w w w . L a w y e r S e r v i c e s . i n



Indra Pal Singh & Another v/s Chairman & Managing Director, Indian Telephone Industries Limited. Bangalore & Others

    Special Appeal Nos. 418 of 2011 & 1679 of 2009 & Civil Misc. Writ Petition No. 20876 of 2011 & 20882 of 2011

    Decided On, 29 May 2015

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAJES KUMAR & THE HONOURABLE MR. JUSTICE ARVIND KUMAR MISHRA-I

    For the Appellants: Party-in-Person. For the Respondents: Gopal Mishra, Advocate.



Judgment Text

Rajes Kumar, J.

Indra Pal Singh (hereinafter referred to the "appellant no.1") and Smt. Neerja Raghuvanshi (hereinafter referred to as the "appellant no.2") are the employee of Indian Telephone Industries, Limited, a company incorporated under the Indian Companies Act, 1956. The appellant were appointed on the post of Wiring and Wrapping in Category "C" and "B" respectively at Mankapur Unit, State of Uttar Pradesh. The appellant no.1 claims to be officer bearer of Association of the employees long back in 1993.

The appellants alleged that in order to victimize them, they were transferred by order dated 13.02.1998 and posted at Delhi in the Customer Care Organization, I.T.I. Limited Zone, Repair Centre (North), Laxmi Nagar. Thereafter, by a temporary transfer they were sent to Naini Unit on 08.10.1998. They were relieved by order dated 06.05.1999 to report at Mankapur Unit as aforesaid transfer at Naini Unit was for six months. However, in the meantime, the period of six months was extended and therefore the aforesaid relieving order became inoperative. The appellants were transferred back to Mankapur Unit vide order dated 01.11.1999 but this transfer order was on their request. After about one and half years, the appellants were transferred to I.T.I., Palakkad Unit vide order dated 04.07.2011. This order was passed by ITI Limited, Corporate Office, Bangalore. This order of transfer was modified by posting the appellants at Ambala. When the appellants went to join at Ambala they were informed by the Deputy General Manager that the transfer orders have been withdrawn and they were allowed to continue at Mankapur. Appellants thereafter submitted joining on 20.9.2001 at Mankapur unit. The appellants were informed, vide order dated 18.9.2001, that their order to report at Ambala has been modified and they were posted at Meerut unit which is under ITI, Naini. The appellants, pursuant thereto, joined at Meerut and submitted their joining on 27.9.2001.

The appellants filed Writ Petition No.6399 of 2001 before the Lucknow Bench of this Court challenging the transfer order dated 18.09.2001 whereby the appellants have been posted at I.T.I., Meerut.

It appears that when the Meerut Service Centre, was proposed to be closed, one Sri S.S.Choudhary asked Sri Vasudevan to repatriate appellants to Mankapur Plant, at this stage. Appellants/Petitioners filed Writ Petition No.5376 (SS) of 2002 at Lucknow Bench of this Court, claiming following reliefs:

"(a) to issue a writ, direction or

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order in the nature of writ of Mandamus commanding the opposite parties to treat the petitioners the employees of Indian Telephone Industries Limited, Mankapur Company and allow them to work under the said Company;

(b) to issue a writ, direction or order in the writ of mandamus restraining the Opposite Party No.1 from transferring the petitioner to Naini Unit after the Closure of CSS Centre at Meerut;

(c) to issue any other appropriate writ or direction as Hon'ble Court may deem fit in the nature and circumstances of the case; and"

Both the aforesaid writ petitions have been transferred by the order of Hon'ble The Chief Justice, dated 18.03.2011 to the Allahabad with the direction to decide the writ petitions along with the Special Appeal No.1679 of 2009 at Allahabad. After the said order, both the writ petitions have been transferred to Allahabad, and have been numbered as Writ Petition No.20882 of 2011 and Writ Petition No.20876 of 2011.

It appears that there was proposal for closure of Meerut Service Centre where appellants were posted thus they were transferred back to Naini vide order dated 15.9.2002. However, appellants were remained posted at Meerut on temporary basis vide order dated 14.11.2002. By another office order dated 4.5.2003 appellants were posted at Meerut but the area of function was Muzaffarnagar and Meerut respectively. There was some change in area of function as notified by order dated 31.8.2003 but posting remained at Meerut. In January, 2004 appellants requested the General Manager, ITI, Naini to retransfer them at Mankapur since their children were studying at school situate inside ITI, Township, Mankapur. The appellants having not been adjusted at Mankapur, the appellant filed Writ Petition No.25826 of 2004 seeking the following relief :

"(a) to issue a writ, direction or order in the nature of writ of mandamus commanding the opposite parties not to treat the petitioners the employees of Indian Telephone Industries Limited, Naini company and allow them to work at Indian Telephone Industries Mankapur Company and not to interfere in peaceful working of the petitioners at Mankapur Unit and also not to pass the frequent orders of transfer.

