Judgment:
R.J. Kochar, J.
1. The Petitioners are aggrieved by the impugned interim order passed by the Industrial Court under Section 30(2) read with Section 28 and Items 3, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act), in the Complaint filed by the Complainant Union, the Respondent herein, challenging the transfer orders passed by the Petitioners transferring and proposing to transfer 20 workmen enlisted with Complaint, on and from September 30, 2000 as averred in the Complaint.
2. The Petitioners had strongly opposed the Complaint and denied the allegations of unfair labour practices.
3. Both the parties filed their documentary evidence. I may mention here that the Petitioners did clearly understand and proceeded on the basis that the Complaint of unfair labour practices was filed on behalf of 20 workmen named in the Complaint including Ms. Suman Sarswat and Mr. Jain, who are presently contesting the Petition. From the record and pleadings there is no manner of doubt in my mind that the Petitioners were very well aware of the fact that the aforesaid two workmen had also challenged their transfer orders. This fact is also borne out from the averments made in the Petition. There is therefore no merit in the contention of Shri Cama, the learned counsel for the Petitioners, that there was no mention of the names of these two workmen in the Complaint, and therefore, the whole order of the Industrial Court is vitiated. Both the parties understood and proceeded on the basis that the transfer of 20 workmen including Ms. Sarswat and Mr. Jain was under challenge. I may also mention that the Petitioners have not annexed in this Petition the complete copy of the Complaint including its annexures for the reasons best known to them. But from the annexures it becomes clear on whose behalf the complaint was filed and which were the impugned orders of the transfers.
4. In construing the pleading the Supreme Court has cautioned to keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. In the Judgment of Sayed Dastgir v. T.R. Gopalkrishnasetty reported in : AIR1999SC3029 , the following observations of the Supreme Court must he always borne in mind.
'In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form.'
5. In the case of Santokh Singh and Anr. v. Mahant Iqbal Singh reported in : AIR2000SC3155 , Supreme Court has again cautioned against the adoption of hyper-technical approach while construing the pleading of the parties. The following observations are relevant and extremely instructive for our purpose in the present matter involving a case of specific relief: -
'It is correct that such a declaration should have been sought. Normally, in the absence of such a declaration, such a suit would not be maintainable. However, in this case we find that even though there was no prayer to the effect that the lease deed was not valid and/or void and/or are not binding, the necessary averments are there in the plaint. The appellants thus knew that the lease deed was being challenged. They met the challenge in their written statement. Thereafter, issues namely, Issue Nos. 4 and 5 had been framed. Evidence was led by the parties on those issues. Arguments were advanced on those issues. Therefore, this question has been agitated by the parties in all the courts. Thus even though there was no formal prayer asked for, no prejudice has been caused to the appellants inasmuch as he has not been prevented from leading evidence on this aspect and has not been precluded from raising contentions in this behalf. In our view, all that was necessary to cure the defect was an amendment by incorporating one prayer. This could have been done at any stage. In this view of the matter, and particularly, in view of the fact that we are in agreement with the findings that the property is a Trust property and that the lease in question was not for consideration or for legal necessity, we see no reason to interfere.'
I, therefore, do not find any merits in the submission of Shri Cama on the point ofpleadings.
6. Shri Cama has fairly made a statement that as far as the transfer of Ms. Sarswat is concerned she being a pregnant lady she will not be transferred until for six months after her delivery.
7. Shri Cama however, is aggrieved by the impugned order of the Industrial Court in respect of Shri Jain. According to the learned counsel, transfer was a condition of service and since there was no work available at Mumbai in view of closure of the daily Hindi Jansatta at Mumbai, he was ordered to be transferred as per the appointment order and under the exigency of work. Shri Cama submitted that there was no case of mala fides made out by the Union and Shri Jain.
8. The Industrial Court in its very well reasoned and detailed order has found a strong prima facie case in favour of the workmen on the basis of the documentary evidence and the legal position discussed by the Industrial Court. He has given cogent reasons to come to the conclusion of prima facie findings of mala fide transfer in the guise of following management policy. Besides, Shri Jain has been working as a Correspondent for Delhi Publication of Jansatta from Mumbai for Maharashtra. He sends Maharashtra News to Delhi publication. The news reports shown to me in the name of Shri Jain have proved this fact. Prima facie, itis further clear that Shri Jain has been continuing to the work as a Delhi Correspondent from Mumbai for Maharashtra and there is no case of any exigency of work to actually and physically push him out from Mumbai on the plea that there was no work available for him as a result of closure of Hindi Jansatta from Mumbai.
9. While considering the interlocutory relief application the Supreme Court has laid down the following guidelines in the case of Colgate Palmolive (India) Ltd. v, Hindustan Lever Ltd. : AIR1999SC3105 .
'Generally the interlocutory remedy by way of a grant of an order of injunction is intended to preserve and maintain in status quo the rights of the parties and to protect the plaintiff, being the initiator, of the action against incursion of his rights and for which there is no appropriate compensation being quantified in terms of damages. The basic principle of the grant of an order of injunction is to assess the right and need of the plaintiff as against that of the defendant and it is a duty of incumbent on to the law Courts to determine as to where the balance lies.
Considerations which ought to weigh with the Court hearing the application or petition for the grant of injunction are as below:-
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor;
(iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others;
(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case the relief being kept flexible;
(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case;
(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.'
Applying the aforesaid tests in my opinion the order passed by the learned Member of the Industrial Court deserves to be accepted. The fact that the Petitioner company has introduced Voluntary Retirement Scheme at Delhi is not disputed. It is another thing that no employee at Delhi has accepted the Scheme. The very fact that the management had introduced the VRS undisputedly reflects a fact that there is no work available there at Delhi necessitating the management to reduce the work force. On the contrary work is available for Shri Jain at Mumbai in Hindi Jansatta as a correspondent to cover the news from all over Maharashtra. It is pertinent to note that if someone is required to cover the news from Maharashtra for the Delhi publication of Hindi Jansatta the services of Shri Jain are necessary and required, and therefore, it would not prejudice the Petitioners at all and further in my opinion, prima facie, there is no element of exigency of work established by the Petitioners. According to me, therefore, the balance of convenience in the present matter would be in favour of Shri Jain.
10. I do not find any good and valid reason to interfere with the well reasoned interim order in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. I do not find any infirmity in the strong, prima facie view of the learned Member of the Industrial Court. Hence I reject this Writ Petition in limine.