Writ Petition No.1011 of 2007

30th April, 2008

Petitioner Counsel: Mr. M. V. MOHOKAR
Respondent Counsel: Mr. A. D. MOHGAONKAR

Cases Cited:
Delux Theatres Pvt. Ltd. Vs. Bombay Labour Union, 1992(1) CLR Bom. 256 [Para 20]
Rajendra Roy Vs. Union of India, 1993(1) CLR SC 5 [Para 20]
Arvind Dhande Vs. State of Maharashtra, 1997 SCC (L & S) 1437 [Para 20]
Shamrao Kamble Vs. Deputy Engineer (B & C) Panchayat Samiti, Miraj, 1998(1) Mh.L.J. 109 [Para 20]
Samiran Kumar Mondal (Dr) Vs. Union of India, 2000(III) CLR Cal. 10 [Para 20]
Bhabendra Sharma Vs. State of Assam, 2004 LIC 1552 [Para 20]
Tejshree Ghag Vs. Prakash Purushottam Patil, 2007(5) ALL MR 900 (S.C.)=AIR 2007 SC 2141 [Para 20]
Gujarat Electricity Board Vs. Atmaram, 1989(II) CLR 168 (SC) [Para 22]
Jogendra Prasad Tiwari Vs. FCI, 1992(64) FLR 1013 [Para 22]
Govind Pratap Singh Vs. Managing Director UPSRTC, 1993(1) CLR 700 [Para 22]
Union of India Vs. S. L. Abbas, 1993(II) CLR 168 SC [Para 22]
Dinamoni Vs. District Superintendent of Police, 1994(I) CLR 601 [Para 22]
State of M.P. Vs. S. S. Kourav, 1995(II) LLJ 849 [Para 22]
Ananty Ghaidas Vs. Hydraulic and General Engineers Pvt. Ltd., 1996(II) CLR 65 (Bom. HC DB) [Para 22]
Ramesh Vs. MCD, 1997(II) CLR 54 [Para 22]
B. V. Ramanarayan Vs. SBI Hyderabad, 1997(1) LLJ 1007 [Para 22]
Kamraj T. Vs. Dhgaram Cement Limited, 1998(1) LLJ 989 [Para 22]
Charan Singh Vs. Union of India, 2000(II) CLR 319 [Para 22]
National Hydro Electric Power Corpn. Ltd. Vs. (1) Bhagwan (ii) Shivprakash, 2001(III) CLR 606 SC [Para 22]
Sankari Sarkar Vs. Union of India, 2001(III) CLR 677 (HC Cal.) [Para 22]
Damodar Prasad Vs. RSTC, 2001(III) CLR 866 (HC Raj) [Para 22]
Union of India Vs. Janardhan Debanath, 2004(5) ALL MR 456 (S.C.)=2004(II) CLR 467 [Para 22]
State of U.P. Vs. Gobardhanlal, 2004(5) ALL MR 787 (S.C.)=2004(101) FLR 586 [Para 22]
State of U.P. Vs. Sirayam, 2004(102) FLR 1038 [Para 22]
M. Ameetha Begum Vs. Commissioner, 2005(105) FLR 869 [Para 22]

JUDGMENT

JUDGMENT :- This Petition is filed by a Trade Union as complainant no.1 and by an affected employee/office-bearer as complainant No.2.

2. They allege commission of unfair labour practice under Items (3), (5) and (9) of Schedule-IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (hereinafter to be referred as to the "Act of 1971"), and they seek declaration of unfair labour practice and consequential relief.

3. The Complaint has been decided against the complainants by learned Member, Industrial Court, Nagpur, by judgment and order dated 6.12.2006 against which they have filed this Petition.

4. The complainants allege commission of unfair labour practice against the respondents as collective effect of narrations contained in the body of the complaint, which runs in 11 pages. Grievance is that :-

[i] The order transferring the petitioner from Thermal Power Station, Khaparkheda which is under the control of Thermal Power Station, Zone Koradi to Hydro Power Station, Tillari under Mumbai Hydro Station Zone.

