IMPORTANT POINT
The management retains the right to transfer employees based on appointment terms, even after the deletion of the transfer clause from the Standing Orders.

JUDGMENT :

Harisankar V. Menon, J.

The 1st petitioner, a registered trade union, functioning at the 2nd and 3rd respondents' establishment, along with the 2nd petitioner- affected employee–has filed this writ petition challenging the findings contained in Ext.P7 award of the Labour Court, Ernakulam.

2. The short facts, arising for consideration in this writ petition, are as under:

The 2nd petitioner–affected employee–entered the services of the management pursuant to Ext.P5 appointment order dated 31.10.1996. She was working as a Senior Clerk in the 2nd respondent establishment, at its office at Kaloor represented by the 3rd respondent herein. It is pointed out that the 2nd petitioner participated in certain lawful union activities which were not tolerable for the management. Therefore, it is alleged that by Ext.P1 order dated 20.01.2018, the management victimized the 2nd petitioner by transferring her from Kaloor Office to Thrissur Bureau office. It is pointed out that on 23.01.2018, the 2nd petitioner went to Thrissur office, but the office was found locked and on enquiry, it was made known to her that the office was not regularly functioning. The petitioner points out that this was intimated to the Deputy General Manager on 23.01.2018 itself and that she proceeded on leave on medical grounds for 15 days from 22.10.2018 onwards, which leave is being extended till date-on medical grounds.

3. The Union preferred a claim statement at Ext.P2 contending that the transfer is illegal, since the same is issued against the Model Standing Orders in force in the State of Kerala. It was pointed out that, with reference to Ext.P3 notification dated 23.03.2010, the clause regarding “transfer” was deleted from the Model Standing Orders. Ext.P4 was relied upon by the petitioner to point out that the Deputy Labour Commissioner, Ernakulam, had also effected deletion of the “transfer clause” in the Certified Standing Orders of the management dated 29.04.2014. The management filed a written statement producing the appointment order and contending that even as per the appointment order, the 2nd petitioner could be transferred. It was further pointed out that there is no victimisation or unfair labour practice as alleged by the union.

4. However, the Labour Court, Ernakulam issued Ext.P7 award dated 23.11.2021, finding that on an analysis of the entire evidence, the transfer is found to be one in connection with the administration of the establishment and not based on any victimisation or pursuant to any unfair labour practice. It is noticed that the distance between Kochi and Thrissur is only around 70 kilometres and the allegations levelled by the 2nd petitioner have not been proved. In the result, the award at Ext.P7 was issued justifying the transfer of the 2nd petitioner from Kaloor office to Thrissur branch.

5. It is challenging the order at Ext.P7 that the captioned writ petition is filed, also pointing out to the judgment of this Court in O.P.No13150 of 1991 produced as Ext.P8 whereby, it is held by this Court that “transfer” is not a condition of service enumerated in the Model Standing Orders. The petitioner has also produced Ext.P9 Government order, dated 16.02.1999 as per which the “transfer” provisions were introduced in the Standing Orders which have been subsequently deleted pursuant to Exts.P3 and P4.

6. I have heard Sri.K.S.Madhusoodanan, the learned counsel appearing for the petitioners and Sri. Benny P. Thomas, the learned senior counsel appearing for the management.

7. Sri.K.S.Madhusoodanan, the learned counsel for the petitioners contends that the award at Ext.P7 is issued without taking note of Exts.P3 and P4 by which “transfer clause” has been deleted from the Standing Orders. He points out further that the findings as regards the transfer in paragraph 15 of the impugned award are also not correct or legal. Sri. K.S.Madhusoodanan also relies on the judgments of the Apex Court in Western India Match Company Ltd. v. Workmen [(1974) 3