Municipal Corporation Of Delhi vs Chattarbhuj Bhushan Sharma
2006 Latest Caselaw 1851 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner MCD has challenged the validity of award dated 21st September, 2006 passed by the Industrial Tribunal-III, Delhi, directing the management to give posting with continuity of service with full back wages to the respondent.

2. Briefly, facts are that the respondent was working as plumber with the petitioner and he was posted in Ward No. 89, Punjabi Bagh. The workman alleged that he went to report for duty on 26.7.1993 and 27.7.1993, but he was not allowed to do duty by Hari Lal, a Mali, working in the park, who was also officiating as Garden Chaudhary. He made a written complaint to the authorities. On 27.7.1993, he was transferred from Punjabi Bagh to Pitam Pura ward No. 28 by the Assistant Director(Horticulture)-I Rohini Zone. The respondent did not join at Pitam Pura alleging that the action of the petitioner, in transferring him, was unjustified and malafide. the transfer was punitive and stigmatic. The appointing authority was Additional Commissioner and Assistant Director(Horticulture) was subordinate to Additional Commissioner. So, he could not be transferred by the Assistant Director. Although, Pitam Pura was nearer to his home, but he did not join duty in Pitam Pura on the ground that his transfer was malafide and bad. It was made without giving him a charge sheet and without a domestic inquiry, by a non speaking order. So, the transfer was void and disallowing him to join duty in Punjabi Bagh, Ward No. 89, was bad. He sent a demand notice to MCD. During conciliation proceedings, he was told to join duty on 10.10.1995. He reported for duty on 17.10.1995. He alleged that though, his joining report was received by the department, but he was not allowed to resume duty and this was referred to Conciliation Officer, who then made a recommendations for reference of dispute.

3. The stand of the petitioner before the Labour Court was that the workman/respondent was running unauthorizedly absent from duty since 23.7.1993. He was not refused duty at any point of time. He was transferred from Punjabi Bagh to Pitam Pura for the necessity of Municipal work. Pritam Pura was nearer to his living place. The workman did not join at the transferred place and remained absent from duty without sanctioned leave. The Assistant Director(Horticulture), was the Administrative Officer and Drawing & Disbursing Officer of the Sub Division and had a right to transfer the employees. When the respondent did not join duty, he was issued several memos and explanation letters. He disobeyed the transfer orders. He was asked to join duty on 30.7.1993, 20.9.1993 & 6.10.1993, but to no response. Thereafter, the respondent approached Assistant Director(Horticulture), with an application dated 13.5.1994, accompanied by Shri C.P. Aggarwal, Deputy Secretary of MCD Employees Union and a decision was taken by Deputy Director(Horticulture) that the workman be allowed to join his duty with effect from 13.5.1994 and he should submit necessary documents to justify his absence from 23.7.1993 to 12.5.1994. After giving joining report on 13.5.1994, the respondent again absented himself with effect from 14.5.1994 and he continued to absent till the reference was made.

4. Following dispute was referred by the appropriate government for adjudication:

Whether the action of the management in refusing the duties to Shri. Chattarbhuj Bhushan Sharma is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?

5. It is undisputed fact that the workman was transferred from Punjabi Bagh by the Assistant Director(Horticulture) on receipt of some complaints about the quarrel between the workman and Anr. employee. The workman challenged the authority of Assistant Director (Horticulture), to transfer him on the ground that his appointing authority was Additional Commissioner, Horticulture. The workman had not produced any rule before the Tribunal that transfer orders can be made only by the appointing authority and the Administrative Authorities cannot made transfer orders. No doubt, it is law that a person cannot be terminated from service by an Authority, inferior than the one that appointed him, but, there is no such rule that transfer orders cannot be passed by the Administrative Officer, who is looking after the administration and only the appointing authority can transfer an employee from one place/park to another place/park within Delhi. I consider that the plea of the respondent for not joining at Pitam Pura on the ground that the order was illegal, should not have at all been looked into by the Tribunal. If the respondent was aggrieved by transfer orders, he should have approached the court against transfer orders. He should have challenged the transfer orders by filing appropriate writ. Respondent was nobody to decide himself as to whether the transfer order was legal or illegal. He was working as a plumber under the administration of Assistant Director, Horticulture and if the Assistant Director, Horticulture, had transferred him from one park to another park, which was nearer to his home, he had no reason to refuse transfer and refuse to join duties. After receiving transfer orders, he had no business to disobey the orders. If employees working under an authority, are allowed to defy orders of the authority on such grounds, no department can function properly and all employees shall stick to the place where they are working and the administration shall collapse. The only reason given by the respondent in not joining duties at Pritam Pura, is that his transfer order was not legal. In , Union of India and Ors. v. S.L. Abbas, Supreme Court held as under:

