JUDGMENT
AR. Lakshmanan, J.
1. The writ appeal is directed against the order of K.S. Bakthavatchalam, J. in W.P. No. 16715 of 1991 dated 26.4.1994 dismissing the writ petition filed by the appellant Union. Learned Judge has held that there is no mala fide in the transfers made, when transfers are made from two union alone. The writ petition was filed against the impugned action of the management relating to workers who are members of the appellant union employed in the Coach Factory at Viralimalai.
2. The writ petition was filed for a mandamus directing the Government of Tamil Nadu to refer the dis-pute relating to the transfer of 121 workmen declined to be referred in G.O. (D. No. 1076 dated 28.10.1991) by the Government of Tamil Nadu. The Government under the proceedings dated 28th October, 1991 after examining the conciliation report of the Joint Commissioner of Labour, Madurai dated4.7.1991 in regard to an industrial dispute raised by Sundaram Industries Employees Union, Madurai against the Management of Sundaram Industries Limited (Coach Division) Madurai over the issue relating to transfer of 122 workmen and passed the impugned order declining to refer the dispute for adjudication. The Government while considering the case had observed that the transfer of workmen is a managerial function and this workmen had been transferred from one place to another for specific administrative reasons such as operational requirements, fluctualtions in work order, the need to execute orders economically, productive utilisation, of labour, lack of adequate orders in some places etc. The Government also held that the allegation of victimisation or discrimination against the writ petitioner’s union had not been sub-stantiated. Out of 122 workmen, 33 workmen have accepted the transfer orders and joined duty at the new station and, therefore, the Government held that no action was considered necessary in respect of 33 workmen. Likewise the order of transfer of one P. Muniyandi was cancelled by the management it-self and nine workmen have since left the services of the management and there was no need to refer their case for adjudication. The Government also declined to refer the matter for adjudication in respect of 15 workmen as indicated in the remarks column. Like-wise the Government declined to consider the case of the remaining 64 workmen mentioned in paragraph 5 of his order and thought it not expediant to refer their cases for adjudication for the reasons recorded in the said paragraph.
3. The above order was challenged by the members of the Union employed in the Coach factory Viralimalai alone, and not by others. challenging the impugned order of the Government Mr. Prakash learned Counsel appearing for the appellant union contended that absolute control and lack of trade union protection exposed the workmen to every type of labour law violation and unjust treatment and without any collective bargaining ability workers were even denied basic dignity in treatment. The work-men are unable to bear this unjust situation and feu-dal treatment and inspired by the attempt of other T.V.S. Workers in Southern Roadways Limited (TVS) and Sundaram Motors (T.V.S. & Sons) forming genu-ine trade unions, the appellant union was formed and immediately enjoyed the membership of an over-whelming majority of the workers employed in the rubber factor, Madurai and Coach Factories at Madurai, Pudukottai and Viralimalai.
4. According to Mr. Prakash, the reaction of the respondent management to the new trade union movement was identical to the reactions of the management of the Southern Roadways Limited, Sundaram Motors (TVS & Sons) namely one of total hostility. According to him, the workers were treated in hostile discrimination in the matter of wages adopting 18(1) ‘settlement’ as devices and ordering cash incentives, advances and allowances under various heads to the members of the management run trade union again adopting 18(1) ‘settlement’ with puppet union as devices of discrimination and abuse of dis-ciplinary powers, dismissing of the office bearers, and leaders of the genuine trade union, abusing power of transfer to indulge in mass transfer of members of appellant union to expose them to financial harassment aimed at the union membership with no relevance to administrative necessity. Thus according to Mr. Prakash the entire purpose of the four pronged attack being to threaten the workers to give up the membership of the appellant union and to re-join in the management run trade union. To put in a nut-shell the workmen daring to exercise his basic right to be a member of a trade union of his choice, would have to necessarily face poverty by deprivation of his livelihood in one manner or another and a worker surrendering the precious right will be given allowances of total relaxation of work and disciplinary norms and patronage by the management. According to Mr. Prakash, if the union succeeds from the dispute they will be entitled to wages for the said period in question. The order dated 1.3.1990 in an adjudicatory order which merely states that as per the ruling of the Supreme Court reported in The Hindustan Lever Ltd. v. The Workmen (1974) 1 L.L.J. 94 relating to Hindustan Lever, there is power for the management to transfer. According to the counsel the issue is not the power but whether the power has been exercised mala fide and as a measure of victimisations. He also invited our attention to the similar orders passed with reference to other workers. It is the case of the learned Counsel for the appellant-union that the reasons given by the Government in the order impugned are adjudicated and that the Government cannot decline to refer the dispute for adjudication by giving reasons which determines lis between the parties. As the power under Section 10(1) is an administrative power and the Government, therefore, cannot adjudicate the dispute.
