PRASAR BHARATI v. AMARJEET SINGH AND ORS

Citation: [2007] 2 S.C.R. 160

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

PRASAR BHARATI v. AMARJEET SINGH AND ORS.pdf

Judgment text

PRASAR BHARATI v. AMARJEET SINGH AND ORS. FEBRUARY 2, 2007 [S. B. SINHA AND MARKANDEY KATJU, JJ. ] Service Law: Prasar Bharati (Broadcasting Corporation ofIndia) Act, 1990-ss.

l l (1) and (5)-Transfer ofemployees serving in Akashwani & Doordarshan to the appellant-Corporation-No formal order ofdeputation passed-Corporation passed orders oftransfer ofstaff on pretext ofoptimally utilizing manpower to make every Station and Kendra fully functional-Legality of transfer orders challenged-Held: indisputably employees working with Corporation for a long time without any demur-They being paid salaries and other remuneration by Corporation and subjected to effective control by its ofjicers- Hence, by reasons of conduct of employees as well as Union of India and Corporation, they are deemed to be deputed in services ofCorporation and governed by general principles of deputation, which in peculiar facts and circumstances ofcase, would imply that Corporation had power oftransfer- The action taken by Corporation in transferring the employees was not arbitrary or irrational as the same was in the interest of administration and with a view to carry on its functions-Further, the rights of employee cannot be allowed to remain uncertain for a long time, thus in exercise of jurisdiction under Art.

142, under Union of India directed to take firm p decision u! s. 11(1)-- Constitution of India, 1950-Arts. 235, 142. 'f-. Words and Phrases: 'Transfer' and 'Deputation'-Distinction between- Discussed Respondents were employees of 'Doordarshan' and 'Akashwani'. ·Prasar Bharati (Broadcasting Corporation of India) was established by promulgation of Prasar Bharati (Broadcasting Corporation oflndia) Act, 1990. S. 11(1) of the Act provides that it shall be lawful for the Central Government to transfer to the Corporation any of the officers or other employees serving in the Akashvani and Doordarshan and engaged in the performance of those functions, where the Central Government has ceased to perform the functions. / PRASAR BHARATl v. AMARJEET SINGH 161 S. 11(5) provided that every officer/employee transferred by order under s.

15(1) would within 6 months from date of transfer exercise his option to be governed by condition enumerated therein and once transferred to the Corporation, they cease to be employees of Central Government and would become employees of Corporation. However, no order of deputation in respect of any of the employees or officers of the Doordarshan or Akashvani was passed. The officers and employees of erstwhile Akashvani and Doordarshan, however, continued to l work with the Corporation. They drew their salaries and other remunerations. The same terms and conditions of their services were continued to apply to them as ifthey were the Central Government employees. The Corporation passed orders of transfer of the operational and administrative staff on the ground ofoptimizing the manpower available so as to make every station and kendra fully functional. Aggrieved Respondents successfully challenged the legality of orders of transfer before CAT.

Appellant filed writ petition which was dismissed by the High Court. In these appeals the question for consideration is whether in the peculiar facts ofthe case, the Corporation had power to transfer the employees who althc. ugh were working in its establishment but continued to be the employees of the Central Government. Allowing the appeals, the Court HELD: 1. This case raises practical problems which is the creation of Union of India and the appellants. It is difficult to comprehend as to why the Union of India did not exercise its statutory functions for such a long time. It was obliged to take a decision one way or the other. It was for the Union of India to transfer the officers or employees of the Doordarshan and Akashvani to the Corporation. In such an event, the employees could have exercised their option as envisaged under sub-section (5) ofs. 11 of the Act. The transfer of an employee deputed under s. l 1(1) is that of a permanent nature.

So long an order under sub-section (1) is not passed, the employees and officers would continue to be the employees of the Central Government. They shall unless otherwise an order is passed would be governed by the terms and conditions of services evidenced by the rules framed by the President of India under proviso appended to Article 309 of the Constitution oflndia. Indisputably, no such order having been passed, the respondents continued to be the employees of the Central Government. [Para 12) (168-E-G) 2. There exists a distinction between 'transfer' and 'deputation'. 'Deputation' connotes service outside the cadre or outside the parent department in which an employee is serving. 'Transfer', however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications. Ordinarily no employee can be transferred without his consent from one employer to another.

