Bombay High Court
Priya Fulchand Gaikwad vs Maharashtra State Road Transport ... on 11 December, 2023
2023:BHC-AUG:27325
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
24 WRIT PETITION NO. 13277 OF 2023
PRIYA FULCHAND GAIKWAD
VERSUS
MAHARASHTRA STATE ROAD TRANSPORT CORPORATION
OSMANABAD THROUGH ITS DIVISIONAL CONTROLLER
....
Advocate for Petitioner : Mr. Girish N. Kulkarni (Mardikar)
Advocate for Respondent : Mr. A.B. Dhongade
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 11th DECEMBER, 2023
JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard both the
learned counsel finally at the admission stage.
2. The petitioner is challenging judgment and order dated
03.04.2023, passed by learned Member, Industrial Court, Latur,
dismissing the Complaint ULP No. 195 of 2019 which was filed
challenging an order of transfer dated 26.10.2019.
3. Petitioner is the original complainant and the respondent is
employer who effected transfer.
4. The petitioner is working as a Class IV employee as
Conductor in the respondent - Corporation. By order dated 26.10.2019,
she was transferred from Osmanabad to Paranda, within the Division.
That was challenged by petitioner in a complaint on 10.03.2019, under
Section 28 (1) and Item 3, 9 and 10 of Schedule IV of the Maharasthra
Recognition of Trade Union and Prevention of Unfair Labour Practices
Act, 1961, before the Industrial Court. She was given protection by
interim orders dated 26.11.2019 and 16.03.2020. By the impugned
judgment and order her complaint was dismissed. The protection was
continued till 30th April, 2023.
5. Learned counsel for the petitioner informs that in the month
of May, 2023, she joined at a transferred place i.e. Paranda.
6. Learned counsel for the petitioner submits that the transfer
is against circular no. 2 of 2017 as well as Rules of 2014. By referring to
the circular no. 1 of 2017, it is submitted by the learned counsel that first
two instances of default of petitioner of collecting fare amount and not
issuing tickets, are compromised by imposing penalty. For that, he refers
to the office orders dated 22.11.2017, 23.09.2019. For the third default of
the same charge, the respondent issued charge sheet and departmental
enquiry is under way. For that purpose, the correspondence which is at
page no. 68 is referred indicating pendency of enquiry against the
petitioner.
7. Learned counsel submits that when respondent is
conducting disciplinary action for the same charge, issuing transfer by
impugned order amounts to penalty. The petitioner has already paid
penalty for initial faults. It is submitted that as per Rule 8 (e) (2) of
Rules of 2014, the impugned order is unsustainable and patently illegal.
8. Learned counsel for the petitioner submits that the learned
Member of the Industrial Court misread the ratio laid down in the
judgments referred in paragraph nos. 11 and 14 of in impugned judgment
and order. According to him, learned Member erred in holding that the
petitioner was involved in misconduct affecting primary source of
income and was liable to be transferred. He further erred in holding that
the transfer was not outcome of the vindictive action amounting to unfair
labour practices. He seeks to rely upon the judgment which are annexed
at Exhibit J as well as judgment of Supreme Court in the matter of
Somesh Tiwari Versus Union of India and others, (2009) 2 Supreme
Court Cases 592.
9. The respondent has opposed the submissions. Affidavit-in-
reply has also been filed today. It is the submission of the respondent
that the transfer of the petitioner is on administrative grounds. The
petitioner was not punctual and committed 41 defaults of misconduct on
different occasions. For that purpose, a reliance is placed on the list of
the instances annexed along with reply. Learned counsel submits that the
respondent has shown generous attitude towards the petitioner but
considering the persistent default of misconduct, it is not conducive to
keep such an employee at Osmanabad. Despite compromising first two
defaults, the petitioner has not shown any improvement.
10. Learned counsel submits that the respondent was
constrained to transfer him. He has relied upon judgment rendered by
this Court in the matter of The Divisional Controller MSRTC,
Osmanabad Versus Sirajuddin Abdul Mogul, W.P. No. 10337 of 2019
decided on 21.08.2019.
11. I have considered rival submissions of the parties.
12. The judgment rendered in The Divisional Controller Versus
Dyandeo Ganpat Akolkar, passed by this Court in Writ Petition No. 8941
of 2016 is concerned, the facts are different. In that case interim order of
stay was challenged in High Court. The employee had good track record
of 25 years of service. He was penalized only on one occasion. He was
transferred due to influence exerted by minister. Considering the gravity
of allegations in the present matter, the principles can not be applicable.
13. The judgments in the matter of Ku. Mamta Vitthalrao
Gavhane Versus Maharashtra State Road Transport Corporation and
another, passed by High Court Bench at Nagpur in Writ Petition No.
6465 of 2018, cannot be made applicable. In that case, the transfer order
was found to be outcome of vindictiveness and mala fides. In Bajaj
Auto Ltd. Versus Shrikant Vinayak Yogi and others, 2006 (3) Mh.L.J.
