Shri Gauri Dutt vs Municipal Corporation Of Delhi & ...
2009 Latest Caselaw 2124 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

                      W.P.(C)No. 5410/99

                          Judgment reserved on: 18th April,2009.

                          Judgment delivered on: 19.05, 2009

       Shri.Gauri Dutt                        ..... Petitioner

                          Through: Mr. Vinay Sabharwal,Amicus Curiae

                          versus

       Municipal Corporation of Delhi & Anr. ..... Respondents
                     Through: Ms. Smitha Shankar, Adv.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may                     Yes
    be allowed to see the judgment?
2. To be referred to Reporter or not?                            Yes
3. Whether the judgment should be reported                       Yes
     in the Digest?
KAILASH GAMBHIR, J.

1 By way of the present petition filed under Articles 226

and 227 of the Constitution , the petitioner seeks to challenge

the impugned award dated 25.10.96 passed by the Industrial

Tribunal No.11, Delhi in I.D. No. 3/1987, whereby the complaint

filed by the petitioner under Section 33-A of the I.D. Act was

rejected.

2. The brief facts of the case as set out in the petition are as

under:-

3. Sh Gauri Dutt, the present petitioner filed the complaint u/s

33A of Industrial Disputes Act, 1947 before the Industrial

Tribunal impugning his transfer by his employer respondent

(MCD) from Kasturba Hospital, Delhi to Chest Clinic at Kilokri.

The case of the petitioner was that he was employed as cook by

the respondent and at the time of his impugned transfer he was

working in Kasturba Hospital. Vide order no.

3414/EC(E)/AO(H)/86 dated 28.8.86 he was transferred to Chest

Clinic at Kilokri, New Delhi and at that time an industrial dispute

between the respondent management and its workmen regarding

the procedure of transfers of employees from one medical

institution to another was pending adjudication in this tribunal

(being I.D No.70/81) which was referred vide reference order no.

F.24(283)81-Lab, dated 4.4.81 and the petitioner claimed himself

to be a workman directly concerned with the above noted

industrial dispute. According to the petitioner, the respondent

had issued his transfer order in August, 1986 in violation of

section 33 of the Act. His case is that the cause of his transfer

was a complaint against him and it had attached a stigma on him

and that his service conditions had also been changed by the said

transfer to his prejudice inasmuch as he being a lowest paid

employee was required to spent more money and time in

reaching the place of his work and back to his house and,

therefore, he did not report for duty at the Chest Clinic in Kilokri.

According to the petitioner his transfer was punitive and without

affording any opportunity to him of being heard. Transfer is also

alleged to be discriminatory inasmuch as according to the

complaint, neither his seniors nor juniors had been transferred

from Kasturba Hospital and the respondent had adopted a pick

and choose policy in the matter of transfer. The transfer order

dated 28.8.96 had also been challenged on the ground that

besides being a non speaking order it was also in violation of

respondent's own circular no. 509/CES dated 27.10.59 issued by

Sh. Manohar Lal, the then Assistant Commissioner. It was

further alleged that the impugned transfer had not been issued

for any exigency of work or in public interest. He also served on

respondent a demand notice on 1.12.86 by Registered AD post to

which no reply had been given.

4. The short controversy involved in the present petition is

whether the transfer of the petitioner from Kasturba Hospital,

Jama Masjid to T.B. Chest Clinic at Kilokri was punitive in nature

or was a routine transfer.

5. Mr. Vinay Sabharwal, Advocate who was appointed as an

Amicus Curiae to assist this court strongly contended that the

transfer of the petitioner was punitive in nature and was not a

routine transfer due to the exigencies of service. Elaborating

his arguments, Mr. Sabharwal further submited that in the

affidavit filed by the petitioner in evidence, very clearly he had

stated that there was a complaint pending against him in the

Department and because of the pendency of the complaint, the

respondent management wanted to get rid of the complaint and

to achieve that motive, the petitioner was transferred to T.B.

Chest Clinic at Kilokri from Kasturba Hospital. Counsel for the

petitioner further submitted that in his cross-examination the

respondent management itself has put the question in the

manner as if the complaints were pending against him and he

was transferred based on such complaints. Even the

management through its evidence adduced by producing MW-1

Mr. S.C. Gupta, Administrative Officer, Kasturba Hospital clearly

deposed that such transfers have been taking place depending

upon the nature of complaint pending against an employee.

The contention of the counsel for the petitioner is that in such

like cases the tribunal ought to have lifted the veil to examine

the true intent and motive behind the transfer order and had

such effort been made by the tribunal the real purpose and

intention behind the said transfer order would have surfaced.

Defining the distinction between mala fide transfer and punitive

transfer, Mr. Sabharwal submitted that mala fide transfer

which is usually due to some personal vendetta and bias for

which strong foundation has to be laid down unlike in the case

of punitive actions which can always take place due to the

pendency of any complaint against an employee. In support of

his arguments, counsel for the petitioner placed reliance on the

judgments of Apex Court in L. Michael & Anr. Vs. M/s.