[ii] It is issued in purported exercise of powers and is claimed to be for administrative reasons.

[iii] It is, in fact, actuated by mala fides owing to:

(a) The petitioner no.2 has not completed 30 months at his present posting.

(b) Petitioner No.2 was not liable to be transferred out of Zone as his seniority would be adversely affected.

(c) The transfer is effected though there is no vacancy where he has been transferred.

(d) The transfer is contrary to the recommendations of Expert Committee Report - called "CRISEL".

(e) Petitioner No.2 had complained against Respondent No.4 and sought permission for prosecution under the provisions of Prevention of Corruption Act, which is the real cause of transfer.

[iv] The administration found and held without hearing the petitioner no.2 that he was responsible for making complaints against respondent No.4 as well for creating numerous problems in the Office.

[v] A Note for this is put up on which the decision is taken transferring the petitioner no.2 which is punitive in nature and hence the transfer based on such decision reached without hearing the petitioner no.2, is mala fide.

5. It appears that Respondents 1 to 3 have taken it on themselves to justify order of the transfer, in the written statement filed by them, and hence though respondent no.4 is arrayed as Respondent, her role in the matter of transfer is rendered insignificant.

6. While opposing the Complaint, the Management has taken a stand that :-

[a] The decision to effect the transfer was arrived at on the basis of decision taken on an Office Note which is (Exh.66)/Annexure 11 of the trial Court to the Petition.

[b] The issue of Petitioner no. 2's having made complaints, and those complaints being found false and baseless is one amongst various issues which found place in Exh.66.

[c] Another point on which the transfer is based is that the petitioner no.2 is alleged to have conducted himself in such a manner that he has by spoiling the ambiance created unpleasant atmosphere in the Office which was also clear from communication received from CGM (Generation O & M) Khaparkheda vide his letter dated 17.10.2005.

[d] The petitioner no.2 and one more person Shri. R. D. Gore were transferred along with the posts by way of deployment of their services, which is a need-based administrative decision.

The Respondents, therefore, prayed for dismissal of the Complaint.

7. Parties have brought voluminous documents on record.

8. The crux of the matter turns out to be whether the order to transfer is based on the decision arrived at or in furtherance to the Note (Exhibit 66)/Annexure 11 to this Petition and on account of grounds narrated therein. The limited question which therefore arises is :-

"Whether on account of the reasons incorporated in the said Exh.66, the transfer order would become a mala fide transfer."

9. Documentary and oral evidence was brought before the Industrial Court for considering this limited compass. Therefore, it would not be necessary to deal with the entire gamut of evidence either filed before Industrial Court or before this Court in order to decide and rule upon exact controversy.

10. It would be fruitful to once again look at the allegations of unfair labour practice.

11. It is seen from the evidence on record that in so far as the complaint of unfair labour practice under Item 5 is concerned, any pleading as well evidence, whatsoever, is not brought on record. Moreover, the finding of trial Court on the point of unfair labour practice under Item No.5 which is adverse to the petitioners are not seriously challenged.

12. Item No.9 can be conveniently dealt with first. Item 9 seems to have been incorporated on the foundation that :-

[a] The service conditions include the statutory rules as well as various orders issued from time to time, which, if violated, would amount to breach of "agreement, settlement or award".

[b] The transfer being a punishment in disguise and so imposed without hearing the petitioner no.2.

[c] Failure to observe the rule by transferring those having stay for a longer duration at a particular location.

13. In so far as Item No.3 is concerned, the petitioners' grievance is that the order of transfer is actuated due to mala fides and done at the behest of Respondent No.4 who is aggrieved due to complaints against her submitted by the petitioners, and Office Note- Exh.66 is a conclusive proof of the complainants' allegations.

14. The contents of the complaint and allegations are sought to be proved by the oral evidence of the complainant No.2. The employer has examined one witness, namely, the Deputy Establishment Officer and also placed on record copies of various orders, rules, communications.

