K. Radhakrishna v. Neyveli Lignite Corporation Limited & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19-6-2012CORAM: THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMARWrit Petition No.13746 of 2012M.P.No.1 of 2012K. Radhakrishna . . PetitionerVs.1.Neyveli Lignite Corporation Limited,rep.by its Deputy General Manager/HR & Head of HR, Neyveli Township,P.O.Neyveli – 607 801.2.NLC Tamil Nadu Power Limited (NTPL),Harbour Estate,Tuticorin – 628 004.. . RespondentsPrayer:This Writ Petition is filed under Article 226 of theConstitution of India, praying this Court to issue a writ ofcertiorari calling for the records and quash the impugned order ofthe first respondent in O.O.No.CORP/HR/502/355/2012-29, dated18.5.2012 (Ex 'A') insofar as petitioner is concerned, issued by thefirst respondent.For Petitioner: Mr.N.G.R.Prasad for M/s.Row & ReddyFor Respondents: Mr.N.A.K.SarmaO R D E RBy consent of both sides, the writ petition is taken up forfinal disposal.2.Petitioner is challenging the order of transfer dated18.5.2012 issued by the first respondent transferring the petitionerfrom the first respondent Office at Neyveli to the second respondentoffice at Tuticorin.3.The petitioner is working as Additional Chief Manager(Mechanical) i.e., Management Gr.I. The transfer order is https://hcservices.ecourts.gov.in/hcservices/ challenged on the ground that the petitioner having been appointedin the first respondent office by order dated 15.7.1986 and thesecond respondent is the sister concern of the first respondentwhich has been established in the year 2008, petitioner cannot betransferred to the second respondent office without the consent ofthe petitioner. In the impugned order of transfer dated 18.5.2012,no relieving time is given and only reporting date is mentioned,whereas while passing the transfer orders on 26.4.2011 and 9.9.2011to similarly placed persons, not only joining time was given, butalso not less than ten days relieving time was given. It is thefurther case of the petitioner that being the General Secretary ofthe NLC Graduate Engineers Association, he filed W.P.No.30039 of2011 and challenged the lateral induction to E6 to E8 A Grade as itreduces the chances of promotion to all officers. The firstrespondent has issued the transfer order due to which the petitioneris unable to conduct the case filed before this Court as GeneralSecretary of the Association. The transfer order has been passedcontrary to the appointment order given to the petitioner.4.First respondent has filed counter affidavit contendingthat the petitioner is not transferred by way of punishment. Theallegation of mala fide is only illusory i.e, without any proof andthere is no protection for an officer bearer of the Association inseeking exemption from transfer, as the petitioner is serving in theOfficer cadre, for whom Industrial Disputes Act, 1947 has noapplication. In the writ petition filed by the petitioner asGeneral Secretary of the Association, counter affidavit has beenfiled and the matter is listed for hearing and therefore he need notbe in Neyveli as the case is being conducted at Chennai, which is afar of place and the petitioner can still conduct the case whileserving at Tuticorin. The transfer order dated 18.5.2012 is notonly transferring the petitioner but also transferring 29 otherpersons on similar grounds, i.e, without giving any relieving timeand giving only 10 days time for reporting in the transferred place.There is no discrimination as alleged in the affidavit filed by thepetitioner in granting relieving time. Further, the petitioner wasnot given any financial dealings to settle it for the grant ofrelieving time.5.It is also contended that in the appointment order issuedto the petitioner dated 15.7.1986 it is clearly stated that theheadquarters of the petitioner will be normally at Neyveli and thepetitioner will be subject to further such other terms andconditions of service, as may be prescribed by the company from timeto time. In Clause 8(4) of the order it is stated that thepetitioner is liable to be posted in any of the units of theintegrated projects of NLC and the request for posting in anyparticular Unit of his choice will not be generally entertained.The petitioner was given promotion/higher scale of pay with effect https://hcservices.ecourts.gov.in/hcservices/ from 1.7.2008 at the rate of Rs.17400-400-22300 