ORDER
1. This revision is directed by the plaintiff against the order passed by the VI Additional Judge, City Civil Court, Madras, confirming the order of dismissal of the injunction application filed by him.
2. The facts which are necessary for the disposal of this revision can be briefly stated as follows :- The case of the petitioner is that the jointed Binny & Co. Madras, on 10th March, 1954, as a clerk at the registered office at Armenian Street, Madras. As per the appointment orders issued in 1966 for clerks like him, they will be required to work at the registered office at Armenian Street or at Carnatic House at Perambur and that there was no express service condition that they were liable for transfer. There was no office at Carnatic House when he joined, and while the clerical and subordinate staff were transferred from Armenian Street to Carnatic House in 1966 to 1984, they were given a disturbance allowance of Rs. 300/- which meant that they were not liable for transfer. He had also not been transferred in the last 34 years, and the request of the other clerical staff was also negatived on the ground that there was no provision for transfer in the service condition. In 1969 when B & C Mills was amalgamated with Binny Limited, it was made clear that the conditions of service would be the same as before. It is further stated that he served the respondent-company at Madras for 34 years and that he has got only 3 years before he gets retired. He is a heart-patient and the company also knowns about it as it had reimbursed a portion of his medical expenses. His transfer from Madras to Calcutta is not bonafide. He is a member of the Binny Employees' Union. He was transferred on the ground that he spoke about the company casually It was also a rumour. According to him, if at the end of the his service he was asked to go to Calcutta, it would be at the peril of his life as he was a heart-patient. He also filed the injunction application stating that if the transfer order was given effect to, he would be put to great hardship.
The said injunction application is resisted by the respondent, and in the counter-affidavit filed by the General Manager of the respondent-company, besides denying the allegations stated in the affidavit, it was inter alia contended that the respondent has got branch offices at Bombay, Delhi and Calcutta, which, among other activities are dealing in marketing of textile goods. It is a condition of service in the respondent-company that staff are available to be transferred from one establishment to another establishment and that there are records to substantiate the same. The petitioner was appointed on 8th March, 1954 and he is getting Rs. 3,100/- per mensem. He was posted at Sales Accounts Department right from his appointment at the Head Office at Armenian Street, Madras, Later he was shifted to Carnatic House, Perambur. In pursuance of the decision that the activities concerning sales should be decentralised and more particularly the Sales Accounts, Department should be carried on by Regional Centres, the sales accounts work of the eastern region was shifted from the Carnatic House, Perambur to the branch office at Calcutta, and consequently one of the staff had to be shifted from the sales accounts department. Accordingly the petitioner was transferred on 27th February, 1988 to the Branch Office at Calcutta and he was relieved of his duty on 3rd March, 1988. It is submitted that the contract of employment of the petitioner does not prohibit such a transfer and there is no scope to grant injunction against the order of transfer. Since the petitioner is a workman under Section 2(s) of the Industrial Disputes Act, the suit in the civil court is not maintainable. According to the respondent, there were transfers of its employees of the clerical cadre and that there are about !I clerical employees working in the Sales Accounts Department and if the petitioner can persuade any other employee of his cadre to go on transfer to Calcutta, the respondent has no objection to consider that person and retain the petitioner at Madras.
The petitioner filed a reply-statement denying the allegations in the counter-affidavit and reiterated that there is an express service condition for clerks like him that they are liable to be posted either at Armenian Street or at Carnatic House only and the service condition was not to transfer to Calcutta. The transfers referred to by the respondent were done only at the instance of the concerned staff.
The trial judge dismissed the application on the ground that the management has got every right to transfer and even if it is found on humanitarian ground that he is suffering from heart ailment and that he has got only 3 years, it is for the management to re-consider and that it is not for the court to interfere with the transfer order. Aggrieved by the same, the petitioner preferred an appeal before the VI Additional Judge. City Civil Court, and the learned judge confirmed the said order of the trial court. Hence this revision.
