1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.07.2011 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR W.P.(MD)Nos.5925, 6265 to 6267 of 2011 and W.P.(MD)Nos.7656 & 7758 of 2011 and M.P.(MD)Nos.1,1,1,1,1&1 of 2011 and M.P.(MD)Nos.2,2,2,2,2 & 2 of 2011 W.P.No.5925/2011 R.Ravi .. Petitioner Vs. 1.The Mangement of Tamil Nadu State Transport Corporation (Madurai)Ltd., Dindigul Region, Rep.by its General Manager, Dindigul. 2.The Branch Manager, Ottanchathiram Branch of Tamil Nadu State Transport Corporation (Madurai)Ltd., Dindigul Region, Ottanchathiram. .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari, calling for the records relating to the transfer order 23.05.11 passed in Ref:Admn:P1:113 by the 1st Respondent transferring the petitioner from Ottanchathiram branch to Dindigul-I branch of the 1st respondent Corporation and the relieving order dated 30.05.2011 passed in Reference: Branch OTC No.40 by the 2nd respondent relieving him from work from the Ottanchathiram Branch, quash the same and award cost. W.P.No.6265/2011 V.Chandramohan .. Petitioner Vs. 1.The Mangement of Tamil Nadu State Transport Corporation (Madurai)Ltd., Dindigul Region, Rep.by its General Manager, Dindigul. 2.The Branch Manager, Ottanchathiram Branch of Tamil Nadu State Transport Corporation (Madurai)Ltd., Dindigul Region, Ottanchathiram. .. Respondents https://hcservices.ecourts.gov.in/hcservices/ 2 For the reasons stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to issue a writ in the nature of certiorari calling for the records relating to the transfer order dated 06.06.2011 passed in Ref: Admn:P1:186 by the 1st Respondent transferring the petitioner from Ottanchathiram branch to Bodi-I branch of the 1st Respondent Corporation and the relieving order dated 06.06.2011 passed in Ref:Admn:P1:186/1 by the 1st Respondent relieving him from work from the Ottanchathiram branch, quash the same, and render justice. W.P.No.6266/2011 P.Pounvel .. Petitioner Vs. 1.The Mangement of Tamil Nadu State Transport Corporation (Madurai)Ltd., Dindigul Region, Rep.by its General Manager, Dindigul. 2.The Branch Manager, Ottanchathiram Branch of Tamil Nadu State Transport Corporation (Madurai)Ltd., Dindigul Region, Ottanchathiram. .. Respondents For the reasons stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to issue a writ in the nature of certiorari calling for the records relating to the transfer order dated 06.06.2011 passed in Ref: Admn:P1:184/1 by the 1st Respondent transferring the petitioner from Ottanchathiram branch to Cumbum-I branch of the 1st Respondent Corporation and the relieving order dated 06.06.2011 passed in Ref:Admn:P1:184/1 by the 1st Respondent relieving him from work from the Ottanchathiram branch, quash the same, and render justice. W.P.No.6267/2011 C.Selvam .. Petitioner Vs. 1.The Mangement of Tamil Nadu State Transport Corporation (Madurai)Ltd., Dindigul Region, Rep.by its General Manager, Dindigul. 2.The Branch Manager, Ottanchathiram Branch of Tamil Nadu State Transport Corporation (Madurai)Ltd., Dindigul Region, Ottanchathiram. .. Respondents https://hcservices.ecourts.gov.in/hcservices/ 3 For the reasons stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to issue a writ in the nature of certiorari calling for the records relating to the transfer order dated 06.06.2011 passed in Ref: Admn:P3:187 by the 1st Respondent transferring the petitioner from Ottanchathiram branch to Natham branch of the 1st Respondent Corporation and the relieving order dated 06.06.2011 passed in Ref:Admn:P1:187/1 by the 1st Respondent relieving him from work from the Ottanchathiram branch, quash the same, and render justice. W.P.No.7656/2011 P.Sivakumar .. Petitioner Vs. 1.The Mangement of Tamil Nadu State Transport Corporation (Kovai)Ltd., Erode Region, Rep.by its General Manager, Erode. 2.The Branch Manager, Palani Branch of Tamil Nadu State Transport Corporation (Kovai)Ltd., Erode Region Palani .. Respondents For the reasons stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to issue a writ in the nature of certiorari calling for the records relating to the transfer order dated 29.06.2011 passed in Ref: 1338/PaPi/TNSTC/Ko/EMA/11 transferring the petitioner from Palani branch to Kavunthapadi branch of the 1st Respondent Corporation and the relieving order dated 29.06.2011 passed in Ref:1339/PaPi/TNSTC/Ko/EMA/11 relieving him from work from the Palani branch both passed by the 1st Respondent, quash the same and render justice. W.P.No.7758/2011 A. Rajendrakumar .. Petitioner Vs. The Mangement of Tamil Nadu State Transport Corporation (Madurai)Ltd., Dindigul Region, Rep.by its General Manager, Dindigul .. Respondent For the reasons stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to issue a writ in the nature of certiorari calling for the records relating to the transfer order dated 07.07.2011 passed in Ref:Admn:P1:331 passed by the Respondent transferring the petitioner from the Regional Office to Dindigul III branch of the Respondent Corporation and quash the same and thus render justice. https://hcservices.ecourts.gov.in/hcservices/ 4 For Petitioners : Mr.S.Arunachalam (in W.P.Nos.5925 and6265 to 6267/2011) For Petitioners : Mr.T.Lajapathy Roy (In W.P.Nos.7656 & 7758/11) For Respondents : Mr.B.Pugalenthi SPl.Govt.Pleader COMMON ORDER As pleadings and submissions advanced in the present writ petitions, are common, where the correctness of the orders of transfer issued to the writ petitioners are under challenge, the writ petitions are disposed of by a common order. 