K.N. Singh, J.
1. Indian Air Gases Limited manufacturers of oxygen and dissolve actyiene gases at its factory at Moghalsarai in Varanasi district. It has its registered office at Kanpur. Air Gases Mazdeor Sangh is the union of the employees working in the factory at Moghalsarai. Petitioners Nos. 2 to 11 are the employees of the respondent-company who have been working in the factory at Moghalsarai ever since their employment. In September, 1975, the management of the respondent-company transferred petitioners Nos. 2 to II from its factory at Moghalsarai to its head office at Kanpur under Clause 8(b) of the standing orders. The standing orders proposed by the respondent-company were certified by the certifying officer on 23rd July, 1975, under the Industrial Employment (Standing Orders) Act, 1946. The union, namely, petitioner No. 1, as well as the affected employees, petitioners Nos. 2 to 11, preferred appeal before the Industrial Tribunal (1), Allahabad, under Section 6 of the Industrial Employment (Standing Orders) Act, 1946, against the orders of the certifying officer. The Industrial Tribunal by its order dated 24th October, 1975, rejected the appeal on the ground of delay in filing the appeal. Aggrieved, the petitioners filed this petition under Article 226 of the Constitution challenging the validity of the order of the certifying officer, the Industrial Tribunal as well as the transfer of the petitioners Nos. 2 to 11 to Kanpur.
2. The Industrial Employment (Standing Orders) Act, 1946, makes it obligatory for framing of standing orders by all industrial establishments employing 100 or more workers. The employers arc required to define the conditions of service in the establishment with certainty and to reduce them to writing and to get them compulsorily certified with a view to avoid unnecessary industrial disputes. Section 3 of the Act requires the employees of industrial establishments to submit to the certifying officer copies of the draft standing orders proposed by them for adoption in their industrial establishment. Subjection (2) requires that in the draft standing orders provision should be made for the matters set out in the Schedule to the Act. Where model standing orders are prescribed, the draft standing orders are required to be in conformity with those model standing orders. Section 2(g) defines standing orders, which means rules relating to matters set oat in Schedule. Section 3(2) read with Section 2(g) requires framing of standing orders with respect to matters provided in the Schedule to the Act. The Schedule contains 10 different matters, i.e., classification of workmen, hours of working, shift working, attendance, procedure for grant of leave and holidays, admission to factory gates and search, closure and reopening of sections and temporary stoppage of work, termination of employment, suspension and dismissal, means of redress for wrongful exactions by the employer or his agent. In addition to the items mentioned in the Schedule the appropriate Government, namely, the Central Government and the State Government, as the case may be, is empowered to add any other item to the Schedule.
3. Section 4 lays down that the certifying officer shall certify the standing orders framed by the employers provided the standing orders are in respect of items mentioned in the Schedule and the same are otherwise in conformity with the provisions of the Act. The said provision further requires the certifying officer and the Appellate Authority to adjudge the fairness or reasonableness of the provisions of standing orders. Prior to 1956, the certifying officer or the Appellate Authority had no jurisdiction to adjudicate upon the fairness or reasonableness of the standing orders proposed by the employers but after the Act was amended in 1966, it laid down mandatory duty on the certifying officer to adjudicate upon the fairness or reasonableness of the provisions of the standing orders. Section 5 prescribes procedure which the certifying officer has to follow before certifying the draft standing orders. He is required to issue notice to the employers and workmen and to invite objections, he is to give opportunity of hearing to the workmen and to the employers and thereafter he has to decide whether or not any modification or addition to the draft submitted by the employer is necessary. The certifying officer has power to certify the draft standing orders with modifications, if any. He is then required to send copies of the certified standing orders to the employers and to the trade unions or other representatives of the workmen. Any person aggrieved by tae order of the certifying officer is entitled to file appeal before the Appellate Authority, within 30 days of the service of the certified standing orders. The Appellate Authority, is also empowered to frame any additional standing orders or to amend the same or make men modifications as it may consider necessary.
4. The Amending Act No. 36 of 1056 amended Sections 3, 4 and 10 of the Act which conferred power on the certifying officer and the Appellate Authority to adjudicate on the reasonableness of the standing orders. Prior to the amendment the certifying officer had no such jurisdiction. After the 1956 amendment even workmen are entitled to apply for modification of the standing orders. The Act, after the said amendment, has imposed a duty on the citifying officer to consider the reasonableness and fairness of the standing orders before certifying the same. The Certifying officer is under a legal duty to consider that the standing orders are in conformity with the Act. If the certifying officer finds that some provisions of the standing orders as proposed by the employers relate to matters which are not included in the Schedule, if he finds that some provisions are unreasonable he must refuse to certify the same. Certification of any such standing order would be without jurisdiction. The Parliament has laid this mandatory duty on the certifying officer which he must discharge in a fair and quasi-judicial manner, it is in the background of these observations that the questions raised in this case are necessary to be considered.
