1. This revision is directed against the order dated 29.10.1991 in I.A No. 418 of 1991 in O.S No. 474 of 1991 on the file of the II Addl. District Munsif Court, Tiruchirapalli and confirmed by the judgment and decree dated 11.2.1993 and made in C.M.A No. 11 of 1992 on the file of the I Additional Subordinate Court, Tiruchirapalli.

2. The respondent herein who was working as Junior tradesman in the Re-conditioning unit at Central workshop at Kotapattu, Tiruchirapalli, was transferred vide order dated 18.2.1991 to Pondicherry. The respondent herein filed O.S No. 474 of 1991 in the court of the II Additional District Munsif, Tiruchirapalli, for a declaration for the transfer proceedings dated 18.2.1991 as arbitrary, against the principles of natural justice, mala fide, null and void and consequently for a permanent injunction restraining the petitioner from in any way giving effect to the said proceedings in any manner whatsoever.

3. The respondent also filed I.A No. 418 of 1991 for an interim injunction restraining the respondents from giving effect to the said transfer proceedings in any manner till the disposal of the suit. Though the respondent was relieved from his duties on 21.2.1991 to report before the Branch Manager at Pondicherry, an ex parte order of interim injunction was obtained by the respondent on 1.3.1991 The petitioner corporation filed a detailed counter affidavit pointing out that the civil court does not have the jurisdiction to adjudicate the issues as the respondent being a ‘workman’ within the meaning of section 2(s) of the Industrial Disputes Act (hereinafter referred to as the Act) has to approach only a Forum created under the said Act for resolving any dispute. After enquiry, the learned District Munsif by order dated 29.10.1991 made the injunction absolute on the ground that the same was mala fide and was intended to victimise the respondent. The trial Court also rejected the objections regarding the jurisdiction raised by the petitioner corporation.

4. Aggrieved by the same the petitioner corporation filed C.M.A No. 11 of 1992 on the file of the First Additional Subordinate Judge, Tiruchirapalli. The said court by order dated 11.2.1993, dismissed the appeal. But, however, found that by virtue of clause 27 of Standing Orders, the petitioner corporation have the power to transfer but curiously without any pleadings proceeded to hold that the proposed transfer would place the respondent as a Junior in the Pondicherry depot and that the same would be in violation of the conditions of Clause 27 of the Standing Orders. The Appellate Court also rejected the objections regarding the jurisdiction of the court to grant the reliefs as prayed for. Aggrieved by the same, the petitioner corporation has filed the above revision in this Court.

5. Learned counsel for the petitioner Mr. Sai Prasad contended that the courts below have totally erred in brushing aside the objections raised by the petitioner regarding the jurisdiction of the Civil Court to grant the relief as prayed for and that even assuming that there is violation of Clause 27 of the Standing Orders, the remedy of the workman would only be to approach a forum created under the Act as common law does not recognise any objections against the order of transfer on the ground of mala fides or unfair labour practice, but on the contrary, the same having been conferred only by the provisions of the Act. It is further contended that the Courts below also erroneously overlooked the binding judgments of this court as well as the Supreme Court on an erroneous interpretation. No prejudice would be caused to the respondent as the order of transfer, at any rate, is one of the service conditions of the respondent. Moreover no prejudice is caused to the respondent by virtue of the order of transfer. The balance of convenience is certainly in favour of the petitioner and consequently the orders of interim injunction granted by the courts below ought to be suspended pending disposal of the revision.

6. Mr. G. Ethirajulu, learned counsel for the respondent contended that there is no exclusion of the jurisdiction of the civil court to adjudicate the issue and that the respondent a permanent employee in the petitioner corporation as an active trade unionist and because of his trade union activities, the respondent was transferred and posted to Pondicherry with mala fide intention. He would further contend that the respondent being the joint-secretary of a registered trade union, is a protected workman under the Act, and therefore his presence at the Headquarters is absolutely necessary to look after the trade union activities. However, the management has transferred the respondent leaving his juniors in the reconditioning section un-touched. He relied on clause 27 of the Standing Orders which runs as follows:-

“Clause 27: Transfers: “Every workman shall normally be liable to be transferred in the same category or grade from one Depot/Branch/place of work/to another of the corporation provided that the pay and services of the workman in the category or grade are not adversely affected”.

It is further contended that the respondent because of the transfer, would become junior most in service in Pondicherry consequent to his transfer leaving his juniors in service untransferred. According to the learned counsel for the respondent, Standing Order 27 insists that any transfer should not be detrimental to the wages and service condition of the workman and the management should effect transfer within the limits prescribed by the Standing Order 27.

