Pawan Kumar vs Consortium For Educational ...
2017 Latest Caselaw 6133 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
                    Judgment reserved on: October 16, 2017
                   Judgment delivered on: November 03, 2017

+     W.P.(C) 6379/2017
      PAWAN KUMAR                                        ..... Petitioner
                                   Through:   Mr. Arun Khosla, Adv. with Ms.
                                              Khreeanka Kakkar, Adv.
                          versus
      CONSORTIUM FOR EDUCATIONAL
      COMMUNICATION                         ..... Respondent
                       Through: Mr. Amitesh Kumar, Adv. and
                                Ms. Binisa Mohanty, Adv.

CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO

                               JUDGMENT

V. KAMESWAR RAO, J

W.P.(C) 6379/2017

1. The present petition has been filed with the following prayers:-

"Wherefore in the premises, it is most respectfully prayed that this Hon'ble Court may be pleased to issue

(i) a writ of certiorari quashing the Respondent's Order No.CEC/Admn./80/2017/802336 dated 24.07.2017 and

(ii) grant costs of the petition.

Any other and further relief deemed fit and proper in the facts and circumstances of the case may also be granted in favour of the petitioner and against the respondent."

2. It is the case of the petitioner that he is employed with the respondent,

which is an Inter University Centre of University Grants Commission on

Electronic Media on the post of Stenographer Grade-II in June, 1997. It is his

case that he was required to report only to the respondent's Delhi Office

because it has no other office in any other City in India. He accordingly, set

up his permanent residence at the present address for his family comprising of

his wife, three children and mother. It is averred that he was selected in Prasar

Bharati on the post of Private Secretary on deputation. The respondent

granted permission of deputation for a period of one year extendable on year

to year basis. Despite request for extending the petitioner's deputation for a

further period of two years, the respondent rejected the request and required

petitioner to immediately report back. In that regard it had written a letter

dated March 21, 2016 requiring the petitioner to report within 15 days failing

which, it was decided that his office will be declared as vacant. He filed a

Writ Petition being W.P.(C) No. 2798/2016 for quashing of letters dated

March 21, 2016 and October 08, 2015. The petition was disposed of on

February 06, 2017. The petitioner reported back to the respondent.

3. It is his case that ever since his rejoining the respondent, its Director

started acting vindictively and swearing that he will take the petitioner to task

for having dragged the respondent into litigation, where he perversely opined

that he had to personally eat a humble pie. It is his case that when he reported

for duty on July 24, 2017, his office premises were locked and three hours

later, he was given marching order in the form of an impugned order of even

date dated July 24, 2017 declaring him to be placed at the disposal of

EMMRC Roorkee on a temporary transfer with immediate effect. It is averred

that never in the history of the respondent organization has ever a transfer of

any personnel from New Delhi to any other city taken place and never was

there any mention of the transferability of the post in the petitioner's

appointment order. The Memorandum of Association and the Byelaws of the

respondent organization, does not mention of any other Branch other than the

one in Delhi.

