ORDER
H.L. Gokhale, J.
1. The petitioners herein are workmen working under the respondent No. 1 Company. They have filed this petition being aggrieved by the order dated 12th August, 1999 passed by a member of the Industrial Court (respondent No. 4 herein) under the Maharashtra Recognition of Trade
Unions & Prevention of Unfair Labour Practices Act, 1971 (“M.R.T.U. & P.U.L.P. Act” for short) in Complaint (U.L.P.) Nos. 745 and 746 of 1999 declining to confirm the ad-interim in junction which had been granted earlier in that matter and vacating the same. The interim application at Exhibit- UZ in those two complaints stood dismissed by that order. The respondents No. 2 and to this petition are Mr. Raghavan Sr. Vice President (Mfg.) and Mr. Tondavalkar, General Manager (Personnel & Administration).
2. The facts leading to this petition are as follows:—
It is the case of the petitioners that the petitioners and other workmen resigned from their erstwhile Trade Union- Bhartiya Kamgar Sena and joined one Chemical Employees Union on 6th July 1997. It is their further case that they informed the management about their resignation on 8th July 1997. The workmen apprehended that the management would close down the particular unit situated at Borivli in Mumbai and therefore they filed an earlier complaint bearing Complaint (ULP) No. 951 of 1997 against the apprehended closure. The learned Judge of the Industrial Court was pleased to grant an ad-interim injunction thereby restraining the respondents from effecting the closure. That order was passed on 17th August, 1997. Thereafter the 1st respondent put up a notice on 19th October, 1997 intimating the workmen that a lock-out will be effected from 4th November, 1997. Thereafter the Industrial Court rejected the interim relief application filed by the workmen in that ULP complaint which led to an earlier writ petition bearing No. 1980 of 1997. The matter initially appeared before my brother Lodha, J., who rejected the interim prayers. Subsequently the matter came before my brother A.P. Shah, J., who passed a consent order on 30th July 1998 directing the respondents to lift the lock-out. Subsequently certain clarifications of that order were sought and the workers were expected to give production as per certain norms which were agreed in an earlier settlement between the recognised Union (Bhartiya Kamgar Sena) and the management in the year 1994. The work was supposed to resume thereafter. It is the case of the respondent management that accordingly the work was started at the end of September 1998, but the actual production process is reported to have started on 17th October 1998. Thereafter in July 1999, i.e. on 15th July 1999 and 17th July 1999, some 190 workmen were issued transfer letters directing them to report to the place of work at Satara and Baroda. That led to filling of the present complaint (ULP) Nos. 745 and 746 of 1999 seeking an injunction against implementing those transfer letters/orders. Initially, as stated above, an ad-interim order was granted, but subsequently the same was vacated and the interim application came to be rejected by the order dated 18th August 1999. Being aggrieved by that order, the present petition has been filed.
3. The petitioners have filed an additional compilation of documents and on behalf of the respondents No. 1 to 3, the respondent No. 2 has filed an affidavit. Mr. Cama has appeared for the petitioners whereas Mr. Singhvi represented respondents No. 1 to 3.
4. Before we go to the gravamen of the complaints, what is to be noted is that the complaints invoke principally Items 3, 9 and 10 of Schedule IV to the M.R.T.U. & P.U.L.P. Act, 1971. Item 3 deals with the transfer of an employee mala fide from one place to another under the guise of the management policy, whereas Item 9 is concerning failure to implement Award, settlement or agreement. Item 10 deprecates acts of force or violence. As far as
the first allegation, namely that of the transfers being mala fide. Mr. Cama, learned Counsel for the petitioners, principally advanced the argument that this was on the basis of failure to justify the so-called unviability of the Borivli unit requiring the transfer of such a large work force from Borivli. He secondly submitted that this was to by pass the order of the High Court under which the respondents were required to lift the lock-out and in the true spirit the work must go on in Borivli itself. Thirdly he submitted that it is essentially a human problem and the consequences of such large scale transfer has got to be examined.
