Nikhil Chandra Dey and Others vs Steel Authority of India Ltd. and Others

Umesh Chandra Banerjee, J.—This writ petition is directed against the order of transfer issued as regards tour drivers of Steel Authority of India., Central Marketing Organization, Calcutta-from Calcutta to Dharmanagar, Rourkela, Bhilai and Gauhati. The impugned order dated 2nd August 1986 provided that the above employees will stand released with effect from the afternoon of 2nd August 1986 and that they will be entitled to normal transfer benefits. In addition, they will also be entitled to an individual grant of Rs. 500/-.

Whereas the petitioners contended that the order of transfer is wholly malafide and an after-math of the wrath and vengeance of the respondent-authority, having failed to gain the desired objective in the matter of introduction of shifting duty from February 1986 onwards, the respondent-authority contended that question of any after-math or any wrath or vengeance does not arise, on the contrary by reason of the exigencies of circumstances, the transfer order became indispensable and as such the same was passed,

It appears that the respondent delivered a notice u/s 9(a) of the Industrial Disputes Act with the intention to effect changes as regards the duty hours for the drivers in Home Sales Department including Export and Import Department and Transport arid Shipping Department including their branches at Calcutta and Howrah, By the above noted notice the company desired to introduce ''A'' shift from 5.30 A.M. to 2.30 P.M., ''B'' shift from 1.30 P.M. to 10.30 P.M. with one hour break and ''C shift from 9.30 P.M. to 6.30 A.M. with one hour break and the general shift from 9 A.M. to 6 P.M. It was made known that the drivers would be rotated on shifts and the pattern of deployment of drivers on shifts would be notified separately from time to time. In pursuance thereof on 21st February 1986 three drivers, viz., P. Sahu, H. Singh and B. Singh were directed to follow the over-lapping shift duty hours with effect from 27th February 1986.

At this juncture, it would be convenient to notice the other writ petition filed by the Union against the company wherein A.K. Sengupta, J. on 5th March 1986 passed the following order:

Dr. Pal appearing for the Steel Authority of India has submitted that the impugned duty hours regarding three drivers mentioned in Annexure ''C'' to the petition would not be implemented till 8th March 1986.

Let the matter appear for further order on 7th March 1986.

Assistant Labour Commissioner, before whom the proceeding is pending and fixed on 6th March 1986 shall hear the matter and give his decision.

Let a plain copy of the order countersigned by the Asstt. Registrar (Court) be given to the Id. Adv. for the petitioners.

On 10th March 1986 the order dated 5th March 1986 was modified to the following effect:

Company will not change the working hours in respect of the drivers who are not covered by the settlement dated 29th November 1985. It is submitted by Mr. Garai - learned Advocate for the petitioner that the petitioners and the many other drivers are not covered by the said settlement.

Copy of the settlement dated 29th November 1985 be kept on record.

Subsequently, however, on 19th June 1986 the notice u/s 9(a) along with the Annexure containing the shifting duty proposal was withdrawn with immediate effect and on 21st June 1986 some other drivers were transferred and eventually on 2nd of August 1986 the impugned order of transfer was issued by the Dy. Manager (Personnel) of the Central Marketing Organisation of the Steel Authority of India. It is against this order of transfer the petitioners moved this Court under Article 226 of the Constitution.

It is now well-settled that transfer orders being a managerial prerogative ought not to be, in the normal circumstances, interfered with by the Law Courts. While that is the normal rule of law, the Law Court would be failing in its duties in the event the transfer orders are aftermath of a malafide motive, and the court would be within its jurisdiction to crack the shell even for the purpose of ascertaining as to the real motive of the impugned transfer order. The decisions of the Madras High Court in the case of C. Ramanathan v. Acting Zonal Manager of Food Corporation of India Madras and Ors. reported in 1980 I LLJ. 1 lend support to this view. The Madras High Court in the decision noted above, observed at p. 3:

Courts are chary to interfere with an order of transfer made for administrative reason. An innocuous order of transfer, which not only on the face of it appears to be one made in order to further the administrative interests of an organisation, but which even on a deeper scrutiny does not pose any irregular or malafide exercise of power by the concerned authority, is generally upheld by civil courts, as courts cannot substitute their own opinion and interfere with ordinary orders of transfer of employees of established organisations. But if in a given case, an order of transfer appears to be deliberate attempt to bypass all disciplinary machinary and offend the well known principle of audi alterm partem if ex facie it is clear that the order of transfer was not made for administrative reasons but was made to achieve collateral purpose, then it is open to the court to crack the shell of innocuousness which wraps the order of transfer and by piercing such a veil, find out the rival purpose behind the order of transfer. No doubt, a normal order of transfer can be misunderstood as a punitive measure. But, if the circumstances surrounding such an order leads to a reasonable inference by a well instructed mind, that such an order was made in colourable exercise of power and intended to achieve a sinister purpose and based on irrelevant consideration, then the arm of the court can be extended so as to decipher the intendment of the order and set it aside on the ground that it is one made with a design and motive or circumventing disciplinary action and, particularly when a civil servant is involved, to avoid the stringent but mandatory procedure prescribed in Article 311(2) of the Constitution of India.

