Punjab-Haryana High Court
Karam Chand Sharma vs Union Of India And Others on 23 August, 2024
CWP-17797
17797-2024 (O&M)
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-17797-2024 (O&M)
Date of Decision:-23.08.2024
08.2024
Karam Chand Sharma
......Petitioner
Versus
Union of India and Ors.
......Respondents
CORAM: HON'BLE MR. JUSTICE ALOK JAIN
****
Present: Mr. Prateek Gupta, Advocate and
Mr. Shubham Pathania, Advocate for the petitioner.
Mr. Ashish Chaudhary, Senior Panel Counsel
for respondent No.1-UOI.
Mr. Sanjay Kaushal, Sr. Advocate with
Mr. Ashwani Talwar, Advocate and
Mr. Gandharv Malhotra,, Advocate for respondent No.2 to 5.
None for respondent No.6.
****
ALOK JAIN, J.
1. The present petition has been filed inter alia seeking quashing of the order dated 26.07.2024, whereby the respondents transferred the petitioner from Bathinda to Vijaipur (Madhya (Madhya Pradesh) Unit and the petitioner has challenged the same on the ground that the act of the respondents is vindictive, discriminatory discriminatory and against the provisions of the transfer policy.
Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 2
2. The brief facts narrated by the counsel for the petitioner are that the petitioner was appointed as a Law Officer in the year 2006 and he being an outstanding employee and having an unblemis unblemished hed record was continuously granted promotions. In 2019, the petitioner was promoted to rank of Senior Manager Law, Level (E-5)
5) and was transferred to Nangal from Bathinda on 01.07.2019 and thereafter on 11.07.2019 was transferred to Noida from Bathinda till till 31.12.2019 and further in the same order was transferred from Noida to Nangal Unit after 31.12.2019
3. Learned counsel for the petitioner had submitted that the petitioner was transferred to Chandigarh from Noida on 28.08.2019 and thereafter vide order order dated 05.08.2021, he was again transferred to Bathinda from Chandigarh. The petitioner was appointed as Head of the Human Resource Department at the Bathinda Unit on 08.12.2022. The Petitioner had been performing his duties with full dedication and sinc sincerity erity however, vide order dated 26.07.2024, he was transferred to Vijaipur Unit (Madhya Pradesh) from Bathinda, without any justifiable reason, leaving aggrieved by this order.
4. Learned counsel for the petitioner has submitted that the petitioner was promoted promoted to the post of Chief Manager vide order dated 08.07.2024. It was further submitted that petitioner attended the Court proceedings on 18.07.2024 having being deputed as Law Officer to assist the engaged Advocate in CWP-16370-2024 CWP 2024 and during the heari hearing ng of the said case, this Court took a serious view against the withholding of the retiral benefits of the petitioner therein of above mentioned CWP CWP-16370--
Manju2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 3 2024, wherein the non-release non release of the retiral benefits was the subject of challenge. The present petitioner petitioner having attended the Court proceedings, reproduced some observations of the Court proceedings in his noting on the official file which do not go well with his seniors. The counsel submitted that the true impetus behind the Petitioner's transfer to Vijaipur (Madhya Pradesh) was that the said noting which did not go well with respondent No.5, who immediately expressed her displeasure with regard to the note put up by the petitioner. In response, the petitioner tendered an unconditional apology and assured ured that he would exercise greater caution in his choice of words in future when reporting an official matter. Be that as it may, the respondents in order to teach the petitioner a lesson passed the order dated 26.07.2024, whereby the petitioner was tran transferred sferred to Vijaipur (Madhya Pradesh). It was submitted that the mala fides on the part of the respondents are crystal clear from the fact that the transfer order was served through email at 6:15 PM i.e. after the closing of the office hours, directing the petitioner to be transferred with immediate effect.
