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2002 DIGILAW 299 (ORI)

SUNIL KUMAR MISHRA v. STATE OF ORISSA

2002-05-13

A.K.PATNAIK, M.PAPANNA

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JUDGMENT : A.K. Patnaik, J. - The petitioner is working as a Senior Assistant in the Orissa State Tasar and Silk Co-operative Society Ltd. (now named SRIFED Ltd.). He was posted at the Head Office of the said Co-operative Society at Bhubaneswar. By order dated 3.5.2001 passed by the Managing Director of the said Co-operative Society, the petitioner has been transferred and Posted at Central Store. Mancheswar, Bhubaneswar. Aggrieved by the said order dated 3.5.2001, the petitioner has filed the writ petition OJC No. 5887 of 2001 under Article 226 of the Constitution of India for quashing the same. Along with said writ petition, the petitioner has also filed an application for interim stay Misc. Case No. 6211 of 2001. 2. On 18.5.2001 this Court while issuing notice to the opposite parties in the writ petition also passed and interim order in the said misc. case to the effect that there shall be interim stay of the order of transfer dtd. 3.5.2001 till 28.6.2001. Thereafter, the interim order has been continued. On 5.4.2002, however, the Managing Director of the said Co-operative Society passed on order of suspension in respect of the petitioner pending Disciplinary Proceeding. The said order of suspension dated 5.4.2002 is quoted herein below. As per the UOI No. 126/Con/ST&H Dated 5.4.20C2 of the Principal Secretary to Govt. Textiles and Handloom Dept. and President-cum-Management-in Charge, SERIFED ORISSA, Sri Sunil Kumar Mishra, Sr. Asst. is placed under suspension with immediate effect pending disciplinary proceeding in view of his indisciplined activities detrimental to the interest of SHRIFED LTD and acts unbecoming of a public servant. The head quarters of Shri Mishra is fixed at Silk reeling centre. Sunabeda in the district of Koraput. The Petitioner then filed a Contempt petition (OCRMC 293/2002) on 23.4.2002 annexing the copy of the said order dtd. 5.4.2002 of the Managing Director placing the petitioner under suspension by order dated 11.7.2002 this Court passed an order to the effect that the said contempt petition be put up along with the writ petition OJC 5887 of 2001. 3. Mr. B. Mishra, learned Counsel for the petitioner submitted that the petitioner is a protected workman and under sub-section 3 of Section 33 of the Industrial Disputes Act, 1947 while and industrial dispute is pending, any change in the condition of service of a protected workman including transfer is prohibited. 3. Mr. B. Mishra, learned Counsel for the petitioner submitted that the petitioner is a protected workman and under sub-section 3 of Section 33 of the Industrial Disputes Act, 1947 while and industrial dispute is pending, any change in the condition of service of a protected workman including transfer is prohibited. He further submitted that transfer of an employee made male tide is an unfair labour practice listed in the 5th Schedule of the Industrial Dispute Act, 1947. He referred to the averments in the writ petition and in particular in Para-7 of the writ petition to show that the petitioner was transferred by the impugned order only because he had undertaken to unearth the corrupt practice and mismanagement by the Management. According to Mr. Mishra, the impugned order of transfer is liable to be quashed for being violative of the provisions of sub-section 3 of section 33 of the Industrial Disputes Act and the 5th Schedule of the said Act. 4. In reply to the said submissions, Mr. Pradhan. learned Counsel for the Opposite party No. 4 referred to the averments in paragraphs 11 and 12 of the counter affidavit filed on behalf of opp. party No. 4 to show that the allegations made by the petitioner the writ petition were totally false and fabricated and that the order of transfer has been passed for administrative exigency and in the public interest. He further submitted that the petitioner had been, transferred from the Head Office at Sahidnagar. Bhubaneswar to the Central Store, Mancheswar. which only 3 K.Ms away from the Head Office at Sahidnagar. According to Mr. Pradhan, the transfer from one office to Anr. in the same city cannot possibly cause any hardship to the petitioner in any manner. He further submitted that there are some allegations of mis-appropriation against the petitioner for which departmental proceeding has been initiated against him. Mr. Pradhan disputed the contention of Mr. Mishra that the petitioner is a protected workman. 5. Under Sub-section (3) of Section 33 of the Industrial Dispute Act, 1947, during the pendency of any proceeding in respect of any dispute, the condition of service of a protected workman cannot be altered to his prejudice. But it is not the case of the petitioner that transfer was not a condition of service of the petitioner. 