Indra Pal Singh and Neerja Raghuvansi vs Chairman and Managing Director, Indian Telephone Industries Ltd., Corporate Bangalore and others

B.K. Singh, J.—The petitioner who are husband and wife and are working in the Indian Telephone Industries Ltd. Mankapur Unit, DistrictGonda, as Technicians in Category ''D'', have by this writ petition challenged their transfer orders dated 2891993, by which they have been transferred from MankapurDTS Section and Sea Plant Section to Repair Centre of Indian Telephone Industries, New Delhi, Mankapur Unit.

At the preliminary hearing stage Sri R.S. Pandey, Advocate, has put in appearance on behalf of opposite party No. 2.

The relevant facts giving rise to the writ petition may be stated :

The petitioners are working in the Indian Telephone Industries Ltd. Mankapur Unit, DistrictGonda since 1986 on the posts of technicians in Category ''D''. They have been transferred by order dated 2891993 passed by the Deputy General Manager (P & A) with the approval of the Competent Authority. The petitioners have challenged the orders on the ground that the orders are vindictive, punitive, illegal and malafide to victimise them. According to the allegations made in the writ petition, it is said that Indra Pal Singh, petitioner No. 1, right from his joining the Industry in the year 1986 became an active member of the Indian Telephone Industries Karamchari Sangh, which is a recognised Union having a strength of 2200 workers. He contested the election for executive member of the Union in the year 1991 and he was elected in August, 1991. He claimed himself to be a dynamic leader of the Union, having raised the grievances of the Union before the opposite parties and sought redressal of their grievances. For this the management always had a grudge against him and at number of times a threat was extended from the Management side that he should refrain from agitating the matters otherwise he would be taught serious lesson. However, as the petitioner No. 1 did not yield to their threats and never hesitated in raising genuine grievances of the employees, therefore, the management of Indian Telephone Industries Ltd., Mankapur, decided to harm him in every possible manner adopting most unfair, foul and illegal recourse. He claimed that though he possessed higher qualifications yet he has been employed as technician in Category ''D'', though he was entitled to be recruited as technician of Category ''E''. Because of the above reasons the petitioner No. 1 was placed under suspension by order dated 2741991 on false and baseless allegations. The petitioner No. 1 filed a Writ Petition No. 3179 of 1991 against the suspension order. This Court was pleased to stay the suspension order vide order dated 31591. Despite the stay order the opposite parties did not allow the petitioner No. 1 to function. The petitioner No. 1 repeatedly wrote letters but without any positive response. The petitioner No. 1 again filed another Writ Petition No. 1334 of 1992 in this Court claiming promotion to Category ''E'' and even higher to that in accordance with his qualifications for which he was entitled and the same is still pending for final adjudication. These writ petitions have again infuriated the management who have decided to harm and harass the petitioner No. 1 at any cost. The writ petition No. 3197 of 1991 by which the suspension order dated 2741991 had been challenged has been finally disposed of vide judgment dated 1411993 in which a time schedule had been provided for conducting and completing inquiry and taking decision. However, the matter was unreasonably delayed by the opposite parties with a view to keep the petitioner No. 1 under pressure. It is also averred that the opposite parties finding no other way have reinstated the petitioner No. 1 by their order dated 1781993. The petitioner No. 1 thereafter resumed his duties and he treats himself as innocent. The petitioner thereafter has been doing his duties but the opposite parties had something else in their minds. The petitioner No. 1 has made a representation claiming promotion. The representation was given on 2491993, this has again infuriated the management. In paragraph 19 of the writ petition the petitioner No. 1 has raised certain instances of malafides. It is said that the petitioner No. 1 submitted a T.A. bill which was not passed. The petitioner No. 1 was given to understand that it has been misplaced and he was asked to file a duplicate bill. When duplicate bill was submitted in Nov./December, 1992, the Management issued a showcause notice to the petitioner by letter dated 2941993 stating therein that his T.A. bills are fake and an explanation was called. Not only this, showcause notice dated 2941993 was issued to which the petitioner No. 1 has submitted his reply. However, a chargesheet has been issued to the petitioner on 1661993 by Assistant General Manager (P&A), the opposite party No. 4 and an inquiry in respect of that charge is going on. It has further been stated that the petitioner No. 1 has made a complaint against the opposite party No. 3 to the Chairman and Managing Director, Indian Telephone Industries, Bangalore on 261993 in respect of purchase of sports items in which he has clearly levelled a charge that opposite party No. 3 has accepted huge commission. Another complaint has also been made before the Executive Director against embezzlement of Rs. 2.5 lacks by opposite party No. 3 from the Employees Cooperative Society. In the same paragraph of the writ petition it has also been stated that a sum of Rs. 1000/ every month is being deducted from the salary of Sri A. K. Pandey. Secretary of the Society. The petitioner No. 1 has filed an F.I.R. before the S.H.O. Mankapur through registered post on 1261993 against opposite party No. 3 which is pending investigation. He has justified his T.A. bills. It has also been averred that the petitioner No. 2 was also harassed as a result of which she fell seriously ill, and suffered miscarriage due to shock. All these instances of malafides are causes of passing the impugned transfer orders. The petitioners moved separate representations to the Executive Director of the Indian Telephone Industries Ltd. Mankapur, giving the entire details as mentioned above and have claimed that their transfer is absolutely malafide, illegal and arbitrary and vindictive and was done in the mid of session which is quite contrary to the transfer policy as the study of the petitioners'' children would be spoiled if they are compelled to join at their transferred place. It has also been averred that no creche facility is available at New Delhi as is available at Mankapur. As the job in New Delhi is of touring nature, the petitioner No. 2 being the woman, she cannot be posted there. These matters are the subject matter of the petitioners'' representation whose copies are annexed as annexure Nos. 27 and 28 to the writ petition. Another representation is said to have been given to the Deputy Labour Commissioner, Faizabad The Deputy Labour Commissioner, has also written to the opposite party No. 3 to reconsider the matter sympathetically and take a decision afresh. However, no action has been taken so far. Lastly, it has been urged that a number of inquiries are pending against the Petitioner No. 1 and during the pendency of the inquiry the petitioners should not be transferred in as much as that will entail serious impediment in getting themselves exonerated. In this manner the Management will ultimately punish them in default. The transfer orders have also been assailed on the ground that the malafide reasons are based on extraneous consideration. The petitioners have, therefore, prayed that a writ, order or direction in the nature of Certiorari be issued quashing the impugned transfers orders passed by the opposite party No. 3, contained in annexure nos. 1 and 2 to the writ petition and also a writ of mandamus commanding the opposite parties to allow the petitioners to continue to work at Mankapur ignoring the transfers and pay them the salary regularly every month. A supplementary affidavit has also been filed by the petitioner No. 1 setting out cercertain post transfer events to again support the petitioner''s claim of malafides.

