# Mashooq Ahmad v. Manager (Personal & Industrial Relations) B.P.C. Ltd

- **Citation:** (2000) 2 ILRA 36
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-06-08
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mashooq-ahmad-v-manager-personal-industrial-relations-b-p-c-ltd-39051
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000

36
State of U.P. Vs. Shatrughan Lal A.I.R 1998
SC 3038 in which it has been held that the
relevant documents which are referred to in
the charge sheet and which are relied on by
the enquiry officer have to be supplied to the
charge-sheeted
employee.
In
paragraphs
14,15,16,17,18,19,20,21,22,23 and 69 of the
writ petition it has been contended that copies
of the documents referred to in the charge
sheet were not supplied to the petitioner
despite his requests. A perusal of the charge
sheet, copy of which is Annexure 3 to the writ
petition, shows that a large number of
documents have been referred to therein.
Hence in view of the aforesaid decision of the
Supreme Court copies of these documents
should have been supplied to the petitioner,
but it appears that despite his repeated
requests they were not supplied to him.

5. The reply to the relevant paragraphs in
the writ petition alleging that the relevant
documents referred to in the charge sheet
were not supplied to him is contained in
paragraph 12 of the counter affidavit, but this
paragraph does not dispute the allegation that
the copies of the aforesaid documents were
not supplied to the petitioner. This assertion
of the petitioner that the copies of the relevant
documents referred to in the charge sheet
were not supplied to him has not been
seriously disputed by the respondent.

6. Hence in view of the decision of the
Supreme
Court
in
state of U.P. Vs.
Shatrughan Lal (Supra) this writ petition has
to be allowed The writ petition is allowed.
The impugned order dated 8.6.1999 is
quashed. However, it is open to the authority
concerned to hold a fresh enquiry and pass a
fresh order after gibing opportunity of hearing
to the petitioner in accordance with law.

Petition Allowed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' 0$5&+
'$7(' $//$+$%$' 0$5&+
%()25(
%()25(
7+( +21·%/( 0 .$7-8 -
7+( +21·%/( 0 .$7-8 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

0DVKRRT $KPDG
«3HWLWLRQHU
9HUVXV
0DQDJHU3HUVRQDO ,QGXVWULDO 5HODWLRQV
%3& /WG 1DLQL $OODKDEDG «5HVSRQGHQW

&RXQVHO IRU WKH 3HWLWLRQHU
6UL 7HM 3UDWDS 6LQJK
6UL $. 6ULYDVWDYD
&RXQVHO IRU WKH 5HVSRQGHQW
6&
6UL 3. 0XNKHUMHH

&RQVWLWXWLRQ
RI
,QGLD
$UWLFOH

7UDQVIHU RI FODVV ,,, HPSOR\HH WUDQVIHUUHG
IURP
$OODKDEDG
WR
%RPED\
3ULQFLSOH
RI
H[LJHQF\ FDQ QRW EH FRQVLGHUHG LVRODWLRQ
3HWLWLRQHU
GRHV
QRW
RSW
IRU
YROXQWDULO\
WUDQVIHU
VFKHPH
:KLFK
UHVXOWHG
WKH
LPSXJQHG RUGHU WR JHW ULG RI KLP 1R OHWWHU
RU FRQWUDFW FDQ RYHUULGH $UWLFOH RI WKH
&RQVWLWXWLRQ
+HOG
,W KDV EHHQ PHQWLRQHG LQ WKH SHWLWLRQHU¶V
DSSRLQWPHQW
OHWWHU
WKDW
KH
FDQ
EH
WUDQVIHUUHG
WR
WKH
EUD
FKHV
RI
WKH
FRUSRUDWLRQ EXW VDLG FODXVH FDQQRW RYHUULGH
$UWLFOH RI WKH &RQVWLWXWLRQ ,Q P\ RSLQLRQ
WKH VWDWHPHQW LQ WKH DIRUHVDLG OHWWHU WKDW WKH
SHWLWLRQHU FDQ EH WUDQVIHUUHG WR WKH EUDQFKHV
RI WKH FRUSRUDWLRQ FDQQRW PHDQ WKDW WKH
FRUSRUDWLRQ FDQ DFW DUELWUDULO\ LQ WKH PDWWHU
1R OHWWHU RU FRQWUDFW FDQ RYHUULGH $UWLFOH
RI
WKH
&RQVWLWXWLRQ
7KH
UHVSRQGHQW
FRUSRUDWLRQ LV DQ LQV WUXPHQWDOLW\ RI WKH
6WDWH DQG KHQFH LWV DFWLRQ LV VXEMHFW WR
$UWLFOH RI WKH &RQVWLWXWLRQ SDUD
$,5 6&

