IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special original Jurisdiction) Monday the Thirteenth day of October Two Thousand and Eight PRESENT THE HONOURABLE MR. JUSTICE P.JYOTHIMANI W.P.Nos.20602 to 20606 of 2008, 20899 to 20910 of 2008 and 21013 of 2008 T. JAYAPANDI ..Petitioner in WP.No.20602/08 G.ANDIAPPAN ..Petitioner in WP.No.20603/08 K.KANDASAMY ..Petitioner in WP.No.20604/08 M.RAVI ..Petitioner in WP.No.20605/08 A.ABDULKUSSETH ..Petitioner in WP.No.20606/08 M. ALAGARSAMY ..Petitioner in WP.No.20899/08 M. SELVAM ..Petitioner in WP.No.20900/08 S.N. RAVICHANDRAN ..Petitioner in WP.No.20901/08 P. NAMACHIVAYAM ..Petitioner in WP.No.20902/08 GANAPATHY ..Petitioner in WP.No.20903/08 PAKKIRISAMY ..Petitioner in WP.No.20904/08 SELVARAJ ..Petitioner in WP.No.20905/08 P. MURUGESAN ..Petitioner in WP.No.20906/08 J. KRISHNAMOORTHY ..Petitioner in WP.No.20907/08 R. DENNIS BENEDICT ..Petitioner in WP.No.20908/08 M. MARUDHAI ..Petitioner in WP.No.20909/08 https://hcservices.ecourts.gov.in/hcservices/ K. RAVICHANDRAN ..Petitioner in WP.No.20910/08 C. RAJAN ..Petitioner in WP.No.21013/08 vs. STATE EXPRESS TRANSPORT CORPORATION LTD, REP BY ITS MANAGING DIRECTOR, 2 PALLAVAN SALAI, CHENNAI 2. THE GENERAL MANAGER (OPERATION AND ADMN.,), STATE EXPRESS TRANSPORT CORPORATION LTD, 2 PALLAVAN SALAI, CHENNAI 2. THE BRANCH MANAGER STATE EXPRESS TRANSPORT CORPORATION LTD, VANNARAPETTAI, TIRUNELVELI.3 .. Respondents 1 to 3 in WP 20602, 20603, 20604 & Respondents 20605 1 & 2, 20606 & 21013/08 & Respondents 1 to 2 in WP.20899/08, 20900/08, 20901/08, 20902/08 & Respondents 1 & 2 in WP 20903/08,20904/08, 20905/08, 20906/08 THE BRANCH MANAGER STATE EXPRESS TRANSPORT CORPORATION LTD, CHENNAI II DEPOT, NO.2 PALLAVAN SALAI, CHENNAI 2.. .. 3rd Respondent in WP 20605/08 THE BRANCH MANAGER STATE EXPRESS TRANSPORT CORPORATION LTD, CHENNAI III DEPOT, KOYAMBEDU, CHENNAI .. 3rd Respondent in WP 20606/08 THE BRANCH MANAGER STATE EXPRESS TRANSPORT CORPORATION LTD., METTUR ROAD, MADURAI - 7 .. 3rd Respondent in WP 20899/08,20900/08,20901/08, 20902/08 https://hcservices.ecourts.gov.in/hcservices/ THE BRANCH MANAGER STATE EXPRESS TRANSPORT CORPORATION LTD., NAGAPATTINAM 3rd Respondent in WP 20903/08, 20904/08 THE BRANCH MANAGER STATE EXPRESS TRANSPORT CORPORATION LTD., THOOTHUKUDI. ...3RD RESPONDENT IN WP.20905/08 STATE EXPRESS TRANSPORT CORPORATION LTD., REP. BY ITS MANAGING DIRECTOR, 2, PALLAVAN SALAI, CHENNAI – 2 THE GENERAL MANAGER (OPERATION & ADMINISTRATION), STATE EXPRESSL TRANSPORT CORPORATION LTD., 2, PALLAVAN SALAI, CHENNAI – 2 THE BRANCH MANAGER STATE EXPRESS TRANSPORT CORPORATION LTD., COIMBATORE DEPOT, METTUPALAYAM, COIMBATORE ...RESPONDENTS 1 TO 3 IN WP.20907/08, 20908/08 AND RESPONDENTS 1 & 2 IN WP.20909/08, 20910/08 THE LABOUR OFFICER, MADURAI 20 ...4TH RESPONDENT IN WP.20899/08 20900/08, 20901/08 20902/08 THE BRANCH MANAGER STATE EXPRESS TRANSPORT CORPORATION LTD., THIRUCHI DEPOT-II, TVS TOLGATE, THIRUCHI – 20 ...3RD RESPONDENT IN WP.20909/08 THE BRANCH MANAGER STATE EXPRESS TRANSPORT CORPORATION LTD., CENTRAL WORK SHOP, KOTTABETTU, TRICHY – 23 ...3RD RESPONDENT IN WP.20910/08 https://hcservices.ecourts.gov.in/hcservices/ Petitions under Article 226 of the 226 of the Constitution of India praying that in the circumstances stated therein and in the affidavits filed therewith the High Court will be pleased to issue a Writ of Certiorari, after calling for the records pertaining to the impugned order No.6789/MV3/SETC/08-16, dated 21.7.2008 from the second respondent, quash the same. 2. 7890/MV5/SETC/08-4 dated 21.7.08 from the 2nd Respondent and quash the same (W.P.Nos.20603, 20604/08) 3. 6789(MV3/SETC/08-15 dated 19.7.08 from the 2nd Respondent and quash the same (W.P.Nos.20605/08, 20606/08) 4. 3456/MV3/SETC/08-2 dated 4.8.08 from the 2nd Respondent and quash the same (W.P.Nos.20899/08) 5. 3456/MV3/SETC//08-2 dated 4.8.08 from the 2nd Respondent and quash the same (W.P.Nos.20900/08) 6. 5678/MV5/SETC/08-5 dated 26.7.08 from the 2nd Respondent and quash the same (W.P.Nos.20901/08) 7.5678/MV5/SETC/08-4 dated 25.7.08 from the 2nd Respondent and quash the same (W.P.Nos.20902/08) 8. 3456/MV3/SETC/08-9 dated 4.8.08 from the 2nd Respondent and quash the same (W.P.Nos.20903, 20904/08) 9. 5678/MV5/SETC/08-2 dated 15.7.08 from the 2nd Respondent and quash the same (W.P.Nos.20905/08) 10.5678/MV5/SETC/08-3 dated 24.7.08 from the 2nd Respondent and quash the same (W.P.Nos.20906/08) 11. 