ORDER
Faizanuddin, J.
1. In this petition under Article 226 of the Constitution, the petitioner No. -Shri Ram Pratap Singh (for short R. P. Singh) who is the President of petinoner No. 1 and also an Executive in Bharat Heavy Electricals Limited (for short BHEL), a Public Sector Government of India Undertaking, have assailed and called in question the inter-unit order of transfer of petitioner No. 2, dated 14th July, 1989 (Annexure A-4) passed by the Competent Authority, respondent No. 2 herein, and seek a direction to quash the same.
2. The Bharat Heavy Electricals Limited, a Public Sector Government of India undertaking, is a Company registered under the Companies Act, 1956, having its registered headquarter at New Delhi. It was established in 1956 and at present it is the largest Engineering and Manufacturing enterprise of its kind in India with 13 Manufacturing plants and about 100 project sites spread over throughout the country. BHEL, Bhopal is one of the units of this Company which employs more than 18,600 employees out of which about 2100 are executives at different levels. Shri R. K. Saraf is the present Executive Director (Respondent No. 2). of Bhopal Unit of BHEL, while the petitioner No. 2 Shri R. P. Singh is one of its executives posted as Deputy General Manager (DGM) in Tools and Gauge Division (TGD) BHEL, Bhopal.
3. The petitioner No. 1 is an Association formed by the BHEL Executives, Bhopal Unit which is registered under the M. P. Registration of Societies Act, 1973 and the petitioner No. 2 R. P. Singh is its present President. Amongst others, one of the aims and objects of the petitioner Association is to safeguard and promote the service interests of the members of the Association as well as to apprise the BHEL Management with the views of the Executives on various policy matters of mutual interest and bringing greater productivity and cordial relations between the Management and members of the Association.
4. The petitioners have alleged that a High Power Committee headed by Mr. Justice R. B. Mishra, a former Hon'ble Judge of the Supreme Court was constituted to go into the question of revision of pay of the Executives of the Central Government, Public Sector Undertakings governed by Central D. A. Pattern, which gave its recommendations long back but the same are not implemented as yet and, therefore, with a view to impress upon the Government of India to implement the recommendations in respect of revision of pay scales etc. the Executives of all Public Sector Undertakings, including BHEL, Bhopal unit, lodged protests by putting on black badges, holding rallies and dharnas. The National Confederation of Officers' Association of Central Public Sector Undertakings gave a call for Mass casual leave on 11th July, 1989 and a rally of Executives was also organised at various places in the country, including Bhopal, at the instance of the petitioner No. 2 as President of Petitioner Association. Under the leadership of its President (R. P. Singh, petitioner No. 2) rallies were also held at Bhopal on 5th, 6th, 8th and 10th July 1989 demanding implementation of recommendations of the said High Power Committee for the Executives of BHEL, Bhopal. According to the petitioners due to the aforesaid activities of the petitioner Association of which the petitioner No. 2 R. P. Singh is the President, the Executive Director of BHEL, Bhopal (Shri R. K. Saraf) got annoyed and felt humiliated and took a serious view of the incident of mass casual leave and protest programmes held at Bhopal under the leadership of petitioner No. 2 (R. P. Singh) and, therefore, with an object to destabilise and weaken the Association, the Executive Director passed the impugned order dated 14th July, 1989 (Annexure A/4) transferring the President of the Association Shri R. P. Singh, the petitioner No. 2, from the post of Deputy General Manager Tools and Gauge Division to the post of Deputy General Manager Productivity and Suggestion Scheme Division. According to the petitioners, the transfer of. petitioner No. 2 was protested by 42 Executives of the Tools and Gauge Division as well as by the General Body of the Petitioner Association and the whole Press, vide Annexures A/6, A/7 and A/8. The allegation of the petitioners is that in fact there is no transfer policy of the Company at all and the impugned order of transfer is capricious, arbitrary and mala fide actuated with a view to victimise and punish the petitioner No. 2 for his aforesaid activities relating to the rallies and mass casual leave etc. under the banner of association to press the implementation of recommendations of the High Power Committee and, therefore, seek quashing of the said transfer order.