By the Court

1. This writ petition has been filed against
the impugned transfer order dated 10.10.1994.
Annexure
1
to
the
writ
petition.
2All] Mashooq Ahmad V. Manager (Personal & Industrial Relations) B.P.C. Ltd.
37
Heard learned counsels for the parties.

2. The petitioner was appointed as class
III employee on 13.10.1993 in the service of
the respondent corporation, which is a public
sector
undertaking
and
hence
an
instrumentality of the State within the
meaning of Article 12 of the Constitution. On
30.9.1989 the petitioner was promoted as
Assistant-cum-typist and since then he has
been working at Allahabad on the post as
stated in paragraph 2 of the writ petition. By
the impugned order dated 10.10.1994 he was
transferred from the Allahabad to Bombay
office of the respondent. He made a
representation against that order but to no
avail. Hence he filed writ petition no. 36888
of 1994 which was disposed of by this court
with the direction that the petitioner may
make a representation vide Annexure 3 to the
writ petition. The petitioner again made
another representation but again to no avail.
The petitioner has alleged that his family lives
in Allahabad and he is only a clerical
employee and it is not possible for him to take
his family to Bombay and hence he will have
to maintain two establishments one at
Allahabad and another at Bombay, which is
not possible for him or his meagre salary.
Hence he filed this writ petition.

3. An interim order dated 15.10.1998 was
passed in this case which was set aside in
special appeal no. 972 of 1998 by order dated
12.1.1999. However, as I am deciding the
petition finally the aforesaid orders of this
Court pertaining to the interim orders are no
longer relevant.

4. A counter affidavit has been filed on
behalf of the respondent and in paragraph 9 of
the same it is stated that the petitioner's
service was transferable. In paragraph 10 of
the counter affidavit it is stated that the
respondent has branches throughout India,
and as a routine course on account of
exigencies
of
work the employees are
transferred from the head office to other
branches and also between the branches. In
paragraph 11 of the counter affidavit it is
stated that a vacancy of typist arose at the
Bombay office on account of voluntary
retirement of a typist. Hence the petitioner
was transferred from Allahabad to the
Bombay office. In paragraph 20 of the counter
affidavit it is stated that the petitioner went on
medical leave w.e.f. 2.12.1994 stating that
when he is fit he will carryout the transfer
order. True copy of the letter dated 6.12.1994
is Annexure C.A. 7 to the counter affidavit.
He wrote another letter dated 10.4.1995 vide
Annexure C.A.8 stating that he is still ill and
shall join at the Bombay office as soon as he
is fit. In paragraph 23 of the counter affidavit
it is stated that several other workmen have
been transferred to various branches of the
respondent corporation.

5. In the rejoinder affidavit the petitioner
has stated in paragraph 1 that earlier on
17.8.1995 this court stayed the operation of
the transfer order until further orders of but
against that order a special appeal had been
filed which was allowed. In paragraph 7 of the
rejoinder affidavit it is stated that the transfer
order was passed as a measure of harassment
to get rid of the employees who were not
succumbing to the pressure of opting for ;the
voluntary retirement scheme, and hence it was
malafide. In paragraph 8 of the rejoinder
affidavit it is stated that the transfer order was
in violation of the relevant standing orders. In
paragraph 14 of the rejoinder affidavit it is
stated that the petitioner was suffering from
liver abscess and was admitted in Nazreth
Hospital at Allahabad in December 1994 and
he has no money to continue his treatment.
When he tried to get medical reimbursement
the same was granted only on the condition
that he joins at Bombay. It is stated that the
petitioner was directed to get the medical bills
sanctioned
by
the
Regional
Manager
(Bombay)
where
the
petitioner
was
transferred. In paragraph 15 of the rejoinder
affidavit it is stated that four employees
whose names are given therein had been
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

