T.Mookiah v. Tamil Nadu State Transport Corporation (Coimbatore) Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07.07.2011CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NOs.16199 and 16200 of 2011andM.P.Nos.1,1,2 and 2 of 2011T.Mookiah.. Petitioner in W.P.No.16199 of 2011N.Viswanatham.. Petitioner in W.P.No.16200 of 2011Vs.Tamil Nadu State Transport Corporation (Coimbatore) Ltd.,rep by its General Manager,Mettupalayam Road,Coimbatore-641 043... Respondent in both writ petitions W.P.Nos.16199 and 16200 of 2011 have been preferred under Article226 of the Constitution of India praying for the issue of a writ ofcertiorari to call for the records relating to the order passed bythe respondent in his proceedings No.2058/E3P/52P/Pathu1/Tha.A.Po.Ka(Ko)/2011 dated 2.7.2011 insofar as the petitionersare concerned and to quash the same.For Petitioners : Mr.K.ElangoFor Respondent : Mr.G.MuniratnamCOMMON ORDERBoth the writ petitioners are conductors employed by therespondent State owned Transport Corporation having headquarters atCoimbatore. They have come forward to file the present writpetitions challenging an order dated 2.7.2011 wherein and by whichthe petitioner in the first writ petition was transferred fromUppilipalayam (at Coimbatore) to Ooty Depot-2 and that thepetitioner in the second writ petition was transferred from Sungam-1 to Kothagiri. It was stated in the said order that the transfershave been made for administrative reasons. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioners contended that the transfers have beenmade mala fide as they were the activists of the trade unionaffiliated to DMK party. After the advent of the new Government, byway of victimisation they have been transferred. It is also statedthat the trade union having affiliation to the ruling party atpresent, asked them to become their members. When they refused, attheir instance the transfers have been made. It was further statedthat while the petitioner in W.P.No.16199 of 2011 was having heartproblem, the petitioner in the second writ petition was a protectedworkman in terms of Section 33(3) of the Industrial Disputes Act.It was also stated that the order of transfer will amount to unfairlabour practice prohibited under Section 25(t) of the I.D. Act3.However, this court is not inclined to accept the saidplea. The allegations of mala fide are too vague to be entertainedby this court. It is also an admitted case that the certifiedStanding Order applicable to the respondent Corporation providesfor transfer. The question of invoking Section 33(3) will ariseonly when there is dispute pending. Even in such case only whenthere is alteration of service condition, the said provision getsattracted. 4.In this context, it is necessary to refer to thefollowing judgments of the Supreme Court. The Supreme Court inE.P.Royappa Vs. State of Tamilnadu reported in 1974 (4) SCC 3 inparagraphs 91 and 92 had observed as follows: "91....The only question before us is whetherthe action taken by the respondents includes anycomponent of mala fides; whether hostility andmalus animus against the petitioner were theoperational cause of the transfer of thepetitioner from the post of Chief Secretary.92. Secondly, we must not also overlook thatthe burden of establishing mala fides is veryheavy on the person who alleges it. Theallegations of mala fides are often more easilymade than proved, and the very seriousness ofsuch allegations demands proof of a high order ofcredibility. Here the petitioner, who was himselfonce the Chief Secretary, has flung a series ofcharges of oblique conduct against the ChiefMinister. That is in itself a ratherextraordinary and unusual occurrence and if thesecharges are true, they are bound to shake theconfidence of the people in the politicalcustodians of power in the State, and therefore,the anxiety of the Court should be all thegreater to insist on a high degree of proof. Inthis context it may be noted that topadministrators are often required to do actswhich affect others adversely but which arenecessary in the execution of their duties. These https://hcservices.ecourts.gov.in/hcservices/ acts may lend themselves to misconstruction andsuspicion as to the bona fides of their authorwhen the full facts and surrounding circumstancesare not known. The Court would, therefore, beslow to draw dubious inferences from incompletefacts placed before it by a party, particularlywhen the imputations are grave and they are madeagainst the holder of an office which has ahigh responsibility in the administration. Suchis the judicial perspective in evaluating chargeof unworthy conduct against ministers and otherhigh