North Eastern Electric Power Corporation Ltd. v. Poresh Kumar Nath
2022-06-08
SANJIB BANERJEE, W.DIENGDOH
body2022
DigiLaw.ai
JUDGMENT Sanjib Banerjee, CJ. - The appeal is directed against an order of May 12, 2022 by which the first respondent's writ petition challenging his order of transfer has been allowed and the order of transfer dated November 26, 2021 has been set aside. 2. At the outset it must be observed that for a successful challenge to an order of transfer, an extraordinary case has to be made out and unless the high tests are met, the employer's authority to transfer an employee cannot be interfered with. Even if the transfer is in breach of the applicable guidelines, once it appears to the Court that the employer applied its mind and took a conscious decision for administrative exigencies, the Court would be slow to intervene unless a case of manifest arbitrariness or patent unfairness is clearly established. 3. Three grounds are evident from the judgment and order impugned, in justification of what impelled the writ court to interfere. The writ court perceived that there was no administrative reason for the employer to have transferred the first respondent herein from his Guwahati posting to Arunachal Pradesh. Further, the writ court took notice of the fact that the writ petitioner had indulged in trade union activities despite being an officer and this earned him the wrath of his seniors. Finally, the writ court found that there was no urgent need to justify the transfer order of November 26, 2021 to move the writ petitioner out of an assignment on which he had been sent to Mawsynram only earlier in November, 2021. 4. It appears that several needless issues were raised by the appellant employer before the writ court. In course of such irrelevant matters being canvassed hopelessly, the substance of the writ petition was lost as the endeavour on the part of the appellant herein was more to ensure that the Court did not entertain the writ petition rather than maintain that it was necessary for better administration to transfer the writ petitioner to the new project site in Arunachal Pradesh. There is no dispute that the appellant is an authority answering to that description in Article 12 of the Constitution.
There is no dispute that the appellant is an authority answering to that description in Article 12 of the Constitution. Notwithstanding such position, it was sought to be contended on behalf of the appellant herein before the writ court that in a matter pertaining to the service conditions of the employees of a statutory authority, the scope of judicial review under Article 226 of the Constitution was not available. The point had to be urged to be completely thrown out, particularly since there is no dispute that the appellant herein, in its constitution and its functioning, would be recognised as a State or other authority within the meaning of the relevant expression in Article 12 of the Constitution. 5. In the case of private bodies which discharge public functions, ordinarily, the extent of judicial review would be limited to the area of public duty discharged by such private body. There are other tests, including the test pertaining to all pervasive control of the State or the financial control of any government over the relevant body. Even in such cases, when the status of the employer may not be that of an authority but the employer is otherwise engaged in discharge of public duties, the service conditions and disputes pertaining to the employees of such body may not be carried to a writ court. However, in the present case, the very nature of the constitution of the appellant herein was such that it was amenable to every aspect of judicial review under Article 226 of the Constitution. On such count, the opinion of the writ court cannot be faulted. 6. The other argument which was put forward on behalf of the appellant before the writ court was that no mandamus ought to be issued pertaining to a contract of service. Again, such aspect is adroitly dealt with in the impugned judgment. Suffice it to say that when the challenge in the writ petition was to the perceived arbitrary and capricious conduct of the State or an authority, the writ court had sufficient jurisdiction to entertain the grievance and adjudicate thereupon. 7. However, the fact that the writ court had the authority to entertain the matter did not imply that the writ court would have to intervene therein.
7. However, the fact that the writ court had the authority to entertain the matter did not imply that the writ court would have to intervene therein. It is now well established that when it comes to transferring an employee, unless an extreme case of prejudice or caprice is made out, the writ court would not interfere with the discretion of the employer in such regard. The principal basis of interference, generally, is when the service conditions are breached. Even in such a situation, there is a caveat which is followed: that the employer has due authority to take extraordinary measures in extreme situations if they are necessary for better administration. Thus, even a breach of any service condition may not, by itself, render an order of transfer invalid, if there are sufficient grounds to otherwise justify the same. 8. The two technical grounds taken on behalf of the writ petitioner in the present case were that contrary to clause 6.2 of the service conditions, the writ petitioner was sought to be transferred before he completed the four-year tenure in his place of posting; and, that the order of transfer was not issued by the competent authority as recognised in clause 9 of the relevant service conditions but by a General Manager in the Human Resources Department. 9. Neither ground is of any merit. For a first, clause 6.2 of the service conditions has to be read in conjunction with clause 8.1 thereof that leaves the management of the employer free to transfer or retain any employee at any place irrespective of the tenure at such location in order to meet the organisational requirements and in the interest of the working of the corporation. At any rate, there is a presumption that when an employer seeks to transfer an employee, whether or not in breach of the service conditions, some thought would have gone into the decision-making process and, ordinarily, it would be for better administration. 10. There is no doubt that such presumption is rebuttable; but the rebuttal has to be upon meeting the high test of establishing that it was done with the deliberate motive of prejudicing the concerned employee or capriciously or on completely extraneous considerations. 11. Here is an employee who is engaged as a draftsman and is expected to prepare designs for power projects.
