Bombay HC Sets Aside Stay On 'Exceptional' Transfer Of Indian Express Employee, Says Prior Dispute With Employer No Reason To Presume Malafides
Amisha Shrivastava
4 July 2024 6:48 AM GMT
The Bombay High Court on Tuesday observed that merely a transfer of an employee being exceptional and there being previous litigation between employer and employee is not a ground for the Industrial Court to stay the transfer.
Justice Sandeep Marne allowed a writ petition filed by Indian Express (P) Ltd. seeking to set aside Industrial Court's order of interim stay on the transfer and promotion of an employee observing –
“Mere filing of earlier litigation is not a reason to infer existence of mala fides for interdicting the order of the transfer…It was not necessary for Petitioners to demonstrate past precedent for justifying the Respondent's transfer. Merely because the transfer is found to be exceptional, the same was not ground for learned Member to stay the same.”
Ganesh Gopinath Rane, the respondent, is posted as Senior Printer at the printing press of petitioner Indian Express at Mahape, Navi Mumbai.
Rane and other employees, fearing adverse actions due to Union elections in August 2022, had filed a complaint against Indian Express. The Industrial Court initially stayed terminations and transfers, but this was later set aside by the High Court. Further, Rane contested his deputation to Lucknow, with the High Court ultimately allowing the deputation to proceed with Indian Express' undertaking that it will not exceed six months.
Subsequently, he was promoted from the position of Senior Printer to Supervisor and transferred to the production department of the company at the Walunj Printing Press, Aurangabad, effective from April 10, 2024.
Rane filed an unfair labour practice complaint alleging that the transfer order was mala fide act and seeking stay on the transfer. The Industrial Court temporarily restrained Indian Express from giving effect to the promotion and transfer order till final decision of the complaint. Thus, Indian Express filed the present writ petition against this order.
Indian Express produced documentary evidence to support the need for Rane's posting at Aurangabad, citing the retirement of an employee which created a vacancy that Rane was required to fill. Email correspondence from the All India Production Head of the company, dated July 18, 2023, highlighted the urgency of maintaining print quality in the absence of a Supervisor at Aurangabad.
Rane contended that the transfer order was systematic harassment on account of the objections raised by him in the matter of conduct of elections of Union, which was heavily dominated by the Petitioner Management.
The court noted that the promotion increased Rane's gross emoluments from Rs. 57,687 to Rs. 59,418, along with a special city compensatory allowance of Rs. 4,500 during his tenure at Aurangabad, a roughly 11% net raise. Rane's employment contract explicitly stated that he was liable to be transferred anywhere in India, to any branch office, associate concern, or publication, as necessary.
The court held that Indian Express had made a prima facie case for the existence of an administrative exigency necessitating the transfer of Rane to Aurangabad after retirement of two employees there.
The court said that once a case of administrative exigency for the transfer is established, interference by courts is limited unless there is demonstrable personal bias or mala fide. The court referred to several judgments, emphasizing the heavy burden on the person alleging mala fide to provide high-order proof. It was noted that allegations of mala fide should be supported by firm facts and cannot be based on insinuations or vague suggestions.
The court found that Rane's complaint lacked specific allegations of personal bias or vengeance by any particular official from the petitioners. He attempted to link the impugned transfer and promotion order to the conduct of union elections held on August 8, 2022, but the allegations were vague and unsupported by concrete evidence, the court said. The court noted that Rane did not contest the elections but claimed that his faction was treated discriminatorily by having their nomination forms rejected.
The court concluded that Rane had not made a case before the Industrial Court for an interim stay on the promotion-cum-transfer order, and the Industrial Court should not have interfered with the order.
The court rejected Rane's objection to the non-promotion of seven senior employees as it was within the employer's discretion to decide promotions.
The court allowed the writ petition and set aside Industrial Court's order dated May 9, 2024. With the petitioner's consent, the court permitted Rane to stay at Mahape, Navi Mumbai, until January 31, 2025, and report to Aurangabad on February 1, 2025.
Case no. – Writ Petition No. 8387 of 2024
Case Title – The Indian Express (P) Ltd. and Ors. v. Ganesh Gopinath Rane
