Delhi High Court
Shri H.N. Kaul vs Press Trust Of India And Anr. on 14 December, 2007
Author: Mukundakam Sharma
Bench: Mukundakam Sharma, Sanjiv Khanna
JUDGMENT Mukundakam Sharma, C.J.
1. The appellant herein was a journalist working with the Press Trust of India (for short 'PTI'), respondent No. 1 herein. While he was working as such, a decision was taken by the Board of Directors of PTI that a senior Journalist should be posted to Cairo. Consequent to the aforesaid decision, a transfer order was issued by the General Manager of PTI whereby the appellant herein was transferred to Cairo by order dated 7th October, 1992. After receipt of the aforesaid letter on 12th November, 1982, the appellant wrote to the General Manager stating that he was not able to accept the generous offer of posting to Cairo due to domestic and health reasons. The General Manager again issued a letter on 4th May, 1983 to the appellant herein informing him about the decision of the Board that the appellant should be posted to Cairo. It was further informed in the aforesaid communication that the appellant would be released from the Delhi Office on 15th May, 1983. The appellant, however, did not proceed on transfer but was asking for cancellation of the order of transfer on the ground of his health. Subsequently, near about last part of December, 1983, the appellant took up a plea that the order of transfer is mala fide and amounts to his demotion, as according to him he being a Group 'A' journalist, could not have been posted to Cairo, stated to be a Group 1B posting.
2. So far the allegation of mala fide is concerned, it was the plea of the appellant that the aforesaid order of transfer was passed as a measure of punishment as he had made certain representations to the Board. In view of the aforesaid allegations made, which were denied by the respondents, an industrial dispute was raised and the matter was referred to the Industrial Tribunal on the following terms of reference:
Whether the transfer of Sh. H.N. Kaul to Cairo is malafide and/or unjustified if so, to what relief is he entitled and what directions are necessary in this regard.
3. The Tribunal, while considering the reference, received evidence adduced by the parties and thereafter passed an award holding that since Shri H.N. Kaul, workman belonged to Group 1A, his transfer to Cairo by the management under letter dated 4th May, 1983 as Foreign Correspondent on a post which falls in Group 1B i.e. to a lower post, made without his consent, was not legal or justified.
4. PTI, being aggrieved by the aforesaid award passed by the Tribunal, filed a writ petition before this Court. In the said writ petition it was contended by the PTI that the allegation of mala fide was merely an afterthought, as the said allegation was made for the first time after 1' years of the issuance of the aforesaid transfer order and prior to the same the appellant was evading transfer to Cairo only on the ground of his health. It was also submitted that the appellant was functioning in Group 1B and was always functioning as a Special Correspondent and that even after in 1980, the only change that took place was that he was given the scale applicable to Group 1A. It was submitted that he was always functioning and performing as Special Correspondent and that his posting to Cairo cannot be termed as a posting on demotion as such posting was also given to Senior Correspondents like the appellant. PTI also relied upon a few paragraphs from the Palekar Award laying down as follows:
Special Correspondent is a person who is accredited to the Union Govt. and whose regular duties are to report news of Parliamentary, political or general importance of a person in a Metropolitan Center who specializes in covering news of economic importance or national or international nature.
The Palekar Award also says that 'It is not obligatory for a newspaper establishment to employ and or all of the categories mentioned in the group above. Some of the functions may be combined, in which case the employees shall be deemed to belong to the highest category of which functions are normally performed by him. Any of the categories mentioned in para 14-I above which is treated by any newspaper establishment as belonging to a higher group shall, so far as that establishment is concerned, continue in the higher group.
5. The aforesaid writ petition was heard and after consideration of the records, the same was allowed by the learned Single Judge and the award passed by the learned Industrial Adjudicator was set aside, holding that there was neither any demotion of the appellant in his posting at Cairo nor there was any mala fide established in issuing the said transfer order. The learned Single Judge held that there was nothing to suggest that the appellant herein was demoted or on transfer the appellant became Group 1B journalist. It is observed that transfer was an incident of service of the appellant.
6. While coming to the aforesaid conclusion, reliance was placed by the learned Single Judge on the letter dated 12th November, 1982, which was written by the appellant stating that for domestic and health reasons, he was unable to accept the aforesaid generous offer of posting to Cairo. In the said letter, the appellant never raised any issue with regard to mala fide or demotion in respect of his transfer to Cairo till 3rd March, 1983.
7. As against the aforesaid decision rendered by the learned Single Judge, the present appeal is preferred on which we have heard the learned Counsel appearing for the parties.
8. The background facts which are referred to herein before and the facts of the present case would clearly establish that initially when the order of transfer was passed and served on the appellant, neither any case of mala fide nor any case of demotion was sought to be made out by the appellant. The appellant, however, did not comply with and obey the order of transfer, pointing out that his health was not permitting him to carry out the order of transfer immediately. After expiry of about more than a year, for the first time the appellant took up a plea that the aforesaid order of transfer was actually an order of demotion for him as he was being transferred and posted to Cairo as Foreign Correspondent, allegedly a Group 1B post, although, according to him, he belonged to Group 1A.