2.The facts in nutshell in each of the Writ Petitions are follows:- In W.P.(MD)No.5925 of 2011, the petitioner is a driver working in Ottanchathiram Branch Depot of the Tamil Nadu State Transport Corporation (Madurai) Ltd., Dindigul Region, Dindigul and that he is a office bearer of a Trade Union viz., 'Labour Progressive Front'. He has been transferred from Ottanchathiram Branch, Dindigul-I Branch of the Corporation, and an order dated 30.05.2011 has been issued, relieving him from Ottanchathiram. According to the petitioner, his wife is working as a staff nurse in a private Hospital at Ambiligai and that his children are studying in 7th and 5th Standard respectively. Because of the transfer, it would be difficult for him to take care of his children, when his wife is on duty during night hours. 3.In W.P.(MD)No.6265 of 2011, the petitioner is a driver working in Ottanchathiram Branch Depot of the first respondent Corporation. He has been transferred from the abovesaid place to Bodi-I Branch of the Corporation and an order dated 06.06.2011 has been passed relieving him from Ottanchathiram. 4.In W.P.(MD)No.6266 of 2011, the petitioner is a driver working in Ottanchathiram Branch Depot of the first respondent Corporation. He has been transferred from the above said place to Cumbam-I Branch of the Corporation and an order dated 06.06.2011 has been passed. 5.In W.P.(MD)No.6267 of 2011, the petitioner is working as a Conductor in Ottanchathiram Branch Depot of the first respondent Corporation and by order dated 06.06.2011, he has been transferred to Natham Branch of the respondent Corporation. 6.In W.P.(MD)No.7656 of 2011, the petitioner is working as a Driver in Palani Branch of the respondent Corporation, within the https://hcservices.ecourts.gov.in/hcservices/ 5 jurisdiction of the Tamil Nadu State Transport Corporation (Madurai) Ltd., Coimbatore, Erode. He is a Central Committee Member of a Trade Union, viz., Labour Progressive Front, affiliated with “Labour Progressive Federation”. By order dated 29.06.2011, he has been transferred from Palani Branch to Kavunthapadi Branch of the 1st respondent Corporation. According to him, the distance between his native place Kolathupalayam and Kavunthapadi, the place to which he has been transferred is 130 Km and that he has to take 4 buses to reach Kavunthapadi. 7.In W.P.(MD)No.7758 of 2011, the petitioner is working as an Assistant and employed on the Administration Section of the Tamil State Transport Corporation (Madurai) Ltd., Dindigul Region, Dindigul and that he is the President of the above said Union at the Corporation level. He has been transferred to Dindigul-III branch of the first respondent Corporation. In addition to the above, he has submitted that he is a heart-patient and undergone Angiogram operation on 07.04.2009, at Meenakshi Mission Hospital, Madurai and that the impugned transfer would affect his ill-health. All the contentions are stated to be either members or office bearers of a particular Trade Union. 8. Assailing the correctness of the orders impugned in these writ petitions, in the above said pleadings, Mr.S.Arunachalam, learned counsel appearing for the petitioners in W.P.No.6265 to 6267 of 2011 submitted that the impugned orders of transfer and the consequential orders, relieving them, are tainted with mala fide to curtail the legitimate Trade Union Activities of the petitioners and it is violative of Clause 7 of 5th Schedule r/w 2 (ra) of the Industrial Dispute Act. According to him, by coercive method, the first respondent has attempted to weaken the legitimate activities of the members of the 'Labour Progressive Front', a particular Trade Union alone and by pick and choose method, the respondents have been purposely transferred, to far away places and that therefore, mala fide is explicit. He also submitted that though the impugned orders of transfer are said to have been made on administrative grounds, the same do not exist and in such circumstances, it should be construed as punitive. Learned counsel for the petitioners further submitted that the impugned orders of transfer have been issued, at the behest of a rival Union viz., “Anna