T. Rajaiah and Others vs Southern Roadways Ltd. and Another

S.T. Ramalingam, J.—In this batch of 28 civil revision petitions, the employees of respondents 1 and 2 are the petitioners. Individually they

have filed 28 suits on the file of the District Munsif, Tirumangalam, questioning their transfer from the places where they were working to some

other place, allegedly, with mala fide intention by the respondents, and not for any administrative reasons. Along with the suits, they have filed inter-

locutory applications under Order 39, Rules 1 and 2, Civil Procedure Code, for an ad interim injunction restraining respondents 1 and 2 from

giving effect to the orders of transfer pending disposal of the suits.

Respondents 1 and 2 filed their written statement in the suits as well as counter in the interlocutory applications.

The learned District Munsif dismissed the interlocutory applications on the ground that the Civil Court has no jurisdiction. On appeal, the order

and decree of the Trial Court were confirmed by the Principal District Judge, Madurai. Hence these revisions.

The point that arises for consideration in these revision petitions is whether the Civil Court has got jurisdiction to entertain the suits filed by the

revision petitioners?

Certain basic facts, which are not in dispute may first be stated. Southern Roadways Ltd. is a public limited company, of which the first

respondent is the Secretary and the second respondent is the Chairman and Managing Director. The Southern Roadways Ltd. has got branches at

Madras, Coimbatore, Banglore, Madurai, Tiruchi, Triunelveli, Salem, Secunderabad, Vijayawada. According to the petitioners, the Southern

Roadways Ltd. operated its own trade union under the banner ""T.V.S. Workers'' Union"" whose office-bearers were nominated by the

management itself, and manipulated elections were held inside the company''s premises, where the management would ensure that each branch of

the Company''s candidate was not opposed by any body and in the event of any opposition from any such genuine representative, the opposing

candidate, as a rule, will be victimised. Under these circumstances, the petitioners and their companions individually never recognised the ""T.V.S.

Workers'' Union'''' as a union at all.

While so, at Bangalore, all the piece-rate loadmen, who worked for decades were converted into contract labourers by imposing fraudulent

settlements, and their services were terminated. This led to the workmen of the Bangalore Branch to form a genuine representative trade union, and

in that, steps to form a new union was taken in February 1987. Respondents 1 and 2 by systematic intelligence identified certain workmen, who

were showing enthusiasm and taking active interest in the formation of the union, and victimised those workmen by gross abuse of disciplinary

powers and within a span of two weeks, eighteen workmen were suspended by levelling false charges. In the wake of this victimisation, Southern

Roadways Employees'' Union, of which this revision-petitioners arc members, was formed at Bangalore. Right from the formation of the said

union, the respondents have been systematically victimising the members of the Southern Roadways Employees'' Union by abusing the disciplinary

powers, abusing the powers of transfer and creating financial disincentives. As a matter of fact, in the middle of 1989, these petitioners were

transferred to various places, in pursuance of the vindictive attitude on the part of respondents. The statement filed by learned counsel for the

petitioners shows the transfer effected in respect of the petitioners, and it is as follows:

S.No. C.R.P.No. Name of workman transferred

from to

(1) (2) (3) (4) (5)

