Ramesh Kumar Datta, J.
1. The petitioner-Company has come to this Court for quashing/setting aside the award dated 31.7.2007 (Annexure-1) passed in Reference Case No. 5 of 2006 by the Presiding Officer, Labour Court, Patna by which he has held the order of transfer dated 21.1.2005 with respect to respondent No. 3 Sri Nalin Sinha from Patna to Hissar Head Quarter w.e.f. 1.2.2005 to be perverse and not sustainable in the eye of law and directed the petitioner to allow him to join at his previous place, i.e., Patna with full back wages and other consequential benefits.
2. Shorn of unnecessary details the facts of this case are that respondent No. 3 was appointed as Medical Representative by appointment letter dated 24.6.1986 (Annexure-2) w.e.f. 1.4.1986. The detailed terms and conditions of his service were enumerated in the said appointment letter. In paragraph-15 of the same it was provided that it is a condition of his appointment that his services can be utilized at any place in India as the Company may decide from time to time and further that he may be required to render service to the Company's sister concerns or associates as and when required. In token of acceptance of the terms and conditions the respondent No. 3 signed on a copy of the appointment letter on 14.7.1986. The respondent No. 3 after his appointment joined at Patna Head Quarters; thereafter he was transferred from Patna to Samastipur w.e.f. 1.1.1988 and by letter dated 19.12.1995 he was again transferred from Samastipur Head Quarters to Patna Head Quarters at his request w.e.f. 1.1.1996. By letter dated 21.1.2005 (Annexure-4) the respondent No. 3 was transferred from Patna to Hissar in the State of Haryana w.e.f. 1.2.2005. Immediately on receipt of the said letter the said respondent by his letter dated 23.1.2005 (Annexure-5) wrote to the Company stating that he was holding the post of Treasurer of State Union of Medical Representative, namely, Bihar Pradesh Sales Representatives Union (in short BPSRU) and was holding the post of Vice-President of E. Merck Field Staff Union (in short EMFSU) and the said transfer would affect his basic Trade Union rights and will also disturb the entire family set up and will disrupt the education of his child who is studying at Patna and for the said reasons he requested for withdrawal of the said transfer order immediately. On 29.1.2005 a dispute was raised by EMFSU vide statement of demand dated 29.1.2005 alleging that the order of transfer was malafide with a motive to break the Union and hamper the legitimate Trade Union functions of respondent No. 3 by the Management Company and was thus a colorable exercise so as to punish the respondent No. 3 for his lawful trade union activities and requested to withdraw the transfer order with a copy to Deputy Labour Officer-cum-Conciliation Officer, Patna. Thereafter the Assistant Labour Commissioner-cum-Conciliation Officer initiated a conciliation proceeding which ended in failure and ultimately the State Government by Notification dated 22.4.2006 (Annexure-9) referred the dispute under Section 10 of the Industrial Disputes Act to the Labour Court, Patna (which was registered as Reference Case No. 5 of 2006) in the following terms:
Whether transfer to Hisar (Haryana) from Patna of Sri Nalin Sinha, M.R. by Director, Merck Ltd., Dr. Annie Besant Road, Worli, Mumbai is justified if not, what relief workman is entitled to ?
3. After hearing the parties the Presiding Officer, Labour Court, Patna by his impugned award dated 31.7.2007 held that the transfer order is perverse and not sustainable in the eye of law and further directed the Management to allow the employee to join the previous place with full back wages and other consequential benefits.
4. On the basis of the respective cases of the parties the Labour Court framed essentially three questions for determination, namely, (i) Whether this is Industrial Dispute or individual dispute? (ii) Whether case is tanable under the S.P.E. Act? (iii) Whether the transfer order is malafide in nature? On all three points he has held against the Management-petitioner and in favour of the employee.