4. It may be stated here that when the matter was listed on July 26, 2017,

Mr. Amitesh Kumar, Advocate appeared for the respondent and sought time

to take instructions. On July 28, 2017, Mr. Kumar had filed a compilation of

certain documents. That apart, a counter affidavit has also been filed by the

respondent. In the counter affidavit, it is the case of the respondent that the

respondent is an Inter University Centre of the University Grants Commission

established under Section 12(ccc) of the UGC Act, 1956. Initially, respondent

was made functional as a 'Project of Nuclear Science Center' and one steering

group of IUCEC was created to govern the same. Reference is made to

Clause 2.14 and Clause 2.15 of the Rules, which provides for observance of

Rules and Regulations. It is also stated that subsequently, respondent was

registered as a Society under the Societies Registration Act, 1860, which was

governed by its Memorandum of Association, Rules and Byelaws. Reference

is made to various powers and functions of the Governing Board. Reference

is also made to Rule 31, 32 and 33 of the Rules. Reference is also made to

Rule 50 and Clause 5 of Byelaws, which provided for general condition of

employment. Reference is also made to Clauses 6.19.10 and 6.19.14 of the

Byelaws to contend that an employee can be transferred outside Delhi. The

counter affidavit also refers to a Memorandum of Understanding signed

between the UGC, respondent and IIT, Roorkee whereunder as per preamble

of the MoU, respondent has been entrusted with the direct responsibility for

the administrative and financial management of the EMMRC at Roorkee. It is

the stand of the respondent that the MoU signed between UGC, respondent

and IIT Roorkee, makes it apparent that not only the entire responsibilities of

financial management of the EMMRC Roorkee has been handed over to the

respondent but it is the respondent, which is responsible for appointment of all

posts and in terms of clause 3.2 the employees of the EMMRC are to be

treated as employees of respondent. A reference is also made to clause 3.9 of

the MoU clearly stipulating that respondent will take over the existing staff,

assets and liabilities of the erstwhile EMMRC, Roorkee. It is also stated that

by virtue of the aforesaid Tripartite MoU, the EMMRC, Roorkee has in fact

been subsumed in the respondent and for all administrative and financial

purposes, the EMMRC Roorkee is part of respondent itself as a media center

and in view of the said position, it is permissible to utilize the services of the

employees of respondent either in the office of the respondent at Delhi or in

the media center at Roorkee as may be required in the interest of smooth

administration and governance. He also refers to the decision of the

Governing Board of respondent which in its 37th meeting held on March 15,

2016 considered the issue regarding the movement of staff between

respondent and EMMRC, Roorkee and it was resolved, to transfer the staff

between respondent and EMMRC, Roorkee on administrative ground with the

approval of the Competent Authority. The respondent refers to the case of the

petitioner, who is an employee of respondent holding the post of Stenographer

Grade-II in the Nuclear Science Center vide letter dated October 09, 1991.

5. It is also stated that the terms of appointment included that he would be

governed by the Rules and Byelaws of Nuclear Science Center in force from

time to time. As and when IUCEC becomes a separate autonomous body, his

services will be automatically transferred without any obligation to the

Nuclear Science Center. The respondent referred to the appointment of

Director, EMMRC, Roorkee by the respondent who joined on July 20, 2017.

Since the entire administrative affair of EMMRC, Roorkee is to be managed

by the respondent itself, therefore, after joining as Director, EMMRC,

Roorkee the Director, EMMRC vide his letter dated July 20, 2017 has stated

that he is in urgent need of a person, who has experience of working as a

P.A./P.S. with senior officials and requested, he be provided with such an

officer on urgent basis. It is on the request of the Director, EMMRC,

Roorkee, it was decided to place the services of the petitioner at the disposal

of EMMRC, Roorkee on temporary transfer basis with immediate effect for a

period of three months or until further orders, whichever is earlier and

accordingly, the impugned order was issued.

6. A rejoinder has been filed by the petitioner, wherein the petitioner

opposed the stand of the respondent by stating that respondent is not

empowered to effect transfer of employees to EMMRC, Roorkee, which is a

media center. The respondent subsequent to his appointment entered into

financial/administrative arrangement. It is also stated that Director of the

respondent had acted malafidely in view of his earlier writ petition

challenging respondent's notice of disciplinary action on the ground of his not

unilaterally leaving the organization i.e Prasar Bharti, which was not releasing

him even as respondent summoned his return. It is also stated that reliance

placed upon the Rules and Byelaws of the Nuclear Science Center is entirely

irrelevant because he was initially employed by the Center which ran the

respondent. The respondent registration as an independent Society lead to his

permanent employment with the respondent on June 09, 1998 as Steno Grade-

II and Memorandum of Association, Byelaws and other Rules governs his

employment. It is also stated that the Resolution No. 15 of the respondent

Board meeting dated March 15, 2016 has not been approved by the UGC. It

is also stated, he is only answerable to any exercise of Authority by the

Director or any senior according to the Rules and Byelaws of the respondent.

7. It is the stand of the petitioner that the respondent had totally

misconstrued the import of Article 6.9.10 of the Byelaws. It is also averred

that even a temporary transfer contrary to the Memorandum of Association

and Byelaws of respondent, is illegal. Insofar as the Tripartite MoU between

UGC, respondent and IIT, Roorkee is concerned, it is stated that the same

does not confer jurisdiction upon respondent to make any transfers of its staff

from Delhi to Roorkee and the reliance on the order dated October 18, 2011

giving charge of the post of Director EMMRC, Roorkee to joint Director Dr.

Sunil Mehru is misconceived as the same does not amount to a transfer from

Delhi to Roorkee.

8. During the course of hearing, an issue arose whether the Byelaws filed;

by the petitioner along with writ petition are the true and correct copy of

Byelaws as prevalent in the respondent organization, as the same have been

contested by Mr. Amitesh Kumar, learned counsel for the respondent.