(b) to issue a writ, direction or order in the writ of mandamus restraining the opposite party no. 1 and 2 from transferring the petitioner to Naini Unit after the Closure of Office at Meerut and Muzaffar Nagar. "

The aforesaid writ petition has been dismissed by the learned Single Judge on 24.02.2011. It appears that on 13.04.2004 the appellants have been transferred to Naini Unit and in pursuance thereof, the appellants joined on 15.07.2004. The order of learned Single Judge is reproduced below :

"1. Heard Sri Inder Pal Singh, petitioner No. 1 in person who has argued this matter for both the petitioners.

2. Infact petitioner no. 2 is the wife of petitioner no. 1 and both are working as Senior Technician in Indian Telephone Industries (herein after referred as 'ITI'). Petitioners were appointed on the post of Wiring and Wrapping in category 'C' and category 'B' respectively in ITI, Mankapur unit as is evident from Annexures 4 and 5 to the writ petition. Infact petitioner no. 2 appears to have been working since earlier hence he was regularised. Petitioner no. 1 claims to be office bearer of Association of the employees long back in 1993 when he made certain complaints regarding misuse of company's money. The allegations were made against one Rewati Raman, then then Additional General Manager. There are some other allegations against Rewati Raman but I refrain myself from referring the same since Rewati Raman has not been impleaded in the writ petition.

3. The petitioners, as alleged, in order to victimise them, were transferred by order dated 13.2.1998 and posted at Delhi in the Customer Care Organisation, ITI Ltd. Zone, Repair Centre (North), Laxmi Nagar. Thereafter as a temporary transfer they were sent to Naini unit on 8.10.1998. They were relieved by order dated 6.5.1999 to report at Mankapur unit as aforesaid transfer at Naini was for six months. However, in the meantime, the period of six months was extended and therefore the aforesaid relieving order became inoperative. Petitioners were transferred back to Mankapur vide order dated 1.11.1999 but this transfer was on their request as is evident from Anenxures No. 13 and 13-A to the writ petition. After about one and half years petitioners were transferred to ITI Palakkad unit vide order dated 4.7.2001. This order was passed by ITI Limited, Corporate Office, Bangalore. This order of transfer was modified by posting the petitioners at Ambala. When the petitioners went to join at Ambala they were informed by the Deputy General Manager that the transfer order has been withdrawn and they were allowed to continue at Mankapur. Petitioners thereafter submitted joining on 20.9.2001 at Mankapur unit. Petitioners were informed vide order dated 18.9.2001 that their order to report at Ambala has been modified and they were posted at Meerut unit which is under ITI, Naini. Petitioners, pursuant thereto, joined at Meerut and submitted their joining on 27.9.2001. There was proposal for closure of Meerut Service Centre where petitioners were posted and they were transferred back to Naini vide order dated 15.9.2002. Petitioners were posted on temporary transfer to Muzaffarnagar and Meerut, respectively, vide order dated 14.11.2002. By another office order dated 4.5.2003 petitioners were posted at Meerut but the area of function was Muzaffarnagar and Meerut respectively. There was some change in area of function as notified by order dated 31.8.2003 but posting remained at Meerut. In January, 2004 petitioners requested the General Manager, ITI, Naini to retransfer them at Mankapur since their children were studying at school situate inside ITI, Township, Mankapur. Petitioners having not been adjusted at Mankapur, writ petition has been filed seeking mainly following reliefs:

"(a) to issue a writ, direction or order in the nature of writ of mandamus commanding the opposite parties not to treat the petitioners the employees of Indian Telephone Industries Limited, Naini company and allow them to work at Indian Telephone Industries Mankapur Company and not to interfere in peaceful working of the petitioners at Mankapur Unit and also not to pass the frequent orders of transfer.

