Harish Kumar vs The Hmt Limited & Ors.
2013 Latest Caselaw 1181 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+    WP(C) No. 4449/2011 & CM Nos. 9069/2011, 8880/2012, 5300/2012

%                                                            8th March, 2013

HARISH KUMAR                                               ..... Petitioner
                          Through:       Mr. Rituraj Biswas, Advocate.

                          versus

THE HMT LIMITED & ORS.                                     ..... Respondents

                  Through:               Mr. C.V. Francis, Mr. Arun Francis,
                                         Ms. Manpreet Kaur, Advocates

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. The petitioner is the employee of the respondent No.2/HMT Watches

Limited. Petitioner is presently working at the post of Assistant General

Manager. The petitioner claims two reliefs by way of this writ petition.

First is challenging his order of transfer from Delhi to Jaipur. Second relief

prayed for is to direct the respondent No. 2 to consider his application for

voluntary retirement under the scheme dated 02.09.2010.

2. So far as the second aspect of grant of VRS is concerned, the

respondent No. 2 has denied that there is any VRS scheme as applicable on

date with respect to the post of the petitioner. Counsel for the respondent

also argues that the petitioner will only be entitled to seek VRS on or after

June 2013. Accordingly, qua the relief of VRS, the petition is disposed of

with the observation that if the petitioner is qualified under an extant VRS

scheme, he can apply for VRS and the respondent No. 2 will consider his

application in accordance with the rules and policies of the

respondent No. 2.

3. So far as relief with respect to challenging the order of transfer is

concerned, the law is well-settled, that the transfer is an incident of service

and Courts do not interfere with the orders of transfer unless the same are

against the rules of the organization or are grossly and quite clearly

malicious. In the present case, the petitioner has been transferred from

Delhi to Jaipur inasmuch as there was a need for senior officer of the post

which the petitioner is occupying at Jaipur. This is so stated in para 3 of the

reply of the respondent No. 2 and which reads as under :

"3. The petitioner is challenging his transfer in the petition. He himself came on a transfer to Delhi Office of the respondent from Rani Bagh office in July 2007. Transfer is an incident of service conditions. As per terms of appointment, he is liable to be transferred anywhere in India or abroad. His present transfer is necessitated with exigency of service. The respondent company in order to improve its marketing activities in North India has reinforced the regional office by transferring an

experienced marketing executive from Koltata to New Delhi. The Jaiput show room is being manned by a junior level officer presently. The petitioner was transferred to Jaipur to improve marketing at Jaipur. It is respectfully submitted that there is no mala fide intention or ulterior motive in the transfer of the petitioner to Jaipur. It is in the best interest of the respondent on commercial viability. The petitioner cannot make a grievance of his transfer in the exigency of running the organization. The petitioner had been relieved from his office duties at New Delhi on 27.06.2011 after the end of the shift to report at Jaipur." (underlining added).

4. In my opinion, in the facts of the present case, the petitioner has no

legal entitlement to challenge his transfer order. The petitioner has been

transferred because of administrative exigencies as stated in the counter

affidavit. Merely, because there are some personal difficulties as alleged by

the petitioner with respect to studies of his children cannot mean that

petitioner can seek stay of the order of transfer inasmuch as every employee

has some or other personal issues including the education for children,

however, Courts have not accepted such reasons for staying of orders of

transfer. In any case, the writ petition was filed in the year 2011 and we are

in the year 2013, and thus even the pleaded ground would not survive.

5. The final aspect which was urged on behalf of the petitioner was that

the petitioner is not being paid salary since April 2012. To this respondent

No. 2 has stated on affidavit that respondent No. 2-company is incurring

huge losses and, therefore, it is making some payment every month to the

employees and thereafter is releasing balance amount in due course within a

few months i.e when the funds are available. In this regard the respondent

no. 2 in its counter affidavit has averred as under :

"5. The comparison of the petitioner that a Senior Executive HMT Watches Limited is getting the salary less than the class IV employee of the Central Government is unwarranted and absolutely false. The monthly salary of the petitioner is around ` 32,000/-. The petitioner has himself admitted that he had received his full salary up to September 2010. It is an admitted fact that the salary upto the month of September 2010 has been cleared. On account of some financial problems, the Respondent has not been able to release full salary to its employees every month end. But it has been releasing part payment ranging from `7800 to 3500 every month, and the balance salary is paid to employees in subsequent months depending upon the availability of funds with the respondent. The Respondent therefore has cleared the arrears of all the employees till September 2010.

6. The counsel for the respondent No. 2 has made a statement to this

Court that as and when petitioner will join the posting at Jaipur, and which

posting the petitioner did not join in view of the stay order passed by this

Court, at that stage of joining at Jaipur the petitioner will be released arrears

of his salary, and will be treated on the same footing as the other employees

of the respondent No. 2 who are similarly situated as the petitioner. This

statement made on behalf of the respondent No. 2 through its counsel is

taken on record and the same will bind the respondent No. 2.

7. In view of the above the writ petition is dismissed with respect to both

the reliefs of the challenge to the order of transfer and of the petitioner

claiming entitlement to VRS, of course, subject to observations and

directions given in the present judgment. All pending application also stand

disposed of accordingly.

VALMIKI J. MEHTA, J MARCH 08, 2013 godara