# United Forum of We Bankers, Kanpur & Anr v. Central Government Industrial Tribunal

- **Citation:** (2023) 11 ILRA 295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-02
- **Case number:** Writ C No. 35587 of 2023
- **Bench:** Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-forum-of-we-bankers-kanpur-anr-v-central-government-industrial-tribunal-49444
- **Pages:** 16

## Headnote

Civil Law - Industrial Disputes Act, 1947 -
Sections 2(ra), 20, 33, 33A - Sastry
Award, Paragraph 535 - Constitution of
India,1950 - Article 226 - Writ Jurisdiction
- Transfer of Employee - Protected Workman -
Mala Fide - Administrative Exigency - Judicial
Review

The petitioners, United Forum of We Bankers (a
trade union) and Ashish Mishra (an employee
and General Secretary of the union), challenged
the composite award dated 29.07.2023 by the
Central Government Industrial Tribunal, Kanpur,
and the transfer order dated 21.03.2022
transferring petitioner no. 2 from Kanpur to
Hardoi. Petitioner no. 2, a bank clerk since
2013, alleged the transfer was mala fide,
violated paragraph 535 of the Sastry Award, and
constituted unfair labour practice under Section
2(ra) due to his trade union activities. The bank
issued a notice of transfer on 09.03.2022,
complied with Sastry Award procedures, and
296 INDIAN LAW REPORTS ALLAHABAD SERIES
argued the transfer was for administrative
exigency, not mala fide, as it involved multiple
employees. The Tribunal's earlier interim order
cancelling the transfer was stayed by the High
Court, and petitioner no. 2's special appeal was
dismissed. The Tribunal's final award upheld the
transfer, finding no violation of the Act or Sastry
Award. Held: (1) The writ petition was
dismissed.
(2)
The
transfer
order
dated
21.03.2022 was valid, as it was made for
administrative
exigency,
complied
with
paragraph 535 of the Sastry Award, and
involved other employees, negating claims of
mala fide or victimization. (3) Petitioner no. 2
was not a "Protected Workman" under Section
33(3) at the time of transfer, as his status was
recognized only on 12.08.2022, post-transfer.
(4) The Tribunal's award was justified, as it did
not exceed the terms of reference and correctly
found no violation of the Industrial Disputes Act
or Sastry Award. (5) Judicial interference in
transfer orders is limited to cases of mala fide,
statutory violation, or arbitrariness, as per
Management
of
Syndicate
Bank
Ltd.
Vs
Workmen and U.O.I. Vs S.L. Abbas. No evidence
supported petitioner no. 2's claims of mala fide
or unfair labour practice. (6) Petitioner no. 2's
multiple legal proceedings, including strike
notices and a criminal case, constituted an
abuse of process to pursue personal agendas,
not union interests. (7) Transfer is an incident of
service, and employees in transferable posts
have no right to insist on a particular posting, as
per B. Vardha Rao Vs St. of Karnataka and Shilpi
Bose Vs St. of Bihar.

Case Law Cited:

## Text

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11 All. United Forum of We Bankers, Kanpur & Anr. Vs. Central Government Industrial Tribunal
 (Labour Court), Kanpur & Ors.
295

(1) where the writ petition has
been filed for the enforcement of any of the
Fundamental Rights;

(2) where there has been a
violation of the principle of natural justice;
and

(3)
where
the
order
or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged."

71. In view of the same and
considering
the
facts
and
circumstances of the present case I am
of the opinion that relegating to the
petitioner to the alternate remedy
would serve no purpose.

72. Accordingly, the writ petition, is
allowed.

73. The order dated 22.09.2023
passed by respondent no. 4, passed in Case
No.
3627/2023
(CIN
No.
T202301010103627) (Local Administration
v Radhasoami Satsang Sabha) and Case
No.
3629/2023
(CIN
No.
T202301010103629) (Local Administration
v Radhasoami Satsang Sabha), are hereby
quashed.

74. However, it will be open for the
respondent to pass fresh orders after
providing opportunity of hearing to
the petitioners, in accordance with law
without being prejudiced by any of the
findings recorded by this Court as I
have not considered the merits of the
claim of the petitioner.

75. This writ petition has been
allowed only on the ground of non
observance of principle of natural justice
and I have not considered the other reliefs
claimed by the petitioner in the present writ
petition, therefore, it will be open for the
petitioner to claim such other reliefs as and
when the occasion arise for the same.
----------
(2023) 11 ILRA 295
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2023
BEFORE

THE HON'BLE PRASHANT KUMAR, J.

