Transfer Order Must be Passed by The Competent Authority

An employer has a right to transfer an employee when there is a condition of service but the transfer order is to be made by the appointing authority.

No doubt, transfer of an employee employed in transferable post from one place/department is an incident of service but the transfer order must be passed by a competent authority. In one case, the transfer order was passed by an authority not competent to pass the same and hence there was no obligation on the appellant to obey such an order and on account of the disobedience of that order there could not be leveling of charges as done against the concerned employee and as such he could not be penalized on the basis of these charges. While accepting the appeal, their Lordships held that the service rules being binding on both the master and the servant, they cannot be violated to the prejudice of one or the other. Each party is bound by them and that is the sanctity of the service conditions. Waiving the service rules as reflecting only conditions of service yet. they being binding on the parties, it is not possible to uphold the order of transfer passed in violation of them and the appellant will be legitimate in saying that such an order of transfer need not be complied with and non-compliance could not entail a formulation of charges and penalization of him on that basis. The decline by the higher in the hierarchy of administration to revise or vary the order of transfer, which inherently suffer lack of authority is of no relevance and consequence at all. Service Rules reflecting the conditions of service must be annexed due solemnity and sanctity. The parties must be held bound to them and they cannot be thrown to winds to suit the convenience of one to the charging of the other. ¹

In another case, it has been held that the power is only in the employer which means that only the employer or a person either expressly authorized by him or one who can be said to have that authority impliedly, can exercise that power. Thus, a manager or a person in general control of the business or of the administration of the undertaking of the employer, such as the body of directors, or a managing director, where the employer is a corporate body, would be taken to have the implied authority from the employer, but other officers, more so subordinate officers, would not be taken to have the implied authority from the employer.²

Where the transfer order of the petitioner was passed by the Superintendent of Prisons at the instance of Inspector of Jails whereas he has not been the appointing authority of the petitioner, it has been held that the transfer order was liable to be quashed. ³ In one case the Andhra Pradesh High Court has held that transfer is an incident of service since an employee has no vested right to serve in a particular place and a transfer order cannot be said to be invalid unless it is issued by an incompetent authority or in violation of mandatory/statutory duties or is tainted by mala fide. It has been further held that hardship or inconvenience to an employee as a result of a transfer is not matter for the Court to consider but for the administration in the interest of good and efficient administration. ⁴

An order of transfer of an employee from Hyderabad to Bhopal issued with the approval of the competent authority will be valid. ⁵

1. Raghupathy v. The Additional Commissioner for Workmen's Compensation Ad, Madras , 1991 LLR 255 {Mad HC).
2. Standard Vacuum Oil Co. Ltd Calcutta v. Their Employees, 1954 II LLJ 355 (LAT Calcutta ).
3. Har Nandan Singh v. State of West Bengal , 1987 Lab IC 1477.
4. B.V. Ramnarayan v. State Bank of India , Hyderabad , 1997LLR612(APHC).
5. C.N. Srinivasan v. Bharat Heavy Electrica/s Ltd., New Delhi , 2000 LLR 614 (AP HC).

This Article is from Labour Law Reporter