Madras High Court
C. Ramanathan vs Acting Zonal Manager, Food Corporation ... on 8 August, 1979
ORDER Ramaprasada Rao, C.J.
1. This Writ appeal is directed against the judment of V. Ramaswami, J. who dismissed a writ petition filed by the appellant when he sought for a writ of certified mandamus to call for the records in connection with the order dated 14-7-1977 passed by the first respondent, as Acting Zonal Manager, Food Corporation of India, in and by which the appellant-petitioner was transferred from the Madras Division Office to Adilabad, Andhra Pradesh and to direct the respondents to give effect to an accredited policy of transfer laid down by the .Head Office of the Food Corporation of India at New Delhi in the matter of the transfer of employees III and IV Cadre of the Corporation.
2. The appellant joined the service of the Food Corporation from 1955. He started his career at Coimbatore. He was transferred to Madras in 1958. Thereafter he was transferred to Cochin in 1970 and re-transferred to Madras in 1972 and again he was sent to Andhra Pradesh in 1975 and thereafter he was brought back to Madras in 1976. On 14-7-1977 the impugned order of transfer was made by the first respondent transferring him from Madras to Adilabad and he was relieved with effect from the afternoon of that date. The appellant did not join duty but came to this Court challenging the order of transfer. Under orders of this Court he was given joining time till 6-1-1978, when, it is common ground, he joined at Adilabad. On the ground that the order of transfer is vitiated by bad faith and that it was in the nature of a punishment inflicted on him due to his personal differences with the first respondent and that the first respondent circumvented the process of disciplinary proceedings and adopted the devious method of transferring the appellant and thus punishing him, he came to Court for the grant of the above-said relief. It was also the case of the appellant that as he was a well-known Union Leader he was being shifted from time to time without following the guidelines in the matter of transfer which provided that a person should be stationed at one place for at least five years and even after the expiry of such a prescribed time, he could be transferred preferably within the region. He attempted to substantiate the above contentions before the learned single Judge, who considered the basis on which the appellant raised such contentions and ultimately held the view that the transfer was not motivated for the reasons stated in the affidavit and argued before him and that the circum stances did not show that it was by way of punishment that the transfer was effected. He, therefore, dismissed the writ petition. It is as against this, the writ appeal has been filed.
3. Mr. Venkataswamy, learned Counsel for the appellant strenuously contended that on the pleadings in this case there is practically an admission of the part of the first respondent that he did have resort to the order of transfer because of the various alleged irregularities bordering on misconduct committed by the appellant. It is, therefore, contended that no more proof of mala fides is necessary.
4. The next contention is that the guidelines which are to be followed while effecting a transfer of an employee of the Corporation have been completely ignored and he would also urge that those guidelines were deliberately brushed aside because the first respondent was willy-nilly bent upon transferring the appellant when he was acting as Zonal Manager so as to give an open expression, to his vendetta against the appellant. He would take us through the counter-affidavit filed by the first respondent which, according to him, brings out the real motive behind the order of transfer and would plead that though the order of transfer appears to be a normal order, it is in effect an order vitiated by mala fides or lack of good faith.
5. His third and last contention which also elaborates the earlier contentions is that the appellant was not even given the six days joining time which was necessary; but he was immediately relieved which again reflects upon the design behind the order of transfer. In the end, therefore, he would persuasively plead that the order of transfer is really an order resulting in the punishment of the appellant and in that sense the appellant having had no opportunity to defend himself against the real purport behind the order of transfer, the challenged order should be quashed.
6. It would, of course, be necessary to go through the facts in this case, to a certain extent, in detail. But it would be convenient to pre face our judgment with certain general observations.
7. Courts are chary to interfere with an order of transfer made for administrative reasons. An innocuous order of transfer, which not only on the face of it appears to be one made in order to further the administrative interests of an organisation, but which even on a deeper scrutiny does not pose any irregular or mala fide exercise of power by the concerned authority, is generally upheld by civil Courts, as Courts cannot substitute their own opinion and interfere with ordinary orders of transfer of employees of established organisations. But if in a given case, an order of transfer appears to be deliberate attempt to by pass all disciplinary machinery and offend the well-known principle of audi alteram partem if ex facie it is clear that the order of transfer was not made for administrative reasons but was made to achieve collateral purpose, then it is open to the Court to crack the shell of innocuousness which wraps the order of transfer and by piercing such a veil, find out the rival purpose behind the order of transfer. No doubt, a normal order of transfer can be misunderstood as a punitive measure. But, if the circumstances surrounding such an order leads to a reasonable inference by a well-instructed mind, that such an order was made in the colourable exercise of power and intended to achieve a sinister purpose and based on irrelevant considerations, then the arm of the Court can be extended so as to decipher the intendment of the order and set it aside on the ground that it is one made with a design and motive or circumventing disciplinary action and, particularly when civil servant is involved, to avoid the stringent but mandatory procedure prescribed in Article 311(2) of the Constitution of India.