(b) to issue a writ, direction or order in the writ of mandamus restraining the opposite party no. 1 and 2 from transferring the petitioner to Naini Unit after the Closure of Office at Meerut and Muzaffar Nagar. "

4. Petitioners referred to decisions in case of Director Institute of Mental Health and Hospital, Agra vs. Santosh Kumar Gautam and others 2010(3) ESC 1868 (All)(DB), BCPP Mazdoor Sangh and another vs. N.T.P.C. And others AIR 2008 SC 336 and Jivendra Nath Kaul vs. Collector/District Magistrate and another (1992) SCC 576 stating that a workman cannot be transferred from one unit to another unless Standing Order contains such a clause. However, none of the judgments is applicable in this case for the reason that specific provision contained in the appointment letters were not in those cases. Therefore reliance on decisions which are in respect of only standing orders have no application to this case.

5. Petitioner Inder Pal Singh did not dispute that both petitioners are still working in ITI, Naini unit for the last several years. No order of transfer is under challenge in this writ petition. The petitioners' real intention is that this Court should direct respondents to transfer them from Naini to Mankapur. Such a mandamus in absence of any statutory right cannot be granted.

6. Under the circumstances, particularly, when petitioners have joined at Naini long back and are working without challenging the order of transfer to Naini, in my opinion, no relief can be granted to them.

7. However, Inder Pal Singh petitioner no. 1 who has appeared in person tried to argue that petitioners' services are not transferable in as much as standing order does not contain any such clause, as is applicable to ITI, Mankapur. There is no provision with respect to transfer from one place to another.

8. To my mind, submission is thoroughly misconceived. The very appointment letters of petitioners show that petitioners' services are transferable through out the country. Clause 6 (Annexure 4 to the writ petition) and Clause 4 (Annexure 5 to the writ petition) of the letters of appointment and regularisation of petitioners read as under:

"6. You will be liable to be transferred to any other department or position in the company or to any of our other production Units/Sales and services offices in India or abroad."

"4. You will be liable to be transferred to any other Department or position in the Company or to any of our other production Units/Sales and Service Offices in India or Abroad."

9. Similar argument came up for consideration before this Court when certain employees at Naini were transferred to other places in Suresh Chandra Dixit vs. ITI, Naini, 2007 (5) ADJ, 196. Question no. 1 formulated therein reads as under:

"Whether the petitioners' service is transferable from one unit to another unit only or it can be transferred from one place to another and the impugned order of transfer is permissible under the conditions of service"

10. The finding recorded in response to issue no. 1 reads as under:

"From the pleadings of the parties and the documents available on record it is evident that the petitioners are liable to be transferred from one place to another or to any other position since the condition of appointment making their service transferable is worded in wide terms. The appointment letters of three petitioners in Writ Petition No. 29158 of 2006 have been placed on record as Annexure-CA-2 and the condition of appointment making service transferable as mentioned in the appointment letters of the aforesaid three petitioners is reproduced as under:-

"Petitioner No. 1: 'HINDI'

"Petitioner No. 2: 'HINDI'

"Petitioner No. 3: 'HINDI'

It is not disputed that the appointment letter of other petitioners are similarly worded. The English translation of the aforesaid condition of appointment as reproduced in this Court's judgment in Virendra Nath Srivastava (Supra) is as under:-

"You will be liable to be transferred to any of our Sales and Service Offices in India or Departments or to any other position in the Company."

A bare perusal of the above makes it clear that the petitioners services are transferable throughout India from one unit to another or any Sales or Service Offices or Department or to any other position. The GSM project of ITI Ltd. is a kind of work charge unit created by the company as a result of getting the said contract and in order to complete the said project it has identified various sites and for administrative functioning, has made its head office at Mankapur unit but ultimately is to be governed by the ITI's corporate office. From the language and condition of appointment making service transferable it is evident that the petitioners can be transferred to any position or post also irrespective of site, unit or office of ITI. It is consistent with the very nature of the work, which has to be discharged by the company itself. Therefore, it cannot be said that the aforesaid condition of appointment does not empower the respondents to transfer petitioners to the aforesaid project or to various sites of the said project.

In National Hydro Electric Power Corporation Ltd. versus Sri Bhagwan and others, AIR 2001 SC 3309 a similar argument was raised that the employees of the Corporation cannot be transferred to the Project but it was held that the corporate office and Project constitute different units and employees can be transferred from one place to other being an incidence of service and no exception can be taken to such transfer order. Therefore, I hold that the petitioners are transferable in accordance with the terms of their agreement. Issue no.1 is decided accordingly."