5. Learned Counsel for the petitioner assails the award with respect to findings on all the three issues. It is submitted by learned Counsel that the specific objection of the petitioner was that on the date of Reference, i.e., 22.4.2006 the individual dispute of respondent No. 3 was not supported by a substantial number of employees and therefore the Reference was bad and not maintainable. It is submitted that even earlier the letter dated 29.1.2005 raising the dispute purportedly on behalf of the EMFSU was signed only by one Anish Kumar as a Member of the Executive Committee and not by either the President or Secretary of the Union and that too without attaching any Resolution of the Union along with the statement of demand. It is submitted that even the written statement was not filed by the Union but by respondent No. 3 signing and preparing the same in his personal capacity and not as office bearer of the Union. It is submitted that a dispute relating to transfer can only be an industrial dispute if the same is espoused by the Trade Union supported by a substantial number of employees and in the absence of the same it can only be held to be an individual dispute and the Reference itself would not be maintainable. It is further argued by learned Counsel that despite the specific stand of the Management in this regard the same has not been demolished by any evidence on behalf of the employee and the conclusion of the Labour Court that no Management witness has come forward in support of this point and therefore the same has to be decided against the Management is perverse.
6. In support of the aforesaid proposition learned Counsel relies upon several decisions; firstly, the Supreme Court decision in the case of Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna and Ors. : AIR 1961 SC 857, in paragraph-6 of which it has been held as follows:
6. It is now well settled that a dispute between an individual workman and an employer cannot be an industrial dispute as defined in Section 2(k) of the Industrial Disputes Act unless it is taken up by a Union of the workmen or by a considerable number of workmen. In Central Provinces Transport Service Ltd. v. Raghunath Gopal : 1956 SCR 956 : AIR 1957 SC 104, Mr. Justice Venkatarama Ayyar speaking for the Court pointed out after considering numerous decisions in this matter that the preponderance of judicial opinion was clearly in favour of the view that a dispute between an employer and a single employee cannot per se be an industrial dispute but it may become one if it is taken up by an Union or a number of workmen.
Notwithstanding that the language of Section 2(k) is wide enough to cover disputes between an employer and a single employee', observed the learned Judge, 'the scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of adjudication under the Act, when the same had not been taken up by the Union or a number of workmen.
7. Learned Counsel also relies upon a decision of the Apex Court in the case of the Bombay Union of Journalists and Ors. v. The 'Hindu', Bombay and Anr. : AIR 1963 SC 318 in paragraph-15 of which it has been held as follows:
15. ---In each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute the test is whether at the date of the reference the dispute was taken up as supported by the Union of the workmen of the employer against whom the dispute is raised by an individual workman or by an appreciable number of workmen. If Venkateshwaran or Tiwari had prior to the date of the reference supported the cause of Salivateeswaran, by their subsequent affidavits the reference could not have been invalidated. But as we have already observed there was, in fact, no support to the cause of Salivateeswarn by Venkateshwaran or by Tiwari and therefore the dispute continued to remain an individual dispute.
8. He also relies upon a decision of a learned Single Judge of Madras High Court in the Nellai Coton Mills, Tirunelveli v. Labour Court, Madurai and Anr. 1965 (I) LLJ 95 in which the similar proposition has been laid down.
9. Learned Counsel also relies upon the deposition of respondent No. 3 in which he has admitted that the President and the General Secretary of the EMFSU are working actively from 2004 till that date. He thus submits that the onus lies on the workman to satisfy the court that his case has been espoused by a substantial number of employees on the day of the reference and not on the Management and the finding of the Labour Court to the contrary is perverse.
10. Learned Counsel for respondent No. 3, on the other hand, submits that the letter dated 29.1.2005 having been issued by the Executive Committee Member was itself sufficient to show that the dispute has been raised by the Union. He submits that even the Management witness No. 1 has admitted in his deposition that the dispute before Conciliation Officer was raised by the Union. He also submits that the Labour Court has taken note of the fact that the letter dated 14.10.2005 had been filed by the Union authorizing the respondent No. 3 to conduct the case. It is thus submitted by learned Counsel that the award of the Labour Court on this point is based on the materials on record showing that the dispute of the respondent No. 3 has been espoused by the Union which is admitted by the Management witness to be the recognized Union of employees and since the order is based upon some material it is not open to this Court in exercise of its power of judicial review under Article 226 of the Constitution to look into the sufficiency of the materials on which the findings are based. In support of the said proposition learned Counsel for the respondent relies upon the decision of the Supreme Court in the case of J.H. Jadhav v. Forbes Gokak Ltd. : AIR 2005 SC 998 in paragraph-8 of which it has been held as follows:
8. The Division Bench misapplied the principles of judicial review under Article 226 in interfering with the decision. It was not a question of there being no evidence of espousal before the Industrial Tribunal. There was evidence which was considered by the Tribunal in coming to the conclusion that the appellant's cause had been espoused by the Union. The High Court should not have upset this finding without holding that the conclusion was irrational or perverse. The conclusion reached by the High Court is therefore unsustainable.
