S.K. Gangele, J.
1. Petitioner has filed this petition challenging the order of the Labour Court dated 21-10-2003 passed in Case No. 26/MPIR/2000 and the order of the Industrial Court dated 17-12-2004 passed in Appeal No. 1532/MPIR/03, Annexures P-6 and P-8 respectively.
2. The respondent who was working as Senior Sales Officer filed an application under Section 31(3), 61 and 62 of the MPIR Act, 1960 challenging his transfer order dated 17-2-2003. He submitted before the Court that he was performing the duties of the Senior Sales Officer and he was the office bearer of an Association. There was a dispute between the Directors of the Company and due to the aforesaid rivalry amongst the Directors, the Managing Director had apprehension that he and the Vice President Mr. Mishra were closer to the one Director Shri Zarani. On this ground he was transferred by the Managing Director. Similar application has also been filed by Vice President Mr. Mishra. The respondent was transferred vide order dated 17-2-2003 from Indore to Badodra (Gujarat) under the supervision of Navi Mumbai Branch. It is also mentioned in the transfer order that the respondent will get special location allowance of Rs. 750/- per month, in addition to the present emoluments. The petitioner denied the pleadings of the respondent. It has been contended by the petitioner before the Labour Court that the transfer order of the respondent was issued on account of administrative exigencies. The petitioner further raised an objection that the respondent was working as a Senior Sales Officer and he used to supervise and monitor activities of the marketing department of the petitioner company and his work was of promotion of sales of the product of the Company, hence he did not come within the ambit of definition of 'employee' as per Section 2 (13) of the MPIR Act, hence the application deserves to be dismissed.
3. The Labour Court vide order dated 22-2-2003 granted stay in favour of the respondent. Both the parties adduced evidence in support of their case. The respondent examined himself and one Govindram Zarani, who was a businessman and Director. Mr. Govindram deposed that the respondent No. 1 was working in the Sales Department of the Company and the Managing Director had ill-will against him. He also admitted that earlier also number of employees were transferred. The respondent in his deposition stated that he was the President of the Staff Association and he has been transferred due to quarrel between the Directors because he did not obey the instructions of the Managing Director to favour one side of the Directors of the Company.
4. The Managing Director Mr. C.D. Mendosa, on behalf of the petitioner deposed that there is procedure in the Company with regard to transfer of the employees and the respondent has been transferred under the aforesaid scheme of transfer of the company. The transfer order has been issued by him without approval of the Board of Directors because he has power and authority to transfer the employees. Another person who was examined in support of the petitioner was Parasmal. He was the Director of the company. He stated that the respondent had a qualification of Engineering and MBA Marketing. Work of the respondent was to promote sales, suggest discount and have meetings with the customers and inform to the customers about the products of the Company. The respondent had been sitting in the Sales Department and for his help there was a steno and one typist and clerk.
5. Besides the oral evidence number of documents have been filed by both the parties before the Labour Court.
6. The Labour Court has held that it can not be said that the work and job of the respondent was only sales promotion. He was also doing a clerical job, he could not (sic) be included in the definition of the 'Employee' as per the MPIR Act. The Labour Court further held that transfer order of the respondent has been issued due to internal rivalry between the Directors of the company and the respondent was victimized, hence it was malafide and penal in nature and quashed the transfer order of the respondent.
7. Against the aforesaid order, the petitioner filed an appeal before the Industrial Court. The Industrial Court also held that it can not be said that the respondent was working in the supervisory capacity, hence he comes within the definition of 'Employee' as per Section 2 (13) of the MPIR Act and the Labour Court has jurisdiction to entertain the application. The Court further held that the transfer of the respondent was malafide and penal in nature and he was transferred on account of being the President of the Association and dismissed the appeal.
8. Challenging the aforesaid findings the learned Senior Counsel for the petitioner has submitted that both the Courts have committed error of law in holding that the respondent comes within the definition of 'Employee' as per the provisions of the MPIR Act. The learned Senior Counsel further contended the findings of both the Courts with regard to transfer of the 'respondent that it was mala fide and penal in nature are also perverse. In support of his contention the learned Senior Counsel has relied on the following judgments : The Management of the Syndicate Bank Ltd. v. The Workman AIR 1966 SC 1283, Indian Railway Construction Co. Ltd. v. Ajay Kumar AIR 2003 SC 1843, H.R. Adhyanathya v. Sandoz (India) Ltd. AIR SC 2608, Mis. Godavari Sugar Mills Ltd. v. D.K. Worlikar AIR 1960 SC 842 and State Bank of India v. Anjan Sanyal and Ors. AIR 2001 SC 1748.
