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CASE NO.: Appeal (civil)  3244 of 2002

PETITIONER: Prasar Bharti & Ors

RESPONDENT: Amarjeet Singh & Ors

DATE OF JUDGMENT: 02/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

W I T H CIVIL APPEAL NOS. 3245-3248 OF 2002 AND CIVIL APPEAL NO.     432           OF 2007 [Arising out of S.L.P. (Civil) No.15830 of 2003]

TO INCLUDE 2005 (11) SCC 509

S.B. SINHA,  J :

       Leave granted in the S.L.P.      

       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  establishment 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 Act.  Section 11 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 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 (1) 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 (1) 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

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continue to be an officer or other employee of the  Corporation unless and until his employment is  terminated by the Corporation."

                No order of deputation in respect of any of the 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.

       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 O.A. No.725/PB/2000.  By a  judgment 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 of India and Others.   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 High Court by  reason of the impugned judgment.

       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 :

"\005Prima facie, this uncertainty has continued since  appropriate steps were not undertaken either 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 of the 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 of the Corporation and  the Ministry of Information 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."

       Disputes and differences between the parties were said to have

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received consideration at the highest level in the Government, namely, a  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.

       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.

       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.

       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.   

       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.  It was held :

       "We have given serious thought to the arguments  of the learned counsel, but have not felt persuaded to  agree with him that the impugned order is vitiated by any  such legal infirmity which may warrant issuance of a writ  in the nature of certiorari.  A careful reading of the  averments made in the writ petition and the two letters  relied upon by Shri Sanjay Goyal shows that even as per  the Central Government, the employees working in AIR  and Doordarshan Kendras immediately before the  formation of the Corporation continued to be its  employees because no order transferring their services  was passed by it in terms of Section 11 of the Act.   Therefore, it is not possible to accept the argument of  Shri Goyal that with the creation of the Corporation, the  services of respondent no. 1 stood transferred to the  Corporation and the competent authority of the  Corporation could transfer her from one place to the  other."

       The decision of the Madras High Court was not followed on the  aforementioned premise.   

       This case raises practical problems which is the creation of Union of  India and the appellants.  It is difficult for us to comprehend as to why the  Union of India did not exercise its statutory functions for such a long time.   It was, in our opinion, 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

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(5) of Section 11 of the Act.  The consequences of passing of an order under  sub-section (1) of Section 11, as noticed hereinbefore, are provided for under  sub-section (4) thereof .  The transfer of an employee deputed under sub- section (1) of Section 11 is that of a permanent nature.  So long  an order  under sub-section (1) is not passed, indisputably 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 of India.   Indisputably, no such order having been passed, the respondents continued  to be the employees of the Central Government.  However, there cannot be  any doubt whatsoever that the services of the respondents have been placed  at the disposal of the Corporation although no order of deputation has been  passed.   

       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.  

       There cannot be any doubt whatsoever that ordinarily no employee  can be transferred without his consent from one employer to another.  [See  Jawaharlal Nehru University v. Dr. K.S. Jawatkar and Ors. [(1989) Supp. (1)  SCC 679].       But, the said principle has no application in the instant case.            A transfer of an employee may be governed by the provisions of a  statute or the terms and conditions of a contract of service.    

       The situation as obtaining in the present case, however, in our  opinion,  would amount to be a case of deemed 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.

       It has not been disputed that the functions of the Central Government  has been taken over by the Corporation in terms of Section 12 of the Act,  when the Corporation has started functioning on and 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 of  the Corporation.  

       In Zee Telefilms Ltd. and Another  v. Union of India and Others  [(2005) 4 SCC 649],  it was noticed :

"The word ’control’ has been defined in Black’s  Law Dictionary in the following terms:

"Control.- Power or authority to manage, direct,  superintend, restrict, regulate, govern, administer  or oversee."