5. The respondents in reply to the show cause notice submitted their common return refuting all the adverse allegations made in the petition. It has been stated that in the Company, every year 25th June is fixed as the Standard date for promotions to all categories of employees. As usual, this year also about 3136 promotions have been made in all categories. Due to the promotions a relook is made on the organisational structure based on administrative considerations, both at unit level as well as on Company level, with reference to target output for the year and having regard to this background the organisational, structure was redrawn. Inter-unit transfers and internal readjustments and redesignations are made to suit the new organisation structure for the year. In this process the departments which need strengthening are identified and given emphasis accordingly. It has been stressed by the respondents that the transfers in the Company are governed by its policy (Annexure R-I) the relevant part of which runs as under:
Transfer Policy
'Every employee of the Company is liable for transfer from one department/section/job within the same unit/division or from one unit/division of the Company to another or from the Company to any other Government Department/Public Sector Undertakings as and when required by the Company at the discretion of the Management.'
6. The respondents have further stated in their return that this year also after the promotion orders were issued, the functional organisation structure of Bhopal Unit was re-drawn, and as per Part-I Office Order No. 19/89 dated 14-7-1989 (Annexure R.II) it was implemented with immediate effect. It has been further emphasised that a similar exercise has been done all over the Company with a major reshuffle and suitable executives have been positioned to get the target output and, therefore, intra-unit and inter-unit transfers have been made to achieve this objective. It is stated that two Executives of AGM/D.G.M. level have been transferred out of Bhopal Unit, while 5 Deputy General Managers and one General Manager to the Unit and 12 DC Ms were also transferred within the Unit with the approval of the Competent Authority. The respondents have stated that in compliance of abovesaid Part-I Order, transfer Orders were issused, from 14th July, 1989 to give effect to the new organisational structure. The respondents have produced a list of 29 intra-unit transfers (Annexure R-III) comprising of G.M./A.G.M./DGMs and Senior Managers, made since 14-7-1989 in which the name of petitioner No. 2 (R. P. Singh) appears at Serial No. 13, all of whom have already carried out the transfers and assumed charge at their new places except the petitioner No. 2.
7. The respondents have further asserted in their return, which has not been refuted by the petitioners in their rejoinder that the transfer of an employee does not affect his career prospects at all as BHEL has a career based promotion policy. In other words, a time bound promotion according to which an executive is eligible for consideration to next higher grade on completion of eligibility period and the same is not linked with the vacancies. The performance of an Executive is assessed against the set-targets. Thus the transfers do not at all prejudice the career prospects. All departments are of equal importance and the executives are interchangeable and every year reshuffle is made at all levels including the level of Executive Directors.
8. The respondents have categorically denied that rallies and demonstrations demanding wage revision were held at Bhopal on 5th, 6th and 8th July 1989 under the leadership of the petitioner No. 2 (R. P. Singh) as he was not even at Bhopal but at Delhi from 2-7-1989 to 9-7-1989 in connection with his training programme, vide Annexure R. IV. It is also vehemently denied by the respondent No. 2 supported by his personal affidavit that he was angry or felt humiliated on account of activities of the Association because the respondent No. 2 has no role in the matter of implementation of recommendations of pay revisions which is entirely the discretion of the Central Government. In any case, the demand for pay revision will not vanish by mere transfer of the petitioner No. 2 who is President of Association, from one post to another equivalent post in same unit.
9. Further, the respondent No. 2, the Executive Director has denied, supported by his personal affidavit, that the transfer of petitioner No. 2 is motivated with any intention to victimise him for his association activities or that it is based on mala fides. In the affidavit filed by the Executive Director, the respondent No. 2 Shri R. K. Saraf, while denying the allegations of any ill-will, victimisation and mala fides on his part, it has been stated that it is only routine transfer and that the shifting of the petitioner No. 2 from Tools and Gauge Department to Productivity and Suggestion Scheme Department within the Unit itself is based on Organisational needs, administrative expediencies, commercial interests, business considerations and exigencies of services.
