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IN THE HIGH COURT OF BOMBAY
N.J.Jamadar, J.
Sulzer Pumps India Private Limited - Appellant
Versus
Jayendra Arun Jog - Respondent
Writ Petition No. 5613 of 2023
Decided On : 03-10-2023
UNFAIR LABOUR PRACTICE - TRANSFER OF EMPLOYEE - Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971, Items 3 and 9 of Schedule IV; Industrial Disputes Act, 1947, Section 2(s) - The court discussed the provisions of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971, particularly Items 3 and 9 of Schedule IV, which address unfair labour practices related to the transfer of employees. The court interpreted these provisions to mean that a transfer can be deemed unfair if it is motivated by mala fide intentions, particularly in the context of union activities. The court also referenced Section 2(s) of the Industrial Disputes Act, 1947, which defines a 'workman' and emphasizes the nature of duties performed over job titles. This legal framework influenced the court's decision to uphold the Industrial Court's finding of unfair labour practices and the invalidation of the transfer order.
Fact of the Case:
The petitioner, a company, transferred the complainant, an employee, from Thane to Chennai, citing business exigency. The complainant alleged that the transfer was an act of victimization due to his involvement in union activities and filed a complaint of unfair labour practices. The Industrial Court ruled in favor of the complainant, declaring the transfer order invalid.
Finding of the Court:
The court found that the Industrial Court had correctly determined that the complainant was a workman under the Industrial Disputes Act and that the transfer was motivated by mala fide intentions to undermine union activities. The court upheld the Industrial Court's ruling that the transfer constituted an unfair labour practice.
Issues: 1. Whether the complainant was a workman under Section 2(s) of the Industrial Disputes Act, 1947. 2. Whether the transfer order was an act of mala fide and constituted unfair labour practice under the Maharashtra Act.
Ratio Decidendi: The court emphasized that the determination of a workman's status should focus on the nature of duties performed rather than job titles. It also highlighted that transfers are a normal incidence of service unless proven to be mala fide, particularly in the context of union activities.
Final Decision: The petition was dismissed, and the order of the Industrial Court quashing the transfer was upheld.
JUDGMENT/ORDER
N.J.JAMADAR, J. - Rule. Rule made returnable forthwith and with the consent of the learned Counsel for the parties heard finally.
2. This petition under Article 227 of the Constitution of India assails the legality, propriety and correctness of the judgment and order dtd. 7/12/2022 passed by the learned Member, Industrial Court, Thane, in Complaint (ULP) No.138 of 2020 declaring that the petitioner ' employer had engaged in unfair labour practices under Items 3 and 9 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 ("the Act, 1971') in issuing the order dtd. 30/10/2020, thereby transferring respondent No.1 ' the complainant ' employee to Chennai, and setting aside the said transfer order.
3. Shorn of unnecessary details, the background facts can be stated as under:
<WXY>(a) The petitioner is a company incorporated under the Companies Act, 1958 and is a part of renowned Sulzer Group.
The petitioner is engaged in manufacturing and selling of the specialized pumps, spare parts and after sales services. It has a plant in MIDC, Digha. Respondent No.1 ' the complainant was appointed as a trainee with the petitioner ' employer on 25/5/1992. One of the terms of employment, specifically mentioned in the letter of appointment, was that the services of the complainant were transferable to any of the department or sister concerns of the employer.
(b) In the year, 2011 the complainant was promoted as Supervisor ' CSS-SAP Data Management, in the Rotating Equipment Services (RES Department). The complainant was responsible for creating, modifying and maintaining Bill of Material (BOM), equipment masters and material masters to support the Parts, Retrofit and Nuclear (PRN) Organization.
(c) Asserting that the work performed by the complainant at the Digha establishment became redundant and the employer had a Supervisor requirement at its Regional Office at Chennai and found the complainant suitable for the said position, the employer issued a transfer order on 30/10/2020 thereby transferring the complainant to Chennai to discharge the duties relating to RES and also be responsible for cash collections in the Regional Office, assuming the role of Credit Controller/Cash Controller. The complainant was directed to report to his transferred place of posting by 4/11/2020.
(d) The complainant filed a complaint of unfair labour practice under Item 4(a) Schedule II and Item 3 and 9 of Schedule IV of the Act, 1971, alleging the transfer as mala fide and an act of victimization. The complainant alleged he was a workman. A dressed up designation of Supervisor CSS-SAP was given to him. He did not discharge any managerial or supervisory duties. Since the complainant was involved in Union activities and had initiated proceedings against the employer and management, he was subjected to transfer mala fide with a view to break the collective bargaining power and it was a clear act of victimization. The complainant alleged, inter alia, that the additional responsibility to act as Credit Controller/Cash Collector amounted to change in conditions of service and, on that count as well, the transfer order was bad and invalid.
(e) The employer resisted the complaint. It was contended that the complainant was transferred in conformity with the terms and conditions of employment. Transfer was necessitated on account of the business exigency. The complainant was not a workman. He was discharging supervisory functions. Thus, a complaint of unfair labour practice was not tenable. It was categorically denied that the complainant was transferred on account of the alleged Union activities to break the collective bargaining power.
(f) Initially by an order dtd. 3/11/2020, the Member, Industrial Court, directed the employer not to give effect to the transfer order till 23/9/2020. By an order dtd. 24/9/2021, on an interim application (Exhibit-U2), the Industrial Court granted interim relief while directin
The court established that the status of a workman is determined by the nature of duties performed, and transfers can be deemed unfair if motivated by mala fide intentions, especially in relation to ....
Judicial review of administrative transfers in employment requires proof of mala fide or jurisdictional error, reaffirming adherence to contractual terms unless misconduct is established.
Transfer is a standard condition of service, and can only be challenged on grounds of mala fides, which require substantial proof of personal bias or improper motive.
The Management's transfer of workmen was ruled illegal due to violations of the Industrial Disputes Act during pending conciliation, affirming the Labour Court's authority to review such actions.
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.
Point of law : Penal action for breach of Section 25(T) read with Section 2(ra) and item 1 and 7 of the Schedule- V of the Act could have been initiated against the applicant if it would have been es....
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