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S. Veeriah Reddiar Vs. Presiding Officer, Labour Court - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1971)IILLJ127Ker
AppellantS. Veeriah Reddiar
RespondentPresiding Officer, Labour Court
Cases ReferredKundan Sugar Mills v. Ziyauddin
Excerpt:
- - there can be little doubt that transfer of a workman from his native place where he has worked for a long period like 30 years to a distant place at a fairly advanced age of his life would cause material prejudice. in appeal by special leave before the supreme court, it held that a bank had the right to distribute its workmen not belonging to the subordinate staff among its different branches to its best advantage and that the management of the bank is in the best position to judge how its man-power should be distributed and whether a particular transfer can be avoided or not. there is also no doubt that the management of the bank is in the best position to judge how to distribute its employees between the different branches......office at alleppey, where he worked for about two months; and thereafter he was transferred to the quilon branch. at quilon, he absented from duty without leave, which caused a break in his service. subsequently he was re-employed with effect from 14-1-1957. according to the workman he was only interviewed for appointment at alleppy; and after selection, he was first appointed at quilon and continued in the service of the petitioner till his dismissal. he denies the alleged break in service and reappointment in 1957. there is also controversy between the parties regarding the circumstances which led to the disciplinary enquiry against the workman. according to the petitioner, the workman was orally transferred from quilon to kottayam on 1-1-1964. the transfer was kept in abeyance; and.....
Judgment:

M.U. Isaac, J.

1. The petitioner is a dealer in textile goods, having his Head Office at Alleppey, and branches at Kottayam, Quilon and other places in the State. By an order dated 3-7-1964, the petitioner dismissed from his employment one D. Venkiteswara Kamath, who was a bill collector, after conducting a domestic enquiry against him. That gave rise to an industrial dispute between the petitioner and his workmen; the dispute was referred by the State Government to the Labour Court, Quilon, who by its award Ext. P-1 dated 18-12-1967 held that the dismissal of the workman was not for bona fide reasons and ordered that he should be given a compensation of Rs. 2,080/- in lieu of reinstatement. The workman was also awarded costs of Rs. 100/-. This writ petition has been filed to quash the above award.

2. It is necessary to briefly state the facts. The workman was admittedly employed under the petitioner for about 30 years when he was dismissed from service. According to the petitioner he was first appointed at the head office at Alleppey, where he worked for about two months; and thereafter he was transferred to the Quilon branch. At Quilon, he absented from duty without leave, which caused a break in his service. Subsequently he was re-employed with effect from 14-1-1957. According to the workman he was only interviewed for appointment at Alleppy; and after selection, he was first appointed at Quilon and continued in the service of the petitioner till his dismissal. He denies the alleged break in service and reappointment in 1957. There is also controversy between the parties regarding the circumstances which led to the disciplinary enquiry against the workman. According to the petitioner, the workman was orally transferred from Quilon to Kottayam on 1-1-1964. The transfer was kept in abeyance; and the workman applied for six months' leave on medical grounds on 31-1-1964. Leave was granted only for three months; and a further request for extension of leave was refused. On 11-5-1964, the workman reported for duty at the Quilon branch, when he was asked to join duty at Kottayam. The workman declined to do so, whereupon he was served with a written order dated 18-5-1964 transferring him to Kottayam. The workman refused, Two charges were framed against him, one for disobedience of the above order, and the other for attending to his own business while on medical leave. A domestic enquiry was conducted on the above charges. He was found guilty of the first charge, and acquitted of the second charge. According to the workman there was only a discussion about his transfer in January 1964; and that was dropped when he pointed out his difficulties. He was denied employment, when he reported for duty on 11-5-1964 after expiry of the leave; and on 18-5-1964 he was given the order transferring him to Kottayam. The transfer was mala fide and illegal; and it was done with the ulterior motive of indirectly terminating his services without payment of compensation.

3. The dismissal of the workman was admittedly for disobedience of the order of his transfer from Quilon to Kottayam made on 18-5-1964. The Labour Court found that at that time, the workman had a continuous service of 30 years under the petitioner at Quilon. It also rejected the petitioner's contention that the employer has the inherent right of transferring his employees from one branch of his business to another branch; and that the transfer of the workman in the instant case was done in the exigencies of business. Oh the other hand, it held that the transfer was not without mala fides and that the dismissal of the workman was not just and proper. Considering the length of his service and other circumstances of the case, the Labour Court awarded the workman a compensation of Rs. 2,080 in lieu of reinstatement. It has not been rightly argued before me that if the dismissal was wrong, the compensation awarded is unjustified or excessive. Only two contentions were urged against the validity of the award. One is the legal contention that the employer has the right to transfer his employees; and the other is that the finding of the Labour Court that the transfer was mala fide cannot be sustained on materials.