11. On a consideration of the aforesaid submissions this Court finds that there is admission by the Management witness that the EMFSU is the recognized Union of workmen in the Company and in fact it is the only Union functioning in the said organization and it is that Union which has raised the dispute before the Conciliation Officer. Once it is admitted that the EMFSU is the recognized Union and the dispute has been raised by the recognized Union there is no requirement under the law to further show that the same is supported by a substantial number of employees. It is clear from the decision of the Apex Court on this point that only when a dispute is not supported by the recognized Union then it must be shown to have been supported by a substantial number of employees. In the present matter there is evidence for coming to the conclusion that the case of the respondent was supported by the Union. This Court, therefore, does not consider the said finding of the Labour Court to be either irrational or perverse and in view of the law laid down in J.H. Jadhav's case (supra) there can be no occasion to interfere with the award on this count.
12. It is next urged by learned Counsel for the petitioner that a Medical Representative is not covered by the definition of workman under Section 2(s) of the Industrial Disputes Act and thus he cannot seek any redressal of his grievance under the Industrial Disputes Act and for the said reason the reference of the case to the Labour Court is invalid. It is contended that Section 6(2) of the Sales Promotion Employees (Conditions of Service) Act, 1976 applies the provisions of Industrial Disputes Act, 1947 for the purpose of any proceeding under that Act in relation to an industrial dispute only with respect to such a sales promotion employee who has been dismissed, discharged or retrenched and not in all matters. In support of the said proposition learned Counsel relies upon the following observations of a Constitution Bench of the Supreme Court in the case of H.R. Adyanthaya v. Sandoz (India) Ltd. : AIR 1994 SC 2608 in paragraph-6 of the said judgment:
6. ---It was contended by Shri Sharma, appearing for the workmen that the definition of workman under the ID Act includes all employees except those covered by the four exceptions to the said definition. His second contention was that in any case, the medical representatives perform duties of skilled and technical nature and, therefore, they are workmen within the meaning of the said definition. We are afraid that both these contentions are untenable in the light of the position of law discussed above. The first contention was expressly negatived by two three-Judge Benches in May & Baker : AIR 1967 SC 678 and Burmah Shell : AIR 1971 SC 922 cases (supra) as has been pointed out in detail above. As regards the second contention, it really consists of two sub-contentions, viz., that the medical representatives are engaged in 'skilled' and 'technical' work. As regards the work 'skilled', we are of the view that the connotation of the said word in the context in which it is used, will not include the work of a sales promotion employee such as the medical representative in the present case. That word has to be construed ejusdem generis and thus construed, would mean skilled work whether manual or non-manual, which is of a genre of the other types of work mentioned in the definition. The work of promotion of sales of the product or services of the establishment is distinct from and independent of the types of work covered by the said definition. Hence the contention that the medical representatives were employed to do skilled work within the meaning of the said definition, has to be rejected. As regards the 'technical' nature of their work, it has been expressly rejected by this Court in Burmah Shell case (supra). Hence that contention has also to be rejected.
13. Learned Counsel also relies upon a decision of a learned Single Judge of Jharkhand High Court in the case of Indian Drugs and Pharmaceuticals Ltd. v. State of Jharkhand and Anr. 2004 LAB. I.C. 2651 in paragraph-16 of which it has been held as follows:
16. Taking into consideration all these facts and the discussions made hereinabove, I am of the opinion that the Labour Court has not correctly decided the issue and erroneously held that the concerned respondent who is admittedly a Medical Representative mainly engaged for promotion of sales business, is a workman. Consequently, therefore, the entire proceeding in the reference case and the award are vitiated in law.