Writ C No. 35587 of 2023

United Forum of We Bankers, Kanpur &
Anr. ...Petitioners
Versus
Central Government Industrial Tribunal
(Labour Court), Kanpur & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Ashutosh Sharma, Sri Rakesh Pande
(Sr. Advocate)

Counsel for the Respondents:
Sri Sunil Kumar Mishra

Civil Law - Industrial Disputes Act, 1947 -
Sections 2(ra), 20, 33, 33A - Sastry
Award, Paragraph 535 - Constitution of
India,1950 - Article 226 - Writ Jurisdiction
- Transfer of Employee - Protected Workman -
Mala Fide - Administrative Exigency - Judicial
Review

The petitioners, United Forum of We Bankers (a
trade union) and Ashish Mishra (an employee
and General Secretary of the union), challenged
the composite award dated 29.07.2023 by the
Central Government Industrial Tribunal, Kanpur,
and the transfer order dated 21.03.2022
transferring petitioner no. 2 from Kanpur to
Hardoi. Petitioner no. 2, a bank clerk since
2013, alleged the transfer was mala fide,
violated paragraph 535 of the Sastry Award, and
constituted unfair labour practice under Section
2(ra) due to his trade union activities. The bank
issued a notice of transfer on 09.03.2022,
complied with Sastry Award procedures, and
296 INDIAN LAW REPORTS ALLAHABAD SERIES
argued the transfer was for administrative
exigency, not mala fide, as it involved multiple
employees. The Tribunal's earlier interim order
cancelling the transfer was stayed by the High
Court, and petitioner no. 2's special appeal was
dismissed. The Tribunal's final award upheld the
transfer, finding no violation of the Act or Sastry
Award. Held: (1) The writ petition was
dismissed.
(2)
The
transfer
order
dated
21.03.2022 was valid, as it was made for
administrative
exigency,
complied
with
paragraph 535 of the Sastry Award, and
involved other employees, negating claims of
mala fide or victimization. (3) Petitioner no. 2
was not a "Protected Workman" under Section
33(3) at the time of transfer, as his status was
recognized only on 12.08.2022, post-transfer.
(4) The Tribunal's award was justified, as it did
not exceed the terms of reference and correctly
found no violation of the Industrial Disputes Act
or Sastry Award. (5) Judicial interference in
transfer orders is limited to cases of mala fide,
statutory violation, or arbitrariness, as per
Management
of
Syndicate
Bank
Ltd.
Vs
Workmen and U.O.I. Vs S.L. Abbas. No evidence
supported petitioner no. 2's claims of mala fide
or unfair labour practice. (6) Petitioner no. 2's
multiple legal proceedings, including strike
notices and a criminal case, constituted an
abuse of process to pursue personal agendas,
not union interests. (7) Transfer is an incident of
service, and employees in transferable posts
have no right to insist on a particular posting, as
per B. Vardha Rao Vs St. of Karnataka and Shilpi
Bose Vs St. of Bihar.

Case Law Cited:

1. Arkal Govind Rajrao Vs Ciba Geigy of India
Ltd., (not fully cited in judgment)

2. Bangalore Water Supply and Sewerage Board
Vs A Rajappa, (1978) 2 SCC 213

3. M/s Tata Iron and Steel Company Ltd.Vs St.
of Jharkhand & ors., (2015) 2 SCC 33

4. Punjab National Bank Vs U.O.I. & ors., (not
fully cited in judgment)

5. Prafulla Kumar Vs Bank of India & ors., (not
fully cited in judgment)

6. Air-India Corporation, Bombay Vs VSA.
Rebellow & anr., (1972) 1 SCC 814

7. G.VS Triveni Prasad Vs Syndicate Bank & ors.,
(not fully cited in judgment)

8. Namrata Verma Vs St. of U.P. & ors., (2015)
2 SCC 49

9. Lalit Kumar Prasad Vs St. Bank of India &
ors., (not fully cited in judgment)

10. Management of Syndicate Bank Ltd. Vs
Workmen, (1966) Supp SCR 209

11. Bareilly Electricity Supply Co. Ltd. Vs
Sirajuddin, (not fully cited in judgment)

12. B. Vardha Rao Vs St. of Karnataka, (1986) 4
SCC 131

13. Shilpi Bose Vs St. of Bihar, (1991) Supp (2)
SCC 659

14. U.O.I. Vs S.L. Abbas, (1993) 4 SCC 357

15. N.K. Singh Vs U.O.I., (1994) 6 SCC 98

16. Chief General Manager, (Telecom) N.E.
Telecom Circle Vs Rajendra Ch. Bhattacharjee,
(1995) 2 SCC 532

17. St. of M.P. Vs S.S. Kourav, (1995) 3 SCC
270

18. S.C. Saxena Vs U.O.I., (2006) 9 SCC 583

(Delivered by Hon'ble Prashant Kumar, J.)

1. This writ petition has been filed by
an employee of a bank challenging his
transfer order from Kanpur to Hardoi.

2. The brief facts of the case are that
petitioner no.1 is an Employees' Union and
petitioner no.2 is an employee of the bank
and also an office bearer of the petitionerUnion. Petitioner no.2 had joined the bank
on 18.7.2013 in the clerical cadre and was
first posted at Hardoi. After completing two
11 All. United Forum of We Bankers, Kanpur & Anr. Vs. Central Government Industrial Tribunal
 (Labour Court), Kanpur & Ors.
297
years, on 30.7.2015 he was transferred to
Kaushalpuri Branch in District-Kanpur.
While being posted at Kanpur, he became
the General Secretary of the petitionerUnion.

