Kailash Gambhir, J.
1 By way of the present petition filed under Articles 226 and 227 of the Constitution, the petitioner seeks to challenge the impugned award dated 25.10.96 passed by the Industrial Tribunal No. 11, Delhi in I.D. No. 3/1987, whereby the complaint filed by the petitioner u/s 33A of the I.D. Act was rejected.
2. The brief facts of the case as set out in the petition are as under:
3. Sh Gauri Dutt, the present petitioner filed the complaint u/s 33A of Industrial Disputes Act, 1947 before the Industrial Tribunal impugning his transfer by his employer respondent (MCD) from Kasturba Hospital, Delhi to Chest Clinic at Kilokri. The case of the petitioner was that he was employed as cook by the respondent and at the time of his impugned transfer he was working in Kasturba Hospital. Vide order No. 3414/EC(E)/AO(H)/86 dated 28.8.86 he was transferred to Chest Clinic at Kilokri, New Delhi and at that time an industrial dispute between the respondent management and its workmen regarding the procedure of transfers of employees from one medical institution to another was pending adjudication in this tribunal (being I.D No. 70/81) which was referred vide reference order No. F.24(283)81-Lab, dated 4.4.81 and the petitioner claimed himself to be a workman directly concerned with the above noted industrial dispute. According to the petitioner, the respondent had issued his transfer order in August, 1986 in violation of Section 33 of the Act. His case is that the cause of his transfer was a complaint against him and it had attached a stigma on him and that his service conditions had also been changed by the said transfer to his prejudice inasmuch as he being a lowest paid employee was required to spent more money and time in reaching the place of his work and back to his house and, therefore, he did not report for duty at the Chest Clinic in Kilokri. According to the petitioner his transfer was punitive and without affording any opportunity to him of being heard. Transfer is also alleged to be discriminatory inasmuch as according to the complaint, neither his seniors nor juniors had been transferred from Kasturba Hospital and the respondent had adopted a pick and choose policy in the matter of transfer. The transfer order dated 28.8.96 had also been challenged on the ground that besides being a non speaking order it was also in violation of respondents own circular No. 509/CES dated 27.10.59 issued by Sh. Manohar Lal, the then Assistant Commissioner. It was further alleged that the impugned transfer had not been issued for any exigency of work or in public interest. He also served on respondent a demand notice on 1.12.86 by Registered AD post to which no reply had been given.
4. The short controversy involved in the present petition is whether the transfer of the petitioner from Kasturba Hospital, Jama Masjid to T.B. Chest Clinic at Kilokri was punitive in nature or was a routine transfer.
5. Mr. Vinay Sabharwal, Advocate who was appointed as an Amicus Curiae to assist this Court strongly contended that the transfer of the petitioner was punitive in nature and was not a routine transfer due to the exigencies of service. Elaborating his arguments, Mr. Sabharwal further submitted that in the affidavit filed by the petitioner in evidence, very clearly he had stated that there was a complaint pending against him in the Department and because of the pendency of the complaint, the respondent management wanted to get rid of the complaint and to achieve that motive, the petitioner was transferred to T.B. Chest Clinic at Kilokri from Kasturba Hospital. Counsel for the petitioner further submitted that in his cross-examination the respondent management itself has put the question in the manner as if the complaints were pending against him and he was transferred based on such complaints. Even the management through its evidence adduced by producing MW-1 Mr. S.C. Gupta, Administrative Officer, Kasturba Hospital clearly deposed that such transfers have been taking place depending upon the nature of complaint pending against an employee. The contention of the counsel for the petitioner is that in such like cases the tribunal ought to have lifted the veil to examine the true intent and motive behind the transfer order and had such effort been made by the tribunal the real purpose and intention behind the said transfer order would have surfaced. Defining the distinction between mala fide transfer and punitive transfer, Mr. Sabharwal submitted that mala fide transfer which is usually due to some personal vendetta and bias for which strong foundation has to be laid down unlike in the case of punitive actions which can always take place due to the pendency of any complaint against an employee. In support of his arguments, counsel for the petitioner placed reliance on the judgments of Apex Court in L. Michael and Anr. v. Johnson Pumps India Ltd., Civil Appeal No. 1605/72 and this Court in Delhi Public School and Ors. v. Mrs. Ketri Aggarwal and Anr. 2000 IV AD (Delhi) 808.