5. The writ petition was resisted by the management and the Secretary of the first respondent company filed a detailed counter-affidavit denying the allegations contained in the affidavit filed in support of the writ petition.
6. Mr. Jayaraman, learned Counsel for the Management submitted that the management had to transfer and post some of the workmen from Madurai, Viralimalai and Pudukottai to various locations so that they will be utilised for “after sales services’. In addition to that some people have been transferred from Madurai to Viralimalai and Pudukkotai, and in fact such a transfer and posting was made without any hindrance to the promotion and the benefits which such employees have been enjoying. In fact, the persons who have been transferred for ‘after sales services’ were also granted an additional allowance of Rs. 75 per mensem per worker, during the period of their stay at the transferred place which is in the nature of extra benefit to them. Most of the workmen transferred are working in their transferred places and thus it is contended that the transfer and deputation of these employees have been made only due to exi-gencies of work to meet the requirements of the units at Viralimalai and Pudukottai and elsewhere and there are absolutely no mala fide in the transfers. In fact, in come cases, even the posting itself was for temporary period depending upon the nature of work.
7. The Deputy Secretary to Government, Labour and Employment Department, Madras-9 has also filed separate counter-affidavit. He has submitted that the Government has passed orders after examining the contentions of both parties and the Government were satisfied and came to the conclusion that the man-agement had transferred the workers on bona fide administrative reasons and has passed orders declining the adjudication.
8. We have carefully considered the rival submissions made by the respective counsel. As rightly pointed out by Mr. Jayaraman the Management has right to transfer an employee and the management has got power and right to arrange their manpower requirement according to the needs and exigencies of business. We are of the view that in the instant case the transfers were made purely for administrative exigen-cies and requirements and therefore there are no mala fide in them. The fact that about 80 employees belonging to T.V.S. Workers Union (INTUC) have also been transferred places and they have reported at the transferred places without any protest or murmur, establishes beyond doubt that all the transfers were made solely for business reasons. The management had also given the reasons in detail as to why and for what purpose the transfers have been effected in their reply dated 19.8.1989. In fact it was submitted that the appellant union has an insignificant strength of members and that it does not even have the locus standi to raise the dispute with regard to the transfers. As regards the transfers to Viralimalai and Pudukottai were concerned, that during the months of April-May, 1989, there was not enough work at Madurai, whereas urgent export order for Emirates was received from Messers Ashok Leyland Limited, who is the main customer and that the order was time-bound and to be executed at Viralimalai and Pudukottai before the end of July, 1989. Since the available work force in those two places was not enough, the first respondent-management had to necessarily transfer the employees from Madurai, where there was not much work, to balance the work force and to avoid idle hours at Madurai and to finish the work with regard to the time-bound export order. Thus it could be seen that the transfers were made purely out of exigencies and administrative requirements. The conciliation officer submitted his conciliation report on 4.7.1991. The Government thereafter by its order dated 28.10.1991 declined to refer the issue of transfer of these employees for adjudication. In respect of employees 1 to 33 as mentioned in the impugned order, the Government has stated that those 33 employees have accepted the transfer and reported for work and in view of that, the Government said that no action is necessary in respect of those 33 employees. In respect of one employee by name P. Muniyandi, the Management had cancelled the order of transfer and, therefore, there was no necessity to refer to his case. In respect of nine employees, since they had already resigned and left the services of the 1st respondent the Government expressed the view that the question of referring their transfer for adju-dication did not arise. In respect of another set of 15 employees, since the Government had already declined to refer for adjudication by their earlier orders dated 1.3.1990 and 29.5.1990 the Government thought it fit not to refer the matter for adjudication. With regard to the remaining 64 employees the Government in its im ugned orders has given the reasons as extracted above in the paragraph supra. So far as the victimisation is concerned, it has been expressed in the order of the substantiated. With the above mentioned reasonings, the Government had declined to refer the matter for adjudication. To nullify the abovesaid order the appellant union has come for-ward with the writ petition.
9. As already noticed and narrated earlier, we are of the view that the management has got power to transfer an employee from one place to another and from one unit to another unit. Thus the transfer of an employee is part of conditions of service and the employees are bound to obey the orders of transfer and work in the place where they have been transferred and posted. As already stated the appellant union has no locus standi to raise the issue with regard to transfer of others. The majority union, namely, TVS Workers’ Union (INTUC) has not questioned the transfer of employees. In fact about 132 workers belonging to the TVS Workers” Union (INTUC) the majority union have obeyed the order of transfer and reported for work in the transferred places. The transfers of the workmen had been made for administrative exigencies and also to meet the requirements at Viralimalai and Pudukottai.