5. Learned counsel for the petitioner argued that the petitioner had been transferred five times in the span of last five years and that he is a victim of the vindictive attitude of the respondents-authorities thorities as the transfer policy itself provides that there should be a minimum period of three years stay at one station. It was further submitted that the petitioner's parents are elderly and in frail health, with the petitioner being their only support.. Additionally, the petitioner submitted that his elder son is still school going, whose future is at stake, Consequently, he has approached Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 4 this Court for seeking relief. Learned counsel for the petitioner also submitted that the respondents have, in fac factt never followed the transfer policy and has placed on record Annexure P P-13 and P-18 18 to demonstrate that the E-66 level officers have not been transferred for years altogether ranging from 16 years to 35 years. It was further submitted that Clause 4 of the transfer policy, clearly states that all the employees who have completed 10 years or more service upto the E E-5 5 level at their present place of posting will be considered for transfer at the time of their next promotion but the petitioner has been promoted to E--6 level, hence, the said clause cannot be exercised against the petitioner and therefore, he should have been retained at the same station and his promotion on 08.07.2024, much less the same cannot be a ground to transfer him to a different location. It is further submitted on the strength of Annexures P-14 and P-15 15 that the workload at Bathinda is much more than the workload at Vijaipur (Madhya Pradesh) as there are only 06 out of the total 18 cases at Vijaipur (Madhya Pradesh) which are active, whereas there are almost 28 active cases out of the total 31 cases pending at the Bathinda Unit. It was further averred that the stand taken by the respondents that the Vijaipur (Madhya Pradesh) Unit is a bigger Unit is also inconsequential for the reason that the petitioner is not involved in the operations and production management but is a legal officer whose nature of work cannot be equated with officers working in the managerial and technical cadres. Learned Counsel for the petitioner reiterated that the the only reason for his untimely and abrupt transfer was that the petitioner's seniors were displeased by the acts of the petitioner and his Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 5 transfer order is an abuse and colourful exercise of power and smells mala fide and therefore, deserves to be quashed.
quashe
6. Learned Senior counsel for the respondents had opened his arguments by submitting that, that at the outset, any notion of the petitioner being victimized should be dispelled. It was submitted that the respondents acknowledge that the petitioner is an outstanding tstanding and a brilliant employee and that the authorities have no complaint qua his conduct in performance of his duties. Learned Senior counsel submitted that as regards the issue that the petitioner's seniors were irked by the petitioner's actions, th thee correct picture is that respondent No.5 being the immediate superior of the petitioner cautioned him to which the petitioner expressed his regret and assured that such action would not be repeated, Consequently,, the said controversy ended there and then.
7. Learned senior counsel for the respondents submitted that the correct position is that the petitioner is a senior officer and was well versed with the departmental promotion process process,, was aware that, upon participating in the process and appearing before the DPC on 23.07.2023,, he was to be promoted to the E-6 E 6 level. It was further submitted that there is no E-66 level legal official available at the Vijaipur Unit ((Madhya Madhya Pradesh).. Given that Vijaipur Unit is the biggest Unit of the respondents; it necessitated the presence of an E-6 6 level officer to handle the myriad legal responsibilities at that Unit. It was submitted by the learned Senior counsel that the quantum of legal work at a particular facility cannot be solely judged by the number of cases cases pending before the Courts Courts, but also includes Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 6 vetting of contracts, contracts, day to day legal opinion, negotiation with employees and unions, important commercial decisions viz. tenders, non non-disclosure disclosure agreements etc. which requires the expertise and supervision oof an E-6 6 level official. The petitioner being experienced and sagacious, his services would be more impactful at Vijaipur (Madhya (Madhya Pradesh) and,, therefore, there is no illegality in the order passed by the respondents.