A transfer of an employee may be governed by the provisions of a statute or the terms and conditions of a contract of service. [Paras 13, 14, 15) [169-A-D] Jawaharlal Nehru University v. Dr. KS Jawatkar and Ors. , [1989] Supp. (1) sec 679, referred to. 3. The situation as obtaining in the present case, however, would amount to be a case ofdeemed deputation. It is true that no order has been passed by the Central Government on this behalf, but the respondents acted in the manner as if such an order had been passed. The respondents have been working with the Corporation for a long time without any demur whatsoever. They are undoubtedly under the control and supervision of the officers of the Corporation. There exists a hierarchy of the officers in the Corporation. There are a large number of departments. Each department has separate functions. Work of one department, however, would be related to another. [Para 161 [169-D-El 4. 1.

The functions of the Central Government has been taken over by the Corporation in terms ofs. 12 of the Act, when the Corporation has started functioning from the appointed day. It requires man-power for managing its affairs. It has been doing so with the existing staff. They are being paid their salaries or other remunerations by the Corporation. They are subjected to effective control by its officers. The respondents, for all intent and purposes, are therefore, under the control ofthe Corporation. The expression 'control', although is not defined, in the light of Article 235 of the Constitution of India, has been held to be conferring wide power upon the High Court. [Paras 17, 19] (169-F-G; 170-C-D] State of West Bengal v. Nripendranath Bagchi, AIR (1966) SC 447, Madan Mohan Choudhary v. State of Bihar and Ors. , (1999] 3 SCC 396; Yoginath D. Bagde v. State ofMaharashtra and Anr. , [1999] 7 SCC 739 and High Court ofJudicature for Rajasthan v. Ramesh Chand Paliwal and Anr.

, AIR (1998) SC 1079, relied on. PRASAR BHARAT! v. AMARJEET SINGH 163 Zee Tele. films Ltd. and Anr. v. Union ofIndia and Ors. , 120051 4 sec 649, referred to. 4. 2. The concept of control implies that the controlling officer must be in a position to dominate the affairs of its subordinate. It is unless otherwise defined would be synonymous with superintendence, management or authority to direct, restrict or regulate. It is exercised by a superior authority in exercise of its supervisory power. It may amount to an effective control, which may either be de facto or rem. ote. jPara 20] 1170-E] 5. 1. The Corporation has not framed its own rules. In absence of any rules, however, an employer, would have an inherent power to deal with its employees. In a situation of this nature, the same would include a power of transfer.

It is one thing to say that an employer does not possess of any power to transfer in terms of the extant rules or conditions ofservice or the nature thereof; but the same does not mean that the employer must have the power to transfer its employees only in terms ofa statute. IPara 2111170-F-G] 5. 2. The position of an industrial workman, however, would stand on a different footing. The terms and conditions of industrial employees are governed by the provisions of the Industrial Disputes Act or the certified standing orders framed under the Industrial Employment (Standing Orders) Act, 1946. jPara 22] 1170-H] B. Vandana Rao v. State ofKarnataka and Anr. , 11986] 4 SCC 624; Abani Kanta Ray v. State ofOrissa, 119951 Supp. 4 SCC 169 and Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Ors. , 12004] 12 SCC 299, relied on. Public Services Tribunal Bar Association v. State ofU. P. and Anr. , [2003] _J,- 4 SCC 104 and Ba/co Employees' Union (Regd. ) v. Union ofIndia and Ors.

, [2002] 2 sec 333, referred to. 6. Respondents, therefore, by reason oftheir conduct as also that of the Union of India and Corporation must be held to have been deputed in the services of the Corporation. They would, therefore, be governed by the general principles of deputation. For the said purpose they are under the functional control of the Corporation which in the peculiar facts and circumstances of this case, would also imply that the Corporation had a power of transfer. Functional test, as is well-known, is also employed for the purpose of determining the relationship of the employer and employees. [Paras 26, 27] 1172-A-C] Workmen ofNiligiri Cooperative Marketing Society ltd. v. State ofTamil Nadu and Ors. , (2004] 3 SCC 514 and District Rehabilitation Officer and Ors. v. Jay Kishore Maity and Ors. , (2006( I I SCALE 545, relied on. 7. The action taken by the appellants in transferring the respondents is not arbitrary or irrational.

