JUDGMENT
Y.K. Sabharwal, J.
(1) He respondent has filed a suit in the Court of Senior Sub-Judge, Delhi, for grant of decree of permanent injunction restraining the defendant from transferring her outside Delhi. The Trial Court allowed the application of the respondent for grant of interim injunction and restrained the defendant from transferring the plaintiff outside Delhi till the disposal of the suit. The first appeal filed by the petitioner here in was dismissed by impugned order dated 18/02/1993 made by learned Additional Senior Sub-Judge, Delhi, and hence this revision petition.
(2) Briefly the case of the plaintiff is that plaintiff was employed with Swatantra Bharat Mills as a Telephone Operator and was transferred to Textile Marketing Division with effect from 16/05/1988 and again transferred to Hindon River Mills, Delhi, with effect from 7/05/1990 where she was promoted to the post of Administrative Supervisor on 4/04/1991. She v/as transferred by the impugned order of transfer dated 2 4/07/1992 to Hrm Dasna District Ghaziabad (U.P.). A decree for permanent injunction is sought restraining the defendant from transferring the plaintiff to Dasna, District Ghaziabad. In the plaint certain vague allegations imputing mela fides to the defendants have been made. The plaint sets out few humanitarian grounds in support of the plea that the transfer will have adverse effect on her family members.
(3) The Trial Court in order dated 2/12/1992 has come to the conclusion that the plaintiff-respondent in this petition has a prima facieses by observing that it is to be seen as to whether the order of transfer has been made in order to further the administrative interest of an Organisation or can be termed to be malafide and it would depend upon the evidence to be led by the parties and on interpretation of terms contained in the appointment letter as to whether the defendant could transfer the plaintiff from Delhi to Dasna. Regarding the balance of convenience the Trial Court states that the transfer would adversely affect the family life of the plaintiff and involve extraordinary economic burden on family and has thus restrained the defendant from transferring the plaintiff outside Delhi.
(4) The Appellate Court on interpretation of the letter of appointment has come to the conclusion that the petitioner/management is acting in breach of the contract. According to the order of the appellate Court in view of absence of the words “anywhere in India” in the letter of appointment, the management is not entitled to transfer the respondent outside Delhi. Regarding the balance of convenience the appellate Court states that the Company is not providing transport to employees from Delhi toU.P. and thus has come to the conclusion that the balance of convenience would lie in favor of the respondent.
(5) In order to appreciate the respective contentions Para 3(a) of the letter of appointment, on which great reliance has been placed in the appellate order, may be reproduced as under : “THE management may transfer you for any work in any unit of the Company as it may consider necessary in its discretion from time to time and such posting will be governed by the rules and procedure applicable to that Unit.”
(6) Learned Counsel for the petitioner contends that the conclusion in the impugned order of the first appellate Court on the basis of the term of letter of appointment are contrary to law and the Court below has exercised jurisdiction with material irregularity in coming to the conclusion that on account of absence of the words “anywhere in India” in the aforesaid Para3(a) the respondent cannot be transferred outside Delhi. There is considerable force in the contention of the learned Counsel. According to Para 3(a),the management has the right to transfer the respondent for work in any unit of the Company. The said paragraph does not restrict that the unit of the Company must be in Delhi. The absence of the words “anywhere in India” does not mean that if the Company has a unit outside Delhi the employee cannot be transferred to the said unit. If such a construction is accepted it would amount to adding to paragraph 3(a) the words “at Delhi” after the words “any unit of the company”. That is not permissible. The first appellate Court exercised jurisdiction with material irregularity in interpreting paragraph 3(a). Further, the Courts below have failed to take notice of the fact that it has not even been pleaded by the respondent in the plaint that in terms of the letter of appointment the management has no right to transfer her outside Delhi. The respondent has not been able to show that the unit at Dasna to which she has been ordered to be transferred is not the unit of the Company nor has it been so pleaded in the plaint. The plaint even does not refer to the letter of appointment or any term thereof. As noticed hereinbefore, the respondent has made only vague allegations of malafides and victimisation in the plaint besides setting out certain humanitarian grounds to challenge the order of transfer. The Courts below have not come to the conclusion that the transfer order was issued with malafideintention. Before me too, Counsel for the respondent has not been able to show any malafides. The respondent has failed to make out a prima fadecase.
(7) Turning now to the question of balance of convenience and hardship, it may be noticed that both are inter-linked. In every transfer there isa likelihood of some kind of hardship but that is inevitable and is a necessary incidence of service. Whenever an employee is ordered to be transferred it is likely that it would cause some inconvenience and hardship to the employee and the employee may have to incur higher expenses for transport and may have also to spend more time in reaching the place of work. It has not been shown that the management has any liability to provide transport to the respondent. The power to transfer of an employee on administrative exigencies lies with the management and the interference by the Court would be called for only in cases where it is shown that the order is punitive and malafide and not on the ground that it would cause some inconvenience or hardship to the employee. In regard to hardship and the interference by the Court with the order of transfer, the observations of the Supreme Court in Rajendra Roy v. Union of India and Another, , may be noticed here :- “THE order of transfer often causes a lot of difficulties and dislocation in the family set-up of the concerned employees but on that score the order of transfer is not liable to be struck down. IN a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department.Unless such order is passed malafide or in violation of the rules of service and guidelines for transfer without any proper justification,the Court and the Tribunal should not interfere with the order oftransfer.”
(8) In view of the aforesaid the impugned orders are liable to be setaside. Before parting, however, I may notice that the respondent has pleaded in the plaint that there is nobody to look after her old mother-in-law and her young female child. Counsel for the respondent submits that the transfer will have adverse effect on the old lady and the young girl. Having regard to the family circumstances of the respondent, I have no doubt, that if the respondent after some time when the School of her young female childreopens, makes a representation to the management for being transferred back to Delhi, the management would consider the said representation on merit but sympathetically. With these observations the revision petition is allowed and impugned orders are set aside leaving the parties to bear their own costs. The expression of opinion in this order is prima facie and would not affect the merits of the controversy in the suit.