Johnson Pumps India Ltd., Civil Appeal No. 1605/72 and

this Court in Delhi Public School & Ors. Vs. Mrs. Ketri

Aggarwal & Anr. 2000 IV AD (Delhi) 808.

6. Based on above submissions, Mr. Sabharwal urged that

the findings given by the tribunal are absolutely irrational and

perverse and therefore, are liable to be set aside.

7. Refuting the submissions of Mr. Sabharwal, Ms. Smitha

Shankar counsel for the respondent submited that the transfer

of the petitioner was a routine transfer due to exigencies of

service and the same cannot be termed as punitive as the

petitioner was transferred on the same post with the same

salary and allowances and therefore, he cannot say that the

effect of the transfer was punitive in nature. Counsel for the

respondent further submitted that mere pendency of complaint

against an employee would not lead to an inference that such

transfer was punitive in nature. The contention of the counsel

for the respondent is that in routine people make complaints

against various employees, then, pending of such complaints

would not mean that transfer of the petitioner took place on

account of some punitive action. Deriving support from the

observations made in the impugned award by the tribunal,

counsel for the respondent submitted that the Tribunal has gone

into the said issue threadbare and came to the conclusion that

no foundation was laid down by the petitioner either in

pleadings or in the evidence or any other material was placed to

substantiate the charge of mala fides behind the said transfer

of the petitioner. Counsel thus submitted that the order passed

by the Tribunal is based on the material placed by the parties on

record and the same may not be interfered by this Court as the

findings given by the tribunal can neither be termed as illegal,

perverse or irrational.

8. I have heard Ld. Counsel for the parties and perused the record.

9. It is a settled position of law that a transfer order, which is passed

by the respondent in the administrative exigencies of service should be

interfered with by the Court only when it is found by the Court that the

same is issued in violation of the statutory rules or the order is passed

mala fide or for some personal vendetta.

10. The Apex Court in E.P. Royappa vs. State of Tamil Nadu:

(1974) 4 SCC 3 held that it is for the Executive authority to decide

who is to be posted and where to be posted and this is within the

realm of the executive function to take decision for transfer and

posting of its employee.

11. No government servant or employee of a public undertaking has

any legal right to be posted forever at any one particular place or place

of his choice since transfer of a particular employee appointed to the

class or category of transferable posts from one place to another is not

only an incident, but a condition of service, necessary in public

interest and for efficiency in the public administration. Unless an order

of transfer is shown to be an outcome of mala fide exercise or stated to

be in violation of statutory provisions prohibiting any such transfer, the

courts or the tribunals normally don't interfere with such orders as a

matter of routine, so as to substitute their own decision in preference

to that of the employer/management. This position was highlighted by

the Apex Court in National Hydroelectric Power Corpn. Ltd. v.

Shri Bhagwan- (2001) 8 SCC 574.

12. In a case where transfer is on account of inefficiency or

misbehaviour, the same can be made to a post carrying less pay than

the pay of the post on which he holds a lien. Similar is the position

where a transfer is made on a written request. Where the transfer is

otherwise than for inefficiency or misbehaviour or on a written request

made by the transferred employee, the protection of pay is ensured.

13. Although, both punitive and malafide transfers amount to

victimization and are unfair labour practice. A transfer is said to be

'punitive' if some stigma is attached to the transfer or the transfer is

by way of a punishment and 'malafide' when the transfer is visited

with some civil consequences.

14. The Apex Court pointed to the fact that stigma or a punishment is

attached to a transfer only when transfer has an adverse impact or

visits the person concerned with any penal consequences. In this

regard in Union of India v. Janardhan Debanath,(2004) 4 SCC

245, the Hon'ble Apex Court observed as under:

"The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions -- status, service prospects financially -- and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal

consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration."

15. The court has limited jurisdiction to interfere in transfer matters

as held by the Supreme Court in Mrs. Shilpi Bose and others vs.

State of Bihar and others (AIR 1991 SC 532), viz:

"In our opinion, the court should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place of the other. He is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day-to-day transfers orders issued by the Government and its subordinate authorities, there will be complete chaos in the administration which not be conducive to Public interest. The High Courts overlooked these aspects in interfering with the transfer orders."

16. In Gujarat Electricity Board and another v. Atmaram

Sungomall Poshani (AIR 1989 SC 1433), the Supreme Court

observed :

"Transfer of a Government servant appointed to a particular cadre of transferable posts to the other is an incident of service. No Government servant or employee of Public undertaking has legal right for being posted at any particular place. Transfer from one place to another is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other."

17. The Supreme Court in State of Madhya Pradesh and another

v. S. S. Kourav and others reported in AIR 1995 SC 1056 has

pronounced as under:

"The courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation. When, as in this case, the transfer order is issued on administrative grounds the Court cannot go into the expediency of posting an officer at a particular place."

18. The Supreme Court in case Union of India and others v. S.L.

Abbas (AIR 1993 SC 2444) held that :

"Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafidesor 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 guideline however does not confer upon the Government employee a legally enforceable right."

