1. Courts of law are slow to interfere with an administrative order of an employer transferring its employee from one place to the other, if such 2 transfer is one of the terms and conditions of service of the employee concerned. It is only on limited grounds that an order of transfer could be assailed. If it is established that an order of transfer has been passed malafide, a Court may interfere. Interference could also be made if the transfer is totally contrary to statutory rules governing the same and shocks the conscience of the Court. Instances of interference, however, are few and far between in view of acknowledgement of the Courts that the employer is best suited to judge whom to transfer where so as to obtain optimal result. Interference is, by and large, by way of an exception.
2. Here, I am called upon to decide the present writ petition where validity, legality and/or propriety of an order dated March 24, 2007 issued by the Personnel Manager of Durgapur Chemicals Limited, a Government of West Bengal undertaking (hereafter the company), transferring the petitioner, a Chemical Engineer posted in the companys manufacturing plant at Durgapur, to its sales office at Kolkata as Sales Engineer, is under challenge.
3. The petition was presented before this Court on April 13, 2007. By an interim order dated April 16, 2007, the impugned order of transfer was stayed by a learned Judge and affidavits were directed to be exchanged. The respondents later on filed an application (CAN 3618 of 2008) praying for vacating the interim order. The application by an order dated July 23, 2008 was directed to be heard along with the petition.
4. The parties have since been heard extensively. I have perused the pleadings as well as other materials on record.
5. Since the petitioners service is not regulated by any statute, question of the transfer having been ordered contrary to a statutory rule does not arise.
6. Mr. Sanyal, learned advocate for the petitioner, however, asserted that malice is the foundation of the impugned order and, therefore, having regard to the facts and circumstances preceding the same, the Court ought to interfere to undo the injustice meted out to the petitioner. In particular, it is his contention that the impugned order seeks to alter the nature and character of the job of the petitioner as well as his job profile apart from jeopardizing his prospect of promotion in future. It has additionally been contended that senior officers of the company including the Managing Director were inimical towards the petitioner for his refusal to comply with orders passed by them, which he considered to be unlawful and, thus, to wreak vengeance he had been transferred.
7. Mr. Ghosh, learned advocate for the respondents, sought to justify the impugned order by referring to the terms and conditions of service of the petitioner reflected from the offer of appointment dated January 27, 1998. According to him, the company did not have any manufacturing unit or factory at Kolkata at the time the petitioner was appointed and having accepted that he is liable to be transferred to Kolkata or any other unit of the company, he cannot now raise any grievance on his 4 transfer to Kolkata on the ground that he was recruited for rendering service in the manufacturing unit/plant of the company. In support of the contention that when a post is transferable no employee has a right to remain at a particular place, he relied on the decisions in National Hydraulic Power Corporation v. Sri Bhagwan, reported in JT 2001 (7) SC 515, and State of U.P. v. Siyaram, reported in 2004 (7) SCC 405.
8. It was next contended by him that having secured appointment to the post of Assistant Engineer (Chemical) in the company, the petitioner even on being transferred to Kolkata would enjoy the same status and privileges hitherto before enjoyed by him without any change of terms and conditions of service. Consequently, the apprehension of the petitioner that his future prospect would be jeopardized is thoroughly misconceived and merits no consideration.
9. While repelling the contention of Mr. Sanyal that the petitioner would be left with no work at the sales office, Mr. Ghosh contended that it was for the company to decide how to utilize the service of the petitioner best. In view of dearth of competent personnel at the sales office to explain to the customers the know-how of the companys products, it was thought worthwhile to post a senior engineer. Since the petitioner was found to have appreciable knowledge about the products of the company, having been involved in the manufacturing process for long, decision was taken in the companys interest to transfer him to the sales office. It was contended that the satisfaction reached in this behalf by the company 5 ought not to be tinkered with. Reliance in this connection was placed on the decisions in Luxmi Narayan Mehar v. Union of India, reported in JT 1997 (3) SC 444, Md. Masud Ahmed v. State of U.P., reported in JT 2007 (11) SC 540, and Registrar General of High Court, Calcutta v. Chitra Biswas, reported in 2006 (1) CHN 110.
