JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the parties and persued the record.
2. Validity of order of transfer dated 14.9.1989 passed by the respondents is assailed in this writ petition. By the impugned order the petitioners were transferred from Central Workshop, Kanpur to adjoining Allen Forest Workshop in Kanpur.
FACTS.
3. U.P. State Road Transport Corporation is Corporation incorporated under the Motor Transport Corporations Act, 1950. It has two types of employees (i) those working in offices/bus station, who are engaged in operational activities such as drivers, conductors, booking clerks etc. and (ii) those who are working in workshops of the Corporation where buses are assembled, manufactured and repaired etc.
4. The Central Workshop is registered as a factory. Prior to 1976 the work of maintaining the buses of the Corporation and building on new bus bodies etc, was done in the Central Workshop. With increase in business activity an annexe workshop namely. Allen Forest Workshop was established in 1976. The Allen Forest Workshop was an extension of the Central Workshop where new bus bodies are built over the chasis and their repair work is under taken there and is situated at a distance of hardly 1 km. from the Central Workshop.
5. Standing Orders framed under the Standing Orders Act were certified in respect of (1) Central Workshop (2) Chunniganj Workshop and (3) Juhi Workshop, Kanpur in the year 1972. They were applicable to the workman engaged in technical side only and their application was excluded to the employees governed by the Fundamental and Supplementary Rules Civil Services (Classification. Control and Appeal) Rules or any other Rules that may be notified by the State Government SUBMISSIONS OF THE PETITIONERS
6. Sri K.P. Agarwal, senior Counsel for the petitioners submits that both of these workshops are separate Industrial Establishments within the meaning of the Industrial Employment (Standing Orders) Act, 1946 (for short Standing Orders Act) and are factories in which manufacturing process is carried on as defined in Section 2(k) of the Factories Act, 1948 and ought to have been registered separately but Allen Forest Workshop is not registered under the Factories Act, 1946. It is stated that apart from the fact that petitioners are workmen within the meaning of Industrial Disputes Act, their general terms and conditions of service are to be governed by the Standing Orders Act, 1946 but no standing orders have been framed and certified for the Allen Forest Workshop. He submits that in absence of the Certified Standing Orders the employer has no power to transfer its employees from one Workshop to another Workshop.
7. Elucidating the submission he states that initially there was a schedule to the Standing Orders Act which consisted of 10 items. The 11th Item was a residuary item i.e. other matters which may be prescribed. Transfer was not one of the Items included in the schedule. By amendment in 1983 to the Industrial Employment (Standing Orders) Central Rules, 1940. Item No. 2(a) was introduced referred to transfers but this was confined only to coal Mines. Thereafter item No. 10(B) was introduced in the aforesaid Schedule, as 'Additional Matters' to be provided in the standing Orders. Item No. 4 of Item No. 10(B) to the Schedule included transfers. He submits that thus from the year 1983 (from 17.1.1983) onwards it was incumbent for all Industrial Establishment to get their Standing Orders modified and to all new Industrial Establishments to include conditions of transfers in their Standing Orders, He submits that power to transfer an employee could be available to the employer under Item 4 of 10(B) to the schedule of the Standing orders Act only if included in the Standing Orders and applicable to the workshop employees only if conditions of transfers was included Standing orders, otherwise, there was no power to transfer an employee to Allen Forest Workshop from Central Workshop.
8. Sri Agarwal has placed reliance mainly on U.P.S.E.B. v. Hari Shankar Jain and Ors. and Counsel for the respondents rely on 2000 (85) FLR 216 (Allahabad D.B) Smt. S.D. Tiwari v. The Chief Medical Superintendent, T.B. Sapru Hospital and Ors. and , Indira Sawhney v. Union of India and Ors.
9. He further submits that in view of Section 1(3) of the aforesaid Act as the Standing Orders have neither been framed nor have been registered under the Factories Act 1946 for the Allen Forest Workshop separately, as such its officers are liable to prosecution under the aforesaid two Acts. He referred in detail to the provisions of the Act and its scheme and urged that since the respondents have failed to submit draft Standing Orders as required by Section 3 of the Standing Orders Act, they are liable to be punished.
10. He further submitted that in view of Section 12(a) of the Standing Orders Act, 1946 even the model Standing Orders will not be applicable to the worker of Allen Forest Workshop in perpetuity and draft Standing Orders were required to be submitted within 6 months for certification .