11. The argument raised by petitioners therefore having already been answered in the above case the appointment letters of petitioners also contain similar stipulation, I do not find any force in the submission advanced by petitioners.

12. In the result, petition being devoid of merits is dismissed. "

Against the aforesaid order of learned Single Judge, the appellants filed Special Appeal No.418 of 2011.

It appears that on 09.10.2007, appellant no.1 has been dismissed from service. The said order has been challenged in Writ Petition No.2305 of 2008, wherein an interim order has been passed on 25.01.2008 staying the operation of the dismissal order. The aforesaid dismissal order has been withdrawn on 11.02.2008. It appears that meanwhile, the appellants moved amendment application claiming other reliefs. The said writ petition has been disposed of vide order dated 03.04.2008. So far as relief relating to dismissal order of the appellant no.1 was concerned, it was rendered infructuous. However, some relief has been granted in part. In the order dated 03.04.2008, learned Single Judge has held that the charge sheet has been issued by the competent authority. That part of the order has been challenged by the appellants in Special Appeal No.654 of 2008, which has been disposed of vide order dated 27.08.2008 giving opportunity to the appellant no.1 to raise the issue before the authority below when the disciplinary proceedings may be taken. In the disciplinary proceeding, enquiry officer has been appointed to make the enquiry. It appears that two charge sheets have been submitted against the appellant no.1 and after giving opportunity, enquiry report has been submitted. On the receipt of the enquiry report, show cause notice has been issued asking the appellant no.1 to give reply and thereafter, on the consideration of the reply, vide order dated 03.10.2009, the services of the appellant no.1 has been terminated. The appellant no.1 has challenged the termination order in Writ Petition No.43810 of 2009, which has been dismissed by the learned Single Judge vide order dated 26.08.2009 on the ground of alternative remedy. Learned Single Judge has held that against the termination order, the appellant no.1 has alternative remedy under the Industrial Law. Against the order of the learned Single Judge, the appellant no.1 filed Special Appeal No.1679 of 2009. In view of the order of Hon'ble The Chief Justice both the Writ Petition Nos.20882 of 2011 and 20876 of 2011 are being decided along Special Appeal No.418 of 2011 and Special Appeal No.1679 of 2011.

Heard Sri Indra Pal Singh, appellant no.1 in person and Sri Gopal Mishra, learned counsel appearing on behalf of the respondents.

The appellant no.1 submitted that he was posted in Mankapur Unit of Indian Telephone Industries Limited. The standing order of Mankapur Unit was applicable on the appellants. He submitted that he was entitled to be retained as the employee of Mankapur Unit. The transfer order was wholly unjustified and full of malice, just to harass the appellant no.1. He submitted that even after the transfer from Mankapur Unit to Naini Unit, he should be treated as the employee of Mankapur Unit and as per the standing order of Mankapur Unit, his services could be terminated only by the Manager of the Mankapur Unit. He further submitted that the Chief General Manager of Headquarter has no jurisdiction to pass the termination order. He placed reliance on the several decisions of the Apex Court and this Court.

Sri Gopal Mishra, learned counsel appearing on behalf of the respondents submitted that the appellants are the employee of company, named, Indian Telephone Industries Limited. Their initial appointment was made at Mankapur Unit but as per Clause (6) of the appointment letter dated 31.10.1985 they could be transferred from one unit to another unit. Therefore, their transfer order from one Unit to another Unit was wholly justified. He submitted that first transfer order was passed in the year 1998 and thereafter, several other transfer orders have been passed, which have not been challenged by the appellant no.1. The appellant no.1 for the first time challenged the transfer order dated 18.09.2001 when the appellant no.1 has been transferred to Meerut Unit by way of Writ Petition No.20882 of 2011, which means that the appellant no.1 has accepted the earlier transfer orders and has accepted that under the terms of his appointment letter, he may be transferred from one Unit to another Unit. Therefore, it is not open to the appellant no.1 to challenge the authority of transfer. He submitted that since 15.07.2004, the appellants are working at Indian Telephone Industries Limited, Naini therefore, the earlier writ petitions relating to the earlier transfer orders have become infructuous. He submitted that the claim of the appellant no.1 that he should not be treated as the employee of Indian Telephone Industries Limited, Naini andthey would have been allowed to work at Mankapur Unit of Indian Telephone Industries Limited has been adjudicated by the learned Single Judge at length in Writ Petition No.25826 of 2004 vide order dated 24.02.2011. Although this order has been challenged in Special Appeal No.418 of 2011, in view of the reasoning given by the learned Single Judge in order dated 24.02.2011, the present special appeal has no force and is liable to be dismissed. He submitted that the relief which has been claimed in Writ Petition No.25826 of 2004 has also been claimed in Writ Petition No.20876 of 2011 and, therefore, for the same relief this writ petition is liable to be dismissed. For the reasons given in the order dated 24.02.2011 in Writ Petition No.25826 of 2004 this writ petition is liable to be dismissed. He submitted that the appellant no.1 has raised all the jurisdictional issue before the disciplinary authority. The disciplinary authority in detail has dealt with all the objections. In the writ petition challenging the dismissal order, the appellant no.1 has raised the question of law and fact. The learned Single Judge has rightly dismissed the writ petition on the ground of alternative remedy as the appellant no.1 has alternative remedy under the Industrial Law being workman. He submitted that the question of jurisdiction can be raised before the appropriate authority under the Industrial Law and the Industrial Court is empowered to adjudicate such questions. On the objection of jurisdiction as well as other questions, both on law and fact. He submitted that the Apex Court has consistently held that where alternative remedy is provided, High Court should not entertain the writ petition under Article 226 of the Constitution of India.