15. Respective documents are not disputed. What is disputed is the conclusions emerging from those.

16. The crux of the matter is interpretation of Note Sheet Exh.66/Annexure 11 to the Writ Petition.

17. A mixed question of fact and law arises as to whether, in the premises as generated from that document, the transfer could be considered to be an administrative order or a colourable exercise in disguise of following policy of management and thereby ordering the transfer and hence mala fide.

18. Reading of the said Note Sheet would, therefore, become crucial. The said Note sheet Annexure 11 at Page 106 reveals points, namely :-

(a) The complaint which was received from the petitioner-Union against Respondent No.4 was investigated under the orders of Managing Director by Shri. D. H. Petare, Joint Chief Accounts Officer and he has submitted the findings together with supporting documents and statements recorded by him.

(b) After perusal of the said report, the Chief Manager Finance furnished the said note.

(c) In the said note, he made certain observations :

(i) No cases of financial irregularity or deliberate act or omission of causing loss to the Organization was found.

(ii) The complaints were based on presumptions.

(iii) The complaints were aimed at implicating Respondent No.4 due to personal vendetta for seeking her ouster from Office.

(iv) According to the version of Respondent No.4 S/Shri. R. D. Gore and S. W. Patil (Petitioner No.2) are the persons who have resorted to such allegations by using the platform of the union.

(v) These two persons also tried to bring political pressure by mis-informing Shri. Sunil Kedar, MLA.

(vi) Atmosphere in the Thermal Power Station has been spoiled due to scuffle amongst the staff, allegations and counter-allegations by these persons.

(vii) Similar complaints were made in past by these persons against Deputy Chief Accounts Officer which were found to be incorrect.

(viii) Attempts of fraudulent use of letter heads of certain Union for raising complaint seem to have been done, authorship of which complaints are disowned by the Union concerned.

(ix) Notices of misconduct, making baseless allegations were issued against these two persons by CGM Khaparkheda.

(x) Considering all these matters certain action towards indiscipline may be taken against these two officials.

(xi) Corrective measures to be taken towards certain procedural lapses.

(xii) Letter may be a issued to MLA Shri. Sunil Kedar informing that the matter has been investigated and no financial irregularities were noticed.

(xiii) Two UDCs namely, Shri. Gore and Shri. Patil (Petitioner No.2) be transferred out of Zone to Veer and Bhatghar Hydro Power Stations, along with the posts.

(d) The said Note Sheet has been approved and transfer has been effected.

19. Heard learned Advocates at length. Both the parties have filed their written note of submission.

20. Petitioners have placed reliance on various judgments namely:

(a) Delux Theatres Pvt. Ltd. Vs. Bombay Labour Union (1992(1) CLR Bom. 256).

(b) Rajendra Roy Vs. Union of India and others (1993(1) CLR SC 5).

(c) Arvind Dhande Vs. State of Maharashtra and others (1997 SCC (L & S) 1437).

(d) Shamrao Kamble Vs. Deputy Engineer (B & C) Panchayat Samiti, Miraj and others (1998(1) Mh.L.J. 109).

(e) Samiran Kumar Mondal (Dr) Vs. Union of India and others (2000(III) CLR Cal. 10)

(f) Bhabendra Sharma Vs. State of Assam (2004 LIC Page 1552).

(g) Tejshree Ghag Vs. Prakash Purushottam Patil and Others (AIR 2007 SC 2141 : 2007(5) ALL MR 900 (S.C.)).

21. These judgments are relied upon to urge that any transfer order to urge that any transfer order which would suffer from these defects can be held to lack bona fides and would amount to malice in law. These defects are :-

(a) The power exercised for effecting the transfer of an efficient worker performing public duties is a counter blast to sincere legal action taken by the employee.

(b) The executive powers are exercised without following the principles of natural justice.

(c) Order of transfer could not be supported by Service Rules.

(d) If the transfer is made due to oblique motives and apparently in violation of Rules and without any justification.

