1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated:- 12.12.2011 Coram:- The Hon'ble Mr. Justice T.RAJA Writ Petition (MD) No.12865 of 2011 and M.P. No.1 of 2011 V.Jeyachandran ... Petitioner vs. 1.State Express Transport Corporation Tamil Nadu Ltd., rep. by its General Manager (Operation and Maintenance). Chennai 600 002. 2. The Branch Manager, State Express Transport Corporation Tamil Nadu Ltd., Madurai Branch / Depot, Madurai. 3. A.Abimanyu, Branch Manager Incharge, State Express Transport Corporation Tamil Nadu Ltd., Madurai Branch /Depot, Madurai. 4. Chockalingam, Senior Driver, State Express Transport Corporation Tamil Nadu Ltd., Madurai Branch /Depot, Madurai. ... Respondents Petition under Article 226 of the Constitution of India for the relief as stated therein. For petitioner : Mr.A.Rahul For Respondent/ Corporation 1&2 : Mr.T.R.Janarthanan Additional Government Pleader O R D E R The petitioner herein seeks for issuance of a writ of certiorari to call for the records pertaining to the impugned order of transfer passed against him by R-1, the General Manager of the SETC (State Express Transport corporation) Tamil Nadu Ltd., vide Order No.056361/HR4/SETC TN/2011/2435, dated 31.10.2011, and also the consequential relieving order passed by R2/the Branch Manager of the SETC TN Ltd, Madurai Depot at Madurai, in Memo No.2551/M3/SETC/MDU/2011, dated 01.11.2011, and to quash the same on the ground that the impugned transfer order in question would attract the principle of malice in law as the same was not based on any factor germane for transfer and again, the said order is wholly illegal as, ex facie, it is passed in lieu of punishment. https://hcservices.ecourts.gov.in/hcservices/ 2 2. At the request of both sides, the writ petition is taken up for final disposal at the admission stage itself. 3. Learned counsel appearing for the petitioner, in his endeavour to demonstrate that the aforesaid grounds viz., malice on the part of the management and the transfer order is nothing but a punitive measure, are clearly made out, at the first instance, highlighted the background in which the petitioner came to be transferred. It is stated that the petitioner, who is now a Selection Grade Driver, originally joined the services of the respondent/Corporation as 'Driver' on 02.05.1988 and, for his unblemished service record and for driving without any accident for 23 years and also maintaining high mileage while driving the vehicles, he was given the Meritorious Award by the 2nd respondent. While so, to ensure cordial relationship between the Management and the Employees, the Corporation has been allowing various trade unions to function with a view to redress the grievance of the workers. The petitioner was the Madurai Branch Secretary of Labour Progressive Union which is affiliated to Labour Progressive Federation (LPF) and he was holding the said post from 1990 to 2007. Thereafter, he became the Central Committee Member of the LPF and, while sincerely working as Driver, without disturbance to the duties, simultaneously, he strove hard to take up the cause of the workers on various issues with the Management. During the Union Elections held on 25.11.2010, the Labour Progressive Federation emerged victorious and thereafter, the Labour Progressive Union was recognized as the Sole Bargaining Agent by the Government of Tamil Nadu in G.O. Ms. No.359, Transport (C1) Department, dated 08.12.2010, and also conferred with various privileges by the Corporation including permission to use the Union Office space provided to them for union activities. 3-A. After highlighting the above scenario, learned counsel adds that, while so, after announcement of the Assembly Election Results on 13.05.2011, the members of Anna Thozhil Sanga Peravai, the rival group affiliated to the new Ruling Party, started interfering with the Union activities of the LPF. It so happened that the rival group went to the extent of ransacking the union office premises of LPF in various places and forcibly took possession of the union offices and further, they also started interfering in the matters of allotment of duty, preparation of roaster for drivers, conductors and other employees. As the complaints lodged by the Office bearers of the LPF Union were not even taken up for investigation and enquiry, a writ petition in W.P. No.12577 of 2011 was filed before the Principal Seat of this Court seeking to issue a writ of mandamus against the respondent/Corporation directing them to take appropriate action on the complaints filed by the petitioner's Union and to ensure that the use of the allotted premises by the Trade Union affiliated to the LPF is not disturbed or interfered by anyone including the rival group. While passing orders in the said writ petition on 19.05.2011, the Principal Seat of this Court recorded the undertaking given by the rival group that their members would neither interfere with the functioning of the petitioner's Union nor disturb the premises occupied by them and further, a consequential direction was given to ensure necessary protection to the members of the LPF. Similarly, in yet another writ petition (WP No.12609 of 2011) filed by the LPF before the https://hcservices.ecourts.gov.in/hcservices/ 3 Principal Seat for the issuance of a mandamus directing the respondents/Corporation not to withdraw or interfere with or deprive in any manner the role of the LPF and its privileges, while passing orders on 19.05.2011, the undertaking given by the management to the effect that administration will be carried out in accordance with service conditions and that members of the rival group will not interfere with the affairs of the LPF was duly recorded. 3-B. As the Corporation was aggrieved by the labour-oriented efforts of the petitioner and already had grudge against the Union to which the petitioner was affiliated to, the 2nd respondent was instigating the workers of the rival group to enter into wordy altercation with the petitioner on several times and, in that back ground, the petitioner was placed under suspension with effect from 26.09.2011 to 30.10.2011. After being relieved from suspension on 31.10.2011, the petitioner attended a single duty of driving the Bus from Madurai to Chennai and alighted at Madurai on 02.11.2011. Since he was not well, he applied for leave for 15 days from 03.11.2011 and, while taking treatment at home, he received the impugned order of transfer dated 31.10.2011 as well as the relieving order, dated 01.11.2011, by post on 08.11.2011. 