S.P. Iyer vs Press Trust of India Ltd. and Another

A.A. Sayed, J.—This petition impugns an order dated 15.6.2013 passed by the Industrial Court, Mumbai, whereby the Complaint filed by the complainant-Union came to be rejected. The Complaint was filed by the complainant-Union on behalf of three employees initially, but was later pressed only on behalf of the petitioner. The operative part of the impugned order reads as follows:

The complaint filed by complainant is hereby disposed off with directions to the respondents not to transfer the complainant till the date of his retirement out of region.

The prayer of the complainant to declare unfair labour practices under Items 3, 5, 7, 9 & 10 of Sch. IV of the M.R.T.U. & P.U.L.P. Act, 1971 against the respondents is hereby rejected.

The respondents are hereby directed to modify the transfer order transferring the complainant from Mumbai to Shimla and to consider the complainant for transfer within the region only till the date of his retirement.

Effect and operation of this order is stayed upto 10.7.2013.

Parties to bear their own costs.

The issue in the petition essentially is whether the transfer of the petitioner from Mumbai to Shimla by order dated 6.6.2002 was by way of administrative exigency or was it a mala fide action taken by the Respondent employer on the basis of a letter dated 29.5.2002 written by a rival Union, viz., Federation of Press Trust of India Employees'' Union (of which the complainant-Union and the petitioner were formerly members and who were removed from the affiliation/membership of that Union) calling upon the respondent-employer to take action against 12 employees enlisted (one of them being the petitioner) in the resolution passed by the rival Union on 28.5.2002 for indulging in anti-organisational activities.

It is an admitted position that within seven days of the receipt of the said letter dated 29.5.2002 by the rival Union to the respondent-employer, the petitioner, who was the General Secretary of the complainant-Union, was transferred by the order dated 6.6.2002. The question, therefore, is whether considering the proximity of the letter of the rival Union (dated 29.5.2002) and the order of transfer (dated 6.6.2002) was it merely a co-incidence or was it actuated by mala fides. The Tribunal has while dealing with this issue in the impugned order in the latter part of paragraph 24 held as follows:

It can be seen from the transfer letter that the management has given the reason that as on the date of the transfer of the complainant the Sr. Technician Mr. Munnoo was due for retirement and therefore being a second senior most Sr. Technician at Mumbai the complainant was transferred to Shimla. The senior most Technician at Mumbai was handicapped and therefore the name of the complainant was considered to be transferred at Shimla and therefore action of the management cannot be termed as mala fide transfer envisaged under Item-3 of Sch. IV of the MRTU & PULP Act, 1971.

The Industrial Tribunal has thus arrived at a finding of fact that the action of the management cannot be termed as mala fide transfer. This is a plausible view arrived at by the Industrial Court. In the circumstances, I am not inclined to interfere with the finding of fact arrived at by the Industrial Court in exercise of the writ jurisdiction of this Court.

Apart from the above, it is also noticed that under the shelter of ad-interim/interim orders of various Courts, the petitioner has not been transferred right from the year 2002 till date i.e. September, 2013, though admittedly, there is a policy of respondent-employer of transfer of employees throughout India i.e. within the region (which extends to areas out of Maharashtra also) or outside the region. This fact has also been admitted in evidence by the petitioner. The petitioner in his evidence has also stated that the respondent employer used to effect transfer on regular basis. It is also an admitted position that the petitioner was hitherto transferred to Pune.

Learned Counsel for the petitioner however contended that the action of the respondent-employer in transferring the petitioner who was the General Secretary of the Complainant-Union smacks of mala fides. It is submitted that it was at the behest of the rival Union as contained in their letter dated 29.5.2002 to take action against the petitioner and 11 others that the impugned order of transfer was issued. According to learned Counsel for the petitioner, the said letter dated 29.5.2002 has not at all been considered by the Industrial Court in the impugned order. Learned Counsel further submitted that the Industrial Court has erred in observing in paragraph 23 of the impugned order as follows:

Only the defence appears from the evidence of the complainant that the management has a right to transfer the employee only within the region, but the documents at Exh. C-26 (collectively) clearly goes to show that the transfer of the employees were effected even out of the region by the respondents i.e. Rajkot, Calcutta, Raipur, etc. and most of the employees lost cases upto the High Court. Hence, it cannot be said that the management has no right to transfer the employees out of Mumbai and has the right to transfer the employees only within the region.

