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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
L. VICTORIA GOWRI, J.
R. Kalyanakumar – Appellant
Versus
The Senior Deputy General Manager Bharat Heavy Electrical Limited (BHEL), High Pressure Boiler Plant, Tiruchirappalli & Others – Respondents
W.P.(MD) No. 14306 of 2023 & W.M.P(MD) Nos. 12110 & 12723 of 2023
Decided On : 28-07-2023
Trade Union - Transfer of Employee - Standing Orders 28, General terms and conditions of service Clause 18 - The court dismissed the Writ Petition challenging the transfer order of the employee, holding that the transfer was an administrative exigency and not vitiated by malafide. The court emphasized that the respondent Management had played a balancing role in the factional dispute of the Trade Union and had abided by the court's directions in various writ petitions and appeals. The court also noted that the employee had suppressed the pendency of an Industrial Dispute and a petition before the National Commission for Scheduled Castes, and concluded that the Writ Petition was an attempt to harass the respondent Management.
Fact of the Case:
The petitioner, a working President of a Trade Union, challenged a transfer order issued by the respondent PSU. The petitioner alleged that the transfer was punitive and not in due course, while the respondent argued that the transfer was based on organizational requirements and the petitioner's suitability for the new position.
Finding of the Court:
The court found that the transfer was an administrative exigency and not vitiated by malafide. It noted that the respondent Management had played a balancing role in the factional dispute of the Trade Union and had abided by the court's directions in various writ petitions and appeals. The court also observed that the petitioner had suppressed the pendency of an Industrial Dispute and a petition before the National Commission for Scheduled Castes, and concluded that the Writ Petition was an attempt to harass the respondent Management.
Issues: The main issues were whether the transfer order was punitive and not in due course, and whether the respondent Management had acted in adherence to the Standing Orders and general terms and conditions of service.
Ratio Decidendi: The court held that the transfer order was an administrative exigency and not vitiated by malafide. It emphasized that the respondent Management had played a balancing role in the factional dispute of the Trade Union and had abided by the court's directions in various writ petitions and appeals. The court also noted that the petitioner had suppressed the pendency of an Industrial Dispute and a petition before the National Commission for Scheduled Castes, and concluded that the Writ Petition was an attempt to harass the respondent Management.
Final Decision: The Writ Petition was dismissed, and there was no order as to costs. The court concluded that the transfer order was not unjustified, arbitrary, or vitiated by malafide, and that the petitioner's attempt to challenge the transfer was an act of harassment against the respondent Management.
JUDGMENT
(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, to call for the records relating to the order dated 08.05.2023 bearing reference No.HR:CE:IUT: 2212544 on the file of the first respondent and quash the same.)
1. The present Writ Petition has been filed for issuance of a Writ of Certiorari, to quash the order, dated 08.05.2023 on the file of the first respondent.
2. The petitioner was working as a Technician (Machinist), Factory Civil Maintenance, HPBP, Trichy in the Bharat Heavy Electricals Limited (BHEL), which is managed by the respondents. The petitioner was elected as the working President of the Boiler Plant Employees Union/Indian National Trade Union Congress (INTUC), BHEL, Trichy during the election held on 28.01.2022 (hereinafter mentioned as ''INTUC, BHEL, Trichy''). The said INTUC, BHEL, Trichy is a registered Trade Union and affiliated with the Indian National Trade Union Congress, New Delhi. The list of newly elected office bearers and Executive Committee of the INTUC, BHEL, Trichy was furnished to the Joint Commissioner of Labour, Trichy by the President of Tamil Nadu, INTUC, BHEL, Trichy on 29.01.2022. The All India President of INTUC approved the list of office bearers and Executive Committee and communicated the said list to the third respondent for approval on 31.01.2022.
3. One former member, namely P.Balasubramani of INTUC, BHEL, Trichy was expelled from the Union along with some other members and the same was confirmed by the All India President of INTUC vide communication, dated 31.01.2022, addressed to the third respondent. The said P.Balasubramani approached the Joint Commissioner of Labour, Trichy, challenging the election process of the newly elected office bearers and Executive Committee of the INTUC, BHEL, Trichy. After detailed enquiry and consideration of all facts and evidence, the Joint Commissioner of Labour, Trichy, vide his order dated 18.02.2022 declared that the INTUC, BHEL, Trichy functioning under the petitioner as working President has the support of the majority of the members of the Union and it was also held that the Union functioning under the said former member P.Balasubramani did not have the 2/3 majority as stipulated under Bye Law 25(b). Challenging the said order, a Writ Petition in WP.(MD)No.4009 of 2022 was filed by the said P.Balasubramani before this Court and this Court on 21.03.2022, directed the respondents to keep the order passed by the Joint Commissioner of Labour in abeyance for a period of eight weeks from 21.03.2022, thereby permitting the disputing parties to approach the civil court for appropriate relief. Under such circumstances, on 11.04.2022, the respondent Public Sector Undertaking (hereinafter referred to as ''respondent PSU'') advised both factions not to use INTUC, BHEL, Trichy name until the issue is resolved. Challenging the order passed by the learned Single Judge of this Court in W.P(MD)No.4009 of 2022, the petitioner preferred an appeal in W.A(MD)No.324 of 2022 before the Hon''ble Division Bench of this Court, in which, it was held as follows:-
“3.According to us, once learned Single Judge was of the view that, order under challenge was not required to be interfered with, the said order ought not to have been put under abeyance.”
4. On 30.04.2022, a civil suit in O.S.No.199 of 2022 was filed by the rival faction P.Balasubramani on the file of the learned District Munsif, Tiruchirappalli, for declaration that their faction is the officially recognized INTUC Union of BHEL and the same is pending. On 23.06.2022, the respondent PSU conducted “representative Union Election” to recognize Trade Unions having majority members. INTUC, BHEL, Trichy led by the petitioner''s faction also participated and secured third place with 579 votes and was recognized as selected to represent in the Joint Committee of BHEL (Corporate) as well as the Plan and Shop Councils, BHEL, Trichy.
5. On
The court emphasized that transfer, as an incidence of service, should not be interfered with unless it is shown to be clearly unjustified, arbitrary, or vitiated by malafide or infraction of any pro....
Only scope for interference under Articles 226 and 227 of Constitution of India, is in case there is a flagrant disregard of Rules of procedure or in case there is violation of principles of natural ....
Judicial review of administrative transfers in employment requires proof of mala fide or jurisdictional error, reaffirming adherence to contractual terms unless misconduct is established.
The Court highlighted the limitations of interference with Labour Court awards under Article 226 of the Constitution of India, emphasizing that such interference is only justified in exceptional case....
An order of transfer should not be punitive in nature and must be based on administrative grounds. Orders must be communicated to the affected party to take effect. Treating individuals similarly sit....
Transfers should be based on public interest and administrative exigencies, and not on extraneous considerations or recommendations from unauthorized persons.
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