Case Note & Summary
The petitioner, an employer, filed two writ petitions before the High Court of Bombay at Goa challenging two awards of the Industrial Tribunal dated 06.11.2019 and 23.12.2019, which disposed of Reference (IT) Nos. 6/2017 and 19/2017. The respondent was a trade union representing the workmen. The Tribunal held that the employer's action of transferring services of its employees from one branch office to another was illegal and unjustified. It found that Clause 18 of the appointment letters permitted transfers anywhere in India, in any existing or future establishments of the employer or employer group, including transfer from one shift to another and one department to another, but did not provide for transfer from one branch/workshop to another of the same company within the State of Goa. Aggrieved by this finding and the interpretation of Clause 18, the employer instituted both writ petitions. The employer made a statement through its General Manager (HR) that it was not interested in enforcing the transfer orders issued to the eight employees involved in the two disputes and would not enforce such transfer orders against them. However, the employer submitted that the impugned awards should be interfered with because based on the Tribunal's reasoning, all other employees were resisting transfers from one branch/workshop to another, even within Goa, causing the employer prejudice. The employer argued that the interpretation was ex-facie wrong and amounted to perversity. The employer pointed out that each employee had accepted appointment letters with general terms and conditions, including Clause 18, which specifically contemplated intra and inter-state transfers and transfers to existing or future establishments of the employer group. The employer argued that merely because the word 'branch' was not specifically used in Clause 18, the Tribunal could not have held that transfer from one branch to another or one workshop to another within the State was barred. The employer also submitted that the Tribunal misinterpreted the Supreme Court decision in Kundan Sugar Mills v. Ziyauddin. The respondent union defended the impugned awards. It submitted that Kundan Sugar Mills was authority for the proposition that no transfers can be effected to establishments not in existence on the dates of the employees' initial appointments. It argued that the transfers in the present case were to branches or workshops that did not exist when the eight employees were appointed, making the transfers ultra vires Clause 18. The respondent further argued that the Tribunal interfered with the transfer orders not only because the employer lacked power to order such transfers but also because the Tribunal, based on evidence, found the transfers were malafide and intended to victimize employees for union activities. These were findings of fact supported by evidence. The respondent submitted that the transfer orders warranted no interference and the impugned awards should be allowed to remain. The court heard arguments and reserved judgment. The provided excerpt does not disclose the final decision.
Headnote
A) Labour Law - Transfer of Employees - Contractual Interpretation - Clause 18 of Appointment Letters - Whether transfer from one branch/workshop to another within same State is permissible when clause permits transfer anywhere in India and to existing or future establishments - Petitioner argued that Tribunal's interpretation excluding intra-state branch transfers from one branch/workshop to another was perverse and unsupported by wording; respondent defended award based on malafides and lack of power to transfer to non-existent establishments (Paras 10-13). B) Labour Law - Mala fide Transfer - Victimization - Industrial Tribunal's Finding of Fact - Respondent contended that transfer orders were malafide and intended to victimize employees for union activities, supported by evidence on record; petitioner sought interference with impugned awards while undertaking not to enforce transfer orders against the eight employees involved (Paras 15). C) Precedent - Applicability of Kundan Sugar Mills - Transfer to Future Establishments - Kundan Sugar Mills v. Ziyauddin, AIR 1960 SC 650 - Respondent relied on this decision to argue that no transfers can be effected to establishments not in existence on the dates of employees' initial appointments; petitioner argued Tribunal misinterpreted this authority (Paras 13-14). D) Procedural Law - Writ Jurisdiction - Challenge to Industrial Tribunal Awards - Rule issued in both petitions, notice made returnable immediately by consent, common judgment due to common issues of law and fact; no final order available in provided excerpt (Paras 2-3).
Issue of Consideration
Whether Clause 18 of appointment letters permits transfer of employees from one branch/workshop to another within the State of Goa; whether the Industrial Tribunal correctly held such transfers illegal and unjustified; applicability of Kundan Sugar Mills regarding transfers to establishments not in existence at the time of appointment.
Law Points
- Transfer of employees
- interpretation of contractual clause
- intra-state transfer
- malafide transfer
- victimization
- industrial adjudication
- Kundan Sugar Mills principle
