BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/03/2010 CORAM THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN W.P.(MD)No.10959 of 2008 and M.P.(MD)Nos.1 of 2008 & 2 of 2009 L.S.Mariappan ... Petitioner Vs The General Manager, The Tirunelveli District Co-operative Milk Producers' Union Ltd., Tirunelveli-7 ... Respondent Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records pertaining to the proceedings passed by the respondent in C.No.0375/Admn-1/2004, dated 23.10.2007 to transfer the petitioner and post to work at Sankarankovil Milk Chilling Centre and quash the same as illegal arbitrary, void and vitiated and direct the respondent to transfer and post the petitioner back to Nellai Dairy as Selection Grade Boiler Man Grade I in the existing vacant post. !For Petitioner ... Mr.M.C.Samy ^For Respondent ... Mr.M.E.Ilango :ORDER
Heard both sides.
2.In this writ petition, the petitioner challenges the order of transfer
made by the Management Director of the Tiruneveli District Co-Operative Milk
Producers’ Union Ltd, dated 23.10.2007.
3.The petitioner was appointed as Boiler Man Grade II on 27.06.1988 and
promoted as Boiler Man Grade I on 31.12.1993 and moved to Selection Grade with
effect from 31.12.2003. He was serving in the post of Boiler Man Grade I in
Nellai Dairy for the past 14 years and by the proceedings of the Managing
Director, dated 23.10.2007, the petitioner was transferred to Sankaran Kovil
Milk Chilling Centre on administrative grounds and he was immediately relived on
24.10.2007 and joined duty in Sankaran Kovil on 25.10.2007. The said transfer
order is challenged by the petitioner stating that there is no sanction of post
of Boiler Man Grade I, in the Sankaran Kovil Milk Chilling Centre and the
petitioner is educationally qualified for being appointed as Boiler Man as he
had the Certificate of competency as Boiler Attendant issued by the Chief
Inspector of Boiler, Chennai and by reason of the transfer, he was posted as
‘Operator’ in the Sankaran Kovil Milk Chilling Centre and he has no experience
in the Chilling Unit. It is further stated that the scale of pay for Selection
Grade Boiler Man Grade I is higher than the pay scale for ‘Operator’ and by the
transfer, the petitioner is posted to the lower Grade carrying less pay and it
is against 51-A of the Fundamental Rules. The order of transfer also challenged
on the ground of mala-fide as the petitioner gave complaint and representation
to the Commissioner, Tamil Nadu Co-operative Milk Producers’ Federation,
Chennai, against Mr.VijayaKumar, Manager (Administration).
4.The respondent in his counter challenged the maintainability of the writ
petition as the respondent is a Society registered under the Tamil Nadu Co-
operatives Societies Act and as such, it is not amendable to writ jurisdiction
as held by the Honourable Supreme Court in the reported judgment in 2006(4) CTC
689, in the case of Marappan vs. Deputy Registrar of Co-Operative Societies.
Further, it is denied that the terms of contract of service of the petitioner
are in no way affected by the transfer and there is no monetary loss to the
petitioner. It is further stated that the petitioner after transfer, received
the transfer advance and joined duty on 25.10.2007 and worked in Sankaran Kovil
unit till 23.09.2008 without any demur or protest and thereafter, abandoned his
post and is remaining absent unauthorizedly. It is further stated that the
petitioner on earlier occasion worked in Sankaran Kovil unit and have requisite
experience to run the Chilling Unit and hence he was transferred and the
transfer was made only on administrative grounds and the petitioner is capable
of running Chilling Unit and the post of the petitioner is also transferable.
The allegations of malice is also denied by the respondent.
5.I have given my anxious consideration to the submission made by both
sides.
6.Mr.M.C.Samy, the learned counsel appearing for the petitioner submitted
that the petitioner challenged the impugned transfer order on the ground of
victimisation, loss of pay and posted to the lower Grade. To prove the mala-
fide nature of transfer and victimisation, he brought to my notice, the
representation made by the petitioner, date 12.06.2007 wherein allegations were
made against Mr.Vijayakumar, Manager(Administration). He further submitted that
the petitioner is the Branch Secretary of Nellai Aavin Employees’ Union and he
was transferred by way of punishment to Sankaran Kovil Unit where there is no
post of Boiler Man Grade I and the petitioner is not having working experience
in the Chilling Unit and with a view to take further action against the
petitioner, he was deliberately transferred to Sankaran Kovil Unit immediately
to work as Operator, which amounts to demotion.
7.It is contended by Mr.M.E.Ilango, the learned counsel appearing for the
respondent that the writ petition is not maintainable as the respondent is a Co-
operative Society as held by this Court in the judgment reported in 2006(4) CTC
689 in the case of K.Marappan vs. The Deputy Registrar of Co-operative
Socieites,Namakkal and as per the judgment reported in 2008(8) MLJ 616, in the
case of K.Thangarajan, General Manger-in-Charge, Madurai vs. K.Palanisamy and
others, the writ petition is not maintainable.