10. Learned counsel for the petitioners addressed us quite at length contending that the petitioner No. 2 (R. P. Singh) is one of the finest and able Deputy General Managers of the respondent Company with an excellent tract record to his credit having performed a commendable job in Tools and Gauge Division since he was posted in that Division on 20th July 1988 and during his tenure in that Division in the year 1988-89 the Production touched new heights under his able leadership and it was for this reason that 42 executives of Tools and Gauge Division, as well as the General Body of the Petitioner Association and the Press all protested against the transfer of the petitioner No. 2 to the Productivity and Suggestion Scheme Division. Learned counsel for the petitioners strenuously urged before us that despite the aforesaid facts, the Executive Director of the Company Shri R. K. Saraf, the respondent No. 2 herein, developed a very strong prejudice against the petitioner No. 2 on account of his leadership of Association as its President and, therefore, with an object of victimisation and with a view to break the back-bone and strength of the petitioner Association, the respondent No. 2 on colourable exercise of his power passed the impugned order of the transfer which is not based on sound and reasonable exercise of his discretion or on the basis of any administrative exigencies or public interest but the same is capricious and arbitrary, based on personal prejudices and mala fides. In aid of his aforesaid arguments he sought to take support from the decisions in Achyutananda Behera v. State of Orissa, 1985(2) S.L.R. 16 (Orissa), B. Varadha Rao v. State of Karnataka, AIR 1986 SC 1955, Umeshchand Tiwari v. State of U.P., 1988 (I) S.L.R. 409 (All.) and S.V. Singh v. Union of India, 1988 (2) S.L.R. 545 (Cal.). Some other decisions on the point of exercise of discretionary powers were also cited at the Bar; but we do not feel it necessary to refer the same.
11. There can hardly be any two opinions that if the transfer is not a routine transfer and the power of transfer is not exercised in public interest and on administrative exigencies but it is abused being based on colourable exercise of power such as, tainted with malice or motive or based on collateral purposes with oblique motive or at the behest of an outside or extra-legal agency or authority or on political considerations and mala fides then such an order of transfer would be vulnerable and open to challenge as colourable exercise of powers. In such circumstances, the High. Court, in exercise of its power under Article 226 of the Constitution may, investigate through the documents, if any, filed by the parties and crack the shell to see for itself as to the factual aspects and the existence of any such thing by reason of which the order of transfer may be said to be illegal and mala fide. In nutshell, this is what has been laid down in all the decisions referred to above and relied on by the learned counsel for the petitioners.
12. But the fact may not be lost sight of that in the absence of malice, mala fides and colourable exercise of power, the transfer of a Government servant or an employee of a public sector undertaking who is appointed to a particular cadre of transferable post from one place to another is an ordinary and normal incident of service and, therefore, it does not amount to any change of the service conditions to his disadvantage and the employee has no legitimate right to claim his posting at a particular place or at the place of his choice and that being so he is liable to be transferred to a similar post in the same cadre unless his appointment is to a specified non-transferable post. In a recent decision, the Supreme Court in Gujarat Electricity Board v. Atmaram, AIR 1989 SC 1433, observed in paragraph 4 of the report as under:
'Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government Servant or employee of. Public Sector Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to the other is necessary in public interest and efficiency in the public administration.'
13. Again, in the Union of India v. H.N. Kirtania, (1989) 3 SCC 445, it has been observed that transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless of course, there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory Rules or on the ground of mala fides. But so long as the transfer is made on account of the administrative exigencies and it is not made from a higher post to a lower post with discriminatory preference, it would be valid and not open to attack on ground of mala fides or victimisation. See E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555. Here it may, however, be pointed out that an employee must be protected from victimisation but a conclusion as to victimisation or even mala fides should be drawn only where there is evidence to justify it and such a conclusion should not ordinarily be made either in a casual manner or light heartedly, because it is settled law that the burden of establishing a mala fide transfer like any other allegation of mala fide is very heavy on the person who alleges it. See, the decision in the case of Achyutananda Behera v. State of Orissa (supra).