11. The Counsel for the petitioners has placed reliance upon judgment of this Court in W.P. No. 2261 of 1987 connected with W.P. No. 11458 of 1985 Ram Barai Shukla v. Joint General Manager (Employment), U.P. State Road Transport Corporation and Ors. wherein it has been held that since there is no provision in the Model Standing Orders framed by it for transfer of the workman, hence the services of a workman of the Corporation are not liable to be transferred. It is urged that in these circumstances the services of the workmen of the Corporation are not liable to be transferred from its one unit to another and transfer is illegal.
12. It may be noted that the Court in the aforesaid case relied upon 1986 LIC Vol.2, Shitla Prasad v. State of U.P. page-2025 and held that the regulations framed by the Corporation in 1981 are not applicable to the petitioners/workmen as they have not been notified under Section 13B of the Act.
13. Attention of the Court in this regard has also been drawn to the averments made in Sub-paragraph (x) of paragraph 10 of the counter affidavit wherein it has been admitted that Allen Forest workshop does not have any Standing Orders where about 950 workmen were employed and that the employees working therein are governed by the provisions of the U.P. State Road Transport Corporation Employees (other than Officers) Service Regulations 1981 and in accordance with the decision taken by the Board of the Directors of the Corporation by resolution from time to time.
RIVAL SUBMISSIONS.
14. The Counsel for the respondents submits that Allen Forest Workshop is an extention of Central Workshop, hence there was no necessity of submitting the Draft Standing Orders and even otherwise there is no breach of the provisions of the Standing Orders Act as the Standing Orders Act does not apply to the aforesaid Workshop. He further submit its that U.P. Road Transport Corporation was established under U.P. Road Transport Act, 1950. Section 45 of this Act confers powers on State to frame Regulations providing Service conditions. The State Government in exercise of powers under Section 45 of the Act framed regulations known as " U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulation 1981 which provide for transfer of the employees of the Corporation and these regulations have also been notified under Section 13B of the Industrial Employment Standing Orders Act, 1946, He submits that in this view of the matter the case of Ram Barai Shukla (Supra) relied upon by the Counsel for the petitioner is not relevant.
LEGISLATIVE HISTORY (APPLICABILITY OF CERTAIN ACTS AND REGULATIONS AND RELEVANT PROVISIONS.
15. Before dealing with rival contentions of the parties it is necessary to have a look to legislative history and background of service conditions of employees of this Corporation.
16. Before 1946 the condition of service of industrial employees were invariably ill defined and were hardly known to them. There was no uniformity in condition of service for employees discharging identical duties even in the same establishment. Their conditions of service were in the form of oral arrangement which left them at the mercy of the employer. In order to regulate the service conditions of such employees the Parliament enacted "The Industrial Employment (Standing Orders) Act, 1946." The object of this Act was to require the employer to make the condition of employment precis(sic) definite and known to the employees. The matter of transfer was not included in the schedule of the Act and therefore, transfer was not generally prescribed in the the Standing Orders, certified under the Act or under the Mode! Standing Orders framed under the Rules.
17. The Road Transport Corporation Act, 1950 (Act No. 64 of 1950) was enacted by the Parliament under which the State of U.P. created a Corporation known as U.P. State Road Transport Corporation on 1.6.1972 under Section 3 of this Act.
18. Prior to the establishment of the Corporation the transport services were provided by the U.P. Government through a department known as Roadways Department. This department was created in 1948. All the employees were Government employees and were governed by the rules and regulations applicable to the Government servants.
19. On the creation of the Corporation all the employees of the erstwhile U.P. Government Roadways were sent on deputation with the Corporation with a specific condition that their service conditions would not be changed. The result was that the employees of the U.P. Government Roadways confirmed as before even after the formation of the Corporation.
20. Exercising its powers under Section 45(2) of the Road Transport Corporation Act, 1950 the Corporation framed regulations known as "Uttar Pradesh State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981" (hereinafter referred to as the Regulations) with the previous sanction of the State Government superseding all existing rules or orders on the subject (emphasis applied). These Regulations contain power of transfer from one establishment to another by the Corporation. This regulation was published in the U.P. Gazette vide notification No. 3517/XXX-2-1981 on 19.6.1981 but they were not notified under Section 13B of the Standing Orders Act.
21. Industrial Employment (Amendment and Miscellaneous Provisions) Act, 1950 introduced a new Section 13B in the Standing Orders Act, with effect from 10.3.1957. Section 13B of the Industrial Employment (Standing Orders) Act, 1946 provides as under:
13B. Act not to apply to certain industrial establishments - Nothing in this Act shall apply to an industrial establishment in so far as the workmen employed therein are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rule Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations Civilians in Defence Service (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.
