H.K. Chawla vs Indian Oil Corp.
2004 Latest Caselaw 1363 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner, by this writ petition, seeks stay of the impugned order of transfer dated 29.3.2004, followed by a relieving order dated 28.4.2004, appearing at pages 18 and 27 of the paper book respectively.

2. Petitioner had joined respondent No. 1/IOC in the year 1977 as a Stenographer. He remained in the staff category up to 1986 and thereafter was inducted in the official cadre. Petitioner made considerable progress in his career. He rose to the current position of Manager, Training and Development and is posted at New Delhi. Petitioner claims to have earned 7 promotions in his career. To improve his career prospects, he attained additional educational qualifications and completed his Post Graduation, Bachelor in Law and Master in Law, during his service tenure.

3. Learned senior counsel for the petitioner has assailed the impugned order of transfer as being accentuated by mala fides, being discriminatory in nature. He submits that respondent is sought to be victimized on account of bias of the Executive Director (Finance), respondent No. 2 herein. Vindictiveness, it is urged is apparent from the fact that petitioner was sought to be proceeded against departmentally on a charge of having torn an official paper (Office Order), while in fact it was a photocopy of waste paper. Respondent subsequently did not pursue the charge. He submits that an attempt was made to transfer the petitioner from New Delhi to Haldia in 1991. Petitioner protested against this transfer and sought to be retained on compassionate ground and his wife being a working woman posted in Delhi. The Management accepted the plea and petitioner was given a nearby posting at Panipat which charge petitioner assumed on 14.5.2001.

4. Learned counsel for the petitioner further submits that as a matter of policy, respondent No. 1 generally does not transfer promotee officers. Several instances of personnel occupying similar administrative positions, who have been stationed for more than 10-15 years in the same station have been cited in the writ petition. Petitioner submits that the plea of mala fides is not an after thought. Pursuant to the earlier order of transfer in 2001, petitioner has been consistently protesting against the bids exhibited by respondent No. 2 and has recorded this fact in his self-appraisal reports. Petitioner has specifically mentioned about victimization. The self appraisal reports containing these remarks has been reviewed by the petitioner's superior Reviewing Officer and by Re-reviewing Officer. In these circumstances, petitioner prays that the Court would not permit such a transfer. Learned counsel urged that the plea of petitioner's requirement at Haldia to expand the Training and Development Programmes a mere ruse. Besides, there are five other officers available at Haldia.

5. Mr. Valmiki Mehta, Senior Advocate appearing for the petitioner handed over in Court a list of 17 officers, who had joined the organisation in Delhi, Faridabad, Haldia etc., between the years 1973 to 1977, and have remained posted at their respective stations, without being transferred at all. He further submits that these officers are also Grade-D Officers like the petitioner. He submits that petitioner's experience has been primarily administrative and in audit. He has not been exposed to Training an Development courses or worked as an Instructor or Trainer in the Training and Development Programme. Besides, the Panipat Refinery has only two officers in the Training and Development Section, as against 5 in Haldia. These submissions are primarily aied at showing that the transfer of the petitioner is vindictive and not in the exigency in service.

6. On the plea of mala fides, he further submitted that petitioner had given internal audit report, concerning the disbursement of House Building advances, wherein certain irregularities in the case of one of the protegees of respondent No. 2 were pointed out, which were not palatable to respondent No. 2.

7. Learned counsel for the respondent, Mr. V.N. Kaura has been heard in opposition. The plea of mala fides is refuted as being devoid of merit and totally without any basis or factual foundation. Mr. Kaura has urged that petitioner for a substantial portion of his career has enjoyed being posted at New Delhi and nearby places, such as, Mathura and Panipat. Petitioner, he submits, is admittedly on a transferable job. The Corporation's discretion in putting the manpower and its resources to optimum use cannot be questioned, transfer being an incidence of service. He submits that IOC has a large number of officers in official cadre. Both direct appointees as well as promotee officers of the Refinery Division are transferred periodically. The number of transfers of those joined directly as Officers are far more than the promotee officers. In a large organisation, if certain direct or promotee officers have not suffered a transfer, it would not give a vested right to the petitioner to claim that he can also not be transferred. Mr. Kaura has submitted that from the Refinery Division itself 245 officers were transferred in the year 2004, promotee officers transferred were about 44. He submits that generally a workman, who get promoted as Officer in Grade A, the average age is 49 and they do not thereafter suffer many transfers as the transfer postings also depend upon the age and growth potential in career and the requirements. Petitioner, it is stated, became an Officer at the age of 32, as against average of 49 years and also acquired educational qualifications. He has 10 years of service left and further postings and transfers would be part of his career growth.

8. Let us consider the plea of mala fide transfer. There are 7 refineries established in India by IOC. Petitioner had joined as a Stenographer in 1977 and got promoted to the official cadre in 1986. From the petitioner's career profile, it is seen that except for the period 1991-92 i.e., a period of 17 months approximately, petitioner has had postings in and around Delhi i.e., Delhi, Mathura, Panipat etc., which would mean that in his 27 years of service, he has been outside Delhi and the Region only for 17 months.