8. The appellant being a servant of State, as an employee of the Food Corporation of India, is entitled in our view, to ask us to take, into consideration the circumstances surrounding the order of transfer and find out whether it was an innocuous order of transfer or whether it was made as a substitute for a punitive mea sure. Therefore, in the peculiar circumstances of this case, we are constrained to find out whether the order of transfer was intended or motivated to operate as a punishment, and look into the circumstances under which the order was passed.
9. At this stage, it is advantageous to refer to the counter-affidavit. In the counter-affidavit sworn to by the first respondent as Zonal Manager in-charge of the Food Corporation of India, it is said that the order of transfer was made for administrative reasons, that the appellant cannot question the same as he is bound to serve the Food Corporation of India wherever he is posted and that he has no vested legal right to pick and choose a place for his service. It is said that the appellant having joined Adilabad under orders of this Court, the petition has become infractuous.
10. Dealing with the merits, the first respondent, admits that the appellant is styling himself as the General Secretary of the Staff Association but the designation is of the appellant's own making. It is said that the Staff Association said to be represented by the appellant is an unrecognised one. It is aslo not correct to state that the appellant has worked to the entire satisfaction of the superiors and in fact, his work and conduct has been most dissatisfactory and departmental enquiries are pending against him. The first respondent would deny that there was any vigilance enquiries against him and that he made the order of transfer in order to wreak vengeance. The first respondent would aver that he was not instrumental in transferring the appellant to Nizambad and that the said transfer was manoeuvered by him. He, however, admits that he might have objected to the responding of the appellant to Madras, but that was not due to any mala fides or ill-will. The appellant would refer to the various representations and telegrams made and given by the appellant to the Prime Minister of India, the Food Minister and other higher authorities in the Food Corporation. A specific allegation is made to the effect that the appellant is a habitual mischief monger and a most undersirable member. There is also a reference to the alleged conduct of the appellant that he would approach his co-employees as well as the Officials of the Food Corporation of India for out of the way favours and if someone declines to accede to his request, he would complain against them and this course was deliberately adopted as a means to black mail them. The first respondent concedes that because of the alleged consistent attitude of the appellant towards the officers, a show cause memo was also issued to him as to why disciplinary action should not be taken. The first respondent would say that it is not necessary to give joining time in every case of transfer and that when a transfer is made on administrative grounds, it is left within the discretion of the authority to give joining time or not. He admits that no joining time was given to the appellant, as it was felt that the appellant should be immediately relieved and he should go and join duty at his new place. According to the first respondent, the leave application presented by the appellant was after the appellant was relieved and not before and that the appellant was guilty of gross negligence and indiscipline in not joining duty for which he was liable for disciplinary action. It is said that the leave application was made on false grounds and this would show that he was not an obedient employee and that there was wilful disobedience in not having complied with the orders of transfer. The several instances reffered to by the appellant to highlight the mala fides of the first respondent are expressly denied. According to the first respondent, it is not correct to state that he refused leave wantonly or he intervened in the matter of the grant of a house-building loan or in the matter of the closure of the disciplinary proceedings against him. The first respondent would also deny that the official of the Food Corporation who appeared as a defence counsel to the appellant was singled out for penal and out of the way transfer. Finally the first respondent would say:
It was only in the interests of the ad ministration, that too, because of various reports levelled against this employee about the modus operanding threatening and pressurising the Officers sending petitions after petitions against them when they do not accede to his out of the way request that this transfer had been made in consultation with the Managing Director.... Moreover, administrative convenience and necessity should be given prime consideration in such transfers and as this petition had proved to be a most undersirable character in order to enforce and maintain discipline among the thousands of employees in the southern zone this transfer had been effected for administrative purposes.
11. The other allegations are denied by the first respondent. It is in the light of such disclosures made in the pleading that this case has to be considered.
