Selvaraj & Ors. v. Tamil Nadu State Transport Corporation Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30..01..2008CORAMTHE HONOURABLE MR. JUSTICE K. CHANDRUWrit Petition No. 22326 and 22327 of 2006 and 35828 of 2007andM.P.Nos. 1 of 2007 in W.P. Nos. 22326 and 22327 of 2006 and M.P. Nos. 1and 2 of 2007 in W.P. No. 35828 of 2007Selvaraj .. Petitioner in W.P. No. 22326 of 2006K. Vijayakumar .. Petitioner in W.P. No. 22327 of 2006Marimuthu .. Petitioner in W.P. No. 35828 of 2007 Vs.1.Tamil Nadu State Transport Corporation Ltd.Rep. by its General ManagerChennimalai RoadErode Region, Erode. .. R in W.P. Nos. 22326 & 22327 of 20062.Tamil Nadu State Transport Corporation (Kovai) Ltd.Rep. by its General ManagerCoimbatore Erode DivisionErode .. R1 in W.P. No. 35828 of 20073.Shajahan Branch SecretaryLabour Progressive FederationTamil Nadu State Transport Corporation Ltd. DharapuramErode District... R2 in W.P. No. 35828 of 2007 W.P. Nos. 22326 and 22327 of 2006 filed under Article 226 of theConstitution of India for the issuance of writ of Certiorari calling forthe records relating to the order Pa. No. 2125/P3/PaPi.1/TNSTC/Kovai/ER/06dated 07.7.2006 of the respondent and quash the same. W.P. Nos. 35828 of 2007 filed under Article 226 of theConstitution of India for the issuance of writ of Certiorarified Mandamuscalling for the records of the first respondent relating to Pa.No.336/B1/Papi.1/TNSTC/Kovai/E.Ma/07 dated 19.11.2007 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners in : Mr. D. Hari Paranthaman inW.P. Nos. 22326 & 22327 of 2006For Petitioner : Mr. P. Srinivasin W.P. No. 35828 of 2007For Respondents : Mr. G. MunirathnamC O M M O N O R D E RHeard Mr. D. Hari Paranthaman, learned counsel appearing for thepetitioners in W.P. Nos. 22326 and 22327 of 2006, Mr. P. Srinivas, learnedcounsel for the petitioner in W.P. No. 35828 of 2007 and Mr. G.Munirathnam learned counsel representing the respondent Corporation andperused the records.2.W.P. No. 35828 of 2007 was filed by a Conductor working in in therespondent Corporation challenging the order of transfer dated 19.11.2007transferring the petitioner from Dharapuram Branch to Kavunthapadi Branchboth situated in the Erode District.3.When the matter came up for admission and since heavy reliancewas placed upon the earlier interim order passed in W.P. Nos. 22326 and22327 of 2006, those two writ petitions were also directed to be postedfor hearing along with the writ petition. However, Mr. D. HariParanthaman, learned counsel appearing for the petitioner in those twowrit petitions objected that his cases should not be heard along with thiswrit petition since his writ petitions are of the year 2006 and as oldmatters are still pending, this Court should not pass orders on the writpetitions of the year 2006.4.However, when these matters were listed, Mr. G. Munirathnam,learned counsel appearing for the respondent Corporation stated that hehad already filed counter affidavit in those two old matters even as earlyas September 2006 and for reasons not known to him, these matters were notlisted and prayed for early disposal and in order to have an uniformity,all the three matters should be disposed of together. 5.It was thereafter, Mr. D. Hari Paranthaman, learned counsel forthe petitioners in W.P. Nos. 22326 and 22327 of 2006 argued that these twowrit petitions were also against similarly placed transport workmen andrelating to transfer and since the transfer had emanated due to mala fide,the orders are necessarily to be set aside. The learned counselsubmitted that the two petitioners were activists of the Anna Trade Unionbelonging to the opposition party in the State and since they wereinvolved in the election held for the Tamil Nadu Assembly in the year https://hcservices.ecourts.gov.in/hcservices/ 2006, at the instance of the present ruling party, the respondent hastransferred the petitioner in W.P. No. 22326 of 2006 from Dharapuram toKavunthapadi on the alleged administrative ground whereas no suchadministrative exigencies arise for the transfer. In the case ofpetitioner in W.P. No. 22327 of 2006, he has been transferred fromDharapuram to Sathyamangalam. 6.It is an admitted fact by both sides that the petitioners wereworkmen within the meaning of Section 2(s) of the Industrial DisputesAct, 1947 [for short, 'I.D. Act'] and that if it is a victimisation fortheir legitimate trade union activities, they have a remedy by way offiling dispute before the appropriate Labour Court constituted under theI.D. Act. It is also an admitted fact that under the Certified StandingOrders applicable to workmen, there is a power to transfer workmen fromone branch to another and that in the present case, the transfer was onlywithin the District, viz., Erode District. 