Labour Laws Q/A

Transfer of an Employee – When Challenged – Civil Court should Reject the Suit at Threshold

Do civil courts entertain the suit by an employee challenging his transfer?

Transfer of an employee from one place to another or from one department to another is an incident of service and no employee can have a fixed place of work. However, there are certain limitations on the right of the employer in transferring the employees which are summarised as under:

(i) A transfer of a workman from one department to another or from one job to another, cannot be made, if his service conditions or terms of service contract expressly negative the right of such transfer, or if the standing orders of the employer prohibit such transfer.
(ii) A transfer must not operate to the prejudice or detriment of the workman, unless expressly authorised. In other words, the transfer must not occasion to the workman economic loss in wages, bonus or other monetary benefits.
(iii) A transfer must not be made by way of punishment, that is to say, there must not be a colourable exercise of the power of transfer of a workman so as to victimise him.
(iv) A transfer of an employee to an inferior position and the imposition of unaccustomed and onerous duty must not be made, particularly in the background of any unexplained coincidence with the employee’s trade union activities.
(v) It is never an implied condition of service of a workman that the employer has the right to transfer him to a new concern started by the employer subsequent to the date of the employment of the workman

As regards filing the civil suit, it is made clear that as and when there is a condition of service empowering the employer to transfer employees from one place to another, the Civil Courts have no jurisdiction to grant such relief. In a recent case, the Supreme Court has held that such a suit should be rejected by the Civil Court at the very threshold.1
Civil Courts have no jurisdiction to decide a suit challenging transfer (of an employee in private sector) by employee since it will amount to enforcing of personal contract which is barred by the Specific Relief Act.2

Source: H L Kumar


References:
1. Pearlite Liners Pvt. Ltd. v. Manorama Sirsi, 2004 LLR 193 (SC): AIR 2004 SC 1373: 2004 AIR SCW 273.
2. Apollo Tyres Ltd. v. C.P. Sebastin, 2010 LLR 192 (SC).

Leave a Comment