14. Learned Counsel for the respondent, on the other hand, submits that in view of the clear provisions of Section 6(2) of the Sales Promotion Employees (Conditions of Service) Act the reference was clearly maintainable before the Labour Court under the Indistrial Disputes Act and the issue as to whether sales promotion employee was a workman is wholly irrelevant in the context of the Parliamentary enactment extending the benefit of the provisions of the Industrial Disputes Act to such employee. It is also contended that the benefit applies to all such sales promotion employees and not only merely to those who have been dismissed, discharged or retrenched.
15. On a consideration of the rival submissions on this point this Court does not find any substance in the submission of learned Counsel for the petitioner. It is true that in the case of May & Baker (India) Ltd. v. Their Workmen AIR 1967 SC 78 the Apex Court has held that a medical representative/sales promotion employee was not a workman within the definition of the Industrial Disputes Act. It was on account of the said decision and subsequent decisions to the same effect that Parliament enacted the Sales Promotion Employees (Conditions of Service) Act, 1976 extending the benefits of the provisions of the Industrial Disputes Act, 1947 to the sales promotion employees by Section 6(2) of the Act. Initially a sales promotion employee had been defined to cover only such of those employees drawing wages including commission not exceeding 750/- rupees per mensem or drawing wages (including commission) or commission not exceeding 9000/- rupees in the aggregate in a year but excluding those who were employees in the managerial or administrative capacity. By the Amendment Act 48 of 1986 w.e.f. 6.5.1987 definition of sales promotion employee was amended without any limit of wages except in case of such an employee employed or engaged in supervisory capacity drawing wages exceeding 1600/- rupees per mensem. The relevant provisions of Section 2(d) and Section 6(2) of the Act are quoted hereinbelow:
2. Definitions.- In this Act, unless the context otherwise requires, -(d) 'sales promotion employees' means any person by whatever name called (including an apprentice) employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business, or both, but does not include any such person,-(i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or (ii) who is employed or engaged mainly in a managerial or administrative capacity.
Explanation.- For the purposes of this clause, the wages per mensem of a person shall be deemed to be the amount equal to thirty times his total wages (whether or not including, or comprising only of, commission) in respect of the continuous period of his service falling within the period of twelve months immediately preceding the date with reference to which the calculation is to be made, divided by the number of days comprising that period of service.
6. Application of certain Acts to sales promotion employees.- (2) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute.
16. It is evident from the provisions of Section 6(2) of the Act that the provisions of the Industrial Disputes Act have been made applicable in relation to sales promotion employees in the same manner as they apply to workmen within the meaning of Industrial Disputes Act and it is further provided that for the purposes of a proceeding under the Act in relation to an industrial dispute a sales promotion employee shall be deemed to include such employee who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment had led to that dispute. It is thus evident that the provisions of the Industrial Disputes Act have been made applicable to the sales promotion employees while still in their service by deeming fixation which has been extended also to such a sales promotion employee who has been dismissed, discharged or retrenched in connection with or as a consequence of the industrial dispute for which the proceeding relates or where the industrial dispute arises out of such dismissal, discharge or retrenchment. The effect of the deeming fiction is to the extent of the entire provisions of the Industrial Disputes Act and it does not limit the same only to such sales promotion employees who have been dismissed, discharged or retrenched. The submission of learned Counsel for the petitioner is contrary to and not at all borne out by Section 6(2) of the Act. In fact the same deeming fiction is to be found in the definition of workman under Section 2(s) of the Industrial Disputes Act for the same purpose so as to apply the definition not only to the existing workmen but also those who have been dismissed, discharged or retrenched. Since the first part of the provisions defines a workman as any person employed in any industry, in the same manner as Section 2(d) of the Sales Promotion Employees Act as a person employed or engaged in any establishment engaged in pharmaceutical industry or in any notified industry, it is for the purpose of including dismissed, discharged or retrenched employees that the deeming fiction has been provided in both.
17. The aforesaid proposition is also borne out by the decision of the Apex Court in H.R. Adyanthaya's case (supra), in the relevant part of paragraph-4 of which it has been held as follows:
4. ---It will be noticed that under the SPE Act, the sales promotion employee was firstly, one who was engaged to do any work relating to promotion of sales or business or both, and secondly, only such of them who drew wages not exceeding Rs. 750/- per mensem (excluding commission) or those who had drawn wages (including commission) or commission not exceeding Rs. 9,000/- per annum whether they were doing supervisory work or not were included in the said definition. The only nature/type of work which was excluded from the said definition was that which was mainly in managerial or administrative capacity....
