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Judgment
A.R. Laksivmianan, J.—The writ appeal is directed against the order of his Lordship Mr. Justice K. S. Bakthavachalam in W.P. No. 16715
of 1991 dated April 26, 1994 dismissing thhj wretition filed by the appellant Union. arn Judge has held that there is no aflde in the transfers made,
when transfers are made from two unions and not from the members of appellants union alone. The writ petition was filed against the impugned
action of the management relating to workers who are members of the appellant union employed in the Coach Factory at Viralimalai.
The writ petition was filed for a Mandamw directing the Government of Tamil Nadu to refer the dispute relating to the transfer of 121 workmen
declined to be referred in (G.O.D. No. 1076 dt. October 28, 1991) by the Government of Tamil Nadu. The Government under the proceedings
dated October 28, 1991 after examining the conciliation report of the Joint Commissioner of Labour, Madurai dated July 4, 1991 in regard to an
industrial dispute raised by Sundaram Industries Employees Union, Madurai against the management of Sundaram Industries Limited (Coach
Division), Madurai s over the issue relating to transfer of 122 workmen and passed the impugned order declining to refer the dispute for
adjudication. The Government while considering the case had observed that the transfer of workmen is a managerial io function and the workmen
had been transferred from one place to another for specific adtninistrative reasons such as operational requirements, fluctuations in work order, the
need to execute orders economically, productive utilisation of labour, lack of adequate orders in some places etc. The Government also held that
the allegation of victimization or discrimination against the writ petitioner''s union had not been substantiated. Out of 122 worlanen, 33 workmen
have accepted the transfer orders and joined duty at the new station. and, therefore, the Government held that no action was considered necessary
in respect of 33 workmen. Likewise the order of transfer of one P. Muniyandi was cancelled by the management itself and nine workmen have
since left the services of the management and there was no need to refer their case for adjudication. The Government also declined to refer the
matter for adjudication in respect of 15 workmen as indicated in the remarks column. Likewise the Government declined to consider the case of
the remaining 64 workmen mentioned in paragraph 5 of its order and thought it not expedient to refer their cases for adjudication for the reasons
recorded in the said paragraph.
The above order was challenged by the members of the Union employed in the Coach Factory Viralimalai alone, and not ty others. Challenging
the impugned order of the Government Mr. Prakash, learned Counsel appearing for the appellant union contented that absolute control and lack of
trade union protection exposed the workmen to every type of labour law violation and unjust treatment and without any collective bargaining ability
workers were even denied basic dignity in treatment. The workmen are unable to bear this unjust situation and feudal treatment and inspired by the
attempt of other T.V.S. Workers in Southern Roadways Limited (TVS) and Sundaram Motors (T.V.S. & sons) forming genuine trade unions, the
appellant union was formed and immediately enjoyed the membership of an overwhelming majority of the workers employed in the rubber factory,
Madurai and coach factories at Madurai, Pudukottai and Viralimalai.
According to Mr. Prakash the reaction of the respondent - Mangement to the new trade union movement was identical to the reactions of the
mangement of the Southern Roadways, Limited, Sundaram Motors (T.V.S. & Sons) namely one of total hostility. According to him, the workers
were treated in hostile discrimination in the matter of wages adopting 18(1) ''Settlement'' as devices and ordering cash incentives, advances and
allowances under various 4 heads to the members of the management run trade union again adopting 18(1) ''Settlement'' with puppet union as
devices of discrimination and abuse of disciplinary powers, dismissing of the office bearers and leaders of the genuine trade union, abusing power
of transfer to indulge in mass transfer of members of appellant union to expose them to financial harassment aimed at the union membership with no
relevance to administrative necessity. Thus according to Mr. Prakash the entire purpose of the four pronged attack being to threaten the workers
to give up the membership of the appellant union and to rejoin in the management run trade union. To put in a nut-shell the workmen daring to
exercise his basic right to be a member of a trade union of his choice, would have to necessarily face poverty by deprivation of his livelihood in one
manner or another and a worker surrendering the precious right will be given allowances, of total relaxation of work and disciplinary norms and
patronage by the management. According to Mr. Prakash, if the union succeeds in the dispute they will be entitled to wages for the said period in
question. ne order dated March 31, 1990 in an adjudicatory order which merely states that as per the ruling of the Supreme Court reported in
(1974-1-LU-94) relating to Hindustan Lever Limited v. The Workmen, there is power for the management to transfer. According to the counsel
the issue is not the power but whether the power has been exercised malafide and as a measure of vicitmisation. He also invited our attention to the
similar orders passed with reference to other workers. It is the case of the learned counsel for the appellant union that the reasons given by the
Government in the order impugned are adjudicated and that the Government cannot decline to refer the dispute for adjudication by giving reasons
which determine lis between the parties. As the power u/s 10(1) is an administrative power and the Government, therefore, cannot adjudicate the
dispute.
