Govind Pratap Singh v. Managing Director (Personnel) U. P. State Road Transport Corporation
1992-07-13
R.B.MEHROTRA
body1992
DigiLaw.ai
JUDGMENT : R.B. Mehrotra, J. By means of the present writ petition, the Petitioner has challenged the order, dated 31-12-1991. filed as Annexure 3' to the writ petition transferring the Petitioner from Azamgarh Depot to Dehradun Hill Depot. 2. The aforesaid transfer order has been challenged by the Petitioner mainly on the following grounds: Firstly that the order of transfer has been passed in violation of the instructions, dated 29-9-1989 issued by the Uttar Pradesh Road Transport Corporation (hereinafter referred to as the U.P.S.R.T.C.). Secondly, that the transfer order has been passed on the basis of the complaint made against the Petitioner and as such the transfer order is an order ot punishment and the same has been passed without affording any opportunity of hearing or show cause to the Petitioner. Secondly, that the transfer order is in effect the order of diminution of the Petitioner from the post of the fitter to the post of Mazdoor. The said order of punishment and the same has been passed without affording any opportunity of hearing or show cause to the Petitioner is bad in law, and Fourthly, the Petitioner being a IV class employee could not have been transferred in view of the decision of the Supreme Court in B. Varadha Rao Vs. State of Karnataka and Others, (1986) 4 SCC 131 . 3. Necessary facts, in brief, are as under: The Petitioner was initially appointed as Mazdoor on daily wages basis from year 1978 and later on was appointed on regular basis from 9-7-1980 at Donri Ghat Depot, Azamgarhi The Petitioner was transferred at Azamgarh Depot. Azamgarh on 3-3-1981 as Mazdoor. Since the year 1981 to the date of the order of transfer, the Petitioner had continued to work at Azamgarh Depot. The Petitioner alleges that the Petitioner is the president of the Union, namely Uttar Pradesh State Road Transport Corporation Employees Union, Depot Ajamgarh and was elected as president in the month of April, 1990 and continued to hold the said office on the date the order of transfer was passed The Petitioner was promoted to the post of Fitter by an order dated 31-12-1991 the date on which the transfer order has been passed against the Petitioner. The Petitioner was promoted as Fitter by the Service Manager, UP S.R.T.C. Azamgarh.
The Petitioner was promoted as Fitter by the Service Manager, UP S.R.T.C. Azamgarh. In the transfer order which has been communicated from the office of the General Manager (Administration) Lucknow on the same date i.e., 31-12-1991, the Petitioner has been described as Mazdoor. On the basis of the aforesaid order, the Petitioner contended that since he was promoted as Fitter, he could not have been transferred as Mazdoor. 4. I have heard Sri R.G. Padia, learned Counsel for the Petitioner and Sri S.K. Sharma, learned Counsel for the U.P.S.R.T.C. 5. During the course of arguments it was disclosed by Sri S.K. Sharma that the powers to make Inter-zonal transfers vest in the Managing Director and the Managing Director passed the order in respect of the Petitioner transferring him from Azamgarh Depot to Dehradun Depot. This contention was challenged by Dr. Padia who stated that the order shows that it has been passed by the General Manager and not by the Managing Director. To meet this objection, I asked the learned Counsel for the U.P.S.R.T.C. to produce the original record since no specific point in the writ petition was taken regarding this objection. The original record was produced before me which disclosed that the order has been passed by the Managing Director and the order filed as Annexure 3' to the writ petition is only a communication of the order passed by the Managing Director. 6. A detailed counter affidavit has been filed in the case which discloses that since the Petitioner was posted at the same place for almost ten years, the Petitioner developed the vested interest therein and there were complaints of general nature against the Petitioner that the Petitioner is creating law and order problem on the Roadways Bus Station and is harassing the passengers and particularly harassing the women passengers. The Supdt. of Police, Azamgarh made a complaint on 28-10-1991 to the Managing Director, U.P.S.R.T.C. reporting an incident dated 26-10-1991 and thereafter that Amar Jit Singh and Govind Singh's retention in the Azamgarh Depot can create law and order problem since both the aforesaid employees are local leaders of the Union, therefore, the Roadways officers are finding themselves unable to take any action against them It was requested that these persons may be transferred. Subsequently by a letter, dated 30-10-1991, the Reginal Managing sent a note to the Addl.