While dealing with the issue, this Court in the case of In re: Dr. A.N. Dutt, reported in 1985(2) CHN 175 observed:

The creatures of the statutes have a bounden duty to the society for fair play and justice. Contra action would not only harass the person affected but it may lead to social catastrophe. Faith and belief in the administration is the key note in a socialistic and democratic set up. Confidence in the administration goes a long way, specially in a country like ours, and this ought to be the most accepted methodology of the administrative system. The law courts exist to remedy the wrong in the event of any departure from the same. To set right the wrong is a plain exercise of judicial powers and there ought not to be hesitation in that regard.

This Court further went on to say:

The Law Courts would therefore be required to investigate as to whether the order of transfer is tainted with malice or motive. Malice in common acceptation means ill-will against a person but in its legal sense it means a wrongful act done intentionally without just cause or excuse (Stround''s Judicial Dictionary; per Bayley J., Bromage v. Prosser, 4B & C 255). The creation of post without any just cause or without any attempt on the part of the institute to satisfy the court that the creation was imperative by reason of certain administrative exigencies in my view itself negates bona fides. There must be justified reasons and it ought to be disclosed to the Court, Until and unless it is made clear as to how and in what manner the creation was effected or that the creation of post of Deputy Directorate Research is for the interest of proper administration of the institute, it cannot be said that it was for administrative purpose or for other necessary exigencies of the situation.

Another decision of the Madras High Court in the case of Chief Engineer (Personnel) TNEB, Madras Vs. K. Raman, also supports this view.

It is, therefore, to be seen as to whether the impugned order of transfer has been made in order, to further the administrative interest of an organisation or can be termed to be Malafides The Steel Authority of India Ltd. submitted that the Central Marketing Organisation, Calcutta has been facing a situation of surplus staff because of its work as canalising agency for import of steel items being given on to the Mineral & Metals Trading Corporation under the current import policy of the Government of India, an Organisation and Method study had to be made in order to consider optimum utilisation of human resources, so as to have effective expenditure of the public money over such employees and the study ultimately revealed that around 750 employees were either surplus or with inadequate work. The management of the Central Marketing Organisation of the Steel Authority of India thereafter took various steps to redeploy those people as and when occasions arose to various areas of work where they could be comparatively better employed. Among those employees, 16 of the motor car drivers at Calcutta were also found to be either surplus or without adequate work and since the petitioners have been working in the office at Calcutta since long, an attempt was made to keep them at Calcutta by deploying them to shift duties with the same spread over of the working hours. But since persuasion have failed the Steel Authority of India has only two alternatives open - viz., whether to transfer them to the Branch Sales offices or other offices where there are adequate work for them and where they could do the work without any change in their working hours or (ii) to terminate them. Termination being a harsh measure in these days and the transfer orders being the only viable alternative available to the respondent authority, the petitioners have been transferred.

In the counter affidavit, respondent further stated that at the Chief Marketing Organisation Headquarters at Calcutta, only 12 motor car drivers are required and as such, question of having more than 12 motor car drivers does not arise at the present moment. The respondent contended that there is nothing illegal or punitive in the matter of transfer of drivers but on the careful consideration of adminstrative exigencies and in keeping in view the Company''s over-all interest.

Having due regard to the case of the company as made out in the counter affidavit, can it thus be said that there was malice or motive behind the orders of transfer in order to victimise the petitioners?

Malice in ordinary common parlance means "ill-will" against a person and in legal sense a wrongful act done intentionally without just cause or reason. Can it be said that the impugned order of transfer is without just cause or the reason? In my view, no evidence has been adduced before this Court to the contrary which is capable of being acceptable as substantive in nature. The statement in the affidavit-in-reply, in my view, does not stand to negate the case of the respondent authority. In the premises, in my view, the impugned order of transfer cannot be said to have been issued with a malafide purpose.

The application, therefore, fails and is dismissed. No order as to costs.