ORDER
1. In this writ petition, the petitioner is questioning an order of transfer dated 28 March 1989 issued by Sri U. V. Warlu, Managing Director of the Non-Conventional Energy Development Corporation of Andhra Pradesh Limited (hereinafter called the NEDCAP) which is a State Government company. The petitioner who is working as a Senior Mechanic in the Ranga Reddy branch of NEDCAP has been transferred and posted to Srikakulam District as Senior Mechanic to work under the control of the District Manager, NEDCAP, Srikakulam.
2. The following facts have to be stated : This petitioner was formerly employed as Assistant Mechanic in A.P. State Agro Industries Development Corporation in 1974. He joined the NEDCAP in 1985 after resigning from the Agro Industries Corporation above referred to. The petitioner is employed as a Senior Mechanic. The petitioner claims to be the General Secretary of the NEDCAP Employees Union which was formed to ventilate the grievances of the staff. The petitioner was elected as General Secretary in November, 1988. The petitioner claims that one P. Janardhana Reddy, M.L.A. was elected as President of the union. It is stated that there are differences between the management and the union. The union is said to have submitted their model standing orders in December, 1988 and the management also submitted draft standing orders. The matter is pending before the Labour Officer. In November, 1988 the union is said to have submitted a charter of demands. Several meetings were taking place between the management and the representatives of the union. The petitioner states that serious differences developed between himself and the previous Managing Director one Sri V. Bhaktavatsalam. He stated that between the petitioner and the said V. Bhaktavatsalam heated discussions took place and unparliamentary language was also used by some of the members of the management as well as the union leaders. The matter was compromised and sorted out at the instance of the union President Sri P. Janardhana Reddy, M.L.A. It is claimed that after the said compromise the petitioner in this case was transferred to Srikakulam while the petitioner in W.P. No. 5023/1989 who was also an office bearer (Joint Secretary) was likewise transferred to Adilabad. It is stated that the order of transfer is passed vindictively and amounts to an unfair labour practice and that it was done to curb the fundamental and trade union rights of the office bearers of the workers' union. It is also stated that the action is mala fide. The said V. Bhaktavatsalam has taken up a new job in Delhi since 31 January 1989 but it is stated that he still continues to be an Ordinary Director of the NEDCAP. The allegation is that the said Bhaktavatsalam attended the Board meeting in March, 1989 and insisted upon Sri U. V. Warlu, the present Managing Director to transfer the petitioner to a far-off place. It is alleged that the present Managing Director is also having similar views against the petitioner as the previous Managing Director. The NEDCAP is impleaded as the 1st respondent while the District Manager, Ranga Reddy District is the 2nd respondent and the 3rd respondent is Sri V. Bhaktavatsalm, the previous Managing Director.
3. A counter has been filed by Sri U. V. Warlu, the present Managing Director, denying the above allegations. It is stated in the counter that the union of workers had not so far asked the management as to which of the office bearers needs protection in the sense that they cannot be transferred outside Hyderabad or Ranga Reddy District. It is stated that on 25th November 1988, during a meeting, the petitioner suddenly raised his voice against the previous Managing Director Sri V. Bhaktavatsalam, without any provocation and abused and used unparliamentary language against him. It is stated that the petitioner also threatened to manhandle and kill the Managing Director and that therefore on 26th November 1988 the said V. Bhaktavatsalam lodged a complaint before the Station House Officer, Humayun Nagar Police Station, Mehdipatnam. F.I.R. was registered on 26 November 1988. The petitioner is named as the accused under Section 353, I.P.C. in Crime No. 310/88. A charge-sheet has also been filed before the 9th Metropolitan Magistrate against the petitioner on 20th February 1989. Again on 15th December 1988 the petitioner had allegedly beater one of trainees working in the branch office of Ranga Reddy District and also allegedly tried to press the neck of the trainee Sri Ch. Ramchander. The said Ramchander gave a complaint to the previous managing Director. Subsequently, for reasons not known the said Ramchander had withdrawn the complaint. The third incident alleged against the petitioner threatened him Ramalinga Reddy, District Manager, Cuddapah had complained has been working in that branch on telephone while the former was trying to speak with the Manager (Finance and Accounts). And fourthly the District Manager, Ranga Reddy had given a report to the Managing Director stating that the petitioner has been working in that branch since 1984 and was not attending to official work and was unauthorisedly attending to other work. It was alleged in that report that the petitioner was disturbing the office working conditions by using unparliamentary language against the District Manager and the office staff. The Administrative Officer has also submitted a not to the Managing Director mentioning the above conduct of the petitioner. The matter was placed before the Board of Directors on 20th March 1989 and after obtaining the approval of the Board the Managing Director had two alternatives viz., either to suspend the petitioner from service or to transfer. Then the impugned order of transfer was passed. It is also to be noted that even according to the correspondence there was a compromise dated 22nd December 1988 between the petitioner and the respondent company in which it is recorded that the petitioner apologises his conduct and the Management decided to admonish the petitioner for his misbehaviour in respect of the actions prior to 22nd December 1988.