According to learned Counsel for the petitioner, the transfer order was challenged as a whole i.e. transfer anywhere in India, within the region or outside the region and there has been non-application of mind by the Industrial Court Learned Counsel for the Petitioner has placed reliance on the decision in the case of Rajendra Roy Vs. Union of India (UOI) and Another, wherein the Apex Court has held that it may not always be possible to establish malice in a straight cut manner and in an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances.

The learned Senior Counsel for the respondent-employer, on the other hand, has placed reliance on the following judgments: (i) Pearlite Liners Pvt. Ltd. Vs. Manorama Sirsi, of the Supreme Court; (ii) National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, of the Supreme Court; (iii) Executive Engineer, Mechanical Divn., Ahmednagar and others v. Sadashiv Deoraj Deshmukh and others, 1997 1 CLR 68 of a learned Single Judge of this Court; and (iv) Judgment and order dated 4.2.2005 in Writ Petition No. 39 of 2005 (Shri D.B. Patil v. S.G. Kadam, Member, Industrial Court, Solapur and another) also by a learned Single Judge of this Court, in support of his submission that the transfer order is only an incident of service and passed in the interest of administrative exigencies and unless shown to be an outcome of mala fide exercise of power and violative of statutory provisions the transfer orders are not subject to judicial interference. Learned Senior Counsel submitted that there was no nexus between the letter dated 29.5.2002 of the alleged rival Union and the order of transfer of the petitioner.

The aforesaid decisions are general propositions of law on the issue of transfer to which there cannot be any quarrel. The only issue in the present case is whether the action of transfer was actuated by mala fides and consequently whether there was breach of Item No. 3 of Schedule IV of the MRTU & PULP Act, 1971 which speaks of transfer of an employee mala fide from one place to another under the guise of following management policy. The Industrial, Court has, in arriving at its finding that the action of the management cannot be termed as mala fide, referred to the transfer order dated 6.6.2002 of the respondent-employer addressed to the petitioner, the material portion of which reads as follows:

Our senior technician in Shimla, Mr. Munnoo, is retiring and we need a replacement there. Therefore, it has been decided to transfer you to Shimla to succeed Mr. Munnoo. You will stand relieved from your duties in Mumbai on June 7 and you should report for duty in Shimla on June 14, 2002.

(Emphasis supplied)

The fact that the Senior Technician at Shimla was due to retire has not been disputed. The Industrial Court has in the impugned order also noted the submission on behalf of the complainant-Union as regards the letter dated 29.5.2002 of the rival Union and it cannot therefore be said that the Industrial Court has not considered the said letter in concluding that the action of the respondent-employer cannot be termed as mala fide. It is also significant to note that the Industrial Court has rejected the prayer for declaration of unfair labour practice by the respondent-employer.

It is also noticed that since the order of transfer, the petitioner is being paid wages and has not been working from June, 2002, though according to the petitioner, it is the respondent-employer that has not permitted him to work. It is further noticed mat the Industrial Court considering the facts and circumstances of the case and the age of the petitioner has directed the respondent-employer not to transfer the petitioner till his retirement out of the region, which direction the respondent-employer has accepted and has not been challenged, though their policy clearly sets out that the employees can be transferred even out of the region. It not disputed before the Court that insofar as Sr. No. 11 on the list Raju Naik is concerned, he was transferred from Mumbai only in the year 2010 and Shri Umesh Nilekani, who is at Sr. No. 12 on the list was transferred only in the year 2006 and, therefore, it cannot be said that the management had merely acted on the letter dated 29.5.2002 of the rival Union. It is also not disputed that in respect of other employees, viz. D.B. Patil, Ashraf Jalaluddin and Umesh Nilekani, no favourable orders have been passed by any Court, though the petitioner has categorically admitted in his evidence that the pleadings in his case and that of the aforementioned employees are almost the same. On a query by the Court to the learned Senior Counsel on behalf of the respondent-employer, the learned Senior Counsel has fairly stated on instructions that the petitioner would be transferred only within Maharashtra and Nagpur in the first instance, though ''region'' included certain places even out of the State of Maharashtra. That statement is accepted. The respondent-employer shall accordingly be entitled to issue a fresh order of transfer of the petitioner.

Subject to the above, the petition is dismissed. No order as to costs. At this stage, learned Counsel for the petitioner seeks stay of this order. Considering the fact that the Petitioner by virtue of ad-interim/interim orders passed by the Industrial Court as well as this Court has not been transferred for more than 11 years though admittedly there was a policy of transfer of employees in place throughout India and the fact that the petitioner has been drawing wages for the aforesaid period without having worked, I am not inclined to grant stay. Prayer for stay is therefore rejected.