The central legal point established in the judgment is that unless transfer is established as a condition of service, the protection under section 33(1) of the Industrial Disputes Act is not available.

Sanjay Yadav, J.

1. Heard. Petitioner-Union takes exception to an order dated 21-7-2015 passed by Labour Court, Bhopal; whereby, application preferred by the petitioner for stay of transfer of its members, namely, Pankaj Jain, Sanjeev Kumar, Sandeep Kumar Tiwari to Coimbatore, Sirohi Distt. Pali and Bangalore respectively from Bhopal, has been rejected.

2. That, dispute was raised by the petitioner on 5-6-2015 before Deputy Labour Commissioner, Bhopal in respect of the action of respondent as to transfer and removal from service of some of its members, alleging that the same was arbitrary and with mala fide intention. With the failure of conciliation, the dispute was referred to for adjudication to Labour Court on 13-7-2015. The dispute which is referred for adjudication is -

3. During pendency of adjudication of reference before the Labour Court, petitioner-Union filed an application for stay of transfer of three of its members, which was by orders dated 26-5-2015 and 8-7-2015 on the ground that the same was in violation of section 33 of the Industrial Disputes Act, 1947 (for brevity 1947 Act'), tantamounting to change in the condition of service. The application was opposed at by the respondent-employer contending inter alia that transfer being incidence of service and being not the condition of service under section 9A read with Fourth Schedule of 1947 Act, it was within the administrative power of the respondent to have transferred its employees who happen to be members of the petitioner-Union.

4. The Labour Court while dwelling upon these contentions and counter contentions, declined to interfere with the order of transfer on the finding that the petitioner-Union has failed to establish that transfer was the condition of service. As regard that the transfer is out of mala fide, Labour Court stated that being a matter of adjudication, the same will be considered only after evidence is recorded.

5. Learned counsel for the petitioner has reiterated the submissions as were put forth before Labour Court that the members of petitioner-Union during pendency of proceedings being change in the condition of service, Labour Court ought to have stayed their transfer. On the contrary, learned counsel for the respondent supports the order passed by Labour Court.

6. The issue which crops up for consideration is as to whether the transfer is the condition of service qua members of the petitioner-Union.

7. Section 9A of 1947 Act envisages that 'No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or within twenty-one days of giving such notice'. Exceptions are carved out in proviso appended to sub-sections (a) and (b) of section 9A of 1947 Act.

Matters which are specified in Fourth Schedule are -

"1. Wages, including the period and mode of payment;

2. Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force;

3. Compensatory and other allowances;

4. Hours of work and rest intervals;

5. Leave with wages and holidays;

6. Starting, alteration or discontinuance of shift working otherwise than in accordance with standing orders;

7. Classification by grades;

8. Withdrawal of any customary concession or privilege or change in usage.

9. Introduction of new rules of discipline, or alteration of existing rules, except insofar as they are provided in standing orders;

10. Rationalisation, standardization or improvement of plant or technique which is likely to lead to retrenchment of workmen;

11. Any increase or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, not occasioned by circumstances over