5. As far as the first item with respect to mala fide is concerned, Mr. Cama submitted that the responsibility to justify the transfers was on the respondents and the only material that they placed before the Industrial Court was the report dated 6th July 1999 made by the Vice President of the Company (respondent No. 2 herein) to the President justifying/explaining as to why the transfers had become necessary. Mr. Cama pointed out that although various figure with respect to the loss suffered in the Borivli unit were pressed into service, the balance-sheet or the audited reports were not produced in the Court below. Referring to the report of the Vice President, Mr. Cama pointed out that even as per the report and as per his affidavit filed in the Industrial Court, it was seen from para 5(k) thereof that on 5th July 1999 the workmen concerned had given production as per the settlement dated 18th April 1994. Mr. Cama also pointed out that the workmen had disputed and contended that the notices of less production were false and they had explained as to why the production was less earlier. Alternatively, Mr. Cama submitted that assuming that there was some factual material available to the respondents to support their decision, still if the transfers were being effected to avoid the requirements of law, it would amount to legal mala fides. In the instant case, he submitted what had happened was that some 190 employees were sought to be transferred to far off places, whereas the remaining 109 employees were sought to be covered under the notice of closure which the respondents have filed with the State Government. The submission of Mr. Cama was that the respondents wanted to close the unit somehow or the other and to circumvent the order passed by the High Court, this device was utilised.
6. As against this allegation with respect to mala fide Mr. Singhvi, Senior Counsel for the respondents, pointed out that in the assessment of the management and as per their record, the production at the Borivli unit had undoubtedly suffered. On the other hand, the other units at Baroda and Satara were doing much better and the unit at Borivli was in red and that was partly because of the activities and the attitude of the Union representing the workmen. He referred me to the correspondence and the language which was used by the Union which undoubtedly can be considered to be an intemperate language. Mr. Singhvi submitted that there was no proper response from the Union Leaders and the result thereof was the severe reduction in production. In a situation like this, if the management decided to go for partial closure and thereby to remove those who are casual or badli employees or those against whom departmental inquiries were initiated and were then suspended, and to transfer the remaining to protect their jobs as well as the production of the respondent Company, the action could not be called as mala fide.
7. As far as this aspect of mala fides is concerned, Mr. Cama submitted that from the reply filed in the Industrial Court, it was clear that the respondents No. 1 to 3 were trying to shift the production which was available in Borivli itself and it was to be shifted to Satara and/or Baroda, although the reply filed by the management in this Court states that it is not so and that there are no new orders pending in the Borivli unit. Mr. Cama submitted that looking to the fact that the work involved at all these three places was identical, surely the work which was going on till recently at Borivli could be continued hereafter. In view of the assurance by the management that the salaries received by the workers in Borivli will be protected at Satara and Baroda, Mr. Cama commented on the language of the Vice President’s report which describes the activities of the workmen as “cancer”. He submitted that if these workmen were troublesome, there was no use in transferring them at any other place because there also the same situation would arise. The real intention behind these transfers perhaps was to place these workers in awkward situation so that they will leave their jobs on their own. In the circumstances, Mr. Cama submitted that the inference has to be drawn prima facie that the transfers were effected as a device to circumvent the order passed by the High Court earlier and to avoid the rigors and spirit of the requirements of law.
8. As far as the right of respondent No. 1 to effect transfers is concerned, Mr. Cama pointed out that out of these 190 employees, some 168 did not have any Clause of transferability. This is because in their cases there were no appointment letters at all. As far as the remaining 22 are concerned, in the case of 5 employees there was a term which provided for transfer within the unit, whereas for others the Clause was for transfer to the sister concern. Admittedly, there is no agreement subsisting between the parties accepting or laying down the provisions for transfer nor is there any provision in the settled standing orders or the model standing orders laying down the circumstances in which transfers can be resorted to. Mr. Cama therefore submitted that non-transferability had become an implied condition of service. Any breach thereof would attract item 9 of Schedule IV of the Act as per the proposition laid down in S.G. Chemicals case, .
9. On this background, the question came up before the Industrial Court as to whether transfer could be considered to be an implied term in the service condition of the employees. A large number of judgments were cited from both sides. As far as the implied term of transfer is concerned, the judgment of the Supreme Court in the case of Kundan Sugar Mills v. Ziyauddin, was pressed into service by Mr. Cama. As far as the employees in the private sector are concerned, till this date that appears to be the leading judgment. In that case what had happened was that the management which had a sugar mill at Amroha purchased some machinery from another unit at Nainital and thereafter set up an independent concern at Bulandshahr where the employees in that matter were sought to be transferred. Initially, on a reference being made to it the Industrial Tribunal interfered with the orders of transfer. The Appellate Tribunal however reversed that order which led to the appeal in the Supreme Court. As far as the judgment of the Supreme Court is concerned, it has clearly stated in different paragraphs thereof that the question of law raised in that case must be answered in relation to the facts of that particular case. Thereafter in the facts of the particular case, the Court observed that there was nothing
on the record to indicate that at the time when the four employees joined the factory at Amroha, the management intended to purchase factories at other places or to extend its activities in the same line at different places. Thereafter the Court observed that 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. Thereafter at the end of para 4, the Court observed that the two factories are distinct entities situated at different places and to import a term conferring a right on the employer to transfer respondents 1 to 4 to a different concern is really to make a new contract between them.