In other words, on and from 6th March, 1976 the provisions of the ID Act became applicable to the medical representatives depending upon their wages up to 6th May, 1987 and without the limitation on their wages thereafter and upon the capacity in which they were employed or engaged.
18. The decision of the Jharkhand High Court in Indian Drugs and Pharmaceuticals Ltd. case (supra) does not appear to have correctly appreciated this aspect of the matter although the decision of the Apex Court in H.R. Adyanthaya's case (supra) has been considered therein. In any case the said decision has only persuasive value and is not binding on this Court and with due respect to the learned Judge this Court is not in a position to accept the proposition laid down therein.
19. The main submission of learned Counsel for the petitioner relates to the merits of the case. It is contended that the ground of malafide has not been proved by specific evidence. It is submitted that the entire findings of the Labour Court are based upon extraneous ground and it has totally misdirected itself by giving findings on matters which were not at issue. It is submitted that there is not a shadow of evidence with respect to the main contention of malafide on facts.
20. It is pointed out by learned Counsel that under Section 10(4) of the Industrial Disputes Act which provides that where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto. It is urged by learned Counsel that the same has not been kept in mind by the Labour Court in the present matter and without any adjudication being made on facts which have been accepted by the Labour Court on mere surmises and conjectures and after taking into account extraneous matters, it has been held that the order was malafide and amounted to unfair labour practice of victimization of the employees. It is submitted that there is no specific plea in the written statement of respondent No. 3 as to how the order of transfer amounted to a colorable exercise to penalize him or an unfair labour practice. It is urged that only general allegations have been made in this regard stating that he was leading the Merck Field workers in voicing the protest against the injustice done by the management company.
21. It is submitted by learned Counsel that the first ground in the award for reaching the conclusion of mala fide is that the respondent was transferred to Hisar on a post vacant due to transfer of Mr. R.C. Chug from Hisar to Delhi, that Mr. Chug has been accommodated in his own state, Delhi and further it has been decided by the Management that before transfer to Delhi Mr. Chug has to withdraw the demand notice and he has to resign the position of General Secretary of the Union, and in the same way Anish Kumar was to be accommodated in his State only on the resignation from the position of the union, which confirms that the management indulged in unfair labour practice. Learned Counsel contends that there was no such issue referred to the Labour Court as to whether any unfair labour practice had been committed by the management with respect to the transfer of Mr. Chug and Mr. Anish Kumar and such a matter was completely outside the jurisdiction of the Labour Court. It is further submitted that the Exhibit which has been referred to only shows that the same is an agreement being minutes of a meeting of the grievance committee in which both the management and the workman are equally represented and whatever has been stated therein has been arrived at on the basis of mutual agreement between the management and the EMFSU which itself is a party to the present dispute. Further one of the points agreed was that Mr. Chug and Mr. Anish Kumar will resign from the grievance committee and not that they will resign the position of the General Secretary or other position in the Union and thus the said findings are also contrary to the materials on the record. It is submitted that once the Union itself has arrived at such an agreement with the management in the course of meeting of the grievance committee, there can be no occasion to draw any finding that the same amounts to unfair labour practice and that too on the basis of statement regarding resignation from the position of the Union which is not borne out from the said Exhibit. Thus it is contended that the finding of unfair labour practice on the part of the management, which was not even referred to the Labour Court, has not only been arrived at by taking into consideration extraneous material but completely perverse and unjustified even on the basis of those materials.
22. The next ground in the award is that the management is all to blame because the respondent No. 3 was singled out for transfer. It is submitted that a transfer would normally be a single transfer and thus in every case the uncalled for plea may be taken that the employee has been singled out for transfer. Moreover it is evident from the materials on the record that the transfer itself was necessitated on account of the vacancy caused at Hisar when the agreement was reached between the management and the EMFSU regarding accommodating Mr. Chug in his home State. It is submitted that the Union cannot be permitted to blow hot and cold at the same time and once the vacancy has arisen on account of accommodating an employee and office bearer of the Union on the basis of agreement reached between the Management and the Union, it is not open to the Union which is the party to the dispute as per the reference, and not an individual employee, to contend that another employee has been singled out for transfer to the said vacancy.