(e) Indiscipline is the foundation of transfer, such transfer would be impermissible as it would amount to malice in law since such transfer is in lieu of punishment without opportunity of hearing.

(f) Transfer when sought to be based on disclosed reasons and thus pertain to the year prior to the transfer, such transfer would amount to an order which is not based on sound reasons and there would be no rationale behind and hence such transfer would be mala fide.

(g) The transfer ought not be allowed to use as a weapon of vindication. it ought never to disciplinary proceedings to dismiss with observance of principles of natural justice.

(h) It would be permissible to draw a reasonable inference from the pleadings and antecedent facts and circumstances, however such inference has to be based on strong foundation.

(i) If otherwise transfer is shown to be by way of victimization.

22. In opposition, Respondents have placed reliance on various judgments, namely:

a) 1989(II) CLR 168 (SC) (Gujarat Electricity Board Vs. Atmaram).

b) 1992(64) FLR 1013, Jogendra Prasad Tiwari Vs. FCI.

c) 1993(1) CLR 700, Govind Pratap Singh Vs. Managing Director UPSRTC.

d) 1993(II) CLR 168 (SC), Union of India and others Vs. S. L. Abbas.

e) 1994(I) CLR 601, Dinamoni Vs. District Superintendent of Police.

f) 1995(II) LLJ 849 (State of M.P. and another Vs. S. S. Kourav and others).

g) 1996(II) CLR 65 (Bom. HC DB), Ananty Ghaidas Vs. Hydraulic and General Engineers Pvt. Ltd..

h) 1997(II) CLR 54, Ramesh and others Vs. MCD.

i) 1997 1 LLJ 1007, B. V. Ramanarayan Vs. SBI Hyderabad and others.

j) 1998(1) LLJ 989 (Kamraj T. Vs. Dhgaram Cement Limited.

k) 2000(II) CLR 319, Delhi High Court Charan Singh Vs. Union of India.

l) 2001(III) CLR 606 (SC), National Hydro Electric Power Corpn. Ltd. Vs. (1) Bhagwan (ii) Shivprakash.

m) 2001(III) CLR 677 (HC Cal.), Sankari Sarkar Vs. Union of India.

n) 2001(III) CLR 866 (HC Raj), Damodar Prasad Vs. RSTC and others.

o) 2004(II) CLR 467 : [2004(5) ALL MR 456 (S.C.)], Union of India Vs. Janardhan Debanath.

p) 2004(101) FLR 586 : [2004(5) ALL MR 787 (S.C.)], State of U.P. And others Vs. Gobardhanlal.

q) 2004(102) FLR 1038, State of U.P. Vs. Sirayam.

r) 2005(105) FLR 869, M. Ameetha Begum Vs. Commissioner.

23. These judgments are relied upon to urge that :-

(a) Transfer is an incidence of employment.

(b) Every transfer does not need, postulate or pre-suppose hearing.

(c) The employee does not have a choice in the matter of transfer.

(d) No transfer could be inferred to be actuated with mala fides or passed in violation of the provisions. Case of such violation will have to be made out.

(e) The scope of scrutiny in the matter of order of transfer in the High Court or Tribunal would be extremely limited.

All these citations are relied upon to assert and inform the Court that the broader guidelines on which the scrutiny of the transfer order be done.

QUESTIONS WHICH ARISE :

24. In the present case, the issue on which matters will have to be decided need to be formulated for the sake of convenience which are done as follows :-

(1) Has the complainant/petitioner no.2 proved that the transfer order is issued by the employer by way of victimisation on account of any of the acts of the petitioner no.2 due to his participation in the activities of the Organization of Union ?

(2) Does the complainant No.2 prove that the complaints filed by petitioner No.1 and petitioner no.2 against Respondent No.4 are the only cause of transfer of petitioner no.2 ?

(3) Does the petitioner prove that the transfer order is issued in violation of service conditions ?

(4) Does the transfer adversely affect the conditions of service of the petitioner no.2 ?

