Uoi Through The Secretary & ... vs All India Graphic Artists ...
2010 Latest Caselaw 873 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                               W.P. (C.) No.1010/2001


%                         Date of Decision: 16.02.2010

UOI                                                 .... Petitioners
Through The Secretary & Another
                    Through Mr. Rajeev Sharma, Advocate



                                     Versus


All India Graphic Artists Association (Doordarshan)     .... Respondents
& Ors.
             Through             Mr. Ram Singh, President, Respondent
                                 No. 1
                                 Ms. Manju Bisht, respondent No. 3
                                 (Transferred after promotion)
                                 Mr. G.S. Takulia, respondent No. 5
                                 (Retired)



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.   Whether reporters of Local papers may be              YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                NO
3.   Whether the judgment should be reported in            NO
     the Digest?



ANIL KUMAR, J.

CM Nos. 15736-37/2009 *

These are the applications by the petitioners/applicants for

setting aside the order dated 8th September, 2009 dismissing the writ

petition for default in appearance on behalf of the petitioners and

another application seeking condonation of delay in filing the

application for setting aside the order of dismissal and restoration of the

writ petition. The Notices of the applications were issued to the

respondents/non-applicants.

Mr. Ram Singh appears on behalf of respondent No. 1, All India

Graphic artists Association (Doordarshan). He also contends that he

also appears on behalf of Mr. R.N. Das, respondent No. 4; Mr. G.S.

Takulia, respondent No. 5 (retired) who is also present; Ms. Manju

Bisht, respondent No. 3 and Mr. S.S. Chandel, respondent No. 2

(retired) who are also present.

It is contended on behalf of the respondents that Mr. R.N. Das

has since retired. Ms. Manju Bisht contends that she has been

promoted on transfer and in the circumstances they do not oppose the

application for condonation of delay in filing the applications for setting

aside the order dated 8th September, 2009 and for restoration of the

writ petition and for condonation of delay in filing the application for

restoration of the writ petition.

Since the pleas and averments made in the applications have not

been refuted, therefore, in the circumstances for the reasons stated in

the applications there is sufficient cause for condonation of delay in

filing the application for setting aside the order dated 8th September,

2009 dismissing the writ petition in default of appearance of the

petitioners and there is also sufficient cause for non appearance of the

counsel for the petitioner.

Consequently, the applications are allowed. Delay in filing the

application for restoration is condoned and Order dated 8th September,

2009 is set aside and the writ petition is restored to its original number.

WP(C) No. 1010/2001

Rule was issued in this matter on 10th January, 2005. With the

consent of the parties, the writ petition is taken for final disposal.

The petitioners have impugned the order of the Tribunal dated 8th

September, 2000 in OA No. 507/2000 titled All India Graphic Artists

Association (Doordarshan) and Ors. Vs. UOI through Secretary,

Ministry of Information & Broadcasting allowing the application of the

petitioners who were on deemed deputation with Prasar Bharti holding

that though the order of transfers are formal and there is no violation of

any rules in transferring them, however, since the respondents had not

been transferred to Prasar Bharati Corporation on account of any

formal order or notification issued under Section 11(1) of the Prasar

Bharti Act therefore, Prasar Bharti would have no jurisdiction or

competence to issue the transfer orders, even if they are deemed to be

on deputation and thus allowed the application of the respondents.

The petitioners have impugned the order dated 8th September,

2000 primarily on the ground that even if the respondents were on

deemed deputation, Prasar Bharti being an autonomous body and

having various offices, the petitioners were entitled to transfer them for

administrative exigencies and merely on account of deemed deputation

with Prasar Bharti, the respondents are not entitled to contend that the

transfer order within the Prasar Bharti are also to be passed by the

Central Government and such orders could not be passed by the Prasar

Bharati.

The learned counsel for the petitioners has also relied on (2007) 9

SCC 539, Prasar Bharti and Ors. Vs. Amarjeet Singh & Ors., where the

Supreme Court has held in the similar circumstances that the

employees who are under the functional control of the transferee

organization though not absorbed in the transferee organization,

however, in the peculiar facts and circumstances of the case or an

organization like Prasar Bharati, it would have the power to transfer

such employees who are on deemed deputation within the organization.

