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Judgment
D.V. Shylendra Kumar, J.—A transfer order by a management, transferring one of its employees from one workplace to another workplace is not normally a matter of interference. If the management happens to be either state or an instrumentality of state, inevitably, writ jurisdiction is invoked by the transferred, employee to question the order of transfer. Transfer being an incident of service and the management having power to transfer an employee, especially for administrative exigencies, the order of transfer is not normally interfered by courts. However, when even the power of transfer is exercised in an arbitrary manner, whimsical manner, either to victimize an employee or to favour another employee, but it is effected by giving the name ''done for administrative exigency'' or as is popularity known in the service jurisprudence by the bureaucratic management in the governance ''in the public interest'', and if it is really in the public interest, courts seldom interfere with such transfer orders however, as noticed earlier, when the power has been exercised in a mala fide way, in an arbitrary fashion, in a whimsical fashion to victimize an employee or to favour another one and the employer happens to be state or an instrumentality of state, interference is enabled even in the exercise of writ jurisdiction.
It is placing support and strength on the law as developed in the case of arbitrary transfers and when the power is exercised for ulterior purpose, but in a different name or for a different purpose, then, being a case of colourable exercise of power, courts can interfere and that is also called in aid by the present petitioners, numbering about 46, who are all employees of Karnataka state road transport corporation, an undertaking of government of Karnataka, and working as either drivers, conductors or driver-cum-conductors and who have been en masse transferred as per the order dated 4-8-2012 [copy at Annexure-B to the writ petition] from Mysore division in which they were all working to neighbouring divisions, allowing them seven days'' time to join duty at the transferred place. It is questioning these transfers, the present writ petitions have been filed by the writ petitioners.
It is contended that the transfer order though recites that it is passed from the administrative point of view, it is not really so; that the transfer order on the other hand is an order passed by way of punishment on the petitioners and for the reason that certain internal enquiry or information has revealed to the management that all these petitioners have indulged in some malpractice; that they had developed certain nexus and caucus resulting in leakage of revenue to the corporation and therefore necessary action was required to be taken and as a first step they are all transferred.
It is the contention of the petitioners that they were able to obtain information by seeking aid under the provisions of the Right of Information Act, 2005 and they have also been able to obtain certain internal correspondence that had preceded between the top officers of the corporation before the transfer order was issued; that the internal correspondence clearly reveals the allegation of the petitioner having indulged in gross misconduct of temporary misappropriation of the revenue of the corporation; that amount collected for the sale of daily passes had been withheld by the petitioners for some time before being remitted to the account of the corporation; that it amounts to improper use or misuse of funds of the corporation and therefore necessary disciplinary action was required to be initiated against the petitioners and in this background as a first step, all petitioners had been transferred.
It is also urged that the present transfer order is not supported by any guidelines issued for effecting transfer; that it is not in consonance with the norms and guidelines for effecting transfers; that it is passed abruptly and even without looking into the need for the transfer or duration for which they have worked at the existing place; that the transfer order also does not indicate that the services of the transferred employees are required at the place of transfer and therefore the order is illegal; that the petitioners are made to suffer a punitive transfer order even without being given an opportunity; that the order requires to be quashed etc.
Notice had issued to the respondent-corporation. The corporation is represented by counsel Sri L Govindaraj. Statements of objections have been filed and it is virtually conceded that the transfer order has a background; that there was administrative urgency to shift the petitioners from their existing places in view of certain acts of misconduct in the nature of temporary misappropriation of funds of the corporation and that too en masse by a large number of employees at the existing places; that there was a need for preventing this illegal act and also consequential loss to the corporation and pending initiation of disciplinary proceedings and measures against erring employees, it was found it was very necessary to transfer them and it was done bearing this in mind and as an administrative exercise and not as a punitive measure. It is contended that if a punitive action is taken, it is only after disciplinary proceedings are taken and not by way of transfer; that the process of initiating disciplinary proceedings would take some time and it was very necessary to prevent and check the loss or damage to the interest of the corporation and therefore the transfer order was passed.
It is also contended in the statement of objections that the corporation is ready and willing to examine any particular instance of extreme hardship of such degree to any particular transferred employee, but pleading hardship in general cannot be accepted.
