W.P (C) No. 4442 of 2008 Page 1 of 31 * HIGH COURT OF DELHI : NEW DELHI + W.P (C) No. 4442 of 2008 K. N. Bhardwaj ......Petitioner Through: Mr. Jai Bansal, Adv. Versus Life Insurance Corporation of India & Ors. ……Respondents Through: Mr. Ravinder Sethi, Sr. Adv. with Mr. Kaushal Mehta and Mr. Puneet Sharma, Advs. Judgment reserved on: 09.09.2010 Judgment pronounced on: 03.12.2010 Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may No be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MANMOHAN SINGH, J. 1. The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India seeking direction to quash the office order dated 8.5.2008 by virtue of which the petitioner was transferred to the city of Jodhpur, Rajasthan. Further directions are sought against the respondents to consider and decide the representation of the petitioner for revoking transfer order and to consider the case of petitioner under voluntary retirement scheme with pension and other consequential benefits. 2. The facts of the case leading upto the filing of the present writ W.P (C) No. 4442 of 2008 Page 2 of 31 petition are that the petitioner was appointed by the LIC, respondent no.1 as an „Assistant‟ in the year 1979 and in 2002 he was promoted to the post of “Administrative Officer‟. He was working with respondent No. 3 as a „Faculty Member‟ for imparting training to the various „marketing officials‟ of respondent Nos. 1 & 2. The petitioner is in the grade of „Administrative Officer‟ in the pay scale of Rs. 22030/-. 3. According to the petitioner in the last few years he developed ill health. In 1997 he had a heart attack and in the year 2000 he suffered from „compression fracture in the „spinal chord‟ due to which he could not sit for long duration. Then in 2004 he was operated for umbilical hernia. He is also suffering from „chronic cervical problems‟. Thus, he is a victim of extreme mental and physical hardship at the hand of the respondents. 4. It is alleged that in 2004 after his hernia operation he requested the respondents to transfer him to a place where he could work easily as he had been advised by the experts not to take tour and travel but his request was not allowed. Therefore he approached the Regional Manager with his problem who ordered the medical examination of the petitioner by a divisional medical referee. The divisional medical referee confirmed that the petitioner had been suffering from the above said problems and recommended him for soft posting. 5. The petitioner, was posted in the Sales Training Centre as a faculty member. Later on he was transferred to Surya Nagar Ghaziabad. 6. On 30.06.2007, the petitioner was issued a chargesheet W.P (C) No. 4442 of 2008 Page 3 of 31 charging him for misbehaving with one of his colleagues and for violating the provisions of Regulations 21 & 24 read with 39 (1) of LIC of India (Staff) Regulations, 1960. 7. On 17.05.2008 the petitioner‟s son received a letter dated 08.05.2008 transferring the petitioner from Delhi to Jodhpur. According to the petitioner, the said transfer order is against the recommendation of the medical referee of the respondents and as the petitioner is also facing an inquiry his absence would adversely affect his case. 8. The petitioner has also submitted that he had later on made a representation dated 21.05.2008 for voluntary retirement on which no action has been taken by the respondents. 9. The respondents in their counter affidavit have stated that the job of the petitioner is a transferable one and as per Regulation 80 of the Life Insurance of India (Staff) Regulations1960 the competent authority may transfer an employee from one department to the other in the same office or from one office to the another office of the corporation. 10. The respondents have further stated that the petitioner cannot avail voluntary retirement because he has not completed 55 years of age and also because there is a disciplinary enquiry pending against the petitioner. As far as medical condition of the petitioner is concerned, it was stated that in 2004 the petitioner sought permission from the respondents to pursue part time studies in evening Law College in Delhi University and attend classes which was granted to him. It clearly shows that the petitioner is in good health and he is trying to rely upon the said W.P (C) No. 4442 of 2008 Page 4 of 31 medical condition only to avoid his transfer and that is why he consciously concealed this material fact in the petition. 11. Along with the present writ petition the petitioner filed two interim applications being CM No.8579/2008 for stay of transfer and thereafter the petitioner filed another CM No.8680/2008 to prepone the hearing of CM No.8579/2008, to stay the transfer, to initiate action against respondent No.3 i.e. Principal, Metro Sales Training Centre, LIC of India, for not accepting voluntary retirement notice and leave application and disallowing petitioner from joining duties with effect from 7.6.2008. 12. The CM. No. 8579/2008 was dismissed on 11.06.2008. The petitioner thereafter filed the appeal against the said order before the Division bench as LPA No.317/2008. The said appeal was dismissed as withdrawn before DB-1 on 1.7.2008 with liberty to approach the Single Bench. 