4. I shall deal first with the second contention. Though the petitioner has stated that the transfer was in the exigencies of business, he, has not disclosed circumstances, if any, which necessitated the transfer. There is no case that this workman's services were not required at Quilon or that his services were urgently or essentially required at Kottayam. The petitioner let in some evidence to show that it is the practice in his business to transfer employees from one branch to another; but that case was hot accepted by the Labour Court. It mainly relied on the fact that the petitioner charged the workman for attending to his own business during the period he was on medical leave along with the charge for disobedience of the order of transfer, and that the former charge was found unsustainable. From this, the Labour Court inferred that the petitioner was inventing misconduct against the workman to victimise him. There can be little doubt that transfer of a workman from his native place where he has worked for a long period like 30 years to a distant place at a fairly advanced age of his life would cause material prejudice. In the absence of valid reasons, such an action cannot be justified; and on the facts and circumstances of the case, the conclusion arrived at by the Labour Court on this point cannot be said to be wrong.

5. In support of the petitioner's contention regarding the inherent right of the employer to transfer his employees, counsel for the petitioner referred me to two decisions of the Supreme Court. One is the decision in Canara Banking Corporation Ltd. v. Vittal 1963--II L.L.J. 354. In that case the Canara Banking Corporation, Ltd., transferred one if its employees from the branch in which he was working to another branch, which gave rise to an industrial dispute. The Labour Court set aside the transfer holding that it materially altered the service conditions of the employee. In appeal by special leave before the Supreme Court, it held that a Bank had the right to distribute its workmen not belonging to the subordinate staff among its different branches to its best advantage and that the management of the Bank is in the best position to judge how its man-power should be distributed and whether a particular transfer can be avoided or not. The Court also pointed out that this proposition would not apply where there is reason to believe that the management of the Bank resorted to the transfer mala fide, by way of victimization, unfair labour practice or some Other ulterior motive not connected with the business interests of the Bank. On the facts of the case, the Court held that there was no reason to think that the transfer could have been avoided without any injury to Bank's interest, and that in these circumstances the fact that the transfer would work harshly on the employee does not amount to any unfair labour practice. Accordingly, it set aside the award and upheld the transfer.

6. The next decision is The Managementof the Syndicate Bank Ltd. v. The Workmen 1966--I. L.L.J. 440, That was also an appeal by special leave from the award of an Industrial Tribunal, who set aside the order of transfer of an employee of the Syndicate Bank Ltd. The award was set aside by the Supreme Court on the ground that on an analysis of the evidence, the finding of the Tribunal that the transfer of the employee was mala fide was not supported by any evidence, and that it was, therefore, perverse and defective in law. Counsel for the petitioner relied on the following passage from the above decision:

There is no doubt that the Banks are entitled to decide on a consideration of the necessities of banking business whether the transfer of an employee should be made to a particular branch. There is also no doubt that the management of the Bank is in the best position to judge how to distribute its employees between the different branches. We are, therefore, of opinion that Industrial Tribunals should be very careful before they interfere with the orders made by the Banks in discharge of their managerial functions.

The same proposition has been laid down in the Canara Banking Corporation case. I do not think that this proposition can apply to all kinds of employment, irrespective of the character of the service, nature of the business of the employer, and other relevant factors.

7. In this context, reference may be made to another decision of the Supreme Court in Kundan Sugar Mills v. Ziyauddin 1960--I. L.L.J. 266, In that case, a partnership firm, which was running a sugar mill, purchased another mill at a different place, and transferred four of its workmen to the new establishment. They declined to comply with the transfer. Thereupon, they were dismissed from service on the charge of disobedience of the order of transfer. This gave rise to an industrial dispute, and the Industrial Tribunal upheld the order of transfer. But its award was set aside by the Labour Appellate Tribunal, holding that the management had no right to transfer the workmen to a new establishment. The case was taken to the Supreme Court in appeal by special leave. The Supreme Court upheld the award of the Appellate Tribunal, holding that the right of an employer to transfer his employees is not an implied term of contract. This decision also is confined to the particular facts of the case.

8. On going through the above three decisions of the Supreme Court, it appears to me that the question whether a right of transfer is implicit in the contract of service depends upon the particular nature of the employment. In the case of a Bank, which has got branches in many parts of the country and in other similar establishments, the right to transfer may be implicit in the contract of service. But that principle may not apply to employment in ordinary commercial establishments, particularly in the case of subordinate service. It can safely be taken, unless the contrary is established, that it is not an implied term of the contract of service of a person who is appointed in subordinate service at one branch office of the employer, that he would be liable for transfer to another branch, except for unavoidable reasons. In this case, it has not been established that the transfer of the workman was for unavoidable reasons. The Labour Court has not accepted the case of the petitioner that it is the practice in the business of the petitioner to transfer subordinate employees from one branch to another. The workman has worked admittedly for 30 years in the same place and the only misconduct alleged against him is that he declined to be transferred to a fairly far off place. The petitioner's contention that the transfer was in exercise of his inherent right to transfer and it was done in the exigencies of the business cannot therefore be sustained on the facts and circumstances of the case.

9. In the result, this writ petition is dismissed. There will be no order as to costs.


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