By transferring you, your boss seeks
to achieve something
which he cannot otherwise achieve
DON’T LET HIM SUCCEED
Are you scared of your transfer to a different State? Is transfer such an issue that compels you to surrender before your employer? Hey, but then … have you ever thought if your ‘boss’ is even authorized to issue a transfer order to you? In most of the cases, he is not. Actually.
And in spite of this, if you are transferred to a different State and you have reasons to believe that your transfer is not a bonafide exercise due to a valid administrative exigency but a motivated act of your boss, challenge your transfer order. Don’t just accept it like a goat.
How can you accept a most arbitrary, capricious and discriminatory order merely because your boss does not want to see your face in the office where he rules. Remember, your transfer from one place to another is always illegal and unjustified if it is punitive or malafide or an act of Unfair Labour Practice on the part of your boss for which you can sue him. Yes. You can get him prosecuted.
You must know that a transfer should always be a bonafide exercise due to valid administrative exigency. And when it becomes a motivated act of victimisation and is contrary to terms of your appointment letter, it is also in contravention of the rules.
Transfer: An Unfair Labour Practice: A transfer is malafide if it is made just under the guise of following management policy. Such action is deemed to be an Unfair Labour Practice. Hence, while dealing with a case of transfer, the Calcutta High Court in the case of Birendra Kumar Singh vs. Union of India and others, has held that:
“….there might be reasons, which might impel the Court to pierce the veil and discover the truth and infer malice in fact or mala fide. … In a case where there are materials from which the Court can infer malice or mala fide, if it appears to the Court that there are such malice or mala fide when allegations are made and materials are produced to form certain opinion, the Court has to make an endeavour to remove the curtain and pierce the veil and find out the truth. In order to do so, Court has every right to make an assessment of the matter placed before it and arrive at a conclusion even on facts. When the malice or mala fide sought to be covered under the grounds of administrative exigencies or executive reasons, there may not be any straight-cut evidence to establish malice or mala fide. In such circumstances, the Court is empowered to draw inference on the basis of the facts disclosed and materials produced before the Court and arrive at a conclusion, which according to its opinion may not be of much doubt and could be supported by justifiable reasons. The Court cannot shut its eyes and avoid its responsibility when materials are placed before it. It cannot refuse to activate itself, in a given circumstances, in order to find out the truth with a view to dispense justice. People come to the Court to seek justice. The party against whom allegations are made is expected to cover up its decision or action and dress it upon in a manner to give it a colour of justification. Whether the action is colourable has to be discovered by the Court on the basis of materials looking behind the apparent.”
In another judgment – G.Babu v. C.E.(PS & GL) and others, the Kerala High Court held that: “The basic question which has to be asked and answered as in the case of any other order made in exercise of administrative discretion is, whether the order of transfer is vitiated by mala fides, or abuse of power, or, though worded in innocuous terms, really camouflages, collateral or oblique purposes like unduly favouring one at the expense of another or is penalize or victimize or harass the concerned employee. The answer which Courts have given over the years has been that if such vitiating circumstances are shown to exist, the courts will step in, review the order of transfer and grant such relief as the justice of the cause demands.”
How does Standing Order help me: The model standing order – rules and regulations of a company – requires that where the transfer involves moving from one State to another such transfer shall take place, either with the consent of the employee or where there is specific provision to that effect in the letter of appointment.
Sometimes managements also transfer a workman after finding him guilty of some misconduct. In that case, the such transfer is in the nature of punishment which is never permissible under law. One must immediately challenge such a transfer.
It has been held by Madras High Court in the case of M.Sigamani Son of Munusamy vs. Management of Central Institute of Plastics Engineering and Technology, that the punishment of transfer could not have been validly inflicted by the management as it is not a punishment prescribed in the Model Standing Orders.
The Madras High Court in this case held that: “In the present case, from the impugned order, which has been extracted, it is apparent that the order of transfer has been passed as a measure of punishment. Since the penalty which can be imposed had been enumerated and transfer is not one of the penalties, it is obvious that the order passed by the Managing Director is not contemplated under the relevant rules governing the field and such an order cannot be sustained and in normal course, such an order is liable to be quashed.”
Similarly, the Kerala High Court in the case of P.Pushpakaran and Coir Board and another, held that: “The whole difficulty arises when under the cover of ordering a transfer, an employer seeks to achieve something which he cannot otherwise achieve. In such cases, the employees in distress seek the assistance of courts in their unequal contest with their employers. A transfer can uproot a family, cause irreparable harm to an employee and drive him into desperation. It is on account of this, that transfers when affected by way of punishment, though on the face of it may bear the insigne of innocence, are quashed by Courts.”
Your transfer is also illegal if you are singled out from among your colleagues or in case you are neither the senior most nor the junior most employee of your department. And if there are others (even if you are the seniormost or the juniormost) in your department who have not been transferred even once in their service, your transfer is again illegal and unjustified.
It has also to be seen that the place you are transferred has any requirement of any other similarly situated employee like you. Therefore, even if your management cites administrative reasons for your transfer, check it out if any employee at the place of your transfer had retired or left service requiring fresh posting at the place.