The orders of transfer have been passed in the interest of the administration and with a view to carry on its functions. The High Court was not correct in opining that the respondents could not be transferred by the Corporation. (Paras 28, 29) (172-D-E( 8. The question as to whether the Central Government should pass an order in terms of sub-section (I) of S. ll of the Act or not is pending consideration before its highest authority for a long time. No decision has been taken for more than nine long years. Despite observations made by this Court, the Central Government has failed and/or neglected to take a decision one way or the other. Ordinarily, this Court would not have issued a directiOt! but the present state of affairs cannot be permitted to continue. The rights of the respondents cannot be allowed to remain in uncertain position for a long time.

In the exercise of jurisdiction under Article 142 of the Constitution, the Union of India is directed to take a firm decision in terms of S. I l'Of the Act within six months from date. The Secretary, Department of Personnel and Training shall file an affidavit before this Court within or immediately after the expiry of the aforementioned period. (Paras 31, 32( (172-F-H; 173-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3244 of2002. From the final Judgment and Order dated 27. 7. 2001 of the High Court of Punjab and Haryana at Chandigarh in C. W. P. No. I0950-CAT/2001. WITH C. A. Nos. 3245-3248 of2002 and 432/2007. Vikas Singh, A. S. G. , Rajeev Sharma, Ashok Bhan, Shiva Lakshmi, Arnita Narayan, V. K. Verma, Gopal Dutta, Sanjeev Sharma, Prashant Chaudhary, Sudhir Nandrajog, Ashoka Kumar Thakur, Anil K. Chopra, B. V. Deepak (for T. T. K. Deepak & Co. ) and Praveen Swarup for the Appearing parties. The Judgment of the Court was deliverd by S. B. SINHA, J. I. Leave granted in the S. L.

P. J- PRASAR BHARATI v. AMARJEET SINGH [S. B. SINHA, J. ] 165 r 2. Respondents herein were appointed by the 'Doordarshan' and 'Akashvani'. Parliament enacted the Prasar Bharati (Broadcasting Corporation .. of India) Act, 1990 (for short, 'the Act') to provide for the estab! ishment of a Broadcasting Corporation for India, to be known as Prasar Bharati, to define its composition, functions and powers and to provide for matters connected therewith or incidental thereto. The said Act though came into force on and from 15. 09. 1997, Prasar Bharati (Broadcasting Corporation of India) (for short, 'the Corporation') came to be established 23. 11. 1997, the date on which the 'Appointed day' was notified in terms of Section 3 of the -t--· Act.

Section 11 of the Act provides that it shall be lawful for the Central Government to transfer to the Corporation any ofthe officers or other employees serving in the Akashvani and Doordarshan and engaged in the performance of those functions, where the Central Government has ceased to perform the functions which in terms of Section 12 are the functions of the Corporation. Sub-section (5) of Section 11 of the Act, however, provides that every officer or other employee transferred by an order made under sub-section (I) shall, within six months from the date of transfer, exercise his option, in writing, to be governed by the conditions enumerated therein and such option once exercised under the Act shall be final. However, once the services of the officers or employees of Akashvani and Doordarshan are transferred to the -!.

Corporation, sub-section (4) of Section 11 would be attracted which is in the following terms : "(4) An officer or other employee transferred by an order under sub-section (I) shall, on and from the date of transfer, cease to be an employee of the Central Government and become an employee of the Corporation with such designation as the Corporation may determine and shall, subject to the provisions of sub-sections (5) and (6), be __\ governed by such regulations as may be made as respects remuneration and other conditions of service including pension, leave and provident fund shall continue to be an officer or other employee of the Corporation unless and until his employment is terminated by the Corporation. " 3. No order of deputation in respect of any ofthe employees or officers of the Doordarshan or Akashvani had also been passed. The officers and employees of erstwhile Akashvani and Doordarshan, however, continued to work with the Corporation.

They drew their salaries and other remunerations. The same terms and conditions of their services were continued to apply to ' them as if they were the Central Government employees. 4. The Corporation passed orders of transfer of the operational and administrative staff. Allegedly, such transfers were made with a view to optimize the use of man-power available with the Corporation so that every Station and Kendra became fully functional. The legality and/or validity of the said orders of transfer were questioned before the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, by the respondents herein on or about 07. 09. 2000 which was marked as 0. A. No. 725/PB/2000. By ajudgment and order dated 06. 10. 2000, the orders of transfer were quashed relying, inter alia, on an earlier decision of the Tribunal in S. P. Kohli v. Union ofIndia and Ors.

