Nitin Ganpat Dingankar vs. The Indian Express (P) Ltd. and Ors. - (High Court of Bombay) (05 Jun 2023)

In the absence of any contrary term in the service contract, a transfer order is a normal incidence of service

MANU/MH/1971/2023

Labour and Industrial

Present Petition takes exception to the judgment passed by the learned Member, Industrial Court, Mumbai, whereby the learned Member dismissed the complaint preferred by the Petitioner alleging unfair labour practices under Items 3, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (the Act, 1971). It is submitted that, the learned Member, Industrial Court, was not at all justified in taking a view that the transfer of the Petitioner was on account of the business exigencies.

In the absence of the term to the contrary in the contract of service, a transfer order is a normal incidence of service. In the absence of a term prohibiting the transfer of an employee, ordinarily the transfer orders can not be called in question. Where transferability is a condition of service, it would be impermissible for a Court or Tribunal to interdict an order of transfer which flows from the express term of the contract. Even in the absence of an express term of contract, the Court may embark upon an inquiry as to whether the transferability is an implied term of employment.

The allegations of mala fide are easy to make than prove. In the case of Union Of India and Others Vs. Ashok Kumar and Others, the Supreme Court enunciated in clear terms that it cannot be overlooked that burden of establishing mala fide is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.

From the allegations in the complaint, it becomes abundantly clear that the Petitioner claimed to have raised the grievance regarding the fitment in the year 2012. In contrast, the Petitioner conceded in the cross-examination that he had raised the dispute regarding the fitment before the Assistant Commissioner, Mumbai, only after filing the complaint. The time lag of more than five years in the first communication allegedly made in the year 2012 to the date of the transfer order dilutes the allegation of malice in a large measure. It does not appear that apart from addressing communications to the superior officers seeking fitment in a higher grade, the Petitioner ever raised appropriate industrial dispute which could bear the weight of the allegations that the transfer order was mala fide.

Industrial Court was justified in adverting to the first communication post transfer dated 17 August 2017, wherein the Petitioner made no allegation of mala fide. Instead, the Petitioner expressed his inability to join the transferred place on account of personal and familial difficulties. It is only in the subsequent communication dated 18 August 2017, the allegations of victimization were made. Under the contract of employment, the Petitioner was liable to be transferred anywhere. The aforesaid admissions, even if they can be so termed, do not detract materially from the case of the Respondents that the administrative exigencies warranted the transfer of the Petitioner.

The challenge to the transfer order on the ground that it would adversely affect the conditions of service can hardly be countenanced where the adverse changes could not be spelled out. In the totality of the circumstances, none of the challenges to the transfer order merit acceptance. The learned Member, Industrial Court, thus, committed no error in dismissing the complaint. Resultantly, no interference is warranted in exercise of extra ordinary writ jurisdiction. Petition dismissed.

Tags : TRANSFER ORDER BUSINESS EXIGENCIES LEGALITY