Calcutta High Court
Jogendra Prasad Tiwari And Ors. vs Food Corporation Of India on 10 February, 1992
Equivalent citations: (1992)1CALLT230(HC)
JUDGMENT
Shamsuddin Ahmed and Siba Prasad Rajkhowa, JJ.
1. This appeal is directed against the order dated 23.7.1990 passed by the learned Single Judge of this Court in CO. 8195(W)/90 Under Article 226 of the Constitution.
2. The petitioners' case in short is that there are two rival Unions in the Zinjira Pole complex of the Food Corporation of India where the petitioners were posted. One of the Unions is affiliated to INTUC and the other to the CITU. The rival Union being a stronger one, was trying in various ways to Create difficulties for the petitioners. They have also filed criminal case against the rival Union which is still pending. It is alleged that the management of the Food Corporation of India in collusion with the said rival Union for teasing the petitioners have passed an order sending them for training out of the Depot but they did not succeed. Thereafter they have been transferred by the impugned order in the writ application to Cassipore Depot with the object that the petitioners will not be able to carry on their legitimate trade-union activities.
3. The respondents in their affidavit-in-opposition contended that there was no malafide action taken against the writ petitioners. They have admitted that there are two rival Unions and because of the rivalry the work at the Depot could not be properly undertaken. There was a strike by the other Union claiming transfer of the writ petitioners. Faced with the situation, the management had transferred them to another Depot for the exigency of the situation and for administrative reasons in public interest. According to the respondents, the work of the Corporation is an essential work and that cannot be permitted to be stalled. They have denied the allegation of malafide against the writ petitioners.
4. The learned trial Judge has dealt with the questions raised by the writ petitioners and had also gone through the file produced by the respondents. In the interest of restoring normalcy in the public distribution system, the respondents took the impugned action. The learned Judge on carefully examining the file produced before him accepted the explanation submitted by the respondents that the writ petitioners were transferred for administrative exigency arising because of the rivalry between the two Unions. In this view of the matter, the learned trial Judge dismissed the writ petition.
5. The appellant before us submitted that the action taken by the management is an arbitrary action inasmuch as, they have not treated both the rival factions of the Union on the same footing. They have taken action against the writ petitioners keeping the other rival faction in the same Depot. Accordingly, the order is a malafide one. They have also alleged that the action taken was malicious and was taken at the behest of the other rival Union.
6. We have already indicated that the learned Judge has gone through the file and was of the view that because of the exigency of the situation, the management had to take this action and there was no manifest matafide that could be ascertained from the records. Only because the transfer order was passed in a situation arising out of rivalry between the two Unions, it cannot be held that the order passed by the management was a malafide one. There is no discrimination only because of the fact that leaders of the one Union were transferred and others were kept in the same Depot. The object of the order of transfer was to restore normalcy as is found by the learned trial Judge. The writ petitioners have drawn our attention to a decision reported in 1978(1) CLJ 491 (Biman K. Roy v. S. Lakshminarayanan). The learned single Judge held that the order impugned therein was an order of transfer which is substituted for an order of punishment which can only be made after a proper disciplinary proceeding. In the instant case, it has not been alleged that the order of transfer was a penal transfer in lieu of disciplinary proceeding. This decision does not help the appellants.
7. Our attention was drawn to another decision reported in 1984(2) CLJ 242 (Birendra Chandra Ghose v. State of West Bengal). In that decision the Court held that the order of transfer actuated by malice is liable to be quashed and further held that transfer order cannot be passed as a measure of punishment. On the facts of the case, we agree with the learned trial Judge that no case of malice has been established. This decision has, accordingly, no application. Referring to the decision reported in 92 CWN 276 (S.V. Singh v. Union of India) the learned Advocate for the appellants has submitted that transfer of one officer cannot be said to be an alternative when two officers are fighting. Removal of one person from one place allowing the other to continue could not be a solution or may be termed to be a fair Government action. In this case, there is no case of apportioning blame to one faction or the other. Only a simple case of rivalry between two trade Union groups has been alleged and in such circumstances the administration is competent to take appropriate action. In our view, there has been no discrimination committed in this case. The learned Advocate sought to place reliance on a judgment reported in 1991(1) CLJ 331 {General Secretary of W. B. Civil Defence Service Officers' Guild v. State of West Bengal). In that decision the Court held that in the absence of a condition of service Under Article 309 of the Constitution or administrative instruction Under Article 162 being issued, the observance of the norms of transfer can be very difficult. But at the same time, the learned Judge has also observed that because of the lack of such instruction or Rules, no order of transfer can be passed against the Officers of the Civil Defence Department. In the instant case, also there is no rule or guideline with regard to the transfer, even then, the administration does not lack the power of transferring employees from one Depot to another if it is not actuated by malice or is in gross violation of natural justice.
8. Finally, the learned Advocate placed his reliance on a decision reported in 1990(1) CLJ 310 (Sri Krishna Kanto Roy v. Director of Primary Education). In that case, the transfer was made in violation of the guidelines. The petitioner was transferred before expiry of the period of five years from the date of his appointment. The said order of transfer was quashed as the learned Judge found that normal tenure was five years. In the facts of the case, this decision has no bearing.
9. Considering the case of the parties, it appears to us that the writ petitioners have been transferred from one Depot in Calcutta to another Depot also in Calcutta. There is no question of affectation of the petitioners by such transfer order does not dispute that the order of transfer suffer from lack of jurisdiction or power vested in the officers who have done this. The learned Advocate wanted to bring various matters before us which were not pleaded in the writ petition. We have not permitted him to do so. He has submitted that two of the writ petitioners are Sardars of a Gang and if they are not placed as Sardars of a gang, they will suffer financial loss. This case too was not made out in the writ application. Even then, we may observe that transfer order which is being impugned in this application clearly shows that these two writ petitioners are Sardars of a Gang by designation. There is no reason why they should be afraid that the administration will not allow them to join their respective posts according to their status. If any such unfortunate thing happens, they have a right to come before this Court for appropriate relief.
10. For the reasons aforesaid, we do not find any substance in this appeal and the same stands dismissed without any order as to costs.
11. Let a Xerox copy of this order be given to the learned Advocates for the parties on their complying with the usual formalities in this regard.