1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR. WRIT PETITION NO: 1011/2007 1) MSEB Kamgar Sena Registered Trade Union Through Its President /Secretary MSEB Colony Khaparkheda Dist. Nagpur. 2) Suresh s/o Wasudeorao Patil a/a 41 yrs, occu: Service R/o P.No.12 Old Thaware Colony Jaripatka Nagpur -14. :: PETITIONERS v e r s u s 1) Managing Director, Maharashtra State Power Generation Co.Ltd. Prakashgad, Bandra (E) Plot No.G-9 Mumbai-51. 2) Establishment Officer (HR-1) Maharashtra State Power Generation Co.Ltd. Prakashgad, Bandra (E) Plot No.G-9 Mumbai-51. 3) Chief General Manager (Gen O & M) Maharashtra State Power Generation Co.Ltd. Khaparkheda Thermal Power Station Khaparkheda Dist. Nagpur 441102. 4) Mrs. T.N. Mudholkar, Dy. CAO Maharashtra State Power Generation Co.Ltd. Khaparkheda Thermal Power Station Khaparkheda Dist. Nagpur 441102. :: RESPONDENTS ............................................................................................................................................. Mr. M.V. Mohokar, Advocate for the petitioners Mr. A.D. Mohgaonkar, Advocate for Respondents ............................................................................................................................................. 2 CORAM: A.H.JOSHI ,J. DATE OF RESERVING: 04th April, 2008 DATE OF PRONOUNCEMENT: April, 2008 ORAL JUDGMENT: 1. This Petition is filed by Union as complainant no.1 and by an affected employee / office-bearer as complainant No.2. They allege commission of unfair labour practice under Items (iii), (v) and (ix) of Scheduled IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 ( hereinafter to be referred as to he “Act of 1971”). The complainants seek declaration of unfair labour practice and consequential relief. The Complaint has been decided against the complainants by learned Member, Industrial Court, Nagpur, by judgment and order dated 6.12.2006 against which they have filed this Petition. 2. The complainants allege commission of unfair labour practice against the respondents as collective effect of narrations contained in the body of the complaint, which runs in 11 pages; however summary thereof can be narrated in following points : The order transferring the petitioner from Thermal Power Station, Khaparkheda which is under the control of Thermal Power Station, Zone Koradi to Hydro Power Station, Tillari under Mumbai Hydro Station Zone, is issued in purported exercise of powers and is shown to be for administrative reasons but is, in fact, actually done by mala fides owing to : (a) Petitioner No.2 having complained against Respondent No.4 and 3 sought permission for prosecution under the provisions of Prevention of Corruption Act; (b) The administration found and held without hearing the petitioner no.2 that he was responsible for making complaints against respondent No.4 as well for creating numerous problems in the Office and a Note for the purpose is put up on which the decision is alleged to have been taken transferring the petitioner no.2 which is punitive in nature and hence the transfer based on such decision which is reached without hearing the petitioner no. 2, is mala fide. (c) The petitioner no. 2 has not completed 30 months at his present posting. (d) Petitioner No.2 was not liable to be transferred out of Zone as his seniority would be adversely affected. (e) The transfer is effected though there is no vacancy where he has been transferred. (f) The transfer is contrary to Expert Committee Report. 3. The complaint has been opposed by the Respondents by filing a written statement. It appears that Respondents 1 to 3 have taken it on themselves to justify the transfer and hence though respondent no. 4 is arrayed as Respondent, her role in the matter of transfer, becomes insignificant. While opposing the Complaint, the Management has taken a stand that the decision to effect the transfer was arrived at on the basis of decision taken on Note which is Annexure 11/ (Exh.66) to the Petition. The issue of Petitioner no. 2 having made false complaints, complaints being found false and baseless is one of the issue. Another question on which the 4 transfer is based is that the petitioner no.2 is alleged to have conducted himself in such a manner that he has spoiled the atmosphere and created unpleasant atmosphere as was emerging from communication received from CGM (Generation O & M) Khaparkheda vide his letter dated 17.10.2005. It is further alleged that while transferring the petitioner no.2 and one more person, they were transferred along with the posts, that too by way of deployment. The Respondents, therefore, prayed for dismissal of the Complaint. 4. Since the petitioner no.2 has been an office-bearer of the Union, the case seems to have been persuaded with great vigour and seriousness on the side of the complainants and has been similarly defended. 