5. There is no dispute between the parties that the Schedule to the Act does not contain any entry relating to transfer of workmen from one unit to any other unit. The appropriate Government, namely, the Uttar Pradesh Government, has not framed any rules nor added any item to the Schedule relating to transfer of workmen from one place to the other. In the absence of any such provision in the Act it is not open to the employer to make provision for the transfer of its workmen and the certifying officer had no jurisdiction to certify such a standing order.
6. In Rohtak and Hissar Electric Supply Co. v. State of Uttar Pradesh 1966 II L.L.J. 330 : (1965) 29 F.J.R. 76, the question whether it was permissible for the employers to frame standing orders in respect of matters not mentioned in the Schedule to the Act was considered. The Supreme Court held that the employer cannot insist upon adding a condition to the standing orders which related to a matter not included in the Schedule. In Associated Cement Cos. Ltd. v. P.O. Vyas : (1960)ILLJ563SC , the Supreme Court held that the cumulative effect of Sections 3, 4, 5, and 15 was that the certifying officer has to be satisfied that the draft standing orders deal with matters set out in the Schedule and are otherwise in conformity with the Act. This requirement clearly implies that the draft standing orders must be in conformity with the Act. In Bagalkot Cement Co. v. R.K. Pathan 1962 : (1962)ILLJ203SC , validity of the standing orders proposed by the employers and certified by the certifying officer was challenged on the ground that the certifying officer exceeded his jurisdiction in certifying the standing orders with respect to a matter not covered by the Schedule. The Supreme Court repelled the contention on the ground that the standing orders related to conditions of leave and holidays which was covered by the topic contained in Clause (5) of the Schedule but the Supreme Court observed that no standing orders could be certified by the certifying officer unless it related to one of the topics mentioned in the Act. In S.K. Ghosh v. Orissa State Electricity Board (1959) 41 F.J.R. 595, a Division Bench held that the certifying officer has do jurisdiction to certify standing orders in reaped of a matter not included in the Schedule to the Act.
7. These lend support to our conclusion that the certifying officer has no jurisdiction to certify standing orders in respect of a matter not indluded in the Schedule to the Act. It needs no argument that the matter relating to transfer is not Included in the Schedule to the Act and the State Government has not added any such item to the Schedule and as such neither the employers had any right to frame standing orders for transfer of its employees to any other place outside the factory, nor the certifying officer had jurisdiction to certify the same.
8. Sri S.C. Khare, learned Counsel for the respondent-company, urged that the matters enumerated in the Schedule to the Act are not exhaustive. Instead the Schedule which it is obligatory to mate provision in the standing orders and the Act does not contain any bar against framing of any standing order making provision for other matters not mentioned in the Schedule. He further urged that if any such provision is made, it is liable to be modified on the motion of either the employer or of the workmen under Section 10(2) of the Act. That being so, the aggrieved party may move for amendment of the standing orders. Sri Khare drew support for his contention from the observations made by Balakrishna Aiyer J., in 'Hindu', Madras v. Hindu Office Employees Union, : (1960)ILLJ187Mad . We are unable to accept the contention. As already discussed, Sections 2(g) and 3(2) and the Schedule to the Act if read together do not leave any room for any doubt that the standing orders cannot make provision for matters not covered by the items mentioned in the Schedule to the Act. No doubt, the observations made by Balakrishna Aiyer, J., in the case of 'Hindu', Madras, (supra) support the respondents contention, but we are unable to accept that view. As already discussed, the Supreme Court has taken a contrary view in Rohtak and Hissar Electric Supply, (supra) and Associated Cement Company case (supra). In the case of S.K. Ghosh, (supra) a Division Bench of the Orissa High Court considered the observations made by Balakrishna Aiyer, J., but it did not accept that view. We prefer the view taken by the Orissa High Court In the case of S.K. Ghosh, (supra) as it is consistent with the view taken by the Supreme Court in the case noted earlier.