8.It has been made clear by the Honourable Division Bench of this court in
the judgment reported in 2008(8) MLJ 616, in the case of K.Thangarajan, General
Manger-in-Charge, Madurai vs. K.Palanisamy and others held as follows:- “In
the above context, it is necessary to point out that though a writ petition may
not be maintainable against a Co-Operative Society, wherein the jurisdiction of
the High Court is invoked under Article- 226 for issuing a writ of Certiorari,
such a writ petition may be maintainable when the question before the High Court
is the decision of a judicial or quasi-judicial authority, even though the party
ultimately to be affected may be a Co-operative Society. However, where the
writ petition is essentially against an administrative order of a Co-operative
Society containing no element of exercise of any judicial or quash-judicial
function, such a writ petition would not be maintainable.”
Therefore, as per the judgment referred to above, the writ petition is not
maintainable. Apart from that even on merits, I do not find any reason to
interfere with the order passed by the respondent.
9.It is stated in the impugned order of transfer that due to
administrative reasons, the petitioner was transferred to Sankaran Kovil Unit.
The main grievance of the petitioner is that he was working as Boiler Man Grade
I (Selection Grade) and by the impugned order of transfer, he was posted as
Operator, which is a lower Grade and his salary is also reduced. This fact has
been specifically denied by the respondent in the counter and it has been
specifically stated that the service condition and terms of contract of service
of the petitioner are in no way affected and there is no monetary loss to the
petitioner. Therefore, there is no monetary loss to the petitioner and the
petitioner was also not demoted to the lower post as claimed by him. Though,
the petitioner has stated that he was victimised and the transfer order is also
vitiated by mala-fide as he has made allegation against the Managing Director
about the malpractices committed by him, except the allegations made in the
affidavit, the petitioner has not filed any proof to substantiate those
allegations. The petitioner has filed the additional type set of papers wherein
he has enclosed the representation, dated 13.06.2009, sent to the Managing
Director of Tirunelveli District Co-Operative Milk Producers’ Union Ltd.,
wherein he made allegations against one Thiru.Velmuguan, who is the Extension
Officer of the Sankaran Kovil Depot and in that representation, he made
allegations against the said Thiru.Velmurugan in respect of certain incidents
that happened after he was transferred. In his representation, dated
12.06.2006, he has made some allegations against one Mr.Vijayakumar. But it is
admitted by the petitioner himself, Mr.Vijayakumar, Manager (Administration) has
retired and no allegation has been made against the General Manager, who passed
the impugned order. Further, the petitioner joined in the transferred post on
25.10.2007 and he served there till 23.09.2008 without any demur or protest and
after having worked there for more than 11 months, he challenged the transfer
order.
10.As Held by the Honourable Supreme Court in the reported judgment in
2004(4) SCC 245, in the matter of Union of India v. Janardhan Debanath that “No
government servant or employee of a public undertaking has any legal right to be
posted forever at any one particular place or place of his choice since transfer
of a particular employee appointed to the class or category of transferable post
from one place to another is not only an incident, but a condition of service,
necessary too in public interest and efficiency in the public administration,
Unless an order of transfer is shown to be a outcome of mala-fide exercise or
stated to be in violation of statutory provisions prohibiting any such transfer,
the courts or the tribunals normally cannot interfere with such orders as a
matter of routine, as though they were the appellant authorities substituting
their own decision for that of the employer/management, as against such order
passed in the interest of administrative exigencies of the service concerned.
This position was highlighted by this court in National Hydroelectric Power
Corpn. v. Shri Bhagwan, [2001(8) SCC 574;2002 SCC (L&S)21.
“Transfers unless they involve any such adverse impact or visit the
persons concerned with any penal consequences, are not required to be subjected
to same type of scrutiny, approach and assessment as in the case of dismissal,
discharge, reversion or termination and utmost latitude should be left with the
department concerned to enforce discipline, decency and decorum in public
service which are indisputably essential to maintain quality of public service
and meet untoward administrative exigencies to ensure smooth functioning of the
administration. ”
11.In this case, the order challenged is only an administrative order and
hence, the writ petition is not maintainable. As the petitioner has not able to
substantiate the allegations of mala-fide or victimisation, it cannot be
construed that the petitioner was transferred at the instance of Mr.Vijayakumar,
Manager (Administration) against whom the petitioner made some allegations.
Further, there is no loss of pay and the service condition are not also affected
by reason of transfer and hence, the petitioner cannot challenge the same.
12.In the result, the writ petition fails and the same is dismissed.
Consequently, connected miscellaneous Petitions are closed. No costs.
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