D.C. Gheewala, J.
1. The appellant before the Court was the plaintiff in Civil Suit No. 156 of 1977 which was dismissed by the learned Civil Judge (Senior Division) Jamnagar by his judgment dated 20 12-1979. It was the plaintiffs case that from 25-6-1961, be was appointed as an Art Master at Kunjpura Sainik School by the Principal of the School who is the appointing authority. The appellant worked as an Art Master upto 31-7-1977 when he was transferred from Kunjpura Sainik School to Balachadi. According to the appellant-plaintiff, the said order of transfer was passed by way of punishment on the basis of adverse remarks which were never shown to him. The said order was passed in violation of Rules of natural justice and the appellant was singled out for a discriminatory treatment as he was not palatable to the management at Kunjpura. He, therefore, challenged the said order of transfer as being mala fide and arbitrary and having been passed in violation of rules of natural justice; that it was in the nature of a penalty and hence null and void. According to him, as per the terms and conditions of service his appointment at Kunjpura was on an unit basis and there was no exigency for such transfer. He, therefore, filed a suit and prayed that it be declared that the said order of transfer was illegal, void ultra vires and springing from mala fides and against the terms and conditions of service. As a consequential relief he prayed that he be once again transferred to his parent institution namely Sainik School, Kunjpur Kamal. Certain ancillary reliefs by way of damages were also claimed. The respondents resisted the suit on various ground vide written statement Ex. 58 They denied that the said order was springing from any mala fides. They also challenged the jurisdiction of the court at Jamnagar. They further denied that the plaintiff was appointed only to serve at Kunjpur and that Sainik School Society is having many schools all over India and the plaintiff was transferable to any of the schools run by the Sainik School society. They maintained that the order of transfer was passed for reasons of administrative exigency. They, therefore, prayed that the suit be dismissed.
2. The learned Civil Judge (S.D.) Jamnagar after recording evidence of the plaintiff dismissed the suit and hence the appellant-plaintiff has carried the matter before this Court by way of this first appeal.
3. Mr. J.R. Nanavati, the learned Advocate appearing for the appellant-plaintiff assailed the judgment on numerous grounds and three main contentions that Mr. Nanavati raised are as under:
(1) Transfer order Ex. 95 was by way of penalty because it is directly related to the alleged misconduct of the plaintiff;
(2) That the transfer of teachers serving in Sainik School not being a regular feature and the appellant-plaintiff being the only man so transferred, the transfer order is discriminatory and not springing from any administrative exigency as alleged by the respondents.
(3) The Sainik school society, though registered under the Societies Registration Act as a society is entirely managed by the agency of the State namely Defence Forces and hence the management of the society was expected to be reasonable and it is not purely a relationship of master and servant between the society and the appellant.
4. Mr. B.K. Amin the learned Advocate appearing for the respondents Nos. 3 and 4 and Mr. S.J. Joshi, the learned Advocate appearing for Respondent Nos. 1 and 2 urged that the (1) Sainik School is not equivalent to Government and the relation between the appellant and the respondent Society is that of only of master and servant and hence a declaration of the type sought for by the appellant cannot be granted. (2) Rules of service provides for the transfer and transfer being an incidence of service, it cannot be questioned in a court of law.
5. In order to appreciate the rival contentions it will be necessary to refer to the short history of the facts leading to the transfer of the appellant to Balachadi. It appears that the appellant served as an Article Master in Kunjpur from 1961 to 1977 and on 1st July 1977 an order of transfer was sent to him which is produced at Ex. 96. By the said order the appellant was informed that with immediate effect he was transferred to Sainik School at Balachadi. He was further informed that his conduct and performance will be under watch for a period of two years and his continuance in service will be subject to satisfactory completion of the said period. Along with this letter a statement containing adverse remarks passed by the authority concerned in the annual confidential reports was sent to him and he was informed that he may appeal against the assessment of his performance if he chose to prefer such appeal within one month. Now, these adverse remarks were previously never communicated to him though it appears that right from 1964 to 1976 confidential remarks were not very laudable except for 1972 and 1973 where his work was praised by the person writing confidential report. It appears surprising that though the adverse remarks formed a regular feature of the confidential reports year after year the same were never communicated to the appellant and all of a sudden after the appellant had served the institution for a period of more than one and half decades they were communicated to him in a bunch along with the transfer order and this seems to have been done for giving the appellant an opportunity to know his short-comings and try to improve. The appellant had made a representation to the authorities but the same was rejected by an order dated 24th August 1977. It also appears that on 4th February 1977 tire appellant was served with a notice of termination of service and be was told that in view of his continued unsatisfactory performance and dismal record his services will be terminated with effect from 5th May 1977 and the period between 5th February 1977 to 4th May 1977 will be treated as notice period. This letter is produced at Ex. 101. At Ex. 100 a letter dated 14th September 1978 is produced which is addressed by Commander Indian Navy who was working as Principal in the School to the appellant wherein it is stated that instead of terminating his services a lenient view has been taken and hence it was decided to transfer him to Sainik School at Balachadi. The fact that for a period of more than 15 years adverse remarks recorded in the confidential reports were never communicated to him and all of a sudden a decision to terminate his services was taken, coupled with the fact that his appeal against the said termination of service was allowed and a lenient view was taken and he was transferred to Balachadi goes to indicate that the transfer in the present case was not as a result of the administrative exigency but it was by way of penalty imposed upon the appellant though Ex. 100 is couched in condescending terms and it indicates that though termination of service would have been justified a lenient view has been taken and he has been transferred but this cannot screen the fact that the transfer was by way of penalty inflicted upon the appellant.