23. The next ground in the award regarding the finding of mala fide assailed by learned Counsel is with regard to the finding that there is no standing order in the Company and no transfer policy and it is not sufficient to lay down the same in the general conditions of the appointment letter because consent of the employee at the time of appointment is not free consent as the employee is in the need of service and therefore consent is induced by undue influence under Section 16 of the Contract Act and there would be no contract as such. It is submitted that the entire finding is based on a complete misreading not only of the law but also the pleadings of the respondent No. 3. It is submitted that it was no where stated by the respondent No. 3 that the transfer was not a condition of his service rather it is admitted by him both in the pleadings and in the court in his cross examination that transfer is a condition of his service. Further it was not at all the case of the respondent that any undue influence was exercised at the time of appointment or that the said condition of transfer was accepted by the employee under any pressure. Learned Counsel submits that transfer is a normal condition of service and not an extraordinary condition. The mere fact that the appointment letter mentions that the services of the respondent No. 3 were transferable anywhere in the country was sufficient to hold that the transfer was a valid condition of service. Further the same has not been even challenged by the respondent and all the findings in this regard of the Labour Court are contrary to the material and evidence on the record.
24. It is pointed out by learned Counsel that the provisions of the Industrial Employment (Standing Orders) Act, 1946 apply only in the case of workmen and it is well settled by the Supreme Court in H.R. Adyanthaya's case (supra) that sales promotion employee is not a workman and hence there was no occasion to have a standing order with respect to respondent No. 3 and similarly placed employees and thus the finding regarding mala fide and unfair labour practice on this ground is contrary to law and perverse.
25. It is further submitted that the finding that transfer to far off place or outside the State is to force the worker to resign from service or to take VRS is also not at all based on any pleading or evidence. It is urged that once it is admitted that transfer is part of the conditions of service no claim can be made on behalf of the employee that the transfer is to a far off place. It is submitted that the transfer is not an exceptional condition, rather it is a part of the ordinary conditions of service and therefore no undue influence can be presumed with respect to the condition of transfer in the appointment letter and the issue of resignation or VRS on being transferred is wholly irrelevant. More so, when the respondent had admitted in his evidence that the transfer is a condition of his service and the present transfer also was in terms of the conditions of service.
26. Lastly it is submitted that the Labour Court has illegally come to the conclusion that respondent No. 3 was raising the dispute of the workmen of the Company as a Union member. It is submitted that mala fide has to be proved by the person affected but the stand of the management was that the respondent did not raise any dispute in writing against the management and the same has been admitted by respondent No. 3 in his deposition. The management witness has also stated that he was not even aware that respondent No. 3 was a Vice-Chairman of EMFSU and Treasurer of BPSRU and the said Union has never intimated in writing regarding respondent No. 3 having been elected on the said post. It is submitted that the respondent No. 3 had never raised any dispute. It is further submitted that a clear evidence was given by the management witness that only the General Secretary raised the dispute and the respondent No. 3 never raised the dispute and there was not even a chit of paper on the record to show that the respondent No. 3 was an active member of the union. In that view of the matter, learned Counsel contends that there was nothing before the management to transfer the respondent No. 3 as a measure of victimization or unfair labour practice. It is also submitted by learned Counsel that a trade union is not above the law and mere transfer of such an office bearer cannot be held to be malafide unless supported by good grounds and evidence.
27. In support of the proposition that finding of mala fide should be reached by Industrial Tribunal only if there is sufficient and proper evidence in support of the findings, learned Counsel has relied upon a decision of a four Judges Bench of the Supreme Court in the case of the Management of the Syndicate Bank Ltd. v. The workmen : AIR 1966 SC 1283 in paragraph 6 of which it has been held as follows:
6. Having analysed the evidence in this case, we are of the opinion that the finding of the Tribunal that the transfer of Veeranna is mala fide is not supported by any evidence and is, therefore, perverse and defective in law. 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. We are, therefore, of opinion that 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. But the finding of mala fide 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 as the Industrial Tribunal has done in the present case. This view is borne out by the decision of this Court in Bareilly Electricity Supply Co. Ltd. v. Sirajuddin (1960) I LLJ 556.