9. Contrary to this learned Counsel for the respondent Shri S.H. Moyal has submitted that the findings of both the Courts are as per law and this Court under Article 227 of the Constitution can not interfere with the findings of facts recorded by both the Courts. He further contended that as per the provisions of certifying standing orders the respondent can not be transferred because there is no provision of transfer of the employee in the aforesaid certifying standing order. In support of his contention Shri Moyal relied on the following judgments :J.C. Mills v. Mazdoor Congress 1989 JLJ 455, Rajasthan State Road Transport Corp. v. Krishnakant 1955 SCC (L & S) 1207, Mathur Aviation v. Lt. Governor Delhi 1977 (II) LLJ 255, Sued Ualib v. K.S. Radhakrishnan , Gujrat Steel Tube v. Mazdoor Sabha 1980 (1) LLJ 137, Mohd. Yunus, v. Mohd. Mustaquin , KaliAhmed Bashir v. Tejur Rehman , UOI v. Parmananda, ,State of U.P. v. Dharamendra, Govt. of Tamil Nadu v. A. Raj Pandian, AIR 1994 SCW 4833, Ku. Madhuri Patil v. Addl. Commissioner Tribal Development, AIR 1994 L & S 1349, Slurya Dev Raj v. Ramchandra Rai, JTI 2003 (6) SC 465, Syed TA. Naqsbhadi v. State of Jammu & Kashmir , Indian Overseas Bank v. I.O.B. Staff Canteen Worker Union (2000) 4 SCC 245, G.M. Punjab Roadways v. Jamailsingh 2004 III LLJ 30, Syed Yakub v. K.S. Radha and R.S. Saini v. State of Punjab .
10. From the facts stated above, it is clear that the respondent was working as Senior Sales Officer in the petitioner's establishment and vide order dated 17-2-2003 he has been transferred from Indore to Badodra, Navi Mumbai Branch. It has further been mentioned in the order that the respondent was entrusted the work to look after the marketing activities at Badodra and a special allowance of Rs. 750/- was also sanctioned in addition to the present emoluments to the respondent.
11. Question for consideration before this Court is that whether the respondent comes within the definition of 'employee' as per Section 2 (13) of the MPIR Act and whether the transfer order of the respondent has been passed with mala fide intentions and was penal in nature ?
12. The respondent himself admitted in his application that he was working as Senior Sales Officer. One Director Mr. Zarani, who has been examined before the Labour Court on behalf of the respondent, admitted that fact that the respondent was working in the sales department and he was doing the clerical job. The applicant in his deposition stated that his job was clerical in nature. He had no right to take decision independently, neither he can dismiss any employee nor appoint and nor sanction leave. He can not initiate the disciplinary action against any person. The Managing Director of the petitioner Company, examined on behalf of the petitioner Company stated that the respondent had qualification of MBA and Engineering degree. He was appointed for sales promotion. Another witness Mr. Parasmal, who was a Director of the Company specifically stated that work of the respondent was of generating sales, offering discounts, meetings with the customers and apprise the customers about the product of the Company, for his help one steno, one typist and one clerk have been provided by the Company. The respondent can take decisions independently and offer discounts to the customers. There is no denial of this effect by the respondent or his Counsel in the cross-examination of the aforesaid witness.
13. Section 2 (13) of the M.P. Industrial Relation Act, 1960 defines employee as under (Relevant portion):--
'Employee' means any person employed in any industry to do any skilled, unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied.' This is pan materia with the definition of workman in the Industrial
Dispute Act. Hon'ble the Supreme Court in the case of Sonipat Co-operative Bank v. Ajit Singh reported in (2005) 3 SCC Page 232 held as under with regard to inclusion of a person within the criteria of workman :--
Thus, a person who performs one of the other jobs mentioned in the aforementioned provisions only would come within the purview of the definition of workman. The job of clerk ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. The question as to whether the employee has been performing a clerical work or not is required to be determined upon arriving at a finding as regards the dominant nature thereof. With a view to give effect to the expression to do 'any manual, unskilled, skilled, technical, operational, clerical or supervisory work', the job of the employee concerned must fall within one or the other category thereof. It would, therefore, not be correct to contend that merely because the employee had not been performing any management or supervisory duties, ipso facto he would be a workman.' The Hon'ble Supreme Court in the aforesaid decision further held with regard to jurisdiction of the Industrial Court to make an award in the dispute:--Jurisdiction of the Industrial Court to make an award in the dispute would depend upon a finding as to whether the employee concerned is a workman or not. When such an issue is raised, the same being a jurisdictional one, the findings of the Labour Court in that behalf would be subject to judicial review.
14. The Hon'ble Supreme Court further quoted the earlier judgment passed in Chalan Roadways Ltd. v. G. Thirugnana Sambrdarn reported in (2005) 3 SCC Page 241 as under :--
In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single judge and the Division Bench of the High Court misdirected themselves in law in so far as they failed to pose unto themselves correct questions. It is now well settled that a quasi-judicial authority most pose unto itself a correct question so as to arrive at a correct finding of fact. Q wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of res ipso loquitur which was relevant for the purpose of the case and, thus failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, that the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct preponderance of probability' and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.
