J.K. Tandon, J.
1. The petitioner company is carrying on the business of manufacture and sale of cotton textiles in the town of Kanpur. Sri Ram Swarup Khare, respondent No. 3, is an employee of the said company. He was working at the post of Employees' State Insurance Clerk in the office of the company until 24th September, 1957 when he was transferred from that post to the post of Size-Mixing Clerk. The two posts were on the same scale of pay and Sri Khare was to continue to draw the same wages on this new post.
At the time when his transfer was so ordered, an industrial dispute, being adjudication case No. 12 of 1957, was already pending before the Industrial Tribunal in respect of allowance for additional work claimed by workmen, including Sri Khare, for the post of Employees' State Insurance Clerk. The workmen's claim was that by reason of adding of the third shift, which the mill started sometime earlier, their work load had increased and they were entitled to an allowance.
2. On the 27th of September, 1957, Sri Khare applied to the Industrial Tribunal before which the above industrial dispute was pending that he had in contravention of Section 6-E of the U. P. Industrial Disputes Act, 1947, been served with a transfer order which was unjust and improper and affected his condition of service adversely. He asked the same to be set aside and requested to be reverted to his earlier post.
The Tribunal then issued a notice to the petitioner company which in its written statement denied that there had been any alteration in the conditions of service. They also maintained that the transfer order was legal and bona fide and had been made under the ordinary power of management. The above complaint by Sri Khare was then treated as a separate case and the Tribunal, after hearing the parties, held that the transfer order had been made to bring pressure on Sri Khare to desist from espousing the cause of clerks, and further that the transfer order adversely affected the conditions of service applicable to him immediately before the commencement of the original dispute.
3. Here it may be noted that the adjudication case No. 12 of 1957, by which the dispute regarding payment of additional allowance was raised, was decided in the meantime and according to the award given in that case an allowance was attached to the post of Employees' State Insurance Clerk. The award given in this other case also thereupon directed the payment of allowance to Sri Khare, though he had in the meantime been transferred from that post.
It has further directed that he shall be kept on a post which carried a similar allowance for so long as the system for additional work in third shift was in operation in the mill and the award in adjudication case No. 12 of 1957 continued in force. The Mills feeling aggrieved by the said award have come up to this Court by this petition.
4. The grounds urged against it are these. At the time when the complaint was made by Sri Khare to the Tribunal, the additional allowance had nob been sanctioned though an industrial dispute in respect of it was pending. One of the contentions by the Mill, therefore, is that since no allowance was attached to the post held by Sri Khare at the moment he was transferred from it, the dispute raised by him on that account was in regard to something which was no more than a mere expectancy and may never be realised.
Anything which does not presently exist nor therefore, is part of the conditions of service applicable to the concerned post can be the subject of dispute contemplated by Section 6-F read with Section 6-E of the U. P. Industrial Disputes Act. The second contention is that it is the normal right of the employer to transfer an employee from one post to another so long as his normal wages are not affected and it was in exercise of that right that the transfer was ordered; the conditions of service were thus not altered, much less that they were adversely affected.
5. For a fuller appreciation of the controversy it will be of use to reproduce relevant portions or Sections 6-E and 6-F of the U. P. Industrial Disputes Act, 1947. Sub-section (1) of Section 6-E reads thus :
'During the pendency of any conciliation proceedings before a Conciliation Officer or a Board or of any proceedings before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall --
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings, or
(b) ........ .......'
Section 6-F is thus :
'Where any employer contravenes the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal, any workman aggrieved by such contravention may make a complaint in writing in the prescribed manner, to the Labour Court or Tribunal, as the case may be, and on receipt of such complaint the Labour Court or Tribunal as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with this Act, and shall submit its award to the State Government and the provisions of this Act shall apply accordingly.'
6. It is clear from the above provisions that Section 6-F, under which the Tribunal acted in this case, is attracted where the employer has contravened any provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal. The proceedings under this section can be initiated upon a contravention of the provisions of Section 6-E. Where, therefore, there is no contravention of the provisions of Section 6-E, the proceedings under this Section (6-F) will be incompetent.
Its opening clause, which qualifies the rest of its provision, abundantly lays down this condition. Thus for supporting any action under Section 6-F, one shall have to look back to Section 6-E and to ascertain whether there was indeed any contravention of its provisions.
7. Clause (a) of Sub-section (1) of this section requires that an employer shall not during the pendency of any conciliation proceedings before a Conciliation Officer or a Board or of any proceedings before a Labour Court or Tribunal, alter, in regard to any matter connected with the dispute, to the prejudice of the workmen concerned, the conditions of service applicable to him immediately before the commencement of those proceedings.
It places a restriction on the management's power in view of the pendency of the proceedings aforementioned not to alter, in regard to any matter connected with the dispute, the conditions of ser-vice applicable to the workmen. It does not affect the relationship of employer and workman existing feetween them which continues to be governed by the same conditions, though in certain respects they are subjected to the restrictions to be found in this section.