Thereafter, the matter was adjourned to September 07, 2017, on which date

Mr. Khosla has filed another set of Byelaws purported to have been

downloaded from the website. Mr. Amitesh Kumar has also filed on record a

communication dated September 06, 2017 of the Chief Administrative Officer

of the respondent organization to state that the Byelaws, which have been filed

as Annexure R-1 to the counter affidavit are the correct copy of the Byelaws.

In view of the stand of the counsels, I directed the respondent to file the

authenticated copy of Byelaws by way of an affidavit. Accordingly, an

additional affidavit was filed by the respondent wherein they have filed the

original Memorandum of Association and Rules along with certificate; a copy

of the UGC letter dated October 12, 1995, along with Office Order dated July

14, 1997 whereby copy of the Byelaws as approved by the respondent at its

meeting held on February 27, 1996 was circulated to everyone including the

petitioner. That apart, a communication of the UGC forwarding a copy of the

revised MoA and Rules of respondent approved and signed by the Chairman,

UGC was forwarded to the respondent.

9. Mr. Arun Khosla, learned counsel for the petitioner had submitted that

respondent has not countered the three-fold submission made by the petitioner

challenging the impugned Order dated August 24, 2017 purporting to transfer

the Petitioner from Delhi to Roorkee, namely:

(i) The CEC is a Delhi based Society with no branches anywhere in

the country and the Petitioner was employed as Steno Gr.II solely

and exclusively to work in CEC's Registered Head Office in

Delhi, with no stipulation of transferability to any other office,

(ii) Respondent is not empowered to effect transfer of employees to

EMMRC, Roorkee, which is a Media Centre that respondent has

subsequent to the petitioner's appointment entered into a

financial / administrative arrangement with and

(iii) The Director of respondent is acting mala fide vindictively in

view of the petitioner's earlier Writ Petition challenging

respondent's notice of disciplinary action on the ground of the

Petitioner not unilaterally leaving the organization that the

Petitioner was delegated to, namely Prasar Bharati, which was

not releasing the petitioner even as respondent summoned his

return. The threatened disciplinary action fell foul of this

Hon'ble Court in W.P.(C) 2798/2016 and the petitioner returned

to the parent organization, CEC, to resume work

10. According to Mr. Khosla, the reliance placed by the respondent upon

the Rules & Bye-laws of the Nuclear Science Centre is entirely irrelevant

because even though the petitioner was initially employed by the said Centre

which ran the CEC, the latter's registration as an independent Society led to

the petitioner's permanent employment with respondent on 09.06.1998 as

Steno Gr.II and CEC's MoA, Bye-laws and other Rules govern his

employment. According to him, the respondent admits in Para 5 of the counter

that the Rules of respondent and any amendments thereto have to be approved

by the University Grants Commission, and there is admission of want of

empowerment to act on the alleged Resolution No.15 of the respondent's

Governing Board Meeting of March 15, 2016 resolving thereunder to transfer

staff between CEC and EMMRC Roorkee. He submitted, the respondent has

totally misconstrued the import of Article 6.19.10 of the Bye-laws while

contending that the said Article posits the power of transfer of employees

outside Delhi. The said Article has to be read for its true import in the context

of preponderant stipulations of the respondent not being an all-India

organization but solely and exclusively confined to Delhi. He submitted, the

respondent admits that the impugned Order dated July 24, 2017 purports to

transfer the petitioner from Delhi to Roorkee, albeit, temporarily, it falls foul

of the MoA and Bye-laws of respondent. The Tripartite MoU between UGC,

respondent and IIT Roorkee in the setting up of the Media Centre in Roorkee

does not confer jurisdiction upon the respondent to make any transfers of its

staff from Delhi to Roorkee and the reliance upon the Order dated October 18,

2011 giving additional charge of the post of Director EMMRC, Roorkee to

Joint Director, Dr. Sunil Mehru, is misconceived in as much as the same does

not amount to a transfer from Delhi to Roorkee. It is further submitted that

respondent knows of its want of power to make any transfers and has never in

the history of the organization made any transfer of any employee from Delhi

to Roorkee or vice-versa. In any event, the petitioner's terms of employment

do not permit such transfer. According to Mr. Khosla the reliance on the said

MoU is entirely misplaced, as evidenced by the declaration of the UGC in its

letter of January 4, 2005 with regard to the said MoU being co-terminus with

the 10th Plan Period, i.e. till March 31, 2007. Insofar as the proposition that

the UGC's approval is mandatory in order to give effect to the respondent's

Board Resolution of transfer of staff from Delhi to Roorkee and vice-versa, he

would rely on the judgment dated July 8, 2013 of this Court in B.K. Kapoor

Vs. Government of NCT of Delhi more specifically para 11, which reads as

under:-

".......Notwithstanding with the Executive Committee of SCERT being empowered to amend the Rules as per power conferred by Rule 43 it must additionally abide by Rule 64 which required amendment to the rule with the previous concurrence of the Govern of Delhi..."

