PETITIONER: CANARA BANKING CORPORATION LTD. Vs. RESPONDENT: U. VITTAL DATE OF JUDGMENT: 22/04/1963 BENCH: ACT: Industrial Dispute-Transfer of a Bank employee not belonging to subordinate staff-Application of Sastry Award- No absolute prohibition-Industrial Disputes Act, 1947 (14 of 1947), s. 33A. HEADNOTE: The respondent, a Bank employee not belonging to Subordinate staff, was transferred from one station to another. In an application filed by him under s. 33A of the Industrial Disputes. Act, he contended that the order of his transfer was mala fide and as was act of victimisation for his lawful trade union activities. He prayed for the cancellation of his transfer order. His prayer was accepted by the Labour Court which held that the transfer of the respondent was against the Sastry Award which provided that a clerk like the respondent could not be transferred outside the State or the language area in which he had been serving except with his consent. The appellant came to this Court by special leave. His contention was that the Sastry Award did not absolutely prohibit the Bank from transferring workmen not belonging to the subordinate staff outside the State or the language area in which he had been serving except with his consent. Moreover, as the order of the Bank had been found to be bona fide, there was no contravention of the Sastry Award, Held that the Sastry Award makes a distinction between the workmen belonging to the subordinate staff and others. While there was absolute prohibition against the transfer of the subordinate staff from their language area, there was no such absolute prohibition with regard to other workmen. The Sastry Award had laid down that "as far as possible", the other workmen were not to be transferred outside their language area but that left discretion with the Banks to transfer employee of the category of the respondent if the best interests 269 of the Bank so required. It was for the Bank to decide how to distribute its manpower in its best interests, Transfers were to be avoided if that could be done without scarifying the interests of the Bank. JUDGMENT:
CIVIL APPELLATE.JURISDICTION : Civil Appeal Nos. 755 of
1962.
Appeal by special leave from the order dated March 5, 1962,
of the Labour Court (Central) Ahmedabad, in Complaint No.
153 of 1961 in Reference No. 1 of 1960.
N. V. Phadke, S. N. Andley, Rameshwar Nath and P. L.
Vohra, for the appellant.
M. K. Ramamurthi; for the respondent.
1963. April 22. The judgment of the Court was delivered by
DAS GUPTA J.-This appeal by special leave is against the
decision of the Labour Court, Ahmedabad, in an application
by the respondent under s. 33A of the Industrial Disputes
Act. The appellant is a banking company which has numerous
branches all over southern India. The respondent joined the
service of the appellant-bank on June 14, 1951 and after
confirmation in September 1952 was posted at Udipi. He was
later transferred to Trichur; but on his representation was
transferred to Mandvi Branch, Bombay, in July 1956. On May
20, 1961, another order of transfer was made by the
appellant-bank posting the respondent back at Trichur. The
present application under S. 33A was made on August 26,
1961, praying that the transfer order of May 20, 1961 be
cancelled and the respondent permitted to continue at
Bombay. It was alleged in the application that the
appellant made the transfer order mala fide and as an Act
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of victimization for the lawful trade union activities of
the complainant. It was also alleged that the transfer was
made to deprive the complainant of his lawful dues.
This application was made before the National Industrial
Tribunal at Bombay before which proceedings in respect of an
industrial dispute between the appellant-bank and its
workmen was then pending. The National Tribunal transferred
the application to the labour Court, Ahmedabad, for
disposal. Before the Labour Court the appellant contended
that there had been no contravention of the provisions of s.
33 of the Industrial Disputes Act as no change had been made
in the service conditions of the respondent’s employment and
further that the transfer had been made bona fide on account
of sheer business considerations and exigencies of business.
It was also contended that the order of transfer made by the
bank did not offend the terms of the Sastry Award on the
question of transfer of Bank employees. The labour Court
held that under the terms of the Sastry Award the
appellant’s right to transfer his employees was limited to
this extent that a clerk like the respondent could not be
transferred outside the State or language area in which he
had been serving except with his consent. Holding that
there had been no such consent, it came to the conclusion
that the conditions of service of the respondent had been
altered in a manner not in accordance with the standing
order contained in the Sastry Award. Proceeding next on the
assumption that the Sastry Award permitted the Bank to
transfer clerks outside the State or the language area when
it was in the interests of the Bank’s business, it
considered the question whether the bank had no other
alternative but to transfer this particular clerk outside
the State or the language area in which he had been serving
and came to the conclusion that this had not been
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established by the Bank. The Court rejected the allegation
that the transfer had been made to victimize the respondent
for his union activities. Being of opinion however that by
the transfer the appellant had materially altered the
respondent’s service conditions and this alteration was not
in accordance with Sastry Award, the Court directed the bank
to cancel the transfer order and to retransfer the
complainant to Mandvi Branch, Bombay. The Bank has now
appealed against this direction.
The relevant direction in the Sastry Award on the question
of transfer is in these words :
“We direct that in general the policy should
be to limit the transfers to minimum
consistent with the banking needs and
efficiency. So far as members of the
subordinate establishment are concerned there
should be no transfers ordinarily and if there
are any transfers at all, they should not be
beyond the language area of the person so
transferred. We further direct that even in
the case of workmen not belonging to the
subordinate staff, as far as possible there
should be no transfer outside the State or the
language areas in which the employee has been
serving except, of course, with his consent.”
