Madras High Court
V. Periasamy vs Nuclear Power Corporation Of India Ltd. ... on 2 April, 2002
ORDER K.P. Sivasubramaniam, J.
1. In this writ petition, the order of the 1st respondent dated 26.09.2001 which is sought to be quashed, is an order of transfer. The petitioner who is now working as a Driver-cum-Operator in the office of the third respondent, is questioning the order transferring him from Kalpakkam (Chennai) to Rajasthan Atomic Power Station. The transfer is questioned on the following grounds:-
(a) There is no provision to transfer an employee of Class "C" cadre from one to State to another.
(b) When the petitioner tried to represent the matter before the authorities, he was denied audience by the second respondent.
(c) His wife is under intensive treatment for certain ailments at Porur Ramachandra Medical College Hospital.
(d) He is the only Scheduled Caste employee in the grade in which he is working and he had been transferred vindictively.
(e)The order of transfer is a colourable exercise of power.
2. In the counter, while denying the various allegations, the respondents contend that there is no regulation which prohibits transfer of Group "C" employees and enclosures have been filed to show many earlier instances. The employees are liable to be transferred to any place in India. Though the petitioner was originally recruited in Madras Atomic Power Project, subsequently he was absorbed in the Nuclear Power Corporation of India. The services of such employees shall be available to all the Units. The need to transfer the petitioner was immediate considering the present need to equip the Fire Stations in the background of Security scenario and the vital role of Fire Service in handling emergencies. Therefore, there is no question of any victimisation. He was relieved on 1.10.2001. There is no truth in the contention that he was denied permission to meet the second respondent. Such an allegation is only an after thought.
3.In the counter, certain details relating to the alleged happenings of violation of law and order at the instance of the SC/ST Association of the Department of Atomic Energy had been stated in detail. According to the respondents the conduct of the petitioner and the members of the Association had resulted in law and order situation, arrest of several individuals etc. and I do not propose to go into those details as they are not necessary for the disposal of the writ petition.
4.As regards the illness of the wife of the petitioner, it is stated that there are sufficient hospital facilities at Rajasthan Atomic Power Station Township which is similar to the hospital available at Kalpakkam also with facility to refer the cases to the specialised hospitals at Kota, Jaipur and Mumbai. It is further stated that all specialised treatments are available. It is further stated that the Department bears complete medical expenses in the event of the patient being referred to specialised hospitals. The petitioner's wife will not be deprived of any medical facility or expenses for the treatment. Therefore, the transfer of the petitioner will not affect the medical treatment given to his wife.
5.Miss.Arul Mozhi, appearing for the petitioner contends that the entire transfer was based on communal bias as the petitioner happens to belong to SC community. The involvement of SC/ST Association was only due to the bad treatment meted out to the petitioner and the authorities would not even condescend to take into account the human problem of the illness of his wife. Learned counsel also placed before me the various medical reports relating to the treatment given to the petitioner's wife. According to learned counsel the ailment requires sophisticated treatment and at present she was an inpatient in Christian Medical College Hospital (C.M.C.) Vellore. Her conditions were complicated and she may not be able to receive appropriate treatment in Rajasthan. The respondent is a mighty public organisation and ought not to take a vindictive stand and it is not as though no other individuals doing the same kind of work were available through out India.
6. Mr.N.Jothi appearing for the respondents would however, states that the transfer was effected only on bona fide grounds as a result of the prevailing adverse conditions in the border areas of the country in Rajasthan Region where additional hands to operate sensitive equipments were required. The transfer was thus effected, only on compelling circumstances, but the petitioner would appear to think that he was beyond the normal Rules and Regulations just because he belongs to S.C. community. Learned counsel stated the facts relating to the law and order situation which was allegedly created by the SC/ST Association and that it would not be healthy to be cowed down by such unethical conduct at the instance of a single employee for his own personal ends. He would also state that there were more than 23 personnel belonging to SC/ST community in the Fire Service Station out of a total of 61 persons. There was also one more driver by name Murugan in the same category and hence there was no basis or truth in the contention that the petitioner was the only S.C. Employee. Such false averments were being made only to prejudice this Court. Nor is there any truth in the allegation of bad treatment only because the petitioner belongs to S.C. Community. Learned counsel also submitted a memorandum which was filed on 12.03.2002 in which it has been stated that medical facilities are provided free of cost irrespective of the nature of the expenditure since the petitioner is covered under Contributory Health Service schemes. The leading hospitals at Delhi, Mumbai, Tata Memorial Centre Hospital, Mumbai, Hinduja Hospital, Bhabha Atomic Research Centre Hospital, Mumbai are covered under Contributory Health Service Scheme where the petitioner can continue treatment for his wife. The management will extend all medical facilities to the petitioner's wife although the petitioner had neither given any representation nor requested for extension of medical benefits under Contributory Health Service Scheme. No representation has ever been made by the petitioner on the ground of health of his wife. However, considering the suggestion by the Court, the management was agreeable to permit a justifiable period of time for joining of duty at Rajasthan if a proper request for sanction of grant of leave was made by the petitioner. During the said period medical facilities can be extended to the petitioner's wife as a special case. It is further stated that certain temporary arrangements have been made as a result of the petitioner's continued disobedience of order of transfer and unauthorised absence. But the situation cannot be continued indefinitely.
