Case Note & Summary
The petitioners, a Junior Section Officer employee (first petitioner) and a registered Trade Union (second petitioner), challenged an inter-unit transfer order issued by the first respondent, Bharat Electronics Limited, a Central Government undertaking. The first petitioner had been employed with the company since 1991 and was an office bearer of the second petitioner union and a 'protected workman' under Section 33(4) of the Industrial Disputes Act, 1947. The transfer order dated 08.06.2022 moved the first petitioner from Testing/NCS/MIL Com. in Bengaluru to the Kochi Unit, shortly after the first petitioner had been transferred within Bengaluru and following union elections where the first petitioner was defeated allegedly due to management propaganda. The first petitioner had submitted a representation citing personal hardships, including his wife's health issues, children's education and health, and mother-in-law's ailments, but the management ignored these and transferred him to Kochi. The petitioners argued that the transfer was arbitrary, mala fide, and violative of Articles 14, 16, and 21 of the Constitution of India and the Certified Standing Orders (CSO) of the company. They contended that the CSO, which defined the 'company' as the Bengaluru establishment, only permitted inter-department transfers under Clause 7 and did not authorize inter-unit transfers outside Bengaluru, relying on the Industrial Employment (Standing Orders) Act, 1946, Section 2(e). They further submitted that under the binding nature of Standing Orders as held in Western India Match Co. Ltd. v. Workmen and General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav, the CSO prevailed over any other terms and conditions. The respondents' arguments and the court's analysis and final decision are not included in the provided excerpt of the judgment, which ends with the petitioners' submissions and a truncated reference to the court's observation that a particular contention was unsound. The court had heard the matter and reserved orders on 25.08.2022, pronouncing the order on 13.09.2022, but the complete text is unavailable.
Issue of Consideration
Whether the transfer order dated 08.06.2022 transferring the first petitioner from Bengaluru to Kochi Unit is illegal, unconstitutional, violative of Articles 14, 16, 21, and against the Certified Standing Orders of the respondent company.
Law Points
- Certified Standing Orders prevail over appointment letters
- Inter-department transfer under Standing Order Clause 7 does not permit inter-unit transfer
- Industrial Employment (Standing Orders) Act
- 1946 s.2(e) defines industrial establishment
- Transfer order must be fair and reasonable under Articles 14
- 16
- 21
- Mala fide transfer amounts to victimisation
Case Details
2022 LawText (KAR) (09) 62
Writ Petition No. 12765 of 2022 (L-RES)
K. Subba Rao, L. Muralidhar Peshwa, Sandish J. Chouta, Ismail Muneeb Muska
Shri N Madhubabu S/o M Narayana, Bharat Electronics Workers Union
Bharat Electronics Limited, Manager (HR)
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging a transfer order as illegal, unconstitutional, and violative of fundamental rights and Certified Standing Orders.
Remedy Sought
Declaration that the transfer order dated 08.06.2022 is illegal and unconstitutional, quashing of the transfer order, and grant of all consequential benefits.
Filing Reason
Transfer order dated 08.06.2022 transfering the first petitioner from Bengaluru to Kochi Unit, alleged to be arbitrary, mala fide, and in violation of the Certified Standing Orders of the first respondent company.
Issues
Whether the transfer order is violative of Clause 7 of the Certified Standing Orders which provides only for inter-department transfer and not inter-unit transfer.
Whether the transfer of the first petitioner from Bengaluru to Kochi Unit is impermissible as the establishment under the Industrial Employment (Standing Orders) Act, 1946 is limited to Bengaluru.
Whether the transfer order is mala fide and amounts to victimisation of the first petitioner due to his trade union activities.
Submissions/Arguments
The order of transfer is completely arbitrary and unfair inasmuch as the first petitioner had been working with the first respondent-Company for the last thirty years.
The first petitioner submitted a representation dated 02.05.2022 categorically stating that his wife is suffering from imbalance of uric acid, his son is studying in Engineering College and his daughter is studying in second year of Pre-university College, his daughter is also suffering from depression and anxiety disorder, his mother-in-law is suffering from various health issues, and despite all these facts, the first respondent transferred the first petitioner to Kochi Unit, which is mala fide.
Clause 7 of the Certified Standing Orders provides only for transfers between departments and does not contemplate inter-unit or inter-place transfers, and since the company is defined as Bengaluru in the Standing Orders, the first petitioner cannot be transferred outside Bengaluru.
Under Section 2(e) of the Industrial Employment (Standing Orders) Act, 1946, the Standing Orders apply only to an industrial establishment, which in this case is the Bengaluru establishment, and the Act does not contemplate other units; thus transfer to Kochi Unit is impermissible.
Reliance on Western India Match Co. Ltd. v. Workmen, AIR 1973 SCC 2650, paragraphs 1,4,7,8,9, to contend that Certified Standing Orders are binding and any inconsistent agreement or action is void, and therefore the terms of the CSO must prevail over any other terms including appointment letters.
Reliance on General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav, (1988) 2 SCC 351, paragraphs 13,14, to support the proposition that rules framed under a statute become part of the statute and are binding.
Judgment Excerpts
The first petitioner is a Junior Section Officer of the first respondent-Company since 1991.
The petitioners are before this Court seeking for the following reliefs:- a. A Writ of Mandamus or any other appropriate Writ, direction or order be issued to declare that the Transfer Order, dated 08.06.2022, in Annexure A, illegal, unconstitutional and violative of Articles 14,16 and Article 21 of the Constitution of India and against the certified standing orders of the First Respondent Company.
Transfers between Departments: Depending on the exigencies of work, workmen may be transferred from one department to the other or from one section to the other or from one job to the other, provided that their emoluments and service conditions are not affected.
This contention is unsound. It is well settled that rules framed under the provi...
Procedural History
Writ petition filed under Article 226 of the Constitution of India praying to declare the transfer order dated 08.06.2022 as illegal and to quash it. The writ petition came up for orders and was reserved for orders on 25.08.2022. The court pronounced the order on 13.09.2022, but the excerpt provided does not include the final decision.
Acts & Sections
- Industrial Employment (Standing Orders) Act, 1946: 2(e)
- Industrial Disputes Act, 1947: 33(4)
- Trade Unions Act, 1926:
- Constitution of India: 14, 16, 21, 226