One of these restrictions with which we are concerned in this case is that the conditions of service applicable to the workman concerned immediately preceding the commencement of the dispute shall not be altered to his prejudice. Has any alteration therefore been affected in them is the question requiring an answer.
8. The undisputed facts in that connection are that the petitioner company transferred Sri Khare from the post he was holding immediately before the commencement of the proceeding to another post in their establishment. The dispute related to the fact whether any additional allowance should be payable for the additional load of work attached to the previous post consequent upon the introduction of the third shift. The dispute then pending was thus in regard to the post held by him.
The point which, therefore, will arise for decision is whether Sri Khare's employment on the post held by him was part of the conditions of service and did his transfer from it resulted in alteration of those conditions to his prejudice.
9. The law is well settled that an employer has a right to transfer an employee from one post to another not only in the interest of efficient management, but as part of the obligations which an employee undertakes by accepting the employment. Unless a different intention can be inferred from the contract of service or the employment itself on a particular post, the employee is liable to be transferred by the employer.
His liability to be transferred is thus essentially a part of conditions of service. So long as the normal wage to which he is eligible is not adversely affected, his transfer will be within the rights of the employer. There is no allegation in the present case that Sri Khare had been employed on any specified post or that the conditions of service applicable to him deprived the management of the right to transfer him to any other post.
The only complaint which Shri Khare actually put forward against that order was that by being shifted from the post of Employees' State Insurance Clerk, he was likely to loose the allowance which, in the event of the industrial dispute being decided in favour of the workman, he would have got. On the date when the transfer order was made the dispute had not been decided nor any order made attaching any allowance to his old post.
10. Thus his transfer from the above post held by him can be said to have altered the conditions of his service applicable to him in two ways. Firstly, that he was entitled to remain on that post as part of the conditions of his service and, secondly, that by his failing to continue on that post he will not be entitled to the allowance which may be sanctioned in regard to it.
As already pointed out above he was not appointed on any particular post, on the other hand, was a workman in the clerical establishment. It cannot thus be said that by change of the post held by him the conditions of service were altered. The new post to which he has been sent also carried the same wage. There was, therefore, no alteration in the normal wage admissible to him. It was the right of the management to transfer him which could not be said to alter the conditions of his service,
11. At the time when his transfer took effect no allowance was attached to the old post. By his being sent to the new post, there was no alteration in the wage also admissible to him. No doubt, a dispute was pending and according to it an additional allowance was claimed in the case of the old post, but until the dispute was decided and an allowance was also attached to it the conditions of service did not entitle Sri Khare to that amount.
12. It is also significant that the allowance asked in the case of the old post was for extra load of work which had become attached to it on account of the introduction of the third shift. In other words, it was in the nature of a compensatory allowance for the heavier duties attached to it. ,It cannot therefore, be said that by its transfer to the new post of which the duties were not so onerous, the conditions of service had been altered to his disadvantage.
Prom whatever angle, therefore, one looks at the question the transfer was in the nature of a normal consequence flowing from the nature of employment to which Sri Kliare belonged.
13. It was- contended that even though the management has the right to transfer an employee from one post to another, it cannot do so to victimise a workman, as, according to respondent, had been done in this case. For this reliance was placed on the finding arrived at by the Tribunal which held that the transfer order had been motivated on account of the part which Sri Khare was playing in prosecuting the industrial dispute.
It may be correct that Sri Share's aforementioned conduct served the motive for the order of his transfer. The finding of the Tribunal on that question which is binding on the parties in the proceedings here, also is to the same effect. What, however, has to be considered is whether the transfer for that reason altered the conditions of service in which event alone jurisdiction will be attracted under Section 6-F.
Condition of service means an agreement, stipulation or other term which qualifies, restricts or limits the rights and obligations, belonging to the employer and the employee. An element of motive is not contained in it unless so provided. Therefore, assuming that the transfer order was motivated, as urged by Sri Khare, it cannot be held to have altered the conditions of service applicable to him which per se authorised the management to transfer him.
14. In view therefore, of the finding that the respondent's transfer failed to amount to alteration in the conditions of service applicable to him immediately before the commencement of the dispute, there was no contravention of the provisions of Section 6-E. Consequently, the Tribunal was not competent to proceed under Section 6-F. Contravention of the provisions of Section 6-E is a condition precedent to the exercise of the jurisdiction under this section; it must, therefore, be held that the award given under this section by the Tribunal was without jurisdiction.
15. In view of the above finding it is not necessary to decide the objection raised by the petitioner that the Tribunal went wrong in awarding the allowance to the respondent irrespective of the post held by him for so long as the system of allowance continues.
16. In the result, therefore, the petition succeeds. The order of the Tribunal dated 13thJanuary, 1958 and published in the U. P. Gazetteof February 13, 1958 is quashed. The petitionerwill get his costs from the respondents.