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PETITIONER: CANARA BANKING CORPORATION LTD.

       Vs.

RESPONDENT: U. VITTAL

DATE OF JUDGMENT: 22/04/1963

BENCH:

ACT: Industrial Dispute-Transfer of a Bank employee not belonging to   subordinate  staff-Application  of  Sastry  Award-   No absolute  prohibition-Industrial Disputes Act, 1947  (14  of 1947), s. 33A.

HEADNOTE: The respondent, a Bank employee not belonging to Subordinate staff,  was transferred from one station to another.  In  an application  filed  by him under s. 33A  of  the  Industrial Disputes.  Act, he contended that the order of his  transfer was mala fide and as was act of victimisation for his lawful trade  union activities.  He prayed for the cancellation  of his  transfer order.  His prayer was accepted by the  Labour Court  which  held that the transfer of the  respondent  was against  the Sastry Award which provided that a  clerk  like the respondent could not be transferred outside the State or the  language area in which he had been serving except  with his consent. The  appellant  came to this Court by  special  leave.   His contention  was  that the Sastry Award  did  not  absolutely prohibit the Bank from transferring workmen not belonging to the subordinate staff outside the State or the language area in  which  he  had been serving  except  with  his  consent. Moreover, as the order of the Bank had been found to be bona fide, there was no contravention of the Sastry Award, Held  that the Sastry Award makes a distinction between  the workmen  belonging  to  the subordinate  staff  and  others. While there was absolute prohibition against the transfer of the subordinate staff from their language area, there was no such absolute prohibition with regard to other workmen.  The Sastry  Award had laid down that "as far as  possible",  the other  workmen  were  not to be  transferred  outside  their language  area  but that left discretion with the  Banks  to transfer  employee of the category of the respondent if  the best interests  269 of the Bank so required.  It was for the Bank to decide  how to distribute its manpower in its best interests,  Transfers were to be avoided if that could be done without  scarifying the interests of the Bank.

JUDGMENT: CIVIL  APPELLATE.JURISDICTION  : Civil Appeal  Nos.  755  of 1962. Appeal by special leave from the order dated March 5,  1962, of  the Labour Court (Central) Ahmedabad, in  Complaint  No.

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153 of 1961 in Reference No. 1 of 1960. N.   V.  Phadke,  S.  N. Andley, Rameshwar Nath  and  P.  L. Vohra, for the appellant. M. K. Ramamurthi; for the respondent. 1963.  April 22.  The judgment of the Court was delivered by DAS  GUPTA  J.-This appeal by special leave is  against  the decision  of the Labour Court, Ahmedabad, in an  application by  the respondent under s. 33A of the  Industrial  Disputes Act.  The appellant is a banking company which has  numerous branches all over southern India.  The respondent joined the service  of  the appellant-bank on June 14, 1951  and  after confirmation in September 1952 was posted at Udipi.  He  was later transferred to Trichur; but on his representation  was transferred to Mandvi Branch, Bombay, in July 1956.  On  May 20,  1961,  another  order  of  transfer  was  made  by  the appellant-bank posting the respondent back at Trichur.   The present  application  under S. 33A was made  on  August  26, 1961,  praying  that the transfer order of May 20,  1961  be cancelled  and  the  respondent  permitted  to  continue  at Bombay.   It  was  alleged  in  the  application  that   the appellant made the transfer order mala fide and as an Act 270 of  victimization for the lawful trade union  activities  of the complainant.  It was also alleged that the transfer  was made to deprive the complainant of his lawful dues. This  application  was made before the  National  Industrial Tribunal at Bombay before which proceedings in respect of an industrial  dispute  between  the  appellant-bank  and   its workmen was then pending.  The National Tribunal transferred the   application  to  the  labour  Court,  Ahmedabad,   for disposal.   Before the Labour Court the appellant  contended that there had been no contravention of the provisions of s. 33 of the Industrial Disputes Act as no change had been made in the service conditions of the respondent’s employment and further that the transfer had been made bona fide on account of sheer business considerations and exigencies of business. It was also contended that the order of transfer made by the bank did not offend the  terms  of the Sastry Award  on  the question of transfer of Bank employees. The  labour    Court held   that  under  the  terms  of  the  Sastry  Award   the appellant’s  right to transfer his employees was limited  to this  extent that a clerk like the respondent could  not  be transferred  outside the State or language area in which  he had  been  serving except with his  consent.   Holding  that there  had been no such consent, it came to  the  conclusion that  the conditions of service of the respondent  had  been altered  in  a manner not in accordance  with  the  standing order contained in the Sastry Award.  Proceeding next on the assumption  that  the  Sastry Award permitted  the  Bank  to transfer clerks outside the State or the language area  when it  was  in  the  interests  of  the  Bank’s  business,   it considered  the  question  whether the  bank  had  no  other alternative  but to transfer this particular  clerk  outside the State or the language area in which he had been  serving and came to the conclusion that this had not been  271 established by the Bank.  The Court rejected the  allegation that the transfer had been made to victimize the  respondent for his union activities.  Being of opinion however that  by the  transfer  the  appellant  had  materially  altered  the respondent’s service conditions and this alteration was  not in accordance with Sastry Award, the Court directed the bank to   cancel  the  transfer  order  and  to  retransfer   the complainant  to  Mandvi Branch, Bombay.  The  Bank  has  now appealed against this direction.

