N THIRUMALAI Vs. BINNY LTD

JUDGEMENT

(1.) THIS revision is directed by the plaintiff against the order passed by the VI Additional Judge, City Civil Court, Madras, confirming the order of dismissal of the injunction application filed by him.

(2.) THE facts which are necessary for the disposal of this revision can be briefly stated as follows :-The case of the petitioner is that the jointed Binny and Co. Madras, on 10th March, 1954, as a clerk at the registered office at Armenian Street, Madras. As per the appointment orders issued in 1966 for clerks like him, they will be required to work at the registered office at Armenian Street or at Carnatic House at Perambur and that there was no express service condition that they were liable for transfer. There was no office at Carnatic House when he joined, and while the clerical and subordinate staff were transferred from Armenian Street to Carnatic House in 1966 to 1984, they were given a disturbance allowance of Rs. 300/-which meant that they were not liable for transfer. He had also not been transferred in the last 34 years, and the request of the other clerical staff was also negatived on the ground that there was no provision for transfer in the service condition. In 1969 when B and C Mills was amalgamated with Binny Limited, it was made clear that the conditions of service would be the same as before. It is further stated that he served the respondent-company at Madras for 34 years and that he has got only 3 years before he gets retired. He is a heart-patient and the company also knowns about it as it had reimbursed a portion of his medical expenses. His transfer from Madras to Calcutta is not bonafide. He is a member of the Binny Employees' Union. He was transferred on the ground that he spoke about the company casually It was also a rumour. According to him, if at the end of the his service he was asked to go to Calcutta, it would be at the peril of his life as he was a heart-patient. He also filed the injunction application stating that if the transfer order was given effect to, he would be put to great hardship. The said injunction application is resisted by the respondent, and in the counter-affidavit filed by the General Manager of the respondent-company, besides denying the allegations stated in the affidavit, it was inter alia contended that the respondent has got branch offices at Bombay, Delhi and Calcutta, which, among other activities are dealing in marketing of textile goods. It is a condition of service in the respondent-company that staff are available to be transferred from one establishment to another establishment and that there are records to substantiate the same. The petitioner was appointed on 8th March, 1954 and he is getting Rs. 3,100/-per mensem. He was posted at Sales Accounts Department right from his appointment at the Head Office at Armenian Street, Madras, Later he was shifted to Carnatic House, Perambur. In pursuance of the decision that the activities concerning sales should be decentralised and more particularly the Sales Accounts, Department should be carried on by Regional Centres, the sales accounts work of the eastern region was shifted from the Carnatic House, Perambur to the branch office at Calcutta, and consequently one of the staff had to be shifted from the sales accounts department. Accordingly the petitioner was transferred on 27th February, 1988 to the Branch Office at Calcutta and he was relieved of his duty on 3rd March, 1988. It is submitted that the contract of employment of the petitioner does not prohibit such a transfer and there is no scope to grant injunction against the order of transfer. Since the petitioner is a workman under Section 2 (s) of the Industrial Disputes Act, the suit in the civil court is not maintainable. According to the respondent, there were transfers of its employees of the clerical cadre and that there are about !i clerical employees working in the Sales Accounts Department and if the petitioner can persuade any other employee of his cadre to go on transfer to Calcutta, the respondent has no objection to consider that person and retain the petitioner at Madras. The petitioner filed a reply-statement denying the allegations in the counter-affidavit and reiterated that there is an express service condition for clerks like him that they are liable to be posted either at Armenian Street or at Carnatic House only and the service condition was not to transfer to Calcutta. The transfers referred to by the respondent were done only at the instance of the concerned staff. The trial judge dismissed the application on the ground that the management has got every right to transfer and even if it is found on humanitarian ground that he is suffering from heart ailment and that he has got only 3 years, it is for the management to re-consider and that it is not for the court to interfere with the transfer order. Aggrieved by the same, the petitioner preferred an appeal before the VI Additional Judge. City Civil Court, and the learned judge confirmed the said order of the trial court. Hence this revision.

(3.) MR. N. G. R. Prasad, learned counsel for the revision-petitioner, vehemently urged that the trial court as well as the lower appellate court are not justified in holding that the management has got inherent power to transfer even in the absence of specific provision in the contract of employment. According to the learned counsel, the management has no right to transfer if there is no specified clause in the order of appointment regarding transfer. In the instant case, admittedly there is no clause provided for transfer in the order of appointment of the petitioner in the year 1954. Since the right of transfer is governed by the contract, in the absence of specific term and specific clause in the appointment order, the transfer ordered in the case of the petitioner is illegal and liable to be set aside. According to him, the petitioner was working as a clerk for the past 35 years in the same place and that it is consistent with the contract of appointment. In this connection, the learned counsel for the petitioner drew the attention of tis court to the decision in T. Chandrasekar v. The C. M. P. Trust and Ors (1989-I-LLJ-294 ). Therein it was held (p 299) :