3. Mr. N. G. R. Prasad, learned counsel for the revision-petitioner, vehemently urged that the trial court as well as the lower appellate court are not justified in holding that the management has got inherent power to transfer even in the absence of specific provision in the contract of employment. According to the learned counsel, the management has no right to transfer if there is no specified clause in the order of appointment regarding transfer. In the instant case, admittedly there is no clause provided for transfer in the order of appointment of the petitioner in the year 1954. Since the right of transfer is governed by the contract, in the absence of specific term and specific clause in the appointment order, the transfer ordered in the case of the petitioner is illegal and liable to be set aside. According to him, the petitioner was working as a clerk for the past 35 years in the same place and that it is consistent with the contract of appointment. In this connection, the learned counsel for the petitioner drew the attention of tis court to the decision in T. Chandrasekar v. The C. M. P. Trust & Ors : (1989)ILLJ294Mad . Therein it was held (p 299) :
'Transfer is an incidence of service only in cases of service under the Government or in public sector. In cases of private sector, law does not presume that transfer is an incidence of service. There is no inherent right in a private employer to transfer his employee. The right must be conferred by contract of service. Such right could be implied in certain cases like employment under one unit having several wings and branches of its own of the same category and giving the same or similar type of employment and governed by the same terms and conditions of service including emoluments, and the employee was put on notice at the time of entering into service that he was liable to be transferred to any one of the wings and branches of the employer. When terms and conditions of service are prescribed by authority in exercise of powers under the statute it is impermissible to travel beyond the statutory sphere and enter into a contractual sphere to spell out an implied term or an inherent power to transfer. There cannot be any supplementation to statutory terms and conditions of service by invoking the theory of implied or inherent condition of service. If transfer as a condition of service is not expressly provided by the statutory prescription, then such power to transfer must be taken to be excluded or denied or prohibited.'
In Kundan Sugar Mills v. Ziya Uddin 1960 I 10 LLJ 266 it has been held (p 268) :
'The argument of the learned counsel for the appellant that the right to transfer is implicit in every contract of service is too wide the mark. Apart from any statutory provision, the rights of an employer and an employee are governed by the terms of contracts between them or by the terms necessarily implied therefrom. It is conceded that there is no express agreement between the appellant and the respondents whereunder the appellant has the right to transfer the respondents to any of its concerns in any place and the respondent's duty to join the concerns to which they may be transferred. If so, can it be said that such a term has to be necessarily implied between the parties When the respondent 1 to 4 were employed by the appellant, the latter was running only one factory at Amroha. There is nothing on record to indicate that at that time it was intended to purchase factories at other places or to extend its activities in the same line at different places. It is also not suggested that even if the appellant had such an intention, the respondents 1 to 4 had knowledge of the same. Under such circumstances, without more, it would not be right to imply any such term between the contracting parties when the idea of starting new factories at different places was not in contemplation. Ordinarily the employees would have agreed only to serve in the factory then in existence and the employer would have employed them only in respect of that factory. The matter does not stop there. In the instant case, as we have indicated, the two factories are distinct entities, situated at different places and, to import a term conferring right on the employment to transfer respondents 1 to 4 to a different concern is really to make a new contract between them.'
Applying the ratio laid down in the above decisions, the learned counsel for the petitioner submitted that in the instant case admittedly the respondent is a private sector and the transfer is not an incidence of service. As seen from the order of appointment, there is no provision for transfer in the contract of service. Further, the branch at Calcutta was not in existence at the time of the appointment of the petitioner and as such the management had no right of transfer of the petitioner. There is also statute which confers such a power on the management to transfer the petitioner. The petitioner has made out a prima facie case that the order passed by the respondent-management is not sustainable, as the respondent-management is not entitled to transfer the petitioner. It is further submitted that the petitioner has been in service for the last 34 years and previously his father and grand-father were employed in the respondent-management and they were not subjected to any transfer. The petitioner is now aged about 56 years and he is a heart-patient. He has service upto 30th June, 1991 only. The respondent also knows about his health condition because they have met some portion of the medical expenses of the petitioner. The transfer has not been done on any administrative reason, but on vague rumour that the petitioner spoke casually about the management. According to the petitioner, such allegation was not denied by the respondent in the counter-statement and the respondent is deemed to have admitted the same. The only averment made in the counter-statement in reply to the said averment is that there are about II clerical employees in the Sales Accounts Department and if the petitioner can persuade any other employee of his cadre to go on transfer to Calcutta, the respondent has no objection to consider the transfer and retain him at Madras. It is pointed out that the courts below have accepted the case of the petitioner that he is a heart-patient. It was contended that in view of his health condition, the transfer is at the peril of his life. The court also observed that it is for the petitioner to approach the respondent-management to invoke its sympathy and the court is helpless. In this connection, the learned counsel for the petitioner drew the attention of this court to the decision in Central Fisheries Corpn. Ltd. v. Addl. Labour Court (Mad.) 1974 (46) F.J.R. 212 where it is observed :
'An employer transferred his workman. The workman requested cancellation of transfer order on the ground that he could not leave his wife as she was enceinte and expecting a baby. On the workman's refusal to obey the transfer order, the employer terminated his services. On a dispute raised by the aggrieved workman, the Labour Court, finding the workman's explanation to be true, held that the order of termination was not justified. On a petition for a writ by the employer, a single Judge of the Court confirmed the award of the Labour Court. On further appeal by the employer, confirming the decision of the single Judge, HELD, that though, in normal circumstances, employers's right to transfer his workman from one station to another cannot be interfered with, in exceptional circumstances, like an order of transfer resulting in an unjustified termination of service as in this case, the Industrial Courts as well as the Courts exercising writ jurisdiction under Article 226 of the Constitution can consider whether in the peculiar conspectus of events facing a particular situation, such a termination was warranted. The exercise of the prerogative of an employer to transfer his workman from one station to another is not an inexorable one. In this particular case, the workman's explanation that he could not leave his wife was found to be true by the Labour Court and in that light it had viewed the situation and rightly interfered with the order of termination.'