Thozhilalar Sangam”, in short, ATS, and it is their further submission that considering the timing, in which the transfer orders are effected immediately after the change of regime, in the State of Tamil Nadu, it would be apparent that the members or the office bearers of the Trade Union viz., 'Labour Progressive Front' alone have been discriminated. According to him, when mala fide and unfair labour practices are explicit in the manner in which the transfers are effected, the impugned orders are liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 6 9.While reiterating the contentions stated supra and inviting the attention of this Court to the statement made by Learned Advocate General, State of Tamil Nadu, in W.P.Nos.12672 of 2011 etc., batch that the transfer orders effected against the petitioners would be treated as withdrawn and the said orders will not be given effect to. Mr.T.Lajapathi Roy, learned counsel appearing for the petitioners in W.P.(MD)Nos.7656 and 7658 of 2011 submitted that inasmuch as the impugned orders of transfer effected against the members/office bearers of Labour Progressive Front are liable to be withdrawn or set aside, as the case may be, as done in the Principal Bench of this Court. Placing reliance on a decision of the Hon'ble Supreme Court in Somesh Tiwari Vs. Union of India reported in (2009 (3) MLJ 727 (SC) and inviting the attention of this Court to the contents of the impugned orders of transfer, he further added that though, in normal circumstances an order of transfer would not be interfered with, as it is ordinarily an incident of service but in the instant case, only the members/office bearers of Labour Progress Front Union alone have been picked them. Therefore, he submitted that the Court, may left the veil and can come to a conclusion, as regard the punitive and mala fide nature of transfer. For the above said reasons, the petitions are to set aside the orders. 10. At the outset, Mr.B.Pugalenthi, learned Special Government Pleader appearing for the respondents, has made a categorical statement that the submissions of the learned Advocate General, State of Tamil Nadu, is confined only to those particular writ petitions and not to all the cases of transfer made in the Corporation, this Court deems it fit to consider the merits of the present case. 11.Counter affidavits have been filed in W.P.Nos.6265 of 2001, 6266 of 2011 and 6267 of 2011, wherein, common contentions have been raised and in other writ petitions Mr.B.Pugulenthi, learned Special Government Pleader made submissions on instructions. 12.Per contra, based on the counter affidavit filed by the General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Dindigul Region, the first respondent Corporation, Mr.B.Pugalenthi, learned Special Government Pleader made a preliminary objection that the writ petitions filed questioning the transfer and the consequential relieving orders are not maintainable in law. He further submitted that even assuming for argument sake, that the petitioners are aggrieved, they should have raised an Industrial Dispute, under the relevant provisions and a Writ Petition under Article 226 of the Constitution of India would not lie. He also submitted that though the petitioners have contented that they are members/office bearers of a particular Union, the Corporation is not aware of the details of the individuals, placed before this Court. Inviting the attention of this Court to Rule 22 of the Common Service Rule, which governs transfers of an employee of the Corporation, learned Special Government Pleader further submitted that an employee may require to serve in any place borne on the cadre https://hcservices.ecourts.gov.in/hcservices/ 7 of the Corporation and in any place of duty, as the exigencies of the administration require. He further submitted that all transfers and postings shall be made by the appointing authority and in view of the statutory rule, an employee is bound to serve in any place within the Corporation. According to him, the transfers are only a routine transaction and on administrative grounds. He denied the contention of mala fides and refuted that, the change in regime is nothing todo with the transfers. He further submitted that transfer is an incidence of service and the Management has inherent right to transfer an employee from the one place to another. 