Jai Narain Sharma And Anr. vs Lalit Kala Acedemi on 1 September, 1996

0
80
Delhi High Court
Jai Narain Sharma And Anr. vs Lalit Kala Acedemi on 1 September, 1996
Equivalent citations: 64 (1996) DLT 461
Author: D Gupta
Bench: D Gupta, C Joseph

JUDGMENT

Devinder Gupta, J.

(1) Petitioner No. 1, L.D.C., and petitioner No. 2, U.D.C., posted in Lalit Kala acedemi (for short the ‘acedemi’) at its headquarter at New Delhi have challenged the order of their transfer, Annexure H dated 20.9.1995. Petitioner No. I has been ordered to be transferred to the Regional Lalit Kala Kendra, Lucknow and Petitioner No. 2 to Regional Lalit Kala Kendra, Bhubneshwar. Challenge to the order of transfer primarily is on the ground of malafide.

(2) It is alleged that petitioners are employees of the respondent acedemi which is a registered Society registered under Societies Registration Act. Petitioner No. I is the Vice President and petitioner No. 2 is a member of the Executive of the Lalit Kala acedemi Employees’ Association (for short the ‘Association’) which has filed Cw 1967/95 in this Court against the respondent-acedemi in which main relief sought by the Association is to have a proper investigation into large scale irregularities in the functioning of the acedemi, which is funded and controlled by the Government of India. It is alleged that number of representations were made by the Association to various authorities of the Government about the mismanagement especially by its Secretary but the same drew no response from them and when all efforts failed, a writ petition was filed in this Court. Realising that office bearers and members of the Association were keen to pursue the matter to its logical conclusion the acedemi started adopting measures as would compel the members of the Association to withdraw the writ petition and give up its demand for a probe into its affairs. A suit was also filed by the acedemi in the Court of Additional District Judge, Delhi seeking an order or injunction against the Association restraining its members from holding any meeting/demonstration within 50 metres of the premises of the acedemi. When the Association opposed the suit, members of Association/ Office bearers of the Association were served with various show cause notices asking them to explain why they should not be penalised for attending the proceedings in Court and making many other frivolous concocted charges such as misbehaving with the members of the General Council of the acedemi etc. After receipt of the replies, the show cause notices were withdrawn. A notice/memo was again served upon petitioner No. I calling upon him to show case as to why disciplinary action be not taken against him for distributing a circular to the members of the Association. These proceedings were also withdrawn after petitioner No. I filed his reply.

(3) In support of the allegation of malafides, it is stated in the petition that there has not been a single case of involuntary transfer of any employee of the acedemi of the status of L.D.C. or U.D.C. from one town to another. There have been only two cases of transfer of U.D.C. in the acedemi and in each the transfer orders were made on specific request of the employees. In all cases transfers have been made on promotion and have beer. voluntary. Petitioners have alleged that there was no administrative exigency to order the transfer of the petitioners to Lucknow and Bhubneshwar. One Prem Sagar Sharma had already applied for promotion to the post of L.D.C. in May, 1995 and had even expressed his willingness to be transferred to Lucknow. Even if for some reason it was not possible to send the said employee to Lucknow on promotion, the other mode which could have been adopted was to ask any of the 14 LDCs including three working on daily wages whether they were willing to go to Lucknow and if none was willing to go then junior most should normally have been transferred. If this was done the only person who would have been transferred would have been one Submit Bhatia son of the Deputy Secretary (Admn.) who, according to the petitioners, had been working illegally on daily wages in the acedemi since 1995. Other person who could have been transferred on the basis of being junior most would have been Sunil son of the Regional Secretary of the acedemi, who has also been working on daily wage basis since 1993. It is also alleged that the transfer of petitioner No. 2 from Delhi to Bhubneshwar is also malafide and in order to create a vacancy in Bhubneshwar Mr. Kedear Nath Nayak was simultaneously ordered to be transferred to Delhi. Petitioner No. 2 has been in Delhi since 1989. There are other persons in Delhi as U.D.Cs since 1985 some junior and some senior to petitioner No. 2. It is alleged that since petitioner No. I is the Vice President and petitioner No. 2 is a member of the executive of the Association the transfer is actuated with malice, in the garb of administrative exigency. Transfer order has been issued in order to victimise and harass the office bearers of the Association, who have prayed for a C.S.I, investigation into the corrupt working of the acedemi and against its officials. Sole objective of the transfer is to compel the association to withdraw the writ petition. It is stated that the impugned transfer is against the established practice and policy of the respondents not to transfer the ministerial employees from one city to another against their wish.

