C. SATHISHA Vs. GANESH GEARS PVT. LTD.

JUDGEMENT

(1.) PETITIONER when terminated from service led to an industrial adjudication whence the Labour Court by an award directed reinstatement, which when called in question in a writ proceeding, petitioner and the respondent entered into a settlement. In terms of the settlement petitioner was appointed afresh as a "semiskilled operator", by letter dated 2.11.2009- Annexure-B. There afterwards ,by letter dated 6.1.2010- Annexure -C, petitioner when transferred to discharge duties at the respondent's industry in Tamil Nadu, was called in question by way of a conciliation proceeding under the Industrial Disputes Act, 1947 (for short "the Act") which ended in a failure report, whence the State Government by order dated 31.1.2011 referred, for adjudication, the industrial dispute, to the Industrial Tribunal, Mysore, registered as Reference No. 43/2011. Parties having filed their respective pleadings, the respondent-employer examined one witness as MW-1 and marked three documents while the petitioner was examined as WW-1 and marked documents Exs. W1 to W10 and another witness as WW-2. The Industrial Tribunal having regard to condition No. 7 in Ex. W3- the terms of appointment and Clause No. 8 of the Sending Orders Ex. M3, providing for transfer of the workman at any time from one job or department to another job or department or to any branch, another factory or office at anytime in future, and, in the absence of malafides declined to accept the plea of the petitioner that the transfer was with malice. The industrial Tribunal observed that in Indian Telephone Industries Ltd. vs. Prof. P.N. Shetty 1997 FLR (91) 585 (Kar), this court held that the employer has a right to transfer an employee, an exclusive prerogative of the management, employment being primarily a creature of contract, the terms of which are modified only to the extent they are superseded by law, contract or award and that, if the transfer changes the identity of employment to the prejudice of the workman or employment conditions, on proof of existence of malafides in the order of transfer, then alone the order could be challenged, and accordingly, by the award dated 22 August 2012 rejected the reference. Hence, this petition.

(2.) HAVING heard the learned Counsel for the petitioner, the submission that on the petitioner being offered a fresh appointment in terms of the settlement during the pendency of the writ petition challenging the award of the Labour Court, which when accepted by the petitioner -workman was discharging duties at Mysore, the transfer to Tamilnadu is malafide, is unacceptable. The Industrial Tribunal, as a matter of fact, observed that no malafides are alleged much less proved and therefore, the challenge to the order of transfer is unavailable to the petitioner. In my considered opinion, no exception can be taken to the reasons, findings and conclusions arrived at by 4e Industrial Tribunal in the award impugned. Petition devoid of merit is accordingly rejected.