1239/MVS/SETC/08-1 dated 3.8.08 from the 2nd Respondent and quash the same WP 20907/08, 20908/08. 12. 6789/MV3/SETC/08-19 dated 11.8.08 from the 2nd Respondent quash the same WP 20909/08. 13. 5678/MV5/SETC/08-4 dated 15.8.08 from the 2nd Respondent and quash the same (WP 20910/08) 14. 6789/MV3/SETC/08-26 dated 22.7.08 from the 2nd Respondent in WP (21013/08) https://hcservices.ecourts.gov.in/hcservices/ ORDER:- There petitions coming on for orders on Thursday the 25th day of September 2008 upon perusing the petitions and the respective affidavit filed in support thereof and upon hearing the arguments of Mr.D.Hariparanthaman, Advocate for the petitioner in each of the petitions and of M/s.Jayesh B.Dolia Advocate for the Respondents in each of the petitions and having stood over for consideration till this day for orders the court made the following order:- COMMON ORDER The common issue involved in these writ petitions is about the validity of the impugned orders of transfer effected in respect of the petitioners. 2. The petitioners are all working as either drivers, conductors or tradesmen in the State Express Transport Corporation Limited. The impugned orders have been effected in respect of these petitioners. It is stated by the respondents Corporation in the affidavit filed in support of the Vacate Stay Petition that the administration had to effect these transfers due to administrative exigencies. The case of the petitioners is that they all belong to CITU (Centre of India Trade Unions) and some of them are its office bearers and others are its committee members holding the post in the concerned depots. It is their case that there has been some dispute with the Corporation by the members of CITU in respect of the payment of over time allowances, short payment of wages and relating to attendance etc. and those matters were effected orally without any written orders and in fact W.P.No.10666/2004 has been filed before this Court complaining about the reducing of attendance to conductors and changing of OT pattern from hourly based to flat rate and while admitting the Writ Petition, the Court has granted an interim injunction on 17.4.2004 in W.P.M.P.No.11740/2004. The complaint of the petitioners and the union which they belong to is to the effect that the Respondent Corporation is attempting to interfere with the alteration of the OT pattern without complying with Section 9A of the Industrial Disputes Act and there has been protest in the respective depots also and the agitations were conducted in a peaceful manner. Subsequently, talks were held on 16.08.2008 between all Trade Unions with the respective management in which the deduction of attendance was withdrawn and ceiling in respect of the over time was made at Rs.75/- instead of Rs.65/- and thereafter the strike and the agitations were called for. According to the petitioners, since in the said agitation, the Union in which they belong to has taken a major role, it is to seek revenge, the present impugned orders of transfer are passed and therefore, the same are tainted with mala fide. https://hcservices.ecourts.gov.in/hcservices/ 3. On the other hand, it is the specific case of the respondents in the affidavit filed in support of the Vacate Stay Petition that the present transfers were made in the administrative routine fashion. In paragraph 4 of the affidavit, it has been stated that the transfers were to be effected by taking into account the total strength of existing excess or short staff in which the respondent was working as well as in which depot he has been transferred. It is also stated that the petitioners are liable to transfer to any place within the jurisdiction of the Transport Corporation and therefore, this Court has no jurisdiction to interfere. It is also admitted that in some cases, transfer was from Madurai to Senkottai, which is 172 kms away from the earlier place, where the present petitioners were working. It is also their case that some of the petitioners were working in the same station for a long period and therefore in the interest of justice, transfer should be effected. Therefore, the transfer was effected in a routine and administrative fashion. 