11. That for the proposition that an employer does not have an inherent

right to transfer an employee from one organization to a subsequently

incorporated another organization if such right was not specifically provided

for in the employee's terms of employment, he relied on the Apex Court's

judgment reported as AIR 1960 SC 650 M/s. Kundan Sugar Mills v.

Ziyauddin and Ors.

12. That on mala fide, he relied on the following judgments:

(i) AIR 2009 SC 1399 Somesh Tiwari v. Union of India and Ors.;

(ii) 97 (200) DLT 141 S. Ram Rao v. Managing Director, FCI & Ors.;

(iii) 1995 (1) AD (DELHI) 768 Raghubir Singh v. Municipal Corporation of Delhi.

13. He prayed that the impugned Order dated July 24, 2017 be quashed and

set aside while issuing directions that the period from July 25, 2017 should not

be treated as a break in service and the petitioner should be deemed to have

been on duty with a further direction, that the salary stopped as of July 25,

2017 be released, with litigation cost of Rs.1,10,000/-. In support of his

submissions, Mr. Khosla would also rely upon the following judgments in

support of his contentions:

1. M/s. Kundan Sugar Mills v. Ziyauddin and Ors. AIR 1960 SC 650 (V 47 C 102)

2. S. Ram Rao v. Managing Director, FCI & Ors. 97 (2002) DLT

3. The State Bank of India v. Shri N. Sundara Money (1976) 1 SCC 822.

14. On the other hand, Mr. Amitesh Kumar, learned counsel appearing for

the respondent would justify the impugned order transferring the petitioner to

EMMRC Roorkee by stating that it is not a transfer on permanent basis, but

for a short duration in view of the exigencies of service and such transfer

could not be resisted by the petitioner on the ground that there is no power

with the respondent or for that matter malafide. He would contest the

submission of Mr. Arun Khosla that the respondent has no power to transfer

the petitioner by relying upon various provisions of the Bye-

laws/memorandum of understanding and the minutes of the meeting of the

Governing Board dated March 15, 2016. In this regard he has drawn my

attention to various provisions of the Bye-laws like clause 2.14 of the

erstwhile Nuclear Science Centre, Rule 29 to 33 of the respondent which

confers various powers and functions on the Governing Board; Rule 31, 32,

33, 36 and 50 of the CEC. Similarly, Clause 5.2, 5.4, 5.5 and 5.7 of the bye-

laws of the respondent. Similarly, clause 6.19.10 and 6.19.14. He also stated

in terms of Clause 7.11, in all exigencies which are not covered by the Rules,

the Rules prescribed by the Central Universities shall apply and where such

Rules are not applicable, Rules prescribed by the Government of India for its

employees shall be applicable. According to him, in terms of the tripartite

Memorandum of Understanding, Clause 3.9 clearly stipulates that respondent

will take over the existing staff, assets and liabilities of erstwhile EMMRC

Roorkee and pursuant thereto, EMMRC Roorkee is part of CEC as a Media

Centre and as such it is permissible to utilize the services of the employees of

the CEC either in the Office at Delhi or in the Media Centre at Roorkee. In so

far as the minutes of the Governing Board meeting dated March 15, 2016 are

concerned, he stated movement of staff of CEC and EMMRC with the

approval of the competent authority has been agreed upon by the Governing

Board and if that be so, according to Mr. Kumar, the plea of Mr. Khosla that

such stipulation has no binding effect in the absence of approval from the

UGC is without merit. He also draws my attention to the letter of the Director

EMMRC, Roorkee dated July 22, 2017, wherein he has sought the services of

the experienced PA so that he can start functioning effectively. Mr. Kumar

would submit it is thereafter only the impugned order was issued with the

approval of the Director asking the petitioner to report to Director EMMRC,

Roorkee. That apart, it is his submission that in terms of the FR-14(B) of the

FRSR, the petitioner could be transferred to Roorkee. He seeks the dismissal

of the writ petition.

15. Having heard the learned counsel for the parties, during the course of

hearing an issue arose whether the Bye-laws filed by the petitioner along with

the writ petition are true and correct Bye-laws. Even though, it was the

attempt of Mr. Khosla to submit that the Bye-laws filed by the petitioner along

with petition are the correct one as the same has been downloaded from the

website of the respondent Organization, he did say that the filing of different

extracts of Bye-laws by the parties would have no bearing in so far as the

submissions made by him challenging the transfer on merit. In his rejoinder

arguments, he did contest the applicability of FR-14(B) in the case of transfer.