13.Learned Special Government Pleader denied the contention of victimization due to unfair labour practice, and motive due to any political reasons. According to him, the petitioners in W.P.No.6265 to 6267 of 2011 have already been relieved from the place, in which they are working and therefore, when the orders of transfer have been given effect to, the writ petitions have to be dismissed. He also brought to the notice of this Court, an order made by this Court in W.P.No.4853 of 2008, dated 06.08.2010, wherein, the Court held that the members or Office bearers of any Union do not enjoy any immunity in the matter of transfer and that they are liable to be transferred to a suitable post in the same scale-of-pay and other attendant benefits. It is his further contention that relative hardship alleged to have been caused to the writ petitioners, even assuming to be a genuine, that would not take away the powers of the administration to effect transfers. For the reasons stated supra, he prayed for dismissal of the writ petition. 14.Heard learned counsel for the parties and learned Special Government Pleader appearing for the respondents. 15.As a preliminary objection has been made to the maintainability of the writ petitions, on the ground that only an Industrial Dispute has to be raised when mala fides are alleged, this Court deems it fit, to adduce the issue 5th Schedule to the Industrial Disputes Act, enumerates certain acts as unfair labour practices. Clause 7 of 5th Schedule r/w rule 2(ra) of the Industrial Disputes Act reads as follows: “7. To transfer a workmen mala fide from one place to another, under the guise of following management policy.” 16.In some of the judgments, this Court has held that the right available to an employee, under the Industrial Disputes Act is only a challenge to the order of transfer, by way of a Dispute, before the forum contemplated under the Act and let we extract the same. 17.In Tiruvallur Transport Corporation Ltd., Vs. Government of Tamil Nadu reported in (1997 (II)CTC 200), a suit was preferred by a https://hcservices.ecourts.gov.in/hcservices/ 8 workman for declaration that an order of transfer to be declared as invalid. An injunction was granted restraining the respondents therein from giving effect to the order of transfer. Being aggrieved by the same, the Transport Corporation filed a Civil Miscellaneous Appeal on the file of the Additional Sub Judge, Tiruchirapalli. The appeal was dismissed. Being aggrieved by the same, a Civil Revision Petition was filed before the Principal Bench of this Court. The question addressed in that revision was whether the civil Court has no jurisdiction to adjudicate any dispute and grant an injunction against enforcing the order of transfer, as the same is not a right recognized by common law, but created only under the Provisions of Industrial Disputes Act.? 18.After referring to the definition of “Industrial Dispute”, as defined under Section 2(k) of the Industrial Dispute Act, 1947, and reference to workman, under Section 2(s) , Section 2A of the said Act and the Standing Order No.27, the Hon'ble Mr.Justice AR Lakshmanan (as He then was) held that as no common law right is involved and the only remedy open to the Court is under the Industrial Disputes Act. In paragraph No.12 of the judgment, the Court held as follows;- “The relief claimed by the respondent in this case is not recognized under Common Law as it does not impose any limitation on the power of the Master to transfer his employees on the ground of mala fides or unfair labour practice or victimisation. Such a right being only the creation of the Industrial Disputes Act which provides for a machinery for adjudication for resolving any such grievance, the Civil Court, in my view, would have no jurisdiction to entertain the suit much less grant the interim order as prayed for..... My attention was drawn to Clauses-21 & 22 of Common Service Rules which is applicable to the employees of the Corporation. The management in my view, has the power to transfer the respondent from one depot to branch or place of work to another of the Corporation by virtue of Clauses 21 & 22 of the common Service Rules. When there is a power to transfer, and the same has been bonafidely exercised, the Civil Court has no jurisdiction to interfere and grant an injunction restraining the management from giving effect to the said order. The respondent being a workman within the meaning of Sec. 2(s) of the Act and relates to the enforcement of a right of or obligation created under the Act, the only remedy available to him, would be to approach the forum created under the provisions of the Act and face if any grievance, and the jurisdiction on the Civil Court is ousted. https://hcservices.ecourts.gov.in/hcservices/ 9 19.While declaring that the civil Court has no jurisdiction to entertain an Industrial Dispute regarding transfer, the learned Judge has considered a decision reported in Premier Auto mobiles Ltd., v. K. S. Wadke (1975-II-LLJ-445), wherein, the Supreme Court has held as follows: “ “The principles applicable to the jurisdiction of the Civil Courts in relation to an industrial dispute may be stated thus : (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil Court. (2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (3) if