3. On 28.1.2021, petitioner no.2 was
transferred from Kaushalpuri Branch to
G.T.B. Marg Branch in the same district i.e.
Kanpur. Immediately on his transfer, a
notice for strike, under Section 20 of 'The
Industrial Disputes Act, 1947' (for the sake
of brevity, hereinafter referred to as 'the
Act'), was given by the petitioner-Union,
which
culminated
into
conciliation
proceeding by the Conciliation Officer. The
Management of the Bank appeared in the
conciliation
proceeding
wherein
they
agreed to consider the demand of the Union
raised before the competent authority under
the Industrial Disputes Act relating to
transfer of petitioner no.2 and modified the
transfer order and posted him at the Main
Branch of the bank at Kanpur.

4. On 21.3.2022, the bank transferred
petitioner no.2 from Kanpur to Mallawan
Branch in District-Hardoi. Immediately, on
the same day, again a strike notice (under
Section 20 of the Act) was again given by
the petitioner-Union. The notice was issued
by
Assistant
Labour
Commissioner
(Central),
Kanpur
to
the
bank
for
reconciliation.

5. In addition to this proceeding,
petitioner no.2 against his transfer, had
filed a complaint with respondent no.1 i.e.
Central Government Industrial Tribunal
(Labour Court), Kanpur (for the sake of
brevity,
hereinafter
referred
as
'the
Tribunal') invoking the provisions of
Section 33A of the Act. This complaint was
made on the ground that mandatory
provisions of paragraph 535 of Sastry
Award (dated 16.6.1971) was not followed
and sought protection under Section 33 (3)
of the Act. He further alleged that his
transfer was done with malafide intention
and bad motive. He also mentioned that the
proceedings
are
pending
before
the
Assistant Labour Commissioner (Central)
and the date for conciliation was fixed on
25.3.2022. He further alleged that transfer
was made on the behest of the rival Union
and the transfer amounts to "unfair labour
practice" as defined under Section 2(ra) of
the Act. The transfer has not been done in
business
interest
or
administrative
exigencies of the bank, but the same has
been made with colourable exercise of
power to vindicate the General Secretary of
the
petitioner-Union,
who
has
been
espousing the cause of fellow employees.
The transfer was punitive and was to
victimize the petitioner for trade union
activities. Along with this complaint, there
was an application for interim relief, which
was decided by respondent no.1 on
25.4.2022 cancelling transfer order dated
21.3.2022
giving
liberty
to
the
Management of the Bank to give posting to
petitioner no.2 at a branch nearer to G.T.B.
Marg Branch in District-Kanpur.

6. Aggrieved by the aforesaid order
passed by respondent no.1 the bank on
25.4.2022, preferred Writ-C No.15734 of
2022 before this Court. The Hon'ble High
Court was pleased to stay the effect and
operation of the order dated 25.4.2022 by
means of order dated 31.5.2022, which is
being quoted below for ready reference :-

"1. Learned counsel for the
petitioners submits that undisputedly the
post on which the respondent-workman was
engaged from before was transferable.
Without answering the reference, the
Labour Court has erred in providing for an
298 INDIAN LAW REPORTS ALLAHABAD SERIES
order staying the effect of the transfer
order.

2. Matter requires consideration.

3. Request has been made on
behalf of learned Senior Counsel appearing
for the respondents for accommodation. It
is the last session of the Court before
vacation. Therefore, the prayer made is
declined.

4. Respondents may file counter
affidavit within a period of four weeks.
Petitioners shall have two weeks' time
thereafter to file rejoinder affidavit.

5. List on 26 July, 2022.

6. Till the next date of listing,
operation and effect of the impugned order
dated 25.04.2022, shall remain stayed, so
however, that the respondent-workman is
permitted to join at the transferred posting,
within a period of two weeks from today."

7. This order dated 31.5.2022 passed
by this Court was assailed by petitioner
no.2, Ashish Mishra through intra court
appeal No.485 of 2022 (Ashish Mishra vs.
Bank of India and others), just to avoid the
compliance
of
interim
order
dated
31.5.2022. The Special Appeal has been
dismissed vide order dated 1.9.2022. This
order is being quoted below for ready
reference:-

"1.Interim order dated May 31,
2022 has been challenged by filing the
present intra-court appeal. In the writ
petition
filed
by
the
Management,
challenge was to an order passed by the
Labour Court cancelling the order of
transfer of appellant No.1 herein.

2.The impugned order records
that adjournment was being sought by the
learned
counsel
for
the
respondents/appellants herein before the
Writ Court, though the same was declined.
The operation of the order impugned before
the Writ Court dated April 25, 2022 was
stayed vide order dated May 31, 2022 till
the next date of hearing and the writ
petition was directed to be listed on July
26, 2022. Appellant No.1 was permitted to
join at the transferred place within two
weeks from that date.

3.The present appeal was filed in
this Court in June, 2022 and is being
adjourned primarily on the request of
learned counsel for the appellants. Even
today same prayer has been made.

4.We do not find any reason to
adjourn the present appeal as otherwise
also challenge is to an interim order passed
by the learned Single Judge.