(5) Is the transfer order issued in lieu of punishment towards any of his misconduct ?

(6) Does the Management/respondent prove that the transfer order is issued on account of administrative exigency and grounds ?

DISCUSSION

25. On the basis of contents of complaint filed before Industrial Court, oral and documentary evidence brought on record by the petitioners-complainant, and in rebuttal, reply filed by respondents, the respective contentions and facts will have to be tested.

26. Decision on the questions raised in paragraph 24 above will have to be done in the light of averments contained in the complaint filed by the petitioners before the Industrial Court. The copy of Complaint is at page 43 [Annex.3]. Summary of the grievance of the petitioners, on the basis of which they claim that Unfair Labour Practice is engaged in, can be drawn as follows :-

[a] Due to complaints filed against respondent no.4, the transfer order is issued, and petitioner no.2 is victimized.

[Paras 4 and 10, pages 44 and 45]

[b] Union members of Shramik Congress Union, namely N. M. Nachankar and S. S. Barbate, who have longer stay than the petitioner no.2, are retained, while the petitioner no.2 is transferred.

[Paras 6 and 8]

[c] Workload is available at Koradi and work of certain jobs in Accounts Department is given on contract basis.

[Para 11-E]

[d] The transfer will adversely affect seniority of the petitioner no.2.

[para 8]

[e] The Board/Company has no power to "deploy the services of petitioner no.2" and transfer him along with post and hence transfer order is illegal.

[Para 11-A and 11-C]

[f] As per the pattern recommended by CRISIL, a private consultant, which is accepted by the Company, ten posts are required at Khaparkheda and, therefore, petitioner no.2 cannot be transferred.

[Paras 11-B and 11-E]

[g] The transfer order is a punishment in disguise and principles of natural justice are violated.

[para 11-C].

[h] The transfer is incompetent until allocation of services to different subsidiary Companies is done.

[Para 11-D].

27. In order to substantiate all these allegations, the petitioners have examined petitioner no.2 and Shri. Ramesh Gabane, one more employee who is transferred.

28. In the evidence, which is in the shape of affidavit, the petitioner no.2 has reiterated all that he has stated in the complaint. He was cross-examined. He admits in para 20 that he has neither produced any document to show that his name is registered as Chief General Secretary of the Petitioner No.1-Union, nor has he filed any resolution to support his say.

29. He further admitted in para 24 that he has not made any specific allegation against the respondent no.4 that she favours members of other Unions, saying that he did not find it necessary. He also admits that no documents were filed to support this plea.

30. He admits that the transfer order is not issued by respondent nos.3 or 4. He then admits that Nachankar, about whom grievance was made, is not working in any office at Khaparkheda, and also that he does not know staff members working at Khaparkheda prior to his transfer.

31. He states that he does not know if the entire accounts work at Khaparkheda is computerized, and denies that as per the orders of Head Office, two Upper Division Clerks [Accounts] were re-deployed from Khaparkheda, namely one at Veerdhatgar and another at Tillari.

32. He then admitted that he does not know if CRISEL report has been accepted by the Board or not.

33. Another witness, namely Ramesh Harishchandra Gabane, was examined to deny his having complained against other employees.

34. Thus, entire reliance of the petitioner no.2 is on documents relied upon by him and his own testimony.

35. It is seen that petitioner no.2's thrust is on the plea of victimization, lack of power to deploy the post and a decision at Annexure-11, i.e., Exh.66.

36. In so far as the allegations of victimization are concerned, the petitioner no.2's testimony is devoid of any substance and he has failed to prove that he was victimized on account of complaints submitted by him.

37. In so far as the power to transfer along with post is concerned, Annexure-15 is Office Order No.7. The petitioners have not challenged its legality. Petitioners also do not say that the reference to the authority mentioned therein, namely Schedule-I appended to the MSEB Employees Service Regulation read with the Administrative Circular No.1 dated 10th October, 2005, under which deployment is done, is impermissible.

Therefore, sole question, that remains is the effect of Exh.66.