4. The petitioner filed rejoinder in which there is no specific denial of the proceedings dated 22nd December 1988 of the management relating to the apology of the petitioner and the admonition issued to him by the respondent. He merely stated that an Advisor to the Union had replied by letter dated 2nd January 1989 that there is no misbehaviour on the part of the petitioner and that the petitioner never manhandled the Managing Director. As the issue was dropped, the petitioner, it is alleged, thought that the criminal case against him was withdrawn. It is stated that the complaint made by Ramchander is false and that even the complaint of Sri K. Ramalinga Reddy, District Manager, Cuddapah is false. It is alleged that the petitioner is properly attending to the criminal case duties. The Managing Director is said to have given a personal letter appreciating the petitioner's work. On account of the transfer the petitioner is precluded from attending to the criminal case as well as to defend the disciplinary action, if any, taken in future. The management cannot think of suspending the petitioner as the charges have been dropped. The transfer is not on administrative grounds. The circulation of the order of transfer to all the sections of the employees is not bona fide.
5. Before adverting to the validity of the impugned order of transfer, I shall refer to the powers of Court under Art. 226 to interfere with an order of transfer passed by the State or authority in respect of its officers. The Supreme Court has had occassion to deal with the question in several cases. In E. P. Royappa v. State of Tamil Nadu (1974-I-LLJ-172) it was held that the Government has power to transfer an officer from one post to another post which may not give him the same amplitude of powers. But that does not make the transfer arbitrary. In K. B. Shukla v. Union of India 1979 (2) SLR 58 (SC) the Supreme Court held that if the employer opines that the transfer is in the exigencies of service, the said opinion, being based on the subjective satisfaction of the employer, the court cannot go into the propriety or sufficiency of such opinion. It has again been reiterated in Shanti Kumari v. Regional Dy. Director, H. S., Patna (1981-II-LLJ-312) that the Courts cannot interfere with a transfer made due to exigencies of service or due to administrative reasons and that when the petitioner did not choose even to make a representation, a writ petition was not maintainable. However it has also been held in V. S. Sastry v. Government of Andhra Pradesh 1980(1) SLR 884 (A.P.) that if the subjective satisfaction is based on irrelevant and non-existent or extraneous grounds, the order of transfer can be declared to be bad. Again in P. Krishna Rao v. A. P. Co-operative Central Agrl. Development Bank Ltd. (1984-LLJ-475) it was held that the transfer of an employee for his trade union activities amounted to victimisation and mala fide exercise of power. In that case the learned Judge held that the petitioner who was contesting for the office of Vice-President of the Union was transferred to Adilabad a fortnight before the elections and another office-bearer was transferred to a distant place after the elections and a third was suspended. Four others who supported the above persons were also transferred out. It was therefore held that the plea that the transfer was arbitrarily resorted to was made out. Reference in that connection was made (1984-I-LLJ-475 at 483) to the following observations of the Supreme Court judgment in Syndicate Bank Ltd., v. The Workmen (1966-I-LLJ-440 at 442).
'It is true that if an order of transfer is made male fide or for some ulterior purpose, like punishing an employee for his trade union activities, the Industrial Tribunals should interfere and set aside such an order of transfer, because the male fide exercise of power is not considered to be the legal exercise of the power given by law'.
A reading of the judgment of the learned Judge however shows that there were no allegations regarding the conduct of the petitioner in that case and it was held that the management tried to interfere with the elections in the union.