5. With so much material brought on record from the side of complainants, the crux of the matter turns out to be whether the transfer is based on the decision arrived at or in furtherance to the Note (Exhibit 66) / Annexure 11 to this Petition. The limited question which therefore arises is, “whether on account of the reasons incorporated in the said Exh. 66, it would be competent for the Management to pass an order without being responsible for being guilty of malicious act.” 6. Documentary and oral evidence was brought before the Industrial Court. Considering the limited compass, it would not be necessary to deal with the entire matter in order to arrive at exact controversy. It would be fruitful to look look at the allegations of unfair labour practice. The complaint has been styled under Items (3), (5) and (9) of the Act of 1971. It is seen from the evidence on record that the complaint of unfair labour practice as it stood, is to correct workers 5 concerned. No evidence whatsoever is brought on record. It is, therefore, not gainsay to refer to and deal with the commission of unfair labour practice in so far as Items No. 5 is concerned. 7. The complaint has to be scrutinized on the grounds of Item nos.3 and 9. Reliance on Item No. 9 can be conveniently dealt with first. The complainants do not in specific terms aver and allege as to on account of which of the averments the complaint is falling within the compass of Item 9. The grievance is required to be explored and dealt with. Item 9 seems to have been incorporated in order to allege that the service conditions which not only include the statutory rules but various orders issued from time to time if violated, would amount to breach of “agreement, settlement or award”. The transfer being by way of punishment as it amounts to implicating the petitioner no.2 without hearing him, he seems to claim violation of Item no.9, failure to observe the rule of stay at a particular place seems to be considered by the petitioners to be violation of Item 9. 8. In so far as Item No.3 mala fide transfer is concerned, the petitioner no.2's grievance is actuated due to mala fides and done at the behest of Respondent No.4 who being aggrieved due to complaints against her submitted by the petitioners, the transfer is affected and that the reaching the decision on Office Note- Exh.66 , by itself, according to petitioner is conclusive proof of the fact that the device of transfer is used and is shown as ground of administrative exigency while does not so exist. 9. The contents of the complaint and allegations are sought to be proved by the oral evidence of the complainant, one more witness and is opposed by 6 testimony of Deputy Establishment Officer with huge record before the Court. Therefore, the crux of the matter is interpretation of Note Sheet Exh. 66 /Annexure 11 and a question of law is as to whether, in the premises as generated from that document, the transfer could be considered to be an administrative order or a colourable exercise in disguise, following policy of management and thereby ordering the transfer and hence mala fide. Reading of the said Note Sheet would, therefore, become crucial. The said Note sheet Annexure 11 at Page 106 reveals as follows :- The complaint which was received from the petitioner -Union against Respondent No. 4 was investigated under the orders of Managing Director by Shri D.H. Petare, Joint Chief Accounts Officer. The Inquiry Officer has submitted the findings together with supporting documents and statements recorded by him After perusal of the said report, the Chief Manager Finance furnished the said note. In the said note, he made certain observations : (a) No cases of financial irregularity or deliberate act or omission of causing loss to the Organization as was found. (b) The complaints were based on presumptions. (c) The complaints were aimed at implicating Respondent No.4 due to personal vendetta for seeking her ouster from Office. According to the version of Respondent No.4 S/Shri R.D.Gore and S.W.Patil are the persons who have been resorted to such allegations by using the platform of the union. These two persons also tried to bring political pressure by mis-informing Shri Sunil Kedar, MLA that working atmosphere in the Thermal Power Station has been spoiled due to scuffle 7 amongst the staff, allegations and counter -allegations by these persons. (d) Similar complaints were made in past by these persons against Deputy Chief Accounts Officer which were found to be incorrect. (e) Attempts of fraudulent use of letter heads of certain Union for raising complaint seem to have been done, which complaints are disowned by the Union concerned. Notices of misconduct, making baseless allegations were issued against these two persons by CGM Khaparkheda. Considering all the matters certain proposed action may be taken against these two officials, corrective measures to be taken towards certain procedural lapses. Letter may be a issued to MLA Shri Sunil Kedar informing that the matter has been investigated and no financial irregularities were noticed. Two UDCs namely, S/ Shri Gore and Patil be transferred out of Zone to Veer and Bhatghar Hydro Power Stations, along with the posts. The said Note Sheet has been approved and transfer has been effected. 10. Both the parties have filed their written note of submission. Petitioners have placed reliance on various judgments namely: (a) Arvind Dhande vs. State of Maharashtra and others {1997 SCC ( L & S) 1437} (b) Tejshree Ghag vs. Prakash Purushottam Patil and Others {AIR 2007 C 2141} (c) Rajendra Roy vs. Union of India and others {1993 (1) CLR SC 5.