Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Indo-German Tool Room on 31 October, 2013
1 O.A.181/2013 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. Original Application No.181/2013 Dated this Thursday the 31stDay of October,2013 Coram : Hon'ble Shri A.J. Rohee, Member (J). Pokale Dattatraya Gopinath, Plot No.41, Gut No.105, Dnyaneshwar Nagar, Satra Parisar, Aurangabad-431 005. Office Address-Indo-German Tool Room Extn. Center, Janki Hall, Near PMT Depo, Swargate, Pune 411 026. ..Applicant. Versus 1. Indo-German Tool Room (Through its General Manager), P-31, MIDC Chikhalthana, Aurangabad (Maharashtra)-431006. 2. The Development Commissioner (micro, small and medium enterprises), Government of India, Nirman Bhavan, 7th Floor, Maulana Azad Road, New Delhi 110 108. ..Respondents. Appearances: Shri B.R. Kawre, learned Advocate for the applicant Shri N.G. Helekar, learned Advocate for the Respondents. Reserved on 22.10.2013 O R D E R
By this application under Section 19 of the Administrative Tribunals Act, 1985, the 2 O.A.181/2013 applicant has challenged the impugned order dated 21.02.2013 issued by the Respondents thereby transferring him from Aurangabad Factory to Pune outlet/Branch of the Respondents.
2. The facts of the case in brief giving rise to the present proceeding may be stated as under:
That the Respondent No.1 is registered under the provisions of the Societies Registration Act 1860 and it runs a factory and training institute. Its registered office is located at Aurangabad having branches within the territory of State of Maharashtra. The Respondent No.2 supervises and controls the activities of the Respondent No.1. There is a Branch/Factory outlet of Respondent No.1 at Pune. The Respondents are engaged in the business of manufacture of Tool and imparting training. The Tool Room and Training Centre was established in the year 1990 in collaboration with Federal Republic of Germany for promotion of technical education to the youths of Maharashtra State. The Organization is actively supported by the Government of India, Government of Maharashtra 3 O.A.181/2013 and Government of Federal Republic of Germany. More than 100 persons are employed by the Respondents to carry out the work in the Factory and the training centres. The manufacturing unit/factory where the production activities are held is located at Auranagbad only and other branches are constituted for coordination purpose.
3. That since the time of his appointment on 02.02.1990 the applicant is working as Store Keeper at Aurangabad Office. He was promoted as data entry operator vide order dated 11.06.2008 on the same service conditions. That the Respondents formulated new service rules and promoted nearer and dearer. Hence a joint representation dated 07.01.2013 was made by some employees including the applicant making grievances in this behalf to the Respondent No.1. The Respondent No.2, however, got annoyed and called the signatories of the joint representation and pressurized them for unconditional withdrawal of the representation and to tender apology. The representationists including the applicant were threatened of transfer in case the representation is not 4 O.A.181/2013 withdrawn. However, since the representationists do not pay any heed a show cause notice was issued by Respondent No.2 on 16.01.2013 as to why departmental action should not be taken against them. The applicant replied the said notice and thereupon a caution memo was issued to him. Some of the signatories of the representation under fear of loss of employment or transfer, tendered the apology to Respondent No.2.
4. Respondent No.2 with malafide intention and to victimise the applicant issued his transfer order on 21.02.2013, relieving him on the same day (A.O.H.) and directing him to join at Pune outlet on the next day without availing joining period.
5. The applicant was working as Store Keeper even after his promotion at Aurangabad and the said post is not available at Pune outlet/Extension Centre. Transfer order was issued with a revengeful attitude and by using penal measures and by way of punishment. At the time of issuance of the transfer order the applicant was not heard nor opportunity of hearing was ever granted to the applicant. The impugned order of transfer is, therefore, 5 O.A.181/2013 illegal and is tainted with malafides, inasmuch as the service conditions of the applicant were also changed in violation of Section 9A of the Industrial Disputes Act, 1947.
6. The applicant, therefore, challenged the transfer order before the Industrial Court, Aurangabad. However, subsequently the same was withdrawn unconditionally with liberty to file the same before this Tribunal for want of jurisdiction to the Industrial Court.
7. The transfer order is challenged on the ground that the same is tainted with malafides and has direct nexus with issuance of show cause notice and the caution memo. There was no reason to issue transfer order and the same is nothing but by way of punishment to the applicant. The service conditions of the applicant are also changed unilaterally since at Pune post of Store Keeper is not available on which the applicant was working before his transfer. There is no work for the applicant at place of his new posting as data entry operator.
8. On the above grounds it is prayed to 6 O.A.181/2013 set aside the transfer order and to direct the Respondents to post the applicant at Aurangabad.