8. Learned senior counsel for the re respondents spondents has fairly admitted that there are certain officers of E-6 E level indeed been retained at Bathinda for years altogether, altogether however, that cannot be a ground for claiming parity with them, as the Respondent-company has the discretion to decide the posting sting of its employees keeping in view its best operational and financial interests. It was further submitted that all the officers of E E-6 6 level who have been retained at Bathinda are not taking care of the legal matters of the Company. Learned senior counsel counsel for the respondents submitted that as regards the issue that the petitioner being transferred on 05 occasions in the last 05 years, the true facts had not been brought before this Court. It was reiterated by the Senior counsel for the respondents that the petitioner joined the company as Management Trainee (Law) and was regularized in service in the year 2006 as Law Officer at Bathinda, which was anE-1 1 level post and thereafter, for 13 years until 2019, he remained posted at Bathinda and during which time period, he got three promotions and became an E E-4 4 level official yet continued to be stationed at Bathinda Unit. The petitioner was promoted to E-5 E 5 level on 01.07.2019 and was given a posting at the Nangal Unit. However, the petitioner did not join at the Nangal Unit and Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 7 instead made a representation requesting either to retained him at Bathinda or be transferred to the Corporate Office at Noida. A representation qua the said request was made on 05.07.2019 and considering his request he was posted at the Corporate Office Noida vide order dated 11.07.2019. However, the petitioner after serving for only one month at Noida again made a request on 09.08.2019 for his transfer to the Zonal Office at Chandigarh and the authorities showing consideration allowed lowed the petitioner to join at Chandigarh on 28.08.2019. The petitioner worked in Chandigarh for about two years and was again transferred to Bathinda vide order dated 05.08.2021 and remained posted at Bathinda till 26.07.2024. It was submitted that during during the total service of 18 years, the petitioner remained posted at the Bathinda Unit for about 16 years, in Chandigarh for 02 years and in Noida for a few months. In this background, it is wrong to portray that the petitioner was transferred 05 times times, as on several of these transfers were at the request of the petitioner himself, thus the petitioner cannot plead that he is being victimized.
9. At this stage, learned counsel for the petitioner had rebutted the claim of the respondents that the petitioner was transferred on several occasions on his own request and submitted that only the transfer to Chandigarh was made at the request of the petitioner. He relied upon clause 9.0 of the transfer policy to substantiate this averment and submitted ted that when an employee is transferred from one unit to another at his own request, the employee is not entitled to benefits like flexibility in joining Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 8 time, travel allowance etc. However the petitioner was granted all such benefits except on one occasion.
10. Per-contra,, Learned Senior counsel for the respondents has submitted that the opening lines of the transfer policy itself laid down the objective which is that all employees es of the Company are transferable to any Unit/Office/work place of the company in India based on administrative consideration keeping in view the enumerated objectives of the company.
company It was further submitted that it is the sole discretion of the management ent to decide as to which employee shall be best suited at a particular facility. It was further argued that transfer of a person to any part of India is incidental to the service conditions of an employee who is working in a Central Public Sector Undertaking.
Undertaking. An employee cannot claim to remain posted at a particular facility in contravention to the orders of the management. It was averred that since the transfer policy itself is not under challenge and the limited case of the petitioner is the alleged mala fide on part of respondents No.4 and 5, which themselves do not have any authority to pass a transfer order qua the petitioner, the present petition does not survive. It was contended that the in the absence of any allegations of procedural impropriety, the scope of judicial review shall be extremely limited and this petition is not maintainable on that score also. Posting and transfers are purely administrative matters matters, which are taken after careful consideration of all the factors which include operati operational onal efficiency etc. Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 9 The petitioner has tried to build up a case that the transfer is based on mala fide but the authorities are not disgruntled with the operational performance of the petitioner and the mala fides alleged by the petitioner can only get get as vague as it could be. Learned Senior counsel for the respondents has relied upon judgments of Hon'ble Supreme Court of India:
(i)State State of UP and Others vs. Gobardhan Lal, 2004 (11) SCC 402,, relevant paragraphs 7, 8 and 9
(ii)The The Government of A.P. Vs Vs.. G. Venkata Ratnam, 2008(4) SCT 1, relevant paragraph 7
(iii) Gujarat Electricity Board and Another Vs. AtmaramSungomal Poshani, 1989(2) SCC 602 602,, relevant paragraphs, 4 and 10,
(iv) Parbodh Sagar Vs. Punjab State Electricity Board and ors., 2000(5) SCC 630,, relevant paragraph 13.
and the judgments of Coordinate Bench of this Court in the following cases:
(i) Parveen Kumar Vs. State of Punjab and Ors, 2008(4) SCT 596, relevant paragraphs 6 and 8,
(ii)Raman Raman Sharma Vs. State of Haryana and Ors., 2022 (2) SCT 188,, relevant paragraphs 20 and 21.
In light of the above, learned senior counsel for the respondents submitted submit that the present petition being devoid of any merit and deserves to be dismissed.