13. Subsequently, the petitioner filed various CMs in the present matter being CM No.9001/2008 for release of salary and CM No.9973/2008 to consider the earlier CMs pending. Notice was issued vide order dated 23.7.2008. The petitioner again filed CM No.10418/2008 in disposed matter i.e. LPA No.317/2008 with prayer to post the petitioner to a commutable distance in Delhi and also direction to the respondents to decide the application for voluntary retirement and release of salary for June 2008. The said application was dismissed by the Division Bench vide order dated 29.7.2008. W.P (C) No. 4442 of 2008 Page 5 of 31 14. Even thereafter the petitioner filed various applications being CM No.14915/2008 and CM No.1216/2009 for stay of operation of transfer order. However, no interim order was granted. Simultaneously, the petitioner also filed the Special Leave Petition against the order passed by the Division Bench dated 1.7.2008 and 29.7.2008 in LPA No.317/2008 being SLP No.22105/2008. The Special Leave Petition was dismissed by order dated 20.4.2009. After the dismissal of the Special Leave Petition, the petitioner again started filing fresh application for the similar relief being CM Nos.6087/2009, 6457/2009, 8127/2009, 12432/2009 and 11957/2009 in the present matter with the prayers in addition to the prayer for quashing the transfer order and release of salary. However, no relief was granted to the petitioner. 15. Instead of hearing of multiple miscellaneous applications, with the consent of the parties, the main writ petition was heard by this Court. The learned counsel for both the parties have made their submissions. 16. The main thrust of the argument of the petitioner is that the impugned order dated 6.5.2008 to transfer him to Jodhpur, Rajasthan, is illegal and contrary to the circular No.Per:Admn/D/64 dated 03.11.99 reference is invited to the provisions of the Circular No.ZD/939/ASP/99 dated 17.09.99 whereby, inter alia, powers relating to the postings of officers in the cadre of Administrative Officers (AO)/Branch Managers (BM) which were vested in the Zonal Manager in Charge (ZM) have been decentralized to Divisional Manager in charge (S/DM-I/C). According to the petitioner, the above mentioned circular makes it clear that the W.P (C) No. 4442 of 2008 Page 6 of 31 concerned person, who is Zonal Manager was having no powers to transfer the petitioner. 17. Second submission of the petitioner is that, there are several medical problems to the petitioner, thus there was no exigencies/valid reasons assigned by the respondents for his transfer. The representation made by the petitioner on 20.5.2008 in this regard was not disposed of as per rules. 18. In the rejoinder filed by the petitioner, it was pleaded that the transfer order is in violation of guidelines of transfer as when the inquiry is pending against the employee, he should not have been transferred during the pendency of the inquiry. The said action of the respondents is to be taken as an irregularity of the enquiry proceedings and no transfer can be made during enquiry proceedings. Further challenge has been made that the said transfer order ought to have been made as per transfer guidelines which provide that whosoever has worked for than one year prior to the year 2000 cannot be transferred. “Zones to transfer in the Cadre of AOs, who have worked for more than 7 years (date of joining earlier than 01.01.2000) at a particular station to some other department or office other than the one in which he is currently within the same city or otherwise.” The petitioner has referred the following judgment in support of his submissions: 1. Novartis India Ltd. vs. State of W.B.; (2009) 3 SCC 124 wherein it has been observed: “34. There cannot be any doubt whatsoever that ordinarily an employee who has been transferred should, subject to W.P (C) No. 4442 of 2008 Page 7 of 31 just exceptions, joint at his transferred place. Ordinarily in an industrial undertaking indiscipline should not be encouraged. This Court in SBI v. Anjan Sanyal observed that the conduct of an employee in a transfer case is material as he cannot get a premium for his disobedience. There are, however, certain exceptional situations in this case. Admittedly the respondents were challenging the right of the employer to order transfer of the employee particularly when they hold some posts in the association. The dispute was sub judice. They were in their late fiftees. They had served the company for a period of more than 25 years. It is true that they did not join at their transferred posts within a reasonable time. It may also in an ordinary situation be held that seven months is too long a period to join at the transferred place. There cannot furthermore be any doubt that the transfer is an incidence of service. Unless an order of transfer is passed contrary to the provisions of the statutory rule or settlement, the same should not be interfered with.” 19. Next submission of the petitioner is that since this transfer order is illegal, therefore, the petitioner is entitled for salary since June 2008 as Regulations 74 and 72 of LIC Staff Regulations, 1960 are applicable only after being relieved which is denied to the petitioner. Since the entry of the petitioner was denied by the respondents at workplace in June 2008, therefore, the petitioner is entitled for the salary in view of circular dated 15.5.1979. He has referred to the case of Somesh Tiwari vs. Union of India (UOI) and Ors.; AIR 2009 SC 1399 in support of his submissions. It was observed: “We are conscious and mindful that even in absence of statutory provision, normal rule is „no work no pay‟. In appropriate cases, however, a Court of Law may, must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the Authority to grant him all benefits considering „as if he had worked‟. It, therefore, cannot be contended as an absolute proposition of law that no W.P (C) No. 4442 of 2008 Page 8 of 31 direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant- Board, therefore, has no substance and must be rejected.” The impugned judgment of the High Court is modified to the aforesaid extent. The appeal is allowed to the aforementioned extent. Respondents shall bear the cost of the appellant counsel‟s fee assessed at Rs.50,000/-.” 