4. Mr.Hariparanthaman, learned counsel appearing for the petitioners would state that normally, in cases of transfer, this Court would not interfere by exercising its power under Section 226 of the Constitution of India, but in cases where mala fide is attributed and prima facie it is proved, there is no hindrance to interfere under Section 226 of the Constitution of India. It is also submitted that all the 18 Writ Petitioners belong to the same Union and the transfer orders have been effected only in respect of the office bearers including the active members in the concerned depots. Therefore, it is stated that the transfer orders have been effected with mala fide intention. He would also submit that even though it is not the case of the petitioners that the transfers should not be effected in respect of these petitioners, the present transfers have been effected to threaten the petitioners, who have taken active role in the agitation and in respect of union activities,. Therefore, the transfer orders have been effected with mala fide intention. 5. On the other hand, the learned counsel for the respondents Mr.Jayesh B.Dolia submitted that there is nothing on record to show that there has been any mala fide intention. Further, in the absence of any specific averments, there was no question of interfering under Section 226 of the Constitution of India. He would also submit various judgments to support his contention that normally, in transfer matters, the Court should not interfere. 6. It is seen in the affidavit filed by the petitioners that the transfer was due to the reason that the petitioners belong to a particular union and there has been some agitation and that agitation has ended in success in favour of the union and immediately after the completion of the agitation, the present https://hcservices.ecourts.gov.in/hcservices/ transfers came to be passed only in respect of these 18 petitioners, who belong to a particular union and that aspect has not been denied in the affidavit filed by the respondents. 7. It is stated in the affidavit as I have elicited above that taking the total strength of excess in each of the category, the present orders have been passed. In this regard, para 4 of the counter affidavit reads as follows: "I submit that in the normal course of business by way of administrative measure on taking note of the strength of drivers, conductors and technicians, the petitioner have taken a decision to adjust the excess man power in accordance with the requirement as well as the situation in various depots by taking into account the total strength of existing excess or short staff in which the respondent was working as well as in which depot he is transferred to. The respondent at the time of joining the service had undertaken to serve in any place of posting in the Jurisdiction of Transport Corporation. Now he is not willing to obey his own undertaking." A reference to the list of the 18 petitioners, which has been furnished in the typed set of papers shows that these petitioners were either Tradesman, Conductors or Drivers and according to the learned counsel for the petitioners, they are from Clause III or Clause IV employees and not Officer Cadre Employees. The particulars regarding each of the employee and their place of transfer are given as follows: S l . N o . W.P.No. Name Order No. Date Present place of Employm ent Transfe rred place Dis tan ce Name of the post 1 20602/08 T.Jayapand i (Depot Presdident ) 6789/MV3 /SETC/08 -16 7/21/08 Thirunel veli Chennai -I 625 Km Driver 2 20603/08 G. Andiyappan (Depot C0mmittee Member) 7890/MV5 /SETC/08 -4 7/21/08 Thirunel veli Trichy CWS 295 Km Tradesman https://hcservices.ecourts.gov.in/hcservices/ S l . N o . W.P.No. Name Order No. Date Present place of Employm ent Transfe rred place Dis tan ce Name of the post 3 20604/08 V.Kandasam y(Depot Committee Member) 7890/MV5 /SETC/08 -4 7/21/08 Thirunel veli Karaiku di 240 Km Tradesman 4 20605/08 M.Ravi (Depot Committee Member) 6789/MV3 /SETC?08 -15 7/19/08 Chennai- II Coimbat ore 575 Km Conductor 5 20606/08 A. Abdul Kuseeth (Depot Committee Member) 6789/MV3 /SETC/08 -15 7/19/08 Chennai- II Thiruva nandapu ram 775 Km Driver 6 20899/08 M. Alagarsamy (Depot Secretary) 3456/MV3 /SETC/08 -2 8/4/08 Madurai Depot-I Sen gottah 250 Km Conductor 7 20900/08 M. Selvam (Depot Joint Secretary) 3456/MV3 /SETC/08 -2 8/4/08 Madurai Depot-I Chennai Depot-I 500 Km Conductor 8 20901/08 