IMPORTANT POINT
When the services of employees of the Central Government have been placed at the disposal of the Broadcasting Corporation although no order of deputation having been passed, the Corporation has an implied power of transfer of such employees as transfer is an ordinary incident of service.

Headnote:(i) SERVICE LAW—Prasar Bharati Broadcasting Corporation of India) Act, 1990—Sections 11 and 12—Deemed deputation—Power to transfer—Distinction between ‘transfer’ and ‘deputation’—Respondents appointed by ‘Doordarshan’ and ‘Akashvani’—Their services were transferred to Broadcasting Corporation for India—However, no order of deputation in respect of any of the employees or officers of the Doordarshan or Akashvani had also been passed—Officers and employees of erstwhile Akashvani and Doordarshan, however, continued to work with the Corporation—Same terms and conditions of their services continued to apply to them as if they were the Central Government employees—Corporation passed orders of transfer of operational and administrative staff—Respondents challenged orders of transfer—Central Government employees who had been working in Akashvani Stations and Doordarshan Kendras continued to work in the Prasar Bharati for nearly eight years—Union of India did not exercise its statutory functions for such a long time—Services of respondents have been placed at the disposal of the Corporation although no order of deputation has been passed—Whether Broadcasting Corporation had power to transfer respondents—(Yes)—Whether action taken by appellant in transferring respondents is in any way arbitrary or irrational—(No).
       Held : This case raises practical problems which is the creation of Union of India and the appellants. It is difficult for us to comprehend as to why the Union of India did not exercise its statutory functions for such a long time. It was, in our opinion, obliged to take a decision one way or the other. It was for the Union of India to transfer the officers or employees of the Doordarshan and Akashvani to the Corporation. In such an event, the employees could have exercised their option as envisaged under sub-section (5) of Section 11 of the Act. The consequences of passing of an order under sub-section (1) of Section 11, as noticed hereinbefore, are provided for under sub-section (4) thereof. The transfer of an employee deputed under sub-section (1) of Section 11 is that of a permanent nature. So long an order under sub-section (1) is not passed, indisputably the employees and officers would continue to be the employees of the Central Government. They shall unless otherwise an order is passed would be governed by the terms and conditions of services evidenced by the rules framed by the President of India under proviso appended to Article 309 of the Constitution of India. Indisputably, no such order having been passed, the respondents continued to be the employees of the Central Government. However, there cannot be any doubt whatsoever that the services of the respondents have been placed at the disposal of the Corporation although no order of deputation has been passed.(Para 11)
       There exists a distinction between ‘transfer’ and ‘deputation’. ‘Deputation’ connotes service outside the cadre or outside the parent department in which an employee is serving. ‘Transfer’, however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications.(Para 12)
       A transfer of an employee may be governed by the provisions of a statute or the terms and conditions of a contract of service.(Para 14)
       The situation as obtaining in the present case, however, in our opinion, would amount to be a case of deemed deputation. It is true that no order has been passed by the Central Government on this behalf, but the respondents acted in the manner as if such an order had been passed. The respondents have been working with the Corporation for a long time without any demur whatsoever. They are undoubtedly under the control and supervision of the officers of the Corporation. There exists a hierarchy of the officers in the Corporation. There are a large number of departments. Each department has separate functions. Work of one department, however, would be related to another.(Para 15)
       The Corporation has not framed its own rules. In absence of any rules, however, an employer, it is well-known, would have an inherent power to deal with its employees. In a situation of this nature, we have no doubt that the same would include a power of transfer. It is one thing to say that an employer does not possess of any power to transfer in terms of the extant rules or conditions of service or the nature thereof; but the same does not mean that the employer must have the power to transfer its employees only in terms of a statute.(Para 20)
       Respondents, therefore, in our opinion by reason of their conduct as also that of other players in the field, namely, the Union of India and Corporation must be held to have been deputed in the services of the Corporation. They would, therefore, be governed by the general principles of deputation. For the said purpose they are under the functional control of the Corporation which in the peculiar facts and circumstances of this case, in our opinion, would also imply that the Corporation had a power of transfer.(Para 23)
       We do not find that the action taken by the appellants herein in transferring the respondents is in any way arbitrary or irrational. The orders of transfer have been passed in the interest of the administration and with a view to carry on its functions. (Para 25)
       (ii) Constitution of India—Article 142—Status of Central Government employees working in Prasar Bharati—Direction issued to Union of India to take a firm decision in terms of Section 11 of the Prasar Bharati (Broadcasting Corporation of India) Act.
       Held : We would, however, before parting with the case, in exercise of our jurisdiction under Article 142 of the Constitution of India issue a direction upon the Union of India. We have noticed hereinbefore that the Union of India itself had been filing writ petitions before the different High Courts. It did not do so in the instant case. It had to be impleaded as a party respondent. (Para 27)
       We have furthermore noticed hereinbefore that the question as to whether the Central Government should pass an order in terms of sub-section (1) of Section 11 of the Act or not is pending consideration before its highest authority for a long time. No decision has been taken for more than nine long years. Despite observations made by this Court, the Central Government has failed and/or neglected to take a decision one way or the other. Ordinarily, this Court would not have issued a direction but the present state of affairs cannot be permitted to continue. The rights of the respondents cannot be allowed to remain in uncertain position for a long time.(Para 28)
       (iii) WORDS AND PHRASES—Word ‘Control’—Meaning—Concept of control implies that the controlling officer must be in a position to dominate the affairs of its subordinate.
       Held : The concept of control implies that the controlling officer must be in a position to dominate the affairs of its subordinate. It is unless otherwise defined would be synonymous with superintendence, management or authority to direct, restrict or regulate. It is exercised by a superior authority in exercise of its supervisory power. It may amount to an effective control, which may either be de facto or remote.(Para 19)

