IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.11.2009 CORAM THE HONOURABLE MR. JUSTICE T. RAJA W.P.No.19132 of 2009 & M.P.No. 1 of 2009 Dr. S. Ashok Kumar ... Petitioner Vs. 1. The General Manager (Personnel) National Insurance Company Ltd., Head Office, Kolkata. 2. Mr. S. Kalyanasundaram, Deputy General Manager, National Insurance Company Ltd., Chennai Regional Office, 190, Anna Salai, 2nd Floor, Chennai – 600 006. ... Respondents PRAYER: This writ petition has been filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records relating to the proceedings of the 2nd respondent herein dated 31.07.2009 and to quash the same. For Petitioner : Mr.Vijay Narayan, Senior Counsel for A. Stalin For Respondents : Mr. A.L. Somayaji,Senior Counsel & John. P. for M/s.T.S.Gopalan & Co., ORDER The petitioner, Dr. S. Ashok Kumar, has filed the writ petition challenging the order dated 31.07.2009 by which he is transfer from Chennai to Tuticorin, which comes under Coimbatore Region. The petitioner joined the respondent / National Insurance Company Ltd., as a Direct Recruit Officer in 1987. Since then he has been working as a Divisional Manager at Division V of the respondent company in Chennai. During his tennure as Senior Branch manager at Mount Road Branch Office, Chennai, it is submitted that, he had completed the target allotted for the said branch for the year 2005 - 2006 and also recorded an impressive growth rate of 134.28% for https://hcservices.ecourts.gov.in/hcservices/ the period upto October 2006 with 34.68% being the growth rate prior to posting as Divisional Manager, Divisional Office V, Chennai. Petitioner's performance has been constantly appreciated by the second respondent from the year 2006. One such appreciation recorded by the second respondent, which is also brought to the notice of this court, is extracted here under. " We are extremely happy to inform you that your Divisional Office has become No.3 profit making do in our region by registering a profit Rs.1.57 Crores for the year 2008 - 2009" 2. While so, petitioner's father aged about 78 years was diagonised with "MALIGNANT RECTAL CANCER" at JIPMER Hospital, Pondicherry. Therefore, he was operated upon at Appollo Hospitals, Chennai on 30.09.2006. In view of his old age as well as the operation underwent by his father, the present condition of his father warrants frequent change of colostomy bag 2-3 times a day coupled with regular medication and constant monitoring of the progress of the Malignant Adenocarcinoma (Malignant Cancer) with Chemotheraphy, Radiations, etc. Since the petitioner's mother also passed away in the year 2006, the entire responsibility of taking care of his father at the old age of 78 years, is on the petitioner's shoulders. At this stage, during the crucial hours faced by his old father with Malignant Cancer, petitioner was transferred from Chennai to Tuticorin by an order dated 31.07.2009. If in a critical situation, the petitioner leaves his father to join Tuticorin office he would be put irreparable injury. Therefore, he was constrained to file the present writ petition on humanitarian ground. Before filing the present writ petition, it is submitted that, the condition of his father was also brought to the notice of the respondent requesting the committee constituted has not applied to look into the case of this nature. The committee has not considered his case, even though, the petitioner submitted the relevant medical records to show the condition of his father. 3. In view of this the petitioner counsel prayed for quashing of the transfer order. 4. In reply, the learned senior counsel appearing for the respondent has submitted that the respondent company has got a transfer policy. As per transfer policy, officers like the petitioner after completion of 5 years in a particular place would be transferred. Petitioner has already completed more than 17 years of service in Chennai. Therefore, the petitioner ought to comply with the transfer policy of the respondent. The petitioner was transferred in the month of May 2008. Immediately, the petitioner has got to the notice of the respondent, the same problem mentioning that his father is suffering from Malignant Cancer and requested to consider his case on humanitarian ground and exempt him from the https://hcservices.ecourts.gov.in/hcservices/ transfer mobility policy temporarily for a period of one year to attend the needs of his father. The request of the petitioner was also considered by the respondent on humanity and thereby, he was allowed to continue in Chennai for more than 9 months. Therefore, it cannot be said that the respondent has not considered the grievance of the petitioner on humanity consideration. 5. Secondly, it was also brought to the notice that several applications were made by various officers working in respondent corporation mentioning that their parents, children or in laws are having the same type of medical problem. Therefore, if the petitioner's case is considered on the ground that his father is suffering from Malignant Cancer and if the order of transfer from Chennai to Tuticorin is quashed, the respondent Insurance Company would not be in a position to run the day to day administration of the department. On that basis the learned counsel for the respondent, prayed this Court not to interfere with the transfer order. 6. Thirdly, the learned senior counsel had also submitted on the basis of the judgment of Apex Court that ordinarily the Court shall not interfere with the transfer order and it is always open to the administration to consider who should be transferred where and it is always left open to the administration to take a decision. 7. Therefore, the learned senior counsel for the Respondent submitted that the order of transfer can not be interfered with as per the judgment of the Supreme Court reported in 2009 8 SCC 337 AIRPORTS AUTHORITY OF INDIA VS. RAJEEV RATAN PANDEY AND OTHERS wherein it has been held in a matter of transfer of a government employee, scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer. Another judgment of the Apex Court reported in 2001 5 SCC 508 ( STATE BANK OF INDIA VS. ANJAN SANYAL AND OTHERS) has also cited by the learned Senior Counsel appearing for the respondent Para 4 of the judgment reads thus: 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 prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order. Keeping in view Rules 47, 49,50(1), 66 and 67 of the State Bank of India Officers' Service Rules, when one considers the legality of an order of transfer, allegedly passed on 14.06.1986, after the employee had continued in Calcutta for more than a decade and the said order had not been held by https://hcservices.ecourts.gov.in/hcservices/ the High Court either to be mala fide or incompetent, it is not possible to come to a conclusion that the said order had not been passed nor had been communicated to the employee concerned. The correspondence between the Bank and the respondent and the entire fact situation unerringly points out to one fact, namely, that the respondent flouted the orders of transfer. 