1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/07/2011 C O R A M THE HONOURABLE MR.JUaSTICE S.MANIKUMAR Writ Petition (MD)No.7889 of 2011 and M.P.(MD)No.1 of 2011 R.Mohanraj ...Petitioner Vs 1.Union of India, Represented by its Secretary to Government Department of Company Affairs, New Delhi. 2.The Managing Director Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Railway Station New Road, Kumbakonam – 612 001. 3.P.Pandian Managing Director Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Kumbakionam. 4.The Branch Manager, Karur Depot-I, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Tiruchirapalli Region, Karur. ...Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari, calling for the records pertaining the order of the 2nd respondent in Ref.Tha.A.Po.Ka/Kumba/Ma Va Mey/862/11 dated 01.07.2011 and consequential relieving order of the 4th respondent in Ref.Tha.A.Po.Ka/Kilai Karur-I/E1/No.1166 dated 07.07.2011 and quash the same. For petitioner : Mr.A.Rahul For respondent No.2 to 4 : Mr.B.Pugulenthi Spl.Govt.Pleader For Respondent No.1 : Mr.R.Veludoss, CGSC O R D E R Challenge in the writ petition is to an order, dated 01.07.2011, transferring the petitioner from Branch-I, Karur, Tiruchi Regiion to Paramakudi Branch, Karaikudi Region. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Assailing the correctness of the order and on the pleadings, learned counsel for the petitioner submitted that the petitioner joined the service of Tamil Nadu State Transport Corporation (Kumbakonam Division II) Ltd., Periyamilaguparai, Tiruchirapalli, as a Driver in the year 1993. He served in various places within the jurisdiction of the said Corporation. Finally, he was transferred to Karur I Depot of the said Corporation. It is his further submission that Tamil Nadu State Transport Corporation (Kumbakonam Division II) Ltd., is a Company registered under the Companies Act. It is also submitted that his seniority, promotional opportunities and other service benefits had been maintained only within the said Corporation. He further submitted that by the Gazette Notification in Order S.No.1477(E), dated 30.12.2003 of the 1st respondent, Tamil Nadu State Transport Corporation (Kumbakonam Division II) Ltd., Tiruchirapalli, and two other Corporations, namely, Tamil Nadu State Transport Corporation (Kumbakonam Division III) Ltd., Karaikudi and Tamil Nadu State Transport Corporation (Kumbakonam Division IV) Ltd., were amalgamated with the Tamil Nadu State Transport Corporation (Kumbakonam Division I) Ltd., having its Registered Office at Kumbakonam. The said amalgamation was made as per the provisions of the Companies Act, 1956. Section 2(b) of the Amalgamation order, 2003, defines, “dissolved companies” and the same would mean, Tamil Nadu State Transport Corporation (Kumbakonam Division II) Ltd., Tamil Nadu State Transport Corporation (Kumbakonam Division III) Ltd., Tamil Nadu State Transport Corporation (Kumbakonam Division IV) Ltd. Clause 2(c) defines 'resulting company” as Tamil Nadu State Transport Corporation (Kumbakonam Division I) Ltd. After the amalgamation of the aforesaid four Corporations, a new Company in the name of Tamil Nadu State Transport Corporation (Kumbakonam Division I) Ltd., was formed. Clause 9 of the Amalgamation Order, 2003 deals with conducting of service of the existing officers and other employees of the dissolved companies. The said provisions clearly protects in the interest of the workers of dissolved company. The relevant portion of Clause 9 is extracted as below:- “The seniority of all employees other than officers as it existed in the respective dissolved companies immediately before the appointed date shall be maintained, implying that seniority, promotional opportunities and transfer among the employees upto Supervisory level shall remain protect even after amalgamation in the resulting company in respect of employees on role at the time of issue of this order. The employees recruited thereafter shall be transferred within the jurisdiction of resulting company. The promotions from Supervisory Cadre to Managerial Cadre shall however be as per seniority within the resulting company. The seniority among the managerial cadre shall be recast within the resulting company on merger.” 3.According to him, the seniority, promotional opportunities and transfer among the employees of the dissolved companies shall be protected and employees upto supervisory level, shall be transferred within the jurisdiction of the dissolved companies. He also submitted that he is an employee of the dissolved company, namely, Tamil Nadu State Transport Corporation (Kumbakonam Division II) Ltd., Tiruchirapalli, and that he is liable to be transferred only within the jurisdiction of the said dissolved company and should be within Trichy Region. Therefore, he cannot be transferred outside Trichy Region, as per Amalgamation Order, dated https://hcservices.ecourts.gov.in/hcservices/ 3 30.12.20003 of the 1st respondent. 4.He further submitted that in violation of the abovesaid Amalgamation order, the petitioner has been transferred by the impugned order of the 2nd respondent from Karur-I Depot, Trichy Region to Paramakudi Depot of Karaikudi Region. On the basis of the impugned order of the 2nd respondent, dated 01.07.2011, the 4th respondent has also passed the impugned relieving order, dated 07.07.2011. It is his further contention that the impugned order was passed not due to administrative exigency and that the same was made in mala fide exercise of powers by the 2nd respondent. He further submitted that he is a Member of 'Pattali Thozhir Sangam', affiliated to one of the opposite parties, namely, “Pattali Makkal Katchi” The office bearers of ruling party made complaints against the petitioner to the effect that his presence within the Karur would not be conducive for upcoming Panchayat elections, since he is one of the active member of 'Pattali Thozhir Sangham'. Therefore, he made a detailed representation on 12.07.2011, to the Secretary to Government, Transport Department and to the 2nd respondent. 