5.The appeal is, accordingly,
dismissed."

8. Even after the dismissal of the
Special Appeal, the petitioner (appellant
therein) did not join at the transferred
place.

9. After dismissal of the Special
Appeal, the petitioner Ashish Mishra
instead of joining at the transferred place,
kept on sending number of notices
threatening
the
employer-bank
and
deliberately
abstained
himself
from
complying with the transfer order. The writ
petition filed by the bank being Writ
Petition No.15734 of 2022 also was finally
disposed of by means of order dated
9.1.2023, which is being quoted below for
ready reference:-

"Rejoinder affidavit is taken on
record.

Heard Shri. Anuj Srivastava,
learned counsel for petitioner and Shri.
Rakesh Pandey, learned Senior Counsel for
the respondents.

The impugned order supposedly
be passed under the provisions of Section
11 All. United Forum of We Bankers, Kanpur & Anr. Vs. Central Government Industrial Tribunal
 (Labour Court), Kanpur & Ors.
299
33-(2) and (3) of Industrial Disputes, Act,
1947. However, learned counsel for parties
fairly submitted that Industrial Tribunal
has not dealt with the issue in terms of
provisions of Section 33-(2) and (3) of
Industrial Disputes, Act, 1947, therefore,
they requested that impugned order be setaside ant the matter be remanded back for
reconsideration.

Learned counsel for petitioner
submits that respondent no.4 has not
jointed at the transferred post as well as
reference dated 10.7.2019 is still pending
before Industrial Tribunal.

Considering
the
above
submission and taking note of facts of the
present case and as by the impugned order
dated 25.4.2022, the application has not
been decided in terms of Section 33-(2) and
(3) of the Act, 1947, therefore the impugned
order dated 25.4.2022 is set-aside and
matter
is
remanded
back
for
fresh
consideration with further direction that
Tribunal shall decide the above referred
reference expeditiously, preferably within a
period of three months from today.

As the impugned order has been
set-aside, therefore, respondent no.4 is
required to join on the transferred post and
place in default, legal consequence may
follow.

With the aforesaid direction and
observation, writ petition stands disposed
of."

10. This writ petition was decided,
whereby the matter was remanded back
to
respondent
no.1
for
fresh
consideration. After remand a fresh
application for interim relief was filed,
which was also rejected on 20.1.2023.
Thereafter, petitioner no.2 joined at
Hardoi, where he was transferred, under
protest on 1.2.2023, and thereafter he
went on medical leave.

11. It is submitted that a notice dated
24.6.2022 was received by the respondentBank from Assistant Labour Commissioner,
Kanpur on 29.6.2022 enclosing three
complaints of United Forum of We
Bankers(petitioner-Union
herein).
The
reply of all the three complaints were filed
by the Management.

12. Thereafter another show cause
notice dated 30.8.2022 was sent from the
Office of Assistant Labour Commissioner,
Kanpur to the respondent, which was also
duly replied.

13. In addition to the above
proceedings, a Criminal Case No.87948 of
2023 was filed by the Labour Enforcement
Officer before the Chief Metropolitan
Magistrate, Kanpur who had summoned the
Zonal Authorities namely, Shri Neeraj
Tiwari (Zonal Manager), Shri Manoj
Kumar Singh (the then Deputy Zonal
Manager) and the then HR Head Shri Het
Ram Verma.

14. Aggrieved by the same, the said
authorities filed an application under
Section 482 of Cr.P.C.(No.28718 of 2023)
before this Hon'ble Court and this Hon'ble
Court was pleased to pass the order dated
11.8.2023, which is being quoted below for
ready reference:-

"1. Heard learned counsel for the
applicants and learned A.G.A. for the State.

2. The present 482 Cr.P.C.
application has been filed to quash the
impugned cognizance/summoning order
dated 01.05.2023 as well as entire
proceedings of Criminal Case No.87948 of
2023 (State vs. Neeraj Tiwari & others),
under Sections 29/31 Industrial Disputes
Act, 1947, District Sambhal, pending in the
court of CMM, Kanpur Nagar.
300 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Learned counsel for the
applicants submits that allegation made in
the F.I.R. does not show any criminality.
Matter relates to Industrial Dispute Act and
allegation in the complaint is that applicant
did not reply of the show-cause notice as
that would not amount to criminality done
by the applicant.

4. Matter requires consideration.

5. Notice on behalf of opposite
party no.1 has been accepted by learned
A.G.A.

6. Issue notice to opposite party
no.2 returnable at an early date.

7. Opposite parties may file their
counter
affidavits
within
six
weeks.
Rejoinder affidavit may be filed within two
weeks thereafter.

8. List thereafter.

9. Till the next date of listing, no
coercive action shall be taken against the
applicants in Criminal Case No.87948 of
2023 (State vs. Neeraj Tiwari & others),
under Sections 29/31 Industrial Disputes
Act, 1947, District Sambhal, pending in the
court of CMM, Kanpur Nagar."

