Giridhari Samal vs Food Corporation of India and Others

A.S. Naidu, J.—The Petitioner''s working as an Ancillary Labourer in the establishment of the Food Corporation of India & is at present posted in the Food Storage Depot, Khurda Road, Jatni. Being aggrieved by the order transferring him to Food Storage Depot, FCI, Paralakhemundi, he has approached this Court.

According to Mr. Ashok Mohanty, Learned Sr. Counsel appearing for the Petitioner initially the Petitioner was posted as Ancillary Labourer in Food Corporation of India, Tinsukia in the State of Assam. He worked there from 1987 till 2002. As his mother became seriously ill, he made a representation requesting the Corporation authorities to transfer him to Orissa so that he could attend his ailing mother. Considering the said representation by Order Dated 13.6.2005 (Annexure-2), he was transferred & posted at Khurda Road, Jatni,). It is alleged that within a period of three years by office Order Dated 14.8.2008, the Petitioner has been once again transferred to Paralakhemundi under the District Office of the Food Corporation of India, Berhampur. Mr. Mohanty, Learned Sr. Counsel appearing for the Petitioner submitted that the order of transfer is tainted with extraneous consideration & is not a bona fide one. It is stated that there is no provision to transfer an Ancillary Labourer in unison. In other words, according to Mr. Mohanty, an Ancillary Labourer has to be transferred along with the gang of labourers. In the case at hand, it is submitted that the gang to which the Petitioner is attached is still continuing at Jatni whereas the Petitioner has been picked up & has been transferred to Paralakhemundi. Such action, it is stated, amounts to violation of the statutory rules & is liable to be interfered with.

After receiving notice, a counter affidavit has been filed by the Opp. Party No. 4. In paragraph-6 of the counter affidavit, it is stated that the Area Manager, Food Corporation of India, Paralakhemundi has requested time & again to post some Ancillary Labourers to meet heavy work load-Considering the said request & as the Petitioner was creating disturbance at Jatni depot, he was transferred to Paralakhemundi. In paragraph-8 of the counter affidavit it is submitted that the Petitioner & the Gang No. 1 labourers were transferred by FCI, but then, as there was resentment & a threat of strike, the order of transfer of the gang has been kept in abeyance until further orders. In short, it is stated that in Jatni there is no work for Ancillary Labourers whereas in Paralakhemundi there is heavy work load & to meet the exigencies, the Petitioner has been transferred mainly on the ground that he is creating administrative difficulties at Jatni.

A rejoinder affidavit has been filed by the Petitioner denying all the allegations & taking a positive stand that there is no work load at Paralakhemundi. The plea that there is heavy work load at Paralakhemundi, it is stated, is only a camouflage to illegally transfer the Petitioner & it is a fit case where this Court should lift the veil & set aside the order of transfer.

We have heard Learned Counsel for the parties at length. We have also perused the averments made, & different documents annexed to the pleadings meticulously. It is no more res integra that the order of transfer generally should not be interfered with unless of course this Court notices that there is fragrant violation of the statutory rules. Transfer & posting of an employee is entirely upon the competent authority, which has to decide as to when & where & at what point of time an employee is to be transferred from his present place of posting. Admittedly, the Petitioner is holding a transferable post & he cannot claim any vested right to work at a particular place. In the case of State Bank of India Vs. Anjan Sanyal and Others, the Supreme Court held as under:

An order of transfer of an employee is a part of the service conditions & such order of transfer is not required to be interfered with lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that either the order is mala fide or that the service rules prohibits such transfer or that the authorities, who issued the order, had not the competence to pass the order.

On an analysis of the submissions advanced in the light of the ratio of the decision referred to supra, this Court finds that the service conditions of the Petitioner & other employees of the Corporation is covered under a Certified Standing Orders for the Industrial Establishments of the Food Corporation of India, framed on 27.2.1996. Clause 5 of the Standing Order deals with transfer & stipulates as under:

A worker shall be liable to be transferred from one place to another place of work of the Corporation as per the practice in existence with the whole gang, except in the case of request for transfer from the individual worker.