12. In our preface to the judgment, we have referred to the salient principles which should prompt a Court to interfere with an ordinary order of transfer. Do the facts disclosed in this case an inner motive or design on the part of the first respondent when the challenged order was made ? In the counter-affidavit, we have seen that the first respondent admits that he might have objected on an earlier occasion to the re-posting of the appellant to Madras. This appears to be the starting point for the internal bickerings between the appellant and the first respondent. The first respondent became very touchy when it is alleged that the appellant sent various telegrams to the Ministers and higher authorities of the Corporation and he would allege that authorities of the Corporation and he would allege that a show cause memo was also issued against the appellant calling upon him to explain as to why disciplinary action should not be taken against him. It has not been brought to our notice that any such action has ever been taken at all against the appellant for any alleged act of misconduct on his part. He would admit that the usual joining time was not given to the appellant and that was again due to exigencies of circumstances. His leave application was rejected as it is contended that it was not in order. We do not find however, any data produced before us to justify that the leave was properly refused and the appellant was bona fide not granted the usual joining time. The confession made by the first respondent strongly suggests that because of various reports levelled against this employee about his modus operandi in threatening other officers by sending petitions that the order of transfer has been made, though it is said that it was in the interests of the administration. The first respondent has given a certificate that the appellant has proved to be a most undesirable character in the service of the Corporation and in order to force and maintain discipline, the transfer was effected. Again, it is pretended that this is for administrative convenience. The first respondent is certainly aware of the transfer policy which was evolved as early as in 1973. A copy of the said policy has been produced before us. We find there that in the case of categories III and IV employees to which category the appellant belongs, transfers from one place to another should not be a matter of routine. Category III employees stationed at one station for more than five years could be considered for transfer to other places preferably within the region. The learned Counsel for the first respondent is unable to say that this policy which binds the Corporation has been remembered or adverted to in the order of transfer when it was made. One has to, therefore, necessarily highlight the intentions behind the order of transfer having regard to the specific allegations made by the first respondent in the counter-affidavit. We agree with Mr. Venkataswamy. On a fair reading of the counter-affidavit it is seen that the order of transfer has been made in order to bypass the disciplinary machinery and circumvent the well accepted rule of fair hearing before an adverse order is made and that in substance and in effect the order of transfer though appears to be eonomine a normal one, has been passed in the instant case to achieve a collateral purpose. The appellant being a public servant he ought not to have been dealt with in the manner he has been tossed from one place to another in utter disregard of the transfer policy. The allegation is that even earlier when he was about to be transferred from Nizambad to Madras, the first respondent interfered. The allegations in the counter-affidavit as made by the first respondent is in our view a clear pointer to the effect that it was not to improve the career or responsibility of the appellant that the order was made, but on the other hand it was made because of the open maladjustment which is demonstrably visible from the record and which was present for a considerable time as between the appellant and the first respondent. It, therefore, appears to us that as soon as the first respondent be came the acting Zonal Manager, he availed himself of the opportunity to effect the transfer in order to given vent to hi ill-feelings which he was harbouring within himself as against the appellant. The fact that the first respondent characterised the appellant as a most undesirable character and that there were various reports levelled against the appellant for his misdemeanour acts are all vindicative and explanatory of the motive or the design behind this order of transfer. We are satisfied that the order was passed for a collateral purpose and not for administrative convenience in public interests. It is not presented that any disciplinary proceedings had been initiated though thought of by the Corporation. It is not even alleged before us that any such disciplinary proceedings are pending against him. The power of transfer in the instant case was adopted as an alternative for punishment which punishment cannot be inflicted without going through the process as prescribed under Article. 311 of the Constitution of India. We are, of course, conscious of the fact that innocuous and normal orders of transfers ought not to be interfered with by Courts if it was made for administrative exigencies or other valid reasons. But as in our view the order in question has been passed to bypass the disciplinary machinery and in order to avoid a fair opportunity being given to the appellant to explain his alleged misconduct we are constrained to interfere in the instant case. Having regard to the specific allegation made in the counter affidavit by the first respondent we are going behind the apparent reasons given in support of the order of transfer and after appreciating all the circumstances in the case, we are of the view that the order of transfer though apparently innocuous was meant really to impose a punishment on the officer concerned. It appears to us to be a colourable exercise of power or an exercise of power surcharged with bad faith as irrelevant considerations motivated the passing of the challenging order. Instead of taking disciplinary action against the appellant, this order of transfer has been made in order to circumvent the prescribed process in an action ordinarily undertaken against a Government servant for misconduct.
13. There are two other notable circumstances in this case which also prompt us to come to the same conclusion as above that the challenged order is not an order of transfer simpliciter. The guidelines fixed for transfer have not been followed and why there has been a deviation thereto there is no explanation at all.
14. Secondly, when the challenged order was made, no joining time was also given. But for the fact that this Court gave the appellant a breathing time, he would have suffered the greatest inconvenience. These factors also taken cumulatively along with other circumstances lend support to the conclusion that the order of transfer is not a fair order.
15. V. Ramasami, J., thought that since 15-7-1977 happened to be a Friday and as it was followed by a Saturday and Sunday, no joining time was given. He also noticed that the counsel for the first respondent admitted the mistake in not giving the joining time. This by itself would not efface the wrong done to the appellant. No doubt a superior officer cannot be influenced by the subordinate officer. In the instant case the first respondent was not sure whether he did influence or not but he would say that he might have. We are unable to agree with him. This is a case in which only a slight suspicion is projected touching upon the intention of the first respondent. For the reasons already set out by us, we are of the view that the order of transfer is certainly motivated and is based on irrelevant considerations.
16. The appeal is, therefore, allowed, but in the circumstances, there will be no order as to costs.
17. An oral application for grant of leave to appeal to Supreme Court is made against the judgment. The point involved in this appeal does not raise any question of law of general importance which has to be decided by the Supreme Court. Leave refused.