5. Learned counsel further submitted that he is employed as lower level post, Driver. He has been rendering work sincerely without any blemish on record. While so, in order to victimize and to prevent him from doing Trade Union activities, the impugned order of transfer has been passed. The impugned order of transfer is illegal, arbitrary, violative of Articles 14 and 21 of the Constitution of India. His transfer has been made in total contravention of Tamil Nadu State Transport Corporation (Kumbakonam Division II) Ltd., Tamil Nadu State Transport Corporation (Kumbakonam Division III) Ltd., Tamil Nadu State Transport Corporation (Kumbakonam Division IV) Ltd., and Tamil Nadu State Transport Corporation (Kumbakonam Division I) Ltd., Amalgamation Order, 2003 published in the Union Gazette dated 30.12.2003. 6.It is his further contention that Paramakudi Depot is situated 250 k.m., away from Karur Town. He has to travel 7 hours to reach Paramakudi from Karur. There is no administrative necessity, which warrant his transfer to Paramakudi Depot from Karur. He further submitted that there are as many as 30 juniors, who have not been disturbed. Further, already there is a shortage of Drivers in Karur-I Depot due to which all the Drivers including the petitioner work, over time every day. Therefore, his transfer is totally unwarranted. 7.According to learned counsel, the action of the 2nd respondent amounts to unfair labour practice. The 2nd respondent cannot curtail the petitioner's legitimate trade union activities and take action against workmen, for their trade union activities or for expressing their concern in the interest of workmen. Hence, the action of the 2nd respondent is in violation of Clause 7 of 5th Schedule r/w Section 29(ra) of the Industrial Disputes Act. It is his further contention that the Commissioner of Labour, Madras, has issued Certified Draft Common Standing Orders to all the State Transport Corporation owned by Government of Tamil Nadu, by his order dated 05.09.1995. Clause 28 of Common Certified Standing Order deals with transfer of employees. The said Clause clearly states that every employee be liable to be transferred in the same category or grade from one Depot/Branch, place of work to another of the same Corporation provided that the pay and services of the workmen in the category or grade are not adversely affected. According to learned counsel, the impugned order of transfer is in violation of Clause 28 of the Common Certified Standing https://hcservices.ecourts.gov.in/hcservices/ 4 Order, dated 05.09.1995, issued by the Commissioner of Labour. 8.It is his further contention that transfer to Paramakudi Depot would definitely affect his seniority and promotional opportunity. If he joins at Paramakudi Depot, his name would be included in the seniority list, as a Junior most person of all the drivers working at Paramakudi Depot. Therefore, on this ground also, the impugned order is liable to be set aside. 9.Originally, 21 Transport Corporations functioned in Tamil Nadu and that the same were amalgamated into 7 Transport Corporation. During the said process of amalgamation, the view of the Trade Unions were also heard by the 1st respondent. Since it was represented by the Trade Union that the Corporations may use the amalgamation as a tool to victimize the employees by transferring to other Regions and taking into account the said view, the 1st respondent rightly incorporated Clause 9 in the Amalgamation Order, protecting the interest of workers within the dissolved companies. In this context, he placed reliance on an order passed by a Division Bench of this Court in W.A.Nos.1455 to 1457 of 2007, dated 04.02.2008 where, reliance was placed on the order of a learned single Judge made in W.P.(MD)Nos.5322, 3257 and 4767 of 2007, dated 11.09.2007. Learned counsel for the petitioner further submitted that the said order need not be applied to the facts of this case, as the order pertaining to amalgamation has not been adverted to in the order of learned single Judge. 10.The petitioner is being a “running staff” is practically on the move daily. Therefore, the transfer of staff like the petitioner is nothing but a vindictive act. No administrative exigency and public interest is involved. The impugned transfer orders does not show any administrative exigencies or public interest as shown. It is his further submission that such order of transfer made on political or other consideration is illegal. For the abovesaid reasons, he prayed to set aside the impugned order of transfer. 