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2010 DIGILAW 279 (ORI)

Giridhari Samal v. Food Corporation of India

2010-04-15

A.S.NAIDU, B.N.MAHAPATRA

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JUDGMENT A.S. NAIDU, J. : The petitioner is working as an Ancil¬lary Labourer in the establishment of the Food Corporation of India and is at present posted in the Food Storage Depot, Khurda Road, Jatni. Being aggrieved by the order transferring him to Food Storage Depot, FCI, Paralakhemundi, he has approached this Court. 2. According to Mr. Ashok Mohanty, learned Sr. Counsel appearing for the petitioner initially the petitioner was posted as Ancillary labourer in Food Corporation of India, Tinsukia in the State of Assam. He worked there from 1987 till 2002. As his mother became seriously ill, he made a representation requesting the Corporation authorities to transfer him to Orissa so that he could attend his ailing mother. Considering the said representa¬tion by order dated 13.6.2005 (Annexure-2), he was transferred and posted at Khurda Road, Jatni,). It is alleged that within a period of three years by office order dated 14.8.2008, the peti¬tioner has been once again transferred to Paralakhemundi under the District Office of the Food Corporation of India, Berhampur. Mr. Mohanty, learned Sr. Counsel appearing for the petitioner submitted that the order of transfer is tainted with extraneous consideration and is not a bona fide one. It is stated that there is no provision to transfer an Ancillary Labourer in unison. n other words according to Mr. Mohanty, an Ancillary Labourer has to be transferred along with the gang of labourers. In the case at hand, it is submitted that the gang to which the petitioner is attached is still continuing at Jatni whereas the petitioner has been picked up and has been transferred to Paralakhemundi. Such action, it is stated, amounts to violation of the statutory rules and is liable to be interfered with. 3. After receiving notice, a counter affidavit has been filed by the opposite party no.4. In paragraph-6 of the counter affidavit, it is stated that the Area Manager Food Corporation of India, Paralakhemundi has requested time and again to post some Ancillary labourers to meet heavy work load. Considering the said request and as the petitioner was creating disturbance at Jatni depot, he was transferred to Parlakhemundi. In paragraph-6 of the counter affidavit, it is stated that the Area Manager Food Corporation of India, Paralakhemundi has requested time and again to post some Ancillary labourers to meet heavy work load. Considering the said request and as the petitioner was creating disturbance at Jatni depot, he was transferred to Parlakhemundi. In paragraph-8 of the counter affidavit it is submitted that the petitioner and the Gang No. 1 labourers were transferred by FCI, but then, as there was resentment and a threat of strike, the order of transfer of the gang has been kept in abeyance until further orders. In short, it is stated that in Jatni there is no work for Ancillary labourers whereas in Paralakhemundi there is heavy work load and to meet the exigencies, the petitioner has been transferred mainly on the ground that he is creating administrative difficul¬ties at Jatni. 4. A rejoinder affidavit has been filed by the petitioner denying all the allegation and taking a positive stand that there is no work load at Paralakhemundi. The plea that there is heavy work load at Paralakhemundi, it is stated, is only a camouflage to illegally transfer the petitioner and it is a fit case where this Court should lift the veil and set aside the order of trans¬fer. 5. We have heard learned counsel for the parties at length. We have also perused the averments made, and different documents annexed to the pleadings meticulously. It is no more res integra that the order of transfer generally should not be interfered with unless of course this Court notices that there is fragrant violation of the statutory rules. Transfer and posting of an employee is entirely upon the competent authority, which has to decide as to when and where and at what point of time an employee is to be transferred from his present place of posting. Admittedly, the petitioner is holding a transferable post and he cannot claim any vested right to work at a particular place. Transfer and posting of an employee is entirely upon the competent authority, which has to decide as to when and where and at what point of time an employee is to be transferred from his present place of posting. Admittedly, the petitioner is holding a transferable post and he cannot claim any vested right to work at a particular place. In the case of State Bank of India v. Anjan Sanyal, AIR 2001 SC 1748 , the Supreme Court held as under: “ xx xx xx xx An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that either the order is mala fide or that the service rules prohibits such transfer of that the authorities, who issued the order, had not the competence to pass the order.” 6. On an analysis of the submissions advanced in the light of the ratio of the decision referred to supra, this Court finds that the service conditions of the petitioner and other employees of the Corporation is covered under a Certified Standing Orders for the Industrial Establishments of the Food Corporation of India, framed on 27.2.1996. Clause 5 of the Standing Order deals with transfer and stipulates as under: “A worker shall be liable to be transferred from one place to another place of work of the Corporation as per the practice in existence with the whole gang, except in the case of request for transfer from the individual worker.” 