5. Under Sub-section (3) of Section 33 of the Industrial Dispute Act, 1947, during the pendency of any proceeding in respect of any dispute, the condition of service of a protected workman cannot be altered to his prejudice. But it is not the case of the petitioner that transfer was not a condition of service of the petitioner. If that be so, the petitioner was liable to be transferred in terms of the condition of the service of the petitioner by his employer and such transfer is not in contravention of Sub-section (3) of Section 33 of the Industrial Disputes Act. 1947. If transfer was not a condition of service of the petitioner, then, of course, the transfer of the petitioner by his employer would have altered the condition of the service and the provision of Sub-section (3) of Section 33 of the Industrial Disputes Act, 1947 would have been contravened. Since in this case, transfer was part of (sic) condition of service of the petitioner, the opposite party No. 4 by the transferring him from one office to Anr. at Bhubaneswar has not altered the condition of the service of the petitioner and has not contravened the provisions of Sub-section 3 of Section 33 of the Industrial Disputes Act. 6. Coming to the Submission of Mr. Mishra that under item no 7 of 5th Schedule of the Industrial Disputes Act, 1947 transfer of workman mala fide Iron-one once to Anr. under the guise of follow as management policy is an unfair labc practice and has been prohibited we have no doubt in our mind that once a interfere is round to be mala fide by to Court such transfer has to be quashed to the Court independently whether it amounts to unfair labour practice or not. The Apex Court has also ruled in a number of cases that a transfer made of any employee by a public authority mala fide can be interfered by the Court under Article 226 of the Constitution of India. But in the present case although the petitioner has alleged in Para-7 of the writ petition that the transfer of the petitioner has been made only because he had undertaken to unearth the corruption and mismanagement of the authorities the said allegations have been denied by opp. party No. 4 in paragraph-11 of the Counter affidavit filed on behalf of opposite party No 4. party No. 4 in paragraph-11 of the Counter affidavit filed on behalf of opposite party No 4. On the other hence in the said Para-11 of the counter affidavit it has been stated that the order of transfer has been passed in the interest of the administrative exigency and public interest. Further, in paragraph-12 of the counter affidavit, the opp. party No. 4 has stated that the petitioner has been transferred only 3 K.Ms away from the Head Office at San danger to the Central Godown at Mancheswar in the same city of Bhubaneswar We are. therefore, not inclined to interfere with the order of transfer on the ground; that it is vitiated by mala fide particularly when by the impugned order of transfer the petitioner has only been transferred 3 K.Ms away in the same city from the Head Office to the Central Store. 7. Mr. Mishra, learned Counsel for the petitioner next submitted that the order dated 5.4.2002 of the Managing Director placing the petitioner under suspension would show that the said order has been passed because the petitioner has filed this Ant petition and obtained interim order of stay. Mr. Pradhan, on the other hand submitted that the petitioner has been placed under suspension only because of indisciplined activities and because of allegations of misappropriation against him. 8. The order of suspension dated 5.4.2001 quoted above would show that the petitioner has been placed under suspension with immediate effect pending Disciplinary Proceeding for his indisposed activities and for conduct unbecoming of a public servant. There in no mention in the said order of suspension dated 5.4.2002 that the petitioner had been placed under suspension on account of allegation of misappropriation against him. Further the said order of transfer dated 5.4.2001 would show that the H. Qrs. of the petitioner has been fixed at Silk Reeling Centre. Sunaceda in the district of Koraput. We fail to appreciate as to why when the petitioner had been transferred to Mancheswar in Bhubaneswar he had to be sent to Sunabeda m the district of Koraput to more that 500 K.Ms from Bhubaneswar after having been placed under suspension. of the petitioner has been fixed at Silk Reeling Centre. Sunaceda in the district of Koraput. We fail to appreciate as to why when the petitioner had been transferred to Mancheswar in Bhubaneswar he had to be sent to Sunabeda m the district of Koraput to more that 500 K.Ms from Bhubaneswar after having been placed under suspension. This fact itself shows the mala fide on the cart of the Managing Director in passing the order of suspension dated 5 4.2002 Under our Constitution, an order which is vitiated by mala fide cannot stand the test of law and has to be quashed. We accordingly quash the order dated 5.4.2002 placing the petitioner under suspension. 9. The petitioner will be for with allowed to join at the Central Store. Mancheswar where he has been posted. As soon as he joins and works, he will be paid his current salary His arrear salary due and payable to him for the period of interim stay will be pa d to the petitioner within three month's from today. We make it clear that it will be open for the disciplinary authority to proceed with disciplinary proceeding against the petitioner for alleged acts of mis-appropnation. Since the petitioner has now been posted away from the Head Office as Sahidnagar where the alleged acts of mis-aprropnation are said to have taker dace the petitioner need not be place under suspension pending such disciplinary proceeding by Anr. order of suspension. 10. The writ petition and the Contempt petition stand disposed of. M. Papanna, J. 11. I agree.