10. Before I proceed to consider the rival claims and decide the issue raised herein, I may observe upon consideration of the decisions cited by Mr. Ghosh that while the proposition of law laid down in those decisions can hardly be disputed, each proceedings wherein orders of transfer are challenged have to be decided keeping in mind its own peculiar facts. Time and again the Courts have cautioned that it is not easy to prove malafide. Whether a particular order of transfer suffers from malice or not must necessarily be decided in view of the pleadings and the materials on record and no straight jacket formula in this regard could be laid down.
11. In respect of the additional contention of Mr. Sanyal noticed above, I accept the submission of Mr. Ghosh that the incidents referred to by the petitioner much prior to the transfer was ordered, which are in bits and pieces, do not make out a case of the superior officers of the company acting in tandem to wreak vengeance against him. The arguments advanced by Mr. Sanyal based on malice in fact are not well conceived and do not merit consideration for returning a finding in his favour.
12. However, to appreciate the principal contention raised by Mr. Sanyal, certain facts including those dating back prior to the appointment of the petitioner in the company, have to be noticed. These facts have duly been brought on record by the petitioner by filing appropriate affidavit.
13. The company on March 20, 1996, had issued an advertisement expressing interest to recruit Graduate Engineer Trainees for its works in different streams. While in the chemical stream there were four vacancies, the number of vacancy in respect of electrical and mechanical streams was one each. Qualification that the company required the aspirant for the post to possess was a degree in engineering in the respective field, preferably first class. The company did not guarantee employment after completion of training; it was, however, notified that on successful completion of training, the trainees would be placed against regular vacancies of Assistant Engineer or Foreman category depending upon ones performance during the training period.
14. It was pursuant to such advertisement that the petitioner offered his candidature. Upon successful completion of training, he was offered regular appointment on the post of Assistant Engineer (Chemical) vide letter dated 27th January, 1998 referred to above. The offer of appointment was addressed to the petitioner while he was a Graduate Engineer Trainee (Chemical) posted at the CCP Plant of the company at Durgapur.
15. It is further noted that by an office order dated January 8, 1998, to be effective from the following day, the petitioner while being described as Assistant Engineer (Chemical), was directed to look after the chlorine and hydrochloric units and to report to the Assistant Manager (Production) directly.
16. It is not in dispute that till the order of transfer was issued, the petitioners posting at the works of the company at Durgapur was never disturbed and by dint of the interim order passed by this Court, he has still been continuing thereat.
17. In course of hearing, Mr. Ghosh strenuously urged that the know how of the petitioner in respect of chemical products was proposed to be utilized for promoting and augmenting sales of the companys products from the sales office at Kolkata and, therefore, regard being had to the fact that the concept of industrial engineering has changed and multiple functioning is the order of the day, the company had felt the need to transfer him to Kolkata.
18. By order dated July 2, 2009, I had called upon the company to file a further affidavit granting them opportunity to place on record any document that it considered necessary to be placed on record for effective adjudication of the issue raised in the petition. It was also directed therein as follows :
The respondents shall also indicate in such affidavit details of the officers holding the post Assistant Engineer (Chemical) who were posted as Sales officer/Sales Engineer at the companys sales office at Calcutta and the duration of their stay at such office. The period since 8 when the sales office at Calcutta is without the service of an Assistant Engineer (Chemical) shall be mentioned therein together with the nature of function performed by such Sales office with special reference to the nature of job required to be performed by an Assistant Engineer (Chemical) thereat.
19. In compliance with such order, an affidavit dated July 16, 2009 sworn by Sri Sukamal Kanti Guha, the company secretary of the company, has been filed.
20. Insofar as functions of the sales office at Kolkata are concerned, it has been stated therein as follows:
I say that the functions of the Sales Office in Calcutta are multifarious. They include, amongst others, the following functions :
(a) Sales of our products Caustic Soda Lye, Liquid Chlorine, Hydrochloric Acid, Monochloro & Dichlora Benzene, Stable Bleaching Powder, Sodium Pentachlorophenate, Hydrogen Gas.
(b) Marketing and expansion of customers base;
(c) Liaison with customers;
(d) Preparing Tender document for procurement of orders.