11. Learned counsel for the petitioner in rebuttal ha had reiterated that there is no plausible response to the allegations levelled by the petitioner against respondents No.4 and 5 and has further relied upon the Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 10 judgment passed by the Coordinate Bench of this Court in Manish Kumar Vs. State of Haryana and Ors.,2023 Ors.,2023 SCC online P&H 4777 to submit that the transfer of the petitioner under the guise of administrative exigency is a farce and smells mala fide. It was submitted that the impugned order is demonstration of highhandedness, arbitrariness and colourable exercise of the power by respondents No.4 and 5 and the respondent corporation. More so, there is no specific reply filed by respondents No.4 and 5 against whom the allegations have been made.
12. Learned senior counsel for the respondents has submitted that since respondents No.4 and 5 have adopted the reply filed by respondents No.2 and 3, the allegations levelled by the petitioner have been replied to and it was submitted that there has been no communication between the petitioner and respondent No.4 and as regards to respondent No.5 it was reiterated that the petitioner himself had ha submitted that he had sent apology on the WhatsApp , which reads as under:
"Madam sorry for hurting you. That was totally unintended. I can never think to bypass your in instructions structions or go against your instructions. Next time I will discuss nothing."
The Respondent No.5 responded by submitting in clear terms that the apology stands accepted and the matter ended at that point only.
13. Heard learned counsel for the parties at length. The only issue which requires consideration is that whether the transfer of the petitioner Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 11 from Bathinda to Vijaipur (Madhya ( Pradesh) was an exercise tainted with mala fides or not.
14. At the outset, it is pertinent to reproduce certain n clauses of transfer policy (Annexure P-10) P 10) which read as under:
1.0 Objective All employees of the Company are transferable to any Unit/Office/work place of the company in India on administrative consideration keeping in view the following objectives of the company:-
1.1 Organizational needs for manning various positions 1.2 Exigencies of Company's work 1.3 Filling up of vacancies consequent upon promotion/retirement/VRS or employees or on creation of new assignment.
1.4 Rotation in assignment to provide exposure to different work environment and functional areas aimed at career development of employees. 1.5 Rotational transfer of employees holding sensitive positions.
2.0 Transfer on Operational Requirement Keeping in view the organizational/operational requirement of the Company employee can be transferred to any Unit/Office/Work Place of the Company at any time. 4.0 Employees completing 10 years continuous stay All the employees have completed 10 years or more service at their present place of posting will be conside considered red for transfer at the time of their next promotion upto E-5 level. 9.0 Transfer of Unit Head & Zonal Manager In case of transfer of employee from one Unit/Office to another on his/her own request, no transfer benefit like Joining Time Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 12 Disturbance Allowance, Allowance, etc. other than transfer TA for self will be allowed.
15. It was the specific stand of the respondents and had been argued that the petitioner was transferred on account of him having been promoted to the E-6 E 6 level. However, after careful analysis of the clause 4.0 of the transfer policy, it is comprehensible that clause 4.0 is applicable for employees who are promoted upto the E-5 E 5 level.
16. In light of the above,, this petition which was reserved on 13.08.2024,,was was fixed for rehearing on 20.08.2024 20.08.2024.This .This was necessitated by the omission in the transfer order,, which failed to specify the clause of the transfer policy under which the Petitioner was bbeing transferred. .
17. The said issue was addressed by the counsel for the petitioner and was submitted that the petitioner had been informed that the transfer was effected by virtue of Clause 4.0. However, the counsel for respondents No.2 to 5 contended contende that clause 4.0 was neither mention mentioned in the transfer order nor invoked. In fact, a co-joint co joint reading of Clauses 1.0 and 2.0 come comess into play and given that the petitioner had been promoted to a level beyond E-55 i.e. to E-6 E level, and Clause 4.0was was render rendered inapplicable qua the petitioner.
18. After hearing learned counsel for the parties and going through the record, what transpires is that there is no specific clause qua the employees who have been promoted ahead of E E-5 5 level and there is nothing which guides the Management for transfer of an employee beyond the E E-5 5 level. The transfer policy apparently is being exercised selectively and Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 13 there is no uniform application of of the same qua the employees above E-5 5 level and the same is validated by the perusal of Annexure P P-13 and P-17.
