C.Duraikannu v. Neyveli Lignite Corporation & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:10.02.2010CORAM:THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.26640/2009 & M.P.No.1/2009 & M.P.No.3/2010C.Duraikannu ... Petitioner -vs-1.Neyveli Lignite Corporation, Rep. by its Chairman cum Managing Director, Neyveli – 1.2.Director (Personal), Neyveli Lignite Corporation Ltd., Neyveli.3.The General Manager (P&A), NLC Ltd., Corporate Officer, Personal and Administration Department, Neyveli.4.The General Manager, Thermal Power Station-I, NLC Ltd., Neyveli. ... RespondentsPrayer: The Writ Petition filed under Article 226 of the Constitutionof India for issue of Writ of Certiorari to call for the pertainingto the orders dated 02.12.2009 in letter No.O.O.No.CORP/P&A/502/355/2009-169 issued by the 3rd respondent transferring thepetitioner from Neyveli to Thoothukudi and the order dated 10.12.2009in Lr.No.GM/TPS-I/P&A/DA/2009 issued by the 4th respondent, quash thesame For Petitioner :Mr.N.G.R.Prasad Senior Counsel for Mr.R.Krishnaswamy For Respondents :Mr.N.A.K.Sarma for RR3 & 4 O R D E RBy consent the Writ Petition itself is taken up for disposal.The challenge is to an order of transfer dated 02.12.2009 https://hcservices.ecourts.gov.in/hcservices/ transferring the petitioner from Neyveli to Thoothukudi and theconsequential order dated 10.12.2009 by which the petitioner'srequest for extension of time for joining the post was declined. 2. The petitioner is employed as the Chief Engineer (Civil) inthe first respondent Corporation (hereinafter referred to "as NLC")and he was promoted to the said post on 01.08.2007. According to thepetitioner he was a public spirited person and was engaged in variousactivities, which according to the petitioner was in the interest ofNLC and ultimately in public interest. While so the third respondentissued the impugned order transferring the petitioner to Thoothukudi.The correctness of the impugned orders are assailed, stating that the3rd and 4th respondents are incompetent to pass the impugned orders andthe competent authority is only the Director(Personal), the secondrespondent. It has been further contended that the petitioner