I have heard Sri A.K. Tewari, Advocate, Counsel for the petitioners and Sri R.S. Pandey, Advocate for the opposite parties.

The learned counsel for the petitioners has from the events set forth in the writ petition, which I have stated above, emphatically urged that the transfer orders are bad in law as the same are not bonafide but proceed on malafide considerations to harass the petitioners because the petitioner No. 1 has been agitating the right causes of the employees of the Indian Telephone Industries, Ltd., Mankapur. According to the learned Counsel, the impugned transfer orders are nothing but punitive in nature. The opposite parties nos. 3 and 4 want badly to get rid of the petitioners to save their skin from the charges that have been levelled by the petitioner No. 1 against them. In support of his contention the learned Counsel for the petitioners has vehemently tried to emphasise that in similar circumstances where the malafides are apparent the Courts have interfered even in transfer matters. He has referred the following decisions reported in :

''AIR 1991 SC 532 Mrs. Shilpi Base and others v. State of Bihar and others''

''LCD 1992 P. 370 Pradeep Goel v. Regional Manager, Region II, State Bank of India, Zonal Office, Meerut and others''

''1989 Labour and Industrial Cases 1374 Gujarat Electricity Board v. Atmaram Sungomal Poshani''

''1993 Labour and Industrial Cases P. 446 Rajendra Roy v. Union of India and another''

AND

''1980 (Vol. 2) SCC 471 State of Punjab v. Gurdayal Singh''

From these decisions the learned Counsel for the petitioners has tried to reason out that in case the transfer order is based on grounds of malafides then the Court can and does interfere. The learned Counsel for the petitioners has urged that the allegations of the malafides made by the petitioners are specific and clear and as such the impugned transfers are liable to be quashed.

