P.M.S. HAMEED Vs. POPULAR AUTOMOBILES

JUDGEMENT

(1.) THE order of the Appellate Authority under the Shops and Commercial Establishments Act in Shop Appeal No.117 of 1968 is under challenge in these writ petitions.The appeal concerned was preferred against the order of dismissal of one Sri P.M.S.Hameed by the employer,M/s.Popular Automobiles.Sri Hameed was working as a Sales Promoter in the Ernakulam Branch of M/s.Popular Automobiles.He joined service in 1960.On 15th 1968 he was transferred to the Bangalore Branch of the firm,M/s Popular Automobiles.The propriety of the order of transfer was questioned by Sri Hameed on the ground that he was appointed to serve only in anyone of the branches in the Kerala State.He also contended that the transfer was with a view to victimisation as he was the Vice -President of the Union of workers and the Union had put forward some demands on behalf of the workers.On 15th April 1968 he was transferred to the Bangalore branch of the firm M/s Popular Automobiles.When the petitioner failed to join duty in the Bangalore branch,the employer framed charges against him for wilful disobedience of lawful orders and for breach of discipline.A domestic enquiry was held against him and as a result of the enquiry he was dismissed from service.This order was the subject of the Shop Appeal before the Appellate Authority,the Additional Deputy Labour Commissioner,Ernakulam.The Appellate Authority found that since there were no standing orders or written conditions of service,the appellant was bound to accept the transfer,and therefore he should have obeyed the transfer order.The Appellate Authority also held that the domestic enquiry was proper and that all the charges raised against the petitioner had been proved.The Appellate Authority,however,found that considering the long record of service of Sri Hameed a lighter punishment,one other than dismissal from service should have been imposed.The Authority did not direct reinstatement,but directed the employer,M/s Popular Automobiles to pay,16 months full pay amounting to Rs.4,560 to Sri Hameed in lieu of his reinstatement as well as claim for back wages.It is this order that is challenged by Sri Hameed in O.P.No.572.of 1973,while,the same order is challenged in O.P.No.688 of 1973 by the employer.

(2.) THE case of the petitioner in O.P.No.572 of 1973 is that the Appellate Authority seems to have assumed that an authority to transfer is implicit in the employer in every contract of service,and therefore,unless it is otherwise shown,it should be taken that the employer is entitled to transfer his employee to anyone of his branch offices.This approach,it is said,is unwarranted because the law does not recognise any implied term in every contract of employ­ment empowering the employer to transfer an employee from one place or branch to another.It is also contended that the Appellate Authority has gone wrong in assuming that wherever there is no express prohibition against transfer,power to transfer has to be implied.I think,there is force in that contention.It is also contended by counsel for Sri Hameed that the plea of mala fides has not been properly considered by the Appellate Authority.Two circumstances,it is said,are relevant in determining the question of mala fides;one of them is that the transfer was effected soon after the settlement reached between the workmen and the employees of M/s Popular Automobiles on the one part and the employer on the other in furtherance of some demands,to press home which there was agitation resulting in a lock out.Since the petitioner as the Vice -President of the Employees ™Union,is said to have taken a very important role in that agitation,the transfer is said to be a consequent act of victimisation.The second is that Sri Hameed was working as Sales Promoter in the Ernakulam branch and if the transfer was to be effective the petitioner had to be Sales Promoter in the Bangalore branch,but there was no Sales Office at Bangalore.

(3.) IT is open to any employer to stipulate as one of the terms of service the right to transfer the employee to any one of the offices of the said employer.If that is done,no question of the right of the employer to transfer the employee will be in controversy since it will then be within the power of the employer to transfer the employee in accordance with the contract of service.If there is no such specified term in the service conditions,then,one will have to look into the attendant circumstances to find out whether the right of transfer of the employee was understood as an implied term or condition of the contract of service.There may be cases where the very nature of the employment may require periodical transfers.The employees working in certain employments would anticipate such transfers in the usual course.Therefore,the question whether the employer has a right to transfer his employee is a matter to be determined on the facts and circumstances of each case.It cannot be said that the right to transfer an employee is a right inherent in every employer and that irrespective of the absence of any term in relation thereto either express or implied,the employer is free to transfer an employee to any office or concern of his.The question in each case would ultimately depend upon the overall assessment of the circumstances of the case and it may not be possible to lay down any straight jacketed formula,to determine the question whether the right of transfer is implied in a contract of service.