The burden of proof lies with the party alleging unfair labour practice, and non-compliance with statutory provisions can lead to the setting aside of the impugned order.

JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard the learned Advocates for the parties. Perused the records.

2. The petitioner challenges the judgment and order dated 30th January, 2001 passed by the Industrial Court, Aurangabad in Complaint (U.L.P.) No. 26/2000.

3. The complaint came to be filed by the respondent herein in the Industrial Court against the petitioner contending that the petitioners are engaged in unfair labour practice by transferring the respondent from Chikalthana plant to Bombay Head Office under the transfer order dated 2-3-2000 received by the respondent on 5-3-2000. According to the respondent, the transfer order amount to the petitioner being involved in unfair labour practice under Item Nos. 3, 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (herienafter called as the "said Act"). It is the contention of the respondent that the action of transfer is mala fide and has been taken only to harass the respondent to compel him to withdraw the earlier Complaint No. 124/1999 filed by the respondent against the petitioner. On the other hand, it is the case of the petitioner that the transfer of the respondent to Bombay is purely on administrative grounds and in terms of the contract of employment between the parties and that, the respondent was doing the work of supervision of loading and unloading of the goods and, therefore, there is no unfair labour practice as such having been adopted by the petitioner towards the respondent.

4. The Industrial Court, by the impugned order, has held that the respondent was working as an Operator and in the said category, he is covered by the definition of workman and as the respondent complained against his deputation at Waluj plant, the petitioner has chosen to transfer the respondent to Bombay and that, the change in the nature of work without changing designation and without giving any rise in salary and continuing a person on deputation without fixing any period is illegal act on the part of the petitioner and transferring the respondent without any justifiable reason is nothing but adopting unfair labour practice in terms of Item Nos. 3, 5 and 9 of Schedule IV of the said Act and, therefore, the Industrial Court, by the impugned order, has set aside the order of transfer dated 2-3-2000 and ordered the respondent to joint the duties at Waluj as Operator and the petitioner is ordered to provide the work to the respondent as the Operator. The order also speaks about payment of wages to the respondent as Operator from 8-5-2000 till he is allowed to join duties.

5. The impugned order is sought to be challenged on various grounds including the ground of non application of mind, deviation from the settled principles of law relating to transfer, as well as unwarranted observations in relation to the subject matter of Complaint (ULP) No. 124/1999 and 145/2000 pending before the Industrial Court which are yet to be disposed of. According to the petitioner, there are no analysis of the evidence on record in proper perspective and the findings have been arrived at without any material on record besides, some of them being totally contrary to the evidence led by the parties. The contentions are sought to be made good by referring to the decisions in the matter of (Canara Banking Corporation Ltd. v. U. Vittal)1, reported in 1963(7) F.L.R. 184, (Syndicate Bank Ltd. v. Its Workman)2, reported in 1966(1) L.L.J. 440. (The Bareilly Electricity Supply Co. Ltd. v. Sirajuddin and another)3, reported in 1960 F.L.R. 243 (S.K. Maini v. M/s. Canara Sahu Co. Ltd. and others)4, reported in 1994(II) L.L.J. 1153 and (Management of Addisons Paints and Chemicals Ltd. v. Workmen, represented by the Secretary (A.P. and C) Assistants Association and another)5, reported in 2001(I) C.L.R. 587. It is the contention of the learned Advocate for the petitioner that there is absolutely no material on record to suggest that there is any change in

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