the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act, such as chapter VA, then the remedy for its enforcement is either S. 33- C or the raising of an industrial dispute as the case may be." 20. In yet another decision of this Court in Tamil Nadu Mercantile Bank Ltd., V. T.Venkatesan, reported in (1992 I LLN 627), wherein, another esteemed Hon'ble Mr.Justice M.Srinivasan, (as He then was)) held as follows ;- "The right sought to be enforced is not a common law right. A perusal of the plaint shows that the only ground on which the order of transfer is challenged is that it is a mala fide act of victimization and punishment. It is not the case of the plaintiff that there is any violation of the terms of the contract of service. It is not in https://hcservices.ecourts.gov.in/hcservices/ 10 dispute that the order of appointment under which the respondent entered in service with the petitioners contained specific clause that he may be transferred to any section/department/branch of the establishment. It is not the case of the respondent that the said clause is in violation of any provision in the Contract Act or any other Statute. This is not a case in which the respondent is seeking to enforce the contract between him and the petitioners; nor is it a case based on a breach of contract. No doubt, there is a passing reference in Para 12 of the plaint that the order of transfer is also contrary to the transfer policy, i.e., a staff will not be transferred from one place to another before completion of three years. There is no averment in the plaint that the so called transfer policy forms part of the contract between the plaintiff and the defendants." "A right to challenge an order of transfer on the ground of mala fides or victimization cannot be equated with the right to get wages during the pendency of the proceeding in a High Court or the Supreme Court by an employer against the award passed by a Labour Court, Tribunal or National Tribunal directing reinstatement of workman." "In this case, it is not in dispute that the employees' union of which the plaintiff is the Vice- President, has already initiated proceedings under the Industrial Disputes Act. The respondent having initiated proceedings under the Industrial Disputes Act is not entitled to maintain the suit in Civil Court has no jurisdiction to decide the same. The orders of the Civil Court below are set aside." 21.In T.Rajaiah & 40 others Vs. Southern Roadways Ltd., reported in (1991 TLNJ 76) , the employees of the Southern Roadways filed suits challenging their transfer, from the places where they were working to some other places allegedly, with mala fide intention by the respondent and not for any administrative reasons. Injunction sought for by the employees was rejected and on appeal, the trial Court confirmed. Seeking reversion of the orders stated supra, the employees moved the Principal Bench of this Court. Another learned Judge, Hon'ble Mr.Justice S.T.Ramalingam (as He then was) after considering the statutory provisions in the Industrial Disputes Act, held as follows:- "The next question for examination is as to whether the Industrial Disputes Act has created a forum for enforcing this statutory right in the https://hcservices.ecourts.gov.in/hcservices/ 11 matter of transfer as defined in Section 2/(r a) read with Section 25-T of the Act. Section 7A deals with matters that can be dealt with by the Industrial Tribunals. The matters that can be dealt with by Industrial Tribunals are enumerated in third schedule and the matters that can be dealt with by a Labour Court are enumerated in the second schedule. Item-6 of Second Schedule deals with all matters other than those specified in the third schedule. In that view of the matter, disputes that arise as a result of mala fide transfer squarely fall under the second schedule, and in fact, the petitioners have initiated proceedings as an Industrial Dispute. However, the Government declined to refer the matter. The petitioners have once again applied to the Government for review of their decision. In these circumstances, even if the facts of this case give a right to election to the petitioners, the petitioners having elected to get redress of their grievance by initiating proceedings under the provisions of the Act, I find, they are not entitled to invoke the, jurisdiction of the Civil Court." 22.Some of the Judgments relied on by the Hon'Mr.Justice AR.Lakshmanan (as He then was) while adjudicating the issue of jurisdiction, relating to the power of the employer and the scope of judicial review of an order of transfer are reproduced below:- 22(a).In B. Varada Rao v. State of Karnataka (1986-II-LLJ-516), the Supreme Court held that it is well understood that transfer of Government servant, who is appointed to a particular cadre of transferable post from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of