Shri M.K. Bainiwal vs Uoi And Others
2010 Latest Caselaw 945 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C.) No. 14134/2009

%                  Date of Decision: 18th February ,2010


#     SHRI M.K. BAINIWAL
                                                             .....PETITIONER

!                  Through:   Petitioner with his counsel
                              Mr. K. Venkataraman. Advocate.

                                    VERSUS

$     UOI AND OTHERS
                                                         .....RESPONDENTS

^ Through: Ms. Sangeeta Bharti for the respondent no.1/UOI.

Mr. M.M. Sudan for the respondents no. 2 to 6

CORAM: Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not? YES

3. Whether the judgment should be reported in the Digest? YES

S.N.AGGARWAL, J (ORAL)

The petitioner belongs to a reserved category and is working as

General Manager with Project Equipment Corporation Limited, a Public

Sector Enterprise (in short 'PEC'). He, in this writ petition, has challenged

order of his transfer from Delhi to Hyderabad vide transfer order dated

04.12.2009. The challenge to the transfer order has been made by him

mainly on the ground of mala fides and bias against the respondents.

2 According to the petitioner, his impugned transfer is not for

administrative exigencies. He has made allegations of caste-based

atrocities and harassment against the respondents. Prior to the

impugned transfer, he made several complaints against the respondents

aggrieved by alleged caste-based atrocities and harassment upon him,

both before the National Commission for Scheduled Castes and also

before the Police. His said complaints were duly enquired both by the

National Commission for Scheduled Castes and also by the Delhi Police

but they did not find any substance in his complaints. It may be

mentioned that the National Commission for Scheduled Castes had even

called the Chairman of respondent no. 2 for discussion on the complaint

of the petitioner and it was after discussion with him and upon

consideration of other relevant material placed before the Commission

that it arrived at a conclusion that there was no merit or substance in his

complaint. The petitioner was informed accordingly by the Commission

vide letter dated 6/7th August, 2009, Annexure P-6 at page 107 of the

Paper Book, which is extracted below :-

To, Shri Manish Kumar Beniwal, General Manager, (Marketing), PEC Ltd.

R/o12, Bazar Lane, Jangpura-Bhogal, New Delhi-110014

Sub:- Representation regarding harassment by the office of PEC Ltd.

Sir, I am directed to refer to your representation dated 03.09.2008 and 24.02.2009 forwarded through All India Harijan League (Regd.)'s letter dated 27.03.2009 and this Commission letter of even no dated 12.09.2008 on the above subject and to say that the matter was taken up with the PEC Ltd. and subsequent a hearing written statement also held before the Hon'ble Member Shri M. Nayak on 12.11.2008. After considering the facts submitted by you and the PEC Ltd. the Commission has observed that there is no violation of rules of reservation and any other violation of service safeguard provided to the SCs. A copy of the reply received from the PEC Ltd is also enclosed for your information.

In view of the above, the Commission may not intervene in the matter further.

Yours faithfully,

Sd./-

(Y.K.Bansal) Research Officer

3 The Police, upon investigation into the allegations of caste-based

atrocities made by the petitioner against the senior officials of the PEC

Limited, also arrived at the same conclusion that there was no truth into

the allegations of the petitioner. The investigation report of the Police in

this regard is Annexure R-2 to the counter affidavit of respondents no. 2

to 6 at running pages 222 to 225 of the Paper Book. It shall be relevant

to refer to the conclusion of the police contained in the said report, which

is extracted below :-

"Conclusion:- On inquiry, it has been found that no direct witness is available in the office, who can corroborate the facts that caste based remarks have been passed by any of the alleged management officials. The staff belonging to SC category and also affiliated to SC/ST Association have also refuted the happening of any such incident either with Mr. Manish Kumar Bainiwal or with them or any other employees of PEC Ltd. The statement of 22 such staff members has been obtained for record, but all of them categorically denied the allegation. In fact, one Mr. Ravi Kumar (Director), PEC Ltd. to whom Mr. Bainiwa claims to be his supporter for the harassment incident stated contrarily. He also stated that no such harassment against Mr. Bainiwal tool place. Hence by and large employees refuted the caste allegation levelled by Mr.Bainiwal.

Mr. Bainiwal cited 4 officials in his favour namely Sh. Jai Prakash, Sh. Gian Chand, Sh. Suresh Chand and Sh. A.S. Rajouriya belonging to PEC Ltd. These officials are now posted outside Delhi by the management. Hence, they are not available and their statement could not be taken. However, from the official record provided by the PEC Ltd., it is found that all these four officials have undergone disciplinary proceeding under PEC Employee (Conduct and Discipline Appeal) Rules, 1975 & charges levelled were proved against them by the disciplinary authority.