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 the same place. The said guidelines however does not confer upon the Government employee a legally enforceable right. (Para 7)

6. The respondent has not placed before the Tribunal neither the Tribunal has discussed any such rule under which the transfer order could only be made by Additional Commissioner, Horticulture and not by the Assistant Director, Horticulture. Moreover, no domestic inquiry was necessary for transferring a plumber from one park to another park, since such a transfer does not amount to imposition of penalty. A plumber has to work at park A or park B as per directions of his superiors. He cannot claim posting or right of working, in a particular park. A transfer can be said to be punitive only if by transferring, the workman is placed on destitute, either on salary or on seniority, or he is lowered in grade or a lower work other than of his category assigned to him. If transfer is made for keeping peace in the office because two employees are at rift with each other and there has been exchange of abuses between the two employees, or an employee is not behaving properly, such transfer cannot be called punitive transfer. Such transfers become necessary for administrative reasons or for keeping peace in the office and for smooth working of the office. The Tribunal went wrong in holding that the transfer by Assistant Director, Horticulture, was not valid transfer.

7. No court can interfere with the transfer orders which are made in administrative interest and for administrative reasons unless transfer orders are made in violation of any mandatory rules. No mala fides can be alleged in a transfer if a transfers is made to keep peace at place of work. When transfer is a condition of service, no employee can resist transfer on the ground that no inquiry was held before ordering his transfer or the transfer was vindictive. If a transfer does not affect his status and his terms and conditions of service an employee cannot disobey transfer order. Similar view was expressed by Gujarat High Court in J.K. Dave v. State of Gujarat 1991 LLJ 95 wherein it was observed:

... Be it noted that Judiciary is respected for its ability to act with restraint and sagacity and not on account of its instantaneous response in matters of minor difficulties and inconvenience of employees. many such difficulties and hardships are often blown up out of proportion. Ordinarily it should be left to the administrative head to resolve such questions of hardships and inconveniences of individual employees. it would be well to remember that no administrative frame or machinery is prefect in the world. Each and every form of administrative set up or machinery will have its own plus points as well as minus points. Therefore, even if there is some difficulty or irregularity or lapse in passing orders of transfer the same have got to be ignored. if the correctives are to be applied by the Court, the confusion will be worst compounded. In the aforesaid circumstances unless it is ex facie shown that the order of transfer is passed as a measure of penalty and it is by way of victimization it would not be proper for this Court to exercise its power under Art. 226 of the Constitution of India and interfere in matters of transfer.(para 5)

8. Although, the respondent had failed to show that the Assistant Director, Horticulture, who was administrative head, had no powers to transfer but even if, he had no powers to transfer, if the transfer was ratified by the senior authorities, the transfer shall remain a valid transfer.

9. The entire conduct of the respondent, in this case, has been that of truant, who, instead of performing his duty, has been running away from duty and finding fault with his seniors. He was a plumber and he should have no objection in performing duty at the place of his transfer. His not joining duty at the place of transfer, could not have been considered his right. His other plea has been that he was not allowed to join duty on 26.7.1993 and 27.3.1993 at Punjabi Bagh Park by Hari Lal, a Mali. It has come in evidence that Hari Lal was junior in rank to him. So, question of a junior person not allowing senior to join duty, does not arise.

10. The respondent joined duties only during pendency of proceeding before the court when he was directed to join in the year 1999. He remained absented from duty from 1993 to 1999 without any reason. I find no reason why the Tribunal should have allowed him continuity of service with full back wages when the entire fault was of the respondent in not joining duty at his transferred place on the plea that his transfer was illegal. The order of the Tribunal is perverse, contrary to law. I hereby set aside the order. Since the respondent has already joined the petitioner, the petitioner would be at liberty to take action against the respondent as per law for his continued absence from duty from 26.7.1993 till 14.1.1999, when he joined under directions of the Court. The order of the Tribunal is modified to this extent.

The writ petition stands disposed of accordingly. No orders as to cost.