15. In the interregnum, pursuant to
notice
of
strike
dated
21.3.2022,
Government of India had issued a reference
order dated 10.3.2023 for adjudication of
the dispute by respondent no.1/Tribunal.
The Presiding Officer of the Tribunal
decided this reference as well as complaint
of petitioner no.2 filed under Section 33A
of the Act vide its common Award dated
29.7.2023.

16. The petitioner assailed this Award,
by preferring the instant writ petition
before this Hon'ble Court with the
following prayers:-

"(a) Issue a writ, order or
direction in the nature of certiorari calling
for the records and quash the impugned
composite
award
publication
dated
29.7.2023 (Annexure No.1) passed by
respondent no.1 i.e. Central Government
Industrial Tribunal, Kanpur Nagar in
Industrial Dispute No.13 of 2023 {Shri
Kamlesh Chaturvedi (National Convenor)
United Forum of We Bankers Versus Zonal
Manager, Bank of India} and in Complaint
under Section 33A of the Industrial
Disputes Act, 1947 dated 29.9.2022 filed by
petitioner no.2;

(b) Issue a writ, order or
direction in the nature of certiorari calling
for the records and quash the impugned
transfer order dated 21.3.2022 issued by
respondent no.4 i.e. Zonal Manager, Bank
of India;

(c) Issue a writ, order or
direction in the nature of mandamus
directing and commanding the respondents
to restore the position of the petitioner no.2
which was prevailing prior to issuance of
transfer order, so far as posting of the
petitioner no.2 is concerned;

(d) any other writ, order or
direction which the Hon'ble Court may
deems fit in the facts and circumstances of
the present case; and

(e) Award cost of the writ petition
in favour of the petitioners."

17. Sri Rakesh Pande, learned Senior
Counsel assisted by Sri Ashutosh Sharma,
learned counsel for the petitioners argued
as follows:-

(a) Petitioner no.2 and the
respondent-Bank fall under the definition
of 'workman' and 'industry' as per the
distinction clause contained in the Act
and for this he relied on leading
judgments on the definition of 'workman'
which are-

(i) Arkal Govind Rajrao v. Ciba
Geigy of India Ltd.1
11 All. United Forum of We Bankers, Kanpur & Anr. Vs. Central Government Industrial Tribunal
 (Labour Court), Kanpur & Ors.
301

(ii) Bangalore Water Supply
and Sewerage Board v. A Rajappa2

(b) The impugned award dated
29.7.2023 is self contradictory as it holds
that the transfer of petitioner no.2 is
contrary to the bipartite settlement and the
Sastry Award and in the same breath has
proceeded to record that the transfer order
cannot be said to be illegal. Once it is held
to be contrary to the settlement, it vitiates
the transfer order. The Tribunal instead of
answering the reference itself left the
dispute open into the hands of the
respondent bank, which has caused serious
prejudice to petitioner no.2.

(c) The Tribunal had gone beyond
the terms of reference and has failed to give
any finding regarding violation of the
provisions of the Act. In support of his
submission, he has placed reliance on a
judgment of Hon'ble Supreme Court
passed in the matter of M/s Tata Iron and
Steel Company Limited vs. State of
Jharkhand and others3, wherein the
Court has held that jurisdiction of Industrial
Tribunal is limited to the points reference
whereof is made, and the Tribunal should
not go beyond the terms of the reference.

(d) The learned Tribunal has
completely failed to appreciate, the fact of
violation of paragraph 535 of the Sastry
Award, and deemed status of petitioner
no.2 of "Protected Workman".

(e) The findings of the Tribunal,
wherein it has been held that transfer is a
condition of service, is patently illegal.

(f) The impugned award was
passed contrary to the directions of this
Court as contained in order dated 9.1.2023
whereby order dated 25.4.2022 was set
aside and the matter was remanded back for
fresh consideration.

(g) The Tribunal in the impugned
award has failed to consider that there was
violation of bank's own guidelines and
policy regarding transfer of its employees.

(h) Transfer order of petitioner
no.2 suffers from malafide on part of the
Bank Management.

18.

Learned
counsel
for
the
petitioners has relied on a judgment passed
by Hon'ble Supreme Court in Arkal
Govind Rajrao's case (supra) which lays
down the test as to which employee falls
under the managerial or supervisory
category. He has further relied on Tata
Iron and Steel Co. Ltd.'s case (supra)
wherein the Hon'ble Supreme Court has
remanded the matter back to the Central
Government to decide the reference afresh
as the earlier reference was defective.

19.

Learned
counsel
for
the
petitioners has further relied on a judgment
passed by Single Judge of this Court in the
case of Punjab National Bank vs. Union
of India and others4 wherein it has been
held that Section 33 of the Act gives
protective umbrella to the workman.

20. Reliance has also been placed on a
judgment passed by Patna High Court in
the matter of Prafulla Kumar vs. Bank of
India and others5 wherein it has been held
that Secretary of the Association of Clerks
is required to be given some protection
against any vindictive order of transfer.
Transfer of an office bearer of an
association is prone to be looked with
suspicion
unless
the
guidelines
are
followed to the letter and spirit. The
transfer should not be in complete
derogation of the guidelines.

