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SUPREME COURT OF INDIA
B.R. Gavai, Sandeep Mehta, JJ.
M/s. Divgi Metal Wares Ltd. – Appellant
Versus
M/s. Divgi Metal Wares Employees Association & Anr. – Respondents
Civil Appeal No(s). 2032 of 2011 With C.A. No. 2035/2011, C.A. No. 2033 of 2011
Decided On : 21-03-2024
Industrial Employment (Standing Orders) Act, 1946 – Sections 5, 7 and 10 – Transfer of workmen – Services are transferable to any department or any work offices belonging to company – Whereas Standing Order would cover transfer from one department to another within same unit/factory/office/establishment or from one job of similar nature and capacity to another job of same nature and capacity and also from one job to another similar job or from one shift to another shift – Per contra, terms of appointment and confirmation would permit transfer of an employee to any department or any works or offices belonging to company – Nothing contained in Standing Orders can operate in derogation or to prejudice of provisions as provided in contract of service – Impugned judgment and order quashed and set aside. (Paras 11, 12, 14, 15, 16 and 24)
Facts of the case:
Present appeals challenge judgment and order passed by Division Bench of High Court of Karnataka, Circuit Bench at Dharwad dated 02.02.2009, vide which the appeal filed by respondent No.1 herein, came to be allowed. Similarly, by said order, the Writ Petition filed by Respondent No.1 was also allowed and the Writ Petition appellant herein, came to be dismissed.
Findings of Court:
In view of order dated 03.03.2001 passed by Industrial Tribunal, amendment made in year 1999 had not come into effect in view of the appeal being allowed by Tribunal.
Result : Appeals disposed of.
JUDGMENT :
B.R. GAVAI, J.
1. These appeals challenge the judgment and order passed by the Division Bench of the High Court of Karnataka, Circuit Bench at Dharwad dated 02.02.2009, vide which the appeal filed by the M/s. Divgi Metal Wares Employees Association, which is respondent No.1 herein, came to be allowed. Similarly, by the said order, the Writ Petition No.31808/2003 filed by Respondent No.1 was also allowed and the Writ Petition No.7993/2006 filed by M/s Divgi Metal Wares Ltd., the appellant herein, came to be dismissed.
2. The facts leading to the filing of the present appeals are as under:-
2.1 The appellant is a company which manufactures automobile gears at two factories, one in Pune, Maharashtra and the other at Sirsi, Karnataka. The Respondent No.1 is a Trade Union registered under the provisions of the Indian Trade Unions Act, 1926. The relations between the appellant and the respondents are governed by the Industrial Employment (Standing Orders) Act, 1946 (for short, ‘the said Act’). It is also not in dispute that, it was at the instance of the employer that the Deputy Labour Commissioner and Certifying Officer passed an order on 03.07.1989 thereby certifying the Standing Order. Clause 20 of the Standing Orders reads thus:-
2.2 It will also be relevant to refer to Clause 31 of the Certified Standing Order. It reads thus:
2.3 It is also not in dispute that Clause 5 of every letter of appointment and Clause 1 of every letter of confirmation in service issued to the workmen contains the following stipulation:-
2.4 The appeal challenging the Certified Standing Order dated 03.07.1989 came to be filed before the learned Industrial Tribunal which rejected the appeal as time barred vide order dated 06.04.1996. Indisputably, the same order has not been carried forward.
2.5 In the months of April to September, 1998 on account of reduction in orders and lack of sufficient work, 66 workmen from the Sirsi Factory were transferred to Pune Factory. All the workmen were paid in advance for one week’s leave with pay @ Rs.1,000/- towards travel expenses. Though the employees collected the said amount, they did not report at the Pune Factory.
2.6 These workmen, whose services were transferred raised Industrial Disputes vide Nos.42/1998, 2/1999 and 3/1999.
2.7 On the application of the respondent, the Deputy Labour Commissioner and Certifying Officer modified the Certified Standing Orders and deleted the following words from Clause 1 on 30.09.1999:-
2.8 The said deletion came to be challenged by way of an appeal by the appellant before the learned Industrial Tribunal. The learned Industrial Tribunal by the judgment and order dated 03.03.2001 partly allowed the
The management retains the right to transfer employees based on appointment terms, even after the deletion of the transfer clause from the Standing Orders.
The object of the IESCO is An Act to require employers in industrial establishments formally to define conditions of employment under them.
The court affirmed that a transfer of service is a lawful exercise of management's discretion and does not constitute termination unless explicitly stated in the employment contract.
Judicial review of administrative transfers in employment requires proof of mala fide or jurisdictional error, reaffirming adherence to contractual terms unless misconduct is established.
Transfer orders within a corporation are valid administrative actions and do not require statutory regulations, affirming the limited scope of judicial review in such matters.
An employee must comply with a valid transfer order to claim back wages; failure to challenge it in previous proceedings negates wage entitlement.
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