S.M. Ravichandr an(Active Member) 5678/MV5 /SETC/08 -4 7/26/08 Madurai Depot-I Chennai Depot- II 500 Km Tradesman 9 20902/08 P.Namasiva yam(Depot Vice President) 5678/MV5 /SETC/08 -4 7/25/08 Madurai Depot-I Kanyakm ari 300 Km Jr. Tradesman 1 0 20903/08 S. Ganapathy (Depot President) 3456/MV3 /SETC/08 -9 8/4/08 Nagai Chennai -I 350 Km Driver 1 1 20904/08 G. Pakkirisam y(Depot Treasurer) 3456/MV3 /SETC/08 -9 8/4/08 Nagai Chennai -I 350 Km Conductor https://hcservices.ecourts.gov.in/hcservices/ S l . N o . W.P.No. Name Order No. Date Present place of Employm ent Transfe rred place Dis tan ce Name of the post 1 2 20905/08 C. Selvaraj (Depot Secretary) 5678/MV5 SETC/08- 02 7/15/08 Thoothuk udi Kanyaku mari 170 Km Jr. Tradesman 1 3 20906/08 P. Murugesan (Depot Treasurer) 5678/MV5 /SETC/08 -03 7/24/08 Thoothuk udi Thiruva nandapu ram 250 Km Tradesman 1 4 20907/08 J. Krishnamur thy(Depot Vice President) 123/MV5/ SETC/08- 1 8/3/08 Coimbato re Trichy 225 Km Tradesman 1 5 20908/08 Dennis Benedict (Depot Committee Member) 123/MV5/ SETC/08- 1 8/3/08 Coimbato re Salem 175 Km Tradesman 1 6 20909/08 M. Marudhai (Depot Joint Secretary) 6789/MV3 /SETC/08 -19 8/11/08 Trichy Marthan dam 450 Km Conductor 1 7 20910/08 K. Ravichandr an(Depot Secretary) 5678/MV5 /SETC/08 -04 8/15/08 Trichy CWS Thiruva nandapu ram 450 Km Tradesman 1 8 21013/08 C. Rajan (Depot Joint Secretary) 6789/MV3 /SETC/08 -26 7/22/08 Thirunel veli Thiruva nandapu ram 200 Km Driver Further, it is seen that out of the 18 petitioners, five are Conductors and nine are Tradesman and four are drivers. It is seen that in respect of the Conductor, one of the petitioners has been transferred from Madurai-I to Chennai-III, but in respect of another conductor, he has been transferred to Coimbatore. If really the case of the respondent is that based on the existing excess strength in the particular station, the transfers have been effected, it is not known, as to how, the present transfers have been passed, transferring one person to Chennai and another person from Chennai https://hcservices.ecourts.gov.in/hcservices/ to any other place. It is also seen that in respect of drivers, a person has been transferred from Nagai to Chennai and at the same time, a person from Chennai has been transferred to Thiruvandapuram. That is also seen in respect of Drivers from Thirunelveli to Chennai. In the impugned orders of transfer, nowhere it states about the reason except in the affidavit filed in support of the Vacate Stay Petition, wherein it has been stated that the transfers were due to administrative exigencies. It is also seen that in respect of some of the cases, out of the 18 Writ Petitioners, they were transferred to different and new routes like Trichy to Thiruvanandapuram, Cuddalore to Bangalore, Chennai to Kadampuzha, Rameswaram to Bangalore etc. It is also not in dispute as submitted by the learned counsel for the petitioners that the petitioners are transferable to any place. But the submission made by the learned counsel for the petitioners is that on the factual situation, the mala fide can be interfered. It is in this regard relevant to note about the judgment of the Supreme Court as pointed out by the learned counsel for the petitioners in B. Varadha Rao And State of Karnataka and Others, 1986 (2) LLJ 516. The Supreme Court, while holding that transfer is an incident of service, has however held that the policy of transfer should be reasonable and should apply to everybody equally. It is relevant to refer the para 6 of the judgment in respect of Clause III and Clause IV of categories of employees, which is held as follows: "One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned continued posting at one station or in one department of the Government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer." 8. On a similar situation Justice K.Venkatraman in (2007) 6 MLJ 1628 P.Vasu and another v. Tamil Nadu State Transport Corporation and another has observed that against the employees, who have participated in an agitation, transfer should not be used https://hcservices.ecourts.gov.in/hcservices/ as a tool against them in the hands of the Management. The operative portion reads as follows: "Regarding the orders of transfer made against the petitioner, it cannot be denied that the petitioners have been transferred for their participation