11.The 4th respondent has filed a counter affidavit contenting interalia that the petitioner is a driver and his Staff Number is 93DR 262/5414. The petitioner was working as a Driver in TNSTC Kumbakonam, Karur I Branch, has been transferred from Karur I Branch to TNSTC Kumbakonam Limited, Paramakudi Depot, by order dated 01.07.2011. He was relieved from Karur-I Branch, by order dated 07.07.2011. He further submitted that there is a specific clause in the appointment order that he can be transferred to any operation area within the jurisdiction of the Corporation. The respondent is having 4th regions and operating large number of fleet services and owes serious responsibilities to serve the public in a safe and comfortable manner. In order to carry out and secure efficiency of service and in the interest of administrative convenience, the petitioner has been transferred from Karur to Paramakudi. The terms and service conditions and the nature of his appointment enable the respondent Corporation to transfer the petitioner from one depot to another depot. It is further submitted that the TNSTC Trichy, Karaikudi and Pudukottai regions were amalgamated with TNSTC, Kumbakionam Ltd., in the year 2004 and the Standing Orders of amalgamations were framed. The Standing Orders for the employees of the Cholan Roadway Corporations Ltd., Kumbakonam, is certified by the appellant authority under the Industrial Employment (Standing Orders Act, 1946). Clause 22 of the standing orders state as follows:- https://hcservices.ecourts.gov.in/hcservices/ 5 “Every workman shall normally be liable to be transferred in the same category and grades therein within the province of the Corporation. The workman transferred eligible for Travelling Allowance rules of the Corporation.” 12.It is also submitted that the petitioner is transferred on the same category and grade and he is no way affected by the transfer orders. Every workman is liable to be transferred in the same category and grade therein within the province of the Corporation. The averments of the petitioner that an employee can be transferred only within the region does not arise as per the standing orders and as per the terms and conditions of amalgamation. The apprehension of the petitioner that he would be placed on the junior most level at Paramakudi Depot is baseless. The writ petitioner is working as a driver and now he is upgraded as a selection grade driver. The list provided by the writ petitioner, as seniority list, is only a list of the employees, working at Karur Branch, alone and it is not the seniority list, as claimed by the writ petitioner. The seniority list shall be finalized only by the Managing Director of the Corporation, at the time of promotion and his promotion opportunities would not be affected by way of this transfer. 13.The learned Special Government Pleader further submitted that the allegations of mala fides are vague and made for the purpose of this writ petition and there is no iota of truth in the allegations levelled by the writ petitioner. Allegations of the mala fides are not supported by any materials. It is the further submission of the respondents that even in the order of appointment, it is stated that the employee can be transferred and the Management has the power to transfer the employee to anywhere within the Corporation. The petitioner has also accepted the condition at the time of appointment and that the service conditions of an employee of the Government Transport Corporation are governed by “Common Service Rules”. Rule 22 of the Common Service Rule, which reads as follows:- “22.”Postings and Transfers:” a) An employees may be required to serve in any post borne on the cadre of the Corporation and in any place of duty as the exigencies of the administration required. b) All transfers and postings shall be made by the appointing authority or such other authority to whom powers have been delegated in this regard by the appointing authority. 14.Learned counsel for the respondents also placed reliance on the orders passed by a learned Single Judge of this Court in W.P.(MD)No.16199 and 16200 of 2011, dated 07.07.2011 and further contended that as the Common Service Rules, enable transfer of an employee from one place to another within the same Corporation, there is no manifest illegality in the order of transfer, warranting interference. 15.Heard learned counsel for the petitioner and learned Special Government Pleader for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 6 16. The respondent Corporation has got the power to transfer an employee from one place to another. The employee has also to serve in any place within the corporation. The present transfer is a routine transaction arising out of exigencies. There is no motive and mala fide against the petitioner. Transfer is an incident of service and the Management has also an inherent right to transfer the employee from one place to another. The inconvenience and hardship that may arise due to transfer, cannot be a ground for setting aside the same. Moreover, in the present case, transferability has been stipulated as one of the conditions in the order of appointment and also in the common service rules, applicable to the employees of Transport Corporation including the petitioner. 17.In so far as the contentions relating to mala fide, violation of Clause VII of the 5th Schedule r/w Section 2(ra) of the Industrial Disputes Act, arbitrariness, this Court has already passed a common order in W.P.Nos.5925 of 2011 etc. batch, dated 15.07.2011 and that the reasonings can be mutandis mutatis applied to the facts of this case also. The only contention remains to be considered is whether, the Clause-9 of the amalgamation order protects the interests of the petitioner in the matter of transfer, and whether there is any downgradation of seniority at this juncture, affecting any service condition. Perusal of the order of the Division Bench in W.A.Nos.1455 to 1457 of 2007, dated 04.02.2008 does not indicate, the Common Service Rules, which states that an employ may be required to serve in any post borne on the cadre of the Corporation and to any place of duty as the exigencies of the administration required was adverted to at all, whereas, effect of the common service rules has been considered long back. Even as per the Common Standing Order 28 of Industrial