Judgment:
S. Jagadeesan, J.
1. The plaintiff in O. S. No. 39 of 1980 on the file of District Munsif, Ponneri, is the appellant herein. He was an employee since September 26, 1963, under the respondent herein. The appellant herein was transferred to a sister concern of the respondent, viz. Eveready Flashlight Company, Lucknow, by proceeding, dated June 10, 1989. Challenging the order of transfer, the suit has been filed, for declaration that the transfer order, dated June 10, 1989, transferring the appellant to Lucknow is null and void and for consequential permanent injunction restraining the defendant, respondent herein from giving effect to the said order, dated June 10, 1989.
2. The respondent filed written statement stating that the order of transfer the subject matter of the suit, was passed only on administrative ground to meet the exigencies of work. The order of transfer has already been given effect to and the appellant also joined in service at Lucknow and claimed travelling allowances also and hence the prayer for injunction is not maintainable. As there is no mala fide in the passing of the impugned order of transfer, the suit is liable to be dismissed. Further the suit is also not maintainable since the appellant had filed C.P.No. 942 of 1989, on the file of the Labour Court, Madras, alleging that by virtue of the transfer order the appellant is victimised.
3. On the above pleadings and the evidence let in by both the parties, the learned District Munsif by his judgment and decree, dated July 19, 1994, had dismissed the suit. The learned District Munsif held that the order of transfer is only on administrative ground and there is no mala fide on the part of the respondent herein in transferring the appellant to Lucknow. Further the appellant, having: joined in duty at Lucknow without any objection or protest, it is not open to him to challenge the order of transfer.
4. Aggrieved by the said judgment and decree of the Trial Court, the appellant preferred an appeal in A.S. 27 of 1994 on the file of Sub-Court, Thiruvallore. The learned Subordinate Judge also concurred with the finding of the Trial Court and dismissed the appeal by his judgment and decree, dated June 7, 1995. While dismissing the appeal, the learned Subordinate Judge made certain observations with regard to the grievances of the appellant and recommended to the respondent that the respondent may consider the retention of the appellant at the Madras office itself. Now the appellant has filed the second appeal against said judgment of the lower Appellate Court.
5. Sri T.R. Mani, the learned senior counsel contended that the lower appellate Court had held that the suit is not maintainable, as the appellant herein is the 'workman' andas such the Industrial Disputes Act is applicable. So far as this finding is concerned, the same is liable to be set aside as it is an admitted fact that the appellant is in the managerial post. So far as the relief claimed bythe appellant herein, the suit is maintainable. Apart from that, in the dispute raised before the Industrial Tribunal, the respondent took an objection stating that the same is not maintainable as the appellant is not a'workman.' On this ground also the judgment and decree of the lower Appellate Court is liable to be set aside. He further contended that as far as (sic) the validity of the transfer order is concerned, it is the case of the appellant thathe has filed the suit for declaration that theorder of transfer is null and void on the ground that the appellant had been transferred to Lucknow by way of termination of service.
6. Hence the order of transfer is a camouflage to terminate the appellant and this aspect has not been properly considered by both the Courts below. Further it is contended that the appellant was not paid the salary and virtually the appellant was placed in a no man's land as he was relieved at the Madras office and not permitted to work at the Lucknow office. Hence the judgment and decree of the Courts below are liable to be set aside.
7. On the contrary, the learned counsel for the respondent contended that there is absolutely no illegality in the judgments of the Courts below. Even assuming that the suit is maintainable, still it is for this Court to considerwhether the finding of the Courts below that the order of transfer, is due to administrative reasons can be interfered with. If no interference is called for in respect of this finding then the judgments and decrees of theLower Courts can be confirmed and the second appeal is liable to be dismissed.
8. This Court carefully considered the above contentions of both the counsel. Eventhough the lower Appellate Court has found that the suit is not maintainable, this Court is of the view that in view of the admitted fact that the appellant belongs to managerial cadre, there is no dispute that the suit is maintainable. If the question of maintainability goes, then the remaining question for consideration is whether the order of transfer is to terminate the service of the appellant. In considering this question, it may be taken note of that the appellant was superannuated as early as September 24, 1999. Any discussion and finding on the question of mala fides of the respondent in passing the order of transfer, the subject matter of the suit, no useful purpose is going to be served, as the appellant has already been superannuated. In order to give a quietus,it is necessary to give a finding on this aspect.
9. In order to substantiate his contentionthat the order of transfer is to terminate the service of the appellant and as such the same is vitiated, the learned senior counsel for the appellant submitted that even though the appellant was transferred to Lucknow, he was not permitted to join in duty there as he was not permitted to work and he was not allotted any work. He was also not paid the salary or other perquisites after joining at Lucknow office. Only on these grounds, the order of transfer is being challenged as illegal and amounts to camouflage to terminate the service of the appellant.
10. It may be pertinent to note that the order of transfer Exhibit A8 is dated June 10, 1989, and on the same day the appellant was relieved. On June 28, 1989, the appellant joined duty at the Lucknow office and claimed a sum of Rs.40,000 towards travelling allowances. When admittedly the appellant was permitted to join duty at Lucknow office and signed the attendance resister, it is not clear as to how it can be said that the appellant was not permitted to join duty at Lucknow office. It is one thing to say that the appellant was not allotted any work and it is different to plead thatthe appellant was prevented from discharging his functions. The plea on behalf of the appellant is vague. If the appellant was permitted to join duty and no work was allotted, he cannot be said to be aggrieved and he cannot challenge the order of transfer on that ground. The order of transfer can be challenged only if the appellant was not permitted to join duty in the transferred place if by virtue of the order of transfer the appellant has to join in a lower rank or in the rank of lower salary. That is not the case here. Virtually the appellant had been promoted with higher pay and he joined at the Lucknow office. The document produced by the appellant reveals that the salary had been paid to him. In this case, the plaintiff, appellant did not claim any arrears of salary and that itself is a clear proof that he was paid the salary by the respondent.
11. As rightly pointed out by the Courts below, when the appellant has joined in the Lucknow office, claiming a sum of Rs.40,000 towards travelling allowances, that too flightcharges, etc., this Court is of the view that the protest against the order of transfer is only an after thought. As already stated when the petitioner did not establish that he was prevented from'joining the duty or he wasprevented from discharging his functions, it cannot be said that the order of transfer will amount to order of termination. Hence the Courts below have rightly held that there is no mala fide on the part of the respondent inpassing the order of transfer which is the subject matter of the suit.
12. Accordingly the findings of the Courts below are confirmed and the second appeal is dismissed.
W.P. No. 10741 of 1993:
13. So far as the writ petition is concerned, it is conceded by both the counsel that the disposal of the second appeal would cover the issue involved before the Industrial Tribunal and as such no separate order is necessary and the writ petition may be closed. Accordingly, the writ petition is closed.