, The writ petition filed by the appellants herein for quashing the said order of the Central Administrative Tribunal has been dismissed by a Division Bench of the Punjab and Haryana Higu Court by reason of the impugned judgment. 5. At the very outset, it may be noticed that a Division Bench of this Court by an order dated 29. 03. 2005 noticed the unsatisfactory state of affairs prevailing in the matter as the Central Government employees who had been working in Akashvani Stations and Doordarshan Kendras continued to work in the Prasar Bharati for nearly eight years stating : "..... Prima facie, this uncertainty has continued since appropriate steps were not undertaken eith!! r by the Central Government or by the Corporation. The Corporation has not framed requisite regulations. The option of the employees under the provisions of the Act has not been taken.

In fact, that occasion has not arisen even after eight years of operation of the Act on account of a wholly ad hoc approach adopted in the implementation of the Act. At this stage, it is not necessary to specifically indicate as to who has contributed more to this state of affair resulting in two views being expressed by two High Courts in the country - one by the Madras High Court holding that the employees can be transferred and the other by the Punjab & Haryana High Court holding in favour of the employees that they cannot be transferred by the Corporation. The stand ofthe Corporation has been and is that the employees continue to be the employees of the Central Government. It is in the interest of neither the employees nor the Central Government nor the Corporation to continue the uncertainty for any further period of time.

Let the learned Solicitor General discuss the matter with the -} concerned officers ofthe Corporation and the Ministry oflnformation and Broadcasting so that the Act can be properly implemented and uncertainty comes to an end. We hope that the matter would be resolved expeditiously. " 6. Disputes and differences between the parties were said to have received consideration at the highest level in the Government, namely, Group of Ministers. Although the Corporation had forwarded a draft note for consideration of the Group of Ministers in regard to the restructuring of Prasar Bharati, no final decision admittedly has yet been taken. This Court adjourned the matter times without number so that the Union of India and Prasad Bharati can arrive at a decision but the same is yet to come. By an order dated 21. 11. 2006, this Court refused to grant any further time.

However, having regard to the fact that the Union of India should be heard in the matter, on an oral application made by the learned Additional Solicitor General, the Union of India was impleaded as a party. 7. The short question which arises for consideration is as to whether in the peculiar situation obtaining in the matter, the Corporation can be said to have any power of transfer of the employees who although are working -! in its establishment, but continue to be the employees of the Central Government. 8. Before adverting to the question raised in these appeals, we may notice that whereas the Central Administrative Tribunal, Chandigarh as also the Punjab & Haryana High Court were of the opinion that no such power existed, the Madras High Court has taken a different view. 9.

The Division Bench of the High Court in its impugned judgment posed a question as to whether the officers/employees of the Central Government employed under the Directorate of the Doordarshan could be deemed to have become officers/employees of the Corporation by virtue of the provisions of the said Act. As would appear from the discussions made hereinafter, the said question was wholly irrelevant. I0. The High Court relied upon a large number of decisions of this Court as also other High Courts to arrive a finding that the respondents were not the employees appointed in the services of the Corporation by transfer and, .. thus, their service conditions cannot be controlled or regulated by its authorities. (I) of Section 11 of the Act or not is pending consideration before its highest authority fora long time. No decision has been taken for more than nine long years.

Despite observations made by this Court, the Central Government has failed and/or neglected to take a decision one way or the other. Ordinarily, this Court would not have issued a direction but the present state of affairs cannot be permitted to continue. The rights of the respondents cannot be allowed to remain in uncertain position for a long time. 32. We, therefore, while allowing the appeal, direct the Union of India to take a firm decision in terms of Section 11 of the Act within six months from date. The Secretary, Department of Personnel and Training shall file an A ·' affidavit before this Court within or immediately after the expiry of the aforementioned period. 33. Subject to the directions and observations made hereinbefore, the impugned judgments are set aside. These appeals are allowed. However, in B the facts and circumstances of this case, there shall be no order as to costs. D. G. Appeals allowed.