Q: I work as a manager in a private company and look after the legal and administrative affairs of its branch office. Last year, the company transferred one of our accountants, from the said branch office to its sales-office-cum-godown located in the same town. However, the said employee refused the transfer on the ground that the location of the office was not good and it lacked proper amenities. Thereafter, she stopped attending office. This year, a chargesheet was issued against her, but instead of replying, she filed a suit in the district court challenging the legality of the transfer order and seeking a declaration that she continues to be in service of the company. She has also sought a decree of injunction restraining the company from holding any disciplinary proceedings against her. In view of the suit, can the company proceed with the inquiry and terminate her service? Please advise.
S. Agarwal, Siliguri
A: The relationship between the said employee and the company is based on a contract between two private parties. Unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service. Refusal to obey such orders passed by superiors really amounts to insubordination, for which the employer can reasonably be expected to take appropriate action, including termination of her service. By seeking an injunction against the transfer order and against holding of departmental enquiry, the said employee is indirectly trying to ensure that she cannot be dismissed. It is an attempt not only to seek enforcement of a contract of personal service but also to restrain the company from taking legitimate steps in accordance with its rights. Both reliefs are impermissible in law and are barred under the provisions of the Specific Relief Act, 1963.
It is well established that courts will not grant specific performance of contracts of personal service so as to impose an employee upon the employer by force, except in cases where a public servant is removed from service in contravention of Article 311 of the Constitution or where a worker is sought to be reinstated on being dismissed under the Industrial Law or where a statutory body acts in violation of mandatory provisions of law. Clearly, the present case does not fall in any of the three exceptions. Therefore, the said suit prima facie appears to be misconceived and is likely to fail. However, the company should first ascertain if the court has already passed any orders, before it proceeds with the inquiry against her. The company should also apply to the concerned court for dismissal of her suit on the ground that it is not maintainable in law.
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