38
transferred to various branch offices. They
filed a writ petition which was dismissed but
thereafter they filed a special appeal before
this court and during the pendency of the
special appeal they were informed by the
letter of the company dated 15.11.1997 that if
they withdraw the special appeal their transfer
orders will be cancelled and they will be
permitted to rejoin in the office at Allahabad.
Hence they got their special appeal dismissed
as withdrawn and the transfer orders of these
persons were then cancelled.

6. In paragraph 20 of the rejoinder
affidavit it is stated that the normal practice of
the respondent company is that whenever they
required any personnel for any of their branch
offices
they
issue
circulars
inviting
applications from the interested employees
who wish to join the said branch office. Copy
of the one of the said circulars dated
15.11.1997 is Annexure 6 to the rejoinder
affidavit. However in the case of the
petitioner he was compelled to join at the
Bombay branch. In paragraph 47 of the
rejoinder affidavit it is stated that the
petitioner was not a position to join at
Bombay.

7. On the facts and circumstances of the
case I am of the opinion that the transfer order
is arbitrary and illegal. It may be noted that
the transfer orders of several persons whose
names are mentioned in paragraph 15 of the
rejoinder affidavit viz. S/Sri L.N. Tiwari, B.P.
Yadav, K.K. Misra and R.P. Pandey who
were also working at Naini branch at
Allahabad were cancelled. Hence in my
opinion there is discrimination against the
petitioner.

8. It may also be mentioned that the
petitioner is only a class III employee and it is
economically impossible for a class III and
class IV employee in these hard days of high
inflation to live and survive with his family at
Bombay after transfer from Allahabad. It must
be under stood that in big cities like Bombay
living expenses are very high and for a class
III or class IV employee who has been living
at Allahabad to be sent to Bombay will really
be an indirect way of depriving him of his job
because he simply cannot survive at Bombay.
He will have to take a house on heavy rent
and also bear other heavy expenditures which
on his paltry salary he cannot afford. This
court must take a realistic view in the matter.
No doubt it has been held in many cases that
transfer is an exigency of service, but at the
same time it must also be understood that no
government authority or instrumentality of the
State can act arbitrarily, as arbitrariness
violates Article 14 of the Constitution vide
Meneka Gandhi Vs. Union of India AIR 1978
SC 597. Thus the principle that transfer is an
exigency of service cannot be considered in
isolation, but it must be read alongwith the
equally
important
principle
that
every
government authority or instrumentality of the
State (e.g. a public sec to undertaking like the
respondent) must act in a non-arbitrary
manner. We cannot consider only the first
principle and ignore the second one. In fact
the second principle i.e. the principle that
arbitrariness violates Article 14j of the
Constitution is a constitutional principle.
Hence any transfer order which is arbitrary
becomes illegal as it is in violation of Article
14 of the Constitution.

9. In my opinion the transfer of a class III
or class IV employee of a public sector
undertaking from the middle size town like
Allahabad to a far away big city like Bombay
is arbitrary as it fails to take into consideration
the fact that such an employee cannot in these
hard days of inflation survive in such a far
away big city. The living expenses in the big
cities are very high and for class III or class
IV employee it is very difficult to survive
there. This Court cannot function in an ivory
tower
divorced
from
economic
realities
prevailing in the country, but must take a
practical common sense view.
2All] Vinay Kumar Madhok V. Om Prakash and others
39
10. If the respondent corporation really
needed a typist at Bombay it could have
advertised the post of typist in a Bombay
newspaper and could have selected a good
typist who lives in Bombay. The fact that the
petitioner who lives in Allahabad has been
transferred to Bombay supports the version of
the petitioner that the real purpose of his
transfer was because he refused to opt for the
voluntary transfer scheme, and thus it was an
indirect method to get rid of him. In my
opinion this is clearly malafide.

