JUDGMENT
A.M. Khanwilkar, J.
1. This Writ Petition takes exception to the Judgment and Order dated 31st October 2007 passed by the Industrial Court, Mumbai in complaint (ULP) No. 451 of 2007.
2. At the outset, it needs to be mentioned that the Industrial Court has extensively adverted to the pleadings filed by both the parties, for which reason, I do not wish to elaborate on those aspects in the present order.
3. In substance, the case made out in the complaint filed by the Respondent Union is that the Petitioners have engaged and are continuing to engage in the unfair labour practices under Item 5 of Schedule II of the B.I.R. Act, 1946 and Items 3, 5, 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971 on and from 22nd October 2007. According to the Respondent Union, it was long standing practice of 50 years that the representatives and office bearers of the Respondent Union would not be transferred by the Management. The transfers of representatives of Respondent Union was effected only on request. It was the case of the Respondents that the Petitioners had filed affidavit in other complaint filed by the Respondent Union and stated on said affidavit dated 8th June 2007 filed in complaint (ULP) No. 216 of 2007 that they had no intention to transfer the office bearers of the complainant union (Respondent herein) and other representatives of the complainant union from one place to another or from one depot to another or from one office to another malafide. However, the representatives of the Respondent Union came to be transferred on the basis of telephonic instructions on 20th October 2007. It is the case of the Petitioners that the long standing practice had ripened into an agreement and the transfer of about 100 office bearers/union representatives of the Respondent Union from one depot to another resulted in breach of such agreement as well as the undertaking resulting in commission of unfair labour practice. It was next asserted that the proposed transfer was malafide as it has been done in haste and with intention to affect the trade union activities of the Respondent Union. The transfer on telephonic message given on 20th October 2007 at 16.5 hours was done in haste and under the guise of following management policy without there being any justification in that behalf. It was also asserted that such action was not proposed against the representatives of other eight unions. That was obviously a favouritism or partiality to one set of workers regardless of merits. It was the case of the Respondents that the transfer orders was punitive and malafide. It resulted in withdrawal of customary privilege or change in usage as well as breach of undertaking given on affidavit dated 8th June 2007. The Petitioners filed reply affidavit opposing the grant of any interim relief.
4. After considering the rival pleadings and documents on record, the Court below, in the first place, proceeded to hold that there was long standing practice as claimed by the Respondents which had ripened into an agreement. For, there was no specific denial by the Petitioners to this assertion of the Respondents. In absence of such denial, the case of the Respondents in that behalf was accepted. The lower Court then proceeded to hold that breach of such agreement without compliance of Section 9A of the Industrial Disputes Act was clearly illegal. Here, it may be mentioned that the Counsel appearing for the Respondents though supported the finding of the lower Court on the issue of long standing practice which had ripened into an agreement, fairly submitted that the lower Court has wrongly mentioned Section 9A of the Industrial Disputes Act, 1947. Instead, for the same reason, ought to have relied on Section 42 read with Item 5 of Schedule II of the Bombay Industrial Relations Act, which is peri materia provision. The lower Court then proceeded to hold that no explanation has been offered by the Petitioners as to why only the representatives of the Respondent Union were chosen for transfer and no such action was proposed in relation to the representatives of other eight unions. It proceeded to hold that this resulted in discrimination and the action of the Petitioners was malafide. The lower Court has also adverted to other circumstances such as issuance of telephonic instructions at 16.5 hrs. on 20th October 2007, especially when the names of the representatives of the union did not find place in the earlier list nor the transfer was at the request of the representatives or their union. The lower Court has also found that the proposed action of the Petitioners was malafide because only representatives of Respondent Union were chosen with obvious purpose to break the trade union activity of the Respondent Union. The lower Court then proceeded to rely on reported decisions to hold that standing practice ripens into agreement. The lower Court has also noticed the argument of the Petitioners that if any interim relief was to be granted that will have a cascading effect on the duty schedule and particularly when formalities were complied by the concerned employees. It has, however, rejected that argument. The lower Court has noted that the formalities complied with by some of the employees was not out of choice but to obviate any disciplinary action; and that compliance cannot be the basis to deny interim relief, if the complainant was to make out prima facie case. The lower Court essentially proceeded to hold that the proposed action of the Petitioners was discriminatory and malafide and also in breach of long standing practice which had ripened into an agreement, thereby indulging in unfair labour practice within the meaning of items 3, 5 and 9 of Schedule IV of the MRTU and PULP Act, 1971. The correctness of this view is subject matter of challenge in the present Writ Petition.