9. Coming to the question of alleged mala fides and vindictiveness of respondent No. 2 - The basis is a show cause notice for allegedly tearing an office order. The incident referred is of 17.10.2000 and the note is Annexure R-1 to the affidavit. It appears that the Senior Audit Manager had given a note that petitioner had torn Officer Order dated 14.8.2000 on 16.8.2000 before him. Respondent No. 2, who was the then General Manager thereupon issued the note Annexure R-1 in the following terms:-

''willful destruction of office document is a serious act of misconduct and calls for disciplinary action under CDA Rules. Since this is the first instance came to our notice, we may note like to proceed with disciplinary action provided he tenders in writing an unconditional undertaking for not indulging in any such kind of activities in future. Otherwise, the matter will be referred to HR for further action.''

10. Petitioner responded to the said note, alleging it to be a conspiracy. It appears that no action thereupon was taken on this note. Petitioner at that relevant time, was functioning as a Deputy Manager (Internal Audit). I find merit in the contention that no inference of mala fides can be drawn as the very basis and foundation of this allegation does not survive. Petitioner, thereafter received a promotion from Grade-C to Grade-D while respondent No. 2 was the General Manager. Petitioner himself upon receiving the promotion and being posted to Haldia thanked the Management for the promotion and requested for being transferred on promotion to Panipat in stead of Haldia. This was also acceded to after sometime and this negates any allegation of mala fids against respondent No. 2.

11. There is also merit in the contention of the respondents that Delhi being a coveted location, most of the employees attempt to somehow remain in Delhi. Postings at refineries at other places in India are not the favored locations and respondents have encountered resistance and adoption of all kind of means to somehow stall the transfers to location considered inconvenient. The fact that there may be 17 officers working in Personnel and Administration Department, who have not suffered any transfer, assuming it to be true, would not confer any right on the petitioner to oppose his transfer, unless there was a policy of non-transfer of Officials from the said department. Respondents have submitted that the transfer of petitioner is a bona fide act and is based on exigency of service and the need for strengthening the Training and Development activities at Haldia Refinery.

12. Respondents also refute the contention that petitioner has only experience in Administration and Internal Audit and not exposed to Training and Development. It is stated that petitioner's duties, since 2001 have included:

(i) Identification of training needs for officers and non-officers at the Refinery.

(ii) Planning and organising training programmes to be conducted at the Refinery Training Centre.

(iii) Drawing Annual Training Calender for officers and non-officers separately.

(iv) Drawing and maintaining list of faculties, internal and external and coordinating with them with regard to availability for specific programme.

(v) Preparing training course material in consultation with the faculty and maintaining records thereof.

(vi) Maintaining records of training programmes and trainees.

(vii) Carrying out training evaluation, preparing and generating reports for management information.''

13. It is further submitted that the upgradation of Haldia Refinery under ISO 9001 and ISRS certification with effect from 30.6.2003 has given a further momentum and need for the training programme and the management in its discretion finds the petitioner 's services are required at Haldia.

14. The legal position with regard to the interference by the High Court under Article 226 of the Constitution of India in a challenge to transfer is well settled. Reference may usefully be made to State of UP and Ors. v. Gobardhan Lal . The Court observed as under:-

''Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of poser or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally unforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.

Courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.''

The Court in the above case also dis-approved general directions given. The High Court attempted to lay down general principles in relation to the transfer and posting.

15. The observations in Union of India and Ors. v. S.L. Abbas reported at 1994 Supreme Court Cases (Lands) 230 may also be reproduced for facility of reference:

''7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible husband and wife must be posted at same place. The said guideline however does not confer upon the Government employee a legally enforceable right.

8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. This is evident from a perusal of Article 323-A of the Constitution. The constrains and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A. (We find it all the more surprising that the learned Single Member who passed impugned order is a former Judge of he High Court and is thus aware of the norms and constraints of the writ jurisdiction.) The Administrative Tribunal is not an appellate authority sitting in judgment over the orders of transfer. If cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (Competent Authority).''

In the above case, implementation of the Guidelines for posting of the husband and wife, who were employed at the same place, was concerned.

16. Reference made by learned senior counsel for the petitioner to General Manager, State Bank of Saurashtra v. Vinod Chandra Shah would not advance the petitioner's case. The Court was dealing with a case of a handicapped person with disability and being a widower having daughters to look after. In these peculiar facts and circumstances, he was praying for transfer located within 115 K.Ms of Ahmedabad. Petitioner therein was willing to forego his promotion for the purpose of staying at Ahmedabad. The Court only directed consideration of his case for being posting at place within 115 K.Ms, if available and if not available petitioner was to forego his promotion presently but was held to be eligible for consideration for promotion in future, if a vacancy arose near Ahmedabad. The above case cannot, in any manner, advance the petitioner's case.

Similarly, in Sandeep Kumar Sharma v. State of Punjab and Others while dealing with the case of relaxation of physical standards for those, who had suffered due to terrorism or faced terrorism, cannot advance the petitioner's case.

In view of the principles enunciated above and the findings reached regarding the petitioner having failed to make out a case of transfer being mala fide and considering that petitioner himself has spent only 17 months outside Delhi and the Region out of his career of 27 years, no case is otherwise made out for interference in the exercise of writ jurisdiction.