R.Mohanraj v. Union of India

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 25/07/2011C O R A MTHE HONOURABLE MR.JUaSTICE S.MANIKUMARWrit Petition (MD)No.7889 of 2011andM.P.(MD)No.1 of 2011R.Mohanraj ...PetitionerVs1.Union of India, Represented by its Secretary to Government Department of Company Affairs, New Delhi.2.The Managing Director Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Railway Station New Road, Kumbakonam – 612 001.3.P.Pandian Managing Director Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Kumbakionam.4.The Branch Manager, Karur Depot-I, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Tiruchirapalli Region, Karur. ...RespondentsPetition filed under Article 226 of the Constitution of India prayingfor the issuance of a writ of Certiorari, calling for the recordspertaining the order of the 2nd respondent in Ref.Tha.A.Po.Ka/Kumba/Ma VaMey/862/11 dated 01.07.2011 and consequential relieving order of the 4threspondent in Ref.Tha.A.Po.Ka/Kilai Karur-I/E1/No.1166 dated 07.07.2011 andquash the same. For petitioner : Mr.A.RahulFor respondent No.2 to 4: Mr.B.Pugulenthi Spl.Govt.PleaderFor Respondent No.1: Mr.R.Veludoss, CGSCO R D E R Challenge in the writ petition is to an order, dated 01.07.2011,transferring the petitioner from Branch-I, Karur, Tiruchi Regiion toParamakudi Branch, Karaikudi Region. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Assailing the correctness of the order and on the pleadings,learned counsel for the petitioner submitted that the petitioner joined theservice of Tamil Nadu State Transport Corporation (Kumbakonam Division II)Ltd., Periyamilaguparai, Tiruchirapalli, as a Driver in the year 1993. Heserved in various places within the jurisdiction of the said Corporation.Finally, he was transferred to Karur I Depot of the said Corporation. Itis his further submission that Tamil Nadu State Transport Corporation(Kumbakonam Division II) Ltd., is a Company registered under the CompaniesAct. It is also submitted that his seniority, promotional opportunitiesand other service benefits had been maintained only within the saidCorporation. He further submitted that by the Gazette Notification in OrderS.No.1477(E), dated 30.12.2003 of the 1st respondent, Tamil Nadu StateTransport Corporation (Kumbakonam Division II) Ltd., Tiruchirapalli, andtwo other Corporations, namely, Tamil Nadu State Transport Corporation(Kumbakonam Division III) Ltd., Karaikudi and Tamil Nadu State TransportCorporation (Kumbakonam Division IV) Ltd., were amalgamated with the TamilNadu State Transport Corporation (Kumbakonam Division I) Ltd., having itsRegistered Office at Kumbakonam. The said amalgamation was made as per theprovisions of the Companies Act, 1956. Section 2(b) of the Amalgamationorder, 2003, defines, “dissolved companies” and the same would mean, TamilNadu State Transport Corporation (Kumbakonam Division II) Ltd., Tamil NaduState Transport Corporation (Kumbakonam Division III) Ltd., Tamil NaduState Transport Corporation (Kumbakonam Division IV) Ltd. Clause 2(c)defines 'resulting company” as Tamil Nadu State Transport Corporation(Kumbakonam Division I) Ltd. After the amalgamation of the aforesaid fourCorporations, a new Company in the name of Tamil Nadu State TransportCorporation (Kumbakonam Division I) Ltd., was formed. Clause 9 of theAmalgamation Order, 2003 deals with conducting of service of the existingofficers and other employees of the dissolved companies. The saidprovisions clearly protects in the interest of the workers of dissolvedcompany. The relevant portion of Clause 9 is extracted as below:-“The seniority of all employees other than officersas it existed in the respective dissolved companiesimmediately before the appointed date shall bemaintained, implying that seniority, promotionalopportunities and transfer among the employees uptoSupervisory level shall remain protect even afteramalgamation in the resulting company in respect ofemployees on role at the time of issue of this order.The employees recruited thereafter shall be transferredwithin the jurisdiction of resulting company. Thepromotions from Supervisory Cadre to Managerial Cadreshall however be as per seniority within the resultingcompany. The seniority among the managerial cadre shallbe recast within the resulting company on merger.”3.According to him, the seniority, promotional opportunities andtransfer among the employees of the dissolved companies shall be protectedand employees upto supervisory level, shall be transferred within thejurisdiction of the dissolved companies. He also submitted that he is anemployee of the dissolved company, namely, Tamil Nadu State TransportCorporation (Kumbakonam Division II) Ltd., Tiruchirapalli, and that he isliable to be transferred only within the jurisdiction of the said dissolvedcompany and should be within Trichy Region. Therefore, he cannot betransferred outside Trichy Region, as per Amalgamation Order, dated https://hcservices.ecourts.gov.in/hcservices/