5. Counsel for the Petitioners has contended that the inference drawn by the lower Court on the factum of long standing practice, much less, ripening into an agreement is devoid of merits. Learned Counsel would contend that on the other hand, there was clear provision in the service regulation in Clause 12.5 which empowers the Petitioners to transfer any employee. In other words, the service of the members of the Respondent union was on the transferable post. It is submitted that the admission that there has been breach of agreement is untenable. According to the Petitioners, word “settlement” has not been defined in the MRTU and PULP Act. For that reason, having regard to the provisions of Section 3(1), 3(2) and 3(1) of the MRTU Act, the word Agreement will have to be understood in the context of Section 2(p) of the Industrial Disputes Act, which defines the word “settlement” to include an agreement. That agreement is required to be arrived at in the course of conciliation proceedings and if it is an agreement arrived at outside the conciliation proceedings, then the same should be in writing, a copy whereof is required to be sent to the Officer authorised in that behalf by the appropriate Government and the Conciliation Officer. It was submitted that the question of there being scope of long standing practice ripening into an agreement and breach whereof would result in unfair labour practice does not arise at all. Inasmuch as, it is not the case of the complainant that the Agreement is a written agreement or that the requirements to acquire the status of statutory agreement has been fulfilled as is noted by Section 2(p) of the Industrial Disputes Act. On the above argument, it was contended that the conclusion reached by the Court below that there was breach of Agreement, will have to be overturned. To buttress this submission, reliance was placed on the decision in the case of New Standard Engg. Co. Ltd. v. M.L. Abhyankar and Ors. reported in 1978 (1) LLJ 487 (Para 7); Tata Chemicals Ltd. v. Workmen employed under Tata Chemicals Ltd. reported in 1978 Lab. I.C. 637 (SC) (Paras 9 to 11), Adil K. Patel v. Tata Iron & Steel Co. Ltd. reported in 1994 Lab.IC 2394 (Bom.), Fabril Gasosa v. Labour Commissioner and Ors. (Para 13), Arun Wankhede v. Executive Engineer and Anr. reported in 1992 Mh.L.J. 138 (Bom.) (Paras 6 to 9). It was then contended that the fact that the person was not transferred for quite some time does not vest any right in favour of such person. To buttress this proposition, reliance was placed on the decision Major General J.K. Bansal v. Union of India and Ors. (Paras 8 to 11). It was then contended that the factum of long standing practice or custom is a matter of proof at the trial and cannot be inferred by the Court at the interlocutory stage. Learned Counsel placed reliance on the decision of the Apex Court Munshi Dass v. R. Mal Singh (dead) by LRs and Anr. (Para 6) thereof to contend that custom has to be proved by cogent and reliable evidence. It was argued that the Petitioners have still not filed any reply to the complaint. In absence thereof, the Court below could not have drawn inference on the factum of existence of practice and customs on the basis of affidavit filed in opposition to the interim relief application. It was contended that there is absolutely no pleading as to how the concession or privilege was extended, by whom and under whose authority. On the other hand, the parties were governed by the service regulations which expressly provides that the service was on transferable basis by virtue of Clause 12.5 thereof. In such a situation, the waiver has to be express waiver or concession.
6. The Petitioners have then during the pendency of the present Petition filed further affidavit to counter the claim of the Respondents that in the past, at no point of time, any representative of Respondent Union was transferred. Reliance was specifically made on the transfer of M. Pandey who according to the Petitioners was representative of Respondent Union transferred firstly in July 2000 and again in November 2000. Reliance was also placed on two instances mentioned in Exhibit C to the additional affidavit indicating that representatives of other unions were also transferred in the past. Insofar as the finding of discrimination is concerned, learned Counsel would contend that the transfer is an exigency of service and the argument of discrimination would not take the matter any further for the Respondents. He placed reliance on decision reported in 2007 (115) FLR 363 Mohd. Masood Ahmad v. State of U.P. and Ors. in support of this proposition. He also placed reliance on the decision reported in 2002 Mah.L.R. (2) 177 (Bom.) COSMO Films Ltd. v. Sunil Vasudeorao Deshmukh (Para 8) to support the contention that transfer of service is not change of service condition so as to attract the rigours of Section 9A of the Industrial Disputes Act or for that matter, Section 42 of the B.I.R. Act. It was argued that with regard to the finding of proposed transfer being malafide, absolutely no material was produced by the Respondent complainant. It was also argued that the opinion recorded by the lower Court that the proposed transfer was malafide as the same was effected on the basis of telephonic instructions given on 20th October 2007 overlooked the factual position that said telephonic instructions were recorded in the Register maintained in the Office displayed on the Notice Board. According to the Petitioners, taking overall view of the matter, the Court below has completely misdirected itself in issuing interim directions in favour of the Respondents which will have serious consequence on the Petitioners, which has more than 24,135 employees, 356 routes to operate through public transport busses, 3489 vehicles to be deployed with 25 depots and 9 unions. It was submitted that the transfer from one depot to another depot was a routine matter for administrative exigencies which was done in every four months. It was argued that it was not only the case of transfer of 100 representative members of the Respondent Union but in all 759 members were transferred. It is thus submitted that there was no case for grant of interim relief in favour of the Respondents as has been granted by the lower Court, which is a manifest error committed by it.
