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.
17th January 2019 From India, Mumbai
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 hon'ble Kerala High Court in its judgment in Joseph v. Mathruboomi Printing & P.Co.Ltd [ 1991 (1) LLJ 359 ] " When one takes up an employment in any such concern, he carries with him the cross of transferability ". As per the verdict of the Division Bench of the hon'ble 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 can not be a valid point of defence.
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 u/s 2(k) of the Industrial Disputes Act,1947 before the Conciliation Officer. If conciliation fails, it would be referred for adjudication. The result depends upon 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.
19th January 2019 From India, Salem
Sir.
In the year 2018 a13 employees are given transfer orders and all of them have resigned the jobs.
The resigned employees only received 1/2 graguative for their service. Nothing is been paid for the balance year.
On 03 January 2019. 07 employees along with me received transfer orders.
We all are union members. (13+8).
But none of the management or ununion employees are been transferred to other states. Instead they are transfered for a Month with food, traveling expenses and also provided with hotel accommodations.
The management is targeting only the UNION staffs.
What we should do to get a good benefit from the management.
Should we go for a case in the Labour court after the FOC. OR We should go and resign as the other 13 employees did so.
Please advise us.
21st January 2019 From India, Mumbai
Dear friend,
Very well I can understand the precarious situation you are in thus created by the orders of transfer issued by your Management allegedly against your union activities.
You know that some times truth is stranger than fiction in our life. This is such a situation. As it is, certainly your Management/employer has the power to transfer you as per the terms of the contract of employment whether explicit or implied and you have the legal right to resist it on the grounds of victimization as a result of your union activities. The industrial dispute raised by your union in this regard is also pending conciliation. If conciliation fails, the next step is adjudication which will take years to conclude. Can you expect that your Management would content themselves simply participating in all such protracted legal proceedings? Certainly not. They would relieve you forthwith to join in the transferred place and in case you fail, they would treat you as absent and deny wages for the period of absence. That apart, they would initiate disciplinary action against your unauthorised absence and disobeyal of lawful orders of the Management. Even, it can end up with your dismissal from service. If the Management is stubborn, neither the conciliation officer nor the Labor Court would be inclined to grant any interim relief by way of any agreed advice or otherwise in the matter.
Therefore, under the circumstances you have got only two options - one is joining in the transferred place under protest while prosecuting the dispute against it or continuing the legal battle in total disregard of the transfer orders and simultaneously getting prepared to face the disciplinary proceedings likely to be taken against you.If you are successful, the initial orders of transfer as well as the subsequent dismissal would become non est and you would be entitled to reinstatement with back wages and all attendant benefits. If the employer succeeds, you lose everything. Therefore, in my considered opinion, you and the others facing such a similar situation, have to be more rational than emotional.
Regarding the alleged non settlement of terminal benefits in full on resignation, you can move the statutory authorities appointed under the respective laws.
21st January 2019 From India, Salem
Dear Friend,
Mr Umakanthan quite naratively described the whole issue to take decission by you.
I strongly agree to your point that management should not transfer employee to one state to other state when theere is no pre-appointment clause. You also squarely agree to point that management can also terminate one as therer has no scope of employemt exist in the unit of a particular state.
Hope you would better understand the situation. It would be better to take transfer and move to new place of posting. Let the union fight for justice of employee and things would be clear after the verdict comes.
One can face termination for non compliance of transfer order.[H.P. State Co-operative Marketing and Consumers Federation Ltd. vs. Naini Sukh, 2018 LLR 727 (HP HC).
23rd January 2019 From India, Mumbai
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