Madras High Court
G. Prabhakaran vs Southern Petrochemicals Industries ... on 12 August, 1994
Equivalent citations: (1995)IILLJ6MAD
ORDER Kanakaraj, J.
1. The petitioner joined the services of the respondent as a Plant Operator Trainee on February 18, 1980. His duties are said to be to attend to the Chemical Control of the Laboratory engaged in analysing the raw materials and other products. With effect from November 1, 1985 he was posted Senior Technician (Operation). This apart, the petitioner claims to be an active member of the SPIC Employees' Union. He was elected as Vice-President during the years 1985-86 and 1988-89. During the year 1989-90, he was not elected. He was hoping to be nominated for the contest in the year 1993-94 for the post of the President. According to the petitioner, to prevent the petitioner from contesting the post of President, he was transferred to Madras. He joined duty at Madras on May 31, 1993. It is again the case of the petitioner that he was hoping to be nominated to contest the election for the post of Vice-President of the Union in June, 1993. It is the further case of the petitioner that to prevent such an election, the petitioner was deputed to Mehsana Project at Gujarat. He joined duty at Mehsana Project on June 18, 1993. When the period of deputation was to expire by March 31, 1994, an order was passed by the respondent, on March 22, 1994 transferring the petitioner from the S.M.O. Office, Madras to the Baroda Regional Office. This order was received by the petitioner on March 28, 1993 at Mehsana. The petitioner is said to have applied for leave and had come to Madras. By an order dated April 12, 1994 the petitioner was granted three days Casual Leave from April 6, 1994 to April 8, 1994. The petitioner has filed the present writ petition on April 11, 1994 seeking to quash the order dated March 22, 1994 transferring him to Baroda and to direct the respondent to retain the petitioner at Madras and report him to Tuti-corin. The writ petition was admitted on April 15, 1994 and an interim injunction was granted on the same day. According to the respondent the petitioner is now remaining at Madras receiving emoluments without doing any duty.
2. In the counter-affidavit filed by the respondent it is stated that the respondent-Company is a Company registered under the Indian Companies Act and it does not satisfy the requirements of State within the meaning of Article 12 of the Constitution of India. Therefore, it is contended that the writ petition under Article 226 of the Constitution of India is not maintainable. On merits it is contended that the several points raised by the petitioner are untenable. It is contended that there is no change or alteration in the conditions of service like wages, allowances, hours of work, leave or gradation of the petitioner, by virtue of the impugned order of transfer. Therefore, the reference to Section 9-A of the Industrial Disputes Act is without any basis. On the question of the applicability of Certified Standing Orders, the respondent says that the Certified Standing Orders are applicable only to the employees at Tuticorin. When the petitioner was transferred to Madras, which order is not challenged, the petitioner is governed by the Service Rules of the Company. However, both under the Certified Standing Orders (Clause 27) and Service Rules (Rule 45) the employee is liable to be transferred. The order of appointment also provides for transfer of the petitioner to any Division of the respondent-Company or to any place in India. So far as the necessity for deputing the petitioner to Mehsana Project and the ultimate transfer to Baroda they are justified by the respondent, by giving facts and figures. It is stated that the policy of the Company is to post senior employees to new assignments with a view to effectively utilise their experience. It is under these circumstances that the petitioner was sent on deputation to Mehsana Project. On the completion of the said Project, the petitioner was transferred to Baroda to assist the Regional Manager, in the creation and testing of laboratory equipments needed for the Project at Baroda. It is, therefore, contended that the transfer was due to exigency of work and due to administrative reasons. It is denied that the transfer was with a view to victimise the petitioner. In fact it is stated that the petitioner was an Office-bearer even according to him in the earlier years and not at the time of the impugned orders. The duty of the petitioner is not only to man the operation of various Chemical Plants but also to attend to the maintenance work and inspection of laboratory equipments and spares. It is also pointed out that the petitioner was not singled out and there were many others who were being transferred. It is also contended that there is a Regional Office at Baroda headed by a Regional Manager. They are concerned with the procurement of equipment and erection and maintenance of certain works. The transfer of the petitioner was to oversee the Quality Control, inspection of laboratory equipments, before delivery to the work spots.