It is not disputed that these directions were binding on the
appellant-bank nor is it disputed before us that these
directions amounted to “standing orders” applicable to
Bank’s workmen within the meaning of s. 33 (2) of the
Industrial Disputes Act. It cannot also be doubted that the
result of the transfer would be a material alteration in the
respondent’s conditions of service.
Two contentions are urged before us in support of the
appeal. The first is that the Labour Court
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erred in thinking that the direction in the Sastry Award
absolutely prohibited the Bank from transferring workmen not
belonging to the subordinate staff outside the State or the
language area in which the employee had been serving except
with his consent. On a proper construction, it was urged,
the direction only required the bank to refrain from making
such transfers as far as possible and did not prevent the
bank from making such transfers where it was really found
necessary in bank’s interests. The second contention was
that when the bank claimed to have made the transfer in the
interests of its business and was found to have acted bona
fide, it should have been held that the direction in the
Sastry Award had not been contravened.
In our opinion, there is considerable force in both these
contentions. It will be noticed that in making the
directions as regards the transfer of workmen the Sastry
Award drew a distinction between workmen belonging to the
subordinate staff and others. As regards members of the
subordinate staff the direction was to the effect that there
should be no transfers ordinarily and there was absolute
prohibition against transfers beyond the language area of
the persons concerned. The words used for the purpose
are ……… “if there are any transfers at all, they
should not be beyond the language area of the person so
transferred.” As regards these workmen the award did not say
that “as far as possible transfer should not be beyond the
language area of the person so transferred.” It is easy to
see that here the prohibition was absolute. When they go on
to consider the case of workmen not belonging to the
subordinate staff, the member of the Tribunal however use
markedly different language and preface the direction with
the words “there should be no transfer outside the State or
the language area in which he is serving except of course,
with his consent” by the words “as far as possible”. It is
not possible to consider this direction as amounting
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to absolute prohibition without ignoring, the words “as far
as possible. It is clear that these words were deliberately
used to leave it to the banks to decide on a consideration
of the necessities of its business interests whether a
transfer of a workman not belonging to the subordinate staff
outside the State or the language area in which he had been
serving could be avoided or not, and directing that where
possible it should be avoided. We are satisfied the Labour
Court was in error in holding that transfers outside the
State or the language area can be made only with the consent
of the employees. What that clause means is that with
consent such transfers can of course be made, otherwise they
should be avoided as far as possible.
This brings us to, the question whether in the present case
the appellant contravened the direction in the award in
transferring the respondent outside the Maharashtra State in
which he was serving and also outside the language area in
which he had been serving. It is necessary to remember in
this connection that a bank which has branches in different
parts of the country has to distribute its total manpower
between these different branches in accordance with the
needs of these branches and with an eye to its business
interests. To attain the best results it becomes necessary
to transfer workmen from one branch to another. The best
interests of the bank may require at times that the transfer
should be made outside the State or the language area in
which a particular workman had formerly been employed. We
have found above that the right of the bank to distribute
its workmen not belonging to the subordinate staff to the
best advantage, even though this may involve transfers
outside the State or the language area in which a particular
workman had been serving, was left unimpaired by the Sastry
Award, except that such transfers have to be avoided, if
they can be avoided without sacrificing the interests of the
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bank. The management of the bank is in the best position to
judge how to distribute its man-power and whether a
particular transfer can be avoided or not. It is not
possible for industrial tribunals to have before them all
the materials which are relevant for this purpose and even
if these could be made available the tribunals are by no
means suited for making decisions in matters of this nature.
That is why it would ordinarily be proper for industrial
adjudication to accept as correct any submission by the
management of the bank that an impugned transfer has been
made only because it was found unavoidable. The one
exception to this statement is where there is reason to
believe that the management of the bank resorted to the
transfer mala fide, by way of victimization, unfair labour
practice or some other ulterior motive, not connected with
the business interests of the bank.
In the present case the Labour Court has rejected the
respondent’s challenge to the bona fides of the management.
It has held that there is no evidence whatever to support
the complainant’s allegation that he was transferred because
he joined the Union and that the management had adopted a
particular policy towards the workmen of the Union. We can
find nothing that would justify us in interfering with the
Labour Court’s finding that these allegations have not been
proved. It is true that the Labour Court has in considering
the question whether the conditions of his service had been
altered observed that the transfer seems to be very unfair”
to the employ) cc. What it obviously means by this is that
this transfer will work harshly on the employee. That may
indeed be true. But that does not amount to a finding of
unfair labour practice. In these circumstances the Labour
Court was not justified in thinking that the respondent’s
transfer to Trichur could have been avoided without any
injury to the bank’s interests.
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We have therefore come to the conclusion that the Labour
Court has erred in holding that the transfer was not made in
accordance with the “standing orders” regarding transfers as
contained in the Sastry Award.
We therefore allow the appeal, set aside the order of the
Labour Court and order that the respondent’s application
under s.33A be rejected. There will be no order as to
costs.
Appeal allowed.