9. On notice the Respondents appeared and resisted the application denying all the adverse allegations, averments and contentions made therein. It is specifically denied that the applicant worked as Store Keeper even after he was promoted as data entry operator. Issuance of show cause notice and caution memo to the applicant is admitted. However, it is denied that the transfer order has any nexus with it.
10. According to the Respondents the transfer order was issued in pursuance of the constant demand from Pune Training Centre for an additional hand for carrying out the work of data entry as the said centre was required to maintain a large scale data of students who undergo the training. Since the applicant was promoted as data entry operator and he worked in the said capacity for a few years at Pune he was found most suitable for the said work and hence was transferred to Pune. The transfer order cannot be said to be tainted with malice or malafides nor the same has been issued by 7 O.A.181/2013 way of punishment or to victimise the applicant. The service conditions of the applicant were not changed nor he was granted any inferior post to the previous post of Store Keeper. There was no reason for the applicant to approach the Industrial Court or this Tribunal challenging the transfer order.
11. It is specifically denied that after promotion, the applicant worked as Store Keeper and there was no work available for him at Pune. The applicant has secured the order from the Industrial Court by suppressing the facts and ultimately he reported at Pune on 15.03.2013. The allegations made against the Respondent No.2 are baseless. The applicant was never pressurized by the Respondents to withdraw the joint representation or to tender apology, nor he was threatened of consequences of transfer in case he did not concede.
12. On the above grounds it is prayed to dismiss the application.
13. The applicant filed rejoinder on 12.07.2013 denying all the adverse allegations and averments made against him in the written statement of the Respondents.
14. Parties were allowed to file 8 O.A.181/2013 affidavit and documents in support of their rival contentions.
15. On 22.10.2013, when the matter was called out for final hearing, heard the oral submissions of Shri B.R. Kawre, learned Advocate for the applicant and Shri N.G. Helekar, learned Advocate for the Respondents. I have carefully perused the entire case record.
16. On the basis of the submissions made before me and the material produced on record the following point arises for my consideration:-
whether the transfer order dated 21.02.2013 issued by Respondent No.2 is liable to be set aside on the ground that it is tainted with malafides and the same is issued by way of punishment to the applicant and to victimise him?
17. I record my finding in the negative for the following reasons.
R E A S O N S
18. It is not disputed that Respondent No.1 is the Registered Society and a Government Agency vide Registration Certificate at Annexure A-2 and the office 9 O.A.181/2013 order dated 25.10.2007 issued by the Ministry of Personnel, Public Grievances and Pensions reveals that Respondent No.1 was declared as Autonomous Body under the Ministry of Micro, Small and Medium Enterprises vide letter dated 13.12.2007 on record annexed with Annexure A-2 issued by the Deputy Director (TR-1) of Micro, Small and Medium Enterprises, Ministry of Micro, Small and Medium Enterprises, Government of India. On the basis of the Notification issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, the Respondent No.1 was brought under the jurisdiction of this Tribunal by virtue of the provisions of Section 14 of the Administrative Tribunals Act, 1985 with a view to get the employees benefit of speedy redressal of their grievances. This is how this dispute comes within the competence of this Tribunal for its adjudication.
19. It is also not disputed that initially vide appointment order at Annexure A-3 dated 13.01.1999, the applicant was appointed as Store Keeper. This appointment order is accompanied with a memorandum which is in fact marked as Annexure A-3 prescribing 10 O.A.181/2013 pay scale, terms and conditions of the appointment of the applicant which he accepted. It is also not disputed that in the same capacity the applicant worked with the Respondent No.2 at Head Office, Aurangabad till the promotion order dated 11.06.2008 was issued vide Annexure A-4. It clearly states that on recommendations of the D.P.C. i.e. Departmental Promotion Committee of Respondent No.1, the applicant is being promoted as data entry operator with effect from 11.06.2008 on a temporary basis in the pay scale of Rs.4500125- 7000 with dearness and other allowances according to the rules of the Ministry. It also specifically prescribes that the other terms and conditions of the Memorandum (original appointment order dated 13.01.1999) will remain unchanged. It is also obvious from the record that the applicant accepted the promotional post and started working as data entry operator. It cannot be disputed that the data entry operator has knowledge about operation of computer and the said post can safely be said to be a technical post altogether different from the post of Store Keeper which is obviously a non technical 11 O.A.181/2013 post. It is also obvious from record that in the same capacity the applicant continued to work at Aurangabad till he was transferred to Pune by order dated 21.02.2013 vide Annexure A-1.