9. In the transfer order it was not stated that the appellant is being transferred as a Group 1B Journalist and he is not entitled to salary as a Group 1A journalist. It was only stated in the said order of transfer that the appellant is being transferred to Cairo. Therefore, the status and position of the appellant as Group 1A Journalist is being maintained and the same is not in any manner prejudicially affected merely because he was posted to Cairo. The assumption drawn by the appellant is wrong. Para 9 of the Recommendations of the Palekar Award reads:
9. It is not obligatory for a News Agency to employ any or all of the categories mentioned in the groups above. Functions of some categories may be combined, in which case the employee shall be deemed to belong to the highest category of which functions are normally performed by him. In other cases, the principal duties performed by an employee should determine the category of the employee, neither designation nor casual or occasional work should be taken into account for such categorisation. If any News Agency has placed any of the categories mentioned in paras 7 and 8 in a higher group, that category shall continue in the higher group.
10. Thus a News Agency is a liberty to combine functions of some categories mentioned in the Groups and an employee is deemed to belong to the highest category depending upon the normal or the principal function performed by him. Further if a category has been placed in the higher group by a News Agency, the category would continue to be placed in the higher group. It has been stated by the respondent that before and after 1980 the appellant was covering government departments as a Special Correspondent but was brought in Group 1A for the purpose of pay scale only but the nature and character of his duties and functions remained same as before. Thus the induction of the appellant to Group 1A in 1980 was only for the purpose of wages and emoluments. The appellant before his transfer was working as a Special Correspondent and on his transfer was posted as Foreign Correspondent. Both the posts of Special Correspondent and Foreign Correspondent are equivalent Group 1B posts. Thus, there was no demotion. It is admitted that salary payable to the appellant was protected and, therefore, even on transfer the appellant was entitled to be paid Group 1A salary.
11. So far as the allegation of mala fide is concerned, mala fide was alleged as against the General Manager but the decision to transfer him and posting at Cairo was taken not by the General Manager but by the Board of Directors of PTI, which consisted of persons like, Justice J.C. Shah, former Chief Justice of India, Mr. Ram Nath Goenka of the Indian Express, Mr. C.R. Irani of the Statesman, Prof. P.G. Navalankar, Member of Rajya Sabha and other renowned and famous persons, who decided that the appellant should be posted to Cairo and the General Manager only communicated the said decision taken by the Board. But the facts of the case make it explicitly clear that the appellant did not go to Cairo initially, writing to the General Manager to keep the transfer in abeyance and then appealing to the Chairman for cancellation of the transfer order on the ground of his health. Even thereafter when he was communicated the decision of the Chairman under letter dated 20th June, 1983 that he should proceed to Cairo, the appellant kept evading his transfer on one pretext or the other till December, 1983 when he for the first time took up the plea that the aforesaid order is an order of demotion and was issued in mala fide.
12. It has been contended by the appellant herein that the High Court in the exercise of its extra ordinary writ jurisdiction should not have gone into, examined and set aside the findings of the learned Industrial Tribunal. We have considered the submissions of the learned Counsel for the appellant. To transfer employees is a right of the employer. Employment of the appellant was transferable. It is for the employer to decide who should be posted and transferred. Courts and Tribunals do not step into the shoes of the employers and decide how and in what manner management should be carried on. Courts have always desisted from interfering in transfers, unless the transfer order is vitiated for malicious reasons or is contrary to the rules. The scope for the Courts and Tribunals to interfere is limited. It is in this limited context that the learned Single Judge and we have examined the award. Scope of judicial review though limited entitles us to examine whether the Industrial Tribunal has misdirected itself, relied upon irrelevant material and ignored relevant material or has exceeded its jurisdiction.
13. Considering the facts and circumstances of the case, we are of the opinion that the appellant is unable to make out any case either of malafides or a case of demotion as the status and position of the appellant was being maintained and was not being in any manner disturbed or affected under the order of transfer. It is nowhere the case of the appellant that by the aforesaid order of transfer, the appellant was not being given the benefit of Group 1A pay scale. Rather his emoluments would have been definitely better and he would have been entitled to a substantial amount as foreign allowance had he complied with the aforesaid order of transfer. The appellant was being given a foreign posting, which is considered as a prestigious and challenging posting. As mentioned in the pleadings, the appellant himself had held such postings in the past. Under the Palekar Award also a Foreign Correspondent has been placed in the same group as a Special Correspondent, who is given Group 1A status. Therefore, the appellant would have got the same status had he joined the aforesaid posting at Cairo.
14. Considering the facts and circumstances of the case as discussed above, we are of the considered opinion that the learned Single Judge appreciated the facts in right perspective and did not commit any error or falter in recording that the order of transfer issued by the respondents transferring the appellant to Cairo is neither a case of demotion nor a case of mala fide action.
15. We find that cogent reasons have been given by the learned Single Judge for upholding the said order. The appeal has not merit and is dismissed.