Balasubramanian, J.@mdashThe writ petitioner challenges the Government order passed by the first respondent refusing to refer the dispute to the Labour Court. The petitioner is a trade union. Its workers are employed under the second respondent-management. The petitioner raised a dispute u/s 2(k) of the Industrial Disputes Act. The petitioner and the second respondent were before the conciliation officer. The conciliation officer sent his failure report dated January 17, 2001. The Government considered that and passed the order in challenge refusing to refer the dispute. The dispute before the conciliation officer was the transfer of a workman by name Sivaramakrishnan (member of the petitioner-union) from the "machines" department to the "moulding" department. Both the departments are in the very same factory of the second respondent. The Government in its order of refusal found that the transfer from one section of the factory to the other section so long as it does not result in non-employment or reduction in wages or any other interference with the service conditions of the transferred employee, would not constitute a dispute.
2. Learned counsel for the petitioner would contend that the management is biased against the petitioner-union and, therefore, against its members. Having this bias in mind, for no justification the workers of the petitioner-union are transferred from one section to another Section. After transfer, in the context of bias, many of the workers of the petitioner-union came to suffer at the hands of the management and several disputes are pending. Therefore, the transfer of the worker in this case, is in the nature of a dispute. Learned counsel for the management would contend that the transfer is an incidence of service. The management has a right to transfer and the workers have accepted this right of the management. There is neither victimisation nor any interference in the service conditions of the transferred worker. There is no bias. The transfer is a routine transfer based on administrative grounds and therefore it cannot constitute a dispute.
3. There is no dispute that the management has a right to transfer. In fact, learned counsel appearing for the petitioner-union admits it. The management also refers to a settlement dated May 18, 1999, which reiterates the policy of transfer. It is the further case of the management that even in the appointment order, it is more clear that the workmen are subject to transfer. It is not the case of the petitioner that by such transfer, the service conditions of the worker is interfered with in praesenti. The claim of the workman that his prior consent must be taken before he is transferred to another section in the same industry is not supported by any records at all. If there is such a restriction in the power of transfer, then either the appointment order or the settlement, if any, would contain such a clause. As already stated, the petitioner does not even refer to any document which presupposes the consent of the worker being obtained prior in point of time before the transfer order is given. Having accepted appointment subject to the right of the management to transfer and when such right to transfer is also shown to be incorporated in the binding agreement between the parties, I am unable to appreciate the contention of the writ petitioner that the transfer is mala '' fide. It may be true that the petitioner might have been working for quite a long time in the "machines" department. But that does not mean that he should have his tenure permanently only in that department and not in any other section of the industry. No material whatsoever is on record to substantiate that the transfer is mala fide and it is made solely with a view to victimise the worker.
4. The Supreme Court of India in the judgment in
"2. ....... However, it is not obligatory on the part of the State Government to make a reference of the dispute in each and every case where an union seeks such a reference. The Government has to weigh the facts keeping in mind the objective of industrial peace and smooth industrial relations between the parties. If, taking into consideration all the facts, the Government finds that in the interest of industrial peace, it is not necessary to make the reference, it may not do so. The Government has given reasons why it felt that in the present case, there was no case to make the reference and the reasons given cannot be said to be irrelevant."
5. A Division Bench of this Court in the judgment in
"32. On a final analysis, the following principles emerge:
(1) The Government would normally refer the dispute for adjudication;
(2) The Government may refuse to make reference, if-
(a) the claim is very little;
(b) the claim is opposed to the provisions of the Act;
(c) the claim is interference with any agreement between the parties;
(d) the claim is patently frivolous;
(e) the impact of any claim in the general relations between the employer and the employees in the region is likely to be: adverse;
(f) the person concerned is not a workman as defined by the Act;
(3) The Government should not act on irrelevant and extraneous considerations;
(4) The Government should act honestly and bona fide.
(5) The Government should not embark on adjudication of the dispute; and
(6) The Government should not refuse reference on the ground that domestic; enquiry was fairly and properly held and punishment awarded was appropriate."
Clause (c) of the criteria referred to above gets squarely attracted to the case on hand. This Court in the judgment in
"The object of the enactment namely, the Industrial Disputes Act is not to encourage frivolous and endless litigations but to promote industrial harmony and cordial relationship between the management and the workmen. The ambit and scope of the role of a conciliation officer has got a definite purpose and intent. He cannot act in a mechanical way and open up a dispute the moment some petitions are presented before him."
In Insafi Kamdar Mandal v. Assistant Commissioner of Labour 2002 (1) LLN 1081, the High Court of Gujarat held as follows:
"A prima facie examination of the merits of the dispute is not impermissible and in case the dispute is found to be patently frivolous or clearly belated or if its reference is inexpedient on consideration of other relevant and material facts the Government may refuse to make a reference subject to compliance with the condition of recording and communicating to the parties concerned the reasons."
6. As already stated, the writ petitioner admits the power of the management to transfer. Consequently, finding that the order under challenge does not suffer from any illegality at all, the writ petition is dismissed. No costs.
