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Judgment
Pradeep Kumar, Member (A)
Heard Sh. V.P.S.Tyagi, learned counsel for applicant and Sh. Amit Sinha, learned counsel for respondents.
The applicant was inducted in BSNL as a casual labourer in the year 1982 and thereafter he was conferred with temporary status in October 1989 and was regularised w.e.f. 27.11.1993 as a Phone Mechanic which has since been re-designated as Telephone Technician. This is presently a Group-C post which was earlier a Group-D post. He had been working under GM Telecom Distt. Meerut and was transferred to Aminagar Sarai. He was relieved from duty vide orders dated 28.07.2016. Subsequently, the competent authority held this transfer order in abeyance vide orders dated 10.11.2017 and he was retained at Meerut up to 31.03.2018.
Sometimes during the period 28.07.2016 onwards the applicant was elected as Treasurer of a Union known as NFTE. Upon such an election, another order was passed by the competent authority dated 04.06.2018 wherein the transfer order dated 28.07.2016 was held in abeyance till the applicant is working as Treasurer of NFTE. The order dated 04.06.2018 was thereafter modified vide order dated 07.06.2018 with operative part remaining the same however the following proviso was also added:
"If the office bearers working at other stations are elected at HQ/Circle/SSA levels to the corresponding posts of General Secretary, Asstt. General Secretary and Financial Secretary (or Treasurer) they may be brought on temporary transfer to this headquarters of the union upto the recognition period subject to administrative convenience."
However, subsequently vide orders dated 11.07.2018 the applicant was spared to carry out his transfer to Aminagar Sarai as per previous order dated 28.07.2016 which was so far kept in abeyance all this while.
This relieving of the applicant to carry out transfer from Meerut to Aminagar Sarai, is the grievance of the applicant on the plea that since he is already elected as Treasurer of NFTE the said transfer is against policy.
The applicant further brought out that as per the Transfer Policy directives issued by the respondent-BSNL vide 07.05.2008 since the applicant has now crossed 55 years of age (date of birth 02.10.1962) such a transfer is also prohibited vide para 11 (k) contained in Section B of this policy, which reads as under:
"(k) Generally, transfer of officers upto JAG level who are more than 55 years of age (as on 31st March of that particular financial year) would be avoided for posting to hard tenure stations. Similarly, transfer of officers upto SAG grade would generally be avoided in case of more than 58 years of age. However, upto STS level, transfer of officers involving change of station would normally be avoided after 56 years for inter circle transfers and after 57 years for intra circle transfers."
The case pertains to Meerut. However, since this PT No.151/2018 has already been allowed the matter was heard at length.
6.1 The transfer order dated 11.07.2018 has been issued in view of the corporate letter dated 05.07.2018 wherein immunity from transfer is withdrawn in respect of those who become office bearer after the issue of their transfer orders. The applicant was unable to produce a copy of this policy letter dated 05.07.2018.
6.2 It is noted that with a view to enable the trade union activity in a proper way, certain enabling provisions are made, in which it is specified that office bearer of the union be not transferred out without giving adequate opportunity to the union to elect/appoint another person in lieu of transferred office bearer. It is perhaps with this view that the applicant for whom transfer order, issued on 28.07.2016, was taken back to Meerut temporarily until 31.03.2018 and thereafter extended also for some more time. This time period was adequate for the union to elect/appoint another office bearer.
The same has, however, not been done in instant case and this applicant was again got elected as Treasurer in NFTE. Thus, the intent of enabling provision, to allow the union office bearer to function at the place for some more time till alternate office bearer is in place, was actually defeated when the same office bearer was reappointed. This was ostensibly done to preclude transfer which may be needed due to administrative exigencies. This cannot be accepted and it was with this in view that the immunity against transfer was withdrawn subsequently by the respondents through a subsequent direction when it was said that such relaxation is not available if somebody was elected after the transfer order was issued.
In respect of another plea of applicant, the transfer policy issued on 07.05.2008 was scrutinised. It is seen that the transfer policy indicates the purpose, the objectives of transfer policy, management's right to transfer staff, need of transfer and basis for transfer etc. The relevant parts of this transfer policy are reproduced below:
"3. Management's Right:
The management has the right to move or not to move employee(s) from one post/job to another, to different locations, to different shifts, temporarily or permanently, as per business requirements and special needs.
Need of transfer:
Transfer can be affected due to anyone of the following criterion:
(a) To provide replacement for a specific post/cadre with a specialised or desired qualification and/or suitable experience, as per company need.
(b) To meet the business requirement of BSNL.
(c) To bridge manpower deficit or to provide reinforcement in view of business requirement.
(d) Placement under compassionate ground.
(e) to adhere to government regulation/ruling/guidelines as applicable (as amended from time to time)."
7.1. It is further seen that the transfer policy contains a Section B wherein para 11 pertains to "Additional guidelines specific to transfer of executive employees with All India transfer liability."
7.2 Para (k) quoted by the applicant forms part of this Para 11. It is clear from above this para (k) had been quoted out of context. The same pertains to executive level officers of BSNL that have All India transfer liability and the same cannot apply to the applicant, who is a Group-C employee (erstwhile Group-D). He has been transferred from Meerut to Aminagar Sarai which is a nearby place from Meerut which takes about 45 minutes by road.
In the instant case, employee was already transferred on 28.07.2016 and was already spared. It was only on account of his election as Treasurer thereafter that he was transferred back to Meerut on temporary basis. It is apparent that the immunity against transfer, was subsequently withdrawn by a policy decision of BSNL from those who became office bearer after the issue of their transfer order. This is as evident from the endorsement in the relieving letter dated 11.07.2018 itself.
8.1 The transfer policy and implementation of the same is an administrative decision in the interest of providing efficient services. Organised union and elections thereof to elect office bearers is also a legitimate activity, but it will be subservient to administrative exigency. The process of election as an office bearer subsequent to issue of transfer order, cannot be taken as a justification for not carrying out the transfer order.
8.2. In view of this, there does not appear to be any fault with the transfer order dated 28.07.2016 which has now been implemented on 11.07.2018, i.e. after a gap of two years. It is also noted that the one way road journey between Meerut and Aminagar Sarai takes about 45 minutes only.
In the event, the Tribunal finds no justification to interfere with this administrative decision. The OA is, accordingly, dismissed at the admission stage itself being devoid of merit. No costs.