22. In order to remove any anamoly and to make the Regulations uniformaly applicable to the employees of the Corporation, the Government issued notification No. 858/XXXVI-3-1 (S.O.)-90 dated 19.9.90 notifying the regulations of 1990 under Section 13B of the Standing Orders but this notification was not very happily worded and could be subjected to various interpretations. Accordingly another Notification No. 222/XXXVI-3-1 (S.O.)-90 dated 12.4.91 was issued which reads as follows:
No. 222/XXXVI-3-1 (S.O.) dated Lucknow, April 12, 1991.
In exercise of the powers under Section 13B of the Industrial Employment (Standing Orders) Act 1946 (Act No. 20 of 1946) read with Section 21 of the General Clauses Act, 1897 (Act No. 10 of 1897) and in supersession of Government notification No. 858/XXXVI-3-1 (S.O.)-90 the Governor is pleased to notify that the Uttar Pradesh Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 framed under Clause (c) of subsection (2) of Section 45 of the Road Transport Corporation Act, 1950 (Act No. 64 of 1950) shall apply to to workmen employed in the Uttar Pradesh State Road Transport Corporation.
By order Mohinder Singh Sachiv.
Whether Central Workshop and Allen Forest Workshop are two separate Industrial Establishments.
23. Factory is defined in Section 2(m) of the Factories Act. The definition includes even precints of a factory whether situation in same premises or form one unit which is as under:
Factory means premises including precints thereof.
Since manufacturing process is carried on in the Allen Forest Workshop it is a factory and also a precint of Central Workshop which is in same area. In 1995 (II) LLJ 648 Grager well (India) Ltd. v. Collector Central Excise, the apex Court held that- " precints means " areas surrounding. The words premises including precints thereof under Section 2(m) are therefore wide enough to include all buildings with its surroundings which form part of one untit.
24. It is apparent from the averments made in paragraphs 3, 4 and 9 of the writ petition that the Allen Forest Workshop was established when work in Central Workshop increased and similar manufacturing activities were carried on in both the Workshops. It is an extention or annexe and i.e. it is a part of Central Workshop and is a part of same factory Thus, Allen Forest Workshop can be regarded as unit of Central Workshop. This question is also redundant now as from1991 the Workshops employees are governed by Statutory Rules and Standing Orders Act does not apply to them.
CONCLUSIONS.
25. The case of U.P.S.E.B.. v. Hari Shankar Jain and Ors. relied upon by Sri K.P. Agarwal, Senior Advocate relates to regulations framed by the U.P. Electricity Board which provided for age of superannuation but this age was not incorporated in certified standing orders by amendment or modification in Standing Orders and Certified Standing Orders Act. There was no notification under Section 13B of the Act excluding Standing Orders Act .In these circumstances, it was held that there can be no change in age of superannuation as laid down in Certified Standing Orders Act when Regulations changing the age of superannuation was notified under Section 13B of the Standing Orders Act the Court held that:
Therefore in the instant case the regulations made by Elecricity Board under Section 79(c) of the Electricity Supply Act with regard to age of superannuation having been duly notified by the Government under Section 13B of the Act 1946, the regulations shall have the effect notwithstanding the fact that it is a matter which could have subject matter of Standing Orders under the Industrial Employment (Standing Orders) Act, 1946. (para 17).
It was also held in this case that Rules and Regulations notified under Section 13B apply to workmen having statutory status and not to government servant only.
26. In my opinion, the aforesaid case of UPSEB v. Hari Shankar (Supra) fully supports the case of respondents rather the petitioners inasmuch as notification under Section 13B has been issued by the State Government on 12.4.91 applying regulations to employees of Corporation which gives power of transfer.
27. The case of Indira Shawhney (supra) only lays down that it is the sole judgment of employer to place an employee at a place where he finds best suitable. This case also does not help the petitioners.
28. Case of Smt S.D. Tiwari, 2000 (Supra) supports the case of respondents where transfer was in same city from one hospital to another.
29. The apex Court in a catena of cases has held that the power to transfer is inherent and can be exercised unless prohibited by law. The Court while dealing with the questions regarding appropriate action by employer for non compliance of transfer order held that transfer is a normal incidence of service. Unless there is a term to the contrary in the contract of service refusal to report for duty upon transfer amounts to insubordination.
30. The judgment in Ram Barai Shukla v. Joint General Manager (Employment), U.P.S.R.T.C., Lucknow, dated 23.8.88 in C.M.W.P. No. 2261 of 1987 relied upon by the petitioners, (Annexure-16 to the writ petition) is prior to the date of notification dated 12.4.91 notifying the regulations under Section 13B of the Industrial Employment Standings Orders Act, 1946.
