1990 Supreme(Raj) 798
RAJASTHAN HIGH COURT AT JAIPUR BENCH
G.S.Singhvi, J.
Kailash Chandra Jain - Appellant
Versus
Khadi & Village Industries Commission and Others - Respondent
S.B.Civil Writ Petition No.72 of 88.
Decided On : 18-12-1990
Transfer of an employee is an ordinary incident of service and the employer has the prerogative to choose the place of posting of its employees.
Headnote:
TRANSFER OF EMPLOYEE - RAJASTHAN KHADI GRAMODYOG SANGH - CHALLENGE TO TRANSFER ORDER - VALIDITY OF TRANSFER ORDER - POWERS OF SECRETARY - JURISDICTION OF COURT.
Fact of the Case:
The petitioner, an employee of the Rajasthan Khadi Gramodyog Sangh, challenged the transfer order issued by the Secretary of the Sangh, transferring him from Jaipur to Bikaner. The petitioner contended that the transfer was illegal and actuated with malice, and that the Secretary did not have the competence to pass such an order.
Finding of the Court:
The court held that the transfer order was valid and that the Secretary had the authority to pass such an order. The court found that the petitioner had not been appointed as an Accountant, but was merely given charge of the Accounts Department on account of the retirement of another employee. The court also found that the transfer was made in the interest of the institution and for administrative reasons, and that there was no mala fide intention on the part of the Secretary.
Issues: 1. Whether the transfer order was illegal and actuated with malice? 2. Whether the Secretary had the competence to pass such an order?
Ratio Decidendi: 1. The court held that the transfer order was not illegal or actuated with malice. The court found that the petitioner had not been appointed as an Accountant, but was merely given charge of the Accounts Department on account of the retirement of another employee. The court also found that the transfer was made in the interest of the institution and for administrative reasons, and that there was no mala fide intention on the part of the Secretary. 2. The court held that the Secretary had the authority to pass the transfer order. The court found that the constitution of the Sangh referred to the powers and duties of the Managing Committee as also that of the Secretary, and that Para 27 of the Rules referred to the powers of the Secretary, which included the power of appointment of employees, their removal and transfer etc.
Final Decision: The court dismissed the writ petition with costs, holding that the transfer order was valid and that the Secretary had the authority to pass such an order.
JUDGMENT
1. - The petitioner has challenged the legality of Annexures 4 and 9 issued by the Secretary Khadi Gramodhyog Sanstha Sangh.
2. The petitioner was appointed on trial basis for 3 months to work in the Accounts Department of the Rajasthan Khadi Gramodhyog Sanstha Sangh (hereinafter to be referred as."the Sangh"). He was confirmed with effect from 1.4.1983 as Assistant Worker in the Accounts Department. He was given the charge of Accountant vide order dated 12.3.1985 on the retirement of Shri Kalyan Chand Maheshwari. According to the petitioner, there is only one post of Accountant in the services of the Sangh and that too in the Head Office at Bajaj Nagar, Jaipur. The petitioner had discovered certain irregularities in the functioning of the Department and he brought these irregularities to the notice of the Secretary vide his letters dated 8.10.1986 and 45.1987. According to the petitioner, this annoyed functionaries of the Sangh and while he was on leave since 25.9.1987, he was served with an order dated 24.9.87/5.10.1987 seeking to transfer him from Jaipur to Bikaner to take charge of Accounts and Stock Register. The petitioner made representations on 10.10.1987 and 12.10.1987 against this order of transfer. He stated that the transfer was deliberate act of harassment. He applied for extension of leave. This application was not entertained and instead he was asked to report at Bikaner vide letter 26.10.1987. By another order dated 23/24.12.1987 all applications for extension of leave were rejected and at the same time false allegations were levelled against the petitioner that he was working elsewhere. He protested against the aforesaid order. According to the petitioner the respondent-Sangh falls within the definition of term 'State' under Article 12 of the Constitution of India being an instrumentality of the State.
3. The petitioner has challenged the order of transfer on the ground that it had been passed by the Secretary of' the Satigh, who did not have the competence to pass such order because such action could only be taken by the Managing Committee under Rule 27(7). He further submits that the order of transfer is actuated with malice and is a clear act of vindictiveness.
4. The respondent No.3 has submitted reply to the show cause notice issued by the court. In the reply, the respondent No.3 has asserted that the Sangh is not an instrumentality of the State, in as much as the State has no control over the activities of the Sangh. The Sangh is a society registered under the Societies Registration Act, 1860. The Board of Directors are elected from amongst the members of the general body. According to the respondent No.3, the power of transfer vests with the Secretary of the Sangh. This transfer was made in the interest of the institution and for administrative reasons. The petitioner had been confirmed as Assistant Worker in the Pay Scale of 130-360 in the Accounts Department. On the retirement of Shri Kalyan Chand Maheshwari, he was given the charge of the work which was being done by him. No appointment order was issued in favour of the petitioner appointing him as Accountant. When the order of transfer was sent to the petitioner, he read it and then refused to accept it by saying that he was on leave. Thereafter, the letter of transfer was sent to his residence but he was not available. Finally, it was sent by registered post on 26/27.10.1987.
5. The petitioner has filed rejoinder and has also filed certain documents along with the rejoinder.
6. This Court, had in D.B. Civil Writ Petition No.508/86 Madan Lal v. The Rajasthan Khadi Sangh decided on 15.12.1987, held that the Khadi Gramodhyog Sanstha Sangh is not the State under Article 12 of the Constitution of India. Shri R.P. Sharma could not point out anything which could form basis for holding otherwise. In the light of the aforesaid decision, I do not consider it necessary to discuss' the question as to whether the respondent.No.3 is the State or not. Even
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