ORDER
1. Transfer is an incident of service which does not violate any enforceable legal right of the employee. Courts are therefore slow in interfering with such orders except in cases where the same are shown to be against any statutory rules on the subject or vitiated by mala fides. Decisions on the subject are a legion and I see no need to multiply authority. Reference to Mrs. Shilpi Bose and Others v State of Bihar and Others, Union of India v S.L. Abbas and B. Varadha Rao v State of Karnataka andOthers, should in my opinion suffice.
2. The petitioner in this writ petition is working as Manager (finance) in the respondent-Company. He assails in this petition the validity of a transfer shifting him from his present place of posting to Calcutta. The challenge, it is noteworthy, is not based on the violation of any statutory or other provision regulating his service conditions nor is it his case that the authority issuing the transfer order was not competent to do so. What is argued is that the transfer is vitiated by mala fides. In support the petitioner relies upon certain averments made in the writ petition which according to him establish that the order has been issued with a view to penalise the petitioner more than to serve the interest of the respondent-Company. It is urged by Mr. Subbarao, learned Counsel appearing for the petitioner that the order in question was actuated by malice harboured by the respondents on account of the petitioner's refusal to vacate a residential quarter allotted to him in the Indiranagar area of the City of Bangalore. It is contended that the petitioner had not only resisted his eviction from the quarter but filed a writ petition challenging the action of the respondent-Company in asking its employees to vacate the same so as to facilitate thesale of the said quarters. Mr. Rao, argued that the BIFR, which was monitoring the revival and rehabilitation of the respondent-Company under a scheme formulated in that regard, had not permitted the sale of the quarters in question, which according to the petitioner and other employees are owned by the Karnataka Housing Board and not by the Company. The BIFR argued Mr. Rao, had permitted the respondent-Company to sell only 75 acres of vacant land with a view to raise funds for meeting the financial requirements of the rehabilitation programme. Sale of the quarters, according to the learned Counsel, was wholly unauthorised and since the petitioner had opposed the same and dragged the respondent-Company to the Court on that issue, it had developed an animus to somehow punish him by transferring him from Bangalore to Calcutta.
3. The respondent-Company has filed an affidavit in reply in which it is inter alia stated that the quarters in the occupation of the Company's employees are the property of the Company having been purchased by it from the Housing Board. It is urged that the employees who were permitted to occupy the said quarters as licensees were bound by the terms of the rules on the subject and that resistance to their eviction was unjustified. It is also pointed out that out of a total 58 employees, 28 had already vacated the quarters while the rest had challenged the proceedings initiated by the respondent-Company, in the writ petition filed and pending before this Court. It is asserted that the sale of the quarters had become necessary in order to resurrect the Company which had become a sick unit. In so far as the transfer of the petitioner is concerned, it is pointed out that the post of Manager in the Sales Office at Calcutta had fallen vacant making it absolutely essential for the respondent-Company to post a suitable officer to man the Calcutta Sales Office. A copy of the Office Note on which the order of transfer was issued, was also produced by Mr. Prabhakar, to demonstrate that the order of transfer had become necessary on account of the urgent need felt by the Company to fill up the vacancy that had occurred on account of the retirement of the Officers manning the Calcutta Office.
4. The power to transfer an employee is a potent weapon which the management wields. The exercise of that power carries with it a certain amount of discretion, as to who should be posted where and when. What is important is that neither thepower nor the concomitant discretion can be exercised for a purpose other than the one for which it is vested. Public authorities who constitute the repository of powers vested in them, hold such powers in trust, which they are supposed to exercise only for the purposes for which they are entrusted. Law does not recognise 'Absolutes' whether the same be in terms of power or the discretion vested in a public functionary. The very concept of an absolute power or discretion is an anathema to Article 14. No one can say that since he has the power or the discretion to issue an order, he can do so howsoever capricious or irrelevant the purpose underlying the same may be. The observations made by the Supreme Court in E.P. Royappa v State of Tamil Nadu and Another, are in this regard apposite.
'Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16'.
To almost the same effect are the observations made in Kumari Srilekha Vidyarthi v State of Uttar Pradesh and Others, where the Court extracted with approval from Wade's Administrative Law, 6th Edition, the following passage:
'The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.
There is nothing paradoxical in the imposition of such legal limits. I would indeed be paradoxical if they were not imposed. Nor is this principle an oddity of British or American law; it is equally prominent in French law. Nor is it a special restriction which fetters only local authorities; it appears no less to ministers of the crown.
Nor is it confined to the sphere of administration; it operates wherever discretion is given for some public purpose, for example, where a Judge has a discretion to order jury trial. It is only where powers are given for the personal benefit of the person empowered that the discretion is absolute. Plainly this can have no application in public law.
For the same reasons there should in principle be no such thing as unreviewable administrative discretion, which should be just as much a contradiction in terms as unfettered discretion. The question which has to be asked is what is the scope of judicial review, and in few special cases the scope for the review of discretionary decisions may be minimal. It remains axiomatic that all discretion is capable of abuse, and that legal limits to every power are to be found somewhere'.