and in the saidorder it is clearly stated that the petitioner is liable to betransferred to any Branch/ Department/ Unit/Subsidiary/Undertaking/Joint Venture of the Corporation situated anywhere inIndia. Petitioner having accepted the promotion/order fixing highersalary and receiving higher salary all these years, he cannotcontend that he is not liable to be transferred to the secondrespondent Unit, which is a Subsidiary Unit of the first respondentCorporation. Now the petitioner is drawing over Rs.1.00 lakh permonth as emoluments and he is disobeying the order of transfer tothe second respondent Unit, which is only 400 kms away from Neyveli.The impugned order has been issued on public interest and onadministrative reasons and there is no violation of any law ororders. The allegation of vindictiveness and mala fide are deniedin the counter affidavit. Several decisions of this Court and thejudgments of the Supreme Court are relied on in the counteraffidavit to justify the order of transfer.6.The learned counsel for the petitioner submitted that thesecond respondent being a separate entity, though with substantialshare of the first respondent, petitioner cannot be transferred tothe second respondent, which is contrary to the conditions ofappointment. The order of transfer is tainted with mala fide i.e.,without giving any time to get the petitioner relieved he wasprevented from challenging the order of transfer before he wasrelieved and the said action of the first respondent is alsodiscriminatory. The petitioner can be transferred to the secondrespondent unit on deputation that too only after getting hisconsent. The learned counsel heavily relied on the judgment of theSupreme Court reported in 1970 (1) LLJ 492 (P.K.P.Bidi Factory v.O.L.Thenge) and other judgments in support of his contentions.7.The learned counsel for the respondents on the other handsubmitted that the impugned order dated 18.5.2012 was issued notonly against the petitioner but also transferring 29 others on samecondition stating that they will be relieved immediately and theyshall report before the second respondent within ten days i.e, on orbefore 29.5.2012. Earlier orders dated 26.4.2011 and 9.9.2011,which the petitioner is relying on to show the discrimination of notgranting relieving time has no application as the petitioner was notgiven any financial power to settle the same to get relieving time.The learned counsel also submitted that the petitioner having filedwrit petition on 22.5.2012 even before the last date fixed forjoining in the second respondent office, is not justified incontending that he was prevented from approaching this Court. Themala fide alleged against the first respondent is vague and unlessspecific plea of mala fide is made and established, transfer ordercannot be interfered by the courts and the said issue is settled bythe judgments of the Supreme Court and of this Court. The learned https://hcservices.ecourts.gov.in/hcservices/ counsel also submitted that the appointment order dated 15.7.1986empowers the first respondent to effect transfer of the petitioner.The appointment order also states that the terms and conditions ofthe appointment is subject to variation as may be prescribed by theCompany from time to time and the promotion order given to thepetitioner specifically states that the petitioner is liable to betransferred to any Branch/Unit or Subsidiary situated anywhere inIndia and the petitioner having accepted promotion order andreceived higher salary from 1.7.2008 accepting the terms andconditions, he is estopped from challenging the order of transferdated 18.5.2012. The learned counsel also relied on the judgment ofthis Court made in W.P.No.26640 of 2009 dated 10.2.2010 andsubmitted that similar transfer order transferring the petitionertherein to the second respondent Subsidiary Unit was already upheldby this Court giving a clear finding that the second respondent is aSubsidiary Unit of the first respondent and the said findings givenby the learned Judge has become final and therefore the petitioneris not entitled to get any relief.8.I have considered the rival submissions made by thelearned counsel for the petitioner as well as the learned standingcounsel for respondents.9.The order dated 18.5.2012 was issued transferring 30persons including petitioner from the first respondent Unit to thesecond