6. Though transfer may be an incidence of service, the Sainik School Society which is being run by the Defence Force Arm of the Central Government would leave no doubt that the said society is an organ of the State and in any act that the State does, the State is supposed to act reasonably and in accordance with the principles of natural justice. Mr. Amin's challenge that Sainik School cannot be equated with the State, finds a complete answer in the observations made by the Supreme Court in a case reported at (Som Prakash Rekhi v. Union of India and Anr.). Wherein in paragraph 39, the Supreme Court laid down certain guideline for determining as to whether a particular Corporation or a society can be brought within the definition of the 'State'.
39. Let us cull out from Airport Authority : (1979)IILLJ217SC (Supra) the indicia of 'other authorities...under control of the Government of India' bringing a corporation within the definition of 'the state'. The following factors have been emphasised in that ruling as telling though not clinching. These characteristics convert a statutory corporation, a Government company, a cooperative society and other registered society or body into a State and they are not confined to statutory corporations alone. We may decoct the tests for ready reference:
1. 'One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.'
2. Existence of 'deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.'
3. 'It may also be a relevant factor... whether the corporation enjoys monopoly status which is State conferred or State protected.'
4. 'If the functions of the corporation are of public importance and. closely related to Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.'
5. 'Specifically, if a department of Government is transferred to a corporation it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government.
The above observation clearly indicate that certain characteristics when present may convert a statutory corporation, a government company, a cooperative society and other registered society or body into a State and here in case of Sainik School there is a deep and pervasive State control and that affords an indication that the society is a State agency or instrumentality. The higher echelone of the management cadre of the society is drawn from the Defence forces. The defence Minister is at the apex of the management and thus the Sainik School society is directly under the defence wing of the State. No surer indication, therefore, would be needed to equate the Sainik School society with an agency of the State. Thus, it is not purely a relationship between the Master and servant and though Article 311 of the Constitution may not have any application to the facts of the present case, atleast it would be expected of the State to be fair and reasonable in its dealing with the employees. Unfortunately in the present case the management failed to act in a just manner. There are other indications apart from those narrated above which fortify an inference that the appellant was singled out for discriminatory treatment, and even the rules were amended for providing a transfer of an employee from one school to the other keeping the appellant solely in view. It may be of interest to note that a charge-sheet was given to the appellant, he gave a reply thereto and notice of termination was served on him on 4-2-77. On 14-2-77 he appealed. The appeal was allowed on 18-7-77. After the charge-sheet was given to the appellant on 17-9-76 the rules regarding the service conditions were amended on 8-11-76. But by a letter dated 12th October 1976, the Principals of Sainik School were informed by the Director and Honorary Secretary of the Sainik School society that a provision regarding inter-school transfer has been introduced with the approval of the Defence Minister. This letter is produced at Ex. 92/1. The grounds on which such transfer can be made have been enumerated and they are three in numbers.
1. Where representations have been received for transfer;
2. Where the Principal has recommended for transfer;
3. in case of promotion complaints, availability of vacancies and such other administrative grounds.
In case of the appellant it was not on his representation. It was not on the recommendation of the principal. It was not a case of promotion nor was he transferred because of availability of vacancies and administrative ground is forth coming. It was, therefore, on account of the complaint against the appellant that he was sought to be transferred. If the transfer was made on the ground of complaint then it was definitely by way of punishment and hence an opportunity should have been given to him.
7. The inference that the rules were amended with effect from 8-11-76 keeping solely the appellant in view is further fortified by a very damning fact. Ordinarily when an employee is transferred and if transfer is an incidence of service, then he would be paid transfer allowance as the employee cannot be expected to carry his kit and his family to the place where he is transferred at his own costs. It is significant to note that even upto the time when the appellant gave deposition and even up-to the time that the appeal was heard by this court no T.A. and D.A. was paid to the appellant and reason for the same being that there were no rules for paying T.A. and D.A. Inexorable logic of this omission would be only this that in a hot haste keeping in view of the appellant the rules were amended so as to include the transfer of one employee from one school to the other which was till then not the practice, and hence the amended rules completely lost sight of the fact that transferee shall have to be paid transfer expenses and allowance. If would be a surprising feature of any service where the employee on transfer is refused transfer allowance yet transfer is claimed to be an incidence of service. Mr. Amin appearing for the respondent Nos. 3 and 4 also could not in any way defend the indefensible, and that in an institution which is run under the auspices of the Defence Ministry. It was urged before the learned trial Judge as well as before me that the appellant himself had signed the amended rules of service and hence can be said to have accepted that transfer would be an incidence of service. The employee being very much in need of service, to avoid the stark reality of deprivation would always put his signature to the amended rules. But all the same he cannot be said to have accepted the same voluntarily atleast cannot be said to have signified his consent to being singled out for unfair and unjust practices. Mr. Amin could not point out a single case where any other employees of the Sainik School society transferred was under the amended rules. Thus, the half witted amendment of rules carried out in hot haste at a particular time when the appellant was already served with a charge-sheet, and his appeal against the same was pending, the omission to include in the said rules provision for paying T.A. to transferee and subsequent serving upon the appellant a transfer order along with adverse remarks passed against him throughout the period of his services. Which at two previous point of time were brought to his notice, would be sufficient material for any court to come a conclusion that the transfer in the case of the appellant was not as a result of any exigency of administration but it was solely resorted to with a view to remove person who was not congenial to the management at Kunjpur and hence he was asked to take over at Balachadi and that too at his own costs.
