T V SUNDARAM IYENGAR Vs. SANJAY KUMAR JADHAV

JUDGEMENT

(1.) Petitioners by Shri K.N.Gupta, senior advocate with Shri Girdhari Singh Chouhan, advocate. Respondents/employee by Shri B.P. Singh and Shri Alok Sharma, advocate. As common questions and orders identical in nature passed by the Industrial Court are challenged in both these petitions being W.P. Nos. 136/2005 and 137/2005, they are being disposed of by this common order. On the ground that services of respondent/employees are required at Indore and Rewa in view of the requisition Annexure-P/6 dated October 11, 2004 received in the matter, respondents/ employees were transferred to Rewa and Indore respectively by orders of transfer Annexure-P/2 dated October 26, 2004. Challenging the aforesaid transfer orders to be illegal on the grounds of mala fide, contrary to their service condition and being by expressing certain personal difficulties in the matter pertaining the education of their children being adversely affected by transferring them in mids of the academic session both the employees filed applications under Section 31 read with Sections 61 and 62 of the M.P.I.R. Act before the Labour Court No. I, Gwalior. Along with the application challenging the order of transfer application under Section 107, M.P. Industrial Relations Act, 1960 was filed seeking stay of the order of transfer. Notices were issued, replies were filed by the respondents-employee and on the basis of the material and documents that came on record Labour Court vide order Annexure-P/7 dated December 9, 2004 passed a common order in both the cases holding that no prima facie case is made out. It was held by the learned Court that transfer of the employees are in accordance with the terms and conditions of their appointment, mala fide pleaded, has not been established and finding no ground available after assessment of prima facie case, balance of convenience and irreparable loss in favour of the employees rejected their prayer for stay. Being aggrieved by the aforesaid orders, respondents/employees preferred Miscellaneous Application purported to be under Section 67 of the M.P. Industrial Relations Act before the Industrial Court, Gwalior vide Annexure-P/8. The aforesaid applications were allowed by the impugned order Annexure-P/9 dated January 4, 2005 and holding that the transfer in the mids of the session is contrary to the observations of the Supreme Court in the case of Director of School Education, Madras and others v. O. Karuppa Thevan and another, 1997 MPLSR 657. Industrial Court interfered in the matter and directed for stay of the order of transfer. Being aggrieved by the aforesaid order of Industrial Court, this petition has been filed by the petitioners. Shri K.N.Gupta, learned senior counsel inviting my attention to terms and conditions of appointment of the employees as contained in their order of appointment Annexure-P/1 argued that contract of appointment stipulates a condition of transfer from one Branch to another, from one department to another and as transfer in the present case was necessitated because of the requirement of trained mechanics in Indore and Rewa and keeping in view the requisition received vide Annexure-P/6, the respondents- employees were transferred in the interest of administration. It is stated that wrongly applying the judgment in the case of Director of School Education (supra) Industrial Court committed material irregularity in interfering in the matter. Shri K.N.Gupta, learned senior counsel argued that provisions of M.P.I.R. Act are not applicable to the petitioner/establishment, no mala fide was proved and ignoring the well settled principle of law with regard to judicial review in a matter of transfer placing reliance on the following judgments, Shri Gupta, learned senior counsel argued that interference made by the Industrial Court was not proper. The judgment relied upon by learned senior counsel are: Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and others, 2004 LLR 1103, Public Services Tribunal Bar Association v. State of U.P. and another AIR 2003 SC 1115: 2003 (4) SCC 104, State of Rajasthan and others v. Anand Prakash Solanki, AIR 2003 SC 3849 : 2003 (7) SCC 403.

(2.) Refuting the aforesaid Shri B.P.Singh, learned counsel appearing for respondents- employees have filed the reply and have contended that considering the provisions of Section 1(3) of the M.P. Industrial Relations Act and keeping in view the law laid down by the Bench of this Court in the case of Bharat Chand Chaturvedi v. State of M.P. and others, 1993-II-LLJ-412 (MP) contention of the petitioners that M.P.I.R. Act does not apply is not correct. Pointing out the total number of employees working in various offices and Branches of petitioners/establishment in the State of M.P. respondents have tried to demonstrate that the provisions of M.P.I.R Act are applicable to petitioners establishment, being an "Engineering Industry" as included in the schedule to the M.P. Industrial Relations Act. That apart, bringing on record the order of suspension issued in case of employees so also the action taken for suspending them illegally for a period of 10 days contrary to the provisions of Standard Standing Orders. Shri B.P.Singh, learned counsel argued that mala fides are established in the matter and Industrial Court having exercised its inherent jurisdiction interference into the interlocutory order at this stage by this Court exercising power under Article 227 of the Constitution is not warranted. It is the case of the respondents that once it is found that transfer is being effected in the mids of the academic session, no interference is called for. Accordingly, learned counsel supported the order passed by the Industrial Court and sought dismissal of this petition.

(3.) I have heard learned counsel for the parties and perused the records. The question of applicability of provisions of M.P.I.R. Act need not be looked into by this Court in these proceedings the same has to be considered by the Labour Court where the applications filed by respondents are pending adjudication on merits. At this stage this Court is only required to consider as to whether exercise of power of interference made by the Industrial Court while considering an application under Section 67 of the M.P.I.R. Act was in accordance with law or not. A perusal of the order passed by the Labour Court dated December 9, 2004 indicates that Labour Court in Para 5 has formulated three questions while deciding the application under Section 107 of the M.P.I.R. Act. Labour Court has assessed the prima facie case, balance of convenience and irreparable loss, each and every principle required for grant of injunction has been assessed and it has been held by the Labour Court that transfer is a condition of service, mala fide are not established and accordingly finding none of the three ingredients required for grant of injunction being available rejected the application under Section 107 of M.P.I.R. Act.