7. Per contra, Counsel for the Respondents would contend that this Court will have to bear in mind the scope of interference with the order of the lower Court in exercise of writ jurisdiction. From the materials on record, it would be seen that no fault can be found with the opinion recorded by the lower Court that there was no specific denial in relation to assertion of the long standing practice ripening into an agreement by the Petitioners; as also the finding recorded by the lower Court that no explanation whatsoever has been offered by the Petitioners as to why only the representatives of the Respondent Union were chosen and no such action was proposed against any of the representatives of other eight unions; coupled with the fact that the transfer of the 100 representatives of the Respondent Union was ordered on telephonic instructions smacks of malafide and discriminatory action. Findings so recorded by the lower Court were unexceptionable. In any case, that findings reached by the lower Court was a possible view. With regard to the opinion that long standing practice ripens into agreement, the lower Court in support of that proposition, had relied on reported decisions; and no fault can be found with the decision of the lower Court particularly rendered at this interlocutory stage of the proceedings. Learned Counsel for the Respondents would contend that the finding of the lower Court on the factum of malafide issuance of order with a view to wreck vengeance so as to affect the trade union activities of the Respondent Union as also the finding of discrimination is writ large from pleadings presented before the lower Court and the view so taken being a possible view, no interference is warranted in exercise of writ jurisdiction.
8. It was argued that the explanation offered by the Petitioners during the hearing of this Writ Petition that the reply filed before the lower Court was not exhaustive and short reply was filed due to paucity of time, deserves to be stated to be rejected. Inasmuch as, the Petitioners had more than five days at their disposal for filing reply and that they did file reply running into 16 pages and list of documents of about 22 pages. It is not a case as if the Petitioners had no fair opportunity to defend themselves. The Petitioners having failed to offer any explanation with regard to the allegations of discrimination and malafide made in the complaint, no fault can be found with the conclusion reached by the lower Court in that behalf. On this finding, the opinion recorded by the lower Court that it resulted in unfair labour practice within the meaning of items 3, 5 and 9 of Schedule IV of the MRTU and PULP Act was unexceptionable. It was argued that the fact that the 100 representatives of the Respondent union were transferred on telephonic instructions has been admitted by the Petitioners and the Petitioners have offered no explanation or justification for transferring them on such telephonic instructions, which was an unprecedented action depicting malafide of the Petitioners. Significantly though, the General Manager was impleaded as Respondent No. 2 by name in his personal capacity as also on behalf of all the Officials, Managers, Representatives of the Petitioners undertaking, no reply affidavit was filed by the Respondent No. 2 before the lower Court to deny the charge of malafide action. Neither any explanation was forthcoming as to why the proposed transfer was only in relation to the representatives of Respondent Union and not against the Representatives of any other eight unions. Those deficiencies remained unexplained though the Petitioners have chosen to file additional affidavit before this Court. It was argued that if the Petitioners were unable to bring on record some of the documents or had any grievance-that could have been addressed by the Industrial Court in exercise of review jurisdiction under Section 30 of the MRTU and PULP Act. The Petitioners should not be heard on matters which travel beyond the pleadings and materials before lower Court. In any case, the said pleadings, do not take the matter any further as the finding of the Industrial Court on the crucial facts are unexceptionable.