10. However, what is stated by the Court in the earlier part of para 4 becomes relevant for our guidance. There the Court states “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?” In the facts of the particular case, the Court came to the conclusion by referring to the earlier judgments of different Courts that in the absence of justifiable material being placed on record, no such conclusion can be drawn.
11. In para 5 of its judgment the Supreme Court referred to a judgment of the Judicial Committee of the Privy Council in the case of Alexandre Bouzourou v. Ottoman Bank A.I.R. 1930 P.C. 118. That was a case of transfer of the appellant from one branch of the respondent Bank to another branch of the same Bank and the evidence showed that the transfer was one of the ordinary incidents of the Bank’s employment. That being the position, the transfer was upheld in the matter before the Privy Council. The Supreme Court quoted the observations of the Judicial Committee which were as follows:
“From the point of view of proper organization of their staff, it is difficult to assume that the Bank would willingly agree that their employees should not be bound to serve outside the place where the contract was made except with their consent, and, in their Lordships opinion such a condition of the contract would require to be clearly established.”
Thereafter the Supreme Court referred to the judgment in the case of Mary v. Selalimalai Estate, 1956(1) Lab.L.J. 343 (LAT I – Madras) where in the circumstances of that case the liability to be transferred was held to be implied as there was a common practice prevailing for several years to transfer the factory workers to the field and vice versa. Thereafter the Court referred to the judgment in Bata Shoe Co. v. Ali Hasan, where again in the circumstances of that case the transfer of the employee from one post to another was held valid and then the case of S.N. Mukherjee v. Kemp & Co. Ltd., 1954 Lab.A.C. 903 where the workman concerned was transferred from one branch to another and it was held that the transfer was implicit in the appointment of the person concerned. At the end of this para 5, the Supreme Court observed that “these observations must be limited to the facts of that case”.
12. Mr. Cama then submitted that as stated by the Supreme Court in para 4 of Kundan Sugar Mills case (supra), either there has to be a specific term in the contract providing for transferability or as can be seen from the different cases referred in that judgment the evidence with respect to past practice or otherwise has to be placed before the Court on the basis of which such a term can be implied. Mr. Cama submitted that in the present matter in the case of nearly 90% of the employees (168 out of 190) there was no clause of transferability. Besides, in the complaint filed in the Industrial Court, it was contended that transfers had not been effected earlier. He referred me paragraph 3(4) of the complaint in that behalf, with respect to which Mr. Singhvi pointed out that the paragraph is too vague and there is no specific statement therein to that effect. In any event, Mr. Cama submitted that it was expected of the management to show such instances and that no instances of past transfers were brought to the notice of the Industrial Court by the respondents during the course of the matter pending before that Court.