7. The petitioner is an ancillary worker. The word ‘ancillary’ is not defined in the Standing Order. Perusal of the counter affidavit reveals that he is attached to Gang No. 1 and in fact he along with the said gang were transferred to Paralakhemundi but then as the Corporation faced resentment, the transfer of the gang was kept in abeyance. In such circumstances, transferring the petitioner alone to Parlakhemundi does not appear to be in consonance with the Standing Order. According to learned counsel for opposite party-Corporation, Ancillary Labour is not a labourer, but then this Court finds no such distinction in the standing Order. It is further averred in the counter affidavit that the petitioner is creating disturbances. But then, transfer order cannot be passed by way of punishment. According to learned counsel for opposite party-Corporation, Ancillary Labour is not a labourer, but then this Court finds no such distinction in the standing Order. It is further averred in the counter affidavit that the petitioner is creating disturbances. But then, transfer order cannot be passed by way of punishment. Apart from the aforesaid, the petitioner has worked about 15 years out side the State. He was transferred to Orissa in 2005 on the ground that his mother was ailing. Transferring him within a short time to Parlakhemundi that too by way of punishment appears to be con¬trary to the provisions of the Standing Order. Under what contin¬gencies and how a labourer can be transferred is spelt out in the Standing Order. It is clearly stipulated that a labourer should be transferred along with the gang unless the said transfer is on the basis of a personal request. 8. In the case in hand, in fact the petitioner was trans¬ferred along with Gant No. 1 to which he is attached. But then, the authorities for the reasons good, bad or in different kept the order of transfer of the gang in abeyance. Under such contin¬gencies, transferring the petitioner alone appears to be contrary to the Standing Order. That apart, the petitioner is working as an ancillary labourer. He belongs to the lower strata of the society. He is also a low paid employee of the Corporation. In the case of State of Madhya Pradesh v. Shankar Lal and others, AIR 1980 Supreme Court 643, the Supreme Court held that in case of employees getting small emoluments, power to transfer should be sparingly exercised and such employee should be transferred only under compelling exigencies and not as a matter of routine. 9. In the case of B. Varadha Rao v. State of Karnataka and others, AIR 1986 SC 1955 , the Supreme Court observed that fre¬quent, unscheduled and unreasonable transfers can uproot a fami¬ly, cause irreparable harm to a low paid employee 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. The Supreme Court concluded that the position of Class-III and Class-IV employees stand on a different footing as far as the policy of transfer is concerned. 10. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralization. The Supreme Court concluded that the position of Class-III and Class-IV employees stand on a different footing as far as the policy of transfer is concerned. 10. Perusal of the entire pleading reveal that the peti¬tioner was a part of the labour Gang No. 1 of the Corporation. Clause 5 of the Standing order of the Corporation quoted supra clearly stipulates that a worker shall be liable to be trans¬ferred from one place to the other with the whole gang. In the case in hand, however, though the transfer of the gang has been kept in abeyance, the authorities are insisting that the peti¬tioner should go and join at his new place of posting. Such action is contrary to the Standing Order. According to the oppo¬site parties, there is heavy work load at Paralakhemundi and transfer and posting of “Ancillary Labourers” is necessary. On the contrary, according to the petitioner, there is no work load at Paralakhemundi more so after the movement of Maoist, which has to some extent crippled the work of the Corporation in the said district. 11. In view of the aforesaid facts and circumstances, this Court feels that the transfer of the petitioner alone bereft of the gang to Paralakhemundi keeping in abeyance the transfer of the gang of labourers to which the petitioner is attached is not structured by rationality and is contrary to the Standing order. Even otherwise, there is lot of discrepancies as to whether enough work is available at Paralakhemundi. That apart, a labour¬er cannot be transferred on the ground that there are allegations against him. Accordingly, we dispose of this writ petition giving liberty to the petitioner to file another representation before the concerned authority highlighting all his grievances along with an authenticated copy of this judgment. If such a represen¬tation is filed, the authorities shall consider the same in the light of the observations made above and pass necessary orders strictly in accordance with rules governing the transfer policy of the Corporation. Till a decision is taken on the said repre¬sentation, the petitioner shall be permitted to discharge his duties at Jatni. B.N. MAHAPATRA, J. I agree. Petition disposed of.