(4) The petition is opposed by the respondents on reply filed on the affidavit of Dina Nath Pathy, Secretary of the acedemi. A preliminary objection has been raised on the maintainability of the petition alleging that the respondent is a Society registered under the Societies Registration Act. Its object is to enlarge and promote study and research in the fields of creative arts such as painting, sculpture, graphics, establish Regional Arts Centres and promote publication of literature and various other objects, as set out in the Constitution/Memorandum of Association of the acedemi. The supreme body is the General Council consisting of 15 persons elected by a Constituency composed of Artists, who have participated in National Exhibitions and International Exhibitions of the acedemi, 9 eminent Indian Artists, representatives and experts from different fields of Art as also the Chairman and the Vice Chairman. There are nominees of the Government of India not exceeding 5. Functions of the acedemi vests in the Executive Board. Activities of respondents are not wholly related to Governmental functions. The affairs are conducted by the Executive Board which is elected from the members of the general Council, who comprise of elected and nominated members from the Artists and as such the respondent does not satisfy the requirement of ‘State’ under Article 12 of the Constitution.

(5) On merits the respondents have contended that Clause 46(2) of the Service Bye-Laws of the acedemi envisage transfer of an employee at any place and in any post not lower than the post to which he is substantially appointed. It also enjoins that employees may be transferred to foreign service or sent on deputation whether within or outside India. It is stated that acedemi has its headquarter in Delhi with four Regional Centres at Lucknow, Bhubneshwar, Madras and Calcutta. Supervision of the Regional Centres vests with the headquarter. Regional Centres function under the overall control of the headquarter. As per the objects and purpose for which acedemi is established various programmes, exhibitions and book fares, including International exhibitions are organized from time to time. Since States are divided under different Regional Centres, exhibitions, camps, seminars and fares are held in the respective region. Besides holding exhibitions etc. by headquarter and Regional Centres the acedemi also participates in exhibitions and seminars organized by other similar organisations such as National Book Trust, Ahmedabad, Book Fare Nagpur, Book Fare Hyderabad etc. acedemi has limited staff available at headquarter and at Regional Centres. There is also an embargo placed by the Government of India upon acedemi from creating any regular post and in fact 15 posts had to be surrendered by the acedemi as per the directions of the Department of Culture, Government of India. Keeping in view the nature of the work of the acedemi, even LDCs and UDCs of the acedemi are discharging important responsibilities and representing the acedemi at various Fares, Seminars etc. Besides this even the Superintendent and other senior officers are transferred between headquarter and Regional Centres, in accordance with the exigencies of work as and when need arises. Respondents in their reply have given various instances of transfer of Superintendents and other officers. It is stated that not only senior officers but LDCs and UDCs are deputed from time to time by headquarter and by regional centres in their regions to perform important duties besides performing these functions in their own postings, i.e., Headquarter and Regional Centres.

(6) It is further alleged that it was decided by the Executive Board of acedemi that keeping in view the peculiar nature of the work of the acedemi, the staff of headquarter and regional centres should get acquainted with the functions of each other, as also the staff of headquarter should be acquainted with functions of all Regional Centres as and when possible. Therefore, from time to time officers of all categories have been transferred even for limited periods, also to get acquainted with different centres and headquarter. One Ashok Kumar Bhareja was transferred from Headquarters at Delhi to Bhubneshwar for a limited period of approximately one year and then was called back to the headquarter. N.D. De, Udc was also transferred from headquarter Delhi to Calcutta Regional Centre .and after staying there for approximately one and half year, he was brought back to the headquarter. Since as per the terms of appointment and as per service bye-laws all employees are liable to be transferred any where in India and also abroad, in accordance with service bye- laws, exigencies of work and keeping in view the decision of the Executive Board, the policy making body, J.N. Sharma, petitioner No. I was ordered to be transferred to Lucknow where vacancy exists and Kiran Singh, petitioner No. 2, Udc was ordered to be transferred to Bhubaneshwar in exchange of Kedar Nayak who was ordered to be transferred to Delhi who had also not objected to his transfer.

(7) According to the respondents, transfer had been effected, keeping in view the exigencies of work and keeping in view the decision of the Executive Board. Respondents have denied that transfers are in any manner actuated with malice. On merits the allegations regarding mismanagement in the affairs of the acedemi have been refuted by the respondents. It is stated that total strength of the acedemi, including Regional Centres, is 185, which include 20 officers. President of the alleged Association is not an employee of the acedemi and it is denied that the transfer orders are to victimise or harass the petitioners or to compel the Association to withdraw its writ petition.

(8) In the light of the aforementioned pleadings Counsel for the parties were heard.

(9) In exercise of writ jurisdiction it will not be permissible for the Courts to interfere in the order of transfer of an employee from one place to another when the job is transferable unless the order is shown to be vitiated by malafides or that is shown to be contrary to statutory rules and regulations. Challenge to the transfer by the petitioner is only on the ground of malafide. Otherwise, it is not disputed that it is a transferable job and the petitioners’ terms and conditions of employment as also the service bye-laws envisage that they can be ordered to be transferred and asked to serve any where inindia, if necessity thereof would arise.

