COURT CANNOT INTERFERE WITH THE TRANSFER OF EMPLOYEE UNLESS IT WAS MALA FIDE OR IN VIOLATION OF STATUTORY PROVISIONS.

[Mr. M. GOVINDARAJAN]

                        As held by the Supreme Court in ‘Union of India V. S.L. Abbas’ – AIR 1993 SC 2444 an order of transfer is not only a condition of service but also an incidence of service.    It is the appropriate authority to decide who should be transferred and where.  Unless the transfer order is vitiated by mala fides or is made in violation of statutory provisions, the Court cannot interfere with it.  The Supreme Court further held that in while ordering the transfer there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject.  Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. 

                        In ‘H. Rahothaman and another V. Tamil Nadu State Transport Corporation (Villupuram) Limited represented by its Managing Director, Vazhudareddy, Villuppuram and another’ – 2012-III-LLJ-99 (Mad) the petitioners are the union office bears of ‘Arasu Pokkuvarathu Uzhiyar Sangam’ Villupuram and Pondicherry.  They made efforts in getting pay and allowances for the co-employees on par with Electricity Board Employees and to see that the existing Pension Trust is taken over and administered by the Government.  The petitioners along with other 7 unions submitted a common charter of demands.   Since no fruitful result has come they issue a notice for strike for 14 days.  No effort was taken for conciliation proceedings.   After the completion of the strike the petitioners were transferred to some other places.   The petitioners submitted the following before the Court:

• The Corporation started to have a vindictive approach after the strike against the officers bears of unions in particular against the petitioners and served the impugned transfer orders on them and other members;
• The timing and background in which the impugned orders came to be passed need no deep analysis for one to understand that it is nothing but an hostile approach of the Corporation against the petitioners, who strived for the cause of the co-employees in getting the allowances due to them and having their pension trust administered by the Government;
• The transfer orders were made under the guise of administrative exigency, when, in fact, there was no such administrative exigency, would undoubtedly amount to unfair labor practice within the meaning of Section 2(ra) read with Item No. 7 of Part I of the Schedule to the Industrial Disputes Act and the practice is prohibited under Section 25(T) and punishable under Section 25(U);
• The impugned orders are unjust, unreasonable and violation of Article 14 of the Constitution;
• In W.P. 4262 to 4265/2011 the Madras High Court was of the view that the en-masse transfer of all the suspended employees clearly indicated that the transfer was not due to any policy decision or on administrative reasons but only to punish the petitioners.  The Corporation having placed some of the employees under suspension, by later revoking such suspension, should not have resorted to transfer as it is not in line with fair labor practice and it would only amount to imposition of punishment.

The respondent denied the allegations framed against the Corporation and submitted the following before the Court:

• The petitioner union is not interested in maintaining the industrial peace among the workers for personal gains;
• The petitioners show vindictive attitude toward the Management;
• Ultimately they cause inconvenience to the general public by calling for strikes often without any rhyme or reason;
• If at all the petitioner’s union is aggrieved over pay fixation on par with the employees of other units and bringing the pension trust under the direct control of the Government, they could have resorted to the legal course available;
• The petitioners have to work anywhere in the operational jurisdiction of the respondent Corporation;
• Holding a post or being a member of a Labor Union does not mean that an employee should be transferred from one place to another place within the jurisdiction of the respondent’s corporation unit;
• If the office bearers of the union are excluded from the purview of transfer policy simply because of the reason that they  belong to a particular union, other employees would feel bad against the management and have a negative impression that the management is adopting selecting approach among the employees which trend would certainly cause loss of faith in the management;
• The transfer is actually made to meet the administrative exigency and the petition is liable to be dismissed.

The Court observed that the transfer orders issued on account of mala fide and motivated attitude of the managements would amount to unfair labor practice.   However transfers orders for smooth running of administration and as public policy can never be said to be unfair labor practice, for, Section 25-U prohibits unfair labor practice on the part of the employees as well which means that where transfer of employees is essential and necessary, the employees should readily comply with the transfer order.   In the present case except the self claim of the petitioners that only because of agitations and strikes called for by them, the aggrieved management, to wreck vengeance against them, resorted to transfer, there is no substantive material available before the Court to act upon such claim. 

                        The High Court held that the case law referred to by the petitioners is no relevance to the present case.   In that case the mala fides could be easily seen from the attitude of the management in issuing transfer orders immediately after dropping the suspension orders.   Such is not the case herein.   The petitioners, if at all were struggling and striving for a just cause for others, could have very well resorted to lawful means in getting their demands fulfilled.   It must be highlighted that calling for strikes by employees working in transport corporations would undoubtedly cause untold hardships to the general public including students, office goers, patients, elders etc.,   Therefore, the employees connected to essential services should always service with a sense of dedication as any move to strike by them would have adverse impact on the general mass.   This does not mean that the Court approves or endorses any vindictive measure and anti-labor practice of the managements and those unions and employees should not insist upon for the rights and privileges they are legally entitled to.

                        Thus it is well settled that Courts cannot substitute their own judgment for that of the authority competent to transfer, the Court will not interfere with the transfer orders passed against the employees unless it is tainted with mala fides and arbitrary exercise of power.