Respected Sir. I am magiban lobo working in master marine services pvt Ltd since 26years. In my appointment nothing was mentioned about transfer to other states. Our union "Mumbai port Trust Docks & General Employees Union" has raised a complaint against the management for transferring the workman to other states and which is pending conciliation proceedings in front of the Labour commissioner’s office.
The date was fixed on 16/01 /18. But my company has TRANSFERRED me along with the 07 other to Jarusuguda in orissa state on 07/01/2019. So our union has raised complaints against the transfer order and stopping us from doing our duty. To the Labour commissioner. Sir please advise us. If we go to the Labour court against companies what will be the result.
From India, Mumbai
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1The date was fixed on 16/01 /18. But my company has TRANSFERRED me along with the 07 other to Jarusuguda in orissa state on 07/01/2019. So our union has raised complaints against the transfer order and stopping us from doing our duty. To the Labour commissioner. Sir please advise us. If we go to the Labour court against companies what will be the result.
From India, Mumbai
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Dear friend,
Before coming directly to the answer to your query, let me first explain the concept of transfer of employees in the realm of employment. Transfer is the lateral movement of an employee from one post to another or from one place to another in the same organization without detriment to his existing employment status or conditions of service. Again, it may be at the instance of the employer on exigencies of work or at the request of the employee due to his personal reasons. It is the managerial prerogative of the employer to decide as to who, where, and how long to work depending on the exigencies of work or business interests of the organization, and the consequential hardships or personal inconvenience, if any, likely to be caused to the employee are not matters of concern as long as malafides or impropriety could not be established against the administrative order of transfer. Thus, transfer becomes an incidence of service.
In the case of private employment, of course, transferability is a matter of mutual agreement found in the contract of employment. Sometimes express provisions relating to transfer appear in the agreement and sometimes it is treated as an implied term. Establishments with branches located across the country could legitimately rely on such an implied term. In the words of the Honorable Kerala High Court in its judgment in Joseph v. Mathruboomi Printing & P. Co. Ltd [1991 (1) LLJ 359], "When one takes up employment in any such concern, he carries with him the cross of transferability." As per the verdict of the Division Bench of the Honorable High Court of Allahabad in U.P State Sugar Corporation v. Bipin Kumar Mishra [1994 (1) LLJ 1004], there is no need for specific standing order for transfer, and the employer is entitled to transfer his employee even in the absence of a specific standing order. Therefore, the contention that nothing specifically mentioned about inter-state transfer of the employee in his appointment orders cannot be a valid point of defense.
Any trade union is empowered to espouse the cause of transfer of its members/employees allegedly done with malafide intention or malice or as a measure of victimization against union activities or without propriety or authority and can raise a dispute under section 2(k) of the Industrial Disputes Act, 1947 before the Conciliation Officer. If conciliation fails, it would be referred for adjudication. The result depends on how the union convinces the tribunal about the alleged malafides or malice behind the orders of transfer.
But a word of caution. If you do not obey the orders of transfer, the management can initiate formal disciplinary action against you and can even terminate your services complying with all legal formalities.
From India, Salem
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Before coming directly to the answer to your query, let me first explain the concept of transfer of employees in the realm of employment. Transfer is the lateral movement of an employee from one post to another or from one place to another in the same organization without detriment to his existing employment status or conditions of service. Again, it may be at the instance of the employer on exigencies of work or at the request of the employee due to his personal reasons. It is the managerial prerogative of the employer to decide as to who, where, and how long to work depending on the exigencies of work or business interests of the organization, and the consequential hardships or personal inconvenience, if any, likely to be caused to the employee are not matters of concern as long as malafides or impropriety could not be established against the administrative order of transfer. Thus, transfer becomes an incidence of service.
In the case of private employment, of course, transferability is a matter of mutual agreement found in the contract of employment. Sometimes express provisions relating to transfer appear in the agreement and sometimes it is treated as an implied term. Establishments with branches located across the country could legitimately rely on such an implied term. In the words of the Honorable Kerala High Court in its judgment in Joseph v. Mathruboomi Printing & P. Co. Ltd [1991 (1) LLJ 359], "When one takes up employment in any such concern, he carries with him the cross of transferability." As per the verdict of the Division Bench of the Honorable High Court of Allahabad in U.P State Sugar Corporation v. Bipin Kumar Mishra [1994 (1) LLJ 1004], there is no need for specific standing order for transfer, and the employer is entitled to transfer his employee even in the absence of a specific standing order. Therefore, the contention that nothing specifically mentioned about inter-state transfer of the employee in his appointment orders cannot be a valid point of defense.
Any trade union is empowered to espouse the cause of transfer of its members/employees allegedly done with malafide intention or malice or as a measure of victimization against union activities or without propriety or authority and can raise a dispute under section 2(k) of the Industrial Disputes Act, 1947 before the Conciliation Officer. If conciliation fails, it would be referred for adjudication. The result depends on how the union convinces the tribunal about the alleged malafides or malice behind the orders of transfer.
But a word of caution. If you do not obey the orders of transfer, the management can initiate formal disciplinary action against you and can even terminate your services complying with all legal formalities.