19. In case of State of M.P. and Others v. S.S. Kourav and

Others, 1995 (3) S.C.C 270, it was held :-

"The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous considerations without any factual background foundation. In this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the court."

20 The above said views are emboldened by the following

authorities as well:-

1. Zee Telefilms Ltd. and Another vs. Union of India and others (2005)

4 Supreme Court Cases 649,

2. Laxmi Narain Mehar vs. Union of India and others 1997(2) SLR 383,

and

3. State of UP and others vs. Gobardhan Lal (2004) 11 SCC 402.

21. Also, it was not only the petitioner who was transferred but there

were two more persons who were transferred with the petitioner. In

this regard, in R.S. Yadav vs. V.S. N.L. and another 105 (2003)

Delhi Law Times 95 it was observed:

"8.The transfer order, which is passed in the present petition, does not only relate to the transfer of the petitioner but also involves several other persons and it is in the nature of a general order of chain transfer. Therefore, no mala fide is rightly alleged by the petitioner. The order also apparently was passed in the administrative exigencies of service. There is no statutory violation committed by the respondent in issuing the aforesaid order of transfer. It is true that guidelines provide that a person should be allowed to be retained at one place within the last three years of his service. But the same is in the nature of a guideline which has to be kept in mind by the administration. It is for the administration to decide applicability of the aforesaid guidelines in the exigencies of administration. When the respondent has decided that for the administrative exigencies of service, service of the petitioner could be best used and utilised by transferring him to Kanpur, in such matter the Court should not and cannot interfere as there is neither any mala fide nor any violation of the statutory rules in the present case. Therefore, the order of transfer issued by the respondent cannot be interfered with."

22. Furthermore, nothing has come on record to prove the mala fide

of the respondent apart from mere averments made by the petitioner

in his statement that the transfer is a malafide transfer. It is well

settled that the plea of mala fide should be proved by bringing on

record definite material and cogent evidence in this regard. No mala

fide could be deduced on the basis of vague suggestions. There is no

reason to read between the lines and come to the conclusion that the

impugned order of transfer was punitive or malafide. In this regard, the

following observations were made by the Apex Court in Rajendra Roy

v. Union of India, (1993) 1 SCC 148, which are as under:

7. After considering the respective contentions of the parties, it appears to us that the appellant has not been able to substantiate that the impugned order of transfer was passed mala fide against him for an oblique purpose and/or for wreaking vengeance against him because respondent 2 was anxious to get rid of him and he seized the opportunity of transferring him from Delhi to Calcutta by transferring Shri Patra back to Orissa from Calcutta. It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set-up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. We are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents in passing the impugned order of transfer. It does not appear to us that the appellant has been moved out just to get rid of him and the impugned order of transfer was passed mala fide by seizing an opportunity to transfer Shri Patra to Orissa from Calcutta. It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. In this case, we are unable to draw any inference of mala fide action in transferring the appellant from the facts pleaded before the Tribunal. It appears that Shri Patra was transferred to Calcutta and after joining the post he had made representation on account of

personal hardship. Such representation was considered and a decision was taken to transfer him back to Orissa region. As a result, a necessity arose to transfer an employee to Calcutta to replace Shri Patra. It cannot be reasonably contended by the appellant that he should have been spared and some one else should have been transferred. The appellant has not made any representation about personal hardship to the department. As such there was no occasion for the department to consider such representation. This appeal, therefore, fails and is dismissed but we make no order as to costs. It is, however, made clear that the appellant will be free to make representation to the concerned department about personal hardship, if any, being suffered by the appellant in view of the impugned order. It is reasonably expected that if such representation is made, the same should be considered by the department as expeditiously as practicable.

23. Moreover, the petitioner during his cross examination before the

labour court admitted that there were complaints against him and that

it was pursuant to the said complaints that he was transferred. Sh SC

Gupta deposed as MW-1 that the management transfer an employee in

public interest depending upon the nature of complaints. Considering

that the petitioner himself admitted in his cross examination that he

was transferred pursuant to complaints regarding his work, then it is

unimpeachable that the petitioner was not performing his duties

diligently. Clearly, such a transfer does not amount to victimization and

is in public interest and cannot be said to be a malafide transfer.

24. Also, it is well settled that when a transfer order is made by the

employer then the employee so transferred should obey the same and

it is no ground that merely because the place where he is transferred is

far away and costs more to him, he did not join his duties. In the

decision reported as AIR 1993 SC 1236, Rajendra Roy Vs. Union of

India & anr., it was held that the order of transfer often causes a lot

of difficulties and dislocation in the family set up of the employees

concerned, but on that score the order of transfer is not liable to be

struck down unless it is passed mala fide or in violation of the rules of

service. In this regard, in S.C. Saxena v. Union of India, (2006) 9

SCC 583, the Hon'ble Apex Court observed as under:

"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed."

25. In view of the above discussion, I do not find any infirmity in the

award. There is no merit in the present petition, the same is hereby

dismissed.

May 19,2009                                                    KAILASH GAMBHIR, J.
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