13. Mr. Cama then referred me to the judgment of a Single Judge of this Court (Lodha, J.) in the case of Group Pharmaceuticals Ltd. v. Blossom Godinho 1997(II) C.L.R. 911. In that case the employee concerned was sought to be transferred from Mumbai to Bangalore where the marketing division was shifted and she declined to move contending that there was no such provision for transfer. Relying upon the judgment in the case of Kundan Sugar Mills, the learned Judge took the view that apart from the fact that there was no specific term in the contract at the time of appointment of the respondent – a lady employee, the entire organisation was functioning at Mumbai and the Company neither had any branch nor any office outside Mumbai. That being the position, the learned Judge took the view that it could not be insisted that the respondent ought to go on transfer. Mr. Singhvi commented thereupon that this case could be distinguished inasmuch as can be seen from what is narrated above, there was no branch of the company outside Mumbai and hence the ratio in Kundan Sugar Mills case would squarely apply. Thereafter Mr. Cama referred me to a judgment of another Single Judge of this Court (Rebello, J.,) in the case of Sarva Mazdoor Sangh v. Innovations Garment Ltd., 1998(1) C.L.R. 278 which was a case wherein the manufacturing activities were sought to be transferred from Mumbai to Mussoorie and the workers were required to shift. The workmen concerned had filed a complaint of unfair labour practice alleging illegal lock-out. The Industrial Court had declined to grant interim protection and hence the petition had been filed before this Court. In the facts of that case, relying upon one earlier judgment of the Division Bench in the case of Maharashtra General Kamgar Union v. Vazir Glass Works Ltd., 1996(II) C.L.R. 990 the learned Judge interfered with that order and granted interim relief which was sought by the employees. As far as this case is concerned, Mr. Singhvi pointed out that the judgment in that matter had been clarified by the Division Bench in Appeal 1998(1) C.L.R. 1071- Innovations v. S.M. Sangh, that the observations ought to be read as prima facie observations and the Industrial Court was expected to decide the matter without being influenced by the observations made by the Single Judge at the time of passing of that order. Mr. Cama however pointed out that the Division Bench had not otherwise interfered with the order of the learned Single Judge whereby he had stayed similar large scale transfers.
14. Mr. Cama referred me to another judgment of the Apex Court in the case of B. Varadha Rao v. State of Karnataka, . That was a case concerning transfer of a Government servant from one place to another. The Supreme Court in paragraph 4 observed that transfer of a Government servant is an ordinary incident of his service but later cautioned that this power has to be exercised bona fide and not capriciously. The Court referred to a Division Bench judgment of this High Court in the case of Sheshrao Nagorao Umap v. State of Maharashtra, which in turn had referred to an earlier judgment of the Supreme Court in the case of E.P. Royappa v. State of Tamil Nadu, . The Supreme Court quoted with approval some of the observations of the Division Bench. But as far as the observations of this Court that transfer was an implied condition of service, the Court read it down and observed at the end of paragraph 5 “The observation that transfer is also an implied condition of service is just an observation in passing.” So even in case of Government servants, Mr. Cama pointed out that whereas in earlier in paragraph 4 the Court accepts that transfer is very much an ordinary incident of service, yet it states at the end of para 5 that it could not be said to be an implied condition of service. What is material to be noted is that at the end of paragraph 6, the Supreme Court made a distinction between senior Government servants and the Class III and Class IV employees and stated that continued posting in superior posts at one place is not conducive to good administration but position of Class III and Class IV employees stands on a different footing. The Court noted that transfers create numerous complications, hardship and demoralisation and disrupts the education of children.
15. Lastly Mr. Cama referred to and relied upon another judgment of the Apex Court in the case of Municipal Corporation of Pune v. Bharat Forge Co. Ltd., and pressed into service the observations of the Court in paragraph 34 of that judgment. Mr. Cama submitted that the Supreme Court had invoked the doctrine of Desuetude and laid down that those laws, which are not in force for a very long time, could not be brought into force to allege any breach thereof. In the instant case, he submitted that assuming that there was any clause of transferability in the appointment letters of 22 employees, they had not been transferred all these years and therefore when there was no such condition as far as the remaining 168 employees are concerned, it could be said that the particular provision was not insisted upon all these years and could not be now enforced.
16. Mr. Singhvi appearing for the respondents firstly submitted that as far as the right to reorganise the work force is concerned, it has been recognised long back by the Supreme Court in the case of Pary & Co., 1970(II) Lab.L.J. 429. In the case of Apex Marketing Federation Employees Union v. S.A. Patil, this Court had also upheld the transfer of the Head Office of the Marketing Federation from Bombay to Nagpur. In that judgment of Kurdukar, J., (as he then was ) reported in 1988 (1) Lab.L.J. 236, it was upheld that the Government had the power to effect such transfer and the shifting of the head office was in exercise of that power. Thereafter Mr. Singhvi submitted that the right to transfer was an implied condition of every service and relied upon a judgment of the Labour Appellate Tribunal in the case of Standard Vacuum Oil Company v. Emlpoyees, 1954(II) Lab.L.J. 355. At the end of
paragraph 4 of that judgment, the Appellate Tribunal has observed that the correct approach in such cases in their opinion would be to see to what extent the special provision or rules in the standing orders have affected or curtailed the general power of transfer of the employer which is implied in every contract of service. Thus in his submission there was a presumption of such a condition in every employment and what one had to see was as to whether there was any curtailment of any such power. He also referred to a judgment of a Single Judge of this Court (Lodha, J.,) in the case of Press Trust of India Ltd. Employees Union v. Press Trust of India, 1998(II) C.L.R. 1159. In that case, there were some 1500 employees spread all over India and the workman concerned was transferred from Bombay to Calcutta. In that judgment, looking to the totality of the facts, at the end of paragraph 7 the learned Judge observed that looking to the fact that the management had such large number of offices at various places all over India and the strength of nearly 1500 employees was engaged, prima facie it could not be said that the transfer of the employee concerned was not an incident of service. Mr. Singhvi then submitted that in all such cases what was expected of the employee was to first report to the place of transfer and then point out the difficulties if there were any, and in that support relied upon a judgment of a Single Judge (Srikrishna, J.,) in the case of Shivaji More v. Estate Manager, MSF Corporation Ltd., 1996(72) F.L.R. 447.
