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IN THE HIGH COURT OF MADRAS
V.M. VELUMANI, V. LAKSHMINARAYANAN, JJ.
D. Prithiviraj and Ors. – Appellants
Versus
Union of India and Ors. – Respondents
W.P. Nos. 13498, 13866, 13684 of 2019 and W.M.P. No. 13604 of 2019
Decided On : 12-04-2023
Transfer - Administrative Ground - The Railway Servants (Discipline & Appeal) Rules, 1968 - The Supreme Court of India in Somesh Tiwari Vs. Union of India and Ors. - Writ Appeal No.1138 of 2008 - P.Karunakaran Vs. The Union of India - Union of India and Ors. Vs. Janardhan Debanath and Anr. - Union of India and Ors. Vs. Janardhan Debanath and Anr. - [Summary of Acts and Sections]
Fact of the Case:
The petitioners challenged the impugned order of transfer before the Central Administrative Tribunal, Chennai, on the ground of physical assault of co-workers, resulting in an unpleasant situation at the work site and unrest among co-workers. The petitioners were placed under suspension and subsequently transferred without the orders being personally served on them.
Finding of the Court:
The court found that the transfer was punitive in nature and not based on administrative grounds. The court held that the order of transfer and revocation of suspension were not served on the petitioners, rendering the transfer ineffective. The court also noted that the petitioners were treated differently from another individual involved in the incident, violating Article 14 of the Constitution of India.
Issues: The issues included the nature of the transfer, the communication of orders to the petitioners, and the violation of Article 14 of the Constitution of India.
Ratio Decidendi: The court held that an order of transfer should not be interfered with unless tainted by mala fides. The court also emphasized the need for orders to be communicated to the affected party to take effect. The court applied the principles established in various judgments to determine the punitive nature of the transfer and the violation of Article 14.
Final Decision: The writ petitions were allowed, setting aside the order of transfer and the petitioners were not entitled to pay from the date of transfer. The respondents were given the option to proceed against the petitioners as per the Railway Servants (Discipline & Appeal) Rules, 1968.
Certainly. Here are the key points derived from the provided legal document:
Orders of transfer in employment should be administrative in nature and not punitive. They must be based on administrative grounds and communicated properly to the affected employee to be effective (!) (!) .
Treating similarly situated individuals differently, especially in the context of transfers, violates the constitutional guarantee of equality under Article 14. In this case, the differential treatment of the petitioners and Mr. Selvaraj, who continued to be under suspension, was found to be discriminatory (!) (!) .
An uncommunicated order, such as one that is pasted on a notice board without direct service, does not constitute valid service and therefore does not take legal effect. Orders must be personally served or properly communicated for them to be effective (!) (!) .
Transfers that are made based on internal inquiries and incidents, especially when not preceded by a disciplinary proceeding, may be deemed punitive if they are motivated by adverse reports or complaints rather than administrative exigencies (!) (!) .
When an order of suspension is not served or communicated properly, any subsequent transfer during that period may be considered punitive, particularly if the order of suspension remains unrevoked and uncommunicated (!) (!) .
The authority to transfer employees is generally within the administrative domain and should be exercised in good faith and based on relevant grounds. However, if the transfer is in lieu of disciplinary action or is motivated by adverse reports without proper inquiry, it can be challenged as punitive (!) (!) .
Disciplinary proceedings should be conducted before imposing punitive measures such as transfers, especially if the transfer is based on allegations of misconduct. Resorting to transfer without proper inquiry or disciplinary action may be invalid and subject to judicial review (!) (!) .
The principle of "no work, no pay" applies when employees do not report to their transferred or original posts due to the order not being properly served or communicated, resulting in withholding of pay during such period (!) .
The court emphasized the importance of proper communication of orders for them to be effective, and that failure to do so renders the orders invalid, thus protecting the employee's rights against arbitrary or punitive transfers (!) (!) .
The court held that the administrative authority has the power to proceed with disciplinary actions but must do so following proper procedures, including proper communication and inquiry. Transfers should not be used as a substitute for disciplinary measures unless justified (!) (!) .
Please let me know if you need further analysis or assistance.
ORDER :
V. Lakshminarayanan, J.
1. The petitioners filed these writ petitions to issue a writ of Certiorarified Mandamus.
2. The petitioners were working as Technician Grade III with the respondent. They were appointed on 20.12.2001. They challenged the impugned order of transfer before the Central Administrative Tribunal, Chennai/6th respondent. By this transfer, they were sent from one division to the other on the ground of physical assault of co-workers, resulting in un-pleasant situation at the work site and un-rest among co-workers.
3. There seems to be two unions in the Southern Railways, one is the Southern Railway Mazdoor Union [SRMU] and the other one is Southern Railway Employees Sangh [SRES]. The petitioners belong to the SRES union. According to them, some of the members of the other union, that is SRMU, met the members of the SRES union at the workplace. The intention of the meeting was not a social call but to prevent them from discharging their official duties. Taking note of this, the union members of SRES lodged police complaint in January of 2017 and the same is pending for investigation. It is alleged that the writ petitioners were threatened to withdraw the police complaint and on their refusal, the members of the other union lodged a complaint against the petitioners and their respective unions. The said incident said to have taken place on 20.06.2017 and on the same day, the writ petitioners were placed under suspension. The suspension lasted till 06.07.2017. The reason, being, the writ petitioners filed O.A.No.1098 of 2017 and the Central Administrative Tribunal vide order dated 14.07.2017 passed the following order:-
4. Consequent to this order of the Tribunal, the petitioners made a representation on 21.07.2017. The said representation was disposed of by the impugned order before the Central Administrative Tribunal, Chennai on 18.09.2017, the relevant portion of the order are extracted hereunder:-
5. The extract shows that the reason of transfer was the conclusion of the Chief Workshop Manager, Carriage and Wagon Works, Perambur, Chennai, that the writ petitioners had indulged in acts which caused damage to industrial peace, harmony and un-rest amongst the employees, resulting in damaging industrial safety as well as personal safety of individuals in the workshop. The authorities have given these reasons for transfer from Chennai to Tiruvandrum Division. Further the order also reveals that on 20.06.2017 one Rajendran belonging to SRMU union had given a complaint. It further proceeds to show a committee that has been constituted headed by the Junior Administrative Grade Officer and two other Officers belonging to electrical workshop and RPF department. The authorities have taken note of the fact that on 20.06.2017, an order of suspension had been passed and on 06.07.2017, the order of suspension was revoke
Courts cannot interfere with transfer orders unless shown to be an outcome of malafide exercise or in violation of statutory provisions prohibiting such transfer.
The transfer order based on allegations should be followed by a detailed investigation and disciplinary action, and the individual should be provided an opportunity to defend against the allegations ....
Judicial review of administrative transfers in employment requires proof of mala fide or jurisdictional error, reaffirming adherence to contractual terms unless misconduct is established.
Judicial review of transfer orders is limited; absence of a defined transfer policy renders such orders arbitrary, necessitating formulation of a policy.
The court ruled that transfer orders are administrative decisions and can only be interfered with if proven mala fide or in violation of statutory provisions.
The court upheld the Central Administrative Tribunal's order for reconsideration of a transfer order under statutory provisions, affirming the validity of transfers during inquiry processes.
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