JUDGMENT

S.B. Sinha, J.—Leave granted in the S.L.P.

2. Respondents herein were appointed by the ‘Doordarshan’ and ‘Akashvani’. Parliament enacted the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (for short, ‘the Act’) to provide for the establishment of a Broadcasting Corporation for India, to be known as Prasar Bharati, to define its composition, functions and powers and to provide for matters connected therewith or incidental thereto. The said Act though came into force on and from 15.09.1997, Prasar Bharati (Broadcasting Corporation of India) (for short, ‘the Corporation’) came to be established 23.11.1997, the date on which the ‘Appointed day’ was notified in terms of Section 3 of the Act. Section 11 of the Act provides that it shall be lawful for the Central Government to transfer to the Corporation any of the officers or other employees serving in the Akashvani and Doordarshan and engaged in the performance of those functions, where the Central Government has ceased to perform the functions which in terms of Section 12 are the functions of the Corporation. Sub-section (5) of Section 11 of the Act, however, provides that every officer or other employee transferred by an order made under sub-section (1) shall, within six months from the date of transfer, exercise his option, in writing, to be governed by the conditions enumerated therein and such option once exercised under the Act shall be final. However, once the services of the officers or employees of Akashvani and Doordarshan are transferred to the Corporation, sub-section (4) of Section 11 would be attracted which is in the following terms :

“(4) An officer or other employee transferred by an order under sub-section (1) shall, on and from the date of transfer, cease to be an employee of the Central Government and become an employee of the Corporation with such designation as the Corporation may determine and shall, subject to the provisions of sub-sections (5) and (6), be governed by such regulations as may be made as respects remuneration and other conditions of service including pension, leave and provident fund shall continue to be an officer or other employee of the Corporation unless and until his employment is terminated by the Corporation.”

3. No order of deputation in respect of any of the employees or officers of the Doordarshan or Akashvani had also been passed. The officers and employees of erstwhile Akashvani and Doordarshan, however, continued to work with the Corporation. They drew their salaries and other remunerations. The same terms and conditions of their services were continued to apply to them as if they were the Central Government employees.

4. The Corporation passed orders of transfer of the operational and administrative staff. Allegedly, such transfers were made with a view to optimize the use of man-power available with the Corporation so that every Station and Kendra became fully functional. The legality and/or validity of the said orders of transfer were questioned before the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, by the respondents herein on or about 07.09.2000 which was marked as O.A. No.725/PB/2000. By a judgment and order dated 06.10.2000, the orders of transfer were quashed relying, inter alia, on an earlier decision of the Tribunal in S.P. Kohli v. Union of India and Others. The writ petition filed by the appellants herein for quashing the said order of the Central Administrative Tribunal has been dismissed by a Division Bench of the Punjab and Haryana High Court by reason of the impugned judgment.

5. At the very outset, it may be noticed that a Division Bench of this Court by an order dated 29.03.2005 noticed the unsatisfactory state of affairs prevailing in the matter as the Central Government employees who had been working in Akashvani Stations and Doordarshan Kendras continued to work in the Prasar Bharati for nearly eight years stating :

“....Prima facie, this uncertainty has continued since

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2007 Supreme(SC) 121

Cases Referred (13)