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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Suraj Govindaraj, J.
Shri N. Madhubabu S/o. M. Narayana - Petitioners
Versus
Bharat Electronics Limited (A Government Of India Enterprises) Represented By Its Chairman And Managing Director – Respondents
Writ Petition No. 12765 Of 2022 (L-RES)
Decided On : 13-09-2022
Constitution of India, 1950 - Articles 14,16, 21, 136, 226, 227, 309, 38, 39(a) to (e), 43 and 43A - Indian Trade Unions Act, 1926 – Section 73, 13-B - Industrial Disputes Act, 1947 - Section 33(4), 1947, (c)(2) - Industrial Employment (Standing Orders) Act, 1946 - Section 2(e), 10 - Cantonment Act, 2006 - Section 280 (2) (c) - U.P. Industrial Disputes Act, 1947 – Section 11A - Specific Relief Act, 1963 - Section 14 - Company - Order of Transfer - Illegally Transferred - Whether appointment order would override certified Standing Orders certified under Industrial Employment (Standing Orders) Act, 1946 - Whether order of transfer transferring petitioner suffers from legal infirmities requiring interference of this Court - Are there any malafides in transfer of petitioner to Kochi. [Para 12.1]
Finding of the Court: Decision in Harishankar Jain’s case requiring certifying officer to adjudicate on fairness and reasonableness of CSO, as also decision in Harjinder Singh’s case and Pandavapura Sahakara Sakkare Karkhane’s case, have no relevance to present matter for reason that in present matter there is no adjudication being made as regards validity or otherwise of a CSO nor is a proceeding in furtherance of application under Section 10 of IESCO in question - Thus, Court answer Point No.1 by holding that there is no conflict between CSO of respondent and gradation order issued by respondent - Gradation order permitting and recognizing authority of employer to transfer workman, exercise of such power by respondent is proper and correct - As referred to supra, petitioner is a technically qualified person who has been trained to maintain equipment which is supplied to Indian Navy - Transfer is for a limited period of two years - Contention urged is that since petitioner was an elected officer of Union, he is being targeted - Admittedly, petitioner has lost his elections and is no longer an office bearer of Union - When petitioner is not an office bearer he can neither be a protected employee nor could he claim that he was targeted since no particular document or evidence has been placed on record to indicate any animosity and/or any issue which would prompt respondent to transfer petitioner to Kochi as a punishment - This is again premised on contention that transfer to Kochi is a punishment which is also not allegation made - Thus, Court is of considered opinion that no malafides in transfer having been established, transfer cannot be said to be malafide - In view of Court answer to above points, transfer being an incidence of service as held by Hon’ble Apex Court in Durgesh Kuwar, Rajendra Singh and Gobardhan Lal’s case, it is required for petitioner to report to place where he has been transferred and render necessary service - Petitioner is directed to report to his post at Kochi within two weeks from today.
Result: Petition is dismissed.
ORDER :
1. The petitioners are before this Court seeking for the following reliefs:-
b. A Writ of Certiorari or any other appropriate writ, direction or order, be issued against the Respondent to quash the order of Transfer, dated 08.06.2022, in Annexure-A, issued against the petitioner as the same is illegal, Unfair and capricious and amounting to victimization;
c. All the consequential benefits consequent upon the quashing the order dated 08.06.2022 and such other suitable order/s and as this Hon’ble Court deem fit and proper for the reasons and circumstances as stated above in the interest of justice and equity.”
2. The first petitioner is a Junior Section Officer of the first respondent-Company since 1991. It is stated that the service conditions of the first petitioner and also the other workmen is covered under the Certified Standing Orders (CSO) of the first respondent-Company.
3. The second petitioner is a registered Trade Union registered under the Indian Trade Unions Act, 1926, for espousing the cause of the workmen of the first respondent-Company. The second petitioner is a recognized Union for collective bargaining from 1994 to 2003 and again, from 2006 to May, 2022.
4. The first petitioner is a workman and an office bearer of the second petitioner-Trade Union and also a ‘protected workman’ as per Section 33(4) of the Industrial Disputes Act, 1947. The first respondent-Company is a Central Government Undertaking which is controlled and supervised by different Departments of the Union of India.
5. It is alleged that the first petitioner was unfairly, arbitrarily and illegally transferred from Testing/NCS/MIL Com. to NS (S & SC) on 23.04.2022. The first petitioner, therefore, submitted a representation to the management of the first respondent-Company on 02.05.2022 requesting to post him to NS-I SBU of Bengaluru Complex on account of various personal difficulties which were faced by him. In the meanwhile, elections were called for and the first respondent-Company unilaterally appointed an Election Officer and announced the calendar of events for the election by a Notification dated 19.05.2022. The election was conducted on 28.05.2022. The first petitioner was defeated allegedly on account of tacit propaganda by the agents of the management of the first respondent-Company. Thereafter, the second respondent-Manager issued a letter dated 08.06.2022 arbitrarily transferring the services of the first petitioner to Kochi Unit. It is in this background that the petitioners are before this Court seeking for the aforesaid reliefs.
6. Sri K.Subba Rao, learned Senior Counsel appearing for the petitioners would submit that
6.1. The order of transfer is completely arbitrary and unfair inasmuch as, the first petitioner had been working with the first respondent-Company for the last thirty years.
6.2. The first petitioner, in pursuance of the order of transfer from Testing/NCS/MIL Com. to NS (S & SC) on 23.04.2022, submitted a representation dated 02.05.2022 categorically stating that his wife is suffering from imbalance of uric acid in her blood, his son is studying in Engineering College and his daughter is studying in second year of Pre-university College. His daughter is also suffering from depression and anxiety disorder. Apart therefrom, his mother-in-law is also suffering from various health issues and as such, the first petitioner having placed all these facts before the Authorities concerned, they ought to have considered his request and transferred him to NS-I SBU at Bengaluru Complex. Instead of doing so, the first respondent-Company transferred the first petitioner to Kochi Unit which is mala fide.
6
The object of the IESCO is An Act to require employers in industrial establishments formally to define conditions of employment under them.
The management retains the right to transfer employees based on appointment terms, even after the deletion of the transfer clause from the Standing Orders.
Nothing contained in Standing Orders can operate in derogation or to prejudice of provisions as provided in contract of service.
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.
Transfer orders can only be challenged if issued with mala fides or in violation of statutory provisions; compliance with transfer policy is essential.
A government servant holding a transferable post has no vested right to remain posted at one place and is liable to be transferred from one place to another, and the court should not interfere with a....
The Court highlighted the limitations of interference with Labour Court awards under Article 226 of the Constitution of India, emphasizing that such interference is only justified in exceptional case....
Judicial review of administrative transfers in employment requires proof of mala fide or jurisdictional error, reaffirming adherence to contractual terms unless misconduct is established.
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