(e) In case the customer rejects the material, follow up action is taken.
21. Regarding details of officers holding the post of Assistant Engineer (Chemical) who were posted as Sales Officers/Sales Engineers at the companys sales office at Kolkata, the respondents referred to office orders dated July 13, 2005, April 20, 2005 and June 1, 2006 in relation to one employee, namely Mr. K.K. Nandi.
22. For proper appreciation, the contents of the said office orders are reproduced below seriatim:
Ref : No: DCL/G.M(W)/56/10 Date :13.4.2005
Subject : Transfer of Mr. K.K. Nandi
In order to improve working condition of the material procurement department it is felt necessary to transfer Mr. K.K. Nandi with 9 immediate effect who has been presently looking after the stores functions.
For your information and record please.
Memo No.2S/07/05-06/11
Mr. K.K. Nandi, AE (Chem) is being entrusted to look after the jobs of Purchase Department with immediate effect.
Dt.28/04/2005
Ref. No. DCL/PMC-3/466 Dated : 1st June, 2006
Sub : Re-designation
The Management of Durgapur Chemicals Limited has decided to redesignate you from the present designation of Asstt. Engineer (Chem) to Purchase Officer with immediate effect. However all your other terms and conditions of employment remain unaltered. This is for your information and needful. As such, you are hereby instructed to use your new designation in all official correspondence and communication in future.
23. The plea of the company that the said K.K. Nandi, Assistant Engineer (Chemical) had been transferred to the Material Procurement Department, then entrusted to look after the jobs of Purchase Department and thereafter re-designated as Purchase Officer have been countered by the petitioner by filing a reply affidavit August 12, 2009. Serious exception has been taken to the stand of the company to equate the said K.K. Nandi with the petitioner. According to the petitioner, the said K.K. Nandi, having qualification of B.Sc., MBA had started his career in the company as Sales and Marketing Engineer (Trainee). He was initially posted in the Stores Department and thereafter in the Purchase Department as Purchase Officer. He had, therefore, necessary 10 training and experience in sales. Surprise has been expressed as to how without having an engineering degree, the company could designate him as Assistant Engineer (Chemical). Support has been drawn from the advertisement dated March 20, 1996 referred to above by and under which the petitioner was recruited as Graduate Engineer Trainee (Chemical) for the works of the company and subsequently posted as Assistant Engineer (Chemical) in the works/plant.
24. To drive home the point that only those having valid engineering degrees have been designated as engineers, the petitioner apart from enclosing several documents to such affidavit has relied on the documents annexed to the said affidavit of the company dated July 16, 2009 to negate the contention of the company that an Assistant Engineer (Chemical) could be posted as Sales Officer at Kolkata for proper utilization of his service in promoting and augmenting sales. The first of such advertisement is the one dated July 3, 2007 published in The Telegraph, relevant portion whereof reads as follows :
A reputed State Government owned Chemical Plant is looking for the following personnel arising out of our modernization & capacity expansion-
1) Chemical Engineer Trainee (Durgapur)-Fresh 1st Class Graduates in Chemical Engineering from recognized University/2-3 years experience in Chemical/Petrochemical Industry will be preferred.
2) Sales Engineers/Officers(Kolkata)-Fresh 1st Class Graduate in Chemical Engineering from recognized University/B.Com with MBA (Mrktg). Experience in sales/marketing will be preferred. 11
25. The other advertisement dated May 16, 2006 was published in The Economic Times (Kolkata). To the extent relevant, the advertisement reads as follows :
A dynamic Public Sector Company wholly owned by the Govt. of West Bengal requires the following personnel :
ASSTT. MANAGER (MARKETING/SALES OFFICERS Must be first class graduate in Chemical Engineering from a reputed Institution with diploma in Marketing Management with 7 years experience or first class B.Com with MBA with 10-15 years of experience in marketing of chemicals. Experience in Sales & Marketing of a Caustic Chlorine Industry will be an added advantage, LocationKolkata.