The writ petition was resisted by the M anagement and the Secretary of the first respondent company filed a detailed counter-affidavit denying
the allegations contained in the affidavit filed in support of the writ petition.
Mr. Jayaraman, learned counsel for the Management submitted that the management had to transfer and post some of the workmen from
Madurai, Viralimalai and Pudukottai to various locations so that they will he utilised for ""after sales services"". In addition to that some people have
been transferred from Madurai to Viralimalai and Pudukkotai, and in fact such a transfer and posting was made without any hindrance to the
promotion and the benefits which such employees have been enjoying. In fact, the persons who have been transferred for ''after sales services''
were also granted an additional allowance of Rs. 75/- per mensem per worker, during the period of their stay at the transferred place which is in
the nature of extra benefit to them. Most of the worlanen transferred are working in their transferred places and thus it is contended that the
transfer and deputation of these employees have been made only due to exigencies of work to meet the requirements of. the units at Viralimalai and
Pudukottai and else - where and there are absolutely no nwlaflde in the transfers. In fact, in some cases, even the posting itself was for temporary
period depending upon the nature of work.
The Deputy Secretary to Government, Ubour and Employment Department, Madras has also filed separate counter-affidavit. He has submitted
that the Government has passed, orders after examining the contentions of both parties and the Government were satisfied and came to the
conclusion that the management had transferred the workers on bona fide administrative reasons and has passed orders declining 2 the
adjudication.
We have carefully considered the rival submissions made by the respective counsel. As rightly pointed out by Mr. Jayaraman the, Management
has right to transfer an employee'' and the management has got power and right to arrange the'' anpower requirement according ''r''n to the needs
and exigencies of business. We are of the view that in the instant case the transfers 4 were made purely for administrative exigencies and
requirements and therefore there are no fide in them. The fact that about 80 employees belonging to T.Y.S. Workers Union (INTUC) have also
been transferred to the very 4 same places and they have reported at the transferred places without any protest or murmur, establishes beyond
doubt that all the transfers were made solely for business reasons. The management had also given the reasons in detail as to why and for what
purpose the transfers have been effmled in their reply dated August 19, 1989. In fact it was submitted that the appellant union has an insignificant
strength of members and that it not even have the locus standi to raise the dispute with regard to the transfers. As regards the transfers to
Viralimalai Puduki were cone that during the of April-May 1989, ther was not enough work at Madurai, whereas urgent to export order for
Enfirms was received from Messers Ashok Lyland Limited, who is the main customer and that the order was timebound and to be executed
Viralimalai and Pudukottai before die of July, 1989. Since the available work force in dxm two places was not enough, the first respondent
Management had to necessarily transfer the employees from Madurai, where there was not much work, to balance the work force and to avoid
idle hours at to Madurai and to finish the work with regard to the time-bound export order. Thus it could he seen that the transfers were made
purely out of cxigencies and administrative requirements.The Conciliation Officer submitted his conciliation report on July 4, 1991. The
Government thereafter by its order dated October 28, 1991 declined to refer the issue of transfer of these employees for adjudication. In respect
of employees 1 to 33 as mentioned in the pugned order, the Government has stated that those 33 employees have accepted the transfer and
reported for work and in view of that, the Government said that no action is necessary in respect of those 33 employees. In respect of one
employee by name P. Muniyandi, the Management had cancelled the order of transfer and, therefore, there was no necessity to refer to his case.
In respect of nine employees, since they the services of the expressed the their transfer n respect of another set of 15 employee, scince the
Government had already declined to refer for 5 adjudication by their earlier orders dated March 1, 1990 and May 29, 1990 the Government
thought it fit not to refer the matter for adjudication. With regard to the remaining 64 employees the Government in its impugned orders a has given
the reasons as extracted above in the paragraph supra. So far as the victimisation is concerned, it has been expressed in the order of the
Government that the said issue has not been substantiated. With the above mentioned reasoning, the Government had declined to refer the matter
for adjudication. To nullify the above said order the appellant union has come forward with the writ petition.
As already noticed and narrated earlier, we are of the view that the management has got power to transfer an employee from one place to
another and from one unit to another unit. Thus the transfer of an employee is part of conditions of service and the employees are bound to obey
the orders of transfer and work in the place where they have been transferred and posted. As already stated the appellant union has no locus
stands to raise the issue with regard to transfer of others. The majority Union, namely, TYS Workers'' Union (INTUC) has not questioned the
transfer of employees. In fact about 132 workers belonging to the TVS Workers'' Union (INTUC) the majority union have obeyed the order of
transfer and reported for work in the transferred places. The transfers of, the workmen had been made for administrative exigencies and also to
meet the requirements at Viralimalai and Fludukottai.
