Punjab-Haryana High Court
K. Z. Khan vs Unknown on 30 November, 2012
Author: Rajesh Bindal
Bench: Rajesh Bindal
C.W.P. No. 23563 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No. 23563 of 2011 (O&M)
Date of decision: November 30, 2012
K. Z. Khan
.. Petitioner
v.
Union of India and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Pankaj Gupta, Advocate for the petitioner.
Mr. Lokesh Sinhal, Advocate for respondents No. 2 and 3.
...
Rajesh Bindal J.
1. The petitioner, who is working as Senior Assistant Grade II (P&A) with National Projects Construction Corporation (for short, 'the Corporation'), has filed the present petition impugning his order of transfer dated 17.8.2011 (Annexure-P4) from UP Zonal Office to Odisha Zonal Office, Bhubaneshwar.
2. The petitioner in the present case was initially working at Faridabad. Vide order dated 25.7.2006, he was transferred from Northern Zone to UP Zone at Lucknow. Considering his family circumstances, where his 85 years old widowed mother and sister of the petitioner are suffering from Schizophrenia and other members in the family of the petitioner are his wife and a teenage daughter, he made a request for cancellation of his transfer. On 18.2.2007, younger brother of the petitioner got seriously injured in an accident. He remained in the hospital and ultimately expired on 23.2.2007. Under these circumstances, the petitioner could not properly discharge his duties, however, a compassion was shown, whereby vide C.W.P. No. 23563 of 2011 [2] order dated 2.6.2010, the petitioner was deputed to work at Noida office. Subsequent thereto, the petitioner had been regularly working, however, again vide order dated 17.8.2011, the petitioner was transferred from Lucknow to Bhubaneshwar. It is the aforesaid order, which is impugned in the present petition.
3. Learned counsel for the petitioner submitted that considering the family circumstances of the petitioner and also the fact that the Corporation has three large establishments in National Capital Region, namely, Delhi, Faridabad and Noida, the petitioner, keeping in view his kind of job, can be adjusted in any one of them. It is not possible for him to shift his family either to Lucknow or to Bhubaneshwar, as the treatment of his mother and sister is going on at Delhi. In case, he himself shifts leaving the family at Delhi, his wife and teenage daughter will not be able to take care of his ailing mother and sister, who are suffering from Schizophrenia. The petitioner acting on the advice given to him at the relevant time filed complaint before the Minority Commission against the officers of the Corporation. Now he has learnt a lesson of his life. He has already undertaken to withdraw all his complaints and work regularly to the satisfaction of the officers and he will not give any chance of complaint to any of his superior. In fact, the Corporation has been adjusting the employees on account of their family circumstances close to their home town or otherwise.
4. Learned counsel for the petitioner further submitted that the petitioner has not been paid salary for a period of three months when he remained posted at Lucknow, however, he will make a representation for the same to the authorities, which may be considered.
5. On the other hand, learned counsel for respondents No. 2 and 3 submitted that the petitioner cannot dictate terms with the employer for keeping him posted at the place of his choice. The policy instructions are merely for the purpose of guidance. It is for the employer to see how services of an employee can be best utilised. The conduct of the petitioner had not been very fair. He, in fact, used to blackmail the officers by filing false and frivolous complaints before various authorities, which was C.W.P. No. 23563 of 2011 [3] resulting in total indiscipline. Compassion cannot be said to be the only ground relevant for transfer of an employee. Whenever circumstances permitted, the petitioner was accommodated. In Lucknow as well, there are good medical facilities available, hence, the writ petition deserves to be dismissed.
6. Heard learned counsel for the parties and perused the paper book.
7. It is a fact that the petitioner had been making complaints against the officers of the Corporation in court as well as before the Minority Commission. Considering the plight of the petitioner and his family circumstances, this court passed the following order on 8.10.2012, whereby the petitioner undertook to mend his way of working and withdraw all the complaints filed against the officers of the Corporation:
"The petitioner in the present case is working as Senior Stenographer with respondent-Corporation. He has approached this court impugning his transfer from U. P. Zonal Office to Odisha Zonal Office, Bhubaneshwar on the ground that his mother and sister, both are suffering from Schizophrenia and there is no male member in the family to look after them. The family is residing at Delhi. He further submitted that the petitioner on account of advice received at the relevant time had filed a complaint before the Minority Commission but the same has now been filed and is not pending any more. He had also filed a criminal complaint against the officer of the respondent-Corporation for defamation, in which one Additional General Manager of the Corporation was summoned, however, since he has also retired, the petitioner will withdraw the aforesaid complaint. He further submitted that he has filed Writ Petition No. 7298 of 2008 before Delhi High Court where he has claimed compensation on account of death of his brother, as he could not take care of his brother, who was critically ill as IDA arrears on account of revision of pay scale by 5th Pay Commission were not released to him C.W.P. No. 23563 of 2011 [4] inspite of request made for the same. Relief of compensation has also been claimed on account of non-cancellation of his transfer order despite there being policy of the respondent- Corporation for adjusting an employee whose any dependent family member is mentally retarded. He further submitted that he will not press the second prayer in the writ petition pending before Delhi High Court whereby the compensation has been claimed on account of non-cancellation of the transfer order and will press the writ petition only for the relief regarding compensation for non-release of IDA arrears on account of 5th Pay Commission.
