WP/18623/2004 of Smt. P. Lakshmi Devei, Vs Indian Immunologicals Ltd. on 31 December 2004

O R D E R:

Challenging the office order No. IIL:ADM:2004 dated8.10.2004 transferring and posting the petitioner to AHD-InstitutionsDepartment, Delhi the present writ petition is filed.

The brief facts that are necessary for the disposal of thewrit petition may be stated as follows:

The petitioner was appointed in the establishment of 1[st]respondent-Company as a Stenographer in the year 1983. Herservices were confirmed with effect from 18.8.1984. Thereafter shewas promoted as Senior Stenographer w.e.f. 1.4.1991. Oncompletion of probation, she was confirmed as Senior Stenographerw.e.f. 1.4.1992. By proceedings dated 21.9.1983 she was designatedas Supervisor with effect from 1.9.1993 though the nature of her workremained substantially the same as that of the Stenographer. Shewas appointed as Junior Officer w.e.f. 1.7.1998 and in that cadre shewas also confirmed after completion of probation period. Besidescarrying the work of Stenographer, she was also doing tenderpreparation, maintenance of files, correspondence and records of thecompany relating to the Marketing Department and also preparationof information, statements and particulars required by theDepartment. She has put in 20 years of meritorious service. Byproceedings dated 24.11.2003 it was informed that her work was notsatisfactory and there was deterioration in her performance and willfulrefusal to show any improvement. Therefore, she was terminatedfrom service. Challenging the same, W.P. 222 of 2004 was filed byher. By orders dated 7.1.2004 in WPMP 311 of 2004 in W.P. 222 of

2004, interim suspension as prayed for was ordered. The 1[st]respondent did not give effect to the interim suspension but filedWVMP to vacate the interim order. That vacate petition wasdismissed. Thereafter she was permitted to join duty on 2.2.2004 butshe was not allowed to return to her regular duties which she wasnormally performing prior to 24.11.2003. Instead, on 2.2.2004 shewas directed to sit separately and in isolation at a table speciallyplaced for her in the cellar of the office premises. She was notassigned any work and was not allowed to go to any other part of theoffice. No other person was sitting in the cellar room. She was forcedto spend the whole day alone without anything to do and was notallowed to speak to anyone. Restrictions were also imposed on theother staff not to speak to the petitioner. She was not paid the salaryfor the month of November, 2003. Due to the deliberate action puttingher under severe psychological pressure and financial hardship, shesubmitted representations dated 27.2.2004 to the 1[st] respondent. Byletter dated 6.3.2004 from the Executive Director she was informedthat the grievances expressed by her are ill-conceived and withoutany basis and therefore they are rejected. According to the petitioner,her grievance was not reasonably redressed and she continued toremain on duty without any work restricting to the cellar of the office till3.6.2004. She was asked to do the Head-Marketing by an officeorder dated 3.6.2004. By a letter dated 16.8.2004 issued by the 2[nd]respondent, she was informed that her termination dated 24.11.2003was withdrawn with immediate effect on legal advise. Thereafter, theimpugned proceedings dated 8.10.2004 were issued transferring herto the AHD-Institutions Department at Delhi. Challenging the same,the present writ petition is filed on the following grounds:

“ It is submitted that the actions of the respondents inissuing an arbitrary and stigmatic termination orderon 24.11.2003 without notice and without any inquiryor any procedure known to law, and refusing toforthwith comply with the interim suspension dated7.1.2004 granted by this Hon’ble court, and forcingthe petitioner to sit in isolation continuously in thecellar room of the office without any work after the order of this Hon’ble Court dated 30.1.2004, anddeliberately withholding and delaying the petitioner’ssalary dues, and subjecting the petitioner to severepsychological and financial stress and distress, andunreasonably and arbitrarily rejecting the petitioner’srepresentation dated 27.2.2004 and continuing tokeep the petitioner in isolation without any work till3.6.2004 with a view to humiliate the petitioner andto break the petitioner psychologically andemotionally, and asking the petitioner to report toAHD-Trade department on 3.6.2004, and shortlythereafter withdrawing the termination order dated24.11.2003 by letter dated 16.8.2004 reserving theright of the management to proceed with appropriatedisciplinary action against the petitioner, and soonthereafter asking the petitioner to report to AHD-Institutions department by office order dated2.9.2004, and again shortly thereafter punishing thepetitioner by issuing the impugned office order dated8.10.2004 transferring and posting the petitioner toAHD-Institutions department at Delhi with immediateeffect, are all a continuous chain of eventscalculated and designed only to harass and punishthe petitioner in pursuance of vindictiveness,victimization and malice in fact and law”.

