Bombay High Court
Maharashtra State Road Transport ... vs Sunil S/O Nagorao Pawar on 20 October, 2021
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1261 OF 2020
Maharashtra State Road Transport
Corporation, through its Divisional
Controller, Nagpur Division, Nagpur. PETITIONER
...Versus...
Ashphak Ahmad S/o Abdul Hameed,
Aged about 39 years, Occ. Conductor,
R/o- Satranjipura, Near Itwari Railway
Station, Behind Aleem Bakerywale,
Nagpur-400 008. RESPONDENT
WITH
WRIT PETITION NO. 1430 OF 2020
Maharashtra State Road Transport
Corporation, through its Divisional
Controller, Nagpur Division, Nagpur. PETITIONER
...Versus...
Sunil S/o Nagorao Pawar,
Aged about 27 yrs., Occ. Conductor,
R/o- IUDP Katol, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 1424 OF 2020
Maharashtra State Road Transport
Corporation, through its Divisional
Controller, Nagpur Division, Nagpur. PETITIONER
...Versus...
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2 34. WP.1261-2020 & Ors. JUDGMENT.odt
Kunjilal S/o Tejlal Parihar,
Aged about 46 Yrs., Occ. Conductor,
R/o - Shiv Chatrapati Nagar, Wathoda
Layout, Kharbi, Nagpur. RESPONDENT
-----------------------------------------------
Mr. A.S. Mehadia, Advocate for the Petitioner in all matters.
Mr. C.V. Jagdale, Advocate for the Respondent in WP.
No. 1261/2020.
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CORAM : AVINASH G. GHAROTE, J.
DATED : 20th OCTOBER, 2021.
ORAL JUDGMENT :-
Heard.
2. Rule, Rule made returnable forthwith. Heard finally
with the consent of the learned counsel for the rival parties.
3. Heard Mr. Mehadia, learned counsel for the
petitioner and Mr. Jagdale, learned counsel for the respondent.
In all these petitions, the challenge is to the transfer by the
petitioner of the respondents, transferring them out of the
Division, in pursuance to the exercise of the powers as
contained in Circular No. 3/2018 dated 22.02.2018. The
respondents in all these petitions were working as conductors
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with the petitioner and having been subject to departmental
enquiries on account of misconduct alleged against them, after
the departmental enquiry was completed and the second show
cause notice was issued, the same has been independently
challenged by them, before the learned Labour Court, in which
stay has been granted to the second show cause notice.
Consequent to the stay granted to the second show cause notice,
orders regarding transfer of these respondents were issued,
transferring them to places outside the Division, which is in
pursuance to the Circular dated 22.02.2018. These transfer
orders, were challenged by the respondents before the learned
Industrial Court, Nagpur. The learned Industrial Court, Nagpur,
by the impugned judgment dated 30.03.2019 has allowed the
complaints and quashed and set-aside the transfer orders, as a
result of which, the present petitions have been filed. In these
petitions, an ad-interim stay was granted by this Court on
13.03.2020 to the judgment of the learned Industrial Court,
Nagpur.
4. Mr. Mehadia, learned counsel for the petitioner
submits, that the matters are governed by two Circulars one
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dated 01.02.2017 and the other dated 22.02.2018. He submits,
that both circulars were brought into force, for enforcing
discipline into the ranks. He further submits, that all the
respondents, have to their credit multiple instances of
misconduct inasmuch as, the respondent in Writ Petition
No.1261/2020 had committed 39 defaults, the respondent in
Writ Petition No.1424/2020 had committed 18 defaults and
respondent in Writ Petition No.1430/2020 had also committed
several defaults. He submits, that the action of all the
respondents, consistently committing defaults since the date of
their appointments, and in spite of punishment being imposed
upon them, multiple number of times including stoppage of
increments, continued. He further submits, that it is
in this background that the Circular dated 22.02.2018 came into
being which required that in case consequent to the
departmental enquiry and the issuance of the second show
cause notice, an employee approached the Court and stay was
granted, such an employee, would be required to be transferred
out of the Division. He therefore submits, that in cases of all the
respondents since the above position was existing, the transfer
orders came to be passed, transferring them outside the
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Division, and therefore, the action on the part of the petitioner,
clearly relates to the enforcement of the conditions as contained
in the Circular dated 22.02.2018 and not otherwise. He further
submits, that all the respondents, had joined at their places of
transfer i.e. on 17.07.2019 in Writ Petition No.1261/2020, on
21.06.2018 in Writ Petition No.1430/2020 and on 19.03.2019
in Writ Petition No. 1424/2020, and therefore, the transfer
orders have come into effect, on the date of their joining, and
the respondents are thus estopped from contending otherwise.