330.12.20003 of the 1st respondent.4.He further submitted that in violation of the abovesaid Amalgamationorder, the petitioner has been transferred by the impugned order of the 2ndrespondent from Karur-I Depot, Trichy Region to Paramakudi Depot ofKaraikudi Region. On the basis of the impugned order of the 2ndrespondent, dated 01.07.2011, the 4th respondent has also passed theimpugned relieving order, dated 07.07.2011. It is his further contentionthat the impugned order was passed not due to administrative exigency andthat the same was made in mala fide exercise of powers by the 2ndrespondent. He further submitted that he is a Member of 'Pattali ThozhirSangam', affiliated to one of the opposite parties, namely, “Pattali MakkalKatchi” The office bearers of ruling party made complaints against thepetitioner to the effect that his presence within the Karur would not beconducive for upcoming Panchayat elections, since he is one of the activemember of 'Pattali Thozhir Sangham'. Therefore, he made a detailedrepresentation on 12.07.2011, to the Secretary to Government, TransportDepartment and to the 2nd respondent.5. Learned counsel further submitted that he is employed as lowerlevel post, Driver. He has been rendering work sincerely without anyblemish on record. While so, in order to victimize and to prevent himfrom doing Trade Union activities, the impugned order of transfer has beenpassed. The impugned order of transfer is illegal, arbitrary, violativeof Articles 14 and 21 of the Constitution of India. His transfer has beenmade in total contravention of Tamil Nadu State Transport Corporation(Kumbakonam Division II) Ltd., Tamil Nadu State Transport Corporation(Kumbakonam Division III) Ltd., Tamil Nadu State Transport Corporation(Kumbakonam Division IV) Ltd., and Tamil Nadu State Transport Corporation(Kumbakonam Division I) Ltd., Amalgamation Order, 2003 published in theUnion Gazette dated 30.12.2003. 6.It is his further contention that Paramakudi Depot is situated 250k.m., away from Karur Town. He has to travel 7 hours to reach Paramakudifrom Karur. There is no administrative necessity, which warrant histransfer to Paramakudi Depot from Karur. He further submitted that thereare as many as 30 juniors, who have not been disturbed. Further, alreadythere is a shortage of Drivers in Karur-I Depot due to which all theDrivers including the petitioner work, over time every day. Therefore, histransfer is totally unwarranted.7.According to learned counsel, the action of the 2nd respondentamounts to unfair labour practice. The 2nd respondent cannot curtail thepetitioner's legitimate trade union activities and take action againstworkmen, for their trade union activities or for expressing their concernin the interest of workmen. Hence, the action of the 2nd respondent is inviolation of Clause 7 of 5th Schedule r/w Section 29(ra) of the IndustrialDisputes Act. It is his further contention that the Commissioner ofLabour, Madras, has issued Certified Draft Common Standing Orders to allthe State Transport Corporation owned by Government of Tamil Nadu, by hisorder dated 05.09.1995. Clause 28 of Common Certified Standing Order dealswith transfer of employees. The said Clause clearly states that everyemployee be liable to be transferred in the same category or grade from oneDepot/Branch, place of work to another of the same Corporation providedthat the pay and services of the workmen in the category or grade are notadversely affected. According to learned counsel, the impugned order oftransfer is in violation of Clause 28 of the Common Certified Standing https://hcservices.ecourts.gov.in/hcservices/ 4Order, dated 05.09.1995, issued by the Commissioner of Labour.8.It is his further contention that transfer to Paramakudi Depot woulddefinitely affect his seniority and promotional opportunity. If he joinsat Paramakudi Depot, his name would be included in the seniority list, as aJunior most person of all the drivers working at Paramakudi Depot.Therefore, on this ground also, the impugned order is liable to be setaside. 9.Originally, 21 Transport Corporations functioned in Tamil Nadu andthat the same were amalgamated into 7 Transport Corporation. During thesaid process of amalgamation, the view of the Trade Unions were also heardby the 1st respondent. Since it was represented by the Trade Union that theCorporations may use the amalgamation as a tool to victimize the employeesby transferring to other Regions and taking into account the said view, the1st respondent rightly incorporated Clause 9 in the Amalgamation Order,protecting the interest of workers within the dissolved companies. In thiscontext, he placed reliance on an order passed by a Division Bench of thisCourt in W.A.Nos.1455 to 1457 of 2007, dated 04.02.2008 where, reliance wasplaced on the order of a learned single Judge made in W.P.(MD)Nos.5322,3257 and 4767 of 2007, dated 11.09.2007. Learned counsel for thepetitioner further submitted that the said order need not be applied to thefacts of this case, as the order pertaining to amalgamation has not beenadverted to in the order of learned single Judge. 