The respondents filed counter affidavit stating that thepetitioner at present is working as Executive-Marketing in the 1[st]respondent Company. The Government of India commenced aproject “Disease Free Zone”. For the same the Government of Indiarequired supply of foot and mouth disease vaccines. The respondentCompany responded to the same and in turn the Government ofIndia placed major order on the respondent Company for the supplyof F & MD vaccine. Though the order was placed in 2003, theGovernment of India was slow in placing the order for the actualsupply and it went on increasing and now it reached the peak. Tocope up with the said increase in the workload till the completion ofthe said order which is likely to extent for another year, the RegionalIncharge North, Delhi vide letter dated 1.9.2004 requested theManager-Marketing to take appropriate action to appoint a suitable person at Delhi giving the job responsibility. The Marketing Managerafter considering the said request, considered that instead ofrecruiting a new person and incurring additional employee cost thepetitioner who had the necessary job experience to handle the workat Delhi can be transferred and recommended accordingly. TheManagement has considered the said recommendation and was ofthe view that the workload may not long last requiring recruitment ofan additional employee and it is in the interest of the Organisation totransfer an employee with the required experience to meet the saidworkload in the respondent Company and accordingly transferred thepetitioner vide office letter dated 8.10.2004 to AHD Institutions, Delhi.But, instead of reporting to duty at Delhi, the petitioner approachedthis court. The petitioner is transferred due to the request made bythe Regional Incharge North, Delhi vide letter dated 1.9.2004 and thetransfer order dated 8.10.2004 was issued on administrative groundsdue to administrative exigencies and in the larger interest of therespondent-organisation. As the petitioner declined to comply withthe transfer order, the respondents had to make an ad hocarrangement of deputing Mr. B.N. Prasad, Executive Marketing toDelhi. The allegations that she was not assigned any regular dutiesand was made to sit isolated at a table without assigning any workand that she was not permitted to go to any part of the office aretotally incorrect. The petitioner made representation dated 27.2.2004raising her contentions. The allegation of victimization, vindictiveness,mala fides, improper purpose, abuse of power and arbitrariness hasto be established by substantial amount of evidence and mereallegations in a routine manner cannot be a ground to question thetransfer order. Hence the respondents pray to dismiss the writpetition.

The petitioner filed a reply affidavit stating that noparticulars of the job description to be done by the petitioner at Delhiare mentioned. The petitioner has never done any such work. Theaverments and contentions of the respondents are only to create anillusion of the transfer having been ordered on administrative exigencies in order to mask and conceal the real unlawful motives.Mr.B.N. Prasad returned from Delhi within four days and he has beenworking at Hyderabad from 16.11.2004. Therefore, the requirement ofa person at Delhi on administrative grounds is entirely illusory andfalse. It is only connected to justify the mala fide transfer of thepetitioner. The chain of events and circumstances in the affidavitwould go to show the hostile, punitive and mala fide nature of theorder of transfer. Hence, she prays to allow the writ petition.

At the request of learned counsel for both sides, the mainwrit petition is taken up for disposal.

Arguments

Learned counsel for the petitioner contended thatbecause she filed a writ petition challenging the termination order, therespondents passed the impugned order. The chain of events asnarrated in the writ petition would clearly indicate that the writpetitioner was victimized and with a mala fide intention the impugnedproceedings have been issued and that for the last 25 years noemployee is transferred from Hyderabad to any other place.Therefore, the petitioner legitimately expected that she would not betransferred to any other place. Hence, he prays to quash theproceedings.

On the other hand, learned standing counsel for therespondents contended that there is absolutely no factual foundationwith regard to the mala fides on the part of the respondents. As thepetitioner was having relevant experience, she was transferred toDelhi due to administrative exigencies and the order under challengedoes not suffer from any legal infirmities so as to call for interferenceof this Court.