7.In the counter affidavit dated 01.9.2006 filed on behalf of therespondent Corporation, it is stated that both the petitioners Selvarajand Vijayakumar are working in the said branch since 2001 and that thetransfer was made only on administrative grounds and there was no malafide or victimisation in the said order of transfer.8.However, Mr. D. Hari Paranthaman contended that it has become thepractice in the Transport Corporation to transfer office bearers of theTrade Union having allegiance to the opposition party and, therefore, sucha move should be condemned. Such a sweeping allegation is notsubstantiated by any specific pleadings and it is not stated as to, onwhose orders the respondents are acting. On the contrary, the respondentshave filed a counter affidavit refuting such a contention made by thelearned counsel for the petitioners. The learned counsel stated that hisargument is solely based upon mala fides on the part of the respondents.9.The Supreme Court in more than one occasion, while dealing withthe case of transfer, has set standards with reference to the proof ofmala fide in the matter of transfer. In the decision relating toE.P.Royappa vs. State of Tamilnadu reported in 1974 (4) SCC 3, the SupremeCourt in paragraph 92 of the judgment has held as follows:Para 92: ".... The Court would, therefore, be slow to draw dubiousinferences from incomplete facts placed before it by aparty, particularly when the imputations are grave and theyare made against the holder of an office which has a highresponsibility in the administration. Such is the judicialperspective in evaluating charge of unworthy conduct againstministers and other high authorities, not because of anyspecial status which they are supposed to enjoy, nor becausethey are highly placed in social life or administrative setup-these considerations are wholly irrelevant in judicial https://hcservices.ecourts.gov.in/hcservices/ approach-but because otherwise, functioning effectivelywould become difficult in a democracy. It is from thisstandpoint that we must assess the merits of the allegationsof mala fides made by the petitioner against the secondrespondent." 10.Likewise, in M.Sankaranarayanan, IAS vs. State of Karnataka andothers reported in (1993) 1 SCC 54, the Supreme Court, in paragraph 12 ofthe judgment, observed as follows:Para 12:".... It may not always be possible to demonstrate malice infact with full and elaborate particulars and it may bepermissible in an appropriate case to draw reasonableinference of mala fide from the facts pleaded andestablished. But such inference must be based on factualmatrix and such factual matrix cannot remain in the realm ofinsinuation, surmise or conjecture. In the instance case,we are unable to find that there are sufficient materialsfrom which a reasonable inference of malice in fact forpassing the impugned order of transfer can be drawn." 11.By no stretch of imagination, the petitioners had dischargedtheir responsibility in terms of the standard set forth by the SupremeCourt in proving the question of mala fide. In fact, in a recentjudgment rendered by M. Katju, J. reported in (2007) 8 SCC 150 [Mohd.Masood Ahmad v. State of U.P.], the Supreme Court dealt with the case of atransfer emanating from the letter of a Member of Legislative Assemblyand paragraph 8 of the said judgment may be usefully extracted below:Para 8:"Learned counsel for the appellant submitted that theimpugned transfer order of the appellant from Muzaffarnagarto Mawana, District Meerut was made at the instance of anMLA. On the other hand, it has been stated in the counter-affidavit filed on behalf of Respondents 1 and 2 that theappellant has been transferred due to complaints againsthim. In our opinion, even if the allegation of the appellantis correct that he was transferred on the recommendation ofan MLA, that by itself would not vitiate the transfer order.After all, it is the duty of the representatives of thepeople in the legislature to express the grievances of thepeople and if there is any complaint against an official theState Government is certainly within its jurisdiction totransfer such an employee. There can be no hard-and-fastrule that every transfer at the instance of an MP or MLAwould be vitiated. It all depends on the facts andcircumstances of an individual case. In the present case, wesee no infirmity in the impugned transfer order." https://hcservices.ecourts.gov.in/hcservices/