We have considered the rival submissions and perused the record.

The appellant nos.1 and 2 are the employees of Indian Telephone Industries Limited, a company incorporated under the Indian Companies Act, 1956. A company that has various units across the country. The appointment letters of the appellants clearly stipulate that they can be transferred to any other department or position in the company or to any of our other production units/sales and service centres in India or abroad. Such terms and conditions, mentioned in the appointment letters are binding upon the appellants and the appellants can not resile. Learned Single Judge in Writ Petition No.25826 of 2004 has dealt this issue in detail and relying upon the decision of this Court in the case of Suresh Chandra Dixit Vs. I.T.I., Naini, reported in 2007 (5) ADJ, 196 and the decision of the Apex Court in the case of National Hydro Electric Power Corporation Ltd. Vs. Sri Bhagwan and others, reported in AIR 2001 SC, 3309 has held that the post of the appellants were transferable in accordance with the terms of their agreement and upheld the transfer order.

We do not find any error in the order of learned Single Judge. We further find that in pursuance of the transfer order dated 13.04.2004, the appellants joined Naini unit on 15.07.2004 and since then working in the said unit. The order dated 13.04.2004 has not been challenged in any of the writ petition.

In view of the above, we are of the view that the issue of transfer raised in Writ Petition Nos.20882 of 2011 and 20876 of 2011 and in Special Appeal No.418 of 2011 have lost its relevance and have become infructuous by efflux of time. Accordingly, the Writ Petition Nos. 20882 of 2011 and 20876 of 2011 and Special Appeal No.418 of 2011 are hereby dismissed.

Special Appeal No.1679 of 2009 has been filed against the order of learned Single Judge dated 26.08.2009 passed in Writ Petition No.43810 of 2009. The said writ petition has been filed by the appellant no.1 challenging the termination order dated 03.10.2009. Learned Single Judge has dismissed the writ petition on the ground of alternative remedy, inasmuch as the appellant no.1 has remedy under the Industrial Law, being workman.

We have perused the termination order. In the termination order, the competent authority has dealt in detail the objection of the appellant no.1 relating to the jurisdiction and further the charges, reply and recorded the finding thereupon. The termination order has been challenged on the ground of jurisdictional error as well as on factual aspect and on merit.

We are of the view that the factual aspect can not be examined in Writ jurisdiction and can more appropriately be examined before the statutory authority. We are further of the view that the statutory authority has full jurisdiction to decide the question of jurisdiction, therefore, the appellant no.1 is not remedyless and has an alternative remedy under the Industrial Law.

Apex Court as well as this Court has consistently held that if there is alternative remedy available, the Writ Court should not entertain the writ petition. (See Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement & another, reported in JT 2010 (4) SC 54, in the case of U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another, reported in (2005) 8 SCC, 264, in the case of Zunaid Enterprises and others Vs. State of madhya Pradesh and others, reported in (2012) 4 SCC, 211 and the decision of this Court in the case of Dr. Sushila Tyagi Vs. State of U.P. And others, reported in 2003 (51) ALR, 634).

In view of the above, we do not find any error in the order of learned Single Judge, which requires interference by this Court.

Special Appeal No.1679 of 2009 is, accordingly, dismissed.
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