9. Counsel for the Respondents has placed reliance on the decision reported in 1976 ICR 206 (Bom.) (Division Bench) Premier Automobiles Ltd., Bombay v. Engineering Mazdoor Sabha, Bombay, which takes the view that the word agreement appearing in the MRTU Act will have to be given wide meaning to include the terms of service agreement “express or implied”. This decision of the Division Bench was followed in another decision of the Single Judge of our High Court reported in 1982 Lab.I.C. 1759 The Premier Automobiles Ltd. v. The Engineering Mazdoor Sabha and Ors. (Para 16). Reliance was also placed by the Counsel for the Respondent reported in 1986 (52) FLR 39 (Bom.) B.E.S.T. Undertaking Bombay and Anr. v. B.E.S.T. Kamgar Sena and Ors. which takes the view to support the plea that long standing practice ripens into agreement. Reliance was also placed on another unreported decision of the Single Judge of our High Court in the case of Tata Tea Ltd. (Bombay) Employees’ Union v. Tata Tea Limited and Anr. decided on September 19, 2007 in Writ Petition No. 4009 of 1997 in particular Para 27 thereof which upholds the argument that long standing practice ripens into agreement attracting rigours of Section 9A of the Act. Counsel for the Respondents also relied on the decision in the case of Richardson & Cruddos (1972) Ltd. v. Mahadeo reported in 1984 Lab.I.C. 1227 (Single Judge) Bombay, (Paras 7 and 8) wherein the Court was called upon to consider the argument of discrimination in the matter of transfer which plea was upheld in favour of the employee. On the above submissions, Counsel for the Respondents submits that no interference is warranted in exercise of writ jurisdiction.
10. Having considered the rival submissions, I shall straightaway proceed to examine the correctness of the view recorded by the lower Court in Para 15 wherein it is observed that
It appears from the record that as pleaded by the complainant Union there has been 50 years long existing standing practice for not transferring the Union Representatives/Office bearers from one Depot to another Depot. So, the long standing existing practice has ripened into an Agreement. There is no specific denial on the part of the respondents to the submissions of the complainant Union.
11. Insofar as the fact that there is no specific denial on the part of the Petitioners to the assertion made by the Respondents that there has been long standing practice for 50 years, that finding is unexceptionable. That view has been rightly taken by the lower Court on the basis of pleadings as filed. Counsel for the Petitioners has not invited my attention to any averment in the reply affidavit filed before the lower Court which would dispel this opinion.
12. Be that as it may, what is relevant for our purpose is the opinion recorded in Paragraph 17 of the impugned decision. The Court has observed thus:
…According to him, the respondents have choose the Union Representatives of the complainant Union to transfer from one Depot to another Depot. There is no explanation of the respondents in this regard why the other Union Representatives of other Unions are not transferred. The respondents have also not stated the single name of the Union Representatives of other Union in respect of transfer by written or oral telephonic Order.
Once again, the abovesaid finding of fact recorded by the Industrial Court is unexceptionable. No explanation whatsoever has been offered by the Petitioners as to why representatives of any of the other eight unions were not chosen for such transfer “much less by issuing telephonic transfer order”. Notably, the justification for issuing telephonic transfer order, that too, only against the representatives of the Union, is not forthcoming at all. That was the threshold requirement. Thus understood and keeping in mind, the logical conclusion deduced by the lower Court on the basis of the abovesaid finding, it resulted in unfair labour practice under item Nos.3 and 5 of Schedule IV of the MRTU and PULP Act will be inevitable. In Paragraph 18, the lower Court has proceeded to record as follows:
…However as a matter of fact that the respondents have transferred only the Union Representatives of the complainant Union, and they have not transferred any Union Representatives of other Unions. So it can be said that there is malafide intention of the respondents to transfer the Union Representatives of the complainant Union to one Depot to another Depot to break the Union activities….
13. The lower Court has rightly accepted the case of the Respondents at this interlocutory stage that the attempt of transferring the representatives of the Respondent Union in this fashion was to break the union activities of the Respondent Union, which is the only approved and registered union in the Transport Department out of the nine Unions. The explanation offered on behalf of the Petitioners that attempt was made to maintain the strength of the the representatives of the Respondent Union unaffected in the depot, is wholly irrelevant. Inasmuch as, if the Petitioners have failed to offer any justification for issuing transfer order on telephonic instructions and more so having failed to offer any explanation as to why such orders have been passed only in respect of representatives of the respondent union, such act was not only covered by item 3 but also by item 5 of Schedule IV of the MRTU Act. The exposition in the case of Richardson & Cruddos (1972) Ltd. v. Mahadeo (supra) is rightly pressed into service by the Counsel for the Respondents. To the extent of that opinion recorded by the lower Court, no interference is warranted. Indeed, on the finding that the impugned action of the Petitioners was “discriminatory and malafide”, the logical order to be passed is to interdict such action. Else, the Petitioners in the guise of administrative exigency will get away with their malafide and discriminatory act qua the Representatives of the Respondents and permitted to reap the benefit of their own wrong. Significantly, though the General Manager was impleaded by name and the impugned act is attributed to him, has not chosen to file his affidavit either before the lower Court or this Court to counter the allegations of malafide. I am conscious of the fact that the Petitioners have attempted to offer some explanation in the additional affidavit filed before this Court but that affidavit also does not cure the abovesaid deficiencies noticed by the lower Court in the pleadings filed before it.