28. Learned Counsel for respondent No. 3, on the other hand, submits that it is admitted by the management witness that there was no transfer policy and no standing order. In the circumstances, it is submitted by learned Counsel that the respondent No. 3 has been transferred only to accommodate two other employees Mr. Chug and Mr. Anish Kumar in their home state on the condition that they would leave the Union, but the same benefit was not given to the respondent No. 3 which shows colorable exercise of power. It is urged that the same is also an unfair labour practice as laid down by Section 2(ra) read with Item 7 and 9 of the 5th Schedule of the Industrial Disputes Act under which it is an unfair labour practice to transfer a workman mala fide from one place to another, under the guise of following management policy and to show favoritism or partiality to one set of workers regardless of merit. It is submitted that the said action by the management also shows that the object of the management was to harass the respondent No. 3 and the workers Union by accommodating two other employees in their State. It is contended by learned Counsel that the aforesaid actions also amount to victimization of the respondent No. 3 for his trade union activities. In support of the same he has relied upon a decision of the Supreme Court in the case of Arvind Dattatraya Dhande v. State of Maharashtra and Ors. : AIR 1997 SC 3067 in paragraph-6 of which it has been held as follows:
6. In view of the unimpeachable and eloquent testimony of the performance of the duties, it will be obvious that the transfer is not in public interest but is a case of victimization of an honest officer at the behest of the aggrieved complainants carrying on the business in liquor and toddy. Under these circumstances, as stated earlier, the transfer of the appellant is nothing but mala fide exercise of the power to demoralize honest officers who would efficiently discharge the duties of a public office.
29. He has also relied upon a decision of the Apex Court in the case of Colour-Chem Limited v. A.L. Alaspurkar and Ors. : AIR 1998 SC 948 in which it was held that the dismissal of a workman while letting off all others similarly charged with a warning only amounted to victimization, the punishment being disproportionate to the misconduct considering the past service of the workman. He further cites the decision of Madras High Court in the case of Management of Mettur Beardsell Ltd., Madras v. Workmen of Mettur Beardsell Ltd. and Ors. 2004 LAB. I.C. 2944 for the proposition that the transfer of workmen without their consent is bad. Learned Counsel also relies upon a decision of the Supreme Court in the case of Governing Body of D.A.V. College v. P. Padhy and Ors. 1988 (2) AISLJ 180 for the proposition that admission in pleading has to be accepted as a whole or not at all.
30. On a consideration of the respective contentions of learned Counsels for the petitioner and respondent No. 3 this Court is clearly of the view that the findings of the Labour Court on the issue of mala fide are not based upon any material on the record, they are also based upon grounds which are nonest and extraneous to the matters in issue and further on complete misunderstanding of the applicability of the provisions of law on the point.
31. It is evident from the materials on the record that the respondent Union has completely failed to show as to how the respondent No. 3 has been transferred for the sole reason that he had been actively advocating the cause of the employees of the petitioner Company. The clear stand of the petitioner was that at no stage respondent No. 3 was actively involved on behalf of the workmen and as a matter of fact the petitioner was not even informed about his having been elected on the post of Vice-Chairman of the EMFSU or Treasurer of the BPSRU. Respondent No. 3 in his deposition has himself admitted that he had never raised any issue in writing before the petitioner company with regard to the employees of the Company; the Management witness on the other hand has clearly stated that all issues were being raised before the Management by the General Secretary of the Union. It was further admitted by respondent No. 3 that the President and the Secretary of the Union have been active all through.