11. Here is an employee who is engaged as a draftsman and is expected to prepare designs for power projects. He was assigned from the Guwahati posting for a 10-day period to survey and prepare a report pertaining to a proposed project at Mawsynram in Meghalaya. The assignment was to end on November 28, 2021. The order of transfer was issued on November 26, 2021. Apart from the fact that it was for the employer to decide whether it was expedient to transfer an employee even in the middle of an assignment, there is no material to establish that the action was taken against the writ petitioner out of vendetta or as a result of the writ petitioner indulging in trade union activities. It must be noticed that a notification was issued earlier in 2021 prohibiting officers or categories of employees to which the writ petitioner belong from indulging in trade union activities. It may also be noticed that a few days before the order of transfer, a show-cause notice was issued to the writ petitioner on the ground that he continued to indulge in trade union activities despite the notification issued by the employer in April of 2021. The writ petitioner was also accused of insubordination in the relevant show-cause notice. 12. The writ petitioner was a signatory to or otherwise instrumental in a challenge being instituted by way of WP(C) No. 367 of 2021 in this Court pertaining to the notification of April, 2021 by which certain classes of employees were prohibited from indulging in trade union activities. The writ petitioner contended before the Single Bench that upon such petition being filed on or about November 18, 2021, an immediate decision was taken to transfer the writ petitioner out to Arunachal Pradesh, inter alia, to ensure that the writ petitioner was not involved in the conduct of the challenge to the relevant notification. 13. By the impugned judgment and order of May 12, 2022, the writ court rejected the contentions of the appellant herein pertaining to the lack of authority under Article 226 of the Constitution to look into the grievance. The writ court also, quite appropriately, dealt with the argument as to whether a mandamus could be issued in respect of a contract of service.
The writ court also, quite appropriately, dealt with the argument as to whether a mandamus could be issued in respect of a contract of service. However, when it came to the merits of the grievance in the writ petition, the writ court surmised, on the basis of the proximity of the dates, that there were extraneous considerations which went into the decision-making process culminating in the writ petitioner being transferred. In the absence of cogent material to demonstrate that the decision was arbitrary or capricious, merely because the order of transfer came within a few days of the writ petition challenging the notification of April, 2021 being filed, it would not follow that it was the filing of such petition that prompted the decision; particularly, when the employer insisted that it was necessary for better administration. 14. As to whether a decision to transfer an employee is for better administration or not, it is the employer which has the final say and the writ court cannot look into the reasons for the employer perceiving it to be necessary for better administration. 15. Since the technical grounds urged by the writ petitioner were unworthy as clause 6.2 of the relevant service conditions was subject to clause 8.1 thereof and as clause 9 of such service conditions required the transfer of an employee to be with the approval of certain persons whereas the challenge herein was to the General Manager having issued the order of transfer, the other extraneous considerations sought to be cited on behalf of the writ petitioner ought to have been disregarded by the writ court. There is no material to show that the transfer was not approved by the appropriate personnel. Indeed, upon a formal order being passed, there is a presumption that the conditions precedent to the making of the order have been complied with. The mere issuance of the order of transfer by the General Manager would not imply that it was not approved by the appropriate officers. 16. There is an element of discipline which has to be maintained in service.
The mere issuance of the order of transfer by the General Manager would not imply that it was not approved by the appropriate officers. 16. There is an element of discipline which has to be maintained in service. As much as every employee, particularly an employee engaged by a public body or a statutory authority, has to be dealt with and treated fairly, when the employer perceives that the transfer of an employee would better serve the employer, unless cogent grounds demonstrating malice or caprice are brought, the writ court should be slow in stepping in. Indeed, the further extraordinary feature in this matter was of the writ court having issued an interim order. Even if a petition is entertained against an order of transfer, an interim order is rarely issued unless very high tests are met; since if the order of transfer is annulled at the final hearing, the clock can be set back. 17. Transfer is a routine matter in service, particularly in a large organisation as the appellant herein which has activities spread all over the North-East. There is no doubt that the transfer of an employee causes distress to the family of the employee as the entire family is virtually uprooted from a place. But that is a vagary of the service, if the service conditions contemplate transfers. When an order of transfer is challenged, the first test is whether it is illegal, in the sense that it is demonstrably contrary to the service conditions. If the order is in consonance with the service conditions, as in the present case, that ought to be the end of the matter. In the event the order of transfer is in breach of the service conditions, it is only then that the surrounding circumstances need to be seen. It is also possible that an order of transfer is legal but highly irregular or it may be discerned from a pattern of events that it is a part of a scheme to harass the particular employee. The enquiry by the writ court in the present case ought to have stopped at the initial stage since there was nothing illegal about the impugned transfer. As to the alleged irregularity, no case of egregious prejudice or mala fides as a result of vendetta or otherwise was made out. 18.
The enquiry by the writ court in the present case ought to have stopped at the initial stage since there was nothing illegal about the impugned transfer. As to the alleged irregularity, no case of egregious prejudice or mala fides as a result of vendetta or otherwise was made out. 18. The grounds that were carried by the respondent herein before the writ court were not worthy enough for the writ court to interfere with the decision pertaining to the better administration of the appellant herein. With respect, what weighed with the writ court was the proximity of the dates of the writ petitioner being assigned to Mawsynram, of the challenge to the notification of April, 2021 and the order of transfer of November 26, 2021. 19. Since the high tests required to be met by the writ petitioner for the Court to intervene in the matter were absent in this case and the reasons in support of the interdiction are not found to be legally tenable, the judgment and order impugned dated May 12, 2022 are set aside. As a consequence, the writ petition, WP(C) No. 412 of 2021, is dismissed. There will, however, be no order as to costs. 20. The writ petitioner should immediately proceed to join his new place of posting to be entitled to receive his salary with effect from July, 2022.