14. In the light of the legal position discussed above, it has to be seen whether the petitioners have been able to make out a case for interference by this Court, in the matter of transfer of petitioner No. 2 on the basis of the contentions regarding victimisation and mala fides. As seen earlier the petitioner No. 2 is governed by the transfer policy as per Annexure R-I, the relevant part of which is reproduced in paragraph No. 5 of this order which clearly and in unequivocal terms confers a discretionery power on the Management to transfer any employee of the Company as and when so required by the Company. The short question, therefore, that arises for our consideration is, whether the order of transfer Annexure A/4 dated 14-7-1989 transferring the petitioner No. 2 from one Division to another in the same Bhopal Unit of BHEL is an act of victimisation and consequently mala fide because as alleged the Executive Director respondent No. 2 was highly prejudiced, unhappy and felt humiliated on account of the activities of the petitioner No. 2 by holding rallies on 5th, 6th, 8th and 10th July, 1989 and encouraging employees and other Executives to go on mass casual leave on 11th July, 1989 in order to press the implemention of wage revision.
15. It is difficult to accept these submissions for the simple reason that the respondent No. 2 himself was to be benefited by the said revision of pay scales if accepted by the Government of India and secondly the petitioner No. 2 can hardly be said to be the person responsible for mustering the rallies that were held at Bhopal on 5th, 6th, 8th and 10th July, 1989, as the petitioner No. 2 was not at Bhopal on those dates but he was away at Delhi in connection with his training programme as would be evident from the document on record, vide Annexure IV which fact has not been disputed by the petitioners. The credit thus does not go to the petitioner No. 2 for holding the rallies etc. Thirdly, if at all the respondent No. 2 was prejudiced with the petitioner No. 2 on account of his activities relating to the petitioner Association, what prevented the Executive Director and Management to see that the petitioner No. 2 is transferred to any other unit outside Bhopal instead of shifting him only from one Division to another within the same Bhopal unit of BHEL. If the intention of the respondent No. 2 by shifting the petitioner from one Division to another was to thwart his activities in the affairs of Association, how that objective could be achieved by shifting him within Bhopal unit itself. It could not, therefore, be regarded as a solution for the problem if at all it was a problem for the Executive Director, by transferring only within the unit. This apart, it is not only the petitioner No. 2 who has been singled out in the matter of transfer or shifting from one Division to another but there are as many as 29 Executives who have been transferred by order dated 14-7-1989 vide Annexure R-III in which the name of the petitioner No. 2 Shri R. P. Singh figures at Serial No. 13. It is worthy of note that all the Executives except the petitioner No. 2 have already joined their new places of postings. In the circumstances discussed above, it is manifestly obvious that the transfer of the petitioner No. 2 is a routine transfer and the allegations of victimisation and mala fides are only based on surmises and conjectures which do not warrant any interference by this Court as no case for unreasonable or wrong exercise of the discretion is, made out at all.