20. During the course of arguments it was contended by the learned Advocate for the applicant that the said transfer order at Annexure A-1 is challenged mainly on three grounds, viz. service conditions are changed in violation of the provisions of Section 9-A of the Industrial Disputes Act. Secondly, the transfer order is tainted with malafides and is issued to victimize the applicant since he is one of the signatories to the joint representation made by 15 employees on 07.01.2013 vide Annexure A-5 and since he failed to tender apology. Thirdly, according to the applicant although he was transferred and posted at Pune there is no work and hence the transfer order should be cancelled.
21. Learned Advocate for the Respondents disputed all the above grounds and contended that none of it is made out by the applicant so as to quash the transfer order which is solely within the competence and discretion of 12 O.A.181/2013 the employer and neither any service conditions are changed or violated nor transfer order suffers from any malice, simply because the applicant happens to be one of the signatories to the joint representation Annexure A-5 and on its basis a show cause notice dated 16.01.2013 vide Annexure A-6 was issued to him. He further stated that the applicant promptly replied the show cause notice on 18.01.2013 vide Annexure A-7 and after considering it, a caution memo Annexure A-8 dated 24.01.2013 was issued to him so as to prevent him from indulging in any such activity in future.
22. Before considering the grounds raised by the applicant it may be mentioned here that after issuance of the transfer order Annexure A-1, the applicant approached the Industrial Court by filing complaint on 14.03.2013 vide Annexure A-9. It was replied by the Respondents vide Annexure A-10 raising the ground of jurisdiction and competence of the Industrial Court to adjudicate the said dispute. It is obvious that this was on the basis of the Notification issued by the Central Government investing jurisdiction on 13 O.A.181/2013 this Tribunal to adjudicate upon the service matters of the employees of Respondent No.1 as stated earlier. Consequently, the applicant preferred to withdraw the said complaint vide Annexure A-11 dated 30.03.2013 without prejudice to his right to agitate his grievance before the appropriate forum. It is obvious that even before the withdrawal of the said complaint the applicant resumed the work in pursuance of the transfer order at Pune on 15.03.2013 vide joining report at Annexure A
12. Soon thereafter on 25.03.2013 it is obvious that the applicant submitted a representation to the Respondent No.2 for cancellation of his transfer order vide Annexure A-13. It appears that before any decision was taken by the Respondents on the said representation, the applicant approached this Tribunal by filing the present proceeding on 02.04.2013 i.e. soon after withdrawal of the complaint filed in the Industrial Court. This is how this Tribunal is required to adjudicate this dispute.
23. Turning to the first ground raised by the applicant it was vehemently contended that the service conditions cannot be changed to 14 O.A.181/2013 the detriment of the employee without notice or hearing him, which would amount to violation of Section 9-A of the Industrial Disputes Act which requires 21 days notice. As stated earlier the applicant joined the institute on non-technical post as a Store Keeper. As many as 17 terms and conditions of service in the Memorandum at Annexure A-3 are prescribed. The learned Advocate for the Respondents has rightly drawn my attention to term No.4 of the said Memorandum which specifically prescribes that the appointment carries with it the liability to serve in any part of India. It is, therefore, obvious that the appointment of the applicant as Store Keeper was subject to transfer at any place in the country where the office of the Respondent No.1 is located. It is obvious that the applicant accepted the appointment on this specific term. It is also obvious from record that till he was promoted to the higher post on 11.06.2008 he was not transferred anywhere and continued to work as Store Keeper and thereafter as data entry operator. It is very difficult to digest the submission of the applicant that even after getting promotional 15 O.A.181/2013 post with higher pay scale and thereby responsibility with change of nature of duties, the applicant continued to work as Store Keeper. The Respondent No.1 might however, direct him to look after his previous work for some period in addition to his new assignment immediately after joining new post. It would not mean that his service conditions are thereby changed. In fact learned Advocate for the Respondents is justified in saying that by the promotional order the applicant is benefited and it cannot be said that the previous service conditions were changed to his detriment. Statutory notice under the provisions of Section 9-A of Industrial Disputes Act is necessary in case employee is required to work at different post than the one on which he was posted initially which may also carry less pay scale. In the present case position is exactly reverse inasmuch as the applicant was promoted to the higher post with higher pay scale and hence by no stretch of imagination it can be said that his service conditions were thereby changed. In such circumstances of the case simply because the applicant was promoted to the higher post it 16 O.A.181/2013 cannot be said that his service conditions are changed to his detriment.