12.In this context, it is necessary to refer to the decision of theSupreme Court reported in 2004 (7) SCC 405 [State of U.P. v. Siya Ramand another] wherein in paragraph 5, it was observed as follows:-Para 5:"The High Court while exercising jurisdiction under Articles226 and 227 of the Constitution of India had gone into thequestion as to whether the transfer was in the interest ofpublic service. That would essentially require factualadjudication and invariably depend upon peculiar facts andcircumstances of the case concerned. No Government servantor employee of a public undertaking has any legal right tobe posted forever at any one particular place or place ofhis choice since transfer of a particular employee appointedto the class or category of transferable posts from oneplace to other is not only an incident but a condition ofservice, necessary to in public interest and efficiency inthe public administrative. Unless an order of transfer isshown to be an outcome of mala fide exercise or stated to bein violation of statutory provisions prohibiting any suchtransfer, the Courts or the tribunals normally cannotinterfere with such orders as a matter of routine, as thoughthey were appellate authorities substituting their owndecision for that of the employer/management, as againstsuch orders passed in the interest of administrativeexigencies of the service concerned. This position washighlighted by this Court in National Hydroelectric PowerCorpn. Ltd. v. Shri Bhagwan". 13.Further, the Supreme Court in yet another decision reported in2004 (11) SCC 402 (State of U.P. v. Gobardhan Lal, in paragraph 7,observed as follows:-Para 7:"It is too late in the day for any Government servant tocontend that once appointed or posted in a particular placeor position, he should continue in such place or position aslong as he desires. Transfer of an employee is not only anincident inherent in the terms of appointment, but alsoimplicit as an essential condition of service in the absenceof any specific indication to the contra, in the lawgoverning or conditions of service. Unless the order oftransfer is shown to be an outcome of a mala fide exerciseof power or violative of any statutory provision (an Act orrule) or passed by an authority not competent to do so, anorder of transfer cannot lightly be interfered with as amatter of course or routine for any or every type ofgrievance sought to be made. Even administrative guidelinesfor regulating transfers or containing transfer policies atbest may afford an opportunity to the officer or servant https://hcservices.ecourts.gov.in/hcservices/ concerned to approach their higher authorities for redressbut cannot have the consequence of depriving or denying thecompetent authority to transfer a particular officer/servantto any place in public interest and as is found necessitatedby exigencies of service as long as the official status isnot affected adversely and there is no infraction of anycareer prospects such as seniority, scale of pay and securedemoluments. This Court has often reiterated that the orderof transfer made even in transgression of administrativeguidelines cannot also be interfered with, as they do notconfer any legally enforceable rights, unless, as noticedsupra, shown to be vitiated by mala fides or is made inviolation of any statutory provision".14.In the light of the above, all the three writ petitions aremisconceived and devoid of merits and accordingly, they stand dismissed.Interim orders already granted in W.P. Nos. 22326 and 22327 of 2006 willstand vacated. No costs. Connected Miscellaneous Petitions are closed.griSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo,1.The General Manager Tamil Nadu State Transport Corporation Ltd.Chennimalai Road,Erode Region, Erode. 2.The General Manager Tamil Nadu State Transport Corporation (Kovai) Ltd.Coimbatore Erode DivisionErode 3.The Branch SecretaryLabour Progressive FederationTamil Nadu State Transport Corporation Ltd. Dharapuram,Erode District.+2 ccs to Mr.D.Hariparanthaman, Advocate Sr.Nos.4519,4518.+1 cc to Mr.P.Srinivas, Advocate Sr.No.4661.+1 cc to Mr.G.Muniratnam, Advocate Sr.No.4274.DM(CO)DCP/12.2W.P. Nos. 22326 & 22327 of 2006 &W.P. No. 35828 of 2007