10.The petitioner is being a “running staff” is practically on themove daily. Therefore, the transfer of staff like the petitioner is nothingbut a vindictive act. No administrative exigency and public interest isinvolved. The impugned transfer orders does not show any administrativeexigencies or public interest as shown. It is his further submission thatsuch order of transfer made on political or other consideration is illegal.For the abovesaid reasons, he prayed to set aside the impugned order oftransfer. 11.The 4th respondent has filed a counter affidavit contentinginteralia that the petitioner is a driver and his Staff Number is 93DR262/5414. The petitioner was working as a Driver in TNSTC Kumbakonam,Karur I Branch, has been transferred from Karur I Branch to TNSTCKumbakonam Limited, Paramakudi Depot, by order dated 01.07.2011. He wasrelieved from Karur-I Branch, by order dated 07.07.2011. He furthersubmitted that there is a specific clause in the appointment order that hecan be transferred to any operation area within the jurisdiction of theCorporation. The respondent is having 4th regions and operating largenumber of fleet services and owes serious responsibilities to serve thepublic in a safe and comfortable manner. In order to carry out and secureefficiency of service and in the interest of administrative convenience,the petitioner has been transferred from Karur to Paramakudi. The termsand service conditions and the nature of his appointment enable therespondent Corporation to transfer the petitioner from one depot to anotherdepot. It is further submitted that the TNSTC Trichy, Karaikudi andPudukottai regions were amalgamated with TNSTC, Kumbakionam Ltd., in theyear 2004 and the Standing Orders of amalgamations were framed. TheStanding Orders for the employees of the Cholan Roadway Corporations Ltd.,Kumbakonam, is certified by the appellant authority under the IndustrialEmployment (Standing Orders Act, 1946). Clause 22 of the standing ordersstate as follows:- https://hcservices.ecourts.gov.in/hcservices/ 5“Every workman shall normally be liable to betransferred in the same category and grades therein withinthe province of the Corporation. The workman transferredeligible for Travelling Allowance rules of the Corporation.”12.It is also submitted that the petitioner is transferred on the samecategory and grade and he is no way affected by the transfer orders. Everyworkman is liable to be transferred in the same category and grade thereinwithin the province of the Corporation. The averments of the petitionerthat an employee can be transferred only within the region does not ariseas per the standing orders and as per the terms and conditions ofamalgamation. The apprehension of the petitioner that he would be placedon the junior most level at Paramakudi Depot is baseless. The writpetitioner is working as a driver and now he is upgraded as a selectiongrade driver. The list provided by the writ petitioner, as seniority list,is only a list of the employees, working at Karur Branch, alone and it isnot the seniority list, as claimed by the writ petitioner. The senioritylist shall be finalized only by the Managing Director of the Corporation,at the time of promotion and his promotion opportunities would not beaffected by way of this transfer.13.The learned Special Government Pleader further submitted that theallegations of mala fides are vague and made for the purpose of this writpetition and there is no iota of truth in the allegations levelled by thewrit petitioner. Allegations of the mala fides are not supported by anymaterials. It is the further submission of the respondents that even inthe order of appointment, it is stated that the employee can be transferredand the Management has the power to transfer the employee to anywherewithin the Corporation. The petitioner has also accepted the condition atthe time of appointment and that the service conditions of an employee ofthe Government Transport Corporation are governed by “Common ServiceRules”. Rule 22 of the Common Service Rule, which reads as follows:-“22.”Postings and Transfers:”a) An employees may be required to serve in anypost borne on the cadre of the Corporation and in anyplace of duty as the exigencies of the administrationrequired.b) All transfers and postings shall be made by theappointing authority or such other authority to whompowers have been delegated in this regard by theappointing authority.14.Learned counsel for the respondents also placed reliance on theorders passed by a learned Single Judge of this Court in W.P.(MD)No.16199and 16200 of 2011, dated 07.07.2011 and further contended that as theCommon Service Rules, enable transfer of an employee from one place toanother within the same Corporation, there is no manifest illegality in theorder of transfer, warranting interference. 15.Heard learned counsel for the petitioner and learned SpecialGovernment Pleader for the respondents. https://hcservices.ecourts.gov.in/hcservices/