8. From the above it appears that when the appellant joined the service in 1962, transfer was not an express condition of service. Rules were subsequently amended only with a view to get rid of an employee and though under duress and coercion, or by force of circumstances he might have agreed to the said rules, it cannot be said that in the present case the transfer was a result of administrative exigency. At the time when the appellant was initially employed the terms regarding transfer cannot be considered to be an implied term of his service. In this behalf my attention was drawn to a case reported at (Automotive Manufacturers v. Nanalal) 18 G.L.R. p. 788, where the Division Bench of this Court was concerned with a question as to whether there was an implied condition in an oral contract of employment obliging the respondent workman who joined the service of the petitioner-company as Accountant Clerk in 1962 at a monthly salary of Rs. 175/- to submit to a transfer to a branch of the employer Corporation in some other town or city. The lower court at Rajkot had negatived the contention of the petitioner Company that there was an implied agreement between the parties that the employee concerned was transferable to any branch of the Company in any city. While determining the question the Division Bench observed:
If transferability out of the city was not an express condition of service, it cannot be imposed on an employee by ascribing it to him under the doctrine of an implied term of service. It can be read into the contract as an implied term if there is some compulsion to read it into a contract of service by necessary implication having regard to the very nature of the employment. To hold that it was an implied condition would be to attribute to the employee a deliberate desire to subject himself to transferability. One cannot ascribe to the respondent a lowly paid employee, such a desire to subject himself to transfer to a branch outside the city in which he secured employment as it would have disastrous consequences on his economic and family life.
Mr. Amin, the learned Advocate appearing for the Respondent Nos. 3 and 4 sought to meet these observations by urging that in the said case before the Division Bench the employee had joined the service on a paltry amount of Rs. 175/- whereas in the instant case the total emoluments of the appellant worked out to nearly Rs. 1000/- and hence observation would have no application to the facts of the present case. These observations to my mind would be applicable with all force inasmuch as from Kunjpur in Karnal to Balachadi in Jamnagar District of Gujarat is a far cry. When the appellant joined the service there was no express or implied condition of transfer, the provisions regarding transfer having been subsequently inserted by keeping the appellant only in view for meeting out some punitive treatment to him and by even neglecting to frame the rules with respect to the payment of the T.A. and D.A. on transfer clearly go to indicate that the appellant's transfer was mala fide. A person who has his moorings in Karnal and who had joined the service there, and whose appointment was made on unit basis would definitely be uprooted from his moorings if he were to be transferred to to a distant place like Balachadi and economically he would be asmuch hard pressed as a worker drawing Rs. 175/- is asked to go some other town of the same State. I have therefore, no hesitation in holding that the respondents had acted mala fide in transferring the appellant to Balachadi and the authority had discriminated against the appellant as he was singled out for a transfer. The respondent being an organ of the State, it was expected to act in a reasonable and just manner. The order of transfer, therefore, is clearly one which requires to be declared as illegal and void. While the courts would be slow in accepting challenge against transfer as such, in the instant case there are compelling reasons as discussed above and the transfer of the appellant springing from mala fides requires to be declared null and void.
9. Mr. Amin, the learned Advocate appearing for the respondents raised one last contention out of distress. According to Mr. Amin, Jamnagar court will have no jurisdiction and as the appellant was serving at Kunjpur where the order of transfer was served on him it will be Kunjpur court which will have jurisdiction to try the present case and hence the plaint should be returned to the appellant for presenting it before the proper court. This contention hardly holds any merits and requires to be stated only for rejecting the same. The appellant bad taken over at Balachadi and he had appealed against the said order of transfer. The order regarding the dismissal of his appeal was communicated to him at Jamnagar and as such Jamnagar Court will have jurisdiction. When a man is transferred part of the cause of action would arise at the place of transfer. Ex. 95 which is dated 24-8-78 and which is an order rejecting his appeal against the transfer was served on the appellant at Balachadi and hence the court of Civil Judge (S.D.) at Jamnagar will be definitely vested with the jurisdiction to try the present matter. The appellant had claimed damages and certain other ancillary reliefs. However, regarding the damages no evidence seems to have been adduced by him. Mr. Nanavati the learned Advocate for the applicant fairly stated that he does not press this point.
In view of the above discussion the appeal is allowed and the suit of the plaintiff except for the relief of damages, is decreed with costs throughout.