R.A.Sharma - (1.) PETITIONER No 1 is a Trade Union and petitioners Nos. 2 to 5 claim to he the employees of Hotel Taj Ganges, Varanasi (hereinafter referred to as respondent No 3.) They have, by means of this writ petition, challenged the validity of Clause 15 of Certified Standing Orders, which provides for transfer of the employees of the Hotel from one place to another.
(2.) RESPONDENTS have filed counter affidavit and supplementary counter affidavit and the petitioners have filed rejoinder affidavit and supplementary rejoinder affidavit in reply thereto. Hotel Taj Ganges Employees Union has also been impleaded as a respondent. I have heard learned counsel for the parties. Petitioners Nos. 2,3, 4 and 5 were appointed by the respondent No. 3 on 21-4-1984, 28-6-1983, 1-12-1986 and 1 3-1982 respectively. Their appointment letters contained the condition in Clause (e), which is reproduced below, for their transfer from one place to another : "(e) You have been initially posted Room Boy in the House Keeping Department, but you are liable to be transferred at any time from one post to another, from one department to another, from one hotel to another on a temporary or permanent basis, anywhere in India of abroad in the Taj Group of Hotels or its associates, its matin and you shall be governed by the rules, regulations/terms and conditions/service conditions/standing orders of the Unit where you are posted or transferred." In 1984 the standing orders, under industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the Act), were certified after giving opportunity of hearing to the Hotel Taj Ganges, Employees Union. Clause 15 of these orders, which provides for transfer of the employees of the Hotel from one place to another is reproduced below : "15. TRANSFER : A workman may be transferred at the discretion of the management to any hotel, branch, department or undertaking of the management and/op within the Taj Group of Hotels. Further more a workman may be transferred at the discretion of the management from, (i) one shift to another (ii) one section to another (iii) one department to another (iv) one post to another (v) one hotel to another Provided however that such transfer shall not adversely affect the pay, grade or continuity of service of a workman." The respondent No. 3 by letters dated 19-7-1993, 25-7-1993, and 21-7-1993 has transferred the petitioners Nos. 2 to 5 do their hotels at Ramgarh Jaipur, Sawai Madhopur Rajasthan) and Hotel Taj Ganges, New Delhi. Although the petitioners are really aggrieved by these orders of transfer, but they have not challenged them, but only Clause 15 of the Standing Orders has been impugned in this writ petition. However, their contention is that if Clause 15 of the certified standing orders is struck down, the transfer orders will fall to the ground automatically Learned counsel for the petitioners " has challenged Clause 15 on the ground that 'transfer' not being included in the Schedule of the Act, no provision can be made in certified standing orders for transfer of workmen from one place to another. For this proposition learned counsel for the petitioners has placed reliance on a decision of Division Bench of this Court in Air Gases Mazdoor Sangh v. Indian Gases Ltd., 1977 LIC 575. Learned counsel for the Hotel and the learned counsel for the Hotel Taj Ganges Employees Union have, while disputing the above submission, placed reliance on 8 decision of another Division Bench in M/s. U. P. State Sugar Corporation Ltd, v Bipin Kumar Misra, 1993 (67) FIR 1110. It has also been contended by them that even if certified standing order is struck down, the employer has a right to transfer the petitioners in exercise of the powers under the appointment orders.
(3.) SECTION 3 of the Act requires an employer to submit the draft standing orders containing "the draft for every matter set out in the Schedule" and under Sec. 4 the Certifying Officer is to certify those orders if "provision is made therein for every matter set out in the Schedule." Matter relating to transfer of a workman is not included in the Schedule appended to the Act, According to item No. It of the Schedule any other matter, which may be prescribed, can also be included in the certified standing orders. The Central Government by Industrial Employment (Standing Orders) Rules, 1946 has added the additional matters including transfer in the Schedule to the Act. However, the Government of U. P. has not added the matter relating to transfer as additional matter in the Schedule. ln paragraph 5 of the writ petition, it has been stated that 'appropriate Government" in relation to the establishment of respondent No. 3 is the State Government. This fact has not been disputed in the counter affidavit. The result is chat standing orders in station to the establishment of respondent No, 3 have to contain such matters. which have been set out in the Schedule to the Act as amended by the Government of U. P. and there being no item relating to transfer in that Schedule, the matter relating to transfer cannot be included in the standing Orders certified for respondent No. 3. A Division Bench of this Court in Air- Gases Mazdoor Sangh v. Indian Gases Ltd., 1977 LIC 575 (supra), after considering the decisions of the Supreme Court and various other High Courts, relevant extract of which has been reproduced below, has laid down that in the absence of any provision relating to transfer in the Schedule as amended by the Government of U.P., transfer cannot be included as one of the item In the certified standing orders : "There is no dispute between the parties that the Schedule to the Act does not contain any entry relating to transfer of workmen from one unit to the other unit. The appropriate Government, namely, the Uttar Pradesh Government has not framed any rules or added any item to the Schedule relating to transfer of workmen from one place to the other. In the absence of any such provision in the Act it is not open to the employer to make provision for the transfer of its workmen and the Certifying Officer had no jurisdiction to certify such a standing order." As such Clause 15 of the standing orders, which provides for transfer of the workmen from one hotel to another could not have been included in the certified standing orders. In this connection it is further submitted on behalf of the petitioners that as the Act does not permit the respondent No. 3 to frame standing orders for transfer of its workmen from one place to another, its right to transfer them stands taken away, because in the absence of such a clause in the standing orders a workman cannot be transferred from one place to another. For this proposition reliance has been placed on two decisions of Division Bench of this Court in the cases of Air Gases Mazdoor Sangh v. Indian Gases Ltd. (supra) and Ram Barai Shukla v. Joint General Manager Writ Petition No. 2261 of 1987, decided on 23-8-1988. The later decision in the case of Ram Barai Shukla 'supra) is based on the aforesaid case of Air Gases Mazdoor Sangh, Apparetly the above decisions of this Court may lead to such a conclusion, but the position has been clarified by another Division Bench in the case of M/s. U. P. State Sugar Corporation Ltd. v, Bipin Kumar Misra, 1993 (67) FIR 1110 (supra) wherein while considering the similar contention and the above decision of the Air Gases Mazdoor Sangh (supra) it was laid down as follows) : "This authority has been relied upon by the learned Single Judge as laying down the law that in the absence of provisions in the Standing Orders a workman cannot be transferred from one place to another, but a perusal of the judgment will show that it does not lay down any such law, On the contrary, it lays down that there is no provision in the Standing Orders Act to frame standing order in respect of (transfer. In this case the concerned industrial establishment had framed a standing orders which reserved right in the management so transfer an industrial worker from one factory to another. This standing order had been certified by the certifying officer. In exercise of the power conferred by the standing order, the industrial establishment parsed an order transferring certain workmen from one factory to another. This order was challenged on she ground that the standing orders Act did not provide for framing standing order in respect of transfer of workmen. The challenge was upheld and the standing order was declared invalid and the order of transfer passed under the standing order was quashed. It does not, appeal to have been pressed before the Division Bench that the right of transfer existed even apart from the standing order as an incident of service. Therefore, the writ petition was allowed merely on the finding that the provision relied upon for transfer was invalid. This judgment cannot, therefore, be treated as an authority for the proposition that in the absence of a standing order authorising transfer, an industrial worker cannot be transferred.'" " (emphasis supplied). It was further laid down therein that the employer is competent to frame rules and regulations in respect of transfer.;