Madras High Court
T.Mookiah vs Tamil Nadu State Transport on 7 July, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.16199 and 16200 of 2011 and M.P.Nos.1,1,2 and 2 of 2011 T.Mookiah .. Petitioner in W.P.No.16199 of 2011 N.Viswanatham .. Petitioner in W.P.No.16200 of 2011 Vs. Tamil Nadu State Transport Corporation (Coimbatore) Ltd., rep by its General Manager, Mettupalayam Road, Coimbatore-641 043. .. Respondent in both writ petitions W.P.Nos.16199 and 16200 of 2011 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the order passed by the respondent in his proceedings No.2058/E3P/52P/Pa thu1/Tha.A.Po.Ka(Ko)/2011 dated 2.7.2011 insofar as the petitioners are concerned and to quash the same. For Petitioners : Mr.K.Elango For Respondent : Mr.G.Muniratnam - - - - COMMON ORDER
Both the writ petitioners are conductors employed by the respondent State owned Transport Corporation having headquarters at Coimbatore. They have come forward to file the present writ petitions challenging an order dated 2.7.2011 wherein and by which the petitioner in the first writ petition was transferred from Uppilipalayam (at Coimbatore) to Ooty Depot-2 and that the petitioner in the second writ petition was transferred from Sungam-1 to Kothagiri. It was stated in the said order that the transfers have been made for administrative reasons.
2.The petitioners contended that the transfers have been made mala fide as they were the activists of the trade union affiliated to DMK party. After the advent of the new Government, by way of victimisation they have been transferred. It is also stated that the trade union having affiliation to the ruling party at present, asked them to become their members. When they refused, at their instance the transfers have been made. It was further stated that while the petitioner in W.P.No.16199 of 2011 was having heart problem, the petitioner in the second writ petition was a protected workman in terms of Section 33(3) of the Industrial Disputes Act. It was also stated that the order of transfer will amount to unfair labour practice prohibited under Section 25(t) of the I.D. Act
3.However, this court is not inclined to accept the said plea. The allegations of mala fide are too vague to be entertained by this court. It is also an admitted case that the certified Standing Order applicable to the respondent Corporation provides for transfer. The question of invoking Section 33(3) will arise only when there is dispute pending. Even in such case only when there is alteration of service condition, the said provision gets attracted.
4.In this context, it is necessary to refer to the following judgments of the Supreme Court. The Supreme Court in E.P.Royappa Vs. State of Tamilnadu reported in 1974 (4) SCC 3 in paragraphs 91 and 92 had observed as follows:
"91....The only question before us is whether the action taken by the respondents includes any component of mala fides; whether hostility and malus animus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary.
92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set upthese considerations are wholly irrelevant in judicial approachbut because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.
5.Further, the Supreme Court in M.Sankaranarayanan, IAS Vs. State of Karnataka and others reported in (1993) 1 SCC 54 in paragraph 12 had observed as follows:
12. After considering the respective contentions of the learned counsels appearing for the parties, it appears to us that the appellant has not been able to lay any firm foundation warranting a finding that the impugned order of transfer was passed mala fide and/or for an oblique purpose in order to punish the appellant and/or to humiliate him. The pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State. Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him. It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. In the instance case, we are unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn. It is an admitted position that the Chief Secretary and the Chief Minister had differences of opinion on a number of sensitive matters. If on that score, the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and post a very senior officer of their confidence to the post of Chief Secretary, it cannot be held that such decision is per se illegal or beyond the administrative authority. The position in this regard has been well explained in Royappa case1 by this Court.
6.Futher, the Supreme Court in State of U.P. Vs. Siya Ram and another reported in 2004 (7) SCC 405 in paragraph 5 had observed as follows.
5.The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan 1.
7.In the light of the above, both the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
vvk To The General Manager, Tamil Nadu State Transport Corporation (Coimbatore) Ltd., Mettupalayam Road, Coimbatore 641 043