The Divisional Controller ... vs Dyandeo Ganpat Akolkar
2016 Latest Caselaw 5025 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                       
                            WRIT PETITION NO.8941 OF 2016

    The Divisional Controller,
    Maharashtra State Road Transport




                                                      
    Corporation, Ahmednagar Division,
    Sarjepura (Kotala),
    Ahmednagar                                               --      PETITIONER 




                                            
           VERSUS

    Dyandeo Ganpat Akolkar,   
    Age-51 years, Occu-Service,
    R/o "Shivchaitanya" Wamanbhau Nagar,
    New Pathardi S.T.
                             
    At Post Tq.Pathardi, Dist.Ahmednagar                     --      RESPONDENT

Mr.B.S.Deshmukh, Advocate for the petitioner. Mr.P.V.Barde, Advocate for the respondent.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 29/08/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner is aggrieved by the interim order dated

03/08/2016 by which the application for interim relief filed by the

respondent/employee seeking a stay to the order of transfer has been

allowed. Consequentially, the transfer order dated 18/07/2016 has

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been stayed by the Industrial Court till the general transfers occur in

March-April 2017.

3. The contention of the petitioner is that the respondent is a

troublesome employee. There are several complaints against him.

He is the Divisional Secretary of the recognized Union. He is working

at the Pathardi Depot as a 'Mechanic-Class III' for more than 20

years.

4. It is further submitted that the respondent has been

transferred from Pathardi Depot to Shrirampur Depot, which is 80

kms. away. An internal enquiry was conducted by which it was

decided to transfer the respondent so as to diffuse the situation. The

Hon'ble Cabinet Minister has also directed his transfer. Hence, he

was relieved from his posting on 25/07/2016. The Industrial Court

has passed a perverse order. By staying the transfer order, the

Industrial Court has virtually granted final relief at an interim stage.

5. Certain complaints have been tendered across the bar to

appraise the Court that there are several complaints against the

respondent and because of his mis-demeanors, he needs to be shifted

out of the Pathardi Depot so as to ensure harmony and peaceful

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working at the Pathardi Depot.

6. Mr.Barde, learned Advocate for the respondent/employee

submits that an interlocutory order has been challenged. This Court

should exercise jurisdiction in interlocutory order only if it appears

that the order passed is erroneous and is likely to cause gross

injustice to the litigating sides.

7. He has indicated from the rules that a transfer in the month of

July is not permissible. The Management has to prepare a list of

employees to be transferred, by the month of December in each year.

3 options have to be sought from the employee who is to be

transferred and after taking a decision considering the options

indicated, the employee has to be transferred in the month of March

or April of the subsequent year.

8. He further submits that by flouting the guidelines on transfer,

the transfer order of the respondent has been issued by an

unauthorized authority. The Divisional Controller has issued the

order of transfer without any authority.

9. During the course of the submissions of the learned Advocates,

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Mr.Barde submitted on instructions from the respondent present in

the Court that instead of transferring him to Shrirampur, he is

willing to be transferred to Ahmednagar. If the petitioner intends to

transfer him out of Pathardi, it may very well accommodate him at

Ahmednagar till the decision in the complaint.

10. This matter was therefore adjourned on 2 occasions to enable

the petitioner to take a decision. It is submitted today that the

petitioner does not intend to accept the request of the respondent

and hence the matter may be decided on its merits.

11. Having considered the submissions of the learned Advocates, I

have gone through the petition paper book and the record available.

Since the petitioner insists that the legality of the impugned

interlocutory order be considered on its merits, despite the pendency

of the complaint, I have therefore taken up this matter and heard the

learned Advocates for final disposal.

12. The respondent has invoked Item 3 of Schedule IV of the MRTU

and PULP Act, 1971 which reads as under :-

"To transfer an employee mala fide from one place to another, under the guise of following management policy."

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13. It is trite law that transfer is a normal incidence of service if

the service of the employee is transferable. It is equally settled that a

transfer order should not be interfered into unless it appears to have

been issued malafide and is under the guise of following the

management policy.

14.

The Rules governing the transfers of Officers and employees in

the petitioner/Corporation have been placed on record. The

respondent falls in the category of Class-III employees. According to

the Rules appearing at page No.85 of the petition paper book, clause

4(b) indicates that the transfer order of the respondent could have

been issued by the Regional Manager. The petitioner contends that

the respondent would fall under clause 5 by which the Chief of the

Depot or the office where he is working can issue the transfer order.