7. The only question that arises for consideration in this revision is,

“Whether the civil court has no jurisdiction to adjudicate any dispute and grant an injunction against enforcing the order of transfer as the same is not a right recognised under the common law, but created only by the provisions of the Industrial Disputes Act?”

8. I have already extracted clause 27 of the Standing Orders formulate under the provisions of the Industrial Employment Standing Order Act, 1946. The Supreme Court in J.N Biswas v. Empire of India and Ceylon Tea Co., 1990 (1) LLN 294 held that the scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act. The Supreme Court further held that where the provisions of the Industrial Disputes Act and the Industrial Employment Standing Orders Act are applicable then there is an apparent exclusion of the jurisdiction of the civil court as the said legislations provided a complete procedure and machinery for adjudication and resolving all the grievances of the workman. In that case, the question that arose for determination was in respect of the jurisdiction of the civil court to entertain a suit filed by an employee against his employer challenging his termination of service and seeking relief of reinstatement with backwages. In the said case the Supreme Court held as follows:-

“It is clear that wherever the jurisdiction of the civil court is expressly or impliedly barred, the civil court will have no jurisdiction. It could not be disputed that a contract of employment for personal service could not be specifically enforced and it is also clear that except the industrial law under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement or backwages. At best he could seek the relief of damages for breach of contract. The manner in which the relief has been framed by the appellant plaintiff in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstatement and backwages. The relief which could only be available to a workman under the Industrial Disputes Act.”

9. In my opinion, the dispute raised by the respondent/workman fell within the ambit of the definition of “Industrial dispute” as defined under section 2(k) of the Act. In this context, it is also useful to reproduce sections 2(k), 2(s) and 2A.

“2(k) ‘industrial dispute’ means any dispute or difference between employers and employers or between employers and workman, or between workmen and workmen, which is connected with the employment or non-employment, on the terms of employment or with the conditions of labour, of any person;

2(s). “workman” means any person (including an apprentice) em-ployed in any industry to do any manual, unskilled, skilled, technical operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute but does not include any such person —

(i) who is subject to the Air Force Act 1950 (45 of 1950) or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an of ficer or other employee of a prison; or

(iii) who is employed in a managerial or administrative capacity or

(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensum or exercises, either by the nature of the duties attached to the of fice or by reason of the powers vested in him, functions mainly of a managerial nature.

2A. Dismissal etc., of an individual workman to be deemed to be an industrial dispute.- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

11. We have already extracted clause-27 of the Standing Order. Clause 27, in my opinion, does not impose any restriction on the management in transferring an employee and the only condition is that by virtue of such a transfer, the service condition of the employee shall not adversely be affected when the only grievance of the respondent was that he was sought to be transferred notwithstanding the presence of a lot of juniors. In my view, the sub-court, has grossly mis-directed itself in holding that by virtue of the order of transfer to Pondicherry, the service conditions of the respondent are altered and consequently holding that the transfer is in contravention of the standing orders.

12. In my opinion, the orders of both courts below are totally without jurisdiction and ought to be set aside. The relief claimed by the respondent in this case is not recognised under common law as it does not impose any limitation on the power of the master to transfer his employees on the ground of mala fides or unfair labour practice or victimisation. Such a right being only the creation of the Industrial Disputes Act which provides for a machinery for adjudication for resolving any such grievance, the civil court, in my view, would have no jurisdiction to entertain the suit much less grant the interim order as prayed for. The appellate court has also failed to notice that the only grievance of the respondent was that he was sought to be transferred notwithstanding the presence of his juniors in the same branch. That being the case, the appellate court has grossly misdirected itself in proceeding as if by virtue of the transfer his service conditions are altered and the appellate court has proceeded as if the respondent would become junior in the Pondicherry depot which was never the case of the respondent. My attention was drawn to clause 21 & 22 of common service rules which is applicable to the employees of the corporation the management in my view has the power to transfer the respondent from one depot to branch or place of work to another of the corporation by virtue of clauses 21 and 22 of the Common Service Rules. When there is a power to transfer and the same has been bona fidely exercised the civil court has no jurisdiction into interfere and grant an injunction restraining the management from giving effect to the said order. The respondent being a workman within the meaning of sec. 2(s) of the Act and relates to the enforcement of a right or obligation created under the Act, the only remedy available to him, would be to approach the forum created under the provisions of the Act and face if any grievance, and the jurisdiction of the civil court is ousted.