The learned Counsel for the opposite parties has submitted that the allegations of malafides are wholly frivolous. He has submitted that the petitioner No. 1 is merely a member of the executive of the Union of the employees. No labour dispute or industrial dispute has been raised by the recognised Union of which the petitioner No. 1 claims to be a member. He has submitted that the Management can not feel offended if any genuine grievance of the employees is raised. According to him the petitioners have utterly failed to establish that the alleged activity of the petitioner No. 1 has caused so much annoyance to the Management that they have been singled out for punishing them by ordering their transfer. According to him the Repair Centre at Delhi has to be manned by competent persons and as such the petitioners have been chosen to work in Delhi in accordance with the wishes of the competent authority. He has further submitted that the transfers are for the benefit of the industry and the petitioners will not suffer any disadvantage. He has even volunteered that the pending inquiry against the petitioner No. 1 can be transferred to Delhi. According to him in case the petitioners have made a representation to the Executive Director of Indian Telephone Industries Ltd. Mankapur then the same will be disposed of on merits because no complaint whatsoever has been made against the Executive Director. The learned Counsel has thus submitted that the writ petition is liable to be dismissed.

I have considered the above submissions of the learned Counsel of the parties, and gone through the relevant annexures also. What I noticed is that the petitioner No. 1 seems to have individually been adopting aggressive attitude against the opposite party No. 3 after he was suspended by order dated 2741991. The writ petition that he had preferred provided him the desired interim relief and also the period of inquiry was shortened by the judgment dated 1411991. It appears that although the inquiry was completed and the Inquiry Officer had submitted his inquiry report to the Disciplinary Authority yet the Management acted in a benevolent manner in restoring the petitioner No. 1 on duty by letter dated 1781993, which is annexure No. 8 to the writ petition. It is a Office Order passed by the opp. party No. 4. Had opposite party No. 4. in the mouth of August; 1993 been so annoyed as has been alleged by the petitioner No. 1 then there was no question of his passing an order beneficial to petitioner No 1. This act of opposite party No. 4 is good enough reason to conclude that the petitioner No. 1 has unjustly tried to make out a case of malafide against the opposite party No. 4. Again as regards the allegations of malafides against opposite party No. 3 are concerned, almost all the allegations of petitioner No. 1 are of a period later than initiation of the process of inquiry against him which was conveyed to him by chargesheet date 651993. Soon after the receipt of the said chargesheet in respect of the fake travelling bills the petitioner No. 1 started levelling charges against opposite party No. 3 like wrong purchases, acceptance of commission and alleged embezzlement which as per his own version is not prima facie established because he has said in paragraph 19(c) of the writ petition that a sum of Rs. 1000/ is being deducted every month from the salary of Sri A.K. Pandey, the Secretary of the Society. Needless to say that Sri A.K. Pandey, is unconnected with the matter in dispute. Thus the allegations of malafides set up by the petitioners do not cut much ice.

The learned Counsel for the petitioners has not been able to assail the transfer orders on the ground that the same have not been passed on administrative reasons or they are against any statutory rules. In the case of Mrs. Shilpi Bose and others (Supra), the Supreme Court has held that the Courts should not interfere with the transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafides. As reasoned above, the allegations of malafides have not impressed me and there is no ground which may make out that the transfer orders have been made in violation of mandatory rules. In a very recent case of Rajendra Roy (Supra), Hon''ble Supreme Court has also affirmed the decision and the principle laid down in the case of Mrs. Shilpi Bose. The decision further takes into account that transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. The petitioners in the instant writ petition have narrated a number of benefits like house, education, creche facilities at Mankapur. But non availability of those benefits alone cannot justify interference in the transfer order. The transfer order can only be struck down if suffers from malafides or when violates the mandatory service rules. As held above such contingency is not found.

Other aspect which is peculiar to this case is that here family is not being separated. The husband and wife, who are petitioners are both working and they both have been transferred to Delhi. In this manner only one unit (family) has been dislocated. Any other arrangement would have caused uprooting or upsetting two families. After all the work at the Repair Centre in New Delhi has to be looked after. So if a family of a husband and wife who are both working go to New Delhi to mann the Repair Centre then it amounts to saving discontentment of two families.

In the end what is relevant for consideration in a case like one in hand is that it is mid session of the studies in School and the petitioners have also made representations against their impugned transfer orders to the Executive Director. So in the interest of the education of the children of the petitioners as also on the ground that the petitioners'' representations against their transfer orders which were sent by them by registered post to the Executive Director, Mankapur and received there in the month of October, 1993, I dispose of this writ petition with the following directions :

That the impugned transfer orders shall not be given effect to till 3041994 and the petitioners will be allowed to work at Mankapur and be paid salary upto that date. The Eexcutive Director of the Company by 3131994 shall dispose of the petitioners'' representations which the petitioners have submitted to him by registered post. In care the same have not been received then the petitioners will furnish a copy of the same to the opposite party No. 4 within a period of seven days from today. The petitioners will within first ten days of May, 1994 report for joining at Delhi Repair Centre in case no contrary decision is taken by the Executive Director by 3131994.

No costs.