3443/90 T.Rajaiah Bangalore Vijayawada

3444/90 A. Ruban Bangalore Vijayawada

3445/90 R.Dhamodaran Madras Vijayawada

3446/90 T. V.Narayanan Madurai Bangalore

3447/90 R.Dhamodaran Tiruchi Mangalore

3448/90 V. Santhanam Madurai Secunderabad

3449/90 C.Palanikumar Bangalore Mangalore

3450/90 K.Palaniappan Madurai Vijayawada

3451/90 A.Rajagopal Bangalore Secunderabad

3452/90 V.S.Raju Coimbalore Vijayawada

3453/90 G.Ramadas Madurai Secunderabad

3454/90 G. Subramaniam Tirunelvcli Madurai

3455/90 S. Devanathan Tiruchi Vijayawada

3456/90 K. Mcenakshisundaram Madurai Vijayawada

22/91 A. Santhanam Coimbatorc Secunderabad

23/91 A.Kangaraj Madurai Vijayawada

24/91 S. Selvapcrumal Madurai Bangalore

25/91 R. Shanmugasundaram Bangalore Secunderabad

26/91 N. Sivanupandian Tirunelvcli Secunderabad

27/91 R. Karuppusamy Tiruchi Secunderabad

28/91 S.Jcyaraj Madurai Vijayawada

29/91 R.PahulayanNair Madurai Mangalore

30/91 N R. Krishnamurthi Bangalore Secunderabad

31/91 V. Muthuswami Madurai Salem

32/91 S.Sundarajan Bangalore Vijayawada

33/91 R. Ravisankar Salem Secunderabad

34/91 K.Subbiah Vijayawada Mangalore

35/91 N. Gopalkrishnan Madurai Vijayawada

From the statement filed by learned counsel for revision petitioners, it is seen out of 204 members of the Southern Roadways Trade Union at

Madras only one was transferred from Madras; out of 150 at Coimbatore, two were transferred; out of 196 at Bangalore, seven were transferred;

out of 56 at Madurai, eleven were transferred; out of 58 at Tiruchi, three were transferred; out of 20 at Tirunelveli, two were transferred; and out

of 48 at Salem, one was transferred. Out of 47 from Secundcrabad, none was transferred and out of 3 7 at Vijayawada, one was transferred.

6A. Totally 28 employees have been transferred to various places. Out of these 28, the petitioners in Civil Revision Petition Nos. 24 and 28 of

1991, 3443, 3446, 3447, 3448, 3450 of 1990 and 34 of 1991 and 3453 and 3456 of 1990 have settled their claims. The petitioners in Civil

Revision Petition Nos. 3455 of 1990 and 29 of 1991 have retired. The aforesaid facts were communicated to the learned counsel for the

petitioners on 14 December 1990.

The respondents in their written statement as well as in the counter filed in the interlocutory applications, pleaded that the petitioners are

workmen"" within the meaning of Section 2(s) of the Industrial Disputes Act (hereinafter referred to as the Act) and their remedy is only to raise an

industrial dispute under the Act, that the Civil Court has no jurisdiction to entertain the suits and that the jurisdiction of the Civil Court is impliedly

barred.

7-A. The learned counsel for the petitioners contended that where a statute recognises a pre-existing right, the jurisdiction of the Civil Court is not

ousted, and the jurisdiction of the Civil Court will be ousted only in cases where a new right is created under the statute. According to him, the right

to question a transfer by an employee on the ground of mala fide is a right that existed under the general and common law and not under the Act,

and in case, 5 it is re-enacted by a statute with a special remedy, unless the statute contains the words ne cessarily excluding the common law

remedy, the workman has his choice of proceeding either under the statute or under common law. In that view of the matter, according to him, the

right to question a transfer was a pre-existing right prior to the coming into force of the Act, and later on, re-enacted by inserting Section 2(ra) and

Fifth Schedule.

On this point, both the parties relied on the decision in Premier Automobiles Ltd, v. Kamalakar Shantaram Wadke 1976 I LLN 1:1975 II Lab

LJ 445. According to the learned counsel for the petitioners, the facts of the case on hand will fall under the second category out of the four

categories enumerated in the deci sion, whereas according to the learned counsel for the respondents, the facts of the case will fall under the third

category. Learned counsel for the petitioners also cited two unrcported ju dgments of this Court rendered in T. Natarajan v. Indian Oxygen Ltd.

(Civil Revision Petition No. 956 of 1983 decided on 7 December 1984 and Indian Oil Corporation Ltd. v. S.K. Murthy (Appeal against Order

No. 204 of 1976 decided on 16 February 1979), wherein Sathiadev, J., according to the petitioner granted relief to an aggrieved employee under

similar circumstances.