20. The last submission of the petitioner is that the petitioner be granted voluntary retirement pension. During the course of the hearing the respondents have informed the Court that the necessary orders for voluntary retirement have been passed on 21.09.2010, the petitioner has not disputed the aid fact. 21. The respondents‟ main contentions are as follows: A. The employment of the petitioner was a transferable job as per Regulation 80 under the statutory Life Insurance of India (Staff) Regulations, 1960 and the competent authority may transfer an employee from one department to the other in the same office or office of the corporation to another office. B. In view thereof, the petitioner was bound by the statutory regulation and ought to have joined the transferee office within six days of his transfer. According to the respondents, it has more than 2000 offices all over India and at least more than one lac employees working with it. The transfer in LIC is a routine matter and every year the transfer lists are issued accordingly. C. By Zonal Office Order P & IR/Desk-1/PO-08 dated 6.5.2008 for promotion/de rotation/ transfer in the cadre of administrative officer W.P (C) No. 4442 of 2008 Page 9 of 31 was issued and pursuant thereto on 8.5.2008, the office order approving the postings was duly issued by the Senior Divisional Manager, Jodhpur Division. The petitioner by the order was directed to take the charge of new assignment with immediate effect. The petitioner through the letter dated 8.5.2008 was personally informed in writing of his transfer to Jodhpur Division vide zonal office order dated 6.5.2008. D. Despite of receiving the letter the petitioner absented himself from the office and came to the office only on 19.5.2008 and left the office to visit the zonal office and on 21.5.2008 the petitioner again left the office without meeting the person in charge of the office and without his permission. The petitioner also did not join the office on 22.5.2008 to comply with the transfer orders and the respondents were constrained to relieve the petitioner from his assignment at the close of office hours and he was advised to join new assignment immediately. An information in this regard was given. E. According to the respondents, the petitioner was hale and hearty as he himself applied for permission to pursue part time studies in the year 2004 but he was just avoiding to join the transferee office on medical ground. The rules in this regard state that for all intents and purposes when the employee is transferred, the employer of the transferor office loses jurisdiction over the employee and whatever the employee intends to do, he has to approach the transferee office W.P (C) No. 4442 of 2008 Page 10 of 31 alone. Admittedly the petitioner did not submit any leave application to the transferee office as the entire record and documents of the petitioner were sent to the transferee office. It is contended that the petitioner has violated the Rule 74 of the Staff Regulations of the Corporation by not joining his post within the joining time allowed to the petitioner. Therefore, the petitioner is not entitled for any pay or leave salary after the end of the joining time and the same has to be treated as breach of this Regulation for the purpose of Regulation 39 which prescribes penalty including compulsory retirement, removal from service or dismissal. F. The said absence would also attract Regulation 30(2) of the Staff Regulation of the Corporation which clearly and categorically states it has to be ground for initiating disciplinary measures. As the petitioner had not completed the age of 55 years on the date of application, therefore, the petitioner was not entitled to take the benefit of voluntary retirement, hence no order was passed in this regard. 22. In view of the submissions made by the parties, let me discuss relevant section and regulations relating to transfer of petitioner which are as follows: “Section 23 of Life Insurance Corporation of India Act, 1956 provides that an employee is liable to be transferred anywhere in India. Regulation 80 of LIC (Staff) Regulations, 1960 provides that an employee may be transferred from one department to other or from one office of the corporation to other. Regulation 20 of LIC (Staff) Regulations, 1960 provides that an employee shall serve at such place as is directed from time W.P (C) No. 4442 of 2008 Page 11 of 31 to time.” 23. The relevant clauses of the appointment letter issued by the respondents to their employees including the petitioner are as follows: “Clause 10 of appointment letter issued under LIC recruitment (Class III and Class IV Staff) Instructions, 1979 which provides that an employee is liable to be transferred anywhere in India. Clause 13 of appointment letter issued under LIC recruitment (Class III and Class IV Staff) Instructions, 1993, provides that an employee is liable to be transferred anywhere in India. 