Debdulal Maity vs National Insurance Co. Ltd. and Others

I.P. Mukerji, J.

This writ application is against a transfer order dated 19th June, 2014 transferring the service of the writ petitioner to Kolkata Division XIV (under CRO-I). He is working as a senior assistant with the respondent insurance company and in the concerned department since 8th December, 2010. His grievance against the order of transfer is this. It is in violation of the "Job rotation transfer and mobility policy for the supervisory, clerical and subordinate staff of the respondent organisation.

The following paragraph of the policy is relied upon:

"Job Rotation (within the same station):-

4.1 Every employee in the cadres of Supervisory, Clerical and Subordinate Staff shall be subject to job rotation in terms of the Policy.

4.2 Every employee who has completed 3 years continuous working in a particular department shall be liable for transfer to another department within the same office.

4.3 Every employee who has completed 5 years continuous working in a particular office shall be liable for transfer to another office within the same station:

Provided that, the total number of such transfers from an office is limited to a maximum of 25% of the total class-wise (Class-Ill and IV separately) strength of employees in that office, fraction of 0.5 and above being taken as 1:

Provided further that, minimum 1 such transfer be mandatory.

4.4 In situation where limitation of 25% as indicated in Para 4.3 is to be applied, a class-wise list of employees, for each office, who have completed 5 years of continuous stay in that office may be prepared in descending order of length of stay and from the top of such list a number equivalent to such 25% may be taken out."

Paragraph 3.7 is also relied upon which is set out hereunder:-

"3.7 Nothing contained herein shall be construed to limit, curtail or abridge the authority of the Chairman-cum-Managing Director, or any other office authorised in this behalf by him, to transfer an employee in terms of sub-paragraph (2) of paragraph 18 of the Scheme."

Mr. Basu, learned Advocate for the writ petitioner, submits that his client has completed three years but not five years in the department. Therefore, he could only be transferred to another department within the same office and not to another office where he has been transferred. According to him, the action of the respondent is clearly arbitrary. He goes to the extent of alleging that because of the order of this Court dated 18th July, 2014 in another writ application concerning the writ petitioner (GA No. 1856 of 2014 connected with WP No. 459 of 2014 (Shri Debdulal Maity v. National Insurance Co. Ltd. & Ors.) in a sexual harassment matter, he has been transferred.

Mr. Gangopadhyay, learned Counsel for the insurance company, has drawn my attention to paragraph 18 of the scheme referred to in paragraph 3.7 of the policy. More particularly, he refers to paragraph 18(2) which is set out hereunder:-

"Notwithstanding anything contained in sub-paragraph (1), the Chairman-cum-Managing Director, or any other officer authorized in this behalf by him, may transfer an employee from one department to another in the same office or from one office of the Company or the Corporation as the case may be, to another office of that Company or the Corporation, respectively, in the same station or different station with or without the benefit, provided for under clause (c) of sub-paragraph (1)."

He also cites Mohd. Masood Ahmad Vs. State of U.P. and Others, (paragraph 7), National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, (paragraph 5), Union of India and Others Vs. S.L. Abbas, 4 and State of Punjab and others Vs. Joginder Singh Dhatt, . He argues on the basis of these authorities that transfer is a part of the service conditions of an employee. The High Court in exercise of its jurisdiction under 226 of the Constitution of India has got no jurisdiction to interfere with transfer unless it is shown to be mala fide or against the service rules.

The service rules of the insurance company as embodied in the above scheme have been framed with a specific intent and purpose. There is reference to job rotation "within the same station", in paragraph 4 of the scheme. It relates to the cadre to which the writ petitioner belongs. The rule says that an employee who has completed three years of continuous service shall be "liable for transfer" to another department within the same office. An employee who has completed five years if continuous service in a particular office shall be "liable for transfer" to another office within the same station.

Mr. Gangopadhyay argues that despite this provision the Chairman-cum-Managing Director has got overriding powers under clause 3.7 of paragraph 18 of the scheme to transfer any employee to any place irrespective of fulfillment of the conditions mentioned in paragraph 4 of the scheme.

I am unable to accept this submission. When such a power is exercised by the Chairman-cum-Managing Director, it is in extra ordinary circumstances. The normal service condition is that after completion of three years the transfer will be intra departmental within the same office. Only after five years, would the transfer be inter department to another office within the same station.

If existence of extra ordinary circumstances is cited in exercise of this power of transfer of the writ petitioner, in my opinion, some reasons ought to have been given in the transfer order. Otherwise on the face of it, the order appears to be arbitrary. When an order appears to be arbitrary it has to be against the service rules and in those circumstances exercise of jurisdiction under Article 226 is not barred under the above decisions.

In my opinion, all the relevant papers, circulars etc are before the Court for adjudication of this writ application. Inviting affidavits would necessarily delay matters.

In those circumstances, this writ application is disposed of by setting aside the transfer order dated 19th June, 2014 together with the release order dated 21st July, 2014. All consequential steps are to be taken by the first respondent and benefits are to be given to the writ petitioner within two working days of communication of this order.

I make it clear that this order will not preclude the respondents from initiating a fresh transfer process in accordance with law.

Mr. Gangopadhyay prays for stay of operation of this order. The prayer for stay is considered and refused.