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IN THE HIGH COURT OF ALLAHABAD
S. C. Mathur, Ag. C. J. and R. A. Sharma, J.
U.P.STATE SUGAR CORPN - Appellant
Versus
BIPIN KUMAR MISHRA - Respondents
Spl. Appeal 481 Of 1993
Decided On : 08/19/1993
TRANSFER OF WORKMEN - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 - SECTION 3 - SCHEDULE - U. P. SUGAR UNDERTAKINGS (ACQUISITION) ACT, 1971 - SECTION 16 - U. P. STATE SUGAR CORPORATION LTD. GENERAL SERVICE RULES, 1988 - RULE 27 - TRANSFER OF WORKMEN FROM ONE UNIT TO ANOTHER - WHETHER STANDING ORDER REQUIRED - WHETHER EMPLOYER HAS RIGHT TO TRANSFER WORKMEN - WHETHER STATUTORY AUTHORITY VESTED IN CORPORATION TO TRANSFER EMPLOYEES.
Fact of the Case:
The respondent, a workman employed at a sugar factory acquired by the appellant Corporation under the U. P. Sugar Undertakings (Acquisition) Act, 1971, challenged his transfer from one unit to another on the grounds that he was a workman governed by the Standing Orders issued under the Industrial Employment (Standing Orders) Act, 1946, which did not provide for transfer, and that the Corporation had no jurisdiction to transfer him as the sugar factory was a subsidiary company registered under the Companies Act.
Finding of the Court:
The Court held that the respondent was a workman and his service conditions were governed by the Standing Orders issued under the Industrial Employment (Standing Orders) Act, 1946, but that the Act did not require standing orders to be framed in respect of transfer, and therefore the employer could not be denied the normal right to transfer an employee from one place to another. The Court also held that the Corporation had statutory authority under Section 16 of the U. P. Sugar Undertakings (Acquisition) Act, 1971 to transfer its employees from one unit to another.
Issues: 1. Whether a standing order under the Industrial Employment (Standing Orders) Act, 1946 was required to be framed in respect of transfer to clothe the employer with the right to transfer a workman. 2. Whether the employer has the right to transfer workmen as an incident of service. 3. Whether the Corporation had statutory authority vested in it to transfer its employees from one unit to another.
Ratio Decidendi: 1. The Industrial Employment (Standing Orders) Act, 1946 does not require standing orders to be framed in respect of transfer, and therefore the employer cannot be denied the normal right to transfer an employee from one place to another. 2. Transfer is an incident of service, and the employer has the right to transfer workmen from one place to another unless this right is curtailed by a specific provision in the rules, regulations, or statute. 3. Section 16 of the U. P. Sugar Undertakings (Acquisition) Act, 1971 reserves the right in the Corporation to transfer an employee from one unit to the other.
Final Decision: The appeal was allowed, the judgment and order of the learned single Judge was set aside, and the writ petition filed by the respondent was dismissed with costs to the appellants.
( 2 ) SINCE 1979 the respondent was in the employment of Luxmi Devi Sugar Mills, Chitauni, district Dcoria. The mill was acquired by the State Government and vested in the Corporation under the provisions of the U. P. Sugar Under-takings (Acquisition) Act, 1971 (23 of 1971), for short act. By virtue of this acquisition, the mill became a unit of the Corporation. In July, 1987 the respondent was transferred, on his own request, to Ghalampur Sugar Factory, Ghatampur, district Kanpur Dehat. On December 15, 1992 when the respondent was working at Ghatampur in the Cash Department, the Managing Director of the Corporation issued the impugned order transferring him to another unit of the Corporation at Pipraich in District Gorakhpur.
( 3 ) THE aforesaid transfer order was challenged by the respondent on the following grounds: i. The Sugar Factory at Ghatampur is registered under the Companies Act while the unit at pipraich is registered under the Factories Act, 1948 and they are independent of the Corporation and, therefore, the Managing Director of the Corporation has no jurisdiction to effect the transfer: ii. The respondent is a workman within the meaning of Section 2 (2) of the U. P. Industrial disputes Act, 1947 and his conditions of service are governed by the Standing Order, 1988 issued by the State Government vide Notification dated September 27, 1988 under Section 3 (b)of the U. P. Industrial Disputes Act and the Standing Order, 1991 issued under the same provision vide Notification dated January 31, 1991. Neither of these two Standing Orders provides for transfer of a workman from one unit to another.
( 4 ) THE appellant Corporation contested the respondents claim and asserted that he was not a workman and that Ghatampur Sugar Factory was a subsidiary company of the Corporation and the employees of the company were in fact employees of the Corporation. Service conditions of the employees working at the headquarters and in the units are governed by the U. P. State Sugar corporation Ltd. General Service Rules, 1988, Rule 27 of which provides for transfer throughout india.
( 5 ) IN his judgment under appeal, the learned single Judge has held that the respondent is a workman and his service conditions are governed by the Standing Orders issued under the industrial Employment (Standing Orders) Act, 1946. The schedule to the Act does not mention transfer and, therefore, the respondent cannot be transferred from one unit to another. In taking this view, the learned single Judge has relied upon a Division Bench decision of this Court in air Gases Mazdoor Sangh v. Indian Gases Ltd. , Varanasi, (1977-II-LLJ-503)
( 6 ) IN the present appeal, the learned Counsel for the Corporation has assailed both the findings of the learned single Judge-the finding that the respondent is a workman and the finding that the respondent cannot be transferred on account of lack of a provision in that behalf in the Standing order framed under the Industrial Employment (Standing Orders) Act, 1946.
( 7 ) WE may assume that the respondent is a workman. On this assumption, we proceed to consider whether standing order under the Industrial Employment (Standing Orders) Act was required to be framed in respect of transfer to clothe the employer with right to transfer a workman.
( 8 ) SECTION 3 of the Standing Orders Act provides that within six months from the date the Act becomes applicable in an industrial establishment, the employer shall submit to the certifying officer
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