Standing Orders, issued under the Industrial Employment (Standing Orders) Act, 1946, dated 05.06.1995 covering 20 Transport Corporations belonging to Government of Tamil Nadu, every workman shall normally be liable to be transferred in the same category or Grade-II from one Depot/Branch place of works to another of the same Corporation provided that the pay and services of the workman in the category or grade are not adversely affected. Needless to say that the Standing Order duly certified under Section 5(8) of the Industrial Employment (Standing Orders) Act, 1946, has statutory force and that would override, the amalgamation order, so long as, there is no infringement of conditions of service. At this juncture, it is relevant to extract paragraph 5 of the counter of the respondents Corporation, wherein the respondents have categorically stated that the apprehension of the petitioner that he would be placed as junior most level is baseless and that the petitioner, who was working as a driver has now been upgraded as a selection Grade driver and that the seniority list shall be finalised, only by the Managing Director of the Corporation, at the time of promotion. The respondents have also admitted that his promotional opportunities would not be affected by the impugned order of transfer. 18.On perusal of the judgment made in W.A.Nos.1455 to 1457 of 2007, dated 04.02.2008, it could be noticed that the above said Industrial Standing Order 28, which has a statutory force has not been adverted to at all. As the service conditions of the petitioner are not likely to be effected, with due respect, this Court is of the view that the judgment relied on by the learned counsel for the petitioner would not lend any support to this case. https://hcservices.ecourts.gov.in/hcservices/ 7 19.In yet another case, while attacking the order of transfer, plea of mala fide has been raised by the petitioner in W.P.No.16199 and 16200 of 2011 contending inter alia that the activities of Trade Union affiliated to DMK Party were sought to be restricted after the advent of the new Government, by way of victimization, as they were transferred, a the learned single Judge of this Court, after considering the Service Standing Orders and few decisions of the Hon'ble Supreme Court, declined to accept the said plea and at paragraph Nos.3 to 5 held as follows:- 3.However, this Court is not inclined to accept the said plea. The allegations of mala fide are too vague to be entertained by this Court. It is also an admitted case that the certified Standing Order applicable to the respondent Corporation provides for transfer. the question of invoking Section 33(3) will arise only when there is dispute pending. Even in such case only when there is alteration of service condition, the said provision gets attracted. 4.In this context, it is necessary to refer to the following judgments of the Supreme Court. The Supreme Court in E.P.Royappa Vs. state of Tamil Nadu reported in 1974 (4) SCC 3 in paragraphs 91 and 92 had observed as follows:- "91. ..... The only question before us is whether the action taken by the respondents includes any component of mala fides; whether hostility and malus animus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary. 92.Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context, it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are nto know. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly, when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up these considerations are wholly irrelevant in judicial approach but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the https://hcservices.ecourts.gov.in/hcservices/ 8 allegations of mala fides made by the petitioner against the second respondent. 5.Further, the Supreme Court in M.Sankaranarayanan, IAS Vs. State of Karnataka and others reported in (1993) 1 SCC 54 in paragraph 12 had observed as follows:- 12. After considering the respective contentions of the learned counsels appearing for the parties, it appears to us that the appellant has not been able to lay any firm foundations warranting a finding that the impugned order of transfer was passed mala fide and/or for an oblique purpose in order to punish the appellant and/or humiliate him. The pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State. Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him. It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such realm of insinuation, surmise or conjecture. In the instance case, we are unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn. It is an admitted position that the Chief Secretary and the Chief Minister had differences of pinion on a number of sensitive matters. If on that score, the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and post a very senior officer of their confidence to the post of Chief Secretary, it cannot be held that such decision is per se illegal or beyond the administrative authority. The position in this regard has been well explained in Royappa case by this Court. 20.In view of the reasons stated in the common order in W.P.Nos.5925 of 2011 etc. batch, dated 15.07.2011 and for the other reasons stated supra, this Court is not inclined to interfere with the order of transfer. 21.In the result, this writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. Sd/- Assistant Registrar(Crl.side) /True copy/ Sub Assistant Registrar(CS) https://hcservices.ecourts.gov.in/hcservices/ 9 To 1.The Secretary to Government, Union of India, Department of Company Affairs, New Delhi. 2.The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Railway Station New Road, Kumbakonam – 612 001. 3.The Branch Manager,