(10) Respondents have placed reliance upon the decision of the Executive Board for transfer of the Regional Centre staff to the headquarter for training and in exchange transfer of staff from headquarter to Regional Centre. Such a decision was taken in the meeting of the Executive Board held on 14.6.1995, which is to the following effect: “2.2.(a) Promotion of Mrs. Chanda Das Gupta as Temporary Librarian: The temporary appointment of Librarian was noted and ratified. However, Shri Bireshwor Bhattacharya wanted that such officials may be advised to get the training in their respective field. The acedemi may also extend the facilities for going on training which is in the benefit of the working of the acedemi. Members also expressed their unhappiness the way their Ta & Da bills are settled by the Regional Centres. Therefore, it was decided that from time to time the Regional Centre’s staff be called to Headquarter for training and in exchange staff from Headquarter be sent to Regional Centres”

(11) Learned Counsel for the petitioners has questioned the respondents’ version that it was pursuant to the aforementioned policy that the petitioners were ordered to be transferred. It was contended that none of the petitioners was working in the Accounts Section and there was no necessity for their transfer, since petitioners were not, in any manner concerned with preparation of TA/DA bills. This contention of the learned Counsel for the petitioners is belied from the documents available on record. Document Annexure D at page 32 and office order dated 15.1.1996 at page 75 of the paper book would show that both J.N. Sharma and the petitioners have worked in the Accounts section from time to time. Udc and Ldc are not assigned any particular type of work, while at headquarter or Regional Centres. They have to perform multifarious duties and functions and they are well acquainted with various facets of the official work whether it be in the library or in the establishment section or in the accounts etc.

(12) No doubt a writ petition has been preferred by the Association against the acedemi which is still pending adjudication in which prayer has been made for and on behalf of the Association for issuance of directions to Government of India to get a thorough investigation conducted into the alleged illegalities/irregularities or official mal practices pointed out in the alleged petition, by C.B.I, or any other responsible investigating agency and for taking action against the defaulting officials of the acedemi. The said writ petition has been preferred under the signatures of Jaffar Khan, Secretary of the Association and one Samshul Islam, stated to be the President of the Association. But this fact alone that a writ petition has been filed by the Association for the aforementioned relief against the acedemi, cannot be sufficient ground to uphold the petitioners’ contention that the transfer is malafide. It is not shown or demonstrated that the petitioners alone were responsible or that it was at their behest alone that the writ petition has been preferred or that the petitioners alone will have to take a decision to withdraw the petition or give up its prosecution. It is alleged by the petitioners that the membership of the Association is around 150 members. Transfer of petitioners alone will not make any difference. It is not the case of the petitioners that there have been no instances of transfer of UDCs and LDCs in the past. Rather the case is that invariably Ldcs and UDCs are transferred but on promotion from one place to another and that also not without their consent. But when the service conditions, namely, appointment letter and the service bye-laws do provide that an employee can be ordered to be transferred and posted to another place and when the respondents’ version is that the transfer has been effected due to administrative exigencies and in support thereof respondents have also drawn our attention to a decision of the Executive Board, it is not possible to hold that transfer is actuated with malice or that it is only with a view to compel the Association to withdraw the petition. In case some show cause notices had been issued against the petitioners or other office bearers of the Association and same, as is alleged by the petitioners, were later on withdrawn on receipt of the replies furnished by the petitioners and/or the other office bearers, this also cannot be a circumstance to uphold the petitioners’ contention that the transfer is actuated with malice. Petitioners’ contention that daily wager ought to have been transferred and not the regular employees cannot be accepted since the daily wager cannot be ordered to be transferred. He is not appointed against any vacancy or to any post. It is only regular employees, who can be ordered to be transferred from one place to another and not a daily wager.

(13) In case of petitioner No. 2 transfer is to a place from which another employee has been ordered to be transferred to headquarter and in case it is with a view to achieve the objectives of the policy, as formulated by the Executive Board in its meeting, it will not be appropriate for this Court to go into the validity of the decision of the acedemi. If a vacancy existed at Lucknow and there is an embargo on the respondents to fill up any regular post and in order to man that post if petitioner No. I has been transferred from Delhi, respondents’ action cannot be termed as malafide. We do not find that petitioners have succeeded in establishing that transfer is malafide or that the same has been ordered with the sole purpose of victimising or harassing the petitioners or to compel the Association to withdraw or not to pursue the writ petition.

(14) Since we have come to the conclusion that the petitioners otherwise are not entitled to any relief, we need not go in this case into the preliminary objection raised by the respondents as regards the maintainability of the writ petition in this Court.

15. WRIT petition accordingly is dismissed.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

* Copy This Password *

* Type Or Paste Password Here *