17.However, there is no concept of negative parity in law and just because someone else has not been transferred will not be a ground available tto o the petitioner to challenge his transfer. It is settled principles of law that the Government servant will have no vested right to remain posted at a place of his choice nor can he insist to be posted at a particular station. The Division Bench of this Court has further held in the judgment passed in case Parveen Kumar Vs. State of Punjab and Ors, 2008(4) SCT 596, in Para No. 6, which reads as under:
"We We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance, perused the record. The guidelines laid down by the State for the transfer of its employees from the place to another are for the guidance of officers and are not enforceable for the purpose of assailing their transfer.
transfer. These do not vest any immunity in an employee from transfer in Government service. Besides, transfer of an employee from one station to another is a normal feature and incident of service which does not, in any manner, alter the conditions of his service.
service. No Government servant can claim to remain at a particular post or a station of his choice."
19. Taking strength from the said judgment and the basic principles of law that transfer is an incident of employment and the Courts generally contain itself in interfering with the transfer of an employee until and unless the same is vitiated by violation of any statutory provisions or suffers from mala fide. In the present case the allegations are only qua Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 14 mala fide, as the petitioner has taken taken a stand that he is being transferred only on account of a noting qua the Court ourt proceeding proceedings, being not well worded.
20. Per contra, considering the arguments of the respondents that there is no mala fide as raised by the petitioner and re re-affirmation affirmation that the petitioner is outstanding and a brilliant employee and has unblemished record and is an a asset to the respondents-company company and the transfer is in the larger interest, interest as the facility at Vijaipur (Madhy Madhya Pradesh) which is much bigger than the facility at Bathinda, coupled with the fact that it is not only the number of cases pending but has to be seen the administrative requirement of the company.
21. In light of the above, this Court does not find aany ny merit in the present petition, petition as the petitioner has failed to demonstrate the mala fide,, for the reason that, that the process of promotion had initiated in 2023 and the petitioner was intimated qua his promotion on 08.07.2024 and subsequent thereto, has been transferred on 26.07.2024 and the only intervening event between 08.07.2024 and 26.07.2024 was a displeasure expressed on a noting in a Court case. Such an incident cannot be treated as mala fide, as it is not uncommon for seniors to correct one's work, however co-relating relating the same with transfer would be too farfetched arfetched and overly speculative.
Hence,, in the absence of any apparent mala fide and the other ground raised given that other employees have not been transferred does not constitute a valid ground for invoking the Court's extraordinary power under Article 226 of the Constitution of India for setting aside an administrative order as Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 15 there is no concept of Negative parity, parity, therefore, the present petition deserves to be dismissed.
Although the transfer policy is not under challenge but since, the transfer policy is the crucial document that outlines the parameters for employees transfer in a fair manner and it has bee been n observed by this Court that there is no uniformity in the application of the Transfer Policy on the ground that the Counsel for Respondents has admitted the factual position with respect to the Annexure P-13 P 13 to Annexure P P-17. Therefore,, in addition to the foregoing, foregoing, this Court also directs respondents No.2 and 3 to implement the transfer policy in a fair and unbiased manner manner,, ensuring it is not be used as a tool for victimizing or protecting their blue blue-eyed eyed employees. The matter should be thoroughly invest investigated into, as to why certain officers have not been transferred for nearly 35 years from Bathinda to Vijaipur Unit (Madhya ( Pradesh) despite their competence and the larger operational capacity of the Vijaipur Unit (Madhya Madhya Pradesh). It is apparent that the transfer policy may have been formulated to either applied selectively or if required be misused.
misused Thus the transfer policy which serves as a guiding force for employees transfer,, the same should be absolutely clear, transparent and free from discrimination and disparity. It is expected that respondent-Company respondent will adhere to this directive and if required take necessary steps to transfer such employees who are stationed at a particular station for an extended period, period lest the purpose of transfer will be undermined undermined.
Manju 2024.08.23 13:51 I attest to the accuracy and integrity of this document CWP-17797 17797-2024 (O&M) 16
22. Since vide order dated 05.08.2024, the joining time of the petitioner was extended upto the date of passing of this order, therefore, in the interest of justice, fair play and equity, the joining time of tthe he petitioner is further extended upto 06.09.2024.
23. Pending application(s), if any, stands disposed of.
(ALOK JAIN) JUDGE 23rd August, 2024 manju Whether speaking/reasoned:
speaking/reasoned:- Yes
Whether Reportable:- Yes
Manju
2024.08.23 13:51
I attest to the accuracy and
integrity of this document