16. The only issue which arises for consideration in this writ petition is

whether the respondent is justified in issuing the impugned order. Mr.Khosla's

primary contention was that in the absence of a stipulation in the appointment

letter or in the Byelaws/Rules the transfer to Roorkee is impermissible, which

submission was opposed by Mr. Kumar, who had relied upon the provisions

of the Byelaws to draw an inference that power to transfer or for that matter an

employee can be transferred out of Delhi exist. He also relied upon the

Memorandum of Understanding and the minutes of the meeting of the

Governing Board dated March 15, 2016 in support of his contention. This

Court is of the view, the aspect whether the appointment letter/ Byelaws/Rules

contemplate the petitioner/an employee can be transferred out of Delhi is

inconsequential, in the facts, for the simple reason, in the absence of a

stipulation in the Contract/Rules, a transfer, which may entail change of

employer, change of terms and conditions of service, place of work, nature of

work, then the same is impermissible. In the case in hand, except change of

place of work that too temporarily, no condition has been changed, at least it

has not been brought to the notice of this Court. If the submission of Mr.

Khosla is to be accepted it would mean that an employee working with the

respondent cannot be sent out of Delhi for any official work or discharging

duties as, such a visit would entail change of place of work. Such a position

cannot be contemplated in any appointment, as right to appoint contemplate,

the right of an employer to call upon an employee discharge such duties for

which he has been appointed. There is no dispute and accepted by Mr.

Kumar that the transfer is temporary for three months. If that be so, the

transfer of the petitioner to EMMRC is akin to a posting under the same

employer (more so, after the merger) that too, for a brief period, after which it

is expected he shall be brought back to Delhi. In other words, the transfer is

not of a permanent nature as is contemplated normally. The impugned order

cannot be interfered with in the facts.

17. The reliance placed by Mr. Amitesh Kumar on the Byelaw 7.11 or Rule

21 of the Memorandum of Association, is misplaced otherwise, there was no

reason for the respondent to amend Byelaws by incorporating transfer of staff

vide minutes dated March 15, 2016. Even the submission of Mr. Kumar by

placing reliance on the Minutes of the meeting of the Governing Board dated

March 15, 2016 is concerned, the same would be of no help, till such time the

Byelaws are amended in accordance with the procedure laid down under the

Memorandum of Association by taking the concurrence of the UGC as

contemplated under Clause 21 of the Memorandum of Association and also in

view of the position of law in B.K. Kapoor (supra).

18. In so far as the judgments relied upon by Mr. Khosla are concerned, in

the case of Raghubir Singh (supra), this court had set aside the order of

transfer on the ground of factual mala fide, which is not case of the petitioner

in the present case. That apart, in so far as the judgment in the case of M/s.

Kundan Sugar Mills (supra) is concerned, the same has no applicability in

the facts of this case, as in the said case transfer of an employee was from one

concern to another, which is not the case here. Insofar as the case of S. Rama

Rao (supra) is concerned, the same has no applicability in the facts as the

transfer of the petitioner is in administrative exigencies. Moreover, the factual

malafide has not been pleaded by the petitioner by making the competent

authority a party in this petition. Similarly, in the case of the State Bank of

India v. Shri N. Sundara Money (supra) is concerned, the same has no

applicability in the facts of this case, more so in view of my finding above.

Even the judgment in the case of Somesh Tiwari (supra), wherein the

Supreme Court has set aside the order of transfer which was passed in view of

the punishment, has no applicability in the facts of this case, more so, in view

of the conclusion of the Supreme Court in Para 20 that the transfer was

effected on the allegation made against the appellant in an anonymous

complaint, which is not the case herein.

19. In the peculiar facts of this case, as the transfer/posting is for a

temporary period of three months or till further orders, whichever is earlier,

this Court is of the view the impugned order does not require any interference

by this Court in exercise of power under Article 226 of the Constitution of

India. During the course of the arguments, it transpired that the petitioner has

not joined the place of transfer/posting. It is expected that the petitioner shall

join the place of transfer/posting at the earliest. For the period of absence,

during the pendency of the petition, the petitioner shall be at liberty to

represent to the Authorities for treating the period as on leave due in

accordance with the Rules/instructions. The petition is dismissed. No costs.

CM No. 26395/2017 Dismissed as infructuous.

V. KAMESWAR RAO, J NOVEMBER 03, 2017/ak/jg