Though it is specially stated that the 1[st] respondent-company is wholly owned by the National Dairy Development Board,which is an instrument of the State, the same is refuted in the counterstating that the 1[st] respondent is not a State within the meaning of Article 12 of the Constitution. But, the learned counsel for the partiesdie not advance any arguments on this aspect. Therefore, the pointat issue is whether the transfer order suffers from any mala fides orwhether it is effected due to administrative exigencies as contendedby the respondents.

There cannot be any dispute that the transfer is not onlyan incidence of service but also one of the service conditions of theemployee. The competency and jurisdiction of the person whoeffected the transfer is not under challenge. So also, it is not the caseof the writ petitioner that the post which she is holding is not atransferable post. In support of his contention, the learned counsel forthe petitioner relied upon a decision in Smt.K.Prabhavathi v. TheDeputy Divisional Manager, Syndicate Bank wherein it is held:

“Since these lady employees have beenworking from inception of their service in thetwin cities of Hyderabad-Secunderabad andVisakhapatnam and they were exemptedfrom redeployment transfer under the 1991Central policy, it was legitimate for them toexpect that they would be continued to servein the twin cities and on that basis to arrangeaffairs of their life and future”.

The above decision has no application to the facts of thiscase since in the above case there was central policy of the year1991. In this case there is no such policy exempting their ownemployees from transferring to any other place from the twin cities ofHyderabad-Secunderabad.

For the proposition that transfer cannot be made by wayof or in lieu of punishment, learned counsel for the petitioner reliedupon a decision of this court in P. Anjaneyulu v. Chief Manager,A.P. Circle, BSNL, Government of India, Hyd. wherein the DivisionBench held:

“Although a Court or a Tribunal does notnormally interfere with an order of transfer, it is also well settled that no order of transfercan be passed by way of or in lieu ofpunishment. Such an order of transfer wouldbe vitiated in law, inasmuch as prior thereto,neither any departmental proceeding hasbeen initiated nor the petitioner had beengranted an opportunity of being heard”.

For the same proposition, the learned counsel for thepetitioner relied upon another decision of this court in A. VenugopalRao v. Executive Engineer, Panchayat Raj, Machilipatnamwherein it is held:

“It is well settled principle of law that an orderof transfer on administrative ground ispermissible but an order of transfer by way ofor in lieu of punishment is not”.

There is no dispute about the proposition of law laiddown by this Court. The learned counsel for the petitioner furtherrelied upon a decision in State of U.P. v. Jagdeo Singh wherein it isheld:

“We must make it clear that any and everytransfer of a police officer from one policestation to another will not amount topunishment, even if it involves the loss of aspecial emolument. If a Police officer istransferred from one charge to another in theordinary course of administrative exigencies,the provisions of Section 7 of the Police Actwill not be attracted because a transfersimpliciter is not punishment. It is only whenthe transfer is made by way of punishment,as in the instant case, that Section 7 wouldcome into play”.

The learned counsel for the petitioner relied upon yetanother decision in K. Amarnath Reddy v. Government of A.P.wherein it is held:

“It is well settled that the validity of the transferorder could be assailed only on three grounds,but not on any other grounds, and thosegrounds are:

i.

want of authority in the transferringauthority;

ii. the transfer order is vitiated on account of established mala fides.

iii.

Infraction of any mandatory statutoryprovisions”.

Relying upon the above decisions, learned counsel forthe petitioner contended that it is a case of mala fide transfer.Whether it is a case of mala fide transfer or not will be discussed littlelater.

With regard to malice, learned counsel for the petitionerrelied upon a decision of the apex court in State of A.P. v.Goverdhanlal Pitti wherein it is held:

“The legal meaning of malice is “ill-will orspite towards a party and any indirect orimproper motive in taking an action”. This issome times described as ‘malice in fact’.“Legal malice” or “malice in law” means“something done without lawful excuse”. Inother words, “it is an act done wrongfully andwilfully without reasonable or probablecause, and not necessarily an act done fromill feeling and spite. It is a deliberate act indisregard of the rights of others”.