respondent Subsidiary Unit. In the order it is stated thatall the 30 persons will be relieved from the present Unitimmediately and they shall report to the Chief Executive Officer ofthe second respondent at Tuticorin within a period of ten days i.e,on or before 29.5.2012. The petitioner has not given any reason asto why the petitioner is entitled to get relieving time.10.The only contention raised by the learned counsel forpetitioner is that due to the non-granting of relieving timepetitioner was prevented from challenging the order of transfer.In the order of transfer it is stated that the petitioners andothers should report before the second respondent on or before29.5.2012. As rightly contended by the learned counsel for therespondents, this writ petition was filed on 22.5.2012 i.e, sevendays prior to expiry of the time to report for duty at the secondrespondent office. Thus, there is no justification on the part ofthe petitioner to contend that the petitioner was prevented fromapproaching this Court from challenging the transfer order.11.The order of appointment issued to the petitioner on15.7.1986 contains a clause for transfer and that the petitionershall abide all other terms and conditions of service as may beprescribed by the Company from time to time. Clauses 7(1) to (3)and 8(4)(a) of the appointment order deals with the conditions ofservice,which read as follows: https://hcservices.ecourts.gov.in/hcservices/ "7.1Your Headquarters will be normally at Neyveli.7.2There is acute shortage of housingaccommodation and it will not be possible to providehousing accommodation. However, subject toavailability, you may be provided with accommodationin any of the hostels or unfurnished quarters forwhich rent and other charges, if any, will berecovered from you, besides charges for power andwater, at the prescribed rates.7.3You will be subjected further to such otherterms and conditions of service as may be prescribedby the Company from time to time.8.4(a)As the Neyveli Lignite Corporation is anintegrated project comprising the Mines, the ThermalStation, the Chemical Plants and the CommonServicing Units, you are liable to be posted in anyof these units. Request for posting to anyparticular Unit of your choice will not be generallyentertained."From the above clauses contained in the order of appointment whichdeal with conditions of service of the petitioner it is evident thatthe petitioner is liable to be transferred. It is the contentionof the petitioner that the second respondent Unit was establishedonly in the year 2008, therefore the petitioner cannot betransferred to the second respondent Unit and as such the petitionercannot be transferred by applying clauses contained in theappointment order.12.This court in W.P.No.26640 of 2009 order dated 10.2.2010(TSSJ) when similar challenge was made, held that the secondrespondent is a Subsidiary of NLC, which came into existence from26.5.2008. The said finding given by this Court has become final.13.Promotion was given to the petitioner on 30.4.2009 i.e,after establishment of the second respondent Subsidiary Unit of thefirst respondent. In the said order it is clearly stated in clause4 that the petitioner is liable to be transferred to anyBranch/Department/ Unit/Subsidiary situated anywhere in India.Petitioner was given such promotion with higher scale of pay from1.7.2008. The said promotion order was accepted by the petitionerwithout any demur and he has been receiving the higher salary from1.7.2008 all these years. Even now the petitioner has notchallenged the clause contained in the said promotion orderempowering the first respondent to transfer the petitioner to itsSubsidiary Units. In the absence of any challenge and moreparticularly when the petitioner having accepted the promotion order https://hcservices.ecourts.gov.in/hcservices/ and availed the benefits pursuant to the said order, he is notentitled to now contend that without his consent he cannot betransferred from the first respondent Unit to the second respondentUnit. If there is no such clause in the promotion order as well asin the appointment order dated 15.7.1986, petitioner may bejustified in contending that without his consent he cannot betransferred from the first respondent Unit to the second respondentUnit.14.The decision relied on by the learned counsel for thepetitioner reported in 1970 (1) LLJ 492 (P.K.P.Bidi Factory v.O.L.Thenge) is not applicable to the facts of this case. In thesaid case the issue decided was that whether an employer canunilaterally transfer an employee to one Beedi factory to anotherBeedi factory without his consent. In paragraph 8 of the saidjudgment it is held that transfer of service from one employer toanother employer can only be effected by a tripartite agreementbetween the employer, employee and the third party, the effect ofwhich would be to terminate the original contract of service bymutual consent and to make a new contract between the employee andthe third party. In para 9 of the judgment it is further held thatif there is a consent expressed or implied, the employee can betransferred.15.In this case, while issuing the order of promotion thepetitioner was specifically informed that he is liable to betransferred to any Branch/Department/Unit (or)Subsidiary/Undertaking/Joint Venture of the Corporation situatedanywhere in India. The petitioner accepted the said order ofpromotion and is availing the benefit. Thus, it is clear that thepetitioner accepted the change of conditions of service by givingimplied consent and the said promotion order given to the petitionerand the condition contained therein empowering the first respondentto transfer the petitioner is not challenged.16.As stated supra, in W.P.No.26640 of 2006 dated 10.2.2010this Court has given a categorical finding that the secondrespondent Unit is a Subsidiary Unit of NLC. The said finding hasbecome final.17.In the decision reported in (2001) 8 SCC 574 (NationalHydroelectric Power Corporation Ltd v. Shri Bhagwan) the HonourableSupreme Court considered the validity of transfer and the saidchallenge was dismissed by holding that the transfer order was madeconsistent with the terms and conditions embodied in the letter ofappointment, which clearly states that every employee is liable tobe transferred and posted at any place within its service and thecontention that the employee can be posted at Corporate Office onlyand not to be posted in different Units was not accepted by the https://hcservices.ecourts.gov.in/hcservices/ Honourable Supreme Court. In para 5 of the judgment it is held thatunless the order of transfer is shown to be an outcome of mala fideexercise of power or stated to be in violation of the statutoryprovision prohibiting any transfer, the Courts or Tribunals cannotinterfere with such orders.18.Further similar order of transfer transferring oneC.Duraikannu, Chief Engineer (Civil) from the first respondent NLCto the second respondent Subsidiary Unit, which was challenged onsimilar grounds was upheld by this Court taking note of thepromotion order given as in this case with a condition stating thatthe said person is also liable to be transferred to any Unit orSubsidiary.19.In the decision reported in (2003) 2 SCC 632 (P.U.Joshi v.Accountant General) the Honourable Supreme Court held that theemployee has no right to claim that rules governing conditions ofhis service should be forever the same as the one when he enteredinto service for all purposes and the authority of the State isentitled to amend, alter and bring into force new rules relating toeven an existing service.20.Insofar as the allegation of mala fide in not grantingtime for relieving the petitioner and the petitioner having filedwrit petition as General Secretary of the Association against thefirst respondent management, the said allegations are vague andwithout any substance. The writ petition filed by the petitioner asGeneral Secretary of the Association is already admitted andpending. Petitioner's presence is not required at Neyveli toconduct the case. Not granting relieving time is also justified asthe petitioner is not the only person transferred by the order dated18.5.2012, but 29 other persons were also transferred to the secondrespondent Unit through the very same transfer order. Thus, thereis no substance in the allegations of mala fide.21.The proof of mala fide required in a case to sustain thesaid contention was considered by the Supreme Court in the decisionreported in (2006) 9 SCC 458 (Pushottam Kumar Jha v. State ofJharkhand). In the absence of any particulars specifying thegrounds of mala fide and proof of mala fide alleged on the firstrespondent, the alleged ground raised to challenge the order oftransfer on mala fide reasons is unsustainable.22.