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IN THE HIGH COURT OF BOMBAY
BAJAJ AUTO LTD.
Versus
SHRIKANT VINA YAK YOGI
Decided on, APRIL 13, 2006
CONSTITUTION OF INDIA, 1950 - Article 226 Writ jurisdiction Exercise of Limitation High Court while exercising writ jurisdiction not expected to exercise appellate jurisdiction Court, in order to sustain impugned order has only to find out as to whether prima facie case made out by respondents. High Court while exercising writ jurisdiction is not expected to exercise appellate jurisdiction. This Court in order to sustain the impugned order has only to find out as to whether prima facie case has been made out by the respondents workmen under the MRTU & PULP Act, that balance of convenience lies in their favour; and that if no convenience lies in their favour; and that if no interim relief is granted, then, who is likely to suffer more injury and mischief.
CONSTITUTION OF INDIA, 1950 - Article 226 Transfer of employee When made otherwise than for no administrative reasons or with mala fide intentions gets exposed to challenge Respondent employees transferred by the petitioner employer in colourable exercise of power No interference in certiorari jurisdiction with interim relief granted in favour of respondents by the Industrial Court. It cannot be disputed that the employer has right to transfer its employee. An employee accepts employment fully knowing that he is liable to be transferred from one place to other for administrative reasons and in the interest of the employer. This is one of the conditions of service. No employee can demur or cavil at an order of transfer. It is only when an order of transfer is made otherwise than for no administrative reasons and in the circumstances amounting to punishment or with mala fide intentions, that the transfer order gets exposed to challenge. An employee, normally, cannot complain about his transfer in Court. In deciding the question as to what was the motive operating in the mind of the employer while passing the order of transfer, one has to look into the circumstances under which the order of transfer was passed. If the dominant motive of the employer was to punish the employee, the transfer is bad. If it was to ensure efficiency in administration, the transfer has to stand. If the order is really intended as a punishment, though apparently innocuous, it will be open to the Court to consider whether the order is vitiated either by mala fide or by non-compliance of the principles of natural justice, if attracted. When the Court is altered, the Court has necessarily to tear the veil of deceptive innocuousness and see what exactly motivated the transfer. Any Court is expected to get satisfied that the real object of transfer is not what is apparent, examine what exactly was behind the transfer. In Industrial Court, Pune, after tearing the veil of deceptive innocuousness of the orders of transfer of respondents transferring them to various parts of the country recorded prima facie findings and allowed their application for interim relief and directed the petitioner employer not to give effect to the transfer orders dated 12th December, 2005 issued to the respondents workmen till final disposal of the complaint. Having considered the impugned order in the light of the findings recorded by the Court below, having examined the same on the touchstone of the certiorari jurisdiction, keeping in mind the material and circumstantial evidence available on record, the view taken by the Court below is a reasonable and possible view and by no standard it can be said to be a perverse view warranting interference under writ jurisdiction.
The legal document discusses the principles surrounding the transfer of employees by an employer and the scope of judicial review under Article 226 of the Constitution of India. The key points are:
Employer’s Right to Transfer: An employer has the inherent right to transfer employees as part of administrative management, and employees accept this condition of service upon employment (!) (!) .
Limitations on Challenging Transfers: Employees cannot normally object to transfers unless the transfer is made for reasons other than administrative necessity, such as punishment or mala fide motives. The burden of proving mala fide or improper motives lies heavily on the employee challenging the transfer (!) (!) (!) .
Mala Fides and Motivations: If the transfer appears to be motivated by malice, revenge, or an ulterior motive, it can be challenged. The court may examine the circumstances to determine the real motive behind the transfer, especially if it is intended as a form of punishment or victimization (!) (!) .
Judicial Review Scope: The court’s role is limited to examining whether a prima facie case has been made out, whether the balance of convenience favors the employees, and whether irreparable injury may result if interim relief is not granted. The court does not reweigh evidence or act as an appellate authority over factual findings (!) (!) (!) .
Assessment of Mala Fides: The party alleging mala fide must provide clear evidence of improper motives. Mere allegations are insufficient; proof must demonstrate that the transfer was actuated by spite, ill will, or improper motives (!) (!) .