9. Sri Khare then urged that the Supreme Court has not decided this question and has left the question open. He placed reliance on the observations made in the U.P. Electric Supply Co. Ltd. v. T.N. Chatterjee 1972 II L.L.J. 9 (supra). It is true that in the case of T.N. Chatterjee, the Supreme Court referred to the decision of the Madras High Court In the case of 'Hindu', Madras, (supra) and the decision of the Orissa High Court in the case of S.K. Ghosh (1969) 41 F.J.R. 595, and observed that it was unnecessary to decide the question as to whether in the absence of any item in the Schedule any standing order could be framed in respect of that matter which may be certified by the certifying officer as fair and reasonable. The Supreme Court did not decide the question as it was not necessary for the purpose of that case. On the other hand, a Constitution Bench of the Supreme Court in the case of Rohtak and Hissar Electric Supply Co. (supra) considered the question squarely and observed thus :
Then in regard to the matters which may be covered by the standing orders, it is not possible to accept the argument that the draft standing orders, can relate to matters outside the Schedule. Take for in-stance, the case of some of the draft standing orders which the appellant wanted to introduce 3 these had reference to the liability of the employees for transfer from one branch to another and from one job to another at the discretion of the management. These two standing orders were included in the draft of the appellant at Nos. 10 and 11. These two provisions do not appear to fall under any of the items in the Schedule; and so, the certifying authorities were quite justified in not including them in the certified standing orders.
The above observations are directly in point, relevant for the purposes of this case. It is significant to note that the decision of the Supreme Court in Rohtak and Hissar Electric Supply Co., (supra) was not placed before the Supreme Court in U.P. Electric Supply Co. v. T.N. Chatterjee case (1972) 42 FJR 1.
10. Sri S.C. Khare, learned Counsel for the respondent-company, urged that after the amendment of the Act in 1936 the legal position has considerably changed. Since the certifying officer is empowered to adjudicate upon the reasonableness and fairness of the 4raft standing orders, it is permissible to frame standing orders which are not specifically covered by any of the topics mentioned in the Schedule. If the standing orders make provision in respect of matters which the employers consider to be necessary for the purpose of maintaining efficiency in the industrial establishment and if the certifying officer and the Appellate Authority is satisfied about the fairness or reasonableness of the provisions and certifies the same such standing orders would not be invalid merely because there is no specific provision in the Schedule relating to that matter. He placed reliance on Mohd. Yasin v. Presiding Officer, Industrial Tribunal, Orissa (1975) Lab. I.C. 933. It is not necessary to consider this case in detail. The Division Bench of the Orissa High Court noted the divergence of opinion between the Madras High Court and Orissa High Court and the observations of the Supreme Court in T.N. Chatter Jee's case (supra) and thereafter it expressed its opinion that the view that the standing orders relating to matters outside the Schedule would be invalid appeared to be correct, but the Bench observed that in the case of Mahd. Yasin (1975) Lab. I.C. 933, it was not necessary to decide that question. It is thus clear that in Mohd. Yasin's case, (supra) the Orissa High Court did not express any final opinion on this question. The petitioners cannot, therefore, draw any support from the observations made therein.
11. But, even assuming that the contention that after the amendment of the Act in 1956 the certifying officer has jurisdiction to certify the standing orders which may be found to be fair and reasonable in respect of the matters outside the Schedule is correct, the impugned standing orders cannot be held to be valid as the certifying officer did not apply his mind to the reasonableness or fairness of the impugned Clause 8(b) of the standing orders. Clause 8(b) as certified by the certifying officer, is in the following words:
8(b) Shift may be alternated at tot discretion of the employer or its manager and a workman may be transferred from one job to another or from one shift to another or from one factory to another of the employer by its manager or the employer.
This clause empowers the employers or its manages to transfer a workman from one job to another job, or from one shift to another or from one factory to another under the same management. The certifying officer certified the aforesaid clause and in pursuance of the said clause the petitioners have been transferred from Moghalsarai factory to the head office at Kanpur. A perusal of the order certifying the standing orders (annexure to the petition) indicates that the certifying officer did not apply his mind to the reasonableness of the same before certifying the aforesaid clause. He failed to consider the question that the matter of transfer was outside the Schedule to the Act, he further failed to consider the fairness or reasonableness of Clause 8(b). It was urged on behalf of the respondent-company that since the workmen failed to appear on the date of hearing the certifying officer was justified in certifying the standing orders. In this connection, it is necessary to note that the absence of the workmen or the consent of the employees does not affect the validity of the certification proceedings. Even if the employees give their consent to the proposed standing orders and even if they are absent it is the duty of the certifying officer to consider the relevant aspects before putting his stamp on the draft standing orders.