Learned counsel for the petitioner also relied upon adecision in S.R. Venkataraman v. Union of India wherein it is held:

“Thus malice in its legal sense means malicesuch as may be assumed from the doing ofa wrongful act intentionally but without justcause or excuse, or for want of reasonable On this aspect, learned counsel for the petitionercontended that because the respondents passed a stigmatictermination order dated 24.11.2003, she filed a writ petition andobtained interim suspension and thereafter she was forced to sit inisolation in the cellar room of the office without any work and she wassubjected to severe psychological and financial distress and in spiteof giving representation the same has not been consideredobjectively and thereafter the termination order dated 24.11.2003 waswithdrawn and shortly thereafter by way of punishment the petitionerhas been transferred to Delhi.

The allegations of not entrusting the work and confiningthe petitioner to cellar room and not allowing her to move from cellarroom and not allowing her to speak to anyone are denied by therespondents in the counter affidavit. The show-cause notice dated24.11.2003 was issued by the Executive Director terminating herservices by giving three months or three months pay in lieu of notice.It was stated in the said notice that in view of her continuousindifference in attending to the duties and willful refusal to show anyimprovement in gross careless and negligent manner they lostconfidence in her services. The petitioner challenged the same andobtained interim suspension. Though the respondents filed a vacatepetition, that was dismissed. Thereafter she was allowed to join dutyon 2.2.2004. She made a representation with several allegations. Asthe allegations in the representation are found ill-conceived andwithout any basis, the representation was rejected by the ExecutiveDirector. No mala fides are attributed against the Executive Director.Now the present impugned transfer order has been passed by theManaging Director of the 1[st] respondent. It is not the case of thepetitioner that at the behest of the Executive Director the ManagingDirector passed the impugned order. So also, no mala fides areattributed against the Managing Director who effected the transfer.The reason given by the respondents for transferring the petitioner to Delhi is the letter addressed to the Marketing Manager by theRegional Incharge North, Delhi, to take appropriate action to appointsuitable person at Delhi giving job responsibility. Therefore, theMarketing Manger of the 1[st] respondent recommended the transfer ofthe petitioner who had necessary job experience to handle the workat Delhi. So, the Management has considered the recommendationof the Marketing Manager and passed the impugned proceedings. Itis not the case of the petitioner that at the behest of the ManagingDirector or the Executive Director the Marketing Managerrecommended the transfer of the petitioner with a mala fide intention.So also, no mala fides are attributed against the Marketing Managerwho recommended the transfer of the petitioner from Hyderabad toDelhi. The allegations that the transfer order is vitiated byvictimization, vindictiveness, mala fides, improper purpose,arbitrariness, calculated and only designed to harass and punish thepetitioner are not based upon any factual foundation. In the absenceof any specific allegations against the transferring authority or anyone of the officers of the 1[st] respondent Company, it cannot be saidthat the impugned proceedings have been issued by way ofpunishment. It is not a case where jurisdiction of the authority is underchallenge or infraction of any mandatory and statutory provisions.Unless the petitioner establishes that the transfer order is vitiated onaccount of established mala fides, the same cannot be reviewedexercising the power under Article 226 of the Constitution.

Conclusion

Therefore, in the absence of any established mala fidesor factual foundation with regard to the mala fides, the transfer order,when made on administrative exigencies, cannot be interfered. Asthe petitioner was found suitable for the post, who has necessary jobexperience to handle the work, the Marketing Managerrecommended her transfer to the Management and keeping in viewthe recommendation made by the Marketing Manager and in theinterest of the respondent-Organisation the impugned proceedingshave been issued and thereafter she was relieved from duty w.e.f.8.10.2004.

The order under challenge does not suffer from any legalinfirmities so as to call for interference of this Court. The writ petition isdevoid of merit and it is accordingly dismissed. In the circumstances,no costs.

____________________

K.C. Bhanu, J.

Date: 31--12—2004.

MVB.

..... REGISTRAR

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SECTION OFFICER

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1 The Managing Director, Indian Immunologicals Ltd. Road No.44, Jubilee Hills, Hyderabad, 500 033, 2. 2CD copies