13. In the decision reported in Premier Automobiles Ltd. v. K.S Wadke, 1975 (II) L.L.J 445, the Supreme Court held that where a dispute relates to right or obligation under the I.D Act, only remedy is under the Act to get adjudicated, and where a right is sought to be enforced is a right created under the I.D Act the remedy for its enforcement is only under that Act. The question came up for consideration in the above case relates to the jurisdiction of civil courts in industrial matters. In the said case, the Supreme Court held as follows:-

“the principles applicable to the jurisdiction of the civil courts in relation to an industrial dispute may be stated thus;

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the civil court.

“(2) If the dispute is an industrial dispute arising out of a right of liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suit or concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suit or is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act, such as Chapter VA, then the remedy for its enforcement is either S. 33C or the raising of an industrial dispute as the case may be”.

14. In the decision reported in The Rajasthan State Road Transport Corporation v. Krishnakant, 1995 (II) C.T.C 208, the employees of Rajasthan State Road Transport Corporation were terminated from service on the basis of proved charges in disciplinary proceedings. The aggrieved employees filed a suit for declaration that the order terminating their services is illegal and invalid and also for a further declaration that they must be deemed to have continued and are still continuing the services of the corporation with all benefits. The contentions raised by the management is that the civil court has no jurisdiction to entertain the suit. However, the trial court decreed the suit and on appeal, the appeals filed by the corporation were also dismissed. Hence, the corporation filed a Civil Appeal before the Supreme Court and in the said appeal, the Apex Court of the Land held as follows:-

“The dispute involving the enforcement of the rights and liabilities created by the certified standing orders has necessarily got to be adjudicated only in the forums created by the Industrial Disputes Act provided that such a dispute amounts to an Industrial dispute within the meaning of section 2K and 2A of Industrial Disputes Act, or such enactment says that such dispute shall be either treated as an Industrial Dispute or shall be adjudicated by any of the forums created by the Industrial Disputes Act. The Civil Courts have no jurisdiction to entertain such suit. In other words, dispute arising between the employer and the workman/workmen under/or for the enforcement of the Industrial employment Standing Orders is an industrial dispute, if it satisfies the requirements of Section 2K and 2A of the Industrial Disputes Act and must be adjudicated in the forums created by the Industrial Disputes Act alone. This would be so seven if the dispute raised or relief claimed is based partly upon certified standing orders and partly on general law of contract.”

As regards the civil court jurisdiction to entertain Industrial Disputes, the Supreme Court held as follows:-

“That a dispute between the employer and an individual does not constitute an Industrial Dispute unless the cause of the workmen is espoused by a body of workmen where the dispute concerns the body as a whole or to a section there of it is an Industrial Dispute. By virtue of section 2A the scope and concept of Industrial Dispute, has been widened which now embraces not only under section 2K but also 2A. There may be many disputes which would not fall within section 2A or 2K. In all such cases, the remedy is only Civil Court or by way of arbitration according to law if the parties so choose. The machinery provided under Industrial Disputes Act does not apply to such a dispute.”

15. In the decision reported in Tamil Nadu Mercantile Bank Ltd., v. T. Venkatesan, 1992 (I) LLN 627 the question considered was, whether the City Civil Court, Madras has got jurisdiction to entertain the suit filed by the respondent employee for a declaration that the order transferring him to Pannaipuram is mala fide, illegal and unjust and for consequential permanent injunction restraining the petitioner management from transferring him from Madras to Pannaipuram. In the said case, this Court (M. Srinivasan, J.) as he then was held as follows:-

“The right sought to be enforced is not a common law right. A perusal of the plaint shows that the only ground on which the order of transfer is challenged is that it is a mala fide act of victimisation and punishment. It is not the case of the Plaintiff that there is any violation of the terms of the contract of service. It is not in dispute that the order of appointment under which the respondent entered in service with the petitioners contained specific clause that he may be transferred to any section/department/branch of the establishment. It is not the case of the respondent that the said clause is in violation of any provision in the Contract Act or any other statute. This is not a case in which the respondent is seeking to enforce the contract between him and the petitioners; nor is it a case based on a breach of contract. No doubt, there is a passing reference in para 12 of the plaint that the order of transfer is also contrary to the transfer policy i.e, a staff will not be transferred from one place to another before completion of three years. There is no averment in the plaint that the so called transfer policy forms part of the contract between the plaintiff and the defendants.

“A right to challenge an order of transfer on the ground of mala fides or victimisation cannot be equated with the right to get wages during the pendency of a proceeding in a High Court or the Supreme Court by an employer against the award passed by a Labour Court, Tribunal or National Tribunal directing reinstatement of workman.”

“In this case, it is not in dispute that the employees' union of which the plaintiff is the vice-president, has already initiated proceedings under the Industrial Disputes Act. The respondent having initiated proceedings under the Industrial Disputes Act is not entitled to maintain the suit in civil court has no jurisdiction to decide the same. The orders of the civil court below are set aside.”

