SHANMUGAM Vs. MYSORE MINERAL LTD

JUDGEMENT

(1.) The petitioner who is a Driver in the service of Mysore Minerals Limited, has presented this petition questioning the legality of the order by which he was transferred from the Byrapura Chromite Mines in the district of Hassan to Jambunathanaballi Iron Ore Mines in the district of Bellary.

(2.) The facts of the case, in brief, are as follows : The Mysore Minerals Limited is a Government Company incorporated under the Companies Act, 1956. It was established in the year 1966. The petitioner was a Driver employed in the service of the first Respondent-Company. He was working at Byrapura Chromite Mines in the district of Hassan. By order dated 6th April, 1983 (Annexure-B) he was transferred in the interest of the service of the Company from Byrapura Chromite Mines to Jambunathanahalli Iron Ore Mines in the district of Bellary. Questioning the legality of the said order, the petitioner presented this petition.

(3.) (i) Before proceeding to consider the merits of the case, it is necessary to set out the scope and history of S. 4 of the Standing Orders Act to the extent necessary for this case. S. 3 of the Act requires every employer to whom the Standing Orders Act applies to submit draft standing orders making provision for every matter set out in the schedule to the Act and applicable to the establishment concerned. S. 4 empowers the Certifying Officer to certify Standing Orders so submitted if only provision has been make for every one of the matters in the schedule and applicable to the concerned establishment. (ii) Section 4 as it stood originally, further provided that it was not the function of the Certifying Officer to adjudicate upon the fairness or reasonableness of any of the provisions incorporated in the standing orders submitted for certification. In view of the above condition, S. 4 was understood to have incorporated a prohibition for inclusion of any condition of service in the Certified Standing Orders which was not covered by the schedule. (iii) Section 4 was amended by S. 32 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. By that amendment, the word 'not' in S. 4 was omitted. The amendment came into force on 17th September, 1956. As a result, on and after that date, the duty of the Certifying Officer is not only to ensure that provisions have been made in Standing Order not only in respect of everyone of the matters incorporated in the schedule, but also to adjudicate whether the provisions incorporated are fair and reasonable. There are two divergent construction of S. 4 of the Act. (A) One of the construction is that even after the amendment of S. 4, no condition of service on matters other than those set out in the schedule could find a place in the certified standing orders and even if found incorporated, it is void. (B) The other view is that after the amendment S. 4 provisions regarding condition of service of employees in respect of matters not incorporated in the schedule to the Act, but found necessary could be incorporated in the standing orders and if the Certifying Officer finds them fair and reasonable there is no bar for certifying them and if certified they are valid. With this background, I shall proceed to consider the merits of the case. (i) The plea of the petitioner is as follows : The transfer of the petitioner was contrary to law. Transfer is not one of the items set out in the schedule to the Industrial Employment Standing Orders Act, 1946 ('the Act' for short). Therefore, the condition incorporated was invalid and the order of transfer is liable to be struck down. (ii) The plea of the first respondent in the statement of objection is as follows : The first respondent-company owns and operates about 30 Mines in different parts of the State of Karnataka. Under the Standing Orders of the Company a specific provision had been incorporated regarding transfers. It is S.O. 9(g). It reads : "9(g) TRANSFERS : The employees (of all categories) of the Company are liable to be transferred any where in India (in Company's service) in the interest of the company's work." The above provision was incorporated into the Standing Orders in 1974 with the consent of the Labour Union and after the same was considered by the Certifying Authority as fair and reasonable. Petitioner joined service only on 7th July, 1978. The validity of the inclusive of the said provision has not been questioned in appeal. Therefore, there is no substance in the contention that the order of transfer was illegal.