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2010 DIGILAW 179 (ORI)

K. N. Singh v. G. M. (Personnel), M. M. T. C.

2010-03-18

A.S.NAIDU, B.N.MAHAPATRA

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JUDGMENT A.S. NAIDU, J. — An interesting point is raised for adjudication in the present writ petition, i.e., as to whether the petitioners, who are Class-IV employees can be transferred outside the State. 2. The petitioners were initially appointed in the estab¬lishment of Mica Trading Corporation of India Ltd., in short, ‘MITCO’, which was a fully owned subsidiary of MMTC Ltd. In the year 1992, MITCo became economically crippled and sick. Thereaf¬ter, the matter was referred to the Board for Industrial and Financial Reconstruction, in short, ‘BIFR’ as per the provisions of the SICA Act, 1985. After prolonged hearing, BIFR came to the conclusion that it was no more possible to rehabilitate MITCo on its own. Therefore, it was decided for amalgamation of MITCo with MMTC Ltd. Consequently, MITCo merged with MMTC Ltd. with effect from 14.4.1994 and the same became a division of MMTC. After merger, the employees working in MITCo were treated as the em¬ployees of MMTC under the scheme. 3. After such merger, it is submitted that the petition¬ers discharged their duties under MMTC Ltd. While matter stood thus, by order dated 24.6.2009, petitioner No.1 was transferred to Cochin and petitioner No.2 was transferred to Chennai. The said transfer order is assailed by the petitioners mainly on the ground that in consonance with the service regulation of MMTC, Class-IV employees are not akin to transfer and as such, the order under Annexure-1 transferring the petitioners to far off places like Cochin and Chennai is contrary to the service condi¬tions. The petitioners have prayed to quash the order of transfer under Annexure-1. 4. After receiving notice, opposite parties have appeared and filed counter affidavit. The fact that MITCo merged with MMTC is not in dispute. Relying upon the relevant portion of BIFR scheme, the opposite parties submitted that MMTC has a right to exercise option if warranted to transfer such number of workers of the erstwhile MITCo to any other units of MMTC as may be deemed necessary. Accordingly, the opposite parties who were found to be surplus at their present place of posting were trans¬ferred. In support of such statement, numbers of documents are annexed to the counter affidavit. In short, according to the opposite parties, they have a right to transfer the petitioners to any other unit in India if no work is available at their place of posting. 5. In support of such statement, numbers of documents are annexed to the counter affidavit. In short, according to the opposite parties, they have a right to transfer the petitioners to any other unit in India if no work is available at their place of posting. 5. Admittedly, both the petitioners are at present posted at Paradip under the MMTC. The petitioners have also filed re¬joinder repudiating the stand taken in the writ petition. The opposite parties in addition to the counter affidavit have also filed additional counter affidavit enclosing several other documents in support of their stand that the management of MMTC has a right to transfer the petitioners, who were found to be surplus staff at Barsuan Branch to any other place in the State. 6. We have heard learned counsel for the parties diligent¬ly. We have also perused the documents attached to the pleadings meticulously. There is no dispute that both the petitioners were the erstwhile employees of MITCo and in consonance with the scheme framed by BIFR, the said organization has merged with MMTC. After merger though they are considered to be the employees of MMTC, but then as per the scheme, they are guided by the service conditions of MITCo so far as the same is not detrimental to their interest. Learned counsel for both parties strenuously placed before this Court different clauses of the agreement in support of their arguments. According to the petitioners, the order of transfer from Paradip to Cochin so far as petitioner No.1 is concerned and to Chennai so far as petitioner No.2 is concerned, is not only meant to harsh them but also is otherwise contrary to the procedure agreed to be followed by the management of MMTC. It is submitted that the petitioners are low paid em¬ployees, they are getting a paltry amount of Rs.5,000/- per month towards their salary. In spite of specific provisions, the MMTC authorities are not enhancing their salary and bringing in par with the salary and other benefits applicable to their counter¬parts, who are regular employees of MMTC. Consequently, the petitioners are subjected to stringent financial difficulties. In spite of specific provisions, the MMTC authorities are not enhancing their salary and bringing in par with the salary and other benefits applicable to their counter¬parts, who are regular employees of MMTC. Consequently, the petitioners are subjected to stringent financial difficulties. It is further submitted that they are not entitled to any house rent allowance and are only paid a lump sum amount towards T.A. and D.A. Consequently, if they are made to transfer from Paradip to Cochin or Chennai, as the case may be, they will be greatly prejudiced. 