The main legal point established is that transfers for misconduct, as justified by applicable legal provisions and previous judgments, are permissible even when disciplinary action is pending for the same misconduct.

JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard both the learned counsel finally at the admission stage.

2. The petitioner is challenging judgment and order dated 03.04.2023, passed by learned Member, Industrial Court, Latur, dismissing the Complaint ULP No. 195 of 2019 which was filed challenging an order of transfer dated 26.10.2019.

3. Petitioner is the original complainant and the respondent is employer who effected transfer.

4. The petitioner is working as a Class IV employee as Conductor in the respondent - Corporation. By order dated 26.10.2019, she was transferred from Osmanabad to Paranda, within the Division. That was challenged by petitioner in a complaint on 10.03.2019, under Section 28 (1) and Item 3, 9 and 10 of Schedule IV of the Maharasthra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1961, before the Industrial Court. She was given protection by interim orders dated 26.11.2019 and 16.03.2020. By the impugned judgment and order her complaint was dismissed. The protection was continued till 30th April, 2023.

5. Learned counsel for the petitioner informs that in the month of May, 2023, she joined at a transferred place i.e. Paranda.

6. Learned counsel for the petitioner submits that the transfer is against circular no. 2 of 2017 as well as Rules of 2014. By referring to the circular no. 1 of 2017, it is submitted by the learned counsel that first two instances of default of petitioner of collecting fare amount and not issuing tickets, are compromised by imposing penalty. For that, he refers to the office orders dated 22.11.2017, 23.09.2019. For the third default of the same charge, the respondent issued charge sheet and departmental enquiry is under way. For that purpose, the correspondence which is at page no. 68 is referred indicating pendency of enquiry against the petitioner.

7. Learned counsel submits that when respondent is conducting disciplinary action for the same charge, issuing transfer by impugned order amounts to penalty. The petitioner has already paid penalty for initial faults. It is submitted that as per Rule 8 (e) (2) of Rules of 2014, the impugned order is unsustainable and patently illegal.

8. Learned counsel for the petitioner submits that the learned Member of the Industrial Court misread the ratio laid down in the judgments referred in paragraph nos. 11 and 14 of in impugned judgment and order. According to him, learned Member erred in holding that the petitioner was involved in misconduct affecting primary source of income and was liable to be transferred. He further erred in holding that the transfer was not outcome of the vindictive action amounting to unfair labour practices. He seeks to rely upon the judgment which are annexed at Exhibit J as well as judgment of Supreme Court in the matter of Somesh Tiwari Versus Union of India and others, (2009) 2 Supreme Court Cases 592.

9. The respondent has opposed the submissions. Affidavit-in-reply has also been filed today. It is the submission of the respondent that the transfer of the petitioner is on administrative grounds. The petitioner was not punctual and committed 41 defaults of misconduct on different occasions. For that purpose, a reliance is placed on the list of the instances annexed along with reply. Learned counsel submits that the respondent has shown generous attitude towards the petitioner but considering the persistent default of misconduct, it is not conducive to keep such an employee at Osmanabad. Despite compromising first two defaults, the petitioner has not shown any improvement.

10. Learned counsel submits that the respondent was constrained to transfer him. He has relied upon judgment rendered by this Court in the matter of The Divisional Controller MSRTC, Osmanabad Versus Sirajuddin Abdul Mogul, W.P. No. 10337 of 2019 decided on 21.08.2019.

11. I have considered rival submissions of the parties.

12. The judgment rendered in The Divisional Controller Versus Dyandeo Ganpat Akolkar, passed by