enactment and hence not unguarded. The rule is to make a reference unless, of course, the dispute raised

is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is

entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.

Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman

to approach the Labour Court/Industrial Tribunal directly - i.e., without the requirement of a reference by the Government -in case of industrial

disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the

effectiveness of the remedies provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily

imposed conditions of service and are binding both upon the employers and employees, though they do not amount to ""statutory provisions"". Any

violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the

Civil Court where recourse to Civil Court is open according to the principles indicated herein.

(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to

the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon

appeals and revisions applicable to civil courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more

extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.

It has been also held as under:-

It is directed that the principles enunciated in this judgment shall apply to all pending matters except where decrees have been passed by the

Trial Court and the matters are pending in appeal or second appeal, as the case may be. All suits pending in the Trial Court shall be governed by

the principles enunciated herein as also the suits and proceedings to be instituted hereinafter.

As far as this case is concerned, the petitioners/defendants have contended that the contentions of the respondent/plaintiff is that his transfer is

mala fide and the revision petitioners have contemplated disciplinary action against the respondent/plaintiff. Item No. 7 of the Fifth Schedule of the

Act deals with transfer of a workman due to mala fide reasons, which is said to be an unfair labour practice. Any violation of the standing orders or

victimization is an industrial dispute as defined u/s 2(k) of the Act. A dispute which can be agitated only in a forum created under the Industrial

Disputes Act, cannot be adjudicated for resolving any such grievance before Civil Court, which will have no jurisdiction to entertain a suit much

less grant an interim order. The position as on date is an affected employee/workman need not wait for a reference to be made by the

Government, but he can directly approach the appropriate forum created under the Act. As held by the Hon''ble Supreme Court and this Court,

the Civil Court has no jurisdiction to entertain disputes concerning the workmen and the employer with regard to the service condition of the

workmen. Hence, the order of the learned Principal District Munsif, Ambasamudram, in I.A. No. 720 of 2002 in O.S. No. 109 of 2002 is set

aside, since the suit itself is not maintainable in Civil Court. This Civil Revision Petition is allowed. Consequently, C.M.P. No. 17704 of 2002 is

closed. No costs.