“The law that prevailed before the advent of the Industrial Disputes Act, which is described as the common law by learned counsel for the respondent, did not recognise any right in an employee to question an order of the employer falling strictly within the terms of the contract on the ground that it was a mala fide act of victimisation. It is only under the provisions of the Industrial Disputes Act such a right is created by the Legislature enabling the workers to challenge orders of transfer made by the management. Before the Industrial Disputes Act was passed, there was no fetter on the power of the employer to transfer an employee when the terms of contract of employment expressly provided therefor.”

16. In the decision reported in T. Rajaiah v. Southern Roadways Ltd., 1991 TLNJ 76 the employees of the Southern Roadways filed suits in respect of their transfer from the places where they were working to some other places allegedly with mala fide intention by the respondent and not for any administrative reasons. Along with the suits, they filed interlocutory applications under Order 39, Rules 1 and 2, CPC for an ad interim injunction restraining the respondents 1 and 2 from giving effect to the order of transfer pending disposal of the suits. Learned District Munsif dismissed the I.Aa on the ground that the civil court has no jurisdiction. On appeal, the order of the trial court was confirmed. Hence, revisions were filed before this Court, and this court held (S.T Ramalingam, J.) as follows:-

“The next question for examination is as to whether the Industrial Disputes Act has created a forum for enforcing this statutory right in the matter of transfer as defined in section 2(ra) read with section 25-T of the Act. Section 7A deals with matters that can be dealt with by industrial tribunals. The matters that can be dealt with by industrial tribunals are enumerated in third schedule and the matters that can be dealt with by a Labour Court are enumerated in the second schedule. Item-6 of second schedule deals with all matters other than those specified in the third schedule. In that view of the matter, disputes that arise as a result of mala fide transfer squarely fall under the second schedule, and in fact, the petitioners have initiated proceedings as an Industrial Dispute. However, the Government declined to refer the matter. The petitioners have once again applied to the Government for review of their decision. In these circumstances, even if the facts of this case give a right to election to the petitioners, the petitioners having elected to get redress of their grievance by initiating proceedings under the provisions of the Act, I find, they are not entitled to invoke the jurisdiction of the civil court.”

17. Learned Counsel for the respondent cited two decisions in support of his arguments:

They are: 1. Prakash Chandra Saxena v. State of Madhya Prades, 1980 (II) LLJ 322, and 2. Virudhunagar Sarvodaya Sangh v. S. Sathiathinakaran, 1995 (1) CTC 318.

Out of them, the decision reported in Prakash Chandra Saxena v. State of Madhya Prades, 1980 II LLJ 322 (referred above) was rendered by a learned single Judge of the Madhya Pradesh High Court. In that case, the right of the master to transfer his servant and whether that is justiciable were considered. It was held in that case as follows:-

Usually the master has full power to transfer his servant wherever he wants because transfer is made looking to the character and quality of work the servant does. Therefore, if a master wants that a particular servant is required at a particular place, he has a right to transfer the servant from one place to another. But, this does not mean that the power is absolute and a master has a right to transfer his servant capriciously. If the transfer is mala fide or for some ulterior purpose, the civil court has jurisdiction to see whether the order is one imposing a punishment or not. Where the servant alleges mala fide, it is not enough for the master to merely say that the transfer was for administrative purposes. The master has to submit some document or affidavit in support.”