Order of Transfer and Good Faith: The exercise of the employer’s power to transfer must be in good faith and for legitimate reasons. If the transfer is shown to be a misuse or abuse of power, motivated by improper reasons, it can be challenged (!) .
Interim Relief and Prima Facie Case: The court may grant interim relief if there is a prima facie case, and the balance of convenience favors the employees. The court’s findings at this stage are provisional and based on the evidence available, without prejudice to the final decision on the merits (!) (!) .
Final Disposition: The court emphasizes that its role is not to decide the case on merits at this stage but to ensure that the order challenged is not arbitrary, capricious, or perverse. The final adjudication will be based on a full examination of evidence and arguments (!) (!) .
In summary, while employers have the right to transfer employees, such transfers must be for legitimate, administrative reasons and not motivated by mala fide or ulterior motives. Courts exercise limited review, focusing on whether there is a prima facie case of mala fide or abuse of power, and whether interim relief is justified based on the circumstances.
( 2 ) THIS petition is directed against the interim order dated 23rd December, 2005 passed below Exh. U-2 in Complaint (ULP) No. 431 of 2005 by the industrial Court, Pune, whereby application for interim relief came to be allowed. The petitioner-employer is directed not to give effect to the transfer orders dated 12th December, 2005 issued to the respondents-workmen till final disposal of the complaint. The Factual Matrix:
( 3 ) THE factual matrix reveals that the transfer orders issued to the respondents-workmen transferring them to various depots and dealers all over india are the bed-rock of Complaint (ULP) No. 431/2005 alleging unfair labour practices on the part of the petitioner-employer.
( 4 ) AT this juncture, it is necessary to refer to the background facts leading to the impugned transfer orders and nature thereof.
( 5 ) WRIT Petition Nos. 110/1998 and 6608/1999 raising industrial disputes between the parties are pending in this Court. When the said petitions came up for hearing, the petitioner-employer instead of arguing these petitions finally; sought adjournment making statement across the bar that the Supreme Court is already ceased of the issues raised in the petitions, as such petitioner-employer expressed its desire to file transfer application within a period of six weeks so as to get the petitions transferred to the Supreme Court. The learned single Judge, who was hearing these matters, reluctantly granted adjournment imposing heavy costs, however, subject to the petitioner-employer furnishing an undertaking that the respondents-workmen involved in the petitions would be given payments and other facilities; with effect from 1st January, 2003; as are being given to the other permanent employees. The petitioner-employer agreed to this suggestion given by the Court. Orders in this behalf were issued on 7th January, 2003. That is how, as on date, the respondents are getting all the benefits which the permanent employees of the petitioner-Company are enjoying. However, in spite of getting aforesaid two petitions adjourned at the time of final hearing with a view to get the petitions transferred to the Apex Court, the petitioner-employer did not obtain any effective orders from the Apex Court for the reasons best known to them.
( 6 ) DURING pendency of the aforesaid petitions, the petitioner taking advantage of its own undertaking filed in Writ Petition No. 1110/1998 vide interim order dated 19th December, 2002 issued transfer orders, specifically, mentioning therein that the Supreme Court vide its order dated 11th September, 2003 has recognized the right of the petitioner-employer to transfer its workmen throughout the country to the various depots, suppliers or dealers of the petitioner. That is how respondents herein were transferred to the various destinations in the country. One of such specimen transfer orders issued in favour of one Shri Prakash K Udare, resident of Wakad, Pune directing him to report at m/s Vedant Automotives Pvt. Ltd. , Howrah (West Bengal) is placed on record. Similar transfer orders are issued to various other respondents directing them to report at various destinations in the different parts of the country.
( 7 ) THE respondents being aggrieved by the aforesaid transfer orders filed complaint (ULP) No. 431/2005 before the Industrial Court at Pune alleging unfair labour practices on the part of the petitioner-employer under section 28 ( 1) read with Items 3, 9 and 10 of Schedule-IV of the Maharashtra Recognition of trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("mrtu and pulp Act" for short ).
( 8 ) IN the aforesaid complaint, application for interim relief was moved, specifically, alleging therein that there is no rule of the Company to transfer its employees like complainants (respondents herein) to other dealers, suppliers and/or distributors
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