7. Perusal of the scheme framed by BIFR, the service conditions of MITCo vis-a-vis the service conditions of MMTC of other documents, gives an impression that the petitioners can be transferred from one place to the other if certain condi¬tions are fulfilled. In fact, after taking over the management of MITCo, petitioner No.1 was transferred to Bilwara Unit from Giridih Unit in the year 2001 and thereafter from Giridih to Jindal Mine, Barsuan in the year 2004 and from barsuan to Paradip in the year 2006 and vide Annexure-1 he has been transferred from Paradip to Cochin. Similarly petitioner No.2 in the year 1981 was transferred from Abhraknagar to Gudur and in the year 2004 he was transferred from Gudur to Paradip and thereafter by Annexure-1 he has been transferred from Paradip to Tuticorin situated in Chen¬nai. Being confronted with such position, learned counsel for the petitioners submitted that in consonance with the service condi¬tions only when the unit is closed, the employees are trans¬ferred. It is stated that in the past as and when units were closed for some reason or the other, the petitioners were trans¬ferred and posted in other units. Such conditions are however not satisfied as the unit at Paradip is still functioning and work is available. Thus, it is stated that the order of transfer being unjustified needs interference. 8. It is no more res integra that transfer and posting of an employee is within the domain of the employer, who is to take a decision when, where and at what point of time the employee is to be transferred from his present posting. Transfer is not only an incident of service but an essential condition of service. The employee does not have the vested right to work at a particular place as the order of transfer does not affect his legal rights. Transfer is not only an incident of service but an essential condition of service. The employee does not have the vested right to work at a particular place as the order of transfer does not affect his legal rights. Law is also well settled that the Court should always be slow to interfere with the order of transfer. 9. It may so happen that an order of transfer may cause great hardship as the employee would be forced to have a second establishment at far distant places, the education of his chil¬dren may be adversely affected, he may not be able to manage his affairs and look after his family. But then, it is not permissible for the Court to go into the relative hardship of the employee unless under exceptional circumstances. In the case of State of Madhya Pradesh v. Shanker Lal and others, reported in AIR 1980 SC 643 , the issue of transfer of a low paid employee was considered by the Supreme Court. After considering the provisions of the Act and the Rules governing in the field, the Court came to the conclusion that unless statutory rules put an embargo for transfer of Class-IV or low paid employees, there can be no bar to transfer the said employee. However, the Court observed that such a power should be exercised sparingly. The relevant observa¬tion of the Supreme Court reads as follows : “.... theoretically, therefore, the power does exist in the State Government to transfer them. We must, however, hasten to add that in case of employees getting small emoluments the power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of employ¬ees getting small salaries.....” 10. In the case of B. Varadha Rao v. State of Karnataka and others, AIR 1986 SC 1955 , while dealing with the issue of transfer, the apex Court considered various aspects and observed as under : “One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralization. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralization. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, contin¬ued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer.” 11. After going through the authoritative pronouncement, this Court feels that in case of Class-IV or low paid employees, the power of transfer should be used sparingly when required under administrative exigencies and not in a routine manner. More so, the power has to be exercised in good faith, not arbitrarily and the employer should try to accommodate the low paid employee at nearby places as his transfer to a far distant place may cause him and his family great financial hardship and make his survival difficult. 12. In view of the aforesaid discussions, we dispose of this writ petition with a direction that if the petitioners submit a fresh representation before the opposite party authori¬ties, the said authority shall consider the same in the light of the discussions made above by adopting humanitarian approach. If the representation is filed within a period of two weeks from today, we trust, the authorities shall take a decision in the light of the discussions made and the law enunciated above as expeditiously as possible. Till the decision is taken, status quo as on date shall be maintained. B.N. MAHAPATRA, J. I agree. Petition disposed of.