Applying the ratio laid down in the above decisions to the facts of this case, though the trial court has observed that the petitioner was in service of the respondent for nearly 34 years, that he is suffering from heart disease, that there was only three years for his retirement and that the impugned transfer is not the one which is acceptable on humanitarian grounds, erred in holding that it is only the employer who can reconsider the decision and that it is not open to the petitioner to approach the court to exercise its jurisdiction. As already stated, the petitioner is to retire on 30th June, 1991. It is to be noted that the petitioner was not subjected to transfer all these 34 years. It is also not in dispute that the entire sale was being done by a guarantor K.S. Enterprises, Calcutta. Even according to the respondent, the said work which is now sought to be done by the petitioner at Calcutta is being continued at Madras, though the respondent has decided as a policy to decentralise the work at Calcutta. Thus, considering the exceptional circumstance in the case of the petitioner, namely, he is a heart patient, he was taking treatment and the company-respondent had reimbursed his medical expenses, that he is in the verge of retirement, the courts below ought to have exercised the discretion in favour of the petitioner. The petitioner has also a bonafide apprehension that the transfer order, if given effect to, will endanger his life. The above circumstances were also accepted by the trial court. Further, in view of the fact that there is no provision for transfer in the very order of appointment, in the interest of justice and on the question of balance of convenience, the courts below ought to have exercised the discretion in favour of the petitioner and granted injunction as prayed for, instead of directing him to invoke the sympathy of the respondent by requesting him to reconsider the order to transfer. The petitioner has attempted to make out a case that the transfer was done vindictively on the basis of some false rumours that he has spoken about the company in a very casual way and that he is a member of the Union. It is a matter to be decided ultimately in the suit.
4. The contention of the learned counsel for the respondent is that under Secs. R-2 to R-11, some other employees were also transferred from the head office to different places and that it cannot be said that for the first time the company is now passing the impugned order, further though it is not stated in the contract of appointment about the transfer, yet the respondent has got a right to do so and that they are all matters to be finally adjudicated upon in the suit. Suffice it to say that the appointment order does not contain such a clause and that the petitioner was not subjected to transfer for all these 34 years. The learned counsel for the respondent relied on the decision in New India Flour Mills v. Sixth I.T. (Calcutta) 1963 I LLJ 745 for the proposition that a transfer must not operate to prejudice or detriment of a workman unless expressly authorised, in other words, the transfer must not occasion to a workman economic loss in wages, bonus or other monetary benefits. In the instant case, according to the learned counsel, the petitioner is not put to any monetary loss and the transfer is not by way of punishment. It is to be noted that even in the said decision, certain conditions and limitation under which the transfer of service of a workman might be made are summarised. It is provided under Clause (a) that a transfer of a workman from one department to another or from one job to another cannot be made, if his service conditions or terms of service contract expressly negative the right of such transfer or if the standing orders of the employer prescribed no such transfer. In Clause (c) it is provided that a transfer must not be made by way of punishment, that is to say, there must not be a colourable exercise of the power of transfer of a workman so as to victimize him. Under Clause (e) it is said that it is never the implied condition of service of a workman that the employer has the right to transfer him to a new concern started by the employer subsequent to the date of the employment of the workman. In the instant case, it is the contention of the learned counsel for the petitioner that the Calcutta office was not in existence at the time of the petitioner's employment. Further, since there are no regulations or terms of service contract, certainly there is no power of transfer by the respondent. It is a matter to be decided in the suit. Prima face, the said decision cited by the learned counsel for the respondent is not at all helpful to the case of the respondent.