18. I am unable to subscribe to the views expressed by the learned single Judge of the Madhya Pradesh High Court, in view of the catina of judgments rendered by our High Court in the matter of transfer. The power to transfer employees has been considered by this Court in numerous decisions and it has been unilaterally held by this Court that transfer is a general condition of service of the employees, that such transfers are to be effected for the administrative convenience of the employer, that the court does not sit in appeal nor call for details of administrative exigencies. In B. Varada Rao v. State of Karnataka, 1986 (II) LLJ 516, the Supreme Court held that it is well understood that transfer of Government servant, who is appointed to a particular cadre of transferable post from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service of his disadvantage. The Supreme Court declined to accept the case of the petitioner therein, that he should not be transferred. S. Mohan, J., (as he then was) in M. Syed Ali v. The General Superintendent, Ennore Thermal Power Station, W.P No. 4214 of 1983 while dealing with the challenge to the order of transfer of a workman from the Ennore Thermal Station, and referring to Standing Order No. 17 dealing with the electrical staff of the Board, which is similar to Standing Order 28 for the workmen, held that there is absolutely no bar for transfer from Ennore Thermal Power Station to another circle. S. Nainar Sundaram, J., (as he then was) also took the same view in W.P No. 5781 and 5869 of 1984. S. Natarajan, J., (as he then was), in the case of Pakkiri v. The Chief Engineer/Personnel TNEB, WP. Nos. 1144 to 1146 of 1985 dated 19.4.1985 after referring to clause 28 of the standing order, held that the contentions advanced on the basis of the standing order were not sustainable. This court also (AR. Lakshmanan, J.) in Bomman v. Tamil Nadu Electricity Board, 1992 WLR 852 after considering the case of the petitioners therein based on Clauses 17 and 18 of the TNEB Standing Orders held that the allegations of mala fides were not made out on the facts of the case. I further observed that only in cases, where the order of transfer is found to be mala fide or in cases where such orders are in colourable exercise of power, the orders would become wholly illegal and void and that transferring a person because he is trouble some or trouble maker would in the interest of administration and that such transfers cannot be characterised as punittive. The transfer of the petitioners therein outside the circle in which they were employed was held to be within the competence of the authorities. In N.K Singh v. Union of India, 1995 (I) LLJ 854, the Supreme Court has observed that no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinised with reference to the private rights of an individual. It was further held that transfer of a Government servant in a transferable service is a necessary incident of the service career and that assessment of the quality f men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration.

19. Therefore, in my opinion, the transfer when it is incidence of service and is not affected by mala fide or in prejudice of any binding rule, cannot be judicially reviewed. In this case, though mala fide has been alleged against the respondents, the same has not been proved at all. Mere allegation is not pro of. In such circumstances, I am of the clear view that the transfer has been made in the routine course as an administrative messure and in public interest.

20. In the second case cited by the learned counsel for the respondent viz., Virudhunagar Sarvodaya Sangh v. S. Sathiathinakaran, 1995 (1) CTC 318 (referred to above) and decided by S.S Subramani, J. the question that arose for consideration was whether the order of the court below holding that civil court has jurisdiction to try the suit, is illegal or incorrect. In the said case, the relief sought for in the plaint are: (1) to declare the suspension as illegal, and (2) to recover the salary for the period from 1.3.1992 to 31.3.1992 The bar of civil suit in a court is governed by Section-9 of the Civil Procedure. Sec. 9 says that the courts shall have jurisdiction to try all suits of civil nature except the suits for which their cognizance is expressly or impliedly barred. In the said suit, as already stated, the suit was filed to decline the suspension as illegal. As stated earlier, the reliefs prayed for are two and the second is for recovery of salary, which is a common law dispute, arising on the basis of the contract between the employer and employee. It is one of the service conditions that the employee will be paid his dues every month. As it is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the learned Judge held that by no stretch of imagination, can it be said that the second relief sought for in the plaint is in any way barred under section. 9, CPC. Further, a suspension will not amount to non-employment. It is only keeping away the employee from work during the time of investigation. It is also not a case where any condition of labour is violated. It is within the power of the master to suspend an employee for any alleged misconduct. There is no condition of service that an employee shall not be suspended during enquiry. The learned Judge, therefore was of the view that the Industrial Disputes Act also does not take away the rights of the master. Only for wrongful dismissal, or retrenchment, or discharge from duties, Industrial Disputes Act makes a provision for a redressal through the Labour Court. As the employee is not enforcing a right or obligation created under that Act the employee is always entitled to move the civil court for the wrong done to him except for which provisions have been made under the I.D Act. In that view, the learned Judge held that the finding of the court below that it has got jurisdiction to decide the case, is correct. It was also held that the suit for declaration that the suspension is invalid does not seek specific enforcement of contract of personal service and therefore, sec. 14 of the Act does not bar relief being granted by the civil court. In such circumstances, it is clear that the above case has no application to the facts and circumstances of our case and therefore, is distinguishable on facts.

21. For all the foregoing reasons, I am of the view that the respondent being a workman within the meaning of Sec. 2(s) of the Act, the only remedy available to him would be to approach the forum created under the Industrial Disputes Act, and not to approach the civil court which is ousted. The C.R.P, is therefore, succeeds. However, there will be no order as to costs. Consequently, the orders of the courts below dated 29.10.1991 in I.A No. 418 of 1991 in O.S No. 474 of 1991 on the file of the II Additional District Munsif Court, Tiruchirapalli, and the judgment and decree dated 11.2.1993 made in CMA No. 11 of 1992 on the file of the I Additional Sub Court, Tiruchirapalli are hereby set aside. In view of the disposal of the main CRP, CMP. No. 17632 of 1994 is dismissed as unnecessary.