authorities, not because of any specialstatus which they are supposed to enjoy, norbecause they are highly placed in social life oradministrative set up—these considerations arewholly irrelevant in judicial approach—butbecause otherwise, functioning effectively wouldbecome difficult in a democracy. It is from thisstandpoint that we must assess the merits of theallegations of mala fides made by the petitioneragainst the second respondent.5.Further, the Supreme Court in M.Sankaranarayanan, IAS Vs.State of Karnataka and others reported in (1993) 1 SCC 54 inparagraph 12 had observed as follows:12. After considering the respectivecontentions of the learned counsels appearing forthe parties, it appears to us that the appellanthas not been able to lay any firm foundationwarranting a finding that the impugned order oftransfer was passed mala fide and/or for anoblique purpose in order to punish the appellantand/or to humiliate him. The pleadings of theappellant before the Central AdministrativeTribunal only indicate that some of hissuggestions in the matter of posting of seniorbureaucratic officers of the State had not beenaccepted by the present Chief Minister of theState. Such facts alone do not constitute anyfoundation for a finding that because theappellant was not agreeable to oblige the ChiefMinister by accepting all his suggestions andputting up notes to that effect, he had incurredthe displeasure of the Chief Minister and theimpugned orders had been passed not onadministrative exigencies but only to malign theappellant and to humiliate him. It may not alwaysbe possible to demonstrate malice in fact withfull and elaborate particulars and it may bepermissible in an appropriate case to drawreasonable inference of mala fide from the facts https://hcservices.ecourts.gov.in/hcservices/ pleaded and established. But such inference mustbe based on factual matrix and such factualmatrix cannot remain in the realm of insinuation,surmise or conjecture. In the instance case, weare unable to find that there are sufficientmaterials from which a reasonable inference ofmalice in fact for passing the impugned order oftransfer can be drawn. It is an admitted positionthat the Chief Secretary and the Chief Ministerhad differences of opinion on a number ofsensitive matters. If on that score, the Cabinetand the Chief Minister had taken a decision torelieve the appellant from the post of ChiefSecretary and post a very senior officer of theirconfidence to the post of Chief Secretary, itcannot be held that such decision is per seillegal or beyond the administrative authority.The position in this regard has been wellexplained in Royappa case1 by this Court.6.Futher, the Supreme Court in State of U.P. Vs. Siya Ramand another reported in 2004 (7) SCC 405 in paragraph 5 hadobserved as follows.5.The High Court while exercising jurisdictionunder Articles 226 and 227 of the Constitution ofIndia had gone into the question as to whetherthe transfer was in the interest of publicservice. That would essentially require factualadjudication and invariably depend upon peculiarfacts and circumstances of the case concerned. Nogovernment servant or employee of a publicundertaking has any legal right to be postedforever at any one particular place or place ofhis choice since transfer of a particularemployee appointed to the class or category oftransferable posts from one place to other is notonly an incident, but a condition of service,necessary too in public interest and efficiencyin the public administration. Unless an order oftransfer is shown to be an outcome of mala fideexercise or stated to be in violation ofstatutory provisions prohibiting any suchtransfer, the courts or the tribunals normallycannot interfere with such orders as a matter ofroutine, as though they were appellateauthorities substituting their own decision forthat of the employer/management, as against suchorders passed in the interest of administrativeexigencies of the service concerned. Thisposition was highlighted by this Court inNational Hydroelectric Power Corpn. Ltd. v. ShriBhagwan 1. https://hcservices.ecourts.gov.in/hcservices/

7.In the light of the above, both the writ petitions willstand dismissed. However, there will be no order as to costs.Consequently, connected miscellaneous petitions stand closed. Sd/ Asst. Registrar/true copy/Sub Asst.RegistrarvvkToThe General Manager,Tamil Nadu State Transport Corporation (Coimbatore) Ltd.,Mettupalayam Road,Coimbatore-641 043.2 ccs To Mr.K.Elango, Advocate, SR.40282, 402672 cc To Mr.G.Munirathinam, Advocate, SR.39922, 388211 cc To The Government Pleader, SR.40138W.P.NOs.16199 and 16200 of 2011TAM (CO)RH (22.7.11)