ORDER

1. Leave granted.

2. This appeal has been preferred from an order of the Division Bench disposing of an appeal. The dispute between the parties arises out of an order promoting and transferring the respondent from Vadodara, Gujarat to the Delhi branch office of the appellants. The respondent was told that he would get a higher scale of pay and an additional pay which initially was Rs 200 and is now Rs 850.

3. The order was challenged by the respondent before the Labour Court on the ground that it was violative of Section 33-A of the Industrial Disputes Act, 1947. The Labour Court did not grant any interim stay of the transfer on the ground (1) that there was a provision for transfer from one place to another in the appointment letter; (2) that there was no change in the condition of service of the respondent. On the basis of a prima facie satisfaction that Section 33-A had not been violated, the application for interim relief was dismissed and the respondent's application was fixed for final disposal on 28-5-2005.

4. The respondent challenged the refusal of the Labour Court to grant any interim relief by way of an application under Article 226 of the Constitution before the High Court. The learned Single Judge entertained the application and issued a rule and also granted interim relief in terms of para 11-E of the writ petition. Para 11-E of the writ petition reads as follows:

"11-E. During pendency and final disposal of this special civil application, Your Lordships may be pleased to restrain Respondents 1 to 3 from altering any of his service conditions applicable to him at Palej prior to 7-1-2004 (Annexure E) without express permission of the Labour Court, Bharuch."

5. The learned Single Judge granted interim relief to the respondent on the sole ground that apart from the respondent no employee of the appellant had ever been transferred from one unit to another and certainly not outside the State and that prima facie this amounted to a penal transfer.

6. The appellants' appeal to the Division Bench met with a similar fate. The Division Bench affirmed the order of the Single Judge by saying that the order appeared to be in colourable exercise of power because the respondent appeared to be an active leader of the trade union agitating demands in a pending labour dispute and this was the only case of transfer of a workman out of his cadre and out of the whole State of Gujarat. It also held that the respondent was "out of job and that there is reason to believe that the transfer, promotion and litigation are thrust upon the respondent to keep him away from the pursuit of the pending industrial dispute". The Division Bench was prima facie of the view that this was an unfair labour practice amounting to an offence punishable under Section 25-U of the Act which "may as well as be found to be an illegal change in relation to a matter connected with the pending Industrial Disputes Act". The appeal of the appellants was accordingly rejected with costs assessed at Rs 3000.

7. The appellant has challenged the decision of the Division Bench basically on four grounds (1) that the industrial dispute which was pending had no relationship with the transfer of the respondent from Vadodara, Gujarat to Delhi; (2) the pending labour dispute relating to the payment of bonus had been raised by the Union and that admittedly the respondent was not an officer of the Union; (3) the appointment letter itself provided for the transfer of the respondent to another Division; and (4) the respondent was transferred on promotion and that this could not be said to be penal transfer in any fashion. It is, therefore, urged that there had been no violation of Section 33-A of the Act.

8. The learned counsel appearing on behalf of the respondent has admitted that the respondent was not an office-bearer but it is submitted that he would be vitally affected by the pending dispute as it is related to the ' payment of bonus to the machine operators, like the responden