Subsequently by a letter, dated 30-10-1991, the Reginal Managing sent a note to the Addl. General Manager, Lucknow making general complaint of the employees posted at Bus Station, Azamgarh regarding their misbehaviour with the officers of the Corporation and regarding their misbehaviour with the general public and passengers at-, the But Station. It was also mentioned that these persons are local people and have been staying at the same place for last more than ten years, and have created a vested interest at Azamgarh. The matter was ultimately brought to the notice of the Managing Director who directed that these persons should be transferred, as suggested by the General Manager (Administration). On the basis of the aforesaid order, the Petitioner has been transferred along with 3 other persons to various places. 7. Sri S.K. Sharma has contended that the policy direction issued by the Corporation, dated 29-9-1989 regarding transfers of the Corporation employees is of general nature It specifically permits transfers on administrative reasons and in special circumstances the employees can be transferred throughout the State. Sri Sharma also contended that in the present case even the District Magistrate, Azamgarh wrote a letter, dated 10-12-1991 to the Managing Director of the Corporation recommending transfer of the Petitioner and 4 other persons from Azamgarh Roadways Bus Station to some, other place as these persons were creating law and order problem on the Bus; Station. Since the District Magistrate himself recommended transfer of the, Petitioner, it was not necessary for the respondent to have obtained permission of the AddL District Magistrate for transferring the Petitioner who were office bearers of the Union as is contemplated by Circular, dated 29-9-1989. 8. Sri Sharma has contended that even if the order is in violation of the Government instructions, the Hon'ble Supreme Court has ruled that the appropriate remedy for the employee is to make a representation to the higher authorities. It does not give any vested right in the employee to challenge the order of transfer in a court of law.
8. Sri Sharma has contended that even if the order is in violation of the Government instructions, the Hon'ble Supreme Court has ruled that the appropriate remedy for the employee is to make a representation to the higher authorities. It does not give any vested right in the employee to challenge the order of transfer in a court of law. Sri Sharma also contended that if a transfer is made on the basis of a general complaint against an employee and the transfer is not mala fide and is in publio interest, such if transfer is a transfer made for administrative reasons and should not be interfered with by this Court in exercise of its Jurisdiction under Article 226 of the Constitution of India. It was also contended by Sri Sharma that at the time of the passing of the order of the transfer, the promotion of the Petitioner was not in the knowledge of the General Manager communicating the transfer order from Lucknow as on the same day, the Petitioner was promoted to the post of Fitter. The Petitioner will be given the posting on the post of Fitter in Dehradun Depot and there is no question of diminution of the Petitioner on the transferred post. Lastly Sri Sharma contended that in the case of B. Varadha Rao (supra), the Hon'ble Supreme Court has not laid down that III or IV class employees should not be transferred in any circumstances whatsoever. It only observed that 111 and IV class employees stand on a different footing in matters of transfer and the Government will keep these considerations in view while making the order of transfer. 9. On behalf of the Petitioner as well as on behalf of the Corporation, several decisions have been cited in support of their respective submissions. 10. Dr. R.G. Padia, learned Counsel for the Petitioner has placed reliance on-- (i) State of Uttar Pradesh v. Sesh Mani Tripalhi (1991) 2 UP LB EC 1303. (ii) Sangam Lai Dube v. Director of Education Uttar Pradesh Allahabad AIR 1957 All. 70 . (iii) Dinesh Chandra Kansal v. The State of Uttar Pradesh 1991 (63) FLR 19. (iv) Umesh Chand Tiwari v. State of Uttar Pradesh 1988 LIC 668. 11. On the basis of the aforesaid decisions, Dr.
(ii) Sangam Lai Dube v. Director of Education Uttar Pradesh Allahabad AIR 1957 All. 70 . (iii) Dinesh Chandra Kansal v. The State of Uttar Pradesh 1991 (63) FLR 19. (iv) Umesh Chand Tiwari v. State of Uttar Pradesh 1988 LIC 668. 11. On the basis of the aforesaid decisions, Dr. Padia has mainly stated that by the aforesaid decisions, it has been held that an employee cannot be transferred on the basis of the complaint made against him and if such transfer is made, the order of transfer is by way of punishment and is liable to be set aside on the ground that the order has been passed without affording an opportunity of show cause to the concerned employee. 12. In reply to the aforesaid submission, Sri Sharma has relied upon the following cases: (a) Dr. Ambika Prasad Mishra v. State of Uttar Pradesh 1988 (56) FLR 169. (b) Atul Kumar v. Union of India (1991) 1 UP LB EC (Tri) 46. (c) Mrs. Shilpi Bose and others Vs. State of Bihar and others, (1991) 2 SCC 659 Supp. (d) B. Varadha Rao v. State of Kamataka AIR 1968 SC 1955. 13. In the aforesaid decisions, it has been held that if a transfer order has been passed in violation of general policy of the transfer, then it does hot confer any right in the employee to agitate the matter in the court. He can at best make a representation to the higher authorities and if the transfer has been made on administrative grounds and is not mala fide, then such order should not be interferred with by a court of law. The transfer can be made even on the basis of the general complaints against an employee, that provides the administrative ground for transfer. 14. I have given a careful consideration to the submissions made by the parties, counsel In B Varadha Rao's case (supra), the Hon'ble Supreme Courts approved the following observations of the High Court: The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants. 15. In the case of Mrs.