3. On the above pleadings the first question to be considered is whether the writ petition is maintainable. It is not necessary for me to go through the gamut of decisions except to say that a writ petition will not generally lie against a Private Company which is not controlled by the State Government or the Central Government. So far as the respondent is concerned, it is clearly shown that it is purely a Private Company and not under the control of the State Government. Therefore, ordinarily the writ petition will not lie against the respondent-Company. But the jurisdiction of the Court while exercising powers under Article 226 of the Constitution of India is much wider and the apex Court has recognised certain amount of judicial control over the extending maze of bodies, which tend to affect the rights of the people. In MP Nos. 1659 and 2908 of 1993 in W.P. No. 1078 of 19931 had occasion to consider these aspects and referred to three important judgments of the apex Court and came to the conclusion that the Court can interfere and issue the prerogative writs where the court is satisfied that injustice has been caused to certain individuals or where the claim of the party approaching the court is 'just'. In other words if on the facts of a particular case, the court comes to the conclusion that a particular individual or a group of individuals have been visited with such gross injustice which is apparent on the face of the record and which no reasonable man can allow or permit, there is certainly room for extending the arm of justice ignoring the technical plea of maintainability. Therefore, I do not propose to hold whether the writ petition is maintainable or not without first considering the merits of the case. If on consideration of the merits of the case I find that the action of the respondent is so perceptibly unjust the court can interfere. If on the other hand, the complaint of the petitioner is capable of being rectified under normal channels of the law or if the complaint is not so serious, certainly, the court will hold that the writ petition is not maintainable.
4. With this background, I will try to find out whether there is any substance in the points raised by the petitioner and even if there is any substance whether the action of the respondent is so mala fide and unjust, that it requires interference by this Court even though the respondent is a Private Company. The argument of Mr. N.G.R. Prasad can be summarised as follows:
1. The order of transfer is vitiated by mala fide consideration and this is seen from the subsequent conduct of the respondent, in not obeying the order of interim injunction granted in W.M.P. No. 10553 of 1994 on April 15, 1994.
2. There is no branch office at all at Baroda and there is certainly no scope for any work for the petitioner who is a Senior Technician attached to a laboratory.
3. The impugned action would amount to unfair labour practice as adumbrated in the Industrial Disputes Act.
4. The impugned action will also amount to change in the conditions of the service and such a change cannot be undertaken without following the procedure under Section 9-A of the Industrial Disputes Act.
5. In support of the above contentions strong reliance is placed on the judgment of the Kerala High Court in P. Pushpakaran v. Coir Board (1979-I-LLJ-I39). A perusal of the facts of the said case would suggest that on facts the Court found that mala fide was writ large on the facts of the said case. In fact the general principles of law is laid down in the following words: (p. 143) "I made it clear that no one else disputed the power of an employer to transfer his employee for administrative reasons and a transfer could be called in question in a Court of law only when there was strong evidence in support of the mala fide plea. I have to decide the case on merits, since no agreed order can be passed."