An additional statement of objection is also placed before the court by the respondent-corporation bringing to the notice of the court the development relating to initiation of disciplinary proceedings against the petitioners by issue of articles of charge and copies thereof have been produced at Annexure-R2 series in respect of each of the petitioners etc.
I have heard Sri S.B. Mukkannappa, learned counsel for petitioners and Sri L. Govindaraj, learned counsel for respondents-corporation.
Submission of learned counsel for petitioners is straight and simple that the transfer order even as conceded in the statement of objections is by way of punishment, in the sense, that it is because of certain act of misconduct indulged by the petitioners being the reason for the transfer; that it is virtually a punitive transfer, stigmatizing the petitioners without any opportunity to them and a punishment imposed without any enquiry or opportunity is per se bad in law is a settled legal proposition; that the order being in the nature of punitive transfer, cannot be sustained in law; that it has to be quashed and the petitioners are permitted to resume their work at the place where they were working before the transfer order.
learned counsel for petitioners has also placed reliance on a single judge decision of this court in the case of Dr. M. Sumithra Vs. The Bangalore University Jnana Bharathi and Another, wherein it was held that transfer in the case of the writ petitioner therein was by way of punishment, as the employer had proceeded against the petitioner by way of disciplinary proceedings was unable to make any headway and therefore while that was not pursued, nevertheless, transfer order was effected and this court found that the transfer was by way of punishing the employee, who otherwise could not have proceeded in the disciplinary proceedings and was not a transfer due to any administrative exigency, but only by way of punishment imposed on the employee and therefore held that the transfer was bad in law. Particular reliance is placed on the following portion of the judgment:
When it is alleged that though the order of transfer purports to be in public interest but it is colourable exercise of power, the real object is to punish the petitioner for the misconduct and when the material produced on record establishes the said fact, it is clear that the order of transfer is imposed on the petitioner by way of punishment for the misconduct.
Reliance is also placed on the decision of the Supreme Court in the case of State of U.P. and Others Vs. Jagdeo Singh, which was a case of transfer of a police officer who was an SHO as second officer to another station and where the court, on facts, found that the transfer preceded an adverse entry that he has been demoted and therefore the transfer was not in the administrative exigency, but by way of a punishment etc. The court interfered with this order and the High Court quashed the same and the Supreme Court declined to interfere. While a caution was sounded that every transfer order of a police officer may not end with the same result and that it will not be a punishment even when it results in loss of some special emoluments because of the posting given at the transferred place and if the transfer is found to be due to administrative exigencies, it can be sustained, but if it is by way of a punishment, it cannot sustain.
Reliance is also placed in another judgment of the Supreme Court in the case of Somesh Tiwari Vs. Union of India (UOI) and Others, wherein also the Supreme Court took the view that in the particular facts and circumstances of the case, if the order of transfer attracts the principle of malice in law, as the transfer order was not germane but based on irrelevant consideration and on irrelevant grounds and also on the basis of some anonymous complaint etc; that on the fact, it was found that it was not a transfer in the administrative exigency and therefore the Supreme Court set aside the transfer order.
Placing reliance on these decisions, Sri Mukkannappa, learned counsel for petitioners, would very strongly urge that in the present, the transfer order is of punitive nature and it was not on any administrative exigency and only deserves to be quashed.
On the other hand, Sri Govindaraj, learned counsel for respondent-corporation submits that while there is no quarrel with the proposition as laid down in the above decisions and the law in the facts and circumstances would attract, effort is to submit that the present transfer order is purely due to administrative exigency; that while it has a background, but, nevertheless, was warranted in the larger interest of the administration of the institution; that there was an imminent need to shift the petitioners-employees from their existing places of work; that the transfer order has achieved this end and the disciplinary proceedings for their misconduct and acts of misusing the funds of the corporation, even temporarily, have been independently initiated and that is in progress, but the transfer order is definitely not a punishment; that it was due to certain administrative reasons only.
Submission is that it is not a transfer with any mala fides; that it has been ordered in respect of such of the employees who were found indulged in certain acts of misconduct adverse to the interest of the corporation; that they have all been transferred in a uniform manner and no discrimination is meted out; that the disciplinary proceedings have also been independently initiated and therefore the order cannot be characterized as not due to administrative exigencies and cannot also be characterized as a punitive illegal action.