(a)The decision cited by the learned counsel for thepetitioner reported in 1960 (1) LLJ 266 (Kundan Sugar Mills v. ZiyaUddin & Others) is not applicable to the facts of this case as theworkman involved in the said case was 'workman' as defined under theIndustrial Disputes (Appellate Tribunal) Act, 1950. https://hcservices.ecourts.gov.in/hcservices/ (b)The decision reported in 1963 (1) LLJ 282 (National RadioCorporation v. Their Workmen) is factually distinguishable as theworkman, at the time of joining was fully aware of the fact that thefactory was having any other branch and there was no conditionmentioned in the appointment order that he will be liable to betransferred anywhere in India.(c)The decision relied on i.e, (1988) 2 SCC 351 (GeneralOfficer Commanding-in-Chief v. Dr.Subhash Chandra Yadav) was adecision rendered on the basis of Cantonment Funds Servants Rules,1937 and the Rules were found to be ultra vires to Cantonments Act,1924.(d)The decision reported in 1989 Supp (1) SCC 679 (JawaharlalNehru University v. K.S.Jawatkar) was rendered on the basis that thecontract of service was entered into by the employee of theUniversity making it either expressly or by implication enablingsuch transfer. In view of the said fact, the Honourable SupremeCourt held that transfer cannot be ordered without the consent ofthe employee.(e)The decision of the Kerala High Court reported in 1979 (1)LLJ 139 (P.Pushpakaran v. Coir Board) relied on by the learnedcounsel for the petitioner has no application as victimisation wasproved in that case and due to the said reason the order of transferwas set aside.23.Here in this case, the petitioner has neither establishedmala fide nor victimisation to quash the order of transfer, eventhough vague pleadings are made in the affidavit filed in support ofthe writ petition.24.'Transfer is an incident of service' is a well settledproposition of law repeatedly held in the following decisions of theHonourable Supreme Court reported ini)AIR 1993 SC 2486 (State of Punjab v. Joginder Singh Dhatt);ii)(1993) 4 SCC 357 : AIR 1993 SC 2444 (Union of India v.S.L.Abbas)iii)(2001) 8 SCC 574 (National Hydroelectric Power CorporationLtd v. Shri Bhagwan)iv)(2004) 11 SCC 402 (State of U.P. v. Gobardhan Lal);v)AIR 2004 SC 4850 : JT 2004 (9) SC 185(Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey);vi)AIR 2004 SC 4121 (State of U.P. v. Siya Ram);vii)(2006) 9 SCC 583 (S.C.Saxena v. Union of India);viii)(2007) 8 SCC 150 (Mohd. Masood Ahmad v. State of U.P.);ix)(2007) 8 SCC 212 (Chief Commercial Manager, South CentralRailway v. G.Ratnam); x)(2008) 9 SCC 345 (Government of A.P. v. G. Venkata Ratnam)xi)(2009) 3 SCC 124 (Novartis India Ltd. v. State of W.B.); https://hcservices.ecourts.gov.in/hcservices/ xii)(2009) 11 SCC 678 (Tushar D.Bhatt v. State of Gujarat);xiii)(2010) 13 SCC 306 (State of Haryana v. Kashmir Singh);xiv)(2011) 12 SCC 137 (Registrar General, High Court ofJudicature at Madras v. R.Perachi);and of this Court ina)W.A.No.282 of 2009, Judgment dated 18.3.2009;b)(2006) 2 MLJ 140 (T.Jagadeesan v. Director General, Central Industrial Security Force, New Delhi);c)(2006) 2 MLJ 474 (A. Chinnasamy v. District Collector, Salem);d)(2006) 4 MLJ 1197 (Management, Gedee Weller Pvt Ltd.,Coimbatore v. P.Swaminathan);e)(2007) 3 MLJ 290 (P.Samraj v. Commissioner of Police);f)(2008) 4 MLJ 538 (Dr.M.Ponnuswamy v. University of Madras);g)(2009) 2 MLJ 814 (Jayapaul Mohan v. Engineer-in-Chief andChief Engineer (General) Water Resources Organisation,PWD, Chennai), confirmed in W.A.No.489/2009 dt.23.7.2009; andh)(2011) WLR 676 (H.Rahothuman & Others v. Tamil Nadu StateTransport Corporation (Villupuram) Ltd. & Another).25.Applying the principles laid down in the above decisionsto the facts of this case, I hold, there is no illegality in theimpugned order of transfer dated 18.5.2012. Consequently the writpetition is dismissed. No costs. Connected miscellaneous petitionis also dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vrTo1.The Deputy General Manager/HR & Head of HR,Neyveli Lignite Corporation Limited,Neyveli Township, P.O.Neyveli – 607 801. https://hcservices.ecourts.gov.in/hcservices/

2.NLC Tamil Nadu Power Limited (NTPL),Harbour Estate, Tuticorin – 628 004.1 cc to M/s. Row and Reddy, Advocate, Sr. 345621 cc to M/s. Nak Sarma, Advocate, Sr. 34371W.P.No.13746 of 2012 MG (CO)kk 28/6