15. In the case of Mrs. Shilpi Bose (supra) the Hon'ble Supreme Court held as under; In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative 'reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other, Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfers orders. 16. In the instructions issued on 29-9-1989, it is mentioned that in the matter of promotion on the post of Asstt. Transport Inspector and some other post mentioned in Clause 1' of the instructions including the post of Fitter, the transfers will not be made. In Clause 6' thereof it is mentioned that if some employee commits indiscipline and commits some misconduct then instead of transferring him, departmental proceedings should be initiated against him in Clause 8' it is provided that General Secretary and the President of the recognised Trade Union at the Depot level should not be transferred for two years from the date of their holding of the office and if it is found that for administrative reasons their transfer is necessary, then the transfer shall be made with the permission of the Addl. District Magistrate. Subsequently at the end, there are instructions that while making transfers the following directive principles should be observed and in Clause 3' of the said direction, it is provided that for administrative reasons and in special circumstances, the Head of office can make transfer of any employee through-out the state In the present case, the transfer has been ordered by the Managing Director himself in special circumstances of the case.
As such, such a transfer cannot be said to have been made in disregard of the aforesaid instructions and in any case even if it !s assumed that the Petitioner's transfer has been made in disregard of the instructions issued that does not confer a right on the Petitioner to challenge the order of transfer in a court of law. The best course for the Petitioner is to make a representation to the Managing Director concerned and if any such representation is made, the Managing Director will consider the same on merits and will pass orders within a reasonable time. The violation of any such instructions does not make out a ground for interfering with the transfer order. So far as the Petitioner's contention is concerned that by order of transfer, the Petitioner has been demoted to the post of daily wager, a clear stand has been taken in the Counter affidavit that the Petitioner has not been demoted. He will be posted as Fitter in Dehradun Depot also and no emoluments will be reduced As such merely for the mistake in mentioning the designation of the Petitioner in the transfer order, the said order of transfer cannot be interfered with. The Petitioner will stand transferred to Dehradun only as a Fitter and not as Mazdoor (Labourer). 17. In the case of B. Varadha Rao (supra), the Hon'ble Supreme Court did not lay down that III and IV class employees should not be transferred in any circumstances of the case. The Hon'ble Supreme Court only observed that general policy of transfer should not be applied to III and IV class employees and the Government should keep this fact in mind. The court did not lay down that III and IV class employees cannot be transferred in any circumstances whats over. 18.
The Hon'ble Supreme Court only observed that general policy of transfer should not be applied to III and IV class employees and the Government should keep this fact in mind. The court did not lay down that III and IV class employees cannot be transferred in any circumstances whats over. 18. So far as the Petitioner's submission on the point that the transfer of the Petitioner is by way of complaint is concerned, in the decisions relied upon by the Petitioner, it has been held that if there is a particular complaint in respect of a particular incident, then the person concerned should not be transferred because such a transfer order will amount to an order of punishment without affording an opportunity of hearing or show cause to an employee concerned, but the decisions referred to and relied upon by Sri S. K. Sharma make out that if there are general complaints then on the said basis a transfer order can be passed against the employee concerned. In the present case, I am clearly of the opinion that the Petitioner has not been transferred ^n the basis of a particular complaint but the complaints were of general nature and those complaints provided administrative grounds to the Managing Director to transfer the Petitioner from Azamgrah Depot to Dehradun Depot There are no allegation at all in the writ petition that the order has been passed mala fide or there is violation of any statutory rules in transferring the Petitioner from one place to another place. The Petitioner was posted at Azamgarh Depot for last ten years Since on the basis of general complaints, the Managing Director decided to transfer the Petitioner and other persons like the Petitioner, there is no such illegality which calls for an interference by this Court under Article 226 of the Constitution of India particularly in the circumstances of the present case when the Superintendent of Police of the district and the District Magistrate of the district wrote to the authorities concerned that the Petitioner is creating law and order problem in the Bus Station of Azamgarh, these general complaints provided administrative grounds for the transfer of the Petitioner by the Managing Director. The order is not by way of punishment. 19. The writ petition accordingly fails and dismissed. However, in the circumstances of the case, parties will bear their own costs.