12. The scheme of the Act as discussed earlier clearly shows that if and when any modification is proposed by the employers in the standing orders regulating the terms and conditions of employment of its workmen it is the mandatory duty of the certifying officer to consider its reasonableness before certifying the same The Legislature has issued a mandate to the certifying officer to consider the reasonableness of the proposed standing orders as well as to ascertain that the terms contained therein are in accordance with the Act. The certifying officer is required to perform this mandatory duty even in the absence of the workmen or their representatives. In many cases the workmen may not be organised enough to have a union or to have effective representation. In that event their interest is to be looked after by the certifying officer. In the instant case, Clause 8(b) of the standing orders conferred power on the employers to transfer their workmen from their factory at Moghalsarai to any other factory or unit. Before certifying Clause 8(b) the certifying officer should have ascertained the question as to whether the employers had any other factory at any other place and if so whether the nature of the work and the conditions of employment were the same as they existed at Moghalsarai. If the certifying officer had applied his mind he would have certainly come to know that there was no other factory owned by the employers at any other place and as such no useful purpose could be served by empowering the employers to transfer their workmen from their factory at Moghalsarai. The certifying officer further failed to realise that in feet the employers acquired sanction through the aforesaid Clause 8(b) of the standing orders to transfer the workmen from Moghalsarai factory to its head office at Kanpur even though there was no factory at Kanpur. The certifying officer failed to address himself to all these relevant questions. He failed to consider the question that the proposed provision for the transfer was not contained in the Schedule nor any provision for transfer of workmen from one unit to the other had been added to the Schedule by the appropriate Government, namely, the State Government of Uttar Pradesh. The order of the certifying officer is clearly illegal and liable to be quashed. Since the original order of the certifying officer is vitiated, the appellate order which merely affirmed the order of the certifying officer also stands vitiated.
13. It was then contended on behalf of the workmen that the impugned transfers were made mala fide by way of victimisation. The petitioners' allegation that there is no factory at Kanpur owned by the employers, instead there is only a registered office where only 5 persons are employed, is not disputed in the counter-affidavit filed by the respondent-company. The petitioners have further asserted that in the past some workmen were transferred from Moghalsarai factory to Kanpur office and later on their services were terminated on the ground that there was no work for them in the office, in the background of these facts the petitioners have asserted that the impugned transfers were made main fide to victimise them with an ulterior motive to terminate their services at Kanpur. The employees have failed to give any reasonable explanation for the transfer. It was contended on their befalf that it was inherent right of the respondent company to transfer its employees from one unit to another and in proceeding under Article 226 of the Constitution this Court cannot go into the question of validity of the transfer orders.
14. Normally, the general law of master and servant contemplates inherent right in the employers to transfer its employee form one place to the other, but this rule is not an absolute one. The matters relating to transfer of Government servants are generally regulated by statutory rules and orders, but in case of an employer of a private servant it is open to the employer to transfer its employee to any of its office or factory or to lay down any condition of service which it may think proper. Prior to the enactment of the Industrial Employment (Standing Orders) Act, an industrial employer was free to lay down service condition of its employees without there being any legislative or statutory restriction as a result of which it was found that unscrupulous employers exploited the workmen and harassed them in various ways. The Central Legislature, therefore, considered it necessary to enact law regulating the framing of service conditions by means of standing orders defining conditions of recruitment, discharge, disciplinary action, holiday or leave, etc. This has gone a long way towards minimising a long friction in the management and the workmen of the industrial undertakings. The 1946 Act is a social legislation which placed restrictions on the right of a master to lay down conditions of service of its employees. Since the Act does not empower the employer to frame standing orders for the transfer of its workmen from one place to another place, the right of employers to that extent is taken away and therefore, the respondent-company has no inherent right to transfer the petitioners-workmen from Moghalsarai to Kanpur.
15. It is true that ordinarily a mere order of transfer made by an employer is not amenable to challenge under Article 326 of the Constitution, but, in the instant case, the petitioners have challenged the validity of Clause 8(b) of the standing orders in pursuance of which they were transferred If Clause 8 (b) is struck down any consequential orders issued under that clause is bound to fall and it is, therefore, open to the petitioners to maintain the petition to challenge the transfer orders also.
16. But, even assuming that Clause 8(b) is valid, the employers had no right to transfer the petitioner-workmen from its factory in Moghalsarai to its office at Kanpur. Clause 8(b) confers power on the employers and its manager to change the shifts of workmen or transfer them from one job to another and transfer them from one shift to another and from one factory to another. Thus, even under Clause 8(b), a workman employed in the factory at Moghalsarai is liable to be transferred to another factory of the employers. The petitioners Nos. 2 to 12 have, however, not been transferred from Moghalsarai to any other factory of the employers, instead they have been transferred to the head office at Kanpur. Ex facie Clause 8(b) does not empower the employers to transfer any workman from the factory at Moghalsarai to its head office at Kanpur. The impugned transfer made by the employers were outside the scope of Clause 8(b) of the standing orders. The employers have failed to give any reasonable explanation for this transfer. In the circumstances, there is no escape from the conclusion that petitioners Nos. 2 to 11 were transferred to Kanpur on extraneous considerations with a view to victimise them.
17. In view of the above discussion, we allow the petition and quash the order of the certifying officer dated July 23, 1975, the order of the Appellate Authority dated October 24, 1975, and also the impugned orders of transfer of petitioners Nos. 2 to 11. The petitioners are entitled to their coats.