Learned counsel for the respondents, on the other hand, relied upon the judgment in Kerala Rubber and Reclaims Ltd., v. P.A. Sunny 1989 I

LLN 676.

Since the rival contentions reduces itself to the aforesaid point, one has to go through these judgments and see to which category the petitioners

belong.

Justice Sri Sathiadev granted relief in Appeal against Order No. 204 of 1976 solely on the ground that the plaintiff therein could not have

raised an industrial dispute u/s 2-A of the Act and the same would have blossomed out as an industrial dispute if union has chosen to expouse the

plaintiff s cause therein. But, as the Act now stands, to transfer a workman mala fide from one place to another under the guise of administrative or

management policy is stated to be an ""unfair labour practice"" by virtue of Section 2(ra) of the Act. In the Civil Revision Petition No. 956 of 1983,

the plaintiff filed the suit for declaration that defendants are not entitled to withhold or stop the wages of the plaintiff on the alleged disobedience of

not doing work from a particular day onwards or any other day without providing necessary materials, tools, helpers, etc., for carrying out the

work and in contravention of the standing orders. It is not a case of transfer for mala fide reasons. From the peculiar circumstances of that case,

the learned Judge came to the conclusion that the dispute therein involved is one of civil nature and that would come within Section 9 of the CPC

and would not fall under the Industrial Disputes Act. But that is not the case here. The facts of the case in Kerala Rubber and Reclaims Ltd. v. P.

A. Sunny 1989 I LLN 676, are squarely akin to the facts of this case, wherein the learned Chief Justice, Mahmath, after summarising the law as

enunciated by the Supreme Court in Premier Automobiles case 1976 I LLN 1,: The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke

of Bombay and Others, referred to above, observed as follows in Paras 4 to 7, at pages 678 and 679:

.. .In the light of the principles laid down by the Supreme Court what is required to be examined is as to whether the right claimed by the

respondent to enforce which he has filed the suit is a common law right or a right created by the Industrial Disputes Act. If the right claimed is not a

common law right but a right created by the Industrial Disputes Act, the further question for examination is as to whether the statute which has

created the right has itself provided for a forum for enforcement of such a right. If the right sought to be enforced is the creature of the Industrial

Disputes Act and the forum is also created by that Act for enforcing that right, the Civil Court will have no jurisdiction to entertain the suit. If,

however, the right sought to be enforced by the respondent is a common law right and the same is also recognised under the Industrial Disputes

Act, then one can avail of the remedy either of approaching the Civil Court for relief or the remedy available under the Industrial Disputes Act. If,

however, the right is only a common law right and is not recognised by the Industrial Disputes Act, the remedy would be only to approach the Civil

Court. If, however, the right which the respondent seeks to enforce is a creature of the Industrial Disputes Act and the Industrial Disputes Act

does not provide a remedy for enforcing that right, then also the respondent would be entitled to seek his remedy in the ordinary Civil Court.

So far as the frame of the suit is concerned, the order of transfer is challenged on the ground that the transfer of the respondent by the petitioners

is mala fide and the result of victimisation and unfair labour practice and is, therefore, illegal and unjust. It is not pleaded that the respondent is

claiming any right recognised by the common law as such. Learned counsel for the respondent was also not in a position to point out if the right

claimed is recognised as a common law right. Common law does not recognise any limitation on the power of the master to transfer his employees

on grounds of ma/a fides, victimisation or unfair labour practice. We must also bear in mind that a contract of service is not specifically enforceable

under the ordinary common law. If the master is not willing to employ the servant, he cannot be compelled to employ him. But, after the Industrial

Disputes Act was enacted, new rights and liabilities have been created restricting the unfettered common law rights of the master in dealing with the

workmen in this behalf. Under the Industrial Disputes Act, notwithstanding the unwillingness of the master, he can be forced to continue the servant

in his service.

