N. Viswanathan vs Union of India and Others

Ramanujam, J.

Since the points involved in both the writ petitions are the same, they are dealt with together.

The petitioner in Writ Petition No. 2432 of 1981 was working as Assistant Station Master at Pudur in Madurai Division and by an order passed

by the Ministry of Railways, he was transferred to the Western Railway, Bombay. The petitioner in Writ Petition No. 2532 of 1981 who was

working at Ramanathapuram Station of Madurai Division was transferred by the Divisional Railway Manager from Ramanathapuram to Kolathur

Station within the said Madurai Division. The orders of transfer in the case of both the petitioners have been challenged by the petitioners in these

writ petitions on four grounds : (1) The orders of transfer have been passed without jurisdiction. (2) The transfer order virtually amounts to

punishment. (3) The transfer orders affect adversely their seniority and consequently their chances of promotion are also adversely affected. (4)

The transfer orders have been passed by the concerned authorities mala fide with a view to victimise the petitioners even without giving joining

time.

In the counter affidavit filed by the respective respondents in these writ petitions it has been averred that the orders of transfer have been passed

for administrative reasons and exigencies of service, that they do not affect adversely the chances of their promotion as alleged by the petitioners,

that the orders of transfer are not penal in character, that the authorities who passed the transfer orders had ample jurisdiction to transfer the

petitioners and that there is no question of any victimisation in effecting the transfers.

Before we deal with the petitioners'' contention it is necessary to note the circumstances under which the impugned orders of transfer had been

made. The Petitioners claim to be members of the All India Station Masters'' Association, hereinafter called the Union which is not however, a

Union recognised by the Railway Administration. The Petitioner in Writ petition 2432 of 81 is the Zonal Secretary of the said Union. In May, 1980

the said Union submitted a character of 24 demands to the Ministry of Railways and the Railway Administration and efforts were made by the

Union to negotiate with the Railway Administration on those demands. Since no peaceful settlement could be arrived at between the Railway

Administration and the Union, a section of the Station Masters and Assistant Station Masters of the Madurai Division who are members of the said

Union chose to boycott control phone on 10.4.1981 for 24 hours after issuing a notice u/s 22 of the Industrial Disputes Act on 23.3.1981. On

receipt of the said notice the Divisional Railway Manager, Madurai had exhibited a notice stating that the participants of the control phone boycott

would be liable for severe consequences. Since the boycott of the control phone will adversely affect the movement of the goods trains but also

result in causing great hardship to the public travelling in the Passenger trains and also endanger the movement and cause dislocation of train

services, the Railway Administration took timely and prompt action by deputing a number of Officers and Supervisors so that the boycott of

control phone by a section of the Station Masters and Assistant Station Masters does not result in any serious disruption and accidents and

consequent inconveniences to the travelling public. As a result of that prompt action by the Railway Administration, nothing untoward happened on

10.4.1981. Immediately thereafter the petitioners had been transferred on the ground of exigencies of service and administrative grounds. It is in

the light of the above facts, the tenability of the attack made against the orders of transfers in these writ petitions has to be considered.

It is alleged by the petitioner in Writ Petition No. 2432 of 1981 that the person who ordered the transfer is Divisional Railway Manager,

Southern Railway that he has no power to transfer an employee from the Southern Railway & Western Railway and the order in that case should

be taken to be without jurisdiction. Though the order of transfer impugned in this writ petition has been made by the Divisional Railway Manager,

Southern Railway he has merely carried out the direction given by the Railway Ministry on 10.4.1981 which is clear from the following

communications :

(Sd/-) x x x x x x

Chief Personnel Officer.