24. The LIC recruitment (Class III and Class IV Staff) Instructions, 1979 came up for consideration before the Apex Court in LIC of India vs. A.R. Amdekar & Anr.; 1994(2) SCC 718, wherein it held that the said recruitment instructions are statutory in nature and cannot be ignored. 25. In view of the relevant Section, regulations of the respondents coupled with the Clause 10 and 18 of the appointment letter, it is evident that the transfer order dated 8.5.2008 was a routine transfer/office order in respect of 21 Administrative Officers, by virtue of which nine other Administrative Officers including petitioner were transferred to the city of Jodhpur, Rajasthan. It is relevant to note that though the petitioner avers that he is suffering from life threatening and debilitating medical complications as is evident from a few letters written by petitioner and in applications for interim stay, yet he had in December, 2003 applied for appointment to the post of Secretary in Inland Waterways Authority of India. Similarly, despite his alleged critical medical condition, the petitioner successfully completed his LLB course from University of W.P (C) No. 4442 of 2008 Page 12 of 31 Delhi. Further, after passing of the order of his transfer, on 5.7.2008 he applied for voluntary retirement on the ground that he wanted to get himself enrolled with the Bar Council of India and pursue a career in law. 26. In any case it is settled law that transfer being an incidence of service and an employee so transferred has to join his place of transfer and dispute if any can be raised and agitated even after joining the transferee office. Reference in this regard is made to the following judgments: i.) In Management, Addisons Paints & Chemicals Ltd. v. Workmen, Addisons Paints & Chemicals Ltd.; 2001 (88) FLR 536, it was observed: “5. …………….. In our view, there is no infirmity either in the Award or in the judgment of the Single Judge or in the judgment of the Division Bench. The employee Nagarajan had refused to accept the transfer order and refused to report for duty after his transfer. We see no substance in the contention that he was entitled not to join. In our view, the dispute could have been raised and agitated even after joining. There was no justification for not reporting for duty. In spite of Nagarajan not having worked he has been awarded 25% of back-wages. This was within the discretion of the court and we see no reason to interfere. At the request of the appellants in C.A. No.392 of 1997, they are granted time of eight weeks from today to pay 25% of the back-wages.” ii) In Gujarat Electricity Board v. Atmaram Sungomal Poshani; (1989) 2 SCC 602, it was observed: “4. Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to W.P (C) No. 4442 of 2008 Page 13 of 31 other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.” iii) In Y.P. Sarabhai v. Union Bank of India; 2006(5) SCC 377, it was observed: “8. We are of the opinion that the appellant is not entitled to any relief in these proceedings. The appellant remained absent from his duty for a very long time i.e. from 3-6-1997 to 23-11-1997 without any reasonable cause and justification in spite of the respondent‟s requests to join the duty and in spite of the respondent‟s granting him further time to join the duty. The conduct of the appellant in remaining absent for such a long time shows that he was bent upon to evade the transfer order in any possible manner. The grounds of ailment were taken as a ruse to avoid transfer which is amply proved by the conduct of the appellant, when he had unauthorisedly remained absent on the ground that he was unable to attend the duty due to illness for such a long time but he was quite capable of attending the court proceedings on the various days and was also capable of coming to Delhi to file a petition before this Court. The concurrent finding of the enquiry is that he has been shifting stands because initially on the very day of the service of the transfer order he gave a representation mentioning illness of his wife and the studies of his son for the purpose of deferment of the transfer to Chennai from Mumbai. But in the other representation to other officer of the Bank, which he has produced to the W.P (C) No. 4442 of 2008 Page 14 of 31 Bank, he has stated the reason of his illness as an excuse. Thus, the conduct of the appellant in trotting out all these defences show that he was trying to avoid transfer to Chennai through all possible means. The reason for deferment of transfer given by him before the High Court and this Court in the writ petition and the appeal filed by him against the transfer order was a simple ruse to avoid the transfer. It has been affirmed by the Court in that proceeding that the transfer was done as per exigencies of the Bank. The transfer of the appellant was effected to a large city, namely, Chennai, which as per his own admission has very good medical facilities which are comparable to those in Mumbai. The service of specialist officers and for that matter all officers in the Bank are transferable on all-India basis and they are liable to