6. It is true, as pointed out by the Supreme Court in Syndicate Bank case (supra) and as pointed out by the learned Judge in P. Krishna Rao's case (supra), a transfer of an office bearer of a Trade Union made solely to prevent him from participating in 'trade union activities', could be interfered with if such a contention is proved.
7. But, in my view, the said trade union activities must be 'legitimate' activities in the interests of the Trade Union. An office bearer cannot under the guise of trade union activities try to blackmail or coerce the employer to act according to his dictates or threaten to do physical harm to the officers or co-employees and still claim special privileges regarding transfer. Otherwise, legal principles enunciated to prevent an unfair labour practice or victimisation are likely to be abused by not allowing the employer to exercise his managerial rights in relation to the service conditions or management of the industry.
8. The next question is as to the tests to be applied in such cases to find out the validity of the order of transfer.
9. In this connection, the Courts have laid down several broad principles for judging whether an order which is innocuous on its face can be said to be by way of punishment. The said principles have been applied not only to cases of termination simpliciter, but also to cases of transfer. In Ajaykumar v. State of Bihar, 1984 (1) SLR 742 (Patna) the court considered whether certain complaints and allegations against the petitioner which were the cause for the transfer were the motive of foundation for the transfer. If it was merely a motive and not the foundation, the transfer order could not be treated as being in the nature of punishment. The earliest Supreme Court case which dealt with this aspect of the matter is the case in State of Bihar v. Shiva Bhikshuk Mishra (1970-II-LLJ-440). These principles were reiterated by the Supreme Court in Shamsher Sing v. State of Punjab, (1974-II-LLJ-465) which is a judgment of the seven learned Judges. Subsequently, these cases were again reiterated and followed in State of U. P. v. Bhoop Singh : [1979]2SCR1026 by R. S. Pathak, J (as he then was) and A. P. Sen, J.
10. The distinction between 'motive' and 'foundation' was elaborated in great detail in Gujarat Tubes Ltd. v. Its Mazdoor Sabha (1980-I-LLJ-137). In that Case, Krishna Iyer, J held (paras 54 and 55) that 'when the master is 'satisfied' of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if the order is innocuous. On the contrary, when the employer only 'suspects' the misconduct but does not make an effort to go into his guilt but only feels like not keeping a man with whom he is not happy, and with respect to whom he does not like to make an inquiry, there is only a motive-a subjective feeling in the mind. All that he thinks is that he should not continue a dubious servant. In that case, it is not a dismissal but termination simpliciter.' On the same lines as the decision of the Supreme Court, is the decision of another Division Bench of this Court, consisting of Sambasiva Rao, J (as the then was) and Jayachandra Reddi, J in Vice Chancellor, Andhra University v. Venkataratnam (1976) 2. An. WR. 231. These decisions where referred to by me in a Division Bench case in Singareni Collieries Co., Ltd. v. Dr. Raghuram (1948-I-LLJ-531).
11. From the aforesaid decisions of the Supreme Court and this Court, it is clear that an order of transfer should be treated as an order of punishment though, on the face of the order, the order appears to be innocuous provided that the allegations or the conduct of the officer was the foundation for the transfer and not a mere motive. The allegations could be said to be the foundation for the order if the record of the case reveals that, before issuing the order of transfer the employer came to a conclusion about the truth of the allegations against the employee and then issued the order of transfer. However, if the employer merely noted the allegations and did not want to go into the truth of the said allegations and thought that it would be better if the officer is transferred, it could not be said that the allegations are the foundation for the order of transfer. In such a case, the allegations were a mere motive for the transfer.
12. Applying the above test to the facts of the present case, it will be noticed that there were certain allegations against the petitioner and after the intervention of the local M. L.A. there was a meeting and the respondent passed an order dated 22nd December, 1988 recording the fact that the petitioner expressed regret for his conduct and therefore the management decided merely to admonish the petitioner for his misbehaviour and gave him a warning to be careful in future, instead of taking further action. In other words, the inquiry came to an end when the petitioner admitted his guilt and was let-off with a very minor punishment of warning. It is therefore clear that the threat of the petitioner made to the managing Director to kill him etc., must be deemed to have been accepted by the petitioner and he was let-off with a minor punishment and the matter ended there. Though the learned counsel for the petitioner tried to attack this proceeding of the management dated 22nd December, 1988, neither in the affidavit nor in the rejoinder the petitioner had stated that the contents of this proceedings are make-believe and are not true. Except to say in the rejoinder that the Adviser wrote a letter dated 2nd January, 1989 stating that there was no misbehaviour on the part of the petitioner, no averment has been made by the petitioner in the pleadings to question the correctness of the contents of the abovesaid letter.