in the agitation called by a political party which is an opposition party in the State. Even the impugned orders of transfer do not say that the petitioners have been transferred on administrative grounds. Though I am conscious of the fact that the order of transfer could not normally be interfered, as has been held by the various pronouncements of this Court as well as by the Honourable Apex Court, since I have come to the conclusion that the present orders of transfer have been passed in view of the participation of the petitioners in the agitation called by the opposition party, I am inclined to interfere with the orders of transfer passed against the petitioners. The impugned orders of transfer make it explicitly clear that implied malice is writ large on the face of the records and the order of transfer cannot be a tool in the hands of the respondents and be used as a weapon in the interest of administration." That was also the view taken by this Court in W.P.Nos.7183 and 7184 of 1998 in respect of the State Express Transport Corporation. The operative portion is as follows: " All these circumstances make it clear that the impugned order was passed for the reasons stated in the writ petitions and not for administrative reasons. Order of transfer has been issued at the instance of the Member of Parliament, carried out by the 3rd respondent and subsequently obeyed by the respondents 1 & 2. It is a result of non-application of mind. It is tainted with mala fides. Consequently, the impugned order of transfer, in so far as the petitioners are concerned, is quashed." 9. The Supreme Court in (2004) 7 Supreme Court Cases 405 State of U.P. and another v. Siya Ram and another has stated that the transfer is an incident of service and it is in the interest of public administration. However, if mala fide is attributed and the same have shown or transfer effected in violation of the statutory provisions, the High Court can interfere under Section 226 of the Constitution of India. The operative portion is as follows: "The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking https://hcservices.ecourts.gov.in/hcservices/ has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan. 6. The above position was recently highlighted in Union of India v. Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest." That was also the view of the Honourable Apex Court in Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Others, 2004(7) Supreme 166, in which it is held as follows: "Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer (Ambani Kanta Ray v. State of Orissa, 1995 (suppl) 4 SCC 169). Unless the order of transfer is visited by mala fide or is made in violation of operative guidelines, the Court cannot interfere with it. (Union of India vs. S.L. Abbas AIR 1993 SC 2444. Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of operative any guidelines or rules the courts should not ordinarily interfere with it." The various judgments, which are rendered by our High Court also in support of the fact that the transfer is an incident of service be effected in the better administration and no one can claim as a matter of right to continue in the same position, however, held in cases, where there is a mala fide which is attributed and proved https://hcservices.ecourts.gov.in/hcservices/ prima facie and the transfer is effected against the statutory rules, interference under Section 226 of the Constitution of India is not a bar as held in State of U.P. and Others v. Gobardhan Lal (2004) 11 Supreme Court Cases 402. The operative portion is as follows: "It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment, but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made." 10. The learned counsel appearing for the petitioners also cited the following decisions in support of his contention : 1. Union of India and others v. S.L.Abbas, (1993) 4 Supreme Court Cases 357; 2. Rajendra Roy v. Union of India and another, (1993) 1 Supreme Court Cases 148 ; 3. Abani Kanta Ray v. State of Orissa and others, 1995 Supp (4) Supreme Court Cases 169; 4. State of U.P. and another v. V.N.Prasad, 1995 Supp (2) Supreme Court Cases 151; and 5. S.C.Saxena v. Union of India and others, (2006) 9 Supreme Court Cases 583. Therefore, law is well settled that unless mala fide is attributed and proved, transfer cannot be questioned