M/s. Bata India Limited vs Presiding Officer, Industrial Tribunal-cum-Labour Court and Others

K. Kannan, J.—On an earlier hearing on 05.09.2013, I had expressed an doubt of how the revision under Article 227 was maintainable against an interim order passed by the Industrial Tribunal-cum-Labour Court. The counsel points out to me that by the 44th Amendment to Article 227 of the Constitution, all Courts and Tribunal are within the supervisory jurisdiction of this Court and therefore, even an order passed by the Industrial Tribunal or Labour Court at an interlocutory stage will still be amenable from the supervisory jurisdiction of this Court. I accede to the petitioner''s plea and I have proceeded to examine the case on merits. The impugned order came to be passed on an application filed by the management in a complaint u/s 33A of the Industrial Disputes Act complaining that during the pendency of the reference to a Labour Court, the management had passed orders of transfer and therefore, they constituted alteration of condition of service that fell within the mischief of Section 33A of the Industrial Disputes Act. The management''s objection, inter alia, was that the reference which was alluded to in the petition filed u/s 33A was itself incompetent in the forum, for adjudication could be only an Industrial Tribunal and not before the Labour Court. The application which gave rise to the impugned order came to be filed at the time when the reference made to the Labour Court was rejected by the Labour Court. The management, therefore, had a new ground to urge that in view of the rejection of reference before the Labour Court, there was no proceeding which was pending that can bar the management from issuing orders of transfer. According to them, transfer was a natural incident of service and power to transfer was available under the Certified Standing Orders to which all the workmen were bound.

The Labour Court has dismissed the application on a reasoning that an earlier plea by the management that the petition itself was not maintainable before the Labour Court had been already disposed of and therefore, this petition cannot be taken afresh. I find the order of the Labour Court to be erroneous. It failed to take note of important subsequent event of the dismissal of the reference made to the Labour Court for an alleged industrial dispute raised by the workmen. With no substance of any proceeding before Labour Court and Industrial Tribunal, the order of transfer itself cannot be a subject of complaint. Further the issue of whether a transfer of employee could constitute an alteration of conditions of service and ran counter to Section 33A of the Industrial Disputes Act would have to be examined in the context of all the conditions of service for which notice of change was required to be given. Fourth Schedule to the Industrial Disputes Act sets out 11 instances which could come within the purview of the conditions of service the change of which could be actionable u/s 33A. This Court had an occasion to deal with the subject in Eicher Motors Limited Vs. The Presiding Officer, Labour Court and Another, where this Court has held that transfer by itself cannot be permitted to be a condition of service and the change of conditions in service as contemplated u/s 9A would refer only to one of the subjects as found in 4th Schedule of the Industrial Disputes Act and since the Schedule did not include transfer as one of the subjects constituting a change in service, a complaint u/s 33A will not include a transfer as one of the subjects constituting a change in service. This ruling would lend credibility to an argument made by the counsel appearing on behalf of the petitioner that the petition could not be maintained. I thought over the issue of whether the matter would require to be remitted to the Labour Court for consideration of this petition as a preliminary issue. I find this to be a purely needless exercise for the reasons which I have brought out that a transfer could not have been made the subject of complaint u/s 33A. The order passed already is quashed and the civil revision is allowed. The case pending before the Labour Court is also directed to be quashed and no further proceedings are necessary.