KERALA RUBBER AND RECLAIMS LTD Vs. SUNNY

JUDGEMENT

(1.) THIS revision petition is against the finding recorded on preliminary issue No. 1 regarding jurisdiction of the court of the Munsiff at ernakulam to entertain the suit of the respondent, the court below having recorded a finding to the effect that it has jurisdiction to entertain the suit.

(2.) THE petitioners represent the management whereas the respondent-plaintiff is the workman. THE respondent was transferred by the management from Ernakulam to its office at Madras . THE respondent filed the suit challenging that transfer alleging that it is mala fide and is the result of victimisation and unfair labour practice and is therefore illegal and unjust. He has therefore prayed for a decree that the order of transfer is vitiated by mala fides and amounts to victimisation and unfair labour practice and hence null and void. THE petitioners-management filed a written statement, inter alia, contending that the civil court has no jurisdiction to entertain the suit, on the ground that the rights sought to be enforced by the respondent being a creature of the Industrial Disputes Act and not a common law right and as a remedy is provided under the said Act the suit is not maintainable. THE court below came to the conclusion that the dispute brought before the court is not an industrial dispute as defined in S. 2 (k) of the Act as it has not been espoused by the workmen. As there is no provision in the Act to entertain such an individual dispute it was held that the civil court has jurisdiction to entertain the suit.

(3.) SO far as the question of transfer is concerned, the legislature has made express provision to safeguard the interests of workmen. S. 25-T in Chapter V-C of the Industrial Disputes Act contains a prohibition against unfair labour practice and reads as follows: "25-T Prohibition of unfair labour practice. No employer or workman or a trade union, whether registered under the Trade Unions act, 1926 (16 of 1926), or not shall commit any unfair labour practice. " The expression "unfair labour practice" has been defined in S. 2 (ra) of the Act to mean any of the practices specified in the Fifth Schedule to the Act. The Fifth Schedule enumerates the various unfair labour practices statutorily recognised. Item No. 7 of the Fifth Schedule which is relevant may be extracted as follows: 7. To transfer a workman mala fide from one place to another, under the guise of following management policy. " Thus it becomes clear that there is a statutory prohibition engrafted in the Industrial Disputes Act prohibiting transfer of a workman mala fide from one place to another under the guise of following management policy. Thus a valued right has been created by statute in favour of the workman from being subjected to by his employer to transfers mala fide under the guise of following a management policy. This is a right which has been created by the Industrial Disputes Act in favour of the workman restricting the unfettered right of the management in the matter of effecting transfer of his employees. The obligation not to transfer a workman mala fide from one place to another under the guise of management policy was not recognised under the common law. That right is now created by the statute. The right which the petitioners claim to enforce in the suit flows from S. 25-T of the Industrial Disputes Act read with item No. 7 of the Fifth Schedule.