5. Yet another decision relied on by the learned counsel for the respondent is Syndicate Bank Limited v. The Workman : (1966)ILLJ440SC . That was the case of a clerk employed in the Syndicate Bank at Vijayawada Branch. He was transferred to a new branch of the bank which was opened at Banganapalli. The clerk refused to join duty and applied for leave on medical grounds. The employee claimed that he was entitled to the exemption under Sastry Award. The Industrial Tribunal upheld the contention of the clerk and held that the transfer was prompted by mala fide considerations and that he is entitled to be retained. Aggrieved by the same, the matter went up in appeal. In that case, Their Lordships of the Supreme Court have observed as follows (p. 442) :
'There is no doubt that 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 the Industrial Tribunals should be very careful before they interfere with the orders made by the Banks in discharge of their managerial functions. It is true that if an order of transfer is made mala fide 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 mala fide exercise of power is not considered to be the legal exercise of the power given by law.'
That decision is not helpful to the case of the respondent. In the above case, with regard to transfer, there was Sastry Award. The question arose therein whether the transfer was effected by the mala fide exercise of power. It was held that the finding of mala fide should be reached by the Industrial Tribunals only if there is sufficient and proper evidence in support of the finding. That decision does not apply to the instant case. Yet another decision relied on by the learned counsel for the respondent is Caravan Goods Carries v. Lab. Court Mad. : (1977)IILLJ199Mad wherein it has been held (short note on P. 199) :
'These transfers might have been due to exigencies of the employer as contended by him and it was not for the Labour Court to sit in appeal over those exigencies and find out whether they demanded this course of action. The action of the employer should not be termed unfair. So long as the employer has got the power to transfer his employees, the power being inherent in the nature of employment as in this case, it does not matter whether the employer resorts to any standing order.'
The above decision also is not in any way helpful to the respondent. Of course, it is true that it is to be decided ultimately in the suit whether the respondent has got the power to transfer his employees, the power being inherent in the nature of employment to justify the order of transfer.
6. Lastly the learned counsel for the respondent relied on the decision in C.E. (Per.) TNEB. Madras v. K. Raman : (1985)ILLJ164Mad . That decision also is not helpful to the case of the respondent, as in the above quoted case there were statutory rules regarding transfer in the Electricity Department. The question arose whether the two officials of the Electricity Board could be transferred pending disciplinary action, in that, they did not Co-operate with the police investigation in connection with the theft of electricity. It was held (p. 170) :
'Transfer is not one of the punishments contemplated under the rules by resorting to disciplinary proceedings. As a matter of fact, in every day administration, day in and day out orders of transfers are passed on account of exigencies of administration. The authority cannot be called upon to explain to the Court what the exigency is. However, the situation will be different where the order of transfer is actuated by mala fides.'
The ratio laid down in the above quoted case is not in any way relevant for deciding the issue involved in this case. In the above quoted case, there are specific rules in the Electricity Department for transfer of officials and the question arose whether the transfer is one of the punishments contemplated under the rules. On a consideration of the entire materials. I find that the petitioner has made out a prima facie strong case for granting interim injunction in his favour and both the courts below failed to exercise the jurisdiction properly by not appreciating the contention of the petitioner with reference to various case-laws put forth by him. Further, in view of the fact that the transfer order was not given effect to for nearly 2 years, and that the petitioner has got only 1-1/2 years to his credit and that he is a heart patient this court feels that status quo has to be preserved and the trial of the suit can be expedited.
7. In the result, the revision is allowed, the order of dismissal of the appeal filed by the petitioner confirming the order of the trial court is hereby set aside and the order of temporary injunction is passed in favour of the petitioner restraining the respondent from giving effect to the order dated 27th February 1988 and to allow him to work in his office at Madras, till the disposal of the suit. The trial court is directed to take up the suit and dispose of the same within three months positively. However there will be no order as to costs in this revision.