38. It is seen that in Exh.66, various actions are proposed, out of which one is a transfer. Moreover, the fact that workload at Khaparkheda is reduced on account of computerization was put to the petitioner no.2 in cross-examination, and he avoids responding as well denying, saying that he does not know. He does not positively assert in the deposition that in spite of computerization, work of the Accounts Department was adequate enough to warrant need of ten posts. It is further seen that it cannot be conceived that an employee, and that too an employee in the rank of an Upper Division Clerk, would not know that the computerization has been done.

39. Though petitioner no.2 has pleaded in the complaint about the report submitted by CRISEL, he has deposed in cross-examination of his testimony about acceptance, efficacy etc. of report of CRISEL which is a consultant. Moreover, even if its report is accepted, deployment of staff depending on need and efficacy would always be a matter of administrative decision depending on need and emergency. It is nowhere even suggested that manpower was not required at Hydro Power Zone.

40. Though petitioner no.2 has denied the contents of Exh.66, he has not disputed that the Chief General Manager [O & M], Khaparkheda, had made a report against him and even gave him a Show-cause-Notice for his having spoiled atmosphere at Khaparkheda.

41. In the background that the petitioner no.2 does not dispute that there is no work available where the posts are deployed, he is trying to take benefit of the fact that his said deployment has preceded the unpleasant episode of his having submitted a complaint against respondent no.4, as well his being blamed for spoiling atmosphere in the office. This coincidence cannot be co-related to urge that the antecedents are the only ground of transferring him, and administrative need is just a camouflage.

42. The power to transfer by way of deployment is to be presumed as administrative postulate. Moreover, when contrary is not proved, then very heavy burden did lie on the employee to urge that the said power is a colourable exercise.

Once the need of deployment is proved, just because Exh.66 contains a recommendation of deployment shall not render the deployment malafide. It would have been very easy and convenient for the management to avoid this coincidence. Because this sophistication of avoiding the coincidence is not shown, it would not render the decision malafide. Preponderance of existence of administrative exigency can be drawn. Petitioners have failed even to suggest anything to the contrary.

43. The colourability in the present case could have been filled with the shade of malafides had the complainant proved two allegations made by him, namely [1] that he was being victimized due to complaints submitted by him against respondent no.4, and [2] that office-bearers of other Unions being given a favourable treatment.

44. Petitioner no.2 has failed to prove favourable treatment to office-bearers of other Unions for want of particulars, whatsoever, in that regard.

45. In so far as allegations against respondent no.4 are concerned, those pertain to a conveyance bill towards taxi, lodging received, location or stay therein were not admitted or proved. In fact, it was a trivial matter and closed as not proved.

46. In this situation, petitioner no.2's claim that he was being victimized, as he made complaints against respondent no.4 becomes a matter of sole testimony without any evidence of surrounding circumstances as to why the version of the petitioner no.2 should be believed as a gospel truth. In these premises, the facts, which would have darkened his shade of malafides, are totally absent in the present case and the imputations turn out to be allegations without support of evidence, whatsoever.

47. The administrative actions to be shown malafide are required to be shown as illegal or otherwise vindictive by way of victimization. The petitioner no.2 has failed to bring his case within the compass of precedents relied upon by him.

48. It is admitted that so far final allocation of employees to each newly formed Company is not finalized. Inter se seniority ranking too is not decided. In this background, the transfer impugned cannot be blamed to adversely affect the conditions of service.

49. All questions formulated by this Court in Para 24 are, therefore, liable to be answered against the petitioners and in favour of the employer.

50. The order of transfer is, therefore, liable to be regarded as administrative action. The petitioner no.2 had failed to prove commission of Unfair Labour Practice by the respondents. The Judgment impugned cannot be faulted. Just because the petitioner no.2 has fought the case with urge and vigour will not fill in the gaps of evidence which he was required to and ought to have proved.

51. In the result, petition does not merit interference. Rule is discharged. In the circumstances, parties are directed to bear own costs.

Petition dismissed.