17. Some other judgments which have indirect bearing on the matter, were also cited by both the learned Counsel, which judgments are essentially on section 25-O or section 25-K or section 25-N of the Industrial Disputes Act, 1947. Thus for example, Mr. Cama referred to and relied upon a judgment of the Division Bench in the case of Maharashtra General Kamgar Union v. Vazir Glass Works Ltd., 1996(II) C.L.R. 990, which lays down that the adequacy and genuineness of the reasons for closure ought to be gone into, on which Mr. Singhvi commented that the same was necessary because of the requirement of the statute. Mr. Singhvi, on the other hand, referred me to the judgment of a Single Judge of this Court (A.P. Shah, J.,) in the case of Sarva Shramik Sangh v. Silk & Art. Silk Mills Research Association, 1999(3) L.L.N. 127 in which it has been laid down that it is for the management to decide how to avoid further deterioration of the financial conditions and on the material produced on record, the Court had come to the conclusion that the unit had become totally unviable.
18. Having referred to these authorities, Mr. Singhvi submitted that as far as this Court is concerned, the observation of the Judicial Committee of the Privy Council in A.I.R. 1930 P.C. 118 (quoted above in para 11) referred in Kundan Mills case is the law. He further stated that this Court should accept the proposition laid down by the Labour Appellate Tribunal in para 4 of Standard Vacuum case (supra) as the correct proposition of law, viz that right of transfer is implied in every employment. It is not possible for me to accept this submission for the clear reason that as far as this Court is concerned, the observations of the Supreme Court in para 4 in Kundan Mills case will have to be accepted as the propositions laying down the law wherein the Supreme Court has declined to accept that right to transfer is implicit in every contract of service by referring to it as “too wide the mark” and where the Court has laid down that apart from the statutory provisions, the rights of an employer and an employee are governed by the terms of the contract
between them or by the terms necessarily implied therefrom. This has got to be established on evidence. The decision of the Supreme Court in Vardha Rao’s case (supra), though with respect to the Government employee, is also instructive. In that matter, though the Court observed that the transfer is an ordinary incident of his service, it again specifically stated in paragraph 4 of the judgment that the observation that transfer is an implied condition of service is just an observation in passing.
19. Then conies the question as to whether there was an implied right of transfer in the facts of the present case and whether these transfers were bona fide or otherwise. In this context, Mr. Cama commented upon the order passed by the learned Judge of the Industrial Court and submitted that in view of the fact that the respondents had not relied upon any material other than their Vice President’s report and also in view of the fact that earlier the High Court had made efforts to resolve the controversy by calling upon the respondents to lift the lock-out to see to it that the factory works, it was expected of the learned Judge that he should have seen through the methods which were adopted by the respondents. In the submission of Mr. Cama, the action taken by the respondents was undoubtedly to find out a way to move towards the closure of the unit in Mumbai. But assuming without conceding that it could be explained in some way or the other, certainly the action could be called as one of legal mala fides. In any case in the absence of there being any specific term providing for transfer concerning 168 out of 190 employees, surely the Court could not have implied that term for those employees on the basis of remaining 22 employees in whose case also there were two different terms for 5 employees on the one hand and the remaining on the other. Mr. Singhvi, on the other hand, submitted that the management had the right to organise its labour. Whatever may be the reasons, the fact remains that the production in Mumbai had come down and in those circumstances the management had decided to go for closure as far as badli and temporary employees are concerned, whereas it had decided to transfer remaining 190 who are permanent. In the submission of Mr. Singhvi it was a bona fide and honest decision and there was no error on the part of the learned Judge in not interfering with that decision. With respect to the submission concerning the clause of transferability, Mr. Singhvi submitted that as such there were no appointment letters issued to 168 employees. He therefore submitted that though there were no appointment letters, they were being paid salaries on the basis of employees who were doing similar work and they were being given holidays also on the same basis as were being given to other employees. If that be so, if there was a clause of transferability in the appointment letters of other employees, surely there was nothing wrong on the part of the management in saying that the same will apply to those 168 employees also.