26. It has thus been the endeavour of Mr. Sanyal to emphasize that for posting as Sales Engineer/Officer at the Kolkata office, not only is an engineering degree from a recognized university with MBA are sine qua non, experience in sales and marketing is also a desirable qualification. The petitioner, according to him, neither has MBA degree to his credit nor any experience in sales.
27. The company, it is also noted, has not chosen to deal with the contents of the reply affidavit dated August 12, 2009 filed by the petitioner. It is true that the Court had not called upon the company to deal with each and every paragraph of such affidavit by filing its own affidavit but if the petitioner had misrepresented facts or tried to play fraud on Court by making misleading statements on oath, nothing prevented the company from preparing an affidavit on its own without waiting for a direction of the Court in this behalf, and then to seek leave of the Court to file it. The company did file written note of arguments. Although at page 16 12 thereof the company has submitted that whatever has been stated about the said K.K. Nandi is correct, his educational qualifications as disclosed by the petitioner in the reply affidavit dated August 12, 2009 have not been disputed.
28. It is therefore clear from a conspectus of the above documents that the only employee designated as Assistant Engineer (Chemical) to have been transferred to the sales office at Kolkata was the said K.K. Nandi. Indeed the said K.K. Nandi had been designated Assistant Engineer (Chemical) without having a valid engineering degree to his credit. He, however, had an MBA degree to his credit. He had been working in the stores and purchase department and was thereafter re-designated as Purchase Officer. There is nothing on record to suggest that the said K.K. Nandi was ever involved in the manufacturing process of the companys chemical products.
29. To remonstrate that the petitioners transfer at the Kolkata Office is not without precedent, the companys attempt to rely on orders passed by it in relation to posting of the said K.K. Nandi must, for reasons discussed above, be rejected as misconceived.
30. I have thus no doubt in my mind that the petitioner is the first Assistant Engineer (Chemical) employed by the company, posted from the inception at the works/plant at Durgapur and involved in the manufacturing process of its chemical products, who has been sought to be transferred at its sales office at Kolkata.
31. From the available records, I have now to search for an answer as to whether such a move is in the interest of the company or not.
32. Having anxiously considered the entire gamut of facts and circumstances, I regret, a finding in favour of the company cannot be returned.
33. From the nature of functions the sales office at Kolkata is required to perform (quoted above), it leaves no manner of doubt that the same do not pertain to functions to be discharged by an engineer employee so long involved in the process of manufacturing chemical products. Sales of products, marketing and expansion of customers base, liaison with customers, preparing tender documents and taking follow up action if materials are rejected are pre-dominantly functions to be discharged by personnel having experience in sales and marketing, as well as public relations.
34. As expressed above, although the employers right to decide when and where to post its employee for extracting maximum gains has been acknowledged by the Courts and interference with such decision has been seldom, the Courts are not absolutely powerless and the scanner of judicial review may operate, in exceptional cases, where the facts are so glaring that its conscience is shocked.
35. The submission of Mr. Ghosh that presence of an experienced engineer like the petitioner would be required at the sales office at Kolkata to explain to the customers the utility of the chemical products of the 14 company as well as its ingredients appears to be one in desperation and naturally has left me unimpressed. It is one thing to know how a product is manufactured and what its ingredients are; it is absolutely a different thing to explain matters to customers to make such product saleable. For achieving the same, one has to acquire qualification of the nature sought for by the company mentioned in the advertisements (contents quoted above), which the petitioner does not possess. To post the petitioner at the sales office only for the purpose of making the customers aware of the products ingredients and its utility, particularly when in the past no other engineer having similar credentials like the petitioner was posted, appears to be a veiled attempt of the officers of the company at the helm, not otherwise explainable, to keep the petitioner away from Durgapur.
36. That apart, information and technology have made rapid strides in modern times. Judicial notice can well be taken of the fact that in the age of internet, customers are no longer made to depend on any particular personnel of the company for making them aware of the ingredients of the companys products or its utility. Even the minutest details are made available on the website of the concerned company so that on the click of a mouse, the customer is able to make a choice of products manufactured by different companies. Queries are addressed through e-mails. To post an engineer who had been involved in the manufacturing process of chemical products so long (and who by now 15 must have achieved a particular level of excellence) to the sales office at Kolkata, without worthy justification is infected with irrationality in the process of decision making, and the action cannot be thrown out by blindly following the decisions cited by Mr. Ghosh.