31. In State of Rajasthan and Ors. v. Anand Prakash Solanki (D.B.) the apex Court reiterated that power to make appointment includes the power to transfer unless the same is expressly barred. The Court held that:-
The concept of appointment by transfer is not unknown to service jurisprudence. A power to appoint includes a power to revoke an appointment, and also includes a power to make an appointment by transfer....
32. Ordinarily a mere order of transfer made by an employer is not amenable under Article 226 of the Constitution unless it is conclusively proved that it is against any provision of law or has been a result of malafide action of the employee. Both these elements are absent in the instant case.
33. The petitioners have neither pleaded nor argued that any prejudice has been caused to them and have only urged vehemently that employer has no power to transfer and the transfer order is illegal and is liable to be quashed. The Division Bench of this Court in Smt. S.D. Tiwari v. Chief Medical Superintendent held that even if an illegal order has been passed but if causes no prejudice to the petitioner, no writ will be issued and no interference in such order of transfer is required.
34. In (1991) 2 CRS 1095 Bachai Lal v. U.P.S.R.T.C. similar notification under Section 13B was considered and it was held that notification was valid and the case of K. Nagraj v. State of A.P. applies with force to the employees from retrospective effect i.e. 19.6.91 the date of enactment of the U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulations 1981. In para 56 it has been held that-
The Corporation has been created by the State Government under Section 3 of the Road Transport Corporation Act, 1950. It is a statutory Corporation. It has been authorized by the statute to make rules and regulations under Section 45(2) of the Road Transport Corporation Act, 1950. The publication of the said regulations under Section 13B of the Standing Orders Act was sufficient to exclude the application of the Standing Orders Act as a whole.
35. Thus, on account of Gazette notification dated 12.4.91 notifying the Regulations under Section 13B of the Standing Orders Act, the Regulation will apply uniformaly to all the employees of the Corporation including that of the Central Workshops, Allen Forest Workshop and other Workshops at Chumiganj and Juhi at Kanpur. After the notification the field is covered by it giving the power to the employers to transfer the employees. The effect of notification issued under Section 13B also came up for consideration in Special Appeal No. 4 of 1991 and in Special Appeal No. 14 of 2002 Bal Krishna Tripathi v. U.P.S.R.T.C. 2003(1) ESC-175. Relying upon Bachai Lal (supra) as affirmed in Special Appeal No. 91 of 1991 decided on 14.12.92, Lalta Prasad v. U.P.S.R.T.C. and Ors., which was subsequently followed by another Division Bench in Sabhajeet Singh v. U.P.S.R.T.C. and Anr. W.P. No. 26243 of 1991 decided on 26.3.1993.
36. There is no dispute that Regulations notified under Section 13B provide for transfer of employees from one establishment to other.
37. Section 13B is like an exception and makes the Standing Orders Act inapplicable, hence the Regulations hold the field after notification is issued. These Regulations confer power of transfer, therefore, even if power to transfer has been incorporated in the Standing Orders or not. It has no relevancy now as there is ample power in the regulations to transfer. Thus the submission of the Counsel for the respondents that in view of the notification under Section 13B of the Standing Orders Act there is no question of submitting Draft Standing Orders or getting them certified and Corporation has not committed any (sic)breach of the Act have force. In view of definition of factory and legislative history Corporation has power to transfer its employees and the Corporation is not governed by the Act, hence is not required to frame Standing Orders. Power to transfer is derived by it from the statutory regulations hence, the transfer from one Unit to other unit of same factor or establishment, in same city or to another factory, or establishment else where is legal and valid. The present writ petition challenging the transfer order is not sustainable. It is also apparent from the writ petition that the petitioners are workmen and are governed under the U.P. Industrial Disputes Act, 1947. They have filed this petition against the order of their transfer challenging the applicability of the Standing Orders Act and the Regulations. This could have been looked into by the Labour Court/Industrial Tribunal, Since the matter is being decided on merit, the petitioners are not relegated to the alternative remedy.
38. There being no term to the contrary in the contract of service, the employees are liable to transfer and the impugned order was not in violation of any term of employment. In the absence of any prohibition, there exist no good ground for interference in the order of transfer. Transfer has been made from one Workshop to another in same city and in same area of the city with no change in terms and conditions of employment or nature of work. Averments in the writ petition regarding malafide have not been pressed. There is no allegation of any statutory prohibition on transfer, hence transfer can not be interfered with as held by apex Court in very recent judgment reported in 2004(102) FLR 1036 State of U.P. v. Siya Ram.
39. For the reasons stated above it is not a case for interference by this Court under Article 226 of the Constitution of India. The petition is dismissed. No order as to costs.