(emphasis supplied)
The power to review an order of transfer is not immune from the rigors of the principles enunciated in the above decisions. It may in certain situations become necessary for the Court to tear the veil of innocence in which an order of transfer may be couched to find out whether the ostensible object behind the order is also the real purpose underlying the same. A fortiori the Court may examine whether the order of transfer has been actuated by any malice or intent to punish the employee. And should the Court's examination reveal that any extraneous considerations or oblique motives were at play in the making of the order, it would be legitimate for it to interfere. The fact that the order correctly recites the conditions precedent to the exercise of the power, of transfer does not debar the Court from considering whether those conditions actually existed and whether the authority concerned had applied its mind to the same. So also the absence of such recitals in an order would not per se invalidate the order or lead to a presumption that the order has been passed without such conditions having been satisfied. What is essential is that the conditions justifying a transfer should exist, and be demonstrable from the record and not whether the same have been recited in the order to perfection. That is because the requirement of recording reasons behind an administrative decision arises only if the decision affects any vested right of the citizen. Since administrativedecisions affecting civil rights are amenable to judicial review, Courts have recognised the need to state the reasons behind such decisions to effectuate the process of judicial scrutiny. Ample support for this view is available from the decision of the Supreme Court in Union of India and Others v E.G. Nambudiri, where the Court declared the legal position as under:
'The question is whether principles of natural justice require an Administrative Authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensure, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the Administrative Authority to record reasons for the decision as there is no general rule that reasons must be given for administrative decision. Order of an Administrative Authority which has no statutory or implied duty to state reasons or the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given for decisions -- Regina v Gaming Board for Great Britain, ex p. Benaim and Khaida. Though the principles of natural justice do not require reasons for decision, there is necessity for giving reasons in view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the rights of a citizen, it is therefore desirable that reasons should be stated.
There are however, many areas of administrative activity where no reasons are recorded or communicated, if such a decision is challenged before the Court for judicial review, the reasons for the decision may be placed before the Court. The superior authority while considering the representation of a Government servant against adverse remarks, is not required by law to act judicially, it is under no legal obligation to record or communicate reasons for its decision to the Government servant. The decision, rejecting the representation does not adversely affect any vested right of the Government servant nor does it visit him with any civil consequences'.
5. Coming then to the crucial question whether the transfer order is vitiated by mala fides, it is pertinent that the petitioner's case rests entirely on the plea that the proposal to sell the Indiranagar quarters in the occupation of the employees of the Company was contrary to the rehabilitation scheme sanctioned by the BIFR, and that since the petitioner had taken the issue to the Court the Company was displeased with him, resulting in an order of his transfer to Calcutta as a measure of punishment more than in the interest of the affairs of the Company. The scheme sanctioned by the BIFR and the resolutions passed by the Board of Directors of the Company do not however support this contention. The scheme nowhere restricts the right of the Company to transfer its assets in order to raise additional funds essential to meet the rehabilitation programme. All that the scheme records is that the Financial Institutions had agreed to clear their charge over the Company's land proposed to be sold off so as to offer clear title to the buyers. It also records the agreement of the State Government to grant necessary permission to the Company to sell off its surplus assets; and to meet the shortfall if any in the sales realisation from such assets. Pursuant to the scheme the Company's Management Committee in its meeting held on 14-11-1996 noted that the rehabilitation package envisaged a resource mobilisation of Rs. 127 crores, out of which only the sale of excess land was expected to fetch around Rs. 114 crores, leaving a balance of Rs. 13 crores which the Company had decided in terms of the resolution of the Board of Directors dated 29-3-1996, to raise by sale of the quarters at Indiranagar; nineteen out of which were vacant and available for immediatetransfer. Prima facie therefore, there is nothing to show that the Company was committing any illegality in selling the quarters, with a view to raising additional financial resources to meet the demands of the rehabilitation programme. So also, it is difficult to hold that just because the association of the employees had filed writ petitions challenging the proposed sale of the quarters, the petitioner who was one of those comprising the association was singled out for any punitive action in the garb of a transfer order. It is noteworthy that there is no allegation of any mala fides against any functionary of the Company, although the petitioner has made an application to implead Smt. Theresa Bhattacharya, the Chairman and Managing Director of the Company as a party respondent. Since however no clear or specific allegations of bias, or malice are made against the proposed respondent, it is wholly unnecessary to implead her as a party to these proceedings in her personal capacity. Allegations of mala fides are more easily made than proved. In order that the Court may enquire into any such allegations the same must be supported by the requisite particulars. Repetitive assertion that the order under challenge is mala fide does not suffice; nor can an action be dubbed as dishonest except on clear proof thereof -- Barium Chemicals Limited and Another v Company Law Board and Others .
6. Apart from the fact that the challenge mounted by the petitioner appears laconic on closer scrutiny, the respondent-Company has advanced a fairly sound justification for the petitioner's transfer to Calcutta. It is pointed out that one Sri V.C. Nayar, Senior Manager (Commercial) was placed in-charge of the Calcutta Sales Office of the Company. On Shri Nayar's retirement in April 1995, Shri C. Subramaniya Iyer was put in-charge as Divisional Manager (Commercial), Shri Subramaniya Iyer having retired from service on 31-3-1997, the Regional Officer at Calcutta and the Executive Director (M) had requisitioned the services of a Commercial Manager to take charge of the Calcutta Sales Office of the Company. It was in response to the above requisition that the Company decided to transfer the petitioner to Calcutta to take charge of the Sales Office there. These, facts have not been disputed by the petitioner. What was argued by Mr. Subbarao was that the petitioner ought to have been promoted to the next higherposition and then shifted. That was according to the learned Counsel the past practice also. It is however difficult to appreciate how an order of transfer which has a reasonably transparent basis can be held to be mala fide or bad only because, the same is not accompanied by a simultaneous promotion of the incumbent. That is particularly so where the Company is struggling to resurrect itself out of a state of industrial and financial sickness, by sale of its assets. There is even otherwise nothing to show that any substantive vacancy in the next higher cadre exists or that the respondent is denying the promotion to the petitioner for any mala fide reasons.
7. There is no merit in this writ petition which fails and is accordingly dismissed but in the circumstances without any orders as to costs.