Anssal Properties And Industries ... vs Presiding Officer, Industrieal ...
2003 Latest Caselaw 490 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition challenges the award dated 3rd October 2002 in Industrial Dispute No. 26 of 2000. The reference was made questioning the legality of the transfer of respondent No.3, Shiv Singh, from Delhi to Mumbai. The petitioner has contended that since the appointment letter permitted the transfer, the transfer of the workman was valid and challenge to the transfer was not maintainable and the judgment of the Tribunal, therefore, erroneous and warrants interference under Article 226 of the Constitution of India.

2. In the impugned award the Tribunal inter alia held as follows

a)That power to transfer was with the petitioner.

b) In the transfer order dated 8th December 1998 itself it was stated that since the assigned work of respondent No.3 had been completed his services were liable to be terminated, but since the new project was to be set up near Mumbai, the workman was being transferred. The temor of the letter indicated that the transfer was under the threat of termination.

c)The exigencies of work plea advanced by this petitioner company was clearly disapproved by the letter dated 8th December 1998 which assigned the reason for transfer as completion of the assigned work.

d)The management has not led evidence to support the plea of exigencies of the work.

e)On 20th December 1998 the respondent No.3 had sought leave as his wife was pregnant. The said request was accompanied by the relevant medical certificate.

f) It is not in dispute that the respondent No.3's wife delivered a male child on 15th January 1999 and it was very clear that the respondent No.3's wife was in the advanced stage of pregnancy in December 1998 when the deferment of the transfer was sought and yet the respondent No.3/workman was transferred.

g)it was proved that the respondent No.3's wife had been receiving treatment in ESI Hospital as evident from the documents Ex.WW1/3A to Ex.WW1/3D.

h) On 22nd January 1999 after the delivery of the male child, the respondent No.3 went to the management to facilitate his movement from Delhi to Mumbai for securing the necessary facilities including rail tickets and other benefits which were not provided. This averment of the respondent No.3 to this effect was not repudiated by the petitioner.

In the garb of the transfer order, the order impugned, was in fact an order of termination.

3. The learned counsel for the petitioner has challenged the award by submitting that it is not open to the petitioner to challenge the administrative exigencies of transfer and has relied upon Arunendu Deb vs. State of Tripura and others reported as 2000 Lab. I.C. 1245 to contend that where similar facilities are available at the place of transfer, the order cannot be interfered with. Learned counsel further relied upon Sri Chand Kishore Chakraborty vs. Food Corporation of India and others reported as 2000Lab. L.C. 2321 where it was held that wife of the petitioner not keeping well is not a ground to stop a transfer the individual. He further relied upon Union of India and others vs. S.L. Abbas reported as (1990)4 SCC 357 where the Hon'ble the Supreme Court has held that unless the transfer is malafide or in violation of the statutory provisions, the court/tribunal cannot interfere and the guideline requiring the husband and wife to be posted in same station is not mandatory.

4. In so far as Arunendu Deb's case (supra) is concerned, the judgment is not applicable because while it is not in dispute that similar facilities are available in Mumbai, the tribunal has found the transfer to be motivated and made with a view to get rid of the petitioner, due to the averments made in paragraph 3. Similarly the case of Sri Chand Kishore (supra) cannot be applied because of the findings of the mala fide by the Tribunbal In so far as the judgment in Union of India vs. S.L. Abbas (supra) is concerned, it in my view applies though in favor of respondent No.3 and in view of the findings of the Tribunal to the effect that there was mala fide motive in termination of the services of the petitioner in the garb of a transfer order and accordingly interference by the Tribunal was justified.

5. In this view of the fact once the findings are recorded by the Tribunal which found the transfer order to be motivated upon arriving at findings of fact it is not open to this Court to interfere with such a finding under Article 226 of the Constitution of India. Furthermore the conduct of the petitioner in denying the genuine request of the respondent No.3 to defer the order of transfer on a bona fide ground of his wife's advanced pregnancy also demonstrates that the conduct of the petitioner is such that the jurisdiction of Article 226 of the Constitution of India ought not to be exercised in its favor.

6. Accordingly there is no ground to interfere. The writ petition is dismissed in liming.