20. I have given my anxious consideration to the rival submissions. It is not possible for me to accept the submission of Mr. Singhvi that merely because the Bhor Unit existed earlier, the employees in Borivli will be liable to be transferred to Baroda and Satara when there is no clause of transferability specified for 160 employees. It is also not possible to accept that what applies to 22 will apply to 168 when there are no consistent terms for these 22 also, and when no evidence of past transfer has been placed before the Court. Surely it was for the management to lead the evidence and in the absence of such a material being placed before the Court, it will have to be
inferred that the management has failed to establish that there is any such implied right. The company has been functioning at all these places for so many years and surely the management could have produced the material concerning such past transfers.
21. As far as the allegation of mala fides is concerned, the workmen and the management have sought to emphasise particular aspects thereof from their point of view. As stated by the Union, the transfers were effected surely to circumvent the order which was passed by a Single Judge earlier and to move towards closure. On the other hand, from the view point of the management it was a step to avoid the axe of unemployment which would otherwise fall on 190 employees. As far as this controversy is concerned, it has come on record, that may be belatedly but just one day before the report of the Vice President, that the workmen concerned had given production in accordance with the norms. It has also come on record in the reply which had been filed by the management in the trial Court that the work which is sought to be done in Baroda and Satara is similar and in fact identical to one which was so far being carried on in Mumbai at Borivli. It is true that it is stated in the reply filed in the High Court that there is no shifting of orders over there. However in the reply filed in the trial Court, the stand is quite different. In the reply over there, it has been stated that the management had decided to shift some of the orders which had been placed earlier in the Borivli unit to Baroda and Satara. Thus it can be seen from paragraphs 5(1) of the reply of the respondents that “the company analysed the prospects and feasibility of shifting the manufacturing of some of its products and activities from Borivli Plant to other plants. In the company’s Satara Plant expanded Vinyl products and Insulation Tape are the main products. The Satara Plant was working in one shift only. The respondent company, therefore, felt that instead of getting the production of expanded vinyl products and insulation tapes from two plants i.e. Satara as well as at Borivli Plant (and when Borivli Plant is making huge losses), it would be advisable to get the production of expanded vinyl products and insulation tapes from profit making unit i.e. Satara Plant where there was scope for scheduling of two more shifts. With increased production with its ratio to costing, the company had good scope for eliminating the ever increasing huge losses of the company on account of its Borivli Plant by total stoppage of these manufacturing activities at Borivli Plant. The company decided not to disturb or put in jeopardy the working of Bhor Plant at Pune which had already stared reflecting the losses and particularly when it was not feasible to accommodate additional manufacturing activities. The respondent company therefore decided that it would be advisable to concentrate most of its Calendar, Mixing and Pigment operations of Borivli Plant to Boaroda Plant which was running in one shift only. The company assessed that with this strategy the Baroda Plant will have opportunity to increase and expand its production without additional financial burden on the company i.e. with the half of existing manpower of the company and with increased utilisation of the said plant and the company can further eliminate the losses of the company on account of running its Borivli Plant by totally stopping further manufacturing activities of Borivli Plant. The respondent company also felt that if the company does not take the aforesaid decisions of shifting of manufacturing activities of its Borivli Plant to other plants, the axe of unemployment would fall on all the
workmen of Borivli Plant as the closure of the manufacturing activities of the Borivli Plant had become unavoidable. The respondent company also felt that in the event of closure of manufacturing activities of Borivli Plant, aforesaid action of the respondent company of shifting its operation to other plants, the employment of workmen who are required to report for work at the other plants consequent upon shifting of various operations and activities from Borivli Plant, will also be saved. The respondent company on account of its aforesaid business evaluation for running its activities more efficiently, economically and effectively decided to shift some of its activities and operations of Borivli Plant to Satara and Baroda Plants and stop the same at Borivli Plant.”