The Petitioner is an ancillary worker. The word ''ancillary'' is not defined in the Standing Order. Perusal of the counter affidavit reveals that he is attached to Gang No. 1 & in fact he along with the said gang were transferred to Paralakhemundi but then as the Corporation faced resentment, the transfer of the gang was kept in abeyance. In such circumstances, transferring the Petitioner alone to Paralakhemundi does not appear to be in consonance with the Standing Order. According to Learned Counsel for Opp. Party Corporation, Ancillary Labour is not a labourer, but then this Court finds no such distinction in the Standing Order. It is further averred in the counter affidavit that the Petitioner is creating disturbances. But then, transfer order cannot be passed by way of punishment. Apart from the aforesaid, the Petitioner has worked about 15 years out-side-the State. He was transferred to Orissa in 2005 on the ground that his mother was ailing. Transferring him within a short time to Paralakhemundi that too by way of punishment appears to be contrary to the provisions of the Standing Order. Under what contingencies & how a labourer can be transferred is spelt out in the Standing Order. It is clearly stipulated that a labourer should be transferred along with the gang unless the said transfer is on the basis of a personal request.

In the case in hand, in fact the Petitioner was transferred along with Gant No. 1 to which he is attached. But then, the authorities for the reasons good, bad or indifferent kept the order of transfer of the gang in abeyance. Under such contingencies, transferring the Petitioner alone appears to be contrary to the Standing Order. That apart, the Petitioner is working as an ancillary Labourer. He belongs to the Lower State of the society. He is also a low paid employee of the Corporation. In the case of State of Madhya Pradesh Vs. Shankar Lal and Ors, the Supreme Court held that in case of employees getting small emoluments, power to transfer should be sparingly exercised & such employee should be transferred only under compelling exigencies & not as a matter of routine.

In the case of B. Varadha Rao Vs. State of Karnataka and Others, the Supreme Court observed that frequent, unscheduled & unreasonable transfers can uproot a family, cause irreparable harm to a low paid employee & drive him to desperation. It disrupts the education of his children & leads to numerous other complications & problems & results in hardship & demoralization. The Supreme Court concluded that the position of Class- III & Class- IV employees stand on a different footing so far as the policy of transfer is concerned.

Perusal of the entire pleadings reveal that the Petitioner was a part of the labour Gang No. 1 of the Corporation. Clause 5 of the Standing Order of the Corporation quoted supra clearly stipulates that a worker shall be liable to be transferred from one place to the other with the whole gang. In the case in hand, however, though the transfer of the gang has been kept in abeyance, the authorities are insisting that the Petitioner should go & join at his new place of posting. Such action is contrary to the Standing Order. According to the Opp. Parties, there is heavy work load at Paralakhemundi & transfer & posting of "Ancillary Labourers" is necessary. On the contrary, according to the Petitioner, there is no work load at Paralakhemundi more so after the movement of Maoist, which has to some extent crippled the work of the Corporation in the said district.

In view of the aforesaid facts & circumstances, this Court feels that the transfer of the Petitioner alone bereft of the gang to Paralakhemundi keeping in abeyance the transfer of the gang of labourers to which the Petitioner is attached is not structured by rationality & is contrary to the Standing Order. Even otherwise, . there is lot of discrepancies as to whether enough work is available at Paralakhemundi. That apart, a labourer cannot be transferred on the ground that there are allegations against him. Accordingly, we dispose of this Writ Petition giving liberty to the Petitioner to file another representation before the concerned authority highlighting all his grievances along with an authenticated copy of this Judgment. If such a representation is filed, the authorities shall consider the same in the light of the observations made above & pass necessary orders strictly in accordance with Rules governing the transfer policy of the Corporation. Till a decision is taken on the said representation, the Petitioner shall be permitted to discharge his duties at Jatni.

B.N. Mahapatra, J.

I agree.

Writ petition disposed of.