616. The respondent Corporation has got the power to transfer anemployee from one place to another. The employee has also to serve in anyplace within the corporation. The present transfer is a routinetransaction arising out of exigencies. There is no motive and mala fideagainst the petitioner. Transfer is an incident of service and theManagement has also an inherent right to transfer the employee from oneplace to another. The inconvenience and hardship that may arise due totransfer, cannot be a ground for setting aside the same. Moreover, in thepresent case, transferability has been stipulated as one of the conditionsin the order of appointment and also in the common service rules,applicable to the employees of Transport Corporation including thepetitioner. 17.In so far as the contentions relating to mala fide, violation ofClause VII of the 5th Schedule r/w Section 2(ra) of the Industrial DisputesAct, arbitrariness, this Court has already passed a common order inW.P.Nos.5925 of 2011 etc. batch, dated 15.07.2011 and that the reasoningscan be mutandis mutatis applied to the facts of this case also. The onlycontention remains to be considered is whether, the Clause-9 of theamalgamation order protects the interests of the petitioner in the matterof transfer, and whether there is any downgradation of seniority at thisjuncture, affecting any service condition. Perusal of the order of theDivision Bench in W.A.Nos.1455 to 1457 of 2007, dated 04.02.2008 does notindicate, the Common Service Rules, which states that an employ may berequired to serve in any post borne on the cadre of the Corporation and toany place of duty as the exigencies of the administration required wasadverted to at all, whereas, effect of the common service rules has beenconsidered long back. Even as per the Common Standing Order 28 ofIndustrial Standing Orders, issued under the Industrial Employment(Standing Orders) Act, 1946, dated 05.06.1995 covering 20 TransportCorporations belonging to Government of Tamil Nadu, every workman shallnormally be liable to be transferred in the same category or Grade-II fromone Depot/Branch place of works to another of the same Corporation providedthat the pay and services of the workman in the category or grade are notadversely affected. Needless to say that the Standing Order duly certifiedunder Section 5(8) of the Industrial Employment (Standing Orders) Act,1946, has statutory force and that would override, the amalgamation order,so long as, there is no infringement of conditions of service. At thisjuncture, it is relevant to extract paragraph 5 of the counter of therespondents Corporation, wherein the respondents have categorically statedthat the apprehension of the petitioner that he would be placed as juniormost level is baseless and that the petitioner, who was working as a driverhas now been upgraded as a selection Grade driver and that the senioritylist shall be finalised, only by the Managing Director of the Corporation,at the time of promotion. The respondents have also admitted that hispromotional opportunities would not be affected by the impugned order oftransfer. 18.On perusal of the judgment made in W.A.Nos.1455 to 1457 of 2007,dated 04.02.2008, it could be noticed that the above said IndustrialStanding Order 28, which has a statutory force has not been adverted to atall. As the service conditions of the petitioner are not likely to beeffected, with due respect, this Court is of the view that the judgmentrelied on by the learned counsel for the petitioner would not lend anysupport to this case. https://hcservices.ecourts.gov.in/hcservices/

719.In yet another case, while attacking the order of transfer, plea ofmala fide has been raised by the petitioner in W.P.No.16199 and 16200 of2011 contending inter alia that the activities of Trade Union affiliatedto DMK Party were sought to be restricted after the advent of the newGovernment, by way of victimization, as they were transferred, a thelearned single Judge of this Court, after considering the Service StandingOrders and few decisions of the Hon'ble Supreme Court, declined to acceptthe said plea and at paragraph Nos.3 to 5 held as follows:-3.However, this Court is not inclined to accept the saidplea. The allegations of mala fide are too vague to beentertained by this Court. It is also an admitted case that thecertified Standing Order applicable to the respondentCorporation provides for transfer. the question of invokingSection 33(3) will arise only when there is dispute pending.Even in such case only when there is alteration of servicecondition, the said provision gets attracted. 