37. The company being an Article 12 authority is bound by the Constitutional provisions to direct its actions in all spheres of its activities so as to achieve the preambular promise of securing, inter alia, equality of status and opportunity for the people of the country. The petitioner being in public employment is also entitled to the protection envisaged in Article 16, i.e. equal opportunity in matters of employment. True it is that right to work is not a fundamental right, but a distinction has to be drawn between the States obligation to secure right to work of the unemployed (Article 41) and an employees right to be provided with equal opportunity at a public office in respect of every facet of his employment (Article 16). Whether or not the petitioner, in the given facts and circumstances, is entitled to have his right enforced in relation to providing him opportunity in his workplace to show his skills, which flows from Article 16, requires consideration now.
38. At the hearing, I called upon Mr. Sanyal and Mr. Ghosh to consider certain decisions having a bearing on the issue involved herein, viz. (i) Langston v. Amalgamated Union of Engineering Workers & ano., reported in [1974] 1 All ER 982, (ii) Mukunda v. Managing Director, reported in 1986 (1) LLJ 470, (iii) P.K. Chinnaswamy v. Govt. of T.N., 16 reported in (1987) 4 SCC 601, and (iv) Rajendra Prasad Chaturvedi v. Commissioner, Kanpur Region, reported in 2002 Lab IC 3301. Upon consideration thereof, they advanced arguments for and against applicability of the same.
39. In Langston (supra), the Trade Union did not want that the appellant/workman should work with the members of such union because he refused to become a member thereof. The union pressed the management to terminate the service of the appellant/workman. To buy peace, the management placed the appellant/workman under suspension but paid him full wages. Since the suspension was not for any misconduct on the part of the appellant/workman or by way of interim suspension pending proceedings, he complained to the management contending that he did not intend to become a member of the union and that he had a right to work without being a member thereof. Since the appellant/workman was not given work, the Industrial Court was approached by him with the grievance that he had not been treated fairly by the management and that he was a victim of unfair labour practice. The Industrial Court held against the appellant/workman, who then appealed to the Court of Appeal.
40. The Court was referred to an earlier decision in Collier v. Sunday Referee Publishing Co. Ltd., reported in [1940] 4 All ER 234, where Asquith, J. observed:
It is true that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with 17 work. Provided I pay my cook her wages regularly, she cannot complain if I choose to take any or all of my meals out.
Asquith, J. had referred to two cases where a commercial traveller and salesman
were held to have no legal complaint so long as the salary continued to be paid, notwithstanding that, owing to the action of their respective employers, they were left with nothing to do. The employer was not bound to provide work to enable the employee [as the phrase goes] to keep his hand in, avoid the reproach of idleness, or even make a profit out of travelling allowances.
41. Lord Denning, after noticing the above decision, observed as follows :
That was said 33 years ago. Things have altered much since then. We have repeatedly said in this court that a man has a right to work, which the courts will protect: see Nagle v Feilden and Hill v C A Parsons & Co. Ltd. I would not wish to express any decided view, but simply state the argument which could be put forward for Mr. Langston. In these days an employer, when employing a skilled man should be given the opportunity of doing his work when it is available and he is ready and willing to do it. A skilled man takes a pride in his work. He does not do it merely to earn money. He does it so as to make his contribution to the well-being of all. He does it so as to keep himself busy, and not idle. To use his skill, and to improve it. To have the satisfaction which comes of a task well done. Such as Longfellow attributed to the village blacksmith :
Something attempted, something done, Has earned a nights repose.
The Code of Practice contains the same thought. It says, at para 8, that
management should recognize the employees need to achieve a sense of satisfaction in his job and should provide for it so far as practicable.
A parallel can be drawn in regard to womens work. Many a married woman seeks work. She does so when the children grow up and leave the home. She does it, not solely to earn money, helpful as it is : but to fill her time with useful occupation, rather than sit idly at home waiting for her husband to return. The devil tempts those who have nothing to do.