16. Learned counsel for the petitioners invited our attention to the two letters dated 14-7-1989 and 17-7-1989 purporting to have been addressed by the petitioner No. 2 to the respondent No. 2 Shri R. K. Saraf and took us through the contents thereof with the purpose of giving semblance of truth and lending colour to allegations of prejudice and mala fides on the part of respondent No. 2 against the petitioner No. 2 which according to the petitioners, motivated the Executive Director to pass the impugned order of transfer. The first letter dated 14-7-1989 makes a reference of certain conversation between the respondent No. 2 and some Press Reporter on 11-7-1989 making some allegations about the activities of the petitioner No. 2, and in the second letter dated 17-7-1989 some statements are quoted to be the words of from the mouth of respondent No. 2, personally made to the petitioner No. 2. But we are not inclined to accept that these two letters referred to above contain the true version of what exactly transpired between the respondent No. 2 and the unknown and un-named Press Reporter who conveyed the same to petitioner No. 2, as well as the direct talk of the petitioner No. 2 with Shri Saraf, for two reasons. Firstly, it is difficult to accept that the petitioner would remember verbatim, word by word and reproduce the same with exactitude and secondly, because the statements in these letters are not testified by the petitioner No. 2 to be true by filing his own affidavit in support of the allegations. In fact the petitioner No. 2 has not filed any affidavit of his own in support of any of the allegations made in this petition. Besides, the contents in the two letters ascribed to be the statement of the respondent No. 2, the same do not lead to an irresistible inference that the respondent No. 2 entertained and nourished any prejudice against the petitioner No. 2 Such an inference would be possible only when the language in the two letters is stretched to an unreasonable extent.
17. It has to be remembered that merely because the relations between the petitioner No. 2 and the Executive Director, the respondent No. 2 were supposed as not to be cordial as the petitioner No. 2 R. P. Singh is the President and an active worker of the Association of the Executives; but this fact by itself would be no evidence to establish the allegation of victimisation, prejudice and mala fides because if that were so, it would lead to hazardous results meaning thereby that the office bearers and active workers of an Association or a Union with which the employer or the Competent Authority is not happy, would be at liberty to commit any sort of disorder, disobedience and any misconduct and get away with it only on the ground that relations between the employer or the Competent Authority and the Association or the Union were not good or cordial. For all these reasons, we do not find any merit or substance in the allegations of prejudice, victimisation or mala fides in the matter of transfer of the petitioner No. 2, rather his shifting from one Division to another within the same unit, and more so for the reason that it does not affect his service prospects in any manner at all. The allegations seem to be based on misunderstanding.
18. Learned counsel for the petitioners next contended that the Productivity and Suggestion Scheme Department where the petitioner No. 2 is transferred and posted by the impugned order was never headed by any person of the rank of Deputy General Manager but by a person much junior in cadre. It was also contended that the 'Productivity and Suggestion Scheme Department' has no relation or any basis with the qualifications of the petitioner No. 2 who is B. E. (Electrical Engineering) while he had an excellent record and performance in Tools and Gauge Division and, therefore, his transfer to Productivity and Suggestion Scheme Department within a year is not in public interest but without any justification and an act of victimisation simply to put the petitioner No. 2 in an insignificant side line Department.
19. We have already discussed and found that no case for unreasonable exercise of discretion or victimisation has been made out so as to invoke the writ jurisdiction of this Court under Article 226 of the Constitution. As disclosed by the respondents in their return that every year 25th June is fixed as standard date for promotions to all categories of employees and consequently this year in June, 1989 approximately 3136 employees from all categories were promoted for which the functional organisation structure of Bhopal Unit was re-drawn and the process of reorganisation and transfer commenced immediately after 25th June, 1989 and the transfer of petitioner No. 2 incidentally coincided with close approximity with the alleged act of mass casual leave at the behest of the petitioner Association and this led to the alleged misunderstanding of victimisation.
20. The respondents have denied, supported by affidavits, the allegation that the Productivity and Suggestion Scheme Department was never headed by a person of the rank of Deputy General Manager or a person junior in cadre. It has been stated that 1982 was declared as the Productivity Year by the then Prime Minister and, therefore, a Corporate Productivity Group had to be constituted at the Company Level to guide and direct the Productivity activities which has always been headed by a General Manager and is reporting directly to the concerned Director/Executive Director. The respondents have stated, that Shri K. C. Jain one of the Deputy General Managers has been holding the charge of Productivity and Suggestion Department, till 1987. Further, it has been emphasised by the respondents in the return that a number of productivity projects have been identified for each of the areas viz. Production, Purchase, Finance, Sales and Personnel Administration which earmarked the project for enhanced productivity in their respective spheres. It is further asserted that during 1988-89 there have been a total of 375, productivity projects in Bhopal Unit resulting into a net saving to the tune of 1320 lacs and this year the Productivity gains are targeted for an amount of 1373 lacs through completion of 280 projects. The productivity improvement is a continuous process in BHEL, and every year, more and more emphasis is given as the savings in the Productivity area constitute direct profits, and as such, the productivity department is required to be headed by a person having sufficient technical knowledge and administrative experience to guide the projects. Annexure R-V is a copy of the booklet on Productivity issued this year which reveals the importance of the Department.