11. No doubt it has been mentioned in the
petitioner's appointment letter that he can be
transferred to the branches of the corporation
but the said clause cannot override Article 14
of the Constitution. In my opinion, the
statement in the aforesaid letter that the
petitioner can be transferred to the branches of
the
corporation
cannot
mean
that
the
corporation can act arbitrarily in the matter.
No letter or contract can override Article 14
of
the
Constitution.
The
respondent
corporation is an instrumentality of the State
and hence its action is subject to Article 14 of
the Constitution.

For the reasons given above the petition is
allowed. The impugned transfer order dated
10.10.1994 and 10.1.1995. Annexure-1 and 4
to the petition are quashed. No order as to
costs.
Petition Allowed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,
&,9,/ 6,'(
9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( $.<2* -
7+( +21·%/( $.<2* -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

9LQD\ .XPDU 0DGKRN
«3HWLWLRQHU
9HUVXV
2P 3UDNDVK DQG RWKHUV
«5HVSRQGHQWV
&RXQVHO IRU WKH 3HWLWLRQHU
6KUL $GLW\D 1DUDLQ
&RXQVHO IRU WKH 5HVSRQGHQWV
6&
6KUL 5DMHVK 7DQGRQ

83 8UEDQ %XLOGLQJV 5HJXODWLRQ RI /HWWLQJ
5HQW DQG (YLFWLRQ $FW ± ± 6 L D ±
%RQDILHG QHHG ± DSSOLFDWLRQ IRU UHOHDVH E\
WKH ODQG ORUG IRU KLV RZQ UHVLGHQWLDO SXUSRVH
± 7HQDQW REMHFWHG DV EHLQJ WKH RQO\ PHDQV
IRU KLV EXVLQHVV ± FRXUW IRXQG WKH QHHG RI
ODQG
ORUG WR EH PRUH ERQDILHG ± V WKH
EXVLQHVV FDQ EH VWDUWHG LQ VR PDQ\ ZD\V ±
EXW WKH VKHOWHU GHSHQGV VROHO\ XSRQ WKH
DFFRPPRGDWLRQ LQ TXHVWLRQ
+HOG ±
1HHG IRU VKHOWHU WDNHV SUHFHGHQFH DV WKHUH
LV QR
VXEVWLWXWH IRU LW 2QH FDQ KRZHYHU
PDQDJH EXVLQHVV LQ PDQ\ ZD\V 0RUHRYHU LQ
WKH
LQVWDQW FDVH SHWLWLRQHU LV QRW VROHO\
GHSHQGHQW RQ LQFRPH IURP VKRS ODQG ORUG
VROHO\ GHSHQGHQW XSRQ IURP VKRS ODQGORUG
VROHO\ GHSHQGDQW XSRQ WKH DFFRPPRGDWLRQ
IRU KLV UHVLGHQWLDO QHHG ZKLFK LV IRXQG WR EH
ERQDILGH ,Q LWV DEVHQFH KH DQG KLV IDPLO\
DUH ERXQG WR VXIIHU LUUHSDUDEO\ SDUD
&DVH ODZ GLVFXVVHG
 $5&
 $5&
 $5&

By the Court

1. This is a tenant's petition under Article
226. Constitution of India praying for writ of
certiorari to quash the impugned order dated
3.11.1999
passed
by
Respondent
no.2/
Additional District Judge, Dehradun in Rent
Control Appeal no. 10 of 1999 (Om Prakash
Versus Vinay Kumar Madhok) filed by
landlord against the judgment and order dated
January 8, 1990 passed by the Prescribed
Authority/
Respondent
no.3
dismissing
release application of the landlord under
Section 21 (1) (A), U.P. Urban Building
(Regulation of letting, Rent and Eviction )
Act, 1972. U.P. Act No. XIII of 1972 (for
short called 'the Act'), being P.A. Case no.
168 of 1987 (Om Prakash Versus Vinay
Kumar Madhok).

2. Both the parties in the instant case were
initially tenants of the residential house