7.Mr.N.Jothi, learned counsel for the respondents also produced Discharge Certificate issued by C.M.C. Hospital on 13.3.2002 and therefore, according to him, it is not as though she had to be under any constant medical care only at Chennai. At any rate, Vellore was far away from Kalpakkam. All the sons and daughter of the petitioner were well-settled and all the three sons were employed in Government/Public Sector undertakings. In fact, two of them were in the Northern part of the India. The only daughter of the petitioner was married. Therefore, there was no valid ground for refusing to obey the order of transfer.
8.I have considered the submissions of both sides. It is settled proposition of law that an order of transfer should not be interfered with unless it is without jurisdiction or vitiated by mala fides. A perusal of the affidavit of the petitioner discloses no such allegations, except for stating that he belongs to S.C. Community. The only issue which is to be considered is the illness of the wife of the petitioner.
9.When I suggested that considering the allegations that the petitioner's wife was suffering from a serious ailment, she may be sent for medical examination and a report be called for from any one of the Government Hospitals at Chennai, learned counsel for the respondents submitted that it may be set up a precedent for all orders of transfer which will be resorted to by others also and that the report of the CMC hospital itself was sufficient to show that she had been discharged and she had been advised only to take 60 mg. Prednisolone tablet daily and had been advised only to follow treatment as an outpatient.
10.A simple case of transfer appears to have been blown up into unnecessary proportions. At this stage it is no use in trying to find out who was responsible for the episode resulting in law and order situation and arrest of several persons. In the absence of allegations of personal mala fides, the Court has to give due regard to the submissions of the respondents that the transfer was effected only due to the compelling needs in the border areas in view of the prevailing conditions. Transfer is an incident of service and even in the case of SC/ST employees, the Supreme Court had pointed out in LAXMI NARAIN MEHAR v. UNION OF INDIA AND OTHERS (1997 S.C.C., L & S., 643)that when transfer was effected in view of the need for the experienced staff and due to administrative exigency, the transfer ought to be held valid. It was also held that even though the SC/ST employees are entitled to be considered for posting near their home towns as far as possible, yet the said concession was subject to administrative exigencies. The petitioner in that case was given liberty to make a departmental representation.
11.As regards the physical conditions of the petitioner's wife, the medical report discloses that she requires treatment in a Centre which is competent to manage the particular type of disease vide report of Dr.Alok Srivastava, March 12, 2002 "This is to certify that Mrs.P.Souvunthiri, CMCH No.117134C, W/o.V.Periasamy is a case of chronic ITP who has failed splenectomy. For this disease patient needs treatment in a centre which is competent in managing this type of disease."
These are matters which have to be considered by the department on being furnished with a proper representation from the petitioner. The petitioner ought to have furnished all the details relating to the physical conditions of his wife to the authorities instead of having taken the same to the streets in the name of his community and to have created law and order situation. Communal organisations should take interest only in basic issues common to the community and strive for the upliftment and development of the community and cannot be used as a lever for blowing up individual cases resulting in indiscipline and law and order situation. If every community indulges in such activity on an order of transfer of an individual employee, it will lead only to anarchy. No community is above the Rule of law. Exaggerated claims and false accusations should also be avoided. For instance, while the petitioner claims to be the only person belonging to the SC/ST community working as a Driver-cum-operator, in the counter, it is stated that there is one other person by name Murugan. It is also stated that out of 61 employees, 23 belonged to SC/ST community. Therefore, such wrong statements by the petitioner on facts cannot be appreciated. When the petitioner had thought it fit to approach the Court now for redressal of his grievances, he should have done it even earlier instead of having created law and order problem and harassing the public just for his own personal interest.
12.At the same time, the administration also should be alive to individual problems and difficulties and they should also be easily amenable to representation of such issues from employees to whichever category they may belong to. There appears to have been communication gap in considering the illness of the petitioner's wife. Such issues should be examined objectively instead of adopting a rigid stand. It is seen that the wife of the petitioner is suffering from some ailment as various reports disclose and the Department has to consider as to whether it would be necessary to require the petitioner to go over to Rajasthan. It is stated that the petitioner's wife has nobody else except the petitioner to look after her.
13.I am therefore, of the opinion that the respondent should consider the issue afresh in the context of the materials to be furnished by the petitioner regarding the health of his wife which should be considered sympathetically and objectively instead of being carried away by the antecedent facts and the conduct of the petitioner in the context of the impugned order of transfer. At the same time, it is essential to maintain discipline and it is expected of the petitioner to conduct himself in a manner consistent with the need to enforce discipline at all levels and not to indulge in any action breaching discipline. The management has also offered to look into the grievances provided a request for sanction for the grant of leave is made by the petitioner.
14.In the result, following order is passed:-
(i)The petitioner shall forthwith forward an application for leave for a period of two months and the respondent may sanction the same subject to Rules and Regulations.
(ii)Within a week from today, the petitioner shall forward a representation to the respondents containing all particulars relating to the illness of his wife with supporting documents.
(iii)On receipt of the said representation, the respondents are directed to consider the same on merits and pass appropriate orders by reconsidering the order of transfer at the earliest.
(iv)Till further orders are passed by the respondents, the transfer shall not be given effect to.
(v)The petitioner is warned against involving himself in any activity prejudicial to the discipline in the office and if he acts in such a manner, he shall not be entitled to the benefits of this order and the order of transfer shall take effect forthwith.
15.The writ petition is disposed of subject to the above observations. No costs. Connected miscellaneous petition is closed as unnecessary.