14. The Petitioners have now placed reliance on the instances as can be discerned from Exhibit A and Exhibit C to the additional affidavit. Exhibit A refers to the case of M. Pandey. In the first place, this affidavit was handed in at the time of arguments. Be that as it may, I find substance in the stand taken on behalf of the Respondents that if the Petitioners wanted to rely on any new material they could have approached the lower Court by way of review under Section 30 of the Act, which is a statutory remedy provided to them. Besides, the Respondents have disputed the fact that the said M. Pandey was member of the Respondent Union at the relevant time. Further more, it is contended that only one example has been cited by the Petitioners of Respondent Union which presupposes that that was only an exception to the rule that it has been long standing practice for 50 years that the representatives of the Respondent Union shall be transferred. It is the case of the Respondents that the transfers of representatives of the Respondent Union were effected on request and not as a matter of course. Suffice it to observe that as the Petitioners have made out a new case for the first time before this Court and the Respondents have disputed the same, those aspects will have to be addressed during the trial.
15. For the time being, I do not wish to examine the issue raised on behalf of the Respondent Complainant that there was long standing practice of 50 years which has ripened into an agreement. It is enough for me to uphold the decision of the lower Court on the other two counts which weighed with the lower Court that in the fact situation of this case the proposed transfer was malafide and discriminatory, resulting in unfair labour practice within the meaning of items 3 and 5 of the Schedule IV of the MRTU Act. Insofar as that finding of the lower Court is concerned, that is a possible view on the basis of pleadings and documents on record which were placed before the lower Court. It is not a case of a perverse view taken by the lower Court or for that matter any error apparent on the face of the record committed by that Court. If the said findings were to be upheld, as I am inclined to do, it necessarily follows that the interim relief granted by the lower Court can be upheld on the basis of those findings as all relevant issues in connection with the said view have been considered by the lower Court which merits no interference in exercise of writ jurisdiction.
16. Indeed, even with regard to the issue in the context of item No. 9 of Schedule IV of the Act as to whether there has been breach or failure to implement any agreement, the Court below has relied on the fact that there is no specific denial about the long standing practice observed between the parties. On that finding, the lower Court then went on to hold that the said long standing practice would ripen into an agreement. That opinion is founded on the principle stated in B.E.S.T. Undertaking Bombay (supra) and unreported decision of our High Court in Tata Tea Limited (Bombay) Employees’ Union (supra) (Para 27). To get over this position, Counsel for the Petitioners has relied on decisions particularly on Arun Wankhede’ case (supra) which according to the Petitioners takes the view that the word agreement appearing in provisions of MRTU Act will have to be understood in the context of Section 2(p) of the Industrial Disputes Act, in which case, the so-called long standing practice relied upon by the Respondents will be of no avail. As mentioned earlier, it is not necessary for me to burden this Judgment with the wider question as to whether the view taken by the Single Judge of our High Court in Arun Wankhede’s case (supra) is not consistent with the opinion of the Division Bench in the case reported in Premier Automobiles Ltd. (supra) or the other two decisions pressed into service on behalf of the Respondents in B.E.S.T. Undertaking Bombay (supra) and Tata Tea Limited (Bombay) Employees Union (supra). Those aspects can be considered at the appropriate stage.
17. As mentioned earlier, for the time being, I am inclined to uphold the impugned order on accepting the finding on the factum of proposed transfer orders being malafide and discriminatory, resulting into unfair labour practice within the meaning of item Nos.3 and 5 of Schedule IV of the M.R.T.U. Act.
18. Accordingly, this Petition is dismissed with costs.
19. At this stage, Counsel for the Petitioners prays that the ad-interim order granted by this Court on 5th November 2007 be continued for a further period of two weeks to enable the Petitioners to take up the matter in Appeal, if so advised.
20. Counsel for the Respondents have stoutly opposed continuation of ad-interim relief, which according to the Respondents was granted ex-parte against them and more so because the transfer order was effective only for a period of four months from 1st November 2007. However, I find it appropriate to continue the ad-interim order which has been granted on 5th November 2007 for a period of two weeks from today. Ordered accordingly.