Further placing reliance upon Punjab and Sind Bank and Others
Vs. Durgesh Kuwar, reported in 2020 SCC OnLine SC 774 Para
17, he submits, that a transfer could be challengeable only in
case it is established that it is malafide, contrary to a statutory
provision or has been issued by an authority not competent to
order transfer and it is only on these grounds that a judicial
review was permissible and none else. He further submits, that
insofar as the question of malafides is concerned, except for the
use of the term malafide, there is nothing else in the entire
complaints, which would indicate, the non-existence of any
malafides. He therefore submits, that the impugned judgment
which holds malafides to be in existence, is clearly untenable
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and without any material to that effect being on record. He also
relies upon the Circular dated 03.05.2014, which in clause 8(d)
states that the services are transferable, and therefore, the same
is a condition of service which cannot be avoided. He therefore
submits, that the impugned judgment cannot be sustained on
the above grounds.
5. Mr. Jagdale, learned counsel for the respondent in
WP. No. 1261/2020 submits, that the transfer is malafide
inasmuch as, it is in the form of punishment imposed for
approaching the Court and a stay being granted in respect of the
second show cause notice, consequent to the departmental
enquiry and such action, according to him cannot be sustained
in law. He submits, that the very fact, that the transfer has been
effected on account of the respondents approaching the Court
would indicate the existence of malafides. He further submits,
that though the complaint was allowed by the learned Industrial
Court, Nagpur on 30.03.2019 and the ad-interim stay was
granted by this Court on 13.03.2020 during the entire duration
in between, it was the obligation on part of the petitioner, to
have complied with the judgment passed by the learned
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Industrial Court, Nagpur and not having done so according to
him, again indicates the existence of malafides. He further
submits, that though respondents were forced to join on
17.07.2019 and other dates as stated above, the respondent in
Writ Petition No.1261/2020 has not thereafter continued at the
place of transfer. It is necessary to be clarified, that in other two
Writ Petitions the respondents have already joined at the place
of transfer and none appears for them today inspite of the fact
that they have been served.
6. Mr. Jagdale, learned counsel for respondent in WP.
No. 1261/2020 further submits, by relying upon Amol
Radhakrushna Thakare, Vs. Maharashtra State Road Transport
Corporation and another in Writ Petition No. 6463/2018,
reported in 2019 (1) Bom. LC 17 (Bom.) , to contend that the
exercise of the power under the Circular No.3/2018 dated
22.02.2018, has been held by this Court to be patently illegal.
He further submits, that the view which have been taken in
Amol Thakare (supra) was also the view taken in Ku. Mamta
d/o Vithalrao Gavhane Vs. Maharashtra State Road Transport
Corporation and others in Writ Petition No. 6465/2018, which
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was challenged before the Hon'ble Apex Court in Special Leave
Petition(Civil) Dairy No. 1967/2019 which came to be
dismissed on 18.02.2019, whereby the Hon'ble Apex Court
refused to interfere with the impugned order except to the
extent indicated therein which related to the direction given by
the High Court for taking action against the respondent No. 1 in
those petitions. He therefore submits, that the very exercise of
the power under the Circular dated 22.02.2018, is an indication
of malafide and nothing more needs to be pleaded. He submits,
that the malafides are further apparent from the fact that the
petitioner, inspite of the impugned judgment dated 30.03.2019
refused to give effect to the same. It is therefore submitted, that
the impugned judgment insofar as it holds the transfer orders to
be tainted with malafice have rightly been quashed and
set-aside by the learned Industrial Court, Nagpur.