       In Bank of New South Wales v. Common Wealth,  [76 CLR 1], Dixon, J., observed that the word ’control’ is  ’an unfortunate word of such wide and ambiguous import  that it has been taken to mean something weaker than  ’restraint’, something equivalent to ’regulation’.  Having

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regard to the purport and object of the Board, its control  over ’cricket’ must be held to be of wide amplitude."                                  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.  [See 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 of Maharashtra  and Anr. [(1999) 7 SCC 739]; and  High Court of Judicature for Rajasthan v.  Ramesh Chand Paliwal and Anr. [AIR 1998 SC 1079].

       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 remote.   

       The Corporation has not framed its own rules.  In absence of any  rules, however, an employer, it is well-known, would have an inherent   power to deal with its employees.  In a situation of this nature, we have no  doubt that 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 of service or the nature thereof; but the same does  not mean that the employer must have the power to transfer its employees  only in terms of a statute.   

       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.  

       An establishment like the Corporation, moreover, in absence of the  rules may have an implied power of transfer. Transfer is an ordinary incident  of service.  It does not result in alteration of any condition of service to its  disadvantage. [See B. Vandana Rao v. State of Karnataka and Anr.  (1986) 4  SCC 624],  Abani Kanta Ray v. State of Orissa [(1995) Supp. (4) SCC 169];  and Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Others   [(2004) 12 SCC 299].

       In Public Services Tribunal Bar Association v. State of U.P. and  Another [(2003) 4 SCC 104], this Court observed :  

       "37. Transfer is an incident of service and is made  in administrative exigencies. Normally it is not to be  interfered with by the courts. This Court consistently has  been taking a view that orders of transfer should not be  interfered with except in rare cases where the transfer has  been made in a vindictive manner."

       In Balco Employees’ Union (Regd.) v. Union of India and Others  [(2002) 2  SCC 333], this Court opined that in case of policy, the employees  may suffer to certain extent, but such sufferings should be taken to be  incidence of service.  Therein, the court observed :           "48. Merely because the workmen may have  protection of Articles 14 and 16 of the Constitution, by  regarding BALCO as a State, it does not mean that the  erstwhile sole shareholder viz. Government had to give  the workers prior notice of hearing before deciding to  disinvest. There is no principle of natural justice which  requires prior notice and hearing to persons who are  generally affected as a class by an economic policy  decision of the Government. If the abolition of a post

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pursuant to a policy decision does not attract the  provisions of Article 311 of the Constitution as held in  State of Haryana v. Des Raj Sangar on the same parity of  reasoning, the policy of disinvestment cannot be faulted  if as a result thereof the employees lose their rights or  protection under Articles 14 and 16 of the Constitution.  In other words, the existence of rights of protection under  Articles 14 and 16 of the Constitution cannot possibly  have the effect of vetoing the Governments right to  disinvest\005."            Respondents, therefore, in our opinion by reason of their conduct as  also that of other players in the field, namely, 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, in  our opinion, 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. [See Workmen  of Niligiri Cooperative Marketing Society Ltd. v. State of Tamil Nadu and  Ors. (2004) 3 SCC 514] and District Rehabilitation Officer and Others v. Jay  Kishore Maity and Others [(2006) 11 SCALE 545].

       We do not find that the action taken by the appellants herein in  transferring the respondents is in any way 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.  

       We, therefore, are of the opinion that the High Court was not correct  in opining that the respondents could not be transferred by the Corporation.         We would, however, before parting with the case, in exercise of our  jurisdiction under Article 142 of the Constitution of India issue a direction  upon the Union of India.  We have noticed hereinbefore that the Union of  India itself had been filing writ petitions before the different High Courts.  It  did not do so in the instant case.  It had to be impleaded as a party  respondent.   

       We have furthermore noticed hereinbefore that the question as to  whether the Central Government should pass an order in terms of sub- section (1) of Section 11 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 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.   

       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  affidavit before this Court within or immediately after the expiry of the  aforementioned period.     

       Subject to the directions and observations made hereinbefore, the  impugned judgments are set aside.  These appeals are allowed.  However, in  the facts and circumstances of this case, there shall be no order as to costs.