} (d) Samiran Kumar Mondal (Dr) vs. Union of India and others {2000 (III) CLR Cal. 10} (e) Bhabendra Sharma vs. State of Assam {2004 LIC Page 1552} (f) Shamrao Kamble vs. Deputy Engineer ( B & C) Panchayat Samiti, Miraj and others {1998(1) Mh.L.J. 109} 8 (h) Delux Theatres Pvt..Ltd. vs. Bombay Labour Union {1992(1) CLR Bom.256}. These judgments are relied upon to urge that any transfer order to be described as mala fide if it is demonstrated that the power exercised for effecting the transfer of an efficient worker performing public duties is a counter blast to sincere legal action taken by the employee. The executive powers are exercised without following the principles of natural justice and order of transfer could not be supported by Service Rules, it as observed that such transfer orders would lack bona fides and would amount to malice in law. If the transfer is made due to oblique motives and apparently in violation of Rules and without any justification, such transfer would be mala fide. It would be permissible to draw a reasonable inference from the pleadings and antecedent facts and circumstances, however such inference has to be based on strong foundation. When indiscipline is the foundation of transfer, such transfer would be impermissible as it would amount to malice in law since such transfer is in lieu of punishment without opportunity of hearing. Transfer when sought to be based on disclosed reasons and thus pertain to the year prior to the transfer, such transfer would amount to an order which is not based on sound reasons and there would be no rationale behind and hence such transfer would be mala fide. The transfer ought not be allowed to use as a weapon of vindication. it 9 ought never to disciplinary proceedings to dismiss with observance of principles of natural justice. The cumulative effect of evidence is strong will have to be considered while considering the aspect of victimization and maliciousness. 11. In opposition, Respondents have placed reliance on various judgments , namely: a) 1995 II LLJ 849 ( State of M.P. And anoher vs. S.S.Kourav and others) b) 1989 II CLR 168 (SC) (Gujarat Electricity Board vs. Atmaram. c) 1998 1 LLJ 989 ( Kamraj T vs. Dhgaram Cement Limited. d) 1997 1 LLJ 1007 B V Ramanarayan vs. SBI Hyderabad and others e) 1993 II CLR 168 SC Union of India and others vs. S.L.Abbas f) 2000 II CLR 319 Delhi High Court Charan Singh vs. Union of India. g) 2001 III CLR 606 SC National Hydro Electric Power Corpn. Ltd. vs. (1) Bhagwan (ii) Shivprakash. h) 2001 III CLR 677 ( HC Cal.) Sankari Sarkar vs. Union of India. i) 2001 III CLR 866 ( HC Raj) Damodar Prasad vs.RSTC and others. j) 1996 (II_ CLR 65 (Bom. HC DB) Ananty Ghaidas vs. Hydraulic and General Engineers Pvt.Ltd. k) 1997 (II) CLR 54 Ramesh and others vs. MCD 10 j) 1993 1 CLR 700 Govind Pratap Singh vs. Managing Director UPSRTC k) 1994 I CLR 601 Dinamoni vs. District Superintendent of Police. l) 2005 (105) FLR 869. M.Ameetha Begum vs. Commissioner m) 2004 II CLR 467 Union of India vs. Janardhan Debanath. n) 1992 (64) FLR 1013 Jogendra Prsad Tiwari vs.FCI o) 2004 (102) FLR 1038 State of U.P. vs. Sirayam p) 2004 (101 ) FLR 586 State of U.P. And others vs. Gobardhanlal. The citations relied upon by learned Advocate Mr.Mohagaonkar are aimed at asserting the submission that trransfer is an incidence of employment. Every transfer does not need, postulate or pre-suppose hearing. The Government servant has no choice in the matter of transfer. The scope of scrutiny in the matter of order of transfer in the High Court or Tribunal would be extremely limited. No transfer could be inferred to be actuated with mala fides or passed in violation of the provisions. Such violation will have to be made out. 12. All these citations are relied upon to ascertain and inform the Court that the broader underlying aspect of scrutiny of the transfer order. In the present case, the issue on which matters will have to be decided need to be formulated for the sake of convenience which are done as follows :- (1) Has the complainant / petitioner no.2 prove that the transfer order is 11 issued by the employer by way of victimisation on account of any of the acts of the petitioner no.2 due to his participation in the activities of the Organisation of Union? (2) Does the complainant prove that the complaints filed by petitioner No.1 and petitioner no.2 against Respondent No.4 are the only cause of transfer of petitioner no.2? (3) Does the petitioner prove that the transfer order is issued in violation of service conditions ? (4) Does the transfer adversely affect the conditions of service of the petitioner no.2 ?. (5) Is the transfer order issued in lieu of punishment towards any of his misconduct? (6) Does the Management / respondent prove that the transfer order is issued on account of administrative exigency and grounds. 13. On the basis of evidence brought on record by the petitioners in the form of copy of complaint, various documents brought on record, reply filed by respondents to the complaint and documents brought on record, the respective contentions and facts will have to be tested. 12 JUDGE sahare