PER AMITAVA LALA, J. - (1.) THIS writ petition is arising out of an Office Order of the District Manager, Food Corporation of India, Durgapur, under which both the petitioners were directed to be transferred to different places. Normally, the Court does not interfere with the cause of transfer. The reason behind it is that the transfer is always understood and construed as a part of service. Therefore, the transfer does not result to any alteration of any of the conditions of service of one 's disadvantage. The High Court and the Supreme Court are very much categorical on that score. A reference being AIR 1986 SC 1955 : 1986 LIC 1806 B. Varadha Rao v. State of Karnataka is given hereunder. Therefore, the duty incumbent upon the High Court is to consider whether this is a case of transfer simpliciter or the same is colourable exercise of power. If the element of colourable exercise of power being punitive in nature is available then the Court will not be hesitant to inter fere with it and pass an appropriate order. In the judgment reported in 1999 W.B.L.R. (Cal) 424 National Textile Corpn. (WBAB & O) Ltd. v. Anjan Kumar Saha it has been categorically held by a Division Bench of this Court that as the Model Standing Orders constitute statutory terms and conditions of service, an order of dismissal in violation of the Model Standing Orders deprives an employee to earn his livelihood in violation of the procedure established by law which is forbidden by Article 21 of the Constitution. Violation of Model Standing Orders results into violation of Articles 21 and 14 of the Constitution of India. Then an employee of a State within the meaning of Article 12 of the Constitution of India can certainly move any forum under the Industrial Disputes Act and straightway can move the High Court under Article 226 of the Constitution of India for enforcement of his fundamental rights under such Article. In coming to a conclusion the Court repeatedly considered the various Supreme Court judgments on that score. Although the case herein is not the dismissal of an employee but it is a case of transfer and appears to be in violation of the Model Standing Orders. Since the Food Corporation of India has passed the Standing Orders for the Industrial establishments of the Food Corporation of India certified by the Certifying Officer vide Order No. ND -35/5/89 -P.A. dated 27 -2 -96 and modified/approved by the Appellate Authority/Deputy Chief Labour Commissioner (Central) vide Order No.5(1)/ 96 -1S -1 dated 31 -8 -1999, it is unnecessary to repeat and say that the Food Corporation of India is not a State. Therefore, I have no doubt that the writ jurisdiction can be invoked by reason of an apparent violation of the Standing Orders applicable to the employees in connection with any Governmental establishment. Clause 5 of such Standing Orders gives an authority to the employer to transfer its employee. Such clause is quoted hereunder : "Clause No. 5 : Transfer : A worker shall be liable to be transferred from one place of work to another place of work of the Corporation as per practice in existence with the whole gang, except in the case of request for transfer from the individual worker".
(2.) IT is crystal clear from the clause that a worker cannot be transferred without any ground and without any request on his behalf. Before going to any other question, I have to see what is the nature and character of service of the employees. It appears that one of the employees i.e. the petitioner No. 1 is a 'Sardar ' of the Gang which consists of 12 Handling Mazdoors, one sardar and one Mondal. The petitioner No. 2 is an ancillary worker. Therefore, if the petitioner No. 1 is directed to be transferred then he will only be allowed with the Gang. If the ancillary worker is allowed to be transferred then he will be transferred on the basis of the request of the gang leader to assist. But I find from the order impugned that in pursuance of a letter of the Senior Regional Manager (as contended by the learned counsel appearing on behalf of the F.C.I.), the District Manager, Durgapur, has issued a notice of transfer to such type of ground level employees dehors the prescribed Standing Orders. The usual duty of the ancillary worker is to clean and to sweep the floor. It appears that there is hardly any necessity of transfer of such ground level workers unless punitive action was necessitated. The original letter of reference of the Senior Regional Manager has not been produced before the Court by the Food Corporation of India. In the reference, I find there is a word "Attendance". This Court is unaware that whether any dispute as regards to the word "Attendance" is available or not. The learned counsel for the petitioners contended that there is a conciliation proceeding in respect of the letter of ''Attendance" pending before the respective Commissioner. Therefore, it can be safely said that the order of transfer is not the order of transfer simpliciter. Therefore, the well settled principle of law will be applicable herein that the punishment by way of transfer cannot be given. Moreover, assuming for the moment that the ancillary worker cannot be a part and parcel of the Gang but an independent worker, in that case two possibilities are forthcoming. One possibility is an ancillary worker is to work with the gang and other possibility is that he is an individual worker who cannot be transferred unless opted for. Thus, in totality, the transfer is not free from suspicion in respect of colourable exercise of power. The learned counsel for the petitioners contended that when the order of transfer is not outcome of standing offer, petitioners will obviously lose the incentive being not engaged with the gang. Ordinarily the question of incentive could not be taken in the case of transfer in view of the Supreme Court judgment referred to above but due to peculiar situation hereunder loss of incentive cannot be ruled out.
(3.) THE learned counsel appearing on behalf of the respondents contended before this Court that the case of the petitioners is covered by clause 17 of the Standing Orders itself. Such clause is quoted hereunder: "Clause No. 17 : Complaints: All complaints arising out of employment including those relating to unfair treatment or wrongful exaction on the part of the employer or his agent, shall be submitted to the appointing authority or other persons specified in this behalf with the right of appeal to the appellate authority. And the Authority specified or the Appellate authority as the case may be shall communicate his decision to the workman with reasonable time and in any case not later than 2 months from the date of complaint or appeal as the case may be." ;