557, the transfer orders were found to be actuated by mala fides and
colourable exercise of powers. The facts are distinguishable. The
principles laid down in both these judgment can not be applied.
14. The judgments rendered by this Court in the matter of he
Divisional Controller MSRTC, Osmanabad Versus Sirajuddin Abdul
Mogul (supra) also refers to clause no. 8 (e) (2) of the Rules of 2014. The
paragraph nos. 10 and 13 are as follows :
10. It cannot be ignored that Clause 8 (e)
(2) of the Rules empowers the MSRTC to by
pass the normal procedure of general
transfers, in cases involving employees
who are charged with grave misconducts,
and move out such employees in order to
avoid commission of further misconducts.
11. Considering the past record of the
respondent and keeping in view that the
respondent, who is only 32 years of age
today and would have 26 more years in
employment, permitting him to work as a
bus conductor keeping in view that 8
serious misconducts are committed in 5
years, would probably sound alarm bells
for the Corporation, (See Bajaj Auto Ltd.,
Aurangabad Vs. Kalidas Devram
Patil,Aurangabad, 1999 II CLR 1108).
12. The above factors should have been
taken into account by the Industrial Court
rather than blindly following an order
passed in the peculiar facts of a
particular case and interfere with a
transfer order after 8 months of the
employee having been relieved.
13. It is in the above peculiar facts and
circumstances of this case, that I am
causing an interference in the order
passed by the Industrial Court, Latur by
recognizing the power of the MSRTC to
issue transfer orders to such errant
employees under Clause 8 (e) (2) of the
Rules.
14. ....
15. ....
16. Considering that the respondent
herein appears to be an employee
habitually indulging in misappropriation,
that I permit the petitioner to allot him
any other work befitting his category of
employment and by protecting his last
drawn salary, so as to keep him away from
the duties of a bus conductor or any such
duties which would have any connection
with handling of cash or money, till the
pending ULP Complaints are decided."
15. The circular no. 2 of 2017 empowers the respondent to
transfer employee who is involved in third default. For first two defaults
of misappropriation action of imposing penalty is contemplated. Rule of
2014 also empowers respondent to transfer employee for special reasons
or for exceptional circumstances. There is no provision in the circular or
the Rules which indicates that no transfer can be effected if a delinquent
is facing Departmental Enquiry. On the contrary, an enquiry is
contemplated if an employee is involved in the third or the fourth
default. Transfer is not by way of punishment. The purport of the
policies of the respondent is to curb the menace of misappropriation by
the deterrent methods of imposing penalty or conducting enqury.
16. Pertinently, it is a case of respondent that the petitioner is
involved in 41 instances of misconduct. This is very alarming and
glaring. Just because there was an imposition of penalty for first and
second instances and for the third instance a disciplinary action is under
way does not mean that respondent is precluded from transferring the
petitioner. Clause no. 8 (e) (2) of Rules of 2014 covers the situation.
There are allegations of repetitive misappropriation against the
petitioner. Respondent is, therefore, conducting an enquiry. It is not
conducive to keep the petitioner at Osmanabad.
17. The submission of the petitioner that once the respondent
has initiated disciplinary action, it is not permissible to effect the
transfer, cannot be countenanced. Rather, when the respondent has
decided to conduct disciplinary action for the third default, it is not
proper to keep the petitioner at that place.
18. Learned Member of Industrial Court has rightly appreciated
the facts and the circulars in question. He has taken a plausible view
which is based upon material on record. I do not find any perversity or
error of jurisdiction in dismissing the complaint.
19. It is very glaring that there are 41 instances against the
petitioner. The list produced by the respondent on record indicates that
more than eight defaults / instances occurred after the initiation of
disciplinary action. Learned counsel for the petitioner is unable to justify
this conduct. The respondent is justified in transferring the petitioner.
20. I am of the considered view that respondent is justified in
effecting the transfer because there are in all 41 instances of misconduct
of the petitioner. The above referred judgment in the matter of he
Divisional Controller MSRTC, Osmanabad Versus Sirajuddin Abdul
Mogul (supra) has been rightly applied by learned Member of the
Industrial Court, in dismissing the complaint.
21. Learned counsel has cited a judgment of Supreme Court in
the matters of Somesh Tiwari Versus Union of India and others (supra).
He has specifically referred paragraph no. 16. The principles enumerated
in paragraph no. 16 is undisputed. However, in the facts and
circumstances of the present case the order of transfer cannot be faulted.
The petition is devoid of merit. Writ Petition is dismissed. Rule is
discarged.
[ SHAILESH P. BRAHME, J. ]
Thakur-Chauhan/-
Signed by: Sushma P. Chauhan
Designation: PA To Honourable Judge
Date: 04/01/2024 14:43:35