3-C. After elaborating the background in which the impugned orders surfaced, learned counsel would submit that the transfer order is passed purely with mala fide intention due to the petitioner's trade union activities and on the basis of a motivated complaint lodged by R4/a member of the rival group. On the strength of the complaint, a charge memo, dated 25.10.2011, has also been issued to the petitioner. According to him, the transfer of the petitioner just after issuance of the charge memo clearly depicts the punitive action taken by the Corporation under the guise of administrative reasons. As the impugned order would attract the principle of malice in law as it was not based on any factor germane regarding administrative exigency, this Court has to interfere as it is an exceptional case where the employer wholly abused the power meant to be exercised over administrative exigencies and for welfare and smooth running of the Institution. 4. In reply, learned Additional Government Pleader appearing for the respondents/Corporation would submit that an order of transfer being an administrative order, there is no scope for interference by this Court. Such order being an incidence of service, an employee cannot urge for his posting at a particular place, for, it is the privilege and prerogative of the employer as to where, when, at what point of time and at which place its employees shall be transferred and posted, having regard to the administrative requirements. According to him, there was no ill-intention or malice on the part of the management to transfer the petitioner and only in tune with the administrative reasons, the impugned order came to be passed and the same needs no interference. 5. I have considered the rival submissions made on either side and carefully perused the records. Undoubtedly, in usual course, where an order of transfer is passed due to administrative reasons and for better functioning of the Institution, it is beyond the scope of any court or tribunal to interfere with such orders. But, in cases, where it is apparent that an order of transfer is passed by the management due to malice or as a punitive https://hcservices.ecourts.gov.in/hcservices/ 4 measure, there is no bar or fetter for the Court to interfere to ensure that the power vested with the management intended to be used for betterment and better administration of the Institution is not misused to target the employees. Keeping the above aspects in mind, it must be seen here, whether the impugned transfer order warrants interference or not. 6. Admittedly, the Union to which the petitioner is affiliated to ie., LPF, emerged to be victorious in the election conducted on 25.11.2010 and it became the Sole Bargaining Agent for the employees vide G.O. Ms. No.359, dated 08.12.2010. Subsequently, as adverted to above, two writ petitions were consecutively filed by the Union aggrieved by the alleged high-handed acts of the rival group and, in both the petitions, it seems, an undertaking was given before court that the interests of the Union would be taken care of in terms of the service conditions of the Corporation. It also seems that the Management was also aggrieved against the petitioner since he was suspected to be the person in the background of appearance of a news-item in the Madurai Edition, dated 18.08.2011, of the Tamil Daily called 'Dinamani' relating to poor maintenance of the respondent/Corporation buses. Further, after being placed under suspension from 26.09.2011 to 30.10.2011, the petitioner was relieved from suspension on 31.10.2011, whereupon, he attended a single duty and, after driving the bus from Madurai to Chennai, alighted at Madurai on 02.11.2011. Thereafter, he took leave for 15 days from 3.11.2011 to undergo treatment at which time, on 08.11.2011, he received the impugned transfer order dated 31.10.2011 as well as the the relieving Order dated 01.11.2011 by post. Despite the bitter and strained relationship between the petitioner and his Union on the one hand and the Management on the other hand, if the matter actually stood thus, there would have been nothing for this Court to infer or think otherwise about the action of the Management so as to find fault with the transfer. But, it is seen from the records that just a couple of days prior to the transfer order dated 31.10.2011, a charge memo, dated 25.10.2011, was issued to the petitioner with certain allegations on the dispute between the petitioner and the 4th respondent belonging to rival group. In other words, the transfer order passed just a few days subsequent to the charge memo coupled with the strained relationship between the Management and the Union to which the petitioner is affiliated to as adverted above would clearly spell out in definite terms that the act of the Management in transferring the petitioner was not due to any administrative exigency but purely as an outcome of malice and ill-intention to somehow punish him. Courts are always circumspect and reluctant in interfering with the transfer orders, in particular the ones passed by the Transport Corporations because, since they fall under public utility service, it is inevitable to resort to transfer to better run the administration so as to ensure best services to the public. But, when such liberty given to the Management is misused for unwanted reasons as in the case on hand, it is just and necessary for this Court to interfere with the orders obsessed with malicious intention and passed as a punitive measure. In this regard, it is of much relevance to extract below the observation of the Apex Court in Somesh Tiwari v. U.O.I. (2009 (3) MLJ 727 (SC)), “ 19. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority https://hcservices.ecourts.gov.in/hcservices/ 5 is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. 20. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. “ Viewing in that perspective the facts and circumstances involved herein and as discussed above, the prayer of the petitioner deserves acceptance by quashing the orders challenged herein. 7. In the result, the Writ Petition is allowed as prayed for. However, there will be no order as to costs. Connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar To 1. The General Manager (Operation and Maintenance).State Express Transport Corporation Tamil Nadu Ltd.,Chennai 600 002. 2. The Branch Manager, State Express Transport Corporation Tamil Nadu Ltd., Madurai Branch /Depot, Madurai. 3. Branch Manager Incharge, State Express Transport Corporation Tamil Nadu Ltd., Madurai Branch /Depot, Madurai. JI GH : 03.01.2012 : 5p/4c Order in WP (MD) No.12865/2011 12.12.2011 https://hcservices.ecourts.gov.in/hcservices/