24. So far as this ground is concerned the learned Advocate for the applicant placed his reliance on the decision of Madras High Court in a case of Chennai Port and Dock Workers Congress (INTUC) Vs. Union of India and others [2002(94)FLR 1072]. In that case provisions of Section 9-A of the Industrial Disputes Act, 1947 were considered. In that case a member of the petitioner's association was transferred to another place without giving him an opportunity of hearing, especially when his service conditions do not contemplate transfer. It is specifically held that subjecting the workers to such new condition of service would require compliance with Section 9-A. However, in the present case as stated earlier there is a specific service condition about liability to transfer anywhere within the jurisdiction of Maharashtra. This being so, it cannot be said that the provisions of Section 9-A are attracted in the present case. This being so although the ratio laid down in the above referred case cannot be disputed, the same 17 O.A.181/2013 will be of no use to the applicant, since the facts are different.
25. Another case relied upon by the applicant' Advocate on this point is the decision of Bombay High Court in a case of Larsen and Toubro Ltd., Mumbai Vs. Antony Jokim Patekar and another [2013 LLR 314]. In that case the applicant was working as skilled employee and he was subsequently transferred as Security Guard in Security Department. It is specifically held that the Respondents in that case have changed the service condition of the applicant which is not permissible. It was also held that the transfer was based on considerations other than so called administrative exigencies. Allegations of malafide, harassment or humiliation and degradation of level of work in the transfer was also made. As stated earlier, in the present case, the position is totally otherwise inasmuch as there is specific service condition regarding transfer and that the applicant was firstly promoted to a higher post who worked there for a few years and then was transferred to Pune. In the same case the Hon'ble High Court has laid down the following 18 O.A.181/2013 principle of law.
26. Normally the courts would not interfere in the orders of transfer based upon some particular instance and the policy decision of the employees but if such transfer are prima-facie based on the various considerations other than so called administrative exigencies and is founded on allegations of malafide, harassment, humiliation and degradation of the level of work also, the stay of such transfers cannot be said to be unjust and illegal.
27. Ratio and law laid down in the above mentioned case cannot be disputed. However, it cannot be said that the same will be applicable to the applicant in any manner, although allegations of malafides are made against Respondent No.2, which point I shall consider while discussing the ground no.2 raised by the applicant. I, therefore, reject the ground no.1.
28. I shall deal with ground no.3 first making the grievance that although the applicant was transferred to Pune there was no work and he used to sit idle. There is hardly any substance in this contention since the 19 O.A.181/2013 Respondents have specifically stated that there was a pressing demand from Pune office for appointment of one data entry operator to complete the pending work of making entries about details of the students who had already undergone training. The applicant being the data entry operator he must be conversant to do such type of work. It is very difficult to digest the submissions that inspite of his promotion he continued to work as Store Keeper at Pune and since there is no post of Store Keeper he should be transferred back to Aurangabad. It is rightly contended by the learned Advocate for the Respondents that transferring the employee is the exclusive domain of the employer and he is the best judge to consider this aspect so that there is equal distribution of work and administration runs smoothly. Considering for a moment that there is no work or less work for the applicant at Aurangabad as data entry operator, it will be for the Respondent No.1 to take care of this. It may be mentioned here that the representation for cancellation of transfer order at Annexure A-13 simply mentions about the joint representation filed 20 O.A.181/2013 by the applicant and the cancellation is sought for domestic reasons and exigencies.
There is no whisper in it that at the new place of posting there is no work of data entry operator.
29. From the above discussion it is obvious that it cannot be said that the applicant is successful in establishing the third ground and in fact it is not open for any employee to raise such a ground that there is no work available at a particular station. As stated earlier, the employer is the best judge to take care of such situation and normally no employee is left without work at any place. I, therefore, reject the ground no.3 also.
30. So far as ground no.2 is concerned, it is not disputed that the applicant joined one group of unskilled or non-technical employees submitting a representation at Annexure A-5 to Respondent No.2 making some grievance about failing to give promotion to some competent employees and instead some nearer and dearer were promoted. So far as this aspect of the case is concerned obviously when the said representation was 21 O.A.181/2013 filed the applicant got promotion and he ceased to be non-technical employee since by that time he was working as the data entry operator i.e he was skilled or technical employee. This being so, there was no reason for the applicant to join the other employees in making the joint representation and that he deliberately signed it as Store Keeper where in fact he was working as data entry operator atleast for more than four and half years prior to it. It is also obvious that a show cause notice was issued to the applicant and considering his reply a caution memo was issued. It is only on this basis it was tried to contend before me that the applicant was deliberately transferred to Pune within two months after issuance of the caution memo. It is also tried to impress that the applicant happens to be the Treasurer of the Union and hence he was made a scapegoat.
