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2007 Supreme(Bom) 1736
IN THE HIGH COURT OF BOMBAY
A.H. Joshi, J.
SANJAY s/o LATE RAMESH KUMAR SINHA - Petitioner.
vs.
MINERAL EXPLORATION CORPORATION LTD. - Respondent.
Civil Appln. No. 7371 of 2007 in W. P. No. 4208 of 2007
Decided On: 19-12-2007.
Advocate Appeared:
For applicant: S. S. Sanyal
For respondent: M. D. Samel instructed by N. M. Motghare
The judgment establishes the principle that allegations of mala fides and unfair labour practice must be supported by specific evidence against individuals, and the absence of such evidence may lead to the vacating of interim relief.
Headnote:
Transfer - Unfair Labour Practice - Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1972 - Section 28
Fact of the Case:
The petitioner challenged a transfer order under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1972, alleging unfair labour practice by the employer. The petitioner had been transferred temporarily and filed a writ petition after the Industrial Court rejected the petitioner's application.
Finding of the Court:
The Court found that the transfer was not vitiated by mala fides and did not constitute unfair labour practice. It vacated the interim relief granted to the petitioner and allowed the transfer to take effect after a specified date. The question of unfair labour practice was left open for hearing and disposal before the Industrial Court.
Issues: The key issues were whether the transfer constituted unfair labour practice under Section 28 of the Act and whether the interim relief should be confirmed.
Ratio Decidendi: The Court held that the transfer did not demonstrate mala fides or unfair labour practice. It emphasized the need for specific allegations and proof of mala fides against individuals, and the absence of such evidence led to the vacating of the interim relief.
Final Decision: The interim relief granted by the Court was vacated, and the question of unfair labour practice was left open for hearing before the Industrial Court.
This petition was listed on board in view of the Civil Application filed by the respondent for vacation of stay.
2. Being unmindful as to the year of filing of petition, learned Advocates of the parties were asked whether the petition could be taken up for final disposal. Learned Advocates answered in the affirmative. The petition was, therefore, heard at length believing it to be heard for final disposal. At the time of passing of the order, however, it has revealed that the final hearing of the present petition does not pertain to my roster though application is to be heard by me. Thereafter, on 17-12-2007, Civil Application was listed on board and Learned Advocates were called upon to argue the application and advance if any submissions are to be made on the Civil Application. Learned Advocates advanced brief submissions on the basis of the hearing conducted as referred to in foregoing para, and requested for deciding the Civil Application.
3. This Court, therefore, proceeds to decide Civil Application No. 7371 of 2007.
4. The petitioner who was aggrieved by the order of transfer dated 18-7-2007 transferring the petitioner temporarily for a period of three months from his present posting to Jangareddygudem. He, therefore, approached the Industrial Court by filing the complaint under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1972.
Industrial Court passed the order rejecting the petitioner's application on 17-8-2007. Hence, he has filed this writ petition.
5. Facts:
The complainant was posted at different places between 1986 to 2007. He has worked at different places as follows:
i) Initial appointment at Nagpur (26-7-1986 to 1995)
ii) Posted to Jhabua in 1997, in Madhya Pradesh;
iii) Govindraopeth in Andhra Pradesh (October, 1997 to December, 2007.
iv) Kanchanpally Project in Andhra Pradesh (January, 1998 to November, 1999)
v) Reserve Pool Hyderabad (November, 1999 to September, 2002). He was transferred from Reserve Pool Hyderabad to Nagpur." [Quoted from complaint at page 30 of the Writ Petition Paper Book]
6. According to the petitioner:-
(a) he was involved in a one day strike as a Trade Union activist;
(b) any declaration as to said strike being illegal was not made by any Court; .
(c) the employer, however, served on him a charge-sheet dated 3-10-2006;
(d) he has challenged the said charge-sheet before the Industrial Court, who did not grant stay of the Enquiry;
(e) he, therefore, approached this Court, and the High, Court granted interim relief by way of stay of the departmental enquiry;
(f) soon after this stay was ordered, he has been transferred to Jangareddygudem; and
(g) person from common pool at Hyderabad could have been chosen for transfer which has not been done.
7. According to petitioner :(a) His transfer is the only transfer rather solitary transfer order issued i.e. he has been singled out.
(b) He has been given the transfer order and relieving order simultaneously, and has not been given joining time.
(c) Transfer order is a employer's reflex of part of stay order given by this Court staying the charge-sheet and enquiry.
(d) Transfer Order is, therefore, mala fide.
8. Various documents were brought on record by the petitioner as well the respondent for the first time in this petition. Even the issues relating to existence of transfer policy are agitated. There are different documents relied upon by the parties as a transfer policy.
9. Learned Advocate Mr. Sanyal, therefore, submitted that petitioner has a strong case on merits, and the interim order be confirmed pending hearing, and disposal of the writ petition, and the Civil Application be rejected. According to him, mala fides underlying the transfer is the crux of the matter and petitioner has amply proved the mala fides, and the order of transfer is, therefore, proved to be by way of unfair labour practice.
10. Learned Advocate for the petitioner then argued that if the interim relief is not confirm