In Prasar Bharti & Ors. (supra) relied on by the learned counsel

for the petitioners, the short question involved was whether in the

peculiar situation, the Prasar Bharti/ Corporation would have the

power to transfer the employees although they are working in the

establishment but continue to be the employees of the Central

Government. The Supreme Court had formulated the short question

involved in Prasar Bharati (supra) in para 7 on page 543 as under:

7. The short question which arises for consideration is as to whether in the peculiar situation obtaining in the matter, the Corporation can be said to have any power of transfer of the employees who although are working in its establishment, but continue to be the employees of the Central Government.

While answering this question, the Supreme Court had held that

the employees on deemed deputation were under the functional control

of the Corporation and in the peculiar facts and circumstances of this

Corporation, it would imply that the corporation had the power to

transfer. The Supreme Court at page 547 in Prasar Bharati (supra) had

held as under:

26. The respondents, therefore, in our opinion by reason of their conduct as also that of other players in the field, namely, the Union of India and the Corporation must be held to have been deputed in the services of the

Corporation. They would, therefore, be governed by the general principles of deputation. For the said purpose they are under the functional control of the Corporation which in the peculiar facts and circumstances of this case, in our opinion, would also imply that the Corporation had a power of transfer.

27. Functional test, as is well known, is also employed for the purpose of determining the relationship of the employer and employees. (See Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N.14 and District Rehabilitation Officer v. Jay Kishore Maity15.)

28. We do not find that the action taken by the appellants herein in transferring the respondents is in any way arbitrary or irrational. The orders of transfer have been passed in the interest of the administration and with a view to carry on its functions.

29. We, therefore, are of the opinion that the High Court was not correct in opining that the respondents could not be transferred by the Corporation.

Mr. Ram Singh, President of respondent No. 1 Organization on

behalf of All India Graphic Artists Association (Doordarshan) and other

respondents who are present does not dispute the proposition laid down

by the Supreme Court in Prasar Bharti & Ors. Vs. Amarjeet Singh &

Ors. (supra).

The order of the Tribunal that the transfer orders were for

administrative exigencies and were in accordance with rules, has not

been challenged by the respondents. The only dispute raised before the

Tribunal was that the Prasar Bharti being the transferee organization

did not have the power to transfer the employees/respondents who are

Central Government employees and are only on deemed deputation with

the Prasar Bharti. The Apex Court has categorically held that in the

peculiar facts and circumstances of Prasar Bharti Corporation where

the respondents are working and are under the deemed control of the

Prasar Bharti Corporation, such a corporation shall be entitled to pass

the appropriate transfer order.

Thus the order of the Tribunal dated 8th September, 2000 in OA

507/2000 titled All India Graphic Artists Association (Doordarshan) Vs.

UOI & Ors. holding to the contrary to the law laid down by the Supreme

Court in Prasar Bharati (supra) cannot be sustained. The respondents

who appear in person admit that their case is not distinguishable and

they would also be bound by the decision of the Supreme Court

Consequently the order of the Central Administrative Tribunal

impugned before us is contrary to the law laid down by the Supreme

Court and is thus not sustainable and is, therefore, set aside. It is held

that the Prasar Bharti Corporation, was entitled to pass appropriate

transfer orders in respect of those employees who were under deemed

deputation from the Government of India and other departments to

Prasar Bharati.

Thus the writ petition is allowed and the impugned order dated

8th September, 2000 in OA No. 507/2000 titled All India Graphic Artists

Association (Doordarshan) and Ors. Vs. UOI through Secretary,

Ministry of Information & Broadcasting passed by the Central

Administrative Tribunal is set aside. Considering the facts and

circumstances, parties are, however, left to bear their own costs.

ANIL KUMAR, J.

February 16, 2010                               MOOL CHAND GARG, J.
'rs'