The Supreme Court has repeatedly ruled. that transferability from one establishment to another is an incidence of service and that the employer
is the best judge to decide upon the utilisation and distribution of its manpower, amongst various units and places. The Court : has further held that
Courts and Tribunals cannot also properly assess or adjudicate effectively reasons given for transfer of employees. In other words, the effect of
those rulings is the decision of the employers in such cases is con-, clusive and that except in the rarest of rare cases, Courts should not interfere
with transfer. In our opinion the case on hand is not one such a case. Hence, there is no need to go through the ritual of a reference. This apart
from the fact, that on merits the Government order is unassailable. In our view the Government has rightly declined to refer the matter for
adjudication. The appellant union has not established their case of malafides. The transfers, as already noticed, are purely on administrative reasons
and therefore, the Government has rightly declined the matter for adjudication.
It is not the case of the members of the appellant union that the transfers have resulted in any reduction in status, seniority, emoluments or other
benefits of the workmen. In fact the service conditions of the workmen in terms of their status, wages, seniority etc, have not [0 been prejudicially
affected on account of the transfers and that perhaps explains why most of the workers belonging to the recognised TVS Workers union as well as
Sundaram Industries employees union have accepted transfer and joined at the new places of work. Further the members belonging to the
recognised TVS Workers union have also been involved in similar transfer during the period from April to August 1989. Hence, the Government
order relating to the transfer of 32 workmen who have accepted the transfer orders and joined duty at the new station declining for reference to
adjudication is legally justified.
Mr. Prakash has not been able to substantiate his allegation of victimisation or nwla fide in their transfer at the time of conciliation proceedings.
No prejudice has been caused to their service conditions on account of the transfer. The Co-workers involved in the transfer have accepted and
acted on the transfers by joining at the new places of work. There are no special or distinguishing facts in their case to warrant a reference, since
the second respondent have already declined adjudication in similar individual cases of transfer. The management have made these transfers
necessitated by bona fide business exigencies and to distribute available manpower to different 40 places where the business of the Management is
carried on. The Government have to consider the implications of a reference of this dispute and its adverse effect of unsettling the state of
administration in the industry, besides impairing the existing state of industrial peace and harmony. Thus the Government''s order declining to refer
the dispute involving the transfer of 122 workmen issued in the G.O. (D) No. 1076, Labour and Employment Department dated Octoso ber 28,
1991 is fully justified, perfectly valid and legally sustainable.
Mr. Prakash has cited the following decisions reported in the Hindustan Lever Limited v. The Workmen (supra), M/s. Shaw Wallace &
Company Limited v. State of Tamil Nadu By Commissioner and Secretary, Labour Department And Others 1988 1 LLJ 177 (Mad), Tamil Nadu
Electricity Board Engineers'' Sangam v. Tamil Nadu Electricity Board 1996 LLJ 1071 (Mad) and Thiruvalluvar Transport Corporation Limited
Vs. K.P. Ganesan, . There cannot be any dispute or quarrel over the proposition of Law laid down in the above cases. The Judgment referred are
depending upon the facts and circumstances of each case. Since the case on hand has been decided on the facts and circumstances, we feel that
there is no need to refer the above citations, since the matter in the present case has been decided on the peculiar facts and circumstances of the
case.
We are also unable to accept the contentions of Mr. Prakash stating that the Government cannot decline to refer the dispute for adjudication
by giving reasons which determine the lis between the parties and that the power u/s 10(1) is an administrative power and the Government cannot
adjudicate the dispute. We are unable to accept this contention. While coming to the conclusion for not referring the dispute for adjudication, the
Government has to necessarily refer the reasons thereof. Merely disclosing the reasons for declining reference which is incumbent on the
Government cannot be equated with and Compared with adjudication. Section 10 read with Section 12(5) of the Act confers very wide discretion
on the appropriate Government either to refer or reflise to refer an industrial dispute. In this case the Government have bona fidely exercised its
discretion and had decided to decline reference. While passing the administrative orders u/s 12(5) of the said Act, the Government is not
prevented from considering the merits of the dispute raised by the workmen p;lmafacie. Section 12 (5) of the Act does not make it obligatory on
the part of the Government to make reference of all disputes raised by workmen automatically. It has got discretion to refer or not to refer the
dispute. Therefore, while considering the prima facie case on merits, the Government has found that the reasons for transfer of the workmen are
genuine business reasons and has thus disclosed the reasons relevant to the dispute. This would not tantamount to adjudication, as alleged by the
appellant union. On proper consideration of the facts of the dispute, the Government, in our view, has exercised its power vested in them u/s 10
read with Section 12(5) of the Act. The workmen of the appellant union have not made out a case for issue of Mandanw as prayed for. The writ
petition is devoid of any merits and legal efficacy. None of the contentions raised by the appellant union is tenable nor the reliefs sought for by them
is sustainable in the eyes of law. Under these circumstances, the writ appeal fails and is dismissed. The order of the Learned Judge dated April 26,
1994 in W.P. No. 16715 of 1991 impugned in this writ appeal is confirmed. However there will be no order as to costs.