13. From the aforesaid facts, it is clear that whatever disciplinary action that the Management wanted to take, came to an end with the warning given to the petitioner and the matter was closed as long back as on 22nd December, 1988. Subsequent action of the management under the impugned order dated 28th March, 1989 cannot be judged in the context of certain allegations which had resulted in a punishment and which came to an end earlier. Under those circumstances, the impugned order is clearly administrative in nature and is an exercise of managerial function, and cannot be said to be punitive. It cannot also be said there is any nexus between the order of punishment of 'warning' which brought an end to the disciplinary matter and the transfer.
14. I have already held that merely because the petitioner is an office bearer of the Union, he cannot claim total immunity from transfer.
15. The learned counsel for the petitioner, however, referred to the decisions in the following cases : Partap Singh v. State of Punjab (1966-I-LLJ-458); K. K. Jindal v. G. M. Northern Railway 1986 (2) SLR 69 (Cal); P. Pushpakaran v. Chairman, Coir Board (1979-I-LLJ-139); P. Krishna Rao v. A. P. Co-op Central Agrl. Development Bank Ltd. (supra); and C. Ramanathan v. A. Z. M., F.C.I. Madras (1980-I-LLJ-1); and also to the provisions of Schedule V of the Industrial Disputes Act, relating to unfair labour practices. The first decision relied on by the learned counsel for the petitioner deals generally with the bona fide exercise of power and has no direct bearing on the case on hand. The second decision relates to an office-bearer of a Union. But, in that case, the respondents admitted in the counter clearly giving the reasons for the order. The counter clearly showed that the allegations against the employee were the foundation for the order and not the mere motive. The other cases also merely dealt with general principles as to when an order could be said to be punitive and not directly in point. Ultimately, the court has to judge an order of transfer with regard to the particular facts of a case, bearing in mind the general principles. Therefore, these cases are distinguished.
16. Further, the plea of mala fides has also to fail because of the fact that the previous Managing Director ceased to be the Managing Director of the Company from 31st January, 1989 and has gone away to Delhi. He merely continued as a Director. The impugned order is passed by another Managing Director on 28th March, 1989, and no mala fides have been attributed to the present Managing Director, who passed the order and he has not been impleaded in his personal capacity. The contention that the previous Managing Director continues to be the Director and attended the meeting and influenced the present Managing Director cannot be accepted.
17. For the aforesaid reasons, I hold that the impugned order of transfer is passed purely in exercise of administrative powers and is neither mala fide nor based on irrelevant grounds. The contention that though the order is innocuous the court can go behind the order and find out whether it is by way of punishment is accepted by me, but on facts, I find that the order of transfer is not by way of punishment. The warning given to the petitioner earlier brought and end to the disciplinary enquiry, if any proposed. The warning given to the petitioner earlier brought an end to the disciplinary enquiry, if any proposed. The petitioner admitted his guilt as recorded in the order of the management dated 22nd December, 1988. Subsequently, the management merely exercised the power of transfer on the managerial side. It is true, that the petitioner is an office-bearer of the Union. But, under the guise of union activities, no office-bearer has a right to threaten to kill the Managing Director. (In view of the regret expressed, this fact must be taken as admitted). That is not a legitimate trade union activity. If a trade union leader conducts himself in the abovesaid manner, it cannot be said that it is a legitimate trade-union activity which can be countenanced or tolerated by the management. Such office-bearers of trade unions who consider themselves to be in a privileged position, cannot be extended any privilege from being transferred, and this Court in exercise of its powers under Art. 226 of the Constitution of India, cannot encourage any such unbecoming or militant attitude by office-bearers of trade unions against the management. After going into the matter deeply and giving my anxious consideration, I am of the view that the present case is one which does not require any interference by the court under Art. 226 of the Constitution of India.
18. For all the aforesaid reasons, the write petition is dismissed, but in the circumstances, without costs.