Thus the order dated 14.4.1981 issued by the Divisional Railway Manager impugned in this case merely carries out the order of the Railway

Ministry, that is the Railway Board to transfer the petitioner from Southern Region to Western Region. Even according to the petitioner if a transfer

is from one Railway to another, it has to be effected by the Railway to another, it has to be effected by the Railway Board. In this case the transfer

having been made by the Railway Board, the mere carrying out of that order by the Divisional Railway Manager cannot make the transfer an

invalid one. So far as the writ petitioner in W.P. 2532 of 1981 is concerned, the transfer has been made within the region and therefore is quite

competent to pass the order. Thus the contention that the transfer orders have been passed by authorities not competent to do so has to be

rejected.

The Petitioners'' second contention that the order to transfer virtually amount to punishment has equally no substance at all. Firstly, there is no

loss of emoluments as a result of the transfers, nor is there any loss of pecuniary benefit which the petitioners would have been otherwise entitled.

Secondly so long as the transfer orders have been made within the compass of the Rules, the petitioners cannot say that the transfers which are

specifically authorised by the Rules amount to penal action. The petitioners who are liable to serve in any of the Railways under their service

conditions cannot question the orders of transfer from one region to another or from one Railway to another as amounting to an order of penalty.

Coming to the third contention that the petitioners'' seniority will be affected, it is seen that impugned order does not say that he will be taken as

junior to the persons already serving in this category in the transferee Railway. It cannot, therefore, be presumed that the order of petitioner in

W.P. No. 2432 of 1981 who has been transferred from Southern Railway to Western Railway. On this point the counter affidavit specifically

states that the petitioner in that petition was transferred on the same grade and pay and his seniority will be maintained from the date of entry into

the grade that the petitioner will be entitled to the benefits of seniority which is based on the length of service in the grade in which he was working

on the date of transfer and that the petitioner''s allegation that he will stand to lose his seniority list will be affected is not correct. Further, it is stated

that the promotion to the next grade is made on the basis of selection and question of alone in the present grade is not the criterion for selection

and, therefore, the petitioner cannot have any grievance. Having regard to the said averments made in the counter affidavit the grievance of the

petitioner that his seniority will stand altered and the chances of his promotion is cut down cannot be sustained.

Coming to the last but substantial contention that the transfer orders impugned herein are acts of victimisation and therefore they should be taken

to be mala fide, it has been urged by the petitioners that the orders of transfer have been passed practically following the control phone boycott

resort to by the Union of which the petitioners are members, that not even the usual joining time has been granted and therefore, the transfer orders

should be taken as a mala fide action taken with a view to penalise the petitioners for their Union activities. In support of their contention that the

impugned transfer amount to mala fide action reference has been made to the decision of the Andhra Pradesh High Court in W.P. Nos. 2990 of

1981 and 5751 of 1981 where the Court, while dealing with similar transfer orders arising out of the same control phone boycott on 10.4.1981,

held that the transfer orders have not been made in exigencies of service but for extraneous considerations as a retaliation for taking part in the

control phone boycott and in that view the court had quashed the orders of transfer. The Court in that case found that the transfer orders

immediately followed the control phone boycott that there were stereo-typed orders transferring Station Masters working in a particular area en

masse and that all of them had been asked to join the new stations without availing the joining time. The Court took note of these facts and held

that the real reason behind the orders of transfer is to express Railway Administration''s displeasure at the petitioner''s taking part in the control

phone boycott and as a matter of retaliation for not heeding to the warnings of the authorities not to participate in the control phone boycott.

According to the respondent in that case, apart from the participation of the petitioners in the control phone boycott, there were three other

circumstances which indicated that the action to transfer the persons concerned was taken as a retaliation or to express the displeasure of the

authorities. (1) There was a mass transfer of all Station Masters and such mass transfers cannot be taken to be for exigencies of service. (2) As

against some of the other officers who took part in the control phone boycott criminal action has been taken and against some others steps for their

compulsory retirement on the ground that they have completed 55 years or 30 years of qualified service had been taken and against others transfer

orders had been made and only in that setting the Court presumed that the transfer orders were for extraneous consideration with a view to

express the Officers'' displeasure. These circumstances do not exist in the present case where some transfers have been made and there has been

no mass transfer. Reference is also made by the petitioners to the decision of the same Court in Writ Petition No. 3497 of 1981 (batch) wherein

the validity of certain transfer orders transferring Diesel Assistants and Drivers etc., from the places in which they were working to other stations.