21. Paragraph 535 of the Sastry
Award is being reproduced hereinbelow for
ready reference:-
302 INDIAN LAW REPORTS ALLAHABAD SERIES

535. Policy regarding transfers is a
constant source of friction between the
banks and the workmen now organized into
unions. The cry of victimization of office
bearers and "activists" of trade unions is
raised wherever such transfers are mooted.
We have found that such allegations are
easily made but not so easily substantiated.
Transfers are rendered necessary by the
exigencies of administration. The proper
view to take is that transfers are normal
incidents of the working of a bank and they
must be left to the discretion of those who
guide the policy of the bank and manage its
affairs. It is possible that the discretion may
be abused and transfers effected on
considerations other than, the needs of
administration. The percentage of transfers
as shown by the figures furnished by some
of the banks in the course of arguments
leads us to the conclusion that the question
of transfer, even as it is affects only a very
small number of persons. This is conceded
by the workmen also. Still wherever an
activist of the trade union movement, as yet
in its formative stage and liable to be
crippled easily, is transferred a suspicion
naturally arises that it is inspired by
ulterior motives and the consequence
thereof may be an industrial dispute. In
order that such suspicions may be avoided
as far as possible we adopting the Sen
Award in this respect, give the following
directions:-

(1)
Every
registered
bank
employees' union, from time to time, shall
furnish the bank with the names of the
President,
Vice-President
and
the
Secretaries of the union;

(2) Except in very special cases,
whenever the transfer of any of the abovementioned office bearers is contemplated,
at least five clear working days' notice
should be put up on the notice boards of the
bank of such contemplated action;

(3) Any representations, written
or oral, made by the union shall be
considered by the bank;

(4) If any order of transfer is
ultimately made, a record shall be made by
the bank of such representations and the
bank's reasons for regarding them as
inadequate; and

(5)
The
decision
shall
be
communicated to the union as well as to the
employee concerned.

22. On the contrary, Sri Sunil Kumar
Misra, learned counsel appearing on behalf
of respondent nos.2 to 4 submitted that
transfer of Ashish Mishra (petitioner no.2)
does not amount to violation of any service
condition of the employee, who had
accepted
transferable
job
right
from
beginning. The transfer of petitioner no.2
was done in exigencies of banking
operations. Workman" and is not entitled
to claim the benefit accruing to a
"Protected Workman". It is submitted that
the bank does not recognize the petitioner
no.2 as an office bearer of any registered
trade union as despite making several
requests to the Union to submit the names
of its officer bearers, time and again, but
there was no response, and no names of
petitioner no.1 office bearers were ever
furnished to the bank, which is a violation
of para 535(2a) of the Sastry Award, which
reads as under :

"Every
registered
bank
employees' union from time to time shall
furnish the Bank with the names of the
President,
Vice-President
and
the
Secretaries of the Union."

24. The Bank had displayed the notice
dated 9.3.2022 on the Notice Board in
compliance of Para 535 of the Sastry
Award, which clearly mentions that "the
11 All. United Forum of We Bankers, Kanpur & Anr. Vs. Central Government Industrial Tribunal
 (Labour Court), Kanpur & Ors.
303
notice should be put up on the notice
boards of the bank". The notice mentioned
the proposed transfer of number of clerks
including Shri Ashish Mishra on Bank's
notice board. Hence, there is no violation of
Para 535 of the Sastry Award in respect of
transfer of petitioner no.2.

25.

Learned
counsel
for
the
respondents submitted that petitioner no.2
has not submitted any proof to establish
that petitioner no.1, United Forum of We
Bankers (Federation) is a registered trade
union. His further contention is that the
word "Registered Bank Employees Union"
shall mean and refer to a Union registered
under the Trade Union Act, 1926 and not to
Branch/Region/Zonal level units thereof.
The complainant union being a regional
level unit operating in the limited area with
the State of U.P. do not fall under the
purview of para 535 of the Sastry Award.
Petitioner no.1-Union as on the date of
issuance of the transfer order, had not
submitted the names of the office bearers in
spite of Bank's written notice to them and
subsequent reminder thereof. Since there is
no record of Ashish Mishra(petitioner no.2)
being an office bearer of the union, the
transfer order was issued to him in ordinary
course and he was relieved accordingly to
report on duty at the place of his transfer.
Transfer of any employee of a bank lies
within managerial prerogative. Petitioner
no.2 was not a "Protected Workman" on the
date of transfer but he was declared as
"Protected Workman" by the Assistant
Labour
Commissioner(Central)
on
12.8.2022. Hence, any benefit of "Protected
Workman" will only accrue from 12.8.2022
and not prior to that. He further submitted
that law is well settled that the date of
dismissal of a workman is relegated to the
date of such order passed by the
Management,
likewise,
date
for
confirmation
of
status
of
"Protected
Workman" is to be logically reckoned from
the date on which his claim for such status
crossed upon the first occasion before the
Management. In this scenario, petitioner
no.2 can only be reckoned with as
"Protected Workman" under Section 33(3)
of the Act with effect from 12.8.2022.

