JUDGMENT Aloke Chakrabarti, J.
1. Certain Tacts stated in this writ petition are relevant for resolving the dispute involved herein.
2. The petitioner was appointed as Operator 'B' in Production Deapartment, B.D. Plant under the Management of Synthetics and Chemicals Limited at Bareilly with effect from 6.12.1978. Junior persons, who were working with the petitioner in Butadine Plant, were transferred to Rubber Plant and they were promoted there as Operator Grade-A with effect from 15.3.1988 ignoring the seniority of the petitioner. The petitioner raised objection and made representation and thereafter was given promotion as Operator Grade-A in the year 1991 with effect from 1.9.1990, although the petitioner was entitled to be promoted much earlier along with his aforesaid juniors. By subsequent similar action again, junior persons were transferred to other department and then given promotion compelling the petitioner to make objection. Ultimately, the petitioner raised Industrial dispute which was registered as Adjudication Case No. 23 of 1996 in Labour Court at Bareilly.
3. The Management continued such illegality by promoting further persons Junior to the petitioner ignoring the claim of the petitioner. The petitioner again raised dispute and filed application under Section 6F of U, P. Industrial Disputes Act, 1947 which was registered as Misc. Case No. 60 of 1997 in Adjudication Case No. 23 of 1996. Thereafter the petitioner was transferred from Bareilly to Kandla Port in Gujarat by order dated 26.7.1997 enabling the Management to promote persons junior to the petitioner at Bareilly. The petitioner again filed application under Section 6F of the said Act for violation of provision of Section 6E of the said Act on 28.8.1997. The Management filed a written statement. The Labour Court rejected the said application by order dated 29.5.1998. Challenging the same as also the transfer order, this writ petition has been filed.
4. The respondents filed counter-affidavit wherein the allegations of mala fide have been denied.
5. Heard Mr. G. C. Gehrana, learned counsel for the petitioner and Mr. N. B. Singh, learned counsel for the respondent Management.
6. The contention of the learned counsel for the petitioner is that as the proceeding was pending under Industrial Dispute Act with a specific complaint as regards transfer and then promotion depriving the petitioner, the present transfer of the petitioner without approval of the concerned Labour Court resulted in violation of the provisions of Section 6E and, therefore, the petitioner is entitled to relief under Section 6F of the said Act. In support of such contention, reference was made to the judgment in the case of M/s. I. D. L. Chemicals Karmika Sangam v. State of Andhra Pradesh and others, 1985 Lab 1C 1273. It has been contended by the learned counsel for the petitioner that in the said case also, a transfer order was held to be in violation of Section 33 of the Central Act which is equivalent to Section 6E of the State Act as such transfer was connected with the pending dispute and, therfore, there was a violation of Section 33 of the Central Act. Learned counsel for the respondents not only relied on the facts stated in the counter-affidavit but contended that for application of provision of Section 6E of the State Act. alteration of condition of service is prerequisite and in the present case, the Impugned action being a transfer, which is permissible within the conditions of service prevailing, did not attract the mischief provided in Section 6E. In support of such contention learned counsel for the respondents relied on the judgments in the cases of Management of Cipla Ltd. v. Shri Jayakumar R. and another, 1998 LLR 63 : Bhatinagar Municipality v. A. Karimbhai. 1997 (34) FLR 229 ; Automobile Products of India v. Rukmaji Bala, AIR 1955 SC 258 ; M. D. N. Duniya v. Labour Court, 1991 (68) FLR 9 and the case of Reserve Bank of India v. C. T. Dighe, 1981 (43)FLR 278.
7. After considering the aforesaid contentions and perusing the Judgments referred to by the respective parties, I find that the case of M/s. I. D. L. Chemicals Karmika Sangam (supra) directly dealt with a case of transfer and finding was arrived at upon holding existence of connection thereof with the dispute already pending. In the present case also, the dispute pending was relating to some transfer resulting deprivation of the petitioner from promotion and the impugned conduct of the employer is also transfer of the petitioner anabling the employer to promote other workman. Therefore, on the facts involved in the present case, I find that the impugned transfer order was in effect connected with the pending industrial dispute.
8. The judgments cited on behalf of the employer were also considered by me. In the case of Bhaunagar Municipality (supra), 1 find that the dispute pending related to various demands including a demand for permanent status of daily rated workers who had completed 90 days' service and the action complained of as violating Section 33(1)(a) was retrenchment of some daily rated workmen. In that case also, power of retrenchment and compliance of provisions for retrenchment were not disputed. On consideration of the facts, it was held by the Apex Court in the said case of Bhaunagar Municipality (supra) that the requisite features of Section 33(1)(a) of the Central Act were duly satisfied and there was violation of said Section 33(1)(a). Therefore, it appears that the retrenchment, otherwise legal, was held to be in violation of Section 33(1)(a) as it indirectly affected the pending dispute with a demand for permanent status. In the case of M. D. N. Duniya (supra), the order of transfer was being considered when the reference pending related to fixation of wages of workman concerned and, therefore, the contention of the workman was not accepted on a finding that the Impugned order of transfer has no concern whatsoever with the pending dispute relating to fixation of wages.
9. In the case of Reserve Bank of India (supra) also, it has been found that the dispute pending related to promotion and the action complained proposed to alter condition for promotion and the complaint of the workman was not accepted on the ground that as a result of alteration complained against, only the chance of promotion had been affected but not the right to be considered for promotion.
10. In the case of Management of Cipla Ltd. v. Shri Jayakumar R. and another (supra), it appears that the complaint of the workman was against his transfer on a contention that there was no provision of transfer of an employee from one factory to another and the transfer was in violation of provision of Standing Orders and the same amounted to alteration in service condition. The defence of the management was that the transfer was in accordance with the terms of the employment and the transfer was not in any way concerned with the industrial dispute which was pending. The findings in the judgment show that the main question which was considered was whether the employer could, in law, transfer the workman. It appears that presumably because of the nature of the dispute pending, the learned counsel for the workman accepted that such a transfer would not amount to altering the condition of service if the management could transfer the workman concerned in law. Therefore, it seems that in the said case, the sole consideration was whether the transfer was permissible in law and there was no contention that it in any way related to dispute pending.
11. In view of the aforesaid legal position, I am of the opinion that the transfer order which is presently under consideration amounted to alteration of a condition in regard to a matter connected with the pending industrial dispute to the prejudice of the present petitioner and, therefore, all requirements of law having been substantiated, there was a violation of Section 6E of the U. P. Industrial Dispute Act. In my opinion, such view is in consonance with the intention of said provision of Section 6E particularly keeping in mind the purpose of incorporation of such a provision in a beneficial statute.
12. In view of the aforesaid findings, this writ petition is allowed and the impugned order dated 29.5.1998 at Annexure-No. 8 to the writ petition is hereby quashed. The respondent No. 1 is directed to decide the matter afresh in accordance with law.