O.P. Sood vs H.M.T. Limited

N.K. Kapoor, J.—This is unsuccessful plaintiffs regular second appeal.

Plaintiff, a Sales Assistant with the defendant, challenged the legality of his transfer order dated 7.2.1986 from Chandigarh to Panaji (Goa) with a further prayer that the defendant be restrained from transferring him from Chandigarh to any other place.

The suit was resisted by the defendant on a number of grounds, namely the Court has no jurisdiction to try the present suit as the plaintiff had earlier approached the Labour Commissioner; transfer is in the exigency of service and so not justifiable. Lastly, the parties are bound by the terms and conditions of the appointment letter. On merit, it was justified that as the defendant had opened another office to promote sales, experienced persons like the plaintiff were required to man the office.

Court framed issues as arose from the pleadings of the parties and permitted them to lead evidence. Trial Court, however, found no substance in the claim set up by the plaintiff and so dismissed the suit vide judgment and decree dated 28.5.1990.

Lower appellate Court also found no ground to vary or reverse the findings of the trial Court and, accordingly, dismissed the appeal.

Challenging the concurrent findings recorded by the Courts below, counsel for the appellant argued that the plaintiff could not be ordered to be transferred to a far off place as there was no provision in the certified standing orders for transferring an employee to another place/State on opening of a new office or a factory. Otherwise too, the order is malafide and has been passed so as to dissuade the other workers to form a union to protect their rights. Since the matter of transfer did not come within the purview of industrial disputes the plaintiff rightly withdrew his petition before the Labour Commissioner and approached the civil Court for an appropriate relief. Conclusion of the Courts below that the reference sought by the plaintiff under the Industrial Disputes Act is mis-founded. According to the counsel, even when it is mentioned in the appointment letter that one can be transferred to another place, the same will not be binding on a workman who is governed by the certified standing orders. The Courts below have not properly appreciated the ratio of the judgments, the reference to which has been made in paragraph 15 of the judgment.

Counsel for the respondent on the other hand argued that the plaintiff is bound by his appointment letter wherein it has been specifically mentioned that he can be transferred to any other place. Merely for the reason that office at Panaji came into existence after the appointment of the plaintiff is hardly a ground to hold that the plaintiff is not liable to be transferred. Transfer is in the exigency of service. Such an order is not justiciable.

Crux of the dispute lies within a narrow compass, namely, whether employee can be transferred to another place in view of the exigency of circumstances. Concededly, as per the appointment letter dated 18.1.1981 plaintiff can be transferred by the Company at any place in India in any Section i.e. in any part of the H.M.T. working unit. As noticed by the Courts below, Company with a view to promote sales opened a new marketing office/stock yard at Panaji (Goa) and since experienced persons were required to man this office, plaintiff was transferred being a Sales Assistant of some experience to Panaji. Much emphasis was laid by the counsel for the appellant upon the decision of the apex Court in Kundan Sugar Mills Vs. Ziyauddin and Others, wherein it has been held "an employer has no inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. Hence, in the absence of an express term of the contract of service between the employer and the employee that the latter should serve in any future concerns which the former might acquire or start, a person employed in a factory cannot be transferred to some other independent concern started by the same employer at another place at a stage subsequent to the date of his employment. In such a case, the right of the employer to transfer the employee to the new concern cannot be implied as a condition of service of the employment."

In the aforesaid case, the employees of M/s Kundan Sugar Mills were ordered to be transferred to a new factory known as Pannijee Sugar and General Mills Co., Bulandshahr. This was protested by the employees, ultimately leading to an industrial dispute. Matter was referred by the Government of U.P. to State Industrial Tribunal. The Tribunal held that Management was within its right to transfer the employees and since they dis-obeyed they were rightly dismissed from service. In appeal, the Labour Appellate Tribunal set aside the order holding that the Management had no right to transfer the respondents to new factory and so the order dismissing them from service was held to the illegal. The apex Court while considering the matter held that in the absence of any express term of contract of service between the employer and the employee that the latter would serve in any future concern which the former might acquire or start, a person employed in a factory cannot be transferred to some other independent concern started by the same employer at another place at a stage subsequent to the date of his employment. The Court, however, held that apart from any statutory provisions right of an employer and the employee are governed by the terms of contract between them or the terms necessarily implied therefrom. In the context of the present case, appointment letter expressly mentioned that plaintiff could be transferred by the Company at any place in India in any Section. Office at Panaji has no independent existence. It is merely an extension of the activity of the defendant-Company. So, the decision of the apex Court is clearly distinguishable.

The plea of the appellant that stipulation, if any, in the appointment letter regarding right of the Company to transfer the appellant to any other place, being contrary to the certified standing order, is also mis-founded. Taking this submission to its logical conclusion it would amount that no employee of the defendant Company can be transferred to another place. Construed so, it can be appropriately described as an industrial dispute for which the appropriate remedy is before the Industrial Tribunal. Precisely for this reason, the lower appellate Court held that civil Court has no jurisdiction to grant the relief. All the same, the lower appellate Court examined the matter on its merit and decided the same. I find no infirmity in the approach of the lower appellate Court. Dismissed.