22. Then again it is stated in the report of the Vice President that he has referred to the activities of the workmen as “cancer” spreading to other plants. If that was the opinion of the Vice President about the workmen, who were employed in Bombay, one does not know what was sought to be achieved by transferring these very employees to other places at Satara and Baroda. But then what is clear is that the work which was to be done in Borivli was hereafter to be done at Baroda and Satara by the very same employees and it was also stated that there service conditions will not suffer in any manner. It is true that the management may have its own ideas and they are justified in having them with respect to the economies and other benefits that they would derive from such an arrangement. But the fact that the very work is to be done by the very employees hereafter not in Borivli but at other two places is something which could not be ignored by the learned Judge of the Industrial Court. Prima facie therefore the submission of Mr. Cama that there was material which would show that the action of the respondents was a tainted one as aforesaid has much substance. Even with respect to the implied conditions of transfer, it has come on record that 168 employees do not have a clause of transferability, whereas other 22 do have some such clause. Now, merely because there was one unit earlier functioning at Bhor, the Industrial Court cannot read clause of transferability in the service conditions of these employees employed at Borivli to transfer them to Baroda and Satara. No evidence of prior transfers has been produced by the respondents. Surely the facts were heavily loaded to draw an inference that there was no such implied term in the facts of the case. Besides, the transfers, which were sought to be effected, were not to Bhor but to Baroda and Satara which were units set up subsequently to Borivli.
23. There was also the aspect as to the effect of declining of any such interim relief on the matter which was pending before the High Court and the order which this Court had earlier passed making efforts to see to it that the lock-out is lifted and the factory is started. At an interlocutory stage what the learned Judge is required to see is as to what are the prima facie legal rights of the parties and as to what is the balance of convenience in a matter like this. Surely the unit of the respondents at Borivli was working until the recent development took place and as can be seen from the Vice President’s report, just one day prior to his report the employees concerned had given full production. If that is the material on record, in my view, the learned Judge ought to have considered the serious prejudice that would be caused to such a large work force and the employees by declining the interim relief as against the benefit that would otherwise be available to the management if the order is vacated. Denial of the interim relief in a case involving these employees was likely to lead them to resign or join at the places where they
are expected to join, failing which it would invite disciplinary action. On the other hand, grant of interim relief as was sought by the petitioners would make the management restart the unit with whatever are their difficulties with the assistance of the Industrial Court, efforts could still have been made to see to it that the unit continues to function. The balance of convenience was certainly in favour of the petitioners. The workmen concerned are not highly paid employees. The transfers will require the employees to make alternate arrangement for residence and food which is not so easy apart from being expensive. On the homefront it will lead to disruption of the family, serious prejudice on the education of children and variety of difficulties. The Industrial Court could not have ignored these realities of life.
24. These are all prima facie observations and, in my view, such an approach was expected of the learned Judge. In the circumstances, the petitioners ought to have been granted the interim relief which they had sought in the trial Court.
25. I could have disposed of the petition at this stage itself, but Mr. Singhvi on instructions states that the respondents would like to file a detailed affidavit at a later point of time. Hence there will be rule on this petition. There will be interim reliefs in terms of prayers (c) and (d).
26. Mr. Singhvi on instructions points out that some three employees have joined at new place of work pursuant to the transfer orders. It would be open to these employees to serve at the place of transfer or in case they want to come back to the original place of their work, they may do so. This order does not mean that the proceedings before the Industrial Court are stayed in any manner. The Industrial Court will proceed with the complaint which is pending before it.
27. As it has been narrated earlier, Writ Petition No. 1980 of 1997 has been pending in this Court. Looking to the fact that my brother A.P. Shah, J., had earlier made efforts to resolve the controversy while attending to that matter, it would be desirable that this petition is also placed along with that matter.
28. Before I part with this matter, I would like to express my gratitude for the assistance rendered by Mr. Cama and Mr. Singhvi in drawing my attention to a number of judgments on the controversy.
29. Mr. Singhvi applies for a stay of this order. In the facts of the present case, there cannot be any stay of the order which grants injunction as sought by the petitioners and which was declined by the trial Court. The prayer made by Mr. Singhvi is therefore rejected.
Parties to act on the ordinary copy of this order duly authenticated by the Personal Secretary.
Certified copy is expedited.