To my mind, therefore, it is arguable that in these days a man has, by reason of an implication in the contract, a right to work. That is, he has a right to have the opportunity of doing his work when it is there to be done..
42. In Mukunda (supra), a learned judge of the Karnataka High Court ruled that the view of the Court of Appeal, as quoted above, is reflected in Article 41(2) of the Constitution and therefore the Court ought to take notice of the constitutional mandate while interpreting the provisions of Chapter V-A of the Industrial Disputes Act, 1947. It may be noted that the Court was considering, inter alia, whether a badli worker could be treated as a probationer or a temporary workman and whether his services could be terminated on the ground of unsuitability without holding an enquiry, and further as to whether by reason of continuous service he is entitled to the benefits of Section 25F of the said Act.
43. The Supreme Court in Chinnaswamy (supra) was considering as to whether a public officer should be given posting and work commensurate to his status and whether failure to do so by the employer would call for the Courts interference. The decision was rendered almost a decade and half after the decision in Langston (supra). Without noticing it, the Supreme Court in the Indian context held as follows:
4. In a democratic polity as ours, the bureaucracy works as the pivot for running the administration. So far as the state is concerned, matters of policy and the ultimate responsibility for running the administration is obviously on the apex body the Council of Ministers and the Executive Head the Governor. It cannot be lost sight of that every public officer is a trustee and in respect of the office he holds and the salary and other benefits which he draws, he is obliged to render appropriate service to the State. The scheme postulates that every public officer has to be 19 given some posting commensurate to his status and circumstances should be so created that he would be functioning so as to render commensurate service in lieu of the benefits received by him from the State. If an officer does not behave as required of him under the law he is certainly liable to be punished in accordance with law but it would ordinarily not be appropriate to continue an officer against a post and provide no work to him and yet pay him out of the Consolidated Fund
(underlining by me for emphasis)
With this in view, the Court had called upon the respondent Government to give the appellant a proper posting and extract work from him. Since the State Government did not do the needful, it became necessary for the Court to interfere. However, it was observed that ordinarily in a case of this type, the Court would have no role to play.
44. More than two decades have passed since then. To make public officers accountable to the people of the nation for whatever they do has been gaining ground. Is it not the right time to emphasize that to sustain a transfer order of the present nature, the employer must be called upon to satisfy the Court of the genuine need that was felt leading to posting of a particular officer at a place where there is every possibility of his services not being utilized fully? Should the Court, instead of shying away obsessed with the thought that it is for the employer to decide where and when to post its employee, not interfere in a case where reasonable or probable cause is wanting and the impugned action can well be characterised as taken with an oblique or indirect object? In the 20 present day socio-economic scenario, the answers to these questions cannot but be in the affirmative.
45. Experience has shown that one has to pass through several levels before tasting success in life. Being in public employment, the petitioner could legitimately claim to be accorded all the necessary opportunities so that he might blossom in whatever official activity he pursues. An individual employee in pursuit of excellence would be prone to achieve a standard or reach a level fixed by him by climbing the ladder of success. As soon as he achieves/reaches the fixed standard/level, he aims to achieve/reach a higher standard/level. This is the way one gradually climbs to the top in due course of time. If midway the ladder is removed, the result would be obvious. The target can neither be reached nor the aim achieved. This is precisely what the petitioner in all likelihood is bound to encounter, if posted at Kolkata. A public employer has no right to make his employee sit idle although he may be paid all the emoluments which he would have been entitled to in law had he actually worked. Drain of public exchequer ought to be frowned upon. Gone are the days of pure master-servant relationship regulated by the terms of the contract. An employee in public employment, keeping his designation and emoluments intact, cannot be compelled not to work or made to work in a field over which he has no expertise, and yet entitled to full pay and allowances. If the petitioner after being posted at the sales office at Kolkata fails to bolster sales of the companys products 21 owing to lack of expertise and experience in the particular field of work he is asked to discharge, the same is most likely to affect his future career in the company. Chance of securing promotion can take a beating; and possibility of other engineers having similar qualifications like the petitioner working in the works/plant stealing a march over him, by reason of their involvement in the manufacturing process and thereby excelling in their pursuit, cannot be totally ruled out. The effort put in by him to achieve a certain degree of excellence would go waste if the posting at Kolkata is not interdicted.