15. From the principle enunciated by the Hon'ble Supreme Court it is clear that both the Courts have committed an error of law in deciding the fact that the respondent comes within the definition of 'employee' under the MPIR Act on the basis of the fact that he was not doing the supervisory job but that is not the true perspective for deciding the fact that whether a person is an employee within the definition of 'employee' as per MPIR Act. The correct approach would be as per the Hon'ble Supreme Court that what is dominant nature of the job of a person. In the present case it is clear that the respondent was appointed as a Senior Sales Officer and his job was to look after the sales of the company. He could negotiate with the parties about the sales promotion. He was authorized to offer discount to the customers and his duty was to introduce and provide information about the products of the Company to the customers. This was his dominant nature of job and for this purpose he was provided one steno, one clerk and one assistant.
16. Three Judges Bench of the Hon'ble Supreme Court in the case of Mukesh K. Tripathi v. Senior Divisional Manager and Ors. reported in held as under :--
The definition of 'workman' is contained in Section 2(s) of the Industrial Disputes Act is exhaustive. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. Even if a person does not perform managerial or supervisory duties, with a view to hold that he is a workman it must be established that he performs skilled or unskilled, manual supervisory technical or clerical work for hire or reward.
After analyzing the earlier judgment of Hon'ble the Supreme Court passed in the cases of May and Baker (India) Ltd, v. Workman reported in , Western India Match Company Ltd, v. Workman reported in and Burmah Shell Oil Storage & Distribution v. Burmah Shell Management Staff Association and H.R. Andtaabtgata v. Sandoz (India) Ltd. reported in the Hon'ble Supreme Court quoted with approval the following observations of the earlier three Judges Bench decision of the Supreme Court in the matter of May and Baker India Ltd. v. Workmen reported in :--
At that time the definition of the word 'workman' under Section 2(s) of the Industrial Disputes Act did not include employees like Mukerjee who was a representative. A 'workman' was then defined as any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward. Therefore, doing manual or clerical work was necessary before a person could be called a workman. This definition came for consideration before Industrial Tribunals and it was consistently held that the designation of the employee was not of a great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical then the person must be held to be a workman. On the other hand it manual or clerical work is only a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be a workman. It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or not under the definition of that word as it existed before the amendment of 1956.
17. On the basis of above principle of law enunciated by Hon'ble the Supreme Court and the facts of the case it is clear that both the Courts have committed error of law by holding that the work of the petitioner was not supervisory in nature hence he could be included within the definition of . 'employee' under Section 2 (13) of MPIR Act.
18. Other contention with regard to action of the petitioner in transferring the respondent, it is clear that the respondent has been transferred by the petitioner in the interest of Company. Even from the own pleadings of the respondent it is clear his transfer was made due to internal rivalry between the Directors and one of the Director has also been examined by the respondent in his support before the Labour Court as a witness. Except this no other reason has been assigned by the respondent with regard to malafide. A Constitution Bench of Hon'ble Supreme Court in the case of Management, Syndicate Bank Ltd. v. Workman reported in AIR 1966 SC 3283, held as under with regard to malafide's :
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. Therefore, Industrial Tribunals should be very careful before they interfere with the orders made by the Banks to discharge of their managerial functions. It is true that if an order of transfer is made malafide or for some ulterior purpose, like punishing an employee for his trade union activities the Industrial Tribunals should interfere and set aside such an order of transfer, because the malafide exercise of power is not considered to be the legal exercise of the power given by law. But the finding of malafide should be reached by Industrial Tribunals only if there is sufficient and proper evidence in support of the finding. Such a finding should not be reached capriciously or on flimsy grounds.
19. It is an admitted fact that the transfer of an employee is an inherent right of an employer. It is a condition of service. The Hon'ble Supreme Court in the case of State of U.P. and Ors. v. Goverdhanlal reported in (2004) 1 SCC Page 402 held as under with regard to duty of the Court in interfering with the transfer order :--
A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals can not substitute their own decisions in the matter of transfer for that of Competent Authority of the State and even allegations of malafide when made must be such as so inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
20. On the basis of above principle of law, in my opinion, both the Courts have committed an error of law in arriving at a conclusion that the transfer order of the respondent was malafide and penal in nature. It may be a outcome of the thinking of the management to transfer the respondent to elsewhere because he was siding with one Director of the Company and that was an obstruction in the smooth running of the petitioner company. Only on this basis, it can not be said that the transfer order is malafide and penal in nature. A company has a right to manage its own affairs and it is the duty of the every employee though he is an office bearer of the Association, not to interfere with the management and managerial policies of the company or align himself with one or other directors of the Company.
21. For the reasons discussed above, petition of the petitioner is allowed. The impugned orders passed by the Labour Court and the Industrial Court, Annexures P-6 and P-8 are hereby quashed. Application filed by the respondent before the Labour Court is hereby dismissed. Looking to the facts and circumstances of the case parties to bear their own cost.