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 Tamil Nadu reported in 1974 (4) SCC 3in paragraphs 91 and 92 had observed as follows:-"91. ..... The only question before us is whether theaction taken by the respondents includes any component of malafides; whether hostility and malus animus against the petitionerwere the operational cause of the transfer of the petitionerfrom the post of Chief Secretary.92.Secondly, we must not also overlook that the burden ofestablishing mala fides is very heavy on the person who allegesit. The allegations of mala fides are often more easily madethan proved, and the very seriousness of such allegationsdemands proof of a high order of credibility. Here thepetitioner, who was himself once the Chief Secretary, has orderof credibility. Here the petitioner, who was himself once theChief Secretary, has flung a series of charges of obliqueconduct against the Chief Minister. That is in itself a ratherextraordinary and unusual occurrence and if these charges aretrue, they are bound to shake the confidence of the people inthe political custodians of power in the State, and therefore,the anxiety of the Court should be all the greater to insist ona high degree of proof. In this context, it may be noted thattop administrators are often required to do acts which affectothers adversely but which are necessary in the execution oftheir duties. These acts may lend themselves to misconstructionand suspicion as to the bona fides of their author when the fullfacts and surrounding circumstances are nto know. The Courtwould, therefore, be slow to draw dubious inferences fromincomplete facts placed before it by a party, particularly, whenthe imputations are grave and they are made against the holderof an office which has a high responsibility in theadministration. Such is the judicial perspective in evaluatingcharge of unworthy conduct against ministers and other highauthorities, not because of any special status which they aresupposed to enjoy, nor because they are highly placed in sociallife or administrative set up these considerations are whollyirrelevant in judicial approach but because otherwise,functioning effectively would become difficult in a democracy.It is from this standpoint that we must assess the merits of the https://hcservices.ecourts.gov.in/hcservices/ 8allegations of mala fides made by the petitioner against thesecond 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 respective contentions of thelearned counsels appearing for the parties, it appears to usthat the appellant has not been able to lay any firm foundationswarranting a finding that the impugned order of transfer waspassed mala fide and/or for an oblique purpose in order topunish the appellant and/or humiliate him. The pleadings of theappellant before the Central Administrative Tribunal onlyindicate that some of his suggestions in the matter of postingof senior bureaucratic officers of the State had not beenaccepted by the present Chief Minister of the State. Such factsalone do not constitute any foundation for a finding thatbecause the appellant was not agreeable to oblige the ChiefMinister by accepting all his suggestions and putting up notesto that effect, he had incurred the displeasure of the ChiefMinister and the impugned orders had been passed not onadministrative exigencies but only to malign the appellant andto humiliate him. It may not always be possible to demonstratemalice in fact with full and elaborate particulars and it may bepermissible in an appropriate case to draw reasonable inferenceof mala fide from the facts pleaded and established. But suchrealm of insinuation, surmise or conjecture. In the instancecase, we are unable to find that there are sufficient materialsfrom which a reasonable inference of malice in fact for passingthe impugned order of transfer can be drawn. It is an admittedposition that the Chief Secretary and the Chief Minister haddifferences of pinion on a number of sensitive matters. If onthat score, the Cabinet and the Chief Minister had taken adecision to relieve the appellant from the post of ChiefSecretary and post a very senior officer of their confidence tothe post of Chief Secretary, it cannot be held that suchdecision is per se illegal or beyond the administrativeauthority. The position in this regard has been well explainedin Royappa case by this Court. 20.In view of the reasons stated in the common order in W.P.Nos.5925of 2011 etc. batch, dated 15.07.2011 and for the other reasons statedsupra, this Court is not inclined to interfere with the order of transfer. 21.In the result, this writ petition is dismissed. No costs.Consequently, connected miscellaneous petition is also dismissed.Sd/-Assistant Registrar(Crl.side)/True copy/Sub Assistant Registrar(CS) https://hcservices.ecourts.gov.in/hcservices/ 9To1.The Secretary to Government, Union of India, Department of Company Affairs, New Delhi.2.The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Railway Station New Road, Kumbakonam – 612 001. 3.The Branch Manager, Karur Depot-I, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Tiruchirapalli Region, Karur. +1 cc to Mr.V.R.Veludoss, Advocate, SR.No.24838+1 CC to the Special Government Pleader, SR.No.24928MPKWrit Petition No.7889 of 201125/07/2011TR : 28.07.2011 : 9P/6c : IT