From India, Salem
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Sir,
In the year 2018, 13 employees were given transfer orders, and all of them resigned from their jobs. The resigned employees only received half of their gratuity for their service, with nothing being paid for the remaining year.
On 03 January 2019, 07 employees, including myself, received transfer orders. We are all union members (13+8). However, none of the management or non-union employees have been transferred to other states. Instead, they have been transferred for a month with food, travel expenses, and hotel accommodations provided.
The management appears to be targeting only the union staff. What should we do to secure better benefits from the management? Should we pursue a case in the Labour court after the FOC, or should we follow the path of the other 13 employees who resigned?
Please advise us.
From India, Mumbai
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In the year 2018, 13 employees were given transfer orders, and all of them resigned from their jobs. The resigned employees only received half of their gratuity for their service, with nothing being paid for the remaining year.
On 03 January 2019, 07 employees, including myself, received transfer orders. We are all union members (13+8). However, none of the management or non-union employees have been transferred to other states. Instead, they have been transferred for a month with food, travel expenses, and hotel accommodations provided.
The management appears to be targeting only the union staff. What should we do to secure better benefits from the management? Should we pursue a case in the Labour court after the FOC, or should we follow the path of the other 13 employees who resigned?
Please advise us.
From India, Mumbai
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Dear friend,
I understand the precarious situation you are in, created by the transfer orders issued by your Management allegedly due to your union activities. Sometimes, truth is indeed stranger than fiction in our lives. In this situation, your Management/employer has the power to transfer you as per the terms of the employment contract, whether explicit or implied. You have the legal right to resist it on grounds of victimization due to your union activities. The industrial dispute raised by your union is pending conciliation. If conciliation fails, the next step is adjudication, which could take years to conclude. Do you expect your Management to engage in lengthy legal proceedings? Likely not. They may relieve you immediately to join the new location, and if you fail to comply, consider you absent and withhold wages. Additionally, they may initiate disciplinary action for unauthorized absence and disobedience of lawful orders, potentially leading to dismissal. If the Management remains obstinate, neither the conciliation officer nor the Labor Court may offer interim relief.
In these circumstances, you have two options: reluctantly join the new location while challenging the transfer or continue the legal battle despite the transfer orders, preparing for potential disciplinary actions. Success in challenging the transfer and dismissal could result in reinstatement with back wages and benefits. Failure would mean losing everything. Therefore, rationality over emotion is crucial for you and others in similar situations.
As for the alleged incomplete settlement of terminal benefits on resignation, you can approach the statutory authorities designated under the respective laws.
Please let me know if you need further assistance.
Best regards,
[Your Name]
From India, Salem
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I understand the precarious situation you are in, created by the transfer orders issued by your Management allegedly due to your union activities. Sometimes, truth is indeed stranger than fiction in our lives. In this situation, your Management/employer has the power to transfer you as per the terms of the employment contract, whether explicit or implied. You have the legal right to resist it on grounds of victimization due to your union activities. The industrial dispute raised by your union is pending conciliation. If conciliation fails, the next step is adjudication, which could take years to conclude. Do you expect your Management to engage in lengthy legal proceedings? Likely not. They may relieve you immediately to join the new location, and if you fail to comply, consider you absent and withhold wages. Additionally, they may initiate disciplinary action for unauthorized absence and disobedience of lawful orders, potentially leading to dismissal. If the Management remains obstinate, neither the conciliation officer nor the Labor Court may offer interim relief.
In these circumstances, you have two options: reluctantly join the new location while challenging the transfer or continue the legal battle despite the transfer orders, preparing for potential disciplinary actions. Success in challenging the transfer and dismissal could result in reinstatement with back wages and benefits. Failure would mean losing everything. Therefore, rationality over emotion is crucial for you and others in similar situations.
As for the alleged incomplete settlement of terminal benefits on resignation, you can approach the statutory authorities designated under the respective laws.
Please let me know if you need further assistance.
Best regards,
[Your Name]
From India, Salem
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Dear Friend,
Mr. Umakanthan quite narratively described the whole issue for you to make a decision. I strongly agree with your point that management should not transfer an employee from one state to another when there is no pre-appointment clause. You also squarely agree with the point that management can terminate someone as there is no scope of employment existing in the unit of a particular state.
I hope you understand the situation better. It would be better to accept the transfer and move to the new place of posting. Let the union fight for the justice of the employee, and things will be clearer after the verdict is reached.
Non-compliance with the transfer order can lead to termination. [H.P. State Co-operative Marketing and Consumers Federation Ltd. vs. Naini Sukh, 2018 LLR 727 (HP HC).
From India, Mumbai
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Mr. Umakanthan quite narratively described the whole issue for you to make a decision. I strongly agree with your point that management should not transfer an employee from one state to another when there is no pre-appointment clause. You also squarely agree with the point that management can terminate someone as there is no scope of employment existing in the unit of a particular state.
I hope you understand the situation better. It would be better to accept the transfer and move to the new place of posting. Let the union fight for the justice of the employee, and things will be clearer after the verdict is reached.
Non-compliance with the transfer order can lead to termination. [H.P. State Co-operative Marketing and Consumers Federation Ltd. vs. Naini Sukh, 2018 LLR 727 (HP HC).
From India, Mumbai
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