26. The concept of harmonious
relationship
between
employer
and
employee is stated in paragraph 535 of the
Sastry Award. Clause 2 to paragraph 535 of
the Sastry Award makes it clear that
whenever transfer of office bearers is
contemplated, five days' notice should be
put up on the notice board of the bank.
Every step as stated in paragraph 535 of the
Sastry Award has been complied with by
the bank in pith and substance.

27. It is further contended that the
transfer of petitioner no.2 was made purely
on administrative ground, since 64 clerk
staffs in the zone were promoted as Zonal
Banking
Officers,
hence,
transfer
of
petitioner no.2 with seven other staff clerks
was owing to administrative exigency.
Apart from petitioner no.2, another office
bearer of a recognized union of the bank
was also transferred. Hence, there is no
malafide intention in transfer of petitioner
no.2. The transfer of petitioner no.2 was
totally in sync with the Sastry Award. He
further submitted that there is no
provision
in
any
of
the
Settlements/Awards/Guidelines
which
give immunity to the office bearer as
"Protected Workman" by virtue of
holding any post in the Trade Union.
There is certain procedure which is
clearly stated in the Industrial Disputes
Act, 1947. Accordingly, the contention
of
petitioners'
alleged
union
is
vehemently denied.
304 INDIAN LAW REPORTS ALLAHABAD SERIES

28.

Learned
counsel
for
the
respondents has further submitted that
petitioner no.2 has been misusing his post
and has initiated various proceedings in all
possible Forums, Tribunals and Courts,
which is a pure abuse of process of law.
Following are the proceedings initiated by
petitioner no.2 before different forums
against his transfer order:-

(i) A notice for strike when he
was
transferred
on
21.8.2021
which
registered in cancellation of transfer order.

(ii) A notice for strike when he
was transferred on 21.3.2022.

(iii) Complaint before Industrial
Tribunal invoking Section 33A of the Act.

(iv)
Special
Appeal
filed
against the judgment passed in writ
petition preferred by respondent nos.2
to 4.

(v) A criminal case bearing
No.87948 of 2023 was filed before
Chief Metropolitan Magistrate, Kanpur
in which all top brass officers were
arrayed as accused and have been
summoned in the Court. Against this
summoning Application under Section
482 Cr.P.C. No.28718 of 2023 has been
filed, which is pending consideration
before this Court.

29.

Learned
counsel
for
the
respondents has placed reliance on a
judgment passed by Hon'ble Supreme
Court in Air-India Corporation, Bombay
vs. V.A. Rebellow and another6, wherein
it was held as under:-

"10.
......The
employer
is
accordingly left free to deal with the
employees when the action concerned is
not punitive or malafide or does not
amount to victimisation or unfair labour
practice. ......."

30. He has further relied upon a
judgment passed by Andhra Pradesh High
Court in the matter of G.V. Triveni Prasad
vs. Syndicate Bank and others7, wherein
the Court has held as under:-

"Transfer is not a condition of
service, but is merely an incidence of
service. An employee, who joins service of
an employer having establishments or
offices all over India, can be posted in any
part of the country and he cannot be heard
to complain against transfer from one place
to the other. If he fails to comply with or
disobeys the order of transfer/posting, he
does so at his own peril. Ordinarily, the
Court will not interfere with the employer's
prerogative to transfer and post an
employee from one place or station to the
other unless it is established that the action
of the employer is contrary to the statutory
provisions or is vitiated due to patent
arbitrariness
or
mala
fides.
This
proposition must be treated as settled by
the judgments of the Supreme Court in B.
Varadha Rao v. Stale of Karnataka , Abani
Kanta Ray v. State of Orissa 1995 Supp. (4)
SCC 169, Union of India v. S.L. Abbas ,
Public Services Tribunal Bar Association v.
State of UP. , Union of India v. Janardhan
Debanath and Kendriya Vidyala Sangathan
v. Damodar Prasad Pandey ."

31. Further reliance has been
placed on a judgment passed by
Hon'ble Supreme Court in the matter of
Namrata Verma vs. State of U.P. and
others8, wherein Hon'ble Court has
held as follows:

"It is not for the employee to
insist to transfer him/her and/or not to
transfer him/her at a particular place. It is
for the employer to transfer an employee
considering the requirement."
11 All. United Forum of We Bankers, Kanpur & Anr. Vs. Central Government Industrial Tribunal
 (Labour Court), Kanpur & Ors.
305

32. He has also relied upon the case
of Lalit Kumar Prasad vs. State Bank of
India and others9 passed by Division
Bench of Patna High Court, wherein the
Court has observed as follows:-

"Transfer
and
postings
are
normal incidence of service and no
employee has a vested right to demand
posting
at
a
particular
place
or
continuance at a location. The employer is
the best judge for utility, suitability and
need of a employee at a particular location.
Casual interference with orders of transfer
by a Court on every small infraction shall
create more administrative turmoil that the
court may attempt to solve by its
orders...........If the power to transfer be
there, an employee shall always have a
grievance on one ground or the other,
especially if he is transferred to a place not
of his liking. To demonstrate malic in law,
there has to be a level of wanton conduct,
on grounds not germane and irrelevant,
preceded by a course of events which
indisputably only points to victimisation as
a justification. Issues of deficit or surplus
staff are for the bank to decide and not for
the Court to usurp the role and substitute
its views for that of the Bank."