In that case the main contention of the employees was that the transfers are made by way of punishment and not for administrative reasons as they

had absented themselves from work on 29.4.1981 which was observed as anti-repression day by the Loco Running Staff Association of the South

Central Railway. In that case the Railway treating the mass casual leave as amounting to illegal stoppage of work which would entail break in

service involving forfeiture of leave, postponement of dates of increment etc., issued a notice of warning on 28.4.1981, a day previous to the so-

called anti-repression day. This was later followed by orders of transfer. The Court held that though Rule 146 of the Railway Establishment Code

enables the Railway to transfer a Railway servant from one department or Railway to another department or another Railway or to a project even

out of India, the power of transfer has been exercised in that case on extraneous consideration and that the orders of transfer constitute a scheme

of the authorities to express their displeasure at the employee who participated in the strike and who later on held demonstration in the anti-

repression day, and as a measure of retaliation against the persons concerned. In that view the orders of transfer had been quashed.

It is urged by the petitioners in these cases that if the respondents felt that the petitioners have committed any misconduct by inciting workmen to

resort to control room boycott, they could have taken disciplinary action against them for such misconduct. But that cannot be taken as a ground

for transfer as it is extraneous to the power of transfer which can be done only on administrative grounds or on exigencies of service.

From the counter-affidavit it is seen that since the petitioners belong to an unrecognised union, the control room boycott resorted to by the

members of the Union was not taken to be a Union activity, and that therefore it was considered illegal, and that the persons like the petitioners

who incited others to resort to the boycott were taken to have committed a wrongful act. It is also stated in the counter-affidavit that the person

like the petitioners who are members of the persons like the petitioners who are members of the unrecognised union not only resorted to boycott

but also interfered with the control room operations on the relevant date by playing radios and transistors and abusing at the Officers over the

phone.

Even assuming that what the respondents have stated in the counter-affidavit are true, still that is a fit matter for the authorities to take

disciplinary proceedings against the petitioners and similar others. The fact that without resorting to any disciplinary proceedings against the

petitioners the respondents have chosen to transfer them indicates that the orders of transfer have been effected only as a measure of retaliation to

teach to the petitioners a lesson. This is clear from the circular issued by the respondents even before the control room boycott commenced. From

the counter-affidavit, it is clearly seen that the transfer orders were based only on the petitioners'' conduct during the control room boycott is

blameworthy or amounts to a misconduct the respondents could take action against the petitioners for such conduct by initiating disciplinary

proceedings. Without resorting to them, the respondents have chosen to effect the transfers. It is no doubt true that the passing of an order of

transfer without resorting to disciplinary proceedings is somewhat beneficial to the petitioners. However, the petitioners are entitled to question the

orders of transfer on the ground that they have been passed only for their participation in the control room boycott and not for any administrative

reasons or exigencies of service. Having regard to the circumstances under which the orders have been passed, it has to be held that the transfer

was not for administrative grounds but for extraneous considerations arising out of the petitioners'' participation in the control room boycott. If the

conduct of the petitioners during the control room boycott is questionable, the department could initiate disciplinary proceedings for such conduct

taking such conduct as a misconduct. But the administration transferred the petitioners to express their disapproval with the conduct of the

petitioners. Though such a mild form of disapproval with the petitioner''s conduct without taking disciplinary proceedings against them is beneficial

to the petitioners, so long as they have started questioning the orders passed as having been made on extraneous considerations, and not for bona

fide administrative reasons or exigencies of service the court has to set aside the orders once it is found to have been made for extraneous reasons.

However liberty is to be given to the respondents to take disciplinary action for the part played by the petitioners in the control room boycott if

considered necessary or feasible. The Writ Petitions are allowed with the above observations.

There will be no order as to costs.