10. The Supreme Court has repeatedly ruled that transferability from one establishment to another is an incident of service and that the employer is the best judge to decide upon the utilisation and distri-bution of its manpower, amongst various units and places. The Court has further held that Courts and Tribunal cannot also properly assess or adjudicate effectively reasons given for transfer of employees. In other words, the effect of those ruling is the decision of the employers in such cases is conclusive and that except in the rarest of rare case, Courts should not interfere with transfer. In our opinion the case on hand is not one such a case. Hence, there is no need to go through the ritual of a reference. This apart from the fact that on merits the Government order is unassailable. In our view the Government has rightly declined to refer the matter for adjudication. The appellant union has not established their case of mala fides. The transfers, as already noticed, are purely on administrative reasons and, therefore, the Government has rightly declined the matter for adju-dication.
11. It is not the case of the members of the appellant union that the transfers have resulted in any reduction in status, seniority, emoluments or other benefits of the workmen, In fact the service condition of the workmen in terms of their status, wages, seniority etc. have not been prejudicially affected on account of the transfers and that perhaps explains why most of the workers belonging to the recongnised TVS Workers Union as well as Sundaram Industries employees union have accepted the transfer and joined at the New Places of work. Further the members belonging to the recognised T.V.S. Workers Union have also been involved in similar transfer during the period from April to August, 1989. Hence, the Government order relating to the transfer of 32 workmen who have accepted the transfer orders and joined duty at the new station declining for reference to adjudication is legally justified.
12. Mr. Prakash has not been able to substantiate his allegation of victimisation or mala fide in their transfer at the time of conciliation proceedings. No preju-dice has been caused to their service condition on account of the transfer. The co-workers involved in the transfer have accepted and acted on the transfers by joining at the new places of work. There are no special or distinguishing facts in their case to warrant a reference, since the second respondent have already declined adjudication in similar individual cases of transfer. The management have made these transfers necessitated by bona fide business exigencies and to distribute available manpower to differ-ent places where the business of the management is carried on. The Government have to consider the implications of a reference of this dispute and its adverse effect of unsetting the state of administration in the industry, besides impairing the existing state of industrial peace and harmony. Thus the Government’s order declining to refer the dispute involving the transfer of 122 workmen issued in the G.O. (D) No. 1076, Labour and Employment Department dated 28.10.1991 is fully justified, perfectly valid and legally sustainable.
13. Mr. Prakash has cited the following decisions reported in The Hindustan Lever Ltd. v. The Workmen (1974) 1 L.L.J. 94; M/s. Shaw Wallace & Company Ltd. v. State of Tamil Nadu (1988) 1 L.L.J. 177; Tamil Nadu Electricity Board Employees Sangam v. Tamil Nadu Electricity Board (1996) 1 L.L.N. 914 and Thiruvalluvar Transport Corportaion Ltd. v. K.P. Ganesan (1997) 2 L.L.J. 166. There cannot be any dispute or quarrel over the proposition of law laid down in the above cases. The judgments referred are depending upon the facts and circumstances of each case. Since the case on hand has been decided on the facts and circumstances, we feel that there is no need to refer the above citations. Since the matter in the present case has been decided on the pecuniary facts and circumstances of the case.
14. We are also unable to accept the contention of Mr. Prakash stating that the Government cannot decline to refer the dispute for adjudication by giving reasons which determine the lis between the parties and that the power under Section 10(1) is an admin-istrative power and the Government cannot adjudicate the dispute. We are unable to accept this contention. While coming to the conclusion for not referring the dispute for adjudication, the Government has to necessarily refer the reasons thereof. Merely dis-closing the reasons for declining reference which is incumbent on the Government cannot be equated with and compared with adjudication. Section 10 read with Section 12(3) of the Act confers very wide discretion on the appropriate Government either to refer or refuse to refer an industrial dispute. In this case the Government have bona fide exercised its discretion and had decided to decline reference. While passing the administrative orders under Section 12(5) of the said Act, the government is not prevented from considering the merits of the dispute raised by the workmen prima facie. Section 12(5) of the Act does not make it obligatory on the part of the Government to make reference of all disputes raised by workmen automatically. It has got discretion to refer or not to refer the dispute.
Therefore, while considering the prima facie case on merits, the Government has found that the reasons for transfer of the workmen are genuine business reasons and has thus disclosed the reasons relevant to the dispute. This would not tantamount to adjudication, as alleged by the appellant union. On proper consideration of the facts of the dispute, the Government, in our view, has exercised its power vested in them under Section 10 read with Section 12(5) of the Act. The workmen of the appellant union have not made out a case for issue of mandamus as prayed for. The writ petition is devoid of any merits and legal efficacy. None of the contentions raised by the appellant union is tenable nor the reliefs sought for by them is sustainable in the eyes of law. Under these circumstances, the writ appeal fails and is dismissed. The order of the Learned Judge dated 26.4.1994 in W.P. No. 16715 of 1991 impugned in this writ appeal is confirmed. However there will be no order as to costs.