Mr. Bainiwal's representation has also been forwarded by Sh. Devi Ram, General Secretary, SC/ST Employees Welfare Association, PEC Ltd. His statement has also been taken. But not concrete incidents were cited by him that any caste based remarks were passed by the management towards Mr. Bainiwal.

As far as the assigning of work to Mr. Bainiwal, it is felt that the management headed by Sh. A.K. Mirchandani, Chairman Cum-CMD, PEC Ltd as head of the organization is competent enough to distribute the task on merit and competence of the employee including Sh.Bainiwal.

In view of the above allegations levelled by Sh. Manish Kumar Bainiwal are not substantiated."

4 Along with the present petition, the petitioner had filed an

application seeking stay against his transfer. Since the petitioner stood

already relieved from Delhi on 07.12.2009 consequent upon his transfer

to Hyderabad vide impugned transfer order dated 04.12.2009, this Court

vide its order dated 23.12.2009 declined to stay the operation of the said

transfer order observing that the prayer for stay made in the application

has become infructuous. Aggrieved therefrom, the petitioner preferred

an appeal before the Division Bench being LPA No. 37/2010, which was

dismissed as withdrawn vide order passed by the Division Bench dated

18.01.2010. Not deterred by that, the petitioner filed yet another

application for stalling his transfer, before this Court being CM No.

1258/2010, which was dismissed by this Court vide its order dated

29.01.2010.

5 A reference to the above would show that the petitioner had made

all possible efforts to stall his transfer from Delhi to Hyderabad and it is

an admitted fact on record that he has not joined the place of his transfer

till date although about 2 ½ months have expired since the date of his

transfer despite his failing to get any favourable order to keep his

transfer in abeyance from this Court or even from the Division Bench.

6 In Gujarat Electricity Board and Another Versus Atmaram

Sungomal Poshani, AIR 1989SC 1433, it was held by the Hon'ble

Supreme Court as under :-

"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place. Transfer from one place to other 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 a 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."

7 In the present case, this Court does not find any merit in the

contention of the petitioner that he has been transferred on account of

any mala fide or bias on the part of the respondents.

8 The case of the respondents is that the transfer of the petitioner

from Delhi to Hyderabad vide impugned transfer order dated 04.12.2009

has been effected in administrative exigencies because a Senior

Manager at its Hyderabad Branch was going to superannuate on

31.12.2009 and they considered the petitioner, being in senior

managerial position, to be in a better position to take charge of

Hyderabad Region so that the organization can have good opportunity to

develop further business from that region also. The fact regarding

retirement of a Senior Manager from Hyderabad Unit of respondent no. 2

is not disputed by the petitioner.

9 This Court is of the opinion that the transfer of the petitioner from

Delhi to Hyderabad has been effected by his employer in administrative

exigencies and cannot be interfered with by this Court in exercise of its

discretionary writ jurisdiction under Article 226 of the Constitution of

India. It seems that the petitioner has abused the legal machinery and

seems to be in the habit of making frivolous complaints one after another

against all concerned authorities taking advantage of alleged caste-based

prejudices. He has not joined the place of his transfer despite having

failed to get any order of stay against the said transfer from this Court till

now. The petitioner is present in the Court today. He says that he could

not join the place of his transfer because he was ill and had applied for

leave to respondent no. 2. Admittedly, no leave had been sanctioned to

him by respondent no. 2 till date. Mr. Sudan, counsel appearing on

behalf of respondents no. 2 to 6 says that the petitioner has not even

sent any medical certificate till date. When the Court asked the

petitioner that it will be better if he goes and join his place of transfer at

Hyderabad, then the petitioner responded by saying that he cannot go at

this stage because his son has to appear in Board Examinations for Class

XIIth in March, 2010. He also his own medical ground as another reason

for not joining the duty at the place of his transfer. The petitioner cannot

be permitted to take his employer for granted and to continue disobeying

the transfer order as long as he wants. In case the petitioner is interested

in service, then he should join at the place of his transfer at Hyderabad

immediately.

10 Mr. Sudan, counsel appearing on behalf of respondent nos. 2 to 6

seeks leave of the Court to initiate disciplinary proceedings against the

petitioner for non-compliance of transfer orders despite no stay order

against him granted by this Court. The respondent no. 2 may take such

action against the petitioner as it may be advised in view of observations

of the Hon'ble Supreme Court in Atmaram's Case (supra), extracted

above.

11 In view of the foregoing, I do not find any merit in this writ petition

which fails and is hereby dismissed with no order as to costs.

FEBRUARY 18, 2010                                      S.N.AGGARWAL, J
'MA'