32. Similarly the finding regarding the unfair labour practice with respect to the transfer of Chug and Anish Kumar appears to be wholly unjustified on the terms of reference before the Labour Court. The said matter did not form part of the pleading of the workman and thus was not an issue before the Labour Court. Even factually the court below has erred in holding that the said Chug and Anish Kumar were accommodated only after they agreed to resign from the position of General Secretary and other position held by them in the EMFSU. The same is not borne out by the concerned exhibit which is in fact an agreement reached between the Management and the EMFSU at a meeting of the Grievance Committee and no resignation was sought from the posts held as office bearers of the Union rather it was agreed that they would cease to be members of the Grievance Committee. The same being an agreed position between the Management and the Union and no issue regarding the same being raised by the Union before the appropriate forum, which was certainly not the Labour Court at Patna in the present matter, it was wholly an extraneous matter so far as the present case is concerned and it was not open to the Labour Court to arrive at the conclusion that unfair labour practice has been committed by the management with respect to Chug and Anish Kumar. This Court further fails to see how the respondent No. 3 has been unfairly treated merely to accommodate Chug when it is the Union itself which was admittedly contesting the case before the Labour Court, which had entered into the agreement that Chug would be accommodated in his home State. If the vacancy had arisen on account of such insistence by the Union with respect to Chug there can be no question of the respondent No. 3 being a victim of such accommodation by the act of the management alone when the same was at the behest of the Union which had raised the dispute of the respondent No. 3. in the Labour Court. It would be a travesty of law and facts to contend that the respondent No. 3 has been unfairly treated in order to accommodate other office bearers of the Union, while at the same time holding that unfair labour practice has been committed with respect to those very office bearers of the Union for being so accommodated by an agreement between the Management and the Union. In fact, since the said decision was part of an agreement between the Management and the Union, no charge of unfair labour practice could have been raised or considered by the Labour Court in this regard.
33. The Labour Court has also completely failed to understand that no Standing Orders are required with respect to any person who is not a workman, as under the Industrial Employment (Standing Orders) Act, 1946 a workman has been given the same definition as in the Industrial Disputes Act and it is well settled by the decisions of the Supreme Court that the sales promotion employee is not a workman. Thus, there is no requirement of any standing order with respect to sales promotion employees like the respondent No. 3.
34. Similarly the respondents were unable to cite any decision that unless there is a policy in writing of the Management regarding transfer, an order of transfer would amount to mala fide and unfair labour practice. As a matter of fact it was not even the case of the respondent No. 3 that transfer was not a part of his conditions of service as it admittedly formed a part of his appointment letter. Thus it was not open to the Labour Court to arrive at a finding which is contrary to the pleadings of respondent No. 3 and which is admitted by him in his deposition.
35. The decisions relied upon by learned Counsel for respondent No. 3 also do not support his case as in Arvind Dattatraya's case (supra) it was clearly held that an honest Excise Officer who had reported against Toddy contractor for cancellation of his licence had been transferred at the behest of the same Toddy contractor and thus it was a mala fide exercise of power to demoralize an honest officer in a case of victimization at the behest of aggrieved complainants carrying on business of illegal toddy. The same has no application in the present matter as the facts of the said case stand on wholly different footing.
36. Similarly in the case of Colour-Chem Limited (supra) the issue was with respect to punishment to be awarded on a misconduct of having been found sleeping while on duty and it was held that if others are let off by mere warning, the dismissal of one of the employees would amount to victimization while awarding punishment without considering the past record of the employee in question, and it was a shockingly disproportionate punishment. The said facts also have no relevance in the present matter which relates to transfer of an employee.
37. Similarly the case of Management of M.B. Ltd. (supra) related to transfer of a division of a Company to a partnership concern without knowledge and consent of the workmen and thereafter the management withdrawing from the said partnership and in the said circumstances it was held that there was no consent of the workman to the transfer of his service to another concern and the finding regarding consent of the workman was perverse. The said decision is wholly irrelevant on the question of transfer without consent within an organisation. There is nothing on the record to show that transfer could be made only with the consent of the employee and as a matter of fact that was not even the case of respondent No. 3 either in his pleadings or in his evidence before the Labour Court.
38. Lastly this Court finds a complete failure of the Labour Court in reaching a finding without there being an iota of evidence in support of such finding. The moment the plea of mala fide is raised the same has to be supported by specific and concrete pleadings and evidence and unless the finding of mala fide is supported by sufficient and proper evidence the same has to be held to be perverse. In the present matter there can hardly be any doubt that the Labour Court has reached its conclusion without any material on the record and capriciously and on flimsy ground. The law laid down by the Apex Court in the case of Management of Syndicate Bank Ltd. (supra) clearly applies on this point.
39. This Court is, therefore, of the view that there was no justification for the Labour Court to come to its conclusion regarding the transfer being mala fide or amounting to an unfair labour practice. The impugned award thus cannot be sustained on the said point and it is accordingly set aside.
40. Thus, the writ application is allowed but in the facts and circumstances of the case there shall be no order as to costs.