7. A perusal of the impugned order indicates that all
other grounds raised therein that the transfer has not been
issued by the authority competent to do so; were in violation of
the service condition, have been turned down by the learned
Industrial Court, Nagpur. The only ground which found favour
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with the learned Industrial Court, Nagpur, to set-aside the
transfer orders, was the ground of malafides. A perusal of the
complaints filed by the respondents would indicate, that except
for a bland assertion that the transfer was malafide, nothing
else has been stated. For an action to be termed as a malafide
action, there have to be specific averments, spelling out how the
malice is made out and so also the person who has undertaken
the said action and the allegations against such person pointing
out malice by him. In these cases, there is absolutely no such
averment in the complaints. Except for the Circular dated
22.02.2018, nothing else has been placed on record, to
substantiate the said contention. It is a settled position of law,
that an action alleged to be malafide, has to be determined on
the basis of the averments as contained in the complaint. Even
for the exercise of a power to be malafide, there have to be
allegations made in the complaint in that regard, which in the
instant matters, are totally absent, in view of which, in absence
of any other material being on record, the findings by the
learned Industrial Court, Nagpur regarding the action of
transfer to be malafides cannot be sustained. It would be
necessary to point out, that the Circular dated 22.02.2018, has
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not been challenged and is still in force. The purpose behind the
said Circular is to ensure the maintenance of discipline and not
to deprive the employee of the opportunity to contest the
litigation. Even in case, an employee stands transferred to
another place, it would be equally permissible and possible to
contest the litigation, which had already being initiated or is to
be initiated. That by itself cannot be a ground to contend that
the exercise of the power is malafide unless a specific case is
made out for the same which is absent. There are also no
allegations of favoritism regarding the exercise of the powers as
conferred in Circular dated 22.02.2018.
8. In the case of Amol Thakare and Mamta Gavhane
(supra), the exercise of the power under the Circular dated
22.02.2018, has been held to be illegal and vindictive on the
ground, that the respondent No.1 had got annoyed and brazenly
only made it a ground to effect the transfer as the petitioner
therein, had approached the Labour Court, seeking a stay, which
was granted. In the instant cases, though it has been contended
that the orders of transfer are in the form of a punishment
however allegations regarding the same, as contained in Amol
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Thakare and Mamta Gavhane (supra), are absent in the
complaints itself, in view of which, on facts, the said judgments
are not applicable.
9. The contention of Mr. Jagdale, learned counsel for
the respondent in WP. No. 1261/2020, that the respondent is
willing to accept a transfer inter Division and the Circular dated
22.02.2018, does not permit a transfer outside the Division has
to be looked into in the light of the requirement in that regard,
which indicates, that such a transfer out of Division, can be
recommended by the Divisional Controller to the concerned
Deputy General Manager, Controlling Committee, who in turn
should take appropriate action in that regard. It is not in
dispute, that the transfer order has been issued by the Deputy
General Manager of the Committee as contemplated by the
Circular dated 22.02.2018 as rightly found by the learned
Industrial Court, Nagpur, in view of which, the transfer
recommended out of Division, cannot be faulted with on this
ground. It cannot be disputed, as held in Punjab and Sind Bank
(supra), that transfer is an exigency of service and the exercise
of the power under Circular dated 22.02.2018 which continues
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to hold the field in absence of any successful challenge to the
same, cannot be faulted with, in absence of any malafides. The
findings therefore rendered by the learned Industrial Court,
Nagpur holding that the transfer is malafide, is clearly not based
upon the material available on record, in view of which, the
same cannot be sustained in law. The impugned judgment is
hereby quashed and set-aside and the complaints filed by the
respondents are dismissed.
10. Rule is discharged.
( AVINASH G. GHAROTE, J.)
S.D.Bhimte
