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1998 DIGILAW 61 (CAL)

Burn Standard Co. Ltd. v. Pradip Kumar Pradhan

1998-02-16

D.B.DUTTA, S.B.SINHA

body1998
ORDER 1. Both these appeals with consent of parties were taken up for hearing together as the learned trial Judge has disposed of both the writ petitions together. 2. The fact of the matter lies in a very narrow compass. Sri Pradip Kumar Pradhan is an employee of the appellant company as a Time Keeper, whereas the writ petitioner Mrinal Kanti Pradhan has been working as a staff at Alipore Office. 3. By reason of the impugned order dated 13.11.97 as contained in annexure 'F' to the writ application, the writ petitioners have been transferred to Gulfarbari Works in the State of Bihar (hereinafter referred to as Bihar Unit). It was stated in the writ applications that in Bihar Unit of the appellant company, salary had not been paid from September 1997, whereas according to the appellant such salary had been paid upto December 1997. 4. The learned trial Judge, by reason of the judgment under appeal although rejected the case of mala fide as put forward by the writ petitioners/respondents but held that as the appellant company is a sick one, and the matter has been referred to BIFR, and which has entertained the same and registered a case, being BIFR Case No. 508 of 1994, and further as it is found that 366 persons are excess in Gulfarbari, there could not be any reason for transfer of the writ petitioners/respondents. The learned trial Judge, therefore, held that the impugned orders are arbitrary in nature. 5. Dr. Tapas Banerjee, learned counsel appearing on behalf of the appellants submitted that the findings of the learned trial Judge is vitiated in law in so far as he failed to take into consideration that there has been no report of the BIFR, on the basis whereof the learned trial Judge proceeded to deliver the judgment. On the other hand, the report is that of the operating agency which is still to be accepted upon going through the procedures laid down under the provisions of the Sick Industries (Special Provision) Act, 1985. Learned counsel further submitted that keeping in view the decisions of the Apex Court in Mrs. Shilpi Bose & other vs. State of Bihar & other, 1991(2) LLJ 591 and Union of India & other vs. S.L. Abbas, JT 1993(3) SC 678, the learned trial Judge has exceeded his jurisdiction. Learned counsel further submitted that keeping in view the decisions of the Apex Court in Mrs. Shilpi Bose & other vs. State of Bihar & other, 1991(2) LLJ 591 and Union of India & other vs. S.L. Abbas, JT 1993(3) SC 678, the learned trial Judge has exceeded his jurisdiction. It was submitted that on facts also, the learned trial Judge failed to take into notice that by a circular letter dated 27.8.97 Gulfarbari Unit of the appellant company asked for a person for Store and also for a person in the Personnel Department, which was again asked on 5.9.97, in response whereof the Jellingham Unit conveyed that the writ petitioners can be spared and pursuant thereto, the writ petitioners/respondents have been transferred on a temporary basis. 6. Mr. Subrata Roy, learned counsel appearing on behalf of the writ petitioners/ respondents on the other hand submitted that the operating agency before the BIFR has already submitted a report, and before the operating agency, the appellant has disclosed its intention to close the Bihar Unit, and in that situation, learned counsel contended that it would be wholly unjust if the writ petitioners would face retrenchment following impending closure thereof. 7. It, however, appears from records that even in the said report, the Midnapore Unit is also stated to be not viable, and a suggestion has been made to transfer the same to Durgapur. It may be true that keeping in view the facts and circumstances of this case, transfer of the writ petitioners may appear to be harsh. However, it appears that the appellant before passing the impugned order of transfer had taken into consideration the administrative exigencies, in as much as, the Bihar Unit wanted a person from Store as also a person from the Personnel Department. The first writ petitioner is a Time Keeper working in the Personnel Department, whereas the second writ petitioner is the Store Department. 8. Keeping in view the facts and circumstances of this case, we are of the opinion that the learned trial Judge erred both on facts as well as in law in passing the impugned judgment. The first writ petitioner is a Time Keeper working in the Personnel Department, whereas the second writ petitioner is the Store Department. 8. Keeping in view the facts and circumstances of this case, we are of the opinion that the learned trial Judge erred both on facts as well as in law in passing the impugned judgment. In 1991 (2) LLJ 591 , the law is stated on the following terms:- "In our opinion, Courts should not interfere with transfer orders 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 overlooked these aspects in interfering with the transfer orders." In S.L. Abbas (supra), the Apex Court stated:- "The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/ guidelines are not followed, much less can it be characterized as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions." 9. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions." 9. In a recent decision in A.P.O. 466 of 1966 (Kiriti Majumder vs. State of West of Bengal & other) arising out Petition No. 1511 of 1996 disposed of on 25.11.97 a Division Bench of this Court, in which one of us was a member, relying on or on the basis of the decisions reported in 1996 (10) SCC 567 , 1996 (5) SCC 304 and 1997 Labour and Industrial Cases 1982 besides Abbas case (supra), dismissed the appeal preferred by the writ petitioner. We are of the opinion that keeping in view the fact that the impugned order has been passed in the interest of administration, the same cannot be interfered with. The learned trial Judge had himself found that the case of mala fide raised on behalf of the writ petitioners was not acceptable. So far as the second ground upon which the judgment under appeal has been passed, the same cannot also be upheld, in as much as, the questions raised by the learned trial Judge appear to be speculative. What would ultimately happen to those employees working in Bihar Unit is a matter of surmises and conjectures. It is possible that all efforts would be made to revive the said Unit or some sponsors would be found who would be willing to take over the Units and continue to work the same. Only because the case of the appellant has been referred to BIFR in terms of the provisions of the Sick Industries (Special Provision) Act, the same does not mean that the writ petitioners/respondents would not get any salary or would be forced to beg and borrow. 10. Transfer, as is well known, is an incidence of service. Such an order of transfer can, inter alia, be questioned; (1) when the same is mala fide; (2) when the same has been passed by way of or in lieu of punishment; (3) when the same is against a mandatory provision of law. None of the aforementioned grounds is available to the writ petitioners in the instant case. Such an order of transfer can, inter alia, be questioned; (1) when the same is mala fide; (2) when the same has been passed by way of or in lieu of punishment; (3) when the same is against a mandatory provision of law. None of the aforementioned grounds is available to the writ petitioners in the instant case. There may be personal inconveniences or the order of transfer made in some cases may appear to be harsh, but that by itself may not be a ground which would induce this court to interfere therewith in exercise of its power of judicial review. This court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot embark upon the question as to whether an order of transfer is justified or not in view of the parameters of judicial review set out by the Supreme Court of India in various decisions. By way of illustration, reference can be made to the case of Tata Cellular vs. Union of India, 1994(6) SC 651, wherein the Apex Court has categorically held that High Court can exercise its power of judicial review only when an illegality, irrationality or procedural impropriety has been committed by an authority in its decision making process. In other words, High Court is not concerned with the merit of the decision. 11. For the aforementioned reasons, the impugned judgment cannot be upheld. However, keeping in view the fact that the writ petitioners are being transferred to an unknown place, the appellant company before releasing them, shall pay their all arrears of salary upto January 1998. We hope and trust that the writ petitioners and other employees shall continue to get their salaries. The writ petitioners have been transferred on temporary basis. It is expected that as soon as their job is over, they would be transferred back to their own units. 12. With the aforementioned observations and directions, the impugned judgment is set aside and the appeals are allowed, but in the facts and circumstances, there will be no order as to costs. 13. Prayer for stay of operation of the order is considered and rejected. Appeals allowed.