Considering the fact that the petitioner is claiming that his mother and sister, both are suffering from Schizophrenia and the petitioner is only male member in the family to look after them, he has also stated before the Court that he will withdraw all the petitions or complaint filed against the officers of the respondent-Corporation, as stated above, in my opinion, the prayer made by the petitioner for cancellation of his transfer considering the fact that his mother and sister are suffering from Schizophrenia, deserves to be considered sympathetically.
Learned counsel for the respondent-Corporation seeks adjournment to have instructions."
8. On 30.10.2012, learned counsel for respondents No. 2 and 3 submitted that the prayer of the petitioner for cancellation of his transfer order can be considered only in case the petitioner furnishes an undertaking that he will not file frivolous complaints against the officers of the Corporation and attend the office regularly. The petitioner undertook to file such an undertaking and also make a representation for cancellation of his transfer afresh. The following order was passed on 30.10.2012:
"Learned counsel for respondent Nos. 2 and 3 submitted that prayer of the petitioner to the extent that his transfer from U. P. Zonal Office to Odisha Zonal Office, Bhubaneshwar can be cancelled by the authorities in case the petitioner furnishes C.W.P. No. 23563 of 2011 [5] an undertaking that he will not file frivolous complaints against the officers of the Corporation and attend the office regularly.
Learned counsel for the petitioner submitted that considering family circumstances of the petitioner and also the fact that earlier though he was transferred to Lucknow but was deputed to work at Noida, he may be posted somewhere close to Delhi. He will submit a representation giving all the details to the competent authority which may be considered.
Let the petitioner file a representation to the competent authority which may be considered sympathetically in view of his family circumstances."
9. When the case was taken up on 26.11.2012, learned counsel for respondents No. 2 and 3 submitted that the competent authority is willing to consider cancellation of transfer order of the petitioner from U. P. Zonal Office to Odisha Zonal Office, Bhubaneshwar provided the petitioner undertakes not to make complaints against the officers of the Corporation and also that he would attend the office regularly at Lucknow. It was also stated that Lucknow is also a big city having good medical facilities. He can very well shift his family to Lucknow and get good treatment for his mother and sister at Lucknow. The petitioner cannot be permitted to remain posted at his place of choice. Sympathetic consideration is not the only test to transfer an employee, as the same would set a very bad precedent for future.
10. The writ court is the court of law as well as equity. No doubt, an employee cannot compel an employer to keep him posted at the station of his choice for all times to come, but still sometimes there are circumstances so compelling in a case where the courts have to exercise their equity jurisdiction and, in my opinion, the case in hand is such. Hon'ble the Supreme Court in Criminal Appeal No. 1393 of 2008 -R. K. Anand v. Registrar, Delhi High Court, decided on 21.11.2012, observed that in judicial proceedings, it is important not to lose complete objectivity. In a case where a counsel was held guilty of contempt, for considering the punishment to be inflicted, Hon'ble the Supreme Court considered the factors, such as age of the contemnor and that his wife suffered a stroke of C.W.P. No. 23563 of 2011 [6] multiple sclerosis in the year 1992 and was confined to bed and wheel chair since then. The petitioner in the present case is sufferer of circumstances, where he has 85 years old widowed mother and sister, both suffering from Schizophrenia. This fact is not disputed by learned counsel for respondents No. 2 and 3. His younger brother died in an accident on 23.2.2007 leaving the petitioner as the only male earning member in the family. In addition, he has a wife and a teenage daughter. The mother and sister of the petitioner are getting treatment from doctors at Delhi.
11. This court does not appreciate the conduct of the petitioner, where to achieve his goal of remaining posted near to Delhi may be on account of compelling circumstances, he had been filing complaints before the Minority Commission or with different authorities/courts against the officers of the Corporation. Such kind of indiscipline cannot be tolerated. Every employee has means to redress his grievance in the organization itself, which is a kind of family. Taking out of family disputes should be avoided, unless the circumstances are compelling, but in the present case such a situation was not there. In fact, the effort of the petitioner, may be on account of some advice/ill-advice, could be to pressurise the officers of the Corporation, but they have their own duties to perform and maintain discipline in the work force. If they surrender to such type of actions by the employees, they will ultimately play in their hands. If these kinds of activities are permitted, it will create indiscipline in the establishment, which has to be avoided at every cost. No doubt, the compassion is not the only ground on which an employee can claim his posting or cancellation of his transfer, but still it is one of the important factors. No straight-jacket guidelines can be laid down for this purpose. Each case depends on its facts. In the opinion of this court, the petitioner deserves that compassion. Though the authorities have already shown some magnanimity by offering to cancel the transfer of the petitioner from Lucknow to Bhubaneshwar, in case he mends his way of working, in my opinion, one more step is required to be taken, i.e., that status quo ante before the transfer of the petitioner from U. P. Zonal Office to Odisha Zonal Office deserves to be maintained in the sense that earlier though the petitioner had been transferred to U. P. C.W.P. No. 23563 of 2011 [7] Zonal Office, but considering his circumstances, he was deputed to work at Noida office. Same arrangement should be permitted. However, this will not debar the authorities to depute the petitioner for service in any other office in National Capital Region. The order may not be treated as a mandate for all times to come. It is expected that the petitioner will now prove to be a good officer forgetting the past and serve the organisation with a positive mind giving no opportunity to any one to have a grievance against him. After all this also plays an important part in one's service career. When an employee claims compassion, his conduct during his service career is relevant.
12. Ordered accordingly.
13. As far as the claim of the petition for salary is concerned, he will be at liberty to move a representation to the authorities, which shall be considered in accordance with law.
14. The writ petition stands disposed of.
(Rajesh Bindal) Judge November 30, 2012 mk