46. In our Constitutional scheme, an employer within the meaning of Article 12 cannot use transfer as a camouflage to keep away one or several of its employees from a particular workplace on the ground of public interest to his or their detriment in respect of future prospect. It is too late in the day to seek to sustain such an order of transfer by contending that since there would be no change in salary and status/designation, the employee can have no reason to complain. Money and status do matter, but to a conscientious employee money and status are not all that he seeks to obtain/achieve. Such an employee takes pride in his work and perceives a sense of satisfaction for contributing to the well being of the society at large. A responsible and committed public employee is one who would not merely stick to the normal working hours of ten to five but do more to effectively serve the people. It is this class of employees that earns the admiration and 22 respect of the public at large, although his peers may not be too satisfied. If such employee seeks to justify the salary being paid to him from the public exchequer by demanding that he be given fullest opportunity to demonstrate his skills further during working hours, should such a claim be nipped in the bud on the specious plea that it is not for the Court to decide where and when to post an employee? I think not. On the basis of the materials on record and for reasons discussed above, I am inclined to return a finding that the impugned transfer order fouls the equal opportunity clause enshrined in Article
47. A word or two about the Division Bench decision of the Allahabad High Court in Rajendra Prasad Chaturvedi (supra) need to be said. The Court was considering a writ petition of the incumbent in the post of District Agriculture Officer. He had challenged an order by which his administrative and financial powers were curtailed and transferred to some other officer. The Court observed that even though there could be some violation of law in issuing the impugned order, the petitioner had not suffered any prejudice because his burden of work was reduced. According to the Court (i)t is only an employee, who wants to earn money dishonestly, apart from his salary, who may have a grievance against an order reducing his burden of work. It was further observed that (n)o honest employee can insist that he be given work apart from salary and allowances. In the process, the decision in Chinnasamy 23 (supra) was distinguished by observing that the said decision does not lay down any principle of law that an employer is bound to give work to an empoloyee even if it pays full salary and allowances. Notwithstanding the scams and increased instances of corruption which are surfacing, I cannot resist observing that the aforequoted sweeping remarks of the Court are a slur on public servants of unquestionable honesty and impeccable integrity. There are employees who after completing their own work during the day, seek to do more work to justify the salary and allowances drawn by them. By dint of the aforequoted remarks of the Court, such employees may well be branded dishonest. Even otherwise, if an employee is suddenly divested of his powers without proper reason and/or justification resulting in reduction in the burden of his work, that itself would cast a stigma on him who would henceforth be viewed by his colleagues as dishonest. Ultimately, why should the employer divest an employee of his powers unless he is dishonest, would be the question doing the rounds in the corridors of the workplace. If such an action is questioned in Court, should discretion not be exercised instead of not accepting the challenge to the impugned action on the ground that by reduction in the burden of work the employee concerned suffers no prejudice? The answer to the question, in my view, would largely depend on the mindset of the adjudicator and the surrounding circumstances in which he works. If everyone around him is dishonest, even an honest employee would seem to him to be dishonest. Be that as 24 it may, I have considered it necessary to make these observations to encourage honest employees holding public offices to stand up and protest if any attempt on their part to justify their pay and allowances is sought to be thwarted by taking recourse to the aforequoted remarks.
48. The other plea of the company that the petitioner at the time he was offered appointment was aware that he was liable to be transferred at Kolkata also appears to be indefensible. I am inclined to accept Mr. Sanyals submission that the relevant clause, on being reasonably construed, would mean that in case the company sets up any other plant/works at Kolkata or in its vicinity, the petitioner could be transferred thereat in the interest of the company.
49. The action of the company in transferring the petitioner to the sales office at Kolkata is without lawful excuse, a deliberate act in disregard of the petitioners right infringing the equal opportunity clause in Article 16 and one which could be lebelled as malice in law. Therefore, I have no other option but to set aside the order of transfer impugned herein in exercise of writ powers. It is ordered accordingly.
50. The writ petition stands allowed, without any order for costs. Urgent photostat certified copy of this judgment, if applied for, may be furnished expeditiously.