8. In the above said two judgments the Supreme Court has repeatedly held under what circumstances, the court should interfere with the transfer order. If a transfer order is passed violating any statutory provisions or on the ground of malafide it has been held that the court should interfere with the transfer order. 9. But the ground on which the writ petitioner challenging the transfer order is not only different but peculiar, the petitioner father who is aged about 78 years has been suffering from Malignant Rectal Cancer and has also undergone operation in Apollo Hospital In Chennai, now the present condition warrants frequent change of colostomy Bag 2-3 times a day coupled with regular medication and constant monitoring of the progress of the Malignant cancer with Chemotheraphy, Radiations etc., since his mother passed away in the year 2006, the entire responsibility of taking care of his father at this age is completely on his shoulders. 10. Further the petitioner has been transferred to Tuticorin which is about 700 kms from Chennai and even a train journey generally takes 12 hours to reach Chennai from Tuticorin. In view of the order of transfer if the petitioner is allowed to join at Tuticorin, the scope of taking care of his father by staying at Tuticorin would be very little because his only brother who is also posted at Pondicherry as a Doctor is unable to visit frequently chennai to take care of his father. In view of the peculiar facts and circumstances shown by the petitioner, this court being a court of equity and on humanitarian consideration is constrained to interfere with the transfer order. 11. It is not the case of the petitioner that when the petitioner was transferred after completing first 5 years or 10 years he made any request to the respondent not to transfer him to any place. It is also not the case of the petitioner that he made any such request in the first 5 years or 10 years of service. When his father was facing this critical problem, only in the year 2006 for Malignant Cancer, he was taken to Jipmer hospital wherein he was diagonised with Malignant Rectal Cancer and then he was recommended to be operated upon for cancer and on the basis of medical advise given his father had undergone major operation. From the date of operation, the petitioner has been taking care of his father. Further, now the condition of his father is also deteriorating, in view of his old age of 78 years. The week condition of his father https://hcservices.ecourts.gov.in/hcservices/ warrants frequent change of colostomy bag 2 or 3 times which requires some responsible people to be with him. Since, his mother also passed away long back, there is no one to take care of his father at the fag end of his life. Further, his only brother who is working in Pondicherry is not in a position to visit Chennai very often to bestow due care on his ailing father. In this connection, the petitioner has also filed an affidavit stating that he would not have any objection for transfer after his father's lifetime and further prayed this Court to stay the impugned order for a limited period . In the affidavit at para 4 and 5 he has stated as follows:- 4.As stated in the Affidavit filed in support of the writ petition, the petitioner's father aged 78 years is suffering from Cancer of the Rectum and the details of surgery undertaken by himare also available in the Affidavit in support of the Writ petition as well as in the typed set of papers. One of the grounds pleaded by the petitioner is that humanitarian consideration should be shown by the respondent in the matter of posting of the petitioner at Chennai. 5. It is submitted that the Doctors attending on the petitioner's father have indicated that he has short span of life left, in view of the serios ailments. The petitioner prays before this Honourable Court that he may be retained at Chennai during the lift time of his father and unequivocally undertakes to implement and execute any order of transfer, immediately after the life time of the petitioner's father in accordance the Transfer policy of the respondent Corporation for Class I Officers. 12. It is settled law that no court shall ordinarily interfere with the transfer order. However in what circumstances, this Court shall interfere with the transfer order is also well settled. The medical records and the affidavit of undertaking filed by the petitioner show that the critical condition of petitioner's father who is not only 78 years old, but also underwent a major operation for Malignant Rectal Cancer needs the presence of the petitioner for some time in his last days. At this delegate moment if the petitioner is compelled to go to a far off place by the order of transfer from Chennai to Tuticorin by leaving his father who is not only 78 years old, and has been suffering from Malignant Rectal Cancer and also getting Chemotheraphy, Radiation treatment etc., everyday, the petitioner's father for want of timely assistance would be put to not only horrible inconvenience but irreparable loss of life. Since, the petitioner has already filed an additional affidavit stating that he may be retained at Chennai during his fathers short span of life left and also given an undertaking to execute any order of transfer immediately after the lifetime of the petitioner's father in accordance with transfer policy of the https://hcservices.ecourts.gov.in/hcservices/ respondents corporation for clause-I officer, this court is constrained to interfere with the transfer order only on the above said peculiar facts and circumstances and on humanitarian consideration. Accordingly, the writ petition is allowed by setting aside the impugned order. Consequently, connected Miscellaneous petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sms To The General Manager (Personnel) National Insurance Company Ltd., Head Office, Kolkata. 1 cc To Mr.A.Stalin, Advocate, SR.60858 1 cc To M/s.T.S.Gopalan & Co, Advocate, SR.60914 W.P.No.19132 of 2009 & M.P.No. 1 of 2009 AR(CO) sra 18.01.2010 https://hcservices.ecourts.gov.in/hcservices/