6. Based on above submissions, Mr. Sabharwal urged that the findings given by the tribunal are absolutely irrational and perverse and therefore, are liable to be set aside.
7. Refuting the submissions of Mr. Sabharwal, Ms. Smitha Shankar counsel for the respondent submitted that the transfer of the petitioner was a routine transfer due to exigencies of service and the same cannot be termed as punitive as the petitioner was transferred on the same post with the same salary and allowances and therefore, he cannot say that the effect of the transfer was punitive in nature. Counsel for the respondent further submitted that mere pendency of complaint against an employee would not lead to an inference that such transfer was punitive in nature. The contention of the counsel for the respondent is that in routine people make complaints against various employees, then, pending of such complaints would not mean that transfer of the petitioner took place on account of some punitive action. Deriving support from the observations made in the impugned award by the tribunal, counsel for the respondent submitted that the Tribunal has gone into the said issue threadbare and came to the conclusion that no foundation was laid down by the petitioner either in pleadings or in the evidence or any other material was placed to substantiate the charge of mala fides behind the said transfer of the petitioner. Counsel thus submitted that the order passed by the Tribunal is based on the material placed by the parties on record and the same may not be interfered by this Court as the findings given by the tribunal can neither be termed as illegal, perverse or irrational.
8. I have heard Ld. Counsel for the parties and perused the record.
9. It is a settled position of law that a transfer order, which is passed by the respondent in the administrative exigencies of service should be interfered with by the Court only when it is found by the Court that the same is issued in violation of the statutory rules or the order is passed mala fide or for some personal vendetta.
10. The Apex Court in
11. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary in public interest and for efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally don''t interfere with such orders as a matter of routine, so as to substitute their own decision in preference to that of the employer/management. This position was highlighted by the Apex Court in
12. In a case where transfer is on account of inefficiency or misbehaviour, the same can be made to a post carrying less pay than the pay of the post on which he holds a lien. Similar is the position where a transfer is made on a written request. Where the transfer is otherwise than for inefficiency or misbehaviour or on a written request made by the transferred employee, the protection of pay is ensured.
13. Although, both punitive and malafide transfers amount to victimization and are unfair labour practice. A transfer is said to be punitive if some stigma is attached to the transfer or the transfer is by way of a punishment and malafide when the transfer is visited with some civil consequences.
14. The Apex Court pointed to the fact that stigma or a punishment is attached to a transfer only when transfer has an adverse impact or visits the person concerned with any penal consequences. In this regard in
The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions status, service prospects financially and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
15. The court has limited jurisdiction to interfere in transfer matters as held by the Supreme Court in
In our opinion, the court should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place of the other. He is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day-to-day transfers orders issued by the Government and its subordinate authorities, there will be complete chaos in the administration which not be conducive to Public interest. The High Courts overlooked these aspects in interfering with the transfer orders.
16. In
Transfer of a Government servant appointed to a particular cadre of transferable posts to the other is an incident of service. No Government servant or employee of Public undertaking has legal right for being posted at any particular place. Transfer from one place to another 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 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.
17. The Supreme Court in
The courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation. When, as in this case, the transfer order is issued on administrative grounds the Court cannot go into the expediency of posting an officer at a particular place.
18. The Supreme Court in case
Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the Subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.
19. In case of
The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous considerations without any factual background foundation. In this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the court.
20 The above said views are emboldened by the following authorities as well:
1.