33. Heard learned counsel for the
parties and perused the record.

34.

A
plain
reading
of
the
SastryAward lays down that whenever
transfer of any office bearers are made, a
cry for victimization is also made by the
Union. These allegations are easily made
but are not sustainable. Transfers are
necessary
for
exigencies
of
the
administration.
Transfers
are
normal
incidents of working of the bank and they
must be left to the discretion of those who
are guided with policy of bank and manage
its affairs. Whenever office bearer of a
Trade Union is transferred, a suspicion
naturally arises and consequences thereof
would be industrial dispute and to avoid
such disputes certain steps were laid down
in the Sastry Award.

35. In this case, respondent claims to
have followed each and every steps of the
Sastry Award and hence, the petitioner
cannot take benefit of paragraph 535 of the
Sastry Award.

36. Section 33 of the Act defines
"Protected Workman", but in this case,
petitioner
no.2
was
declared
as
"Protected
Workman"
by
Assistant
Labour Commissioner (Central) vide
order dated 12.8.2022. However, the
transfer order was on 21.3.2022, i.e.
much prior to the date on which the
petitioner was declared as "Protected
Workman", and hence, he is not entitled
to
get
benefit
of
the
"Protected
Workman" as claimed by him.

37. Learned counsel for the petitioner
has alleged malafide and stated that the
transfer was nothing but was vindictive
action against the trade union activities
done by the petitioner. It is alleged that
transfer order dated 21.3.2022 has been
passed with ulterior motive of keeping the
concerned workman, who is an activist
of the trade union movement holding
principal
position
in
Unions
of
workman of the Banks, at bay away
from Kanpur. In response to this,
petitioner could not place any document
on record to show that the order of
transfer was outcome of malafide act or
was vindictive in nature. There is not an
iota of evidence to show that the
transfer was made with any kind of
malafide intention.
306 INDIAN LAW REPORTS ALLAHABAD SERIES

38. On the contrary, it was petitioner
no.2, who soon after getting his transfer
order, called
 for a strike and tried to cripple the banking
function of respondent nos.2 to 4. No Trade
Union Activist can use his position for his
personal gain. Petitioner could not place
any document to show that the strike,
which was called on 21.3.2022, was with
any reason or in the interest of bank
employee who are represented by petitioner
No.1-Union. The entire process was
nothing but to pressurize respondent nos.2
to 4 to cancel the transfer order of
petitioner no.2, who had been using his
post of General Secretary of the Union to
address his personal agendas.

39. So far as the applicability of
judgment
passed
in
Arkal
Govind
Rajrao's case (supra) relied upon by
learned counsel for the petitioners is
concerned, the same has no bearing in the
case in hand as it only lays down the
distinction between the managerial and the
supervisory post.

40. Judgment passed in Tata Iron
and Steel Co. Ltd.'s case (supra) cited by
learned counsel for the petitioners also does
not have bearing in the instant case as in
that case the reference made in the
Industrial Tribunal was clearly defective,
hence, the Hon'ble Supreme Court has
remanded the matter back to the Tribunal
for reconsideration.

41. In another judgment passed by
this Court in Punjab National Bank's case
(supra) and cited by learned counsel for
the petitioners, it has been held that an
employee would get protective umbrella of
Section 33A of the I.D. Act as soon as
conciliation proceeding arises, but in this
case the order of transfer was passed on
21.3.2022, immediately, notice for strike
was called and it was thereafter that the
matter
was
referred
for
conciliation
proceeding. In view of this judgment,
protective umbrella under Section 33A of
the I.D. Act would only come as soon as
conciliation proceeding arises and in this
case,
the
conciliation
proceeding
commenced after the transfer order was
passed, hence, the protective umbrella
under Section 33A of the I.D. Act would
not be extended to petitioner no.2, taking
into accounts the facts of this case.

42. Reliance has also been placed on
the judgment passed in Prafulla Kumar's
case (supra) wherein the Court has held
that transfer should not be in complete
derogation of guidelines but there was no
bar in making the transfer of an employee.

43 Hon'ble Supreme Court in the
matter of Management of Syndicate Bank
Ltd. vs. Workmen10 has dealt with Sastry
Award and has held as under:-

"Having analysed the evidence in
this case, we are of opinion that the finding
of the Tribunal that the transfer of
Veeranna is mala fide is not supported by
any evidence and it is, therefore, perverse
and defective in law. There is no doubt that
the Banks are entitled to decide on a
consideration of the necessities of banking
business whether the transfer of an
employee should be made to a particular
branch. There is also no doubt that the
management of the Bank is in the best
position to judge how to distribute its
employees between the different branches.
We are, therefore, of opinion that Industrial
Tribunals should be very careful before
they interfere with the orders made by the
Banks in discharge of their managerial
functions. It is true that if an order of
11 All. United Forum of We Bankers, Kanpur & Anr. Vs.