1. These two writ petitions may conveniently be dealt with together. The parties will be referred to as they are arrayed in writ Petition No. 3610 of 1974. The petitioner is a private limited company carrying on business of goods carriers having its regional office at Madras and branch offices all over India. On 4th January, 1973, it issued orders of transfer, to the following clerks:
1. K.G. Gopinath; 2. V. Gurumurthi; 3. S.S.N. Md. Hussain; 4. P. Vasu; 5. M.S. Sethumadhavan; and 6. A.R. Md. Hussain.
They were transferred to several places, like Nagpur, Bangalore, Delhi, Bombay and Jabalpur. The workmen against whom orders of transfer were passed, represented to the management to reconsider the order. But, according to the management, these transfers were made for administrative convenience, and they were done with reference to the exigencies as they then existed Dispute arose concerning this. There were conciliation proceedings, and the Conciliation Officer sent a failure report, whereupon by G.O. Rt. No. 2047 dated 27th September, 1973, the dispute was referred to the Labour Court, Madras (first respondent). The two issues were:
1. Whether the demand of the workmen for the implementation of the recommendations of the Second Wage Board for Road Transport Industries was justified, if so, to what relief they will be entitled ?
2. Whether the transfer bf the following workmen from Madras to other places is justified; if not, to what relief each will be entitled:
Thiru K.G. Gopinath; Thiru V. Gurumurthi; Thiru S.S.N. Md. Hussain; Thiru P. Vasu; Thiru M.S. Sethumadhavan; and Thiru A.R. Md. Hussain.
This was taken up as Industrial Dispute No. 163 of 1973. As regards the transfer of five workmen with which alone we are concerned in this writ petition, the Labour Court held that the transfer of workmen from Madras to other places was unjustified and would amount to unfair labour practice. I may at this stage mention that one of the workmen, K.G. Gopinath, did not press his case. Therefore, what remains for consideration is only the case of the other five workmen. It is this award that is challenged in the writ petition. The affidavit in support of the petition takes the stand that the order of the Labour Court proceeds on the singular basis that the orders of transfer came to be passed on one and the same day, and, therefore, it would amount to unfair labour practice. This approach is erroneous. In the counter it is stated that, apart from the fact that the orders of transfer came to be passed on one and the same day the Labour Court had also taken into account the undue hardship that might be caused to the workmen concerned and that too when they were not given time enough to join duty at the respective places where they were transferred, and certainly it would be open to the Labour Court to interfere in such a case.
2. Writ Petition No. 5240 of 1975 is to quash the order of the Labour Court made in I.A. No. 89 of 1975 in the said Industrial Dispute 163 of 1973 wherein the workmen contended that after the orders of transfer were held to be illegal, further relief ought to have been granted. The management opposed this stating that it was not a clerical mistake which could be corrected under the concerned rules; the Labour Court upheld the objection of the management.
3. Mr. M.R. Narayanaswamy, learned Counsel for the petitioner, submits that the Labour Court, after having set out the correct legal position, has proceeded to hold that the orders of transfer were illegal and would amount to unfair legal practice, on only one ground, viz., that all the orders came to be passed on one and the same day. According to the learned Counsel, if really the management is the best person to judge how to distribute its manpower and the Tribunals are by no means suited for making decisions in matters of this nature, certainly the order of the Labour Court is liable to be set aside. The hardships which have been enumerated in the order would be attendant to every case of transfer, and that is no reason to hold that the orders are actuated by mala fides.
4. Mr. Sanjay Mohan, learned Counsel for the respondent, would submit that in this case having regard to the fact that on one and the same day all the six ordinary clerks were transferred under the guise they were skilled workmen, this would amount to unfair labour practice. It is his further submission that where an order of transfer entails undue hardship to the workers, it is open to the Labour Court as well as this Court exercising writ jurisdiction to interfere. In support of this submission he relies on Central Fisheries Corporation Lid. v. Additional Labour Court, Madras (1974) 46 F.J.R. 212. Lastly, it is contended that the management relied upon the standing orders for issuing these orders of transfer, and if there are no standing orders, the transfers are liable to be set aside.
5. On a careful reading of the award of the Labour Court, it appears to my mind that after having set out the correct legal position, the matter has been approached in a lay way rather than on a legalistic view. The reason why I hold so is that in paragraph 14 the award proceeds to enumerate the difficulties of workmen in securing accommodation in far off places, that they have to look after their families and that these transfers would add to the plight of the workmen and they would not be in a position to make both ends meet. This will be so in every case of transfer. All these can hardly be grounds for holding that the orders of transfer are actuated by mala fides. Further, if, as has been correctly stated by the Labour Court after reference to the relevant case-law, that it is not possible for Industrial Tribunals to have before them all the materials relevant for the purpose of transfer, and even if those can be made available, the Tribunals are by no means suited for making decisions in matters of this nature, certainly the Labour Court ought to have refrained from holding that there was any victimisation. On the contrary, it merely takes into account the fact of the orders being passed on one and the same day. It might well have been so, due to the exigencies, and it is not for the Labour Court to sit in appeal over those exigencies and find out whether they demanded this course. As to how best to secure efficiency of service and as to whether it would be desirable in the interests of administrative convenience to effect transfers are all matters which the management alone could decide.
6. One other reason that is adduced is that the workmen were warned by the manager not to change the union, and in support of this finding the Labour Court relies on the evidence of W.W. 1. But earlier, with regard to the same, it found that there was no documentary evidence to support this aspect of the case. Therefore, these findings are mutually contradictory. Then again the tact that they were not given enough time to join the posts to which they were transferred is no ground to hold that it is a case of victimisation.
7. The case relied on by the learned Counsel for the respondent, viz., Central Fisheries Corporation Ltd. v. Additional Labour Court, Madras (1974) 46 F.J.R. 212, is rather an extreme one. Having regard to the peculiar circumstances, in that the wife of the workman was expecting a baby, the order of transfer was held to be actuated by mala fides. But, in this case, no such extreme circumstance is there from which the inference of victimisation could be deduced.
8. I am unable to accept the argument of the learned Counsel for the respondent that since the management relied upon the standing orders for transferring the workmen, unless there are standing orders to that effect, it could not do so. It is well settled that so long as the management has got the power, the power in the instant case being power inherent in the nature of employment, as has been repeatedly laid down by this Court, it does not matter whether the management resorts to that power or the standing orders. This is on the basis that there are no standing orders to that effect, and on that score the order does not become illegal. For all these reasons, I have no other option but to set aside the impugned award in so far as it relates to the transfer of the five workmen (except K.G. Gopinath) and it is accordingly set aside. The matter is remitted for fresh consideration in the light of the principles stated above and also with reference to the case-law set out in para. 10 of the impugned order.
9. Turning to Writ Petition No. 5240 of 1975, inasmuch as I have set aside the impugned award and remitted the matter to the Labour Court for fresh consideration, the impugned order in this case also will stand set aside, and if. ultimately, the transfer orders are held to be illegal, the workmen will be entitled to such relief as are due to them in law. I make it clear that it is not open to either of the parties to lead in fresh evidence, and the matter will be decided only on the evidence on record.