2. Laxmi Narain Mehar v. Union of India and Ors. 1997(2) SLR 383, and
3.
21. Also, it was not only the petitioner who was transferred but there were two more persons who were transferred with the petitioner. In this regard, in
8.The transfer order, which is passed in the present petition, does not only relate to the transfer of the petitioner but also involves several other persons and it is in the nature of a general order of chain transfer. Therefore, no mala fide is rightly alleged by the petitioner. The order also apparently was passed in the administrative exigencies of service. There is no statutory violation committed by the respondent in issuing the aforesaid order of transfer. It is true that guidelines provide that a person should be allowed to be retained at one place within the last three years of his service. But the same is in the nature of a guideline which has to be kept in mind by the administration. It is for the administration to decide applicability of the aforesaid guidelines in the exigencies of administration. When the respondent has decided that for the administrative exigencies of service, service of the petitioner could be best used and utilised by transferring him to Kanpur, in such matter the Court should not and cannot interfere as there is neither any mala fide nor any violation of the statutory rules in the present case. Therefore, the order of transfer issued by the respondent cannot be interfered with.
22. Furthermore, nothing has come on record to prove the mala fide of the respondent apart from mere averments made by the petitioner in his statement that the transfer is a malafide transfer. It is well settled that the plea of mala fide should be proved by bringing on record definite material and cogent evidence in this regard. No mala fide could be deduced on the basis of vague suggestions. There is no reason to read between the lines and come to the conclusion that the impugned order of transfer was punitive or malafide. In this regard, the following observations were made by the Apex Court in
7. After considering the respective contentions of the parties, it appears to us that the appellant has not been able to substantiate that the impugned order of transfer was passed mala fide against him for an oblique purpose and/or for wreaking vengeance against him because respondent 2 was anxious to get rid of him and he seized the opportunity of transferring him from Delhi to Calcutta by transferring Shri Patra back to Orissa from Calcutta. It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set-up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. We are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents in passing the impugned order of transfer. It does not appear to us that the appellant has been moved out just to get rid of him and the impugned order of transfer was passed mala fide by seizing an opportunity to transfer Shri Patra to Orissa from Calcutta. It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. In this case, we are unable to draw any inference of mala fide action in transferring the appellant from the facts pleaded before the Tribunal. It appears that Shri Patra was transferred to Calcutta and after joining the post he had made representation on account of personal hardship. Such representation was considered and a decision was taken to transfer him back to Orissa region. As a result, a necessity arose to transfer an employee to Calcutta to replace Shri Patra. It cannot be reasonably contended by the appellant that he should have been spared and some one else should have been transferred. The appellant has not made any representation about personal hardship to the department. As such there was no occasion for the department to consider such representation. This appeal, therefore, fails and is dismissed but we make no order as to costs. It is, however, made clear that the appellant will be free to make representation to the concerned department about personal hardship, if any, being suffered by the appellant in view of the impugned order. It is reasonably expected that if such representation is made, the same should be considered by the department as expeditiously as practicable.
23. Moreover, the petitioner during his cross examination before the labour court admitted that there were complaints against him and that it was pursuant to the said complaints that he was transferred. Sh SC Gupta deposed as MW-1 that the management transfer an employee in public interest depending upon the nature of complaints. Considering that the petitioner himself admitted in his cross examination that he was transferred pursuant to complaints regarding his work, then it is unimpeachable that the petitioner was not performing his duties diligently. Clearly, such a transfer does not amount to victimization and is in public interest and cannot be said to be a malafide transfer.
24. Also, it is well settled that when a transfer order is made by the employer then the employee so transferred should obey the same and it is no ground that merely because the place where he is transferred is far away and costs more to him, he did not join his duties. In the decision reported as
6. We have perused the record with the help of the learned Counsel and heard the learned Counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.
25. In view of the above discussion, I do not find any infirmity in the award. There is no merit in the present petition, the same is hereby dismissed.