Sri Govindaraj has placed reliance on the Full Bench decision of this court in the case of The Mysore Paper Mills Limited, Bhadravathi Vs. The Mysore Paper Mills Officers'' Association, Bhadravathi and Another, particularly on para-36 of this judgment and the principle enunciated in this paragraph is called in aid. Submission based on this decision is that if the action taken is not a mala fide action, but a bona fide one, that will definitely, sustain the transfer order, irrespective of whether it is a prelude to other action to be initiated against the employee or as an initial step.
In the wake of the pleadings and the submissions made at the Bar, the question that arises for consideration in these petitions is as to whether the impugned transfer order can be characterized as one which has been passed due to any administrative exigencies or whether it is in the nature of a punitive transfer order or for extraneous considerations and therefore to be quashed.
The law relating to mala fide exercise of power in the context of a transfer order or an order of dismissal or discharge of an employee, was more in the context of an order of discharge being simplicitor order or it had a background etc.
In the present case, there is no dispute on the part of the respondents that the order of transfer had a background and it was effected due to the fact that the corporation learnt about certain acts of misconduct on the part of the petitioners, an act where under their conduct was resulting in pecuniary loss to the corporation and therefore it was necessary to prevent the same.
In so far as the nature of the transfer is concerned, whether it is characterized as punitive one, mala fide one, bona fide one, legal or illegal etc., it all ultimately depends upon the reason why the transfer is made, whether it can come within the description of an administrative exigency or otherwise. As to what exactly is an administrative exigency is not a straightjacket formula based on a definition that can be given, but it depends upon the facts and circumstances of each case. In all the cases relied upon by the learned counsel for petitioners, it is to be noticed that the transfer orders are all in individual cases and the person affected is one particular individual against whom the management had exercised the power of transfer. In the present case, the transfer order is in respect of as many as 49 employees. A uniform action has been taken in respect of all these employees by effecting their transfer from out of Mysore division to neighbouring divisions. While it is true and not disputed by the respondents that the transfer has a background that the corporation has got information that all these petitioners were indulging in certain acts of misconduct and misusing the funds of the corporation, in the sense they have temporarily misappropriated the funds of the corporation, and therefore action was required to be taken and prior to that and even as revealed by the correspondence between the higher officers of the corporation, the matter was examined for preventing repetition of such acts of misconduct on the part of employees and for ensuring the interest of the corporation and to safeguard it and particularly that the revenue of the corporation does not leak out, an imminent step was to ensure that it was prevented and the leakage plugged. This is quite clear from the materials placed before the court by the petitioners as well as the respondent-corporation. In what manner the management takes action for prevention of an adverse impact on the corporation is left to the management. If the management thought that effecting immediate transfer of all these employees was the expedient way or good measure to check such misconduct on the part the employees affecting the interest of the corporation with immediate effect, no fault can be found with, as it definitely is a case of administrative exigency from the interest of the corporation.
May be it may not be in the interest of the employees, but what is to be taken into consideration is the interest of the corporation, more so when it is a public sector undertaking and for the purpose of plugging the leakage or preventing misuse of the funds of the corporation. In the present case, the transfer order in this background and on the facts and circumstance, cannot be characterized as punitive order, but only a transfer order effected in the interest of administrative requirement and as an exigency and cannot be characterized as either as mala fide action or vindictive action or done either to victimize the petitioners or to favour any other employee/s. It is, therefore, that the present case is distinguishable on facts in respect of decisions relied upon by the learned counsel for petitioners and referred to above.
Further, the fact that the corporation has already initiated disciplinary proceedings independently also only fortifies that the transfer order by itself is not a punitive action but an action prior to initiation of disciplinary proceedings, which may be for punishing the errant employees after holding proper enquiry. It is to be noticed that in so far as a transfer order is concerned, there is no question of affording opportunity to the employee concerned before effecting the transfer order. The only question which is looked into is as to whether the power of transfer is misused or abused or exercised in an arbitrary and whimsical manner. I am satisfied that the power is neither misused nor exercised in an arbitrary manner, but only after due deliberation and application of mind and in the interest-of the corporation and therefore is a situation where the power cannot be characterized as one exercised in a mala fide manner. In this view of the matter, I am of the clear opinion that the impugned transfer order does not call for interference by this court by characterizing it as illegal or whimsical nor can it be characterized as a punitive transfer and therefore becomes bad. Writ petitions are dismissed without issuing rule.