31. So far as this aspect of the case is concerned there is nothing on record to show that the applicant was actively associated with the activities of the Union and that on any previous occasion he joined the Union members, in any strike/demonstrations/morchas 22 O.A.181/2013 etc. raising some demands of the members of the Union. This being so simply because he happens to be the Treasurer of the Union it cannot be said that caution memo was issued to him. He was transferred to Pune. The learned Advocate for the Respondents is, therefore, justified in saying that there is no nexus between issuance of transfer order and the warning memo to the applicant.
32. So far as this ground is concerned the learned Advocate for the applicant placed reliance on a decision of Madhya Pradesh High Court in a case of Krishna Kumar Verma Vs. M.P. Electricity Board, Jabalpur and other [2008 (87) FLR 732]. In that case the petitioner happens to be office bearer of a trade union which participated in the strike/demonstration in pressing the demand of employees. However, no material was produced by the Respondents in support of their claim of administrative exigencies for transfer and there was no pressing need for posting shown. It was held that the transfer order was clearly passed to shift the petitioner to a distant place in order to remove him from union activities and that the same is clearly 23 O.A.181/2013 malafide. In this background the transfer order was quashed.
33. In the present case as stated earlier, it was clearly shown by the Respondents that there was pressing demand for one official to carry out entries and to complete arrears of work at Pune and the Respondent No.2 found the applicant suitable for the said post. It, therefore, cannot be said that there was no administrative exigency for transfer nor pressing need for posting the applicant to Pune. It also cannot be said that the transfer order was passed only with a view to keep the applicant away from union activities, in which his role seems to be insignificant. In any case, the ratio laid down in the above referred case is of no help to the applicant so as to claim that the transfer order was malafide.
34. So far as the concept of transfer is concerned the learned Advocate for the Respondents placed reliance on the decision of the Hon'ble Supreme Court in a case of The Hindustan Lever Ltd. Vs. The Workmen [(1974)3 SCC 510]. In that case it is specifically held that the employer has a right to transfer 24 O.A.181/2013 the employees in the absence of victimization, unfair labour practice or violation of conditions of service. Thus, in every matter involving adjudication on challenge to the transfer order, all these factors play an important role and unless it is shown that transfer is tainted with malice, or unfair labour practice, victimization or results in violation of any condition of service the same cannot be quashed.
35. Another decision relied upon by the learned Advocate for the Respondents on this point is the decision of Hon'ble Supreme Court in a case of Union of India and others Vs. S.L. Abbas [(1993) 4 SCC 357]. The scope of judicial review of any transfer order is considered in that case. Referring to the same ground mentioned in case relied upon in previous para, one more ground of violation of statutory provisions is added. While considering this aspect and the writ jurisdiction vested in the High Court and comparing it with the powers vested in Central Administrative Tribunal in service matters, it is held as under in para 6 and 7, which are worth quoting:
25 O.A.181/2013An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force.
The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matter. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A of the Constitution. The Central Administrative Tribunal is not an appellate authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal read as if it were sitting in appeal over the order of transfer made by the competent authority. 26 O.A.181/2013
36. In the above referred case it is also held that the executive instructions such as transfer of Government servant are in the nature of guidelines which do not confer legally enforceable right on any employee.
37. Lastly, the learned Advocate for the Respondents relied upon yet another decision of the Hon'ble Supreme Court in a case of State of U.P. And others Vs. Gobardhan Lal [(2004) 11 SCC 402], in which it has been specifically held that transfer is prerogative of the authorities concerned and court should not normally interfere therewith, except when transfer order shown to be vitiated by malafides or in violation of statutory provisions or having been passed by an authority not competent to do so. It is further held that allegations of mala fides must be based on concrete material and must inspire confidence of the court.
38. It is thus, obvious that so far as the issuance of transfer is concerned, law laid down is well settled. It is not the case of the applicant that transfer order was issued by incompetent authority or that the same is in contravention of any rules or 27 O.A.181/2013 regulations. It, therefore, cannot be said that transfer order is tainted with malafides or that the same has been issued only with a view to victimise or punish the applicant. From the material produced on record it cannot be said that the transfer order Annexure A-1 is tainted with malice or the same was issued to victimise or punish the applicant or to put him in a lower position, especially when he was not reverted but was promoted to the higher post and in any case none of the 3 grounds raised by the applicant are said to be made out for seeking the necessary redress.
39. From the reasons stated and discussed above, I come to the conclusion that the applicant has failed to establish his case and hence transfer order at Annexure A-1 cannot be interfered or quashed by this Tribunal.
40. In the result, the application is dismissed, however, with no order as to costs. Bombay (A.J. Rohee) 31.10.2013. Member (J).
H.