Response

They cannot transfer during the notice period. Please file complaint to the Assistant Labor Commissioner within whose jurisdiction your company falls.

It is settled Law by Supreme Court that Transfer of an employee is prerogative of Management and it is not necessary to give notice to his employee before Transfer. It may be true that your present employer has transferred you to because of the fact you are leaving the job but you cannot successfully challenge you transfer in the court of Law because your employer will take this stand that you are in his service during Notice period and it is their prerogative to take work from you at any place even at Kerala . So it is advisable that you be cool and take relieving letter from the company on the last date of the Notice period. In case, your company does not give you relieving letter on the last date of Notice period then you move to the Labour Court.

an employee cannot refuse a transfer order. There is a strong right on the part of the employer to transfer their employees to a different branch at a different State. The usual procedure of giving reasonable notice of transfer is not mandatory. Also, if such order is given, the employee has no option but only to accept the transfer order.

Note: with regards to the meaning of ÔtransferÕ it should be noted that when an employer shifts his place of business or undertaking from one place to another, resulting in shifting of the employees is not a transfer.

Yet, the employerÕs power to transfer cannot be exercised arbitrarily as it is subjected to the following well-recognised restrictions:

(i) there must not be anything contrary to the terms of employment. The employer has no right to transfer if this was expressly prohibited in the letter of appointment.

(ii) the management in making the transfer order, must have acted bona fide and in the interests of its business. In other words, the transfer must not operate to the prejudice or detriment of an employee unless expressly authorized.

(iii) the management is not actuated by any indirect motive or any kind of mala fides (in fact or in law). Malice in law is attracted when an order is not based on any factor germane for passing the order of transfer and is based on irrelevant grounds, such as order by way of punishment.

(iv) the transfer must not be made for the purposes of harassing and victimizing the employee. This means that transfer to an inferior position and imposition of unaccustomed and onerous duty must not be allowed particularly in unexplained coincidences.

(v) the transfer must not involve a change in condition of service. Therefore, no employer has the inherent right to transfer his employee to another place where the employer chooses to start a business immediately subsequent to the date of employment of the employee. This is due to the reason that there is no presumption that this was impliedly agreed by the employee. The circumstances which this can be done is where this was stated in letter of appointment or in the event that the employee voluntarily accepts the transfer.

Reference: the employerÕs power to transfer cannot be exercised arbitrarily as it is subjected to the following well-recognised restrictions:

(i) there must not be anything contrary to the terms of employment. The employer has no right to transfer if this was expressly prohibited in the letter of appointment.

(ii) the management in making the transfer order, must have acted bona fide and in the interests of its business. In other words, the transfer must not operate to the prejudice or detriment of an employee unless expressly authorized.

(iii) the management is not actuated by any indirect motive or any kind of mala fides (in fact or in law). Malice in law is attracted when an order is not based on any factor germane for passing the order of transfer and is based on irrelevant grounds, such as order by way of punishment.

(iv) the transfer must not be made for the purposes of harassing and victimizing the employee. This means that transfer to an inferior position and imposition of unaccustomed and onerous duty must not be allowed particularly in unexplained coincidences.

(v) the transfer must not involve a change in condition of service. Therefore, no employer has the inherent right to transfer his employee to another place where the employer chooses to start a business immediately subsequent to the date of employment of the employee. This is due to the reason that there is no presumption that this was impliedly agreed by the employee. The circumstances which this can be done is where this was stated in letter of appointment or in the event that the employee voluntarily accepts the transfer.

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LAWAYZ-2023-313