Contention of the respondent is that he would fall under 4(b).

15. Since the complaint is pending, despite the insistence of the

petitioner, I am not dealing with this issue as it would virtually

amount to deciding the complaint in this Court. Any conclusion of

this Court holding that the transfer order has been issued by an

unauthorized authority, would virtually render the complaint

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decided.

16. The thrust of the petitioner's case is that the respondent has

committed several misconducts. There are several complaints against

him. He has become a headache to the petitioner at Pathardi and

therefore the Corporation has urgently taken a decision to transfer

him out of Pathardi.

17. Upon testing the contentions of the petitioner in the light of the

service record of the respondent, it reveals that the respondent has

been punished only once and that too for the reasons of

unauthorized absence. The respondent contends that if he is guilty

of having committed any acts which may amount to misconducts, the

petitioner should have exercised its powers under the service

conditions for getting the charges proved.

18. It cannot be ignored that Rule 8 of the Transfer Rules

prescribes a particular scheme to be followed by the petitioner while

transferring an employee. Those employees, who are liable to be

transferred, are entered into a list which is prepared in the month of

December of each year. The said employee is then called upon to

indicate 3 options. Finally, the transferring authority takes a

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decision and issues the transfer orders in the month of March and

April of the succeeding year. It is an admitted position that this has

not been done by the Corporation.

19. Clause 8(e)(2) of the Rules empowers the Corporation to

transfer an employee without following the above procedure for

special reasons and in the event there are any complaints, after

conducting an enquiry into the said complaints. Prior approval has

to be taken while issuing such an order.

20. In the above backdrop, the petitioner contends that the

respondent has been transferred because there are several

complaints against him. It, therefore, presupposes that some

incident of such a magnitude must have occurred in June or July

2016 on account of which the Management had to act urgently in an

emergent situation and shift the respondent out of Pathardi Depot. It

needs mention that in the last 25 years of the service of the

respondent, he has been penalized only once for an act of

unauthorized absence.

21. The petitioner points out a complaint written by the Depot

Manager of Pathardi to the Divisional Controller on 01/07/2016.

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After going through the said complaint, it appears to be totally vague

and does not set out any specific event or charge against the

respondent. Vague and ambiguous statements are found in the said

communication by which the Depot Manager desires to indicate that

the respondent resorts to Union activities while on duty and attempts

to increase the membership of the Union. He had once pressurized

the Depot Manager to victimize some of the employees.

22. The petitioner relies upon another communication dated

07/07/2016 which is signed by the Personnel Officer indicating to

the Divisional Controller that the respondent used to pressurize him

with regard to allocation of work and for allotting inconvenient duties

to some employees and for rejecting leave applications of some

employees. The remark below the said communication by the

Divisional Controller is that the Hon'ble Transport Minister of the

State of Maharashtra has directed that the petitioner should contact

him after 2 days for taking a decision.

23. Another communication dated 11/07/2016 bearing the remark

of the Divisional Controller indicates that the Hon'ble Transport

Minister has directed that the respondent should be transferred out

of the Pathardi Depot.

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24. It, therefore, clearly indicates that the Hon'ble Minister has

issued a dictat. I do not find a single incident in between 01/07/2016

to 07/07/2016 which would indicate that the respondent has

committed such an act which could be termed as being a grave or

serious misconduct, if proved.

25.

It is contended by the respondent that his Union is a

recognized Union. One more Union by name S.T.Kamgar Sena holds

affiliation to a Political Party by name Shivsena and the Cabinet

Minister for transport belongs to the Shivsena. It is, therefore,

contended that it was in this backdrop that the Transport Minister

has directed the petitioner to transfer the respondent only to interfere

in the Union activities and to undermine the Union.

26. It is, therefore, prima facie apparent that circumstances

creating an emergent situation for transferring the respondent are

not prevailing. It also appears prima facie that it was under the

orders of the Transport Minister that the respondent has been

transferred. In this backdrop and considering that the Rules of

transfer appear to be prima facie violated, the Industrial Court has

stayed the order of transfer dated 18/07/2016. I, therefore, do not

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find that the order of the Industrial Court could be termed as being

perverse. Needless to mention, it being an interlocutory order, the

Industrial Court while deciding the complaint, shall not be

influenced by any of the observations made in the impugned order or

in this order and the complaint shall be decided on its own merits.

27. This petition, being devoid of merits, is therefore dismissed.

Rule is discharged.

( RAVINDRA V. GHUGE, J.)

khs/AUGUST 2016/8941-d