It is in that context certain observations were made that the respondent should disclose all that is necessary to enable the Court to come to the conclusion that the order of transfer was justified. Secondly, in that case the respondent was admittedly a State within the meaning of Article 12 of the Constitution of India. In this case, the counter-affidavit clearly explains that there was no ulterior motive in transferring the petitioner to Baroda. It is stated that consequent on the formation of the SPIC maintenance organisation, many Senior Technicians were chosen for posting at Project areas to oversee erection and maintenance work. It is also stated that in the turn key projects were awarded to the respondent-company on stiff global competition and that the company was eager to complete assignments and maintain its name and prestige. This was the only reason for transferring the petitioner to Baroda after the completion of the Project at Mehsana. I am unable to see anything surreptitious or any evidence of ulterior motive which resulted in the order of transfer. There was an argument that the petitioner was not competent to inspect and approve equipments and that some other competent officer was fit for the job. In my opinion such managerial decisions cannot be undertaken by the Court, On the aspect whether there is a Branch Office or not, the respondent has explained in paragraph 36 of the counter-affidavit that there is a Regional Manager who is looking after the procuring of equipments for the erection and maintenance work. The argument of the petitioner that there is only a Resident Manager and that there is only a Guest House at Baroda cannot be accepted as a valid ground for invalidating the order of transfer. So long as the petitioner is not reduced in rank and the terms of his appointment warrants transfer to other places of the Company, the petitioner cannot complain. On the question of unfair labour practice, learned counsel for the respondent rightly points out that even according to the petitioner he was a Vice-President at Tuticorin only during the years 1985-86 and 1988-89. It is admitted that during 1989-90 the petitioner was not elected as Vice-president. If really the respondent wanted to victimise the petitioner they would have taken action in those years. On the other hand during 1993-94, the petitioner only says that he was hoping to be nominated for the post of the President. To a pointed question whether he was in fact nominated or elected, learned counsel for the petitioner says that he did not contest because of the transfer. Similarly, when the petitioner was transferred to Madras, he only says that he was hoping to be nominated for the post of Vice-President. There is absolutely no material before me that the petitioner was holding any Union Office when he was at Madras. It appears to me that the bogey of Union activities and victimisation is being raised only with a view to prejudice the mind of the Court and is not based on any acceptable material. I therefore, reject the contention that the petitioner is being victimised for his Union activities. In this connection it is also pointed out by the respondent that the petitioner was not singled out for transfer but as many as 33 persons had been transferred out of Tuticorin. On the question of the change in conditions of the service, I accept the stand taken in the counter-affidavit that a mere order of transfer would not amount to the change in the conditions of service. So far as emoluments are concerned the petitioner was drawing a total emoluments of Rs. 6,258/-. At Mehsana he was drawing only Rs. 5,904/- and that is only due to the fact that the House Rent Allowance was less in Mehsana. Further, City Compensatory Allowance was not payable at Mehsana. The same is the position when the petitioner is transferred to Baroda and that he will be drawing a total emoluments of Rs. 5,904/-. While on this aspect of emoluments I might add that the petitioner is not a low paid employee who can complain about transfer to far off places affecting his livelihood.
6. Mr. N.G.R. Prasad was harping upon the word "frequent transfers", but on facts I do not find any such frequent transfers in this case. After all, the petitioner was transferred from Tuticorin to Madras and then deputed to Mehsana. That cannot be a transfer order. Thereafter on completion of the deputation, he was transferred from Madras to Baroda. Therefore, there is no question of the petitioner being subjected to frequent transfers.
7. There was a faint argument about the Standing Orders not being in accordance with the Model Standing Orders. The Standing Orders had been framed in the year 1979 and Cl. 25 provides for transfer. The Certified Standing Orders were never challenged by the petitioner. Srinivasan, J. in W.P. No. 14291 of 1992, The Workmen rep. by the Secretary, Addison Paints and Chemicals Ltd. Assistant's Association, Madras v. Management of Addison Paints and Chemicals Ltd. Perambur, Madras dated April 23, 1993 has this to say on the subject:
"I agree with the learned Judge and hold that the absence of a provision in the Standing Orders does not disentitle the management to pass an order of transfer, particularly when in the contract of service, the employee has undertaken to serve the company in any capacity as may be decided by the Company."
I may also add that the learned counsel for the respondent relies on the judgment of Mohan, J. as he then was, in Fenner Staff Association, Madurai v. Fenner (India) Ltd., Madurai 1986 (1) Lab LN 458 where the learned Judge points out that on the ground of unfair labour practice, a writ petition cannot be maintained and that the right of the employee is only to raise an Industrial Dispute. For all the above reasons, I have no hesitation in holding that the impugned order of transfer is absolutely innocuous and it does not certainly shock the conscience of a reasonable person. In other words, it is not an unreasonable or unjust order. On the other hand, I have said enough to show that the order of transfer is purely due to administrative reasons and the exigencies of work in the company. This will lead to the finding that the writ petition itself is not maintainable because I have already held that a writ petition is not ordinarily maintainable against a Private Company. The result of my above analysis is that the writ petition fails and it is dismissed. All interims order are vacated. No costs.