Madhya Pradesh High Court
Mohammed Naiem vs South Eastern Coal Field Ltd. on 19 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 19 th OF DECEMBER, 2023
WRIT PETITION No. 26926 of 2023
BETWEEN:-
MOHAMMED NAIEM S/O LATE SHRI TABIB AHMED,
AGED ABOUT 45 YEARS, OCCUPATION: PUMPO
OPERATOR, UMARIA COLLIERY JOHILLA AREA,
SOUTH EASTERN COALFIELDS LIMITED, POST OFFICE,
UMARIA DISTRICT UMARIA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.C.GHILDIYAL - SENIOR ADVOCATE WITH SHRI A.K. AHIRWAR
- ADVOCATE)
AND
1. SOUTH EASTERN COAL FIELD LTD. THROUGH ITS
CHAIRMAN CUM MANAGING DIRECTOR SEEPAT
ROAD BILASPUR, DISTRICT BILASPUR
(CHHATTISGARH)
2. THE GENERAL MANAGER (P AND IR) THE SOUTH
EASTERN COAL FIELD LTD. SEEPAT ROAD
BILASPUR (CHHATTISGARH)
3. THE GENERAL MANAGER JOHILLA AREA
SOUTHEASTERN COALFIELDS LIMITED POST
OFFICE NOWROZABAD DISTRICT UMARIA
(MADHYA PRADESH)
4. THE SUB AREA MANAGER UMARIA SUB AREA
POST OFFICE UMARIA DISTRICT UMARIA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAJAS POHANKAR - ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
With the consent of the parties, matter is finally heard.
2. By the present petition under Article 226 of the Constitution of India, the
petitioner is challenging the order dated 6.10.2023 issued by respondent No.2-
General Manager (P & IR) S.E.C.L. Bilaspur, whereby the petitioner has been
transferred from Umaria Colliery under Johila Area of respondent No.1
Company to Raigharh Area on the same post of Pump Operator.
3. Learned senior counsel appearing on behalf of the petitioner submits that
the petitioner is working on the post of pump operator category-II since
26.1.2022 and at present posted in Umaria Colliery. The petitioner is an elected
President of Umaria Unit of the Trade Union (Koyla Mazdoor Sabha (HMS) for
2022 to 2024. It is further argued that several demands of the Union relating to
the welfare of the workers were raised by the Union and several notices and
letters were issued by the Union including notice for strike on the management
on 15.9.2023. After issuance of strike notice by Union, the respondents have
resorted to the practice of victimization of workmen by adopting the policy of
transferring the office bearer of the Trade Union and issued the impugned order
dated 6.10.2023 by which the petitioner has been transferred from Johila Area
to Raigarh Area in the State of Chhattisgarh on the alleged ground of
administrative exigency.
4. Learned Senior Counsel further argued that the transfer policy for Non
Executives of Coal India Limited and its subsidiaries came into force w.e.f.
30.8.2023 and clause 7 of the transfer policy provides that transfers order may
be issued on administrative ground, either on the request of the employee or on
the ground of surplus of employees. The respondents without declaring the
petitioner as surplus has issued the transfer order. The petitioner himself has not
made any request of transfer. The new transferred place is at a distance of 400
kms. The transfer order is absolutely illegal and unfair practice and issued with
the malafide. The transfer order was issued from Bilaspur and on the same day
it is mentioned that the petitioner has been relieved, however the petitioner is still
working on the same post and has not been relieved. He prayed for quashment
of the transfer order dated 6.10.2023. Learned senior counsel further argued
that the mother of the petitioner is not keeping well and is under treatment,
therefore, the transfer order be set aside.
5. Per contra, learned counsel for the respondents submitted that the transfer
order has been issued due to administrative exigency and the petitioner is not an
elected office bearer of a Trade Union. No notice was issued by the petitioner
himself. The strike notice was given by one Mr. Arun Mishra being the
President of Johila Area and the allegation of issuance of transfer order due to
the active participation of the petitioner in Trade Union activities is completely
incorrect. The transfer policy has been misinterpreted by the learned senior
counsel and according to the transfer policy, clause 7 provides for
administrative transfer, which also provides that Non Executives declared
surplus can be transferred from one subsidiary/area/unit/department to another
subsidiary/area/unit/department based on the requirement for gainful utilization
of manpower.
6. Learned counsel for the respondents further submits that the mother of the
petitioner is under the treatment at Raipur, which is nearer from new place of
posting i.e. Raigarh in comparison to the present place of posting i.e. Johila
Area. Learned counsel further argued that the present dispute is in respect of the
transfer of workman and under the provisions of the Industrial Dispute Act,
1947, the petitioner is having alternative remedy and therefore, the petition is not
maintainable. It is further argued that the service rules are applicable and the
transfer policy is not binding in nature and does not provide any amenity to
office bearer of the Union. It is also argued that there is no material to
demonstrate that the order of transfer has been passed due to the alleged
'malice'. He prays for dismissal of the petition and relied upon the judgment of
Division Bench passed in W.A. No.1553/2023 (Krishna Kesav Rai Dixit vs.
State of M.P. and others) dated 17.10.2023 , wherein the Division Bench has
held that, the transfer policy is not enforceable and does not create any right
and courts have limited jurisdiction to interfere in the order of transfer. The
Court can interfere in the case of mandatory statutory rule or action is
capricious, malicious, cavalier and fanciful. In case of violation of policy,
proper remedy is to approach authorities by pointing out violation and
authorities to deal with the same keeping in mind the policy guidelines. He
further relied on the order passed by the Division Bench in W.A. No.920/2021
(Kayyum vs. State of M.P.) dated 29.9.2021, wherein it is held that, no
enforceable right is created by clauses of the transfer policy and transfer policy
is not binding in nature and the employee must realize that he is serving the
department and not to act as office bearer of an association or union. It is
further held that administrative exigency and job requirement of the department
must be given preference over association activities.
7. Learned counsel for the respondents further relied on the judgment of the
coordinate Bench in W.P. No.22980 of 2023 (Mahesh Prasad Ahirwar vs.
State of M.P.) on 11.9.2023 , whereby the judgment passed in the matter of
Kyyum (supra) has been relied and the petitioner therein was directed to submit
a detailed representation for consideration.
8. In view of above facts, without deciding the issue of availability of alternate
remedy or without deciding the merits of the case, I deem it proper to dispose
of the present petition with a direction to the petitioner to file a detailed
representation within 15 days from today, raising all the possible grounds with
all the relevant documents before the respondent No.2-General Manager
(P&IR), S.E.C.L. Bilaspur and in case the representation is filed by the
petitioner, the same will be considered and decided by the respondent No.2 by
passing a reasoned speaking order considering the prevailing rules, policy and
circular, in accordance with law, within a further period of One Month and the
decision be communicated to the petitioner.
9. Till the representation of the petitioner is decided, the petitioner will be
permitted to continue the work at the present place of posting.
10. With the aforesaid directions, the present petition is disposed of. No order
as to costs.
11. It is made clear that this Court has not expressed any opinion on the merits
of the case.
(VINAY SARAF)
JUDGE
irf.