21. Similarly, the Suggestion Scheme is also an important aspect introduced by the Company for the better production process. During the year 1988-89, it is stated that the Company developed more than 13000 suggestions against the target of 18500 for the year 1989-90. The respondents have asserted that BHEL, Bhopal is the recipient of National Productivity Award for various years and all-out efforts are being made to win this prestigious award and it is for this reason that the Productivity and Suggestion Scheme Department is required to be managed at a sufficient high level which is the practice in other Units of BHEL. In view of the facts and circumstances stated above and looking to the importance attached to it, it is not possible to accept the contention that the Productivity and Suggestion Scheme Department is an insignificant and side line Department to be headed by a person junior in cadre than Deputy General Manager. It is always the conjoint and co-ordinated efforts of all the Departments of an organisation or a Company which bring about better results and, therefore, due emphasis has to be given to all the Departments as the neglect of one is likely to jeopardise the interest of the Company and ultimately the public interest.
22. After overall consideration of the facts and circumstances of the case, we find that this tug-of-war between the Management and the petitioners, mainly the petitioner No. 2, is nothing but a futile exercise which is not conducive for the smooth functioning of different wings of the Company. It is more or less a show of strength by the petitioner Association and its components to force the Management to post a particular employee at a place of his or their choice in fact, It is the function of the Management to see which employee or its officer is best suited to head a particular branch or department of the Company and no employee or Association of employees can force the Management to abdicate its aforesaid functions and responsibilities. To us there appears to be no inequality in status of a Deputy General Manager posted as head of the Tools and Gauge Division and Deputy General Manager posted to head the Productivity and Suggestion Scheme Division. It is the primary function of the Management, In exercise of its discretion, to see that the services of the cadre officers are utilised in different posts of equal status and responsibility having regard to the administrative exigencies, by deputing the best available talent to head suitable Divisions and Departments of the Company. There can be no legitimate grievance for any hostile discrimination in transferring and posting a person from one post to another when the posts are of equal status and responsibility.
23. It may be pointed out that in multi-facet activities with which the BHEL, one of the prestigious Companies of the country, is engaged and involved, there are bound to be some posts having extensive executive powers within their fold as compared to other posts for the same cadre. There may also be certain other posts which may require high degree of intellect and specialised experience and at times there may not be too many such specialised hands available to be posted on such posts. There may also arise occasions when the Company or any other employer may have the limited choice and this choice becomes all the more difficult when some posts, though important and having onerous responsibilities, do not have at their command wide executive powers and in such circumstances, the officers may not be willing to be transferred to those posts. In such circumstances, the employer or the Company has to choose the best possible hand, keeping in view the larger interest of the administration. That being so, when in exercise of its choice, the Management transfers an employee from one post to another, the employee may feel unhappy because the new post does not give him the same amplitude of powers which he enjoyed by holding the old post. But that does not make the transfer arbitrary nor it can be branded with any mala fides so long as it is done on administrative exigencies and to subserve the public interest. In the present case, as discussed above, we feel that the impugned order of transfer (Annexure A/IV) does not suffer from any mala fides nor it can be accepted to be an act of victimisation, malice or colourable exercise of power.
24. For the reasons stated above, the petition fails and is accordingly dismissed; but without any order as to costs.