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The  relevant direction in the Sastry Award on the  question of transfer is in these words :               "We  direct that in general the policy  should               be   to   limit  the  transfers   to   minimum               consistent   with   the  banking   needs   and               efficiency.    So  far  as  members   of   the               subordinate establishment are concerned  there               should be no transfers ordinarily and if there               are  any transfers at all, they should not  be               beyond  the  language area of  the  person  so               transferred.   We further direct that even  in               the  case  of  workmen not  belonging  to  the               subordinate  staff, as far as  possible  there               should be no transfer outside the State or the               language areas in which the employee has  been               serving except, of course, with his consent." It is not disputed that these directions were binding on the appellant-bank  nor  is  it disputed before  us  that  these directions  amounted  to  "standing  orders"  applicable  to Bank’s  workmen  within  the meaning of s.  33  (2)  of  the Industrial Disputes Act.  It cannot also be doubted that the result of the transfer would be a material alteration in the respondent’s conditions of service. Two  contentions  are  urged before us  in  support  of  the appeal.  The first is that the Labour Court 272 erred  in  thinking that the direction in the  Sastry  Award absolutely prohibited the Bank from transferring workmen not belonging to the subordinate staff outside the State or  the language area in which the employee had been serving  except with  his consent.  On a proper construction, it was  urged, the direction only required the bank to refrain from  making such  transfers as far as possible and did not  prevent  the bank  from making such transfers where it was  really  found necessary  in bank’s interests.  The second  contention  was that when the bank claimed to have made the transfer in  the interests  of its business and was found to have acted  bona fide,  it  should have been held that the direction  in  the Sastry Award had not been contravened. In  our opinion, there is considerable force in  both  these contentions.   It  will  be  noticed  that  in  making   the directions  as  regards the transfer of workmen  the  Sastry Award  drew a distinction between workmen belonging  to  the subordinate  staff  and others.  As regards members  of  the subordinate staff the direction was to the effect that there should  be  no transfers ordinarily and there  was  absolute prohibition  against transfers beyond the language  area  of the  persons  concerned.   The words used  for  the  purpose are  .........  "if  there are any transfers  at  all,  they should  not  be beyond the language area of  the  person  so transferred." As regards these workmen the award did not say that  "as far as possible transfer should not be beyond  the language  area of the person so transferred." It is easy  to see that here the prohibition was absolute.  When they go on to  consider  the  case  of workmen  not  belonging  to  the subordinate  staff, the member of the Tribunal  however  use markedly  different language and preface the direction  with the words "there should be no transfer outside the State  or the  language area in which he is serving except of  course, with his consent" by the words "as far as possible".  It  is not possible to consider this direction as amounting  273 to absolute prohibition without ignoring, the words "as  far as possible.  It is clear that these words were deliberately used  to leave it to the banks to decide on a  consideration

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of  the  necessities  of its business  interests  whether  a transfer of a workman not belonging to the subordinate staff outside the State or the language area in which he had  been serving  could be avoided or not, and directing  that  where possible it should be avoided.  We are satisfied the  Labour Court  was  in error in holding that transfers  outside  the State or the language area can be made only with the consent of  the  employees.   What that clause means  is  that  with consent such transfers can of course be made, otherwise they should be avoided as far as possible. This brings us to, the question whether in the present  case the  appellant  contravened the direction in  the  award  in transferring the respondent outside the Maharashtra State in which  he was serving and also outside the language area  in which  he had been serving.  It is necessary to remember  in this connection that a bank which has branches in  different parts  of the country has to distribute its  total  manpower between  these  different branches in  accordance  with  the needs  of  these branches and with an eye  to  its  business interests.  To attain the best results it becomes  necessary to  transfer workmen from one branch to another.   The  best interests of the bank may require at times that the transfer should  be  made outside the State or the language  area  in which  a particular workman had formerly been employed.   We have  found above that the right of the bank  to  distribute its  workmen not belonging to the subordinate staff  to  the best  advantage,  even  though this  may  involve  transfers outside the State or the language area in which a particular workman had been serving, was left unimpaired by the  Sastry Award,  except  that such transfers have to be  avoided,  if they can be avoided without sacrificing the interests of the 274 bank.  The management of the bank is in the best position to judge  how  to  distribute  its  man-power  and  whether   a particular  transfer  can  be avoided or  not.   It  is  not possible  for industrial tribunals to have before  them  all the  materials which are relevant for this purpose and  even if  these  could be made available the tribunals are  by  no means suited for making decisions in matters of this nature. That  is  why it would ordinarily be proper  for  industrial adjudication  to  accept as correct any  submission  by  the management  of the bank that an impugned transfer  has  been made  only  because  it  was  found  unavoidable.   The  one exception  to  this statement is where there  is  reason  to believe  that  the management of the bank  resorted  to  the transfer  mala fide, by way of victimization, unfair  labour practice  or some other ulterior motive, not connected  with the business interests of the bank. In  the  present  case the Labour  Court  has  rejected  the respondent’s challenge to the bona fides of the  management. It  has held that there is no evidence whatever  to  support the complainant’s allegation that he was transferred because he  joined the Union and that the management had  adopted  a particular policy towards the workmen of the Union.  We  can find  nothing that would justify us in interfering with  the Labour Court’s finding that these allegations have not  been proved.  It is true that the Labour Court has in considering the question whether the conditions of his service had  been altered observed that the transfer seems to be very  unfair" to the employ) cc.  What it obviously means by this is  that this  transfer will work harshly on the employee.  That  may indeed  be true.  But that does not amount to a  finding  of unfair  labour practice.  In these circumstances the  Labour Court  was not justified in thinking that  the  respondent’s transfer  to  Trichur could have been  avoided  without  any

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injury to the bank’s interests.  275 We  have  therefore come to the conclusion that  the  Labour Court has erred in holding that the transfer was not made in accordance with the "standing orders" regarding transfers as contained in the Sastry Award. We  therefore allow the appeal, set aside the order  of  the Labour  Court  and order that the  respondent’s  application under  s.33A  be  rejected.  There will be no  order  as  to costs.                       Appeal allowed.