The central legal point established is that a transfer order can be deemed unfair labour practice if it is vindictive and aimed at forcing an employee to resign, especially in the context of a history of litigation and a long legal battle between the employee and the management.

Hrishikesh Roy, J.

1. Heard Mr. L.P. Sharma, learned Counsel appearing for the petitioner. Also heard Mr. S.N. Sarmah, learned Senior Advocate representing the workman/respondent No. 2.

2. The writ petitioner/management by filing this petition challenges the award dated April 12, 2002 in Reference Case No. 38 of 1997 given by the learned Labour Court, Guwahati holding the management guilty of unfair labour practice because of the transfer/ deputation order dated May 13, 1997, issued against the workman. The learned Labour Court has also directed that the workman be permitted to resume his duty at Guwahati with full back wages. Permission for prosecution of the Management under Section 25U of the Industrial Disputes Act (hereinafter referred to as the I.D. Act) has also been granted by the award impugned before this Court.

The workman who was appointed on November 2, 1981 as a driver under the writ petitioner-company is the beneficiary of the award under challenge.

3. The award came to be passed in pursuant to a reference made by the Government on the following two issues:

(a) Whether the management of Indian Potash Ltd. was justified in issuing transfer order on deputation to Shri S.K. Bhattacharjee, driver Audio Visual Van from Guwahati to Chhinndwara, Madhya Pradesh, under the State Project Manager, Environment Improvement in Rain-fed Areas Project and releasing him from Guwahati?

If not, what relief the workman is entitled to?

(b) Whether the management of Indian Potash Ltd. has committed Unfair Labour Practice, as alleged by the Marcentile Employees Union in the matter of Shri S.K. Bhattacharjee, driver, Audio Visual Van, Guwahati?

If so, what action is called for?

4. It is contended by Mr. L.P. Sarma, learned Counsel appearing for the Management that the workman in terms of the appointment order issued to him was liable to be transferred to any office/field location within India as may be decided by the Company and under such circumstances, the refusal by the workman to comply with the transfer order dated May 13, 1997 whereby he has been transferred from Guwahati to Chhinndwara, Madhya Pradesh would not at all be justified and therefore, the interference by the Labour Court with the said transfer order on a reference made is liable to be interfered with by this Court.

5. The Management's counsel also contends that by giving direction for reinstatement with back wages, the Labour Court has traveled beyond the issues referred for adjudication by the Labour Court and under such circumstances, the award is vitiated in law.

6. It is also contended by Mr. L.P. Sarma on behalf of the Management that the transfer of the workman to Chhindwara from Guwahati cannot be described as a case of victimization in as much as, as many as 17 employees of various locations have been transferred to Chhinndwara to work in a project to be implemented by the petitioner company.

7. The learned Counsel has also referred to a decision given by the Rajasthan High Court on April 20, 1999 in a case filed by an employee of the writ petitioner-company to challenge a transfer order to a distant place where the High Court dismissed the writ petition to show that another High Court in a similar case did not entertain the writ petition of a workman under the petitioner-company.

8. Mr. S.N. Sarma, learned senior counsel representing the workman on the other hand contends that the transfer order was passed only to victimize the workman who has been fighting a long legal battle with the management following his dismissal from service in the year 1985 and the transfer order,, under no circumstances can be described as an innocuous transfer order passed by the Management.

9. The learned Counsel has also referred to the relevant clause in the appointment order dated November 2, 1981 issued to the workman to contend that under the said order of appointment, the workman can only be transferred to a location where an office of the establishment exist and since there is no