So far as the question of transfer is concerned , the Legislature has made express provision to safeguard the interests of workmen. Section 25-T

in Chap. V-C of the Industrial Disputes Act contains a prohibition against unfair labour practice and reads as follows:

25-T. Prohibition of unfair labour practice. - No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926

(16 of 1926), or not, shall commit any unfair labour practice,

The expression ''unfair labour practice'' has been defined in Section 2(ra) of the Act to mean any of the practices specified in the Fifth Schedule

to the Act. The Fifth Schedule enumerates the various unfair labour practices statutorily recognised. Item (7) of the Fifth Schedule, which is

relevant, may be extracted as follows:

To transfer a workman mala fide from one place to another, under the guise of following management policy.

11A. Thus, it becomes clear that there is a statutory prohibition engrafted in the Industrial Disputes Act prohibiting transfer of a workman mala fide

from one place to another under the guise of following managment policy. Thus, a valued right has been created by the statute in favour of the

workman from being subjected by his employer to transfers mala fide under the guise of following a management policy. This is a right which has

been created by the Industrial Disputes Act in favour of the workman restricting the unfettered right of the management in the matter of effecting

transfer of his employees. The obligation not to transfer a workman mala fide from one place to another under the guise of management policy was

not recognised under the common law. That right is now created by the statute. The right which the petitioners claim to enforce in the suit flows

from Section 25-T of the Industrial Disutes Act read with item (7) of Fifth Schedule.

The next question for examination is as to whether the Industrial Disputes Act has created a forum for enforcing this statutory right in the matter

of transfer as defined in Section 2(ra) read with Section 25-T of the Act. Section 7-A deals with matters that can be dealt with by Industrial

Tribunals. The matters that can be dealt with by Industrial Tribunals are enumerated in the Third Schedule and the matters that can be dealt with by

a Labour Court are enumerated in the Second Schedule. Item (6) of Second Schedule deals with all matters other than those specified in the Third

Schedule. In that view of the matter, disputes that arise as a result of mala fide transfer squarely fall under the Second Schedule, and in fact, the

petitioners have initiated proceedings as an industrial dispute. However, the Government declined to refer the matter. The petitioners have once

again applied to the Government for review of their decision. In these circumstances, even if the facts of this case gives a right to election to the

petitioners, petitioners having elected to get redress of their grievance by initialing proceedings under the provisions of the Act, I find, they are not

entitled to invoke the jurisdiction of the Civil Court.

Learned Counsel for the petitioners contended that unless they succeed in getting the matter referred, it cannot be brought under the doctrine

of election. Initiation of proceedings, according to him, under the Act will not be a step-in-aid. I do not agree with the learned counsel for the

petitioners. If his contention is accepted, that only if he succeeds in getting the matter referred to the forum created by Act it can be construed as

initiation of proceedings and in case if they fail in their attempt it will not be taken as a ""proceeding."" it will be opposed to reason. Any initiation to

get redress under the provisions of the Act should be construed as a ""proceeding"" and having elected to initiate a proceeding, the petitioners cannot

be permitted to say that the initiation made by them is not a ""proceeding"" since they failed in their attempt to get the matter referred to the forum

created under the Act. I find even if the contention of the learned counsel for the petitioners is accepted, having elected to get redress under the

provisions of the Act and having failed in their attempt, they have no right to invoke the jurisdiction of the Civil Court. Apart from this, I find the

facts of the case will not fall under category (2) out of the four categories stated by the Supreme Court in The Premier Automobiles Ltd. Vs.

Kamlekar Shantaram Wadke of Bombay and Others, referred to above. The facts of the case squarely fall within; the facts of the case referred to

in the judgment of the Kerala High Court in 1989 I L.L.N.676 and the ratio decidendi laid down by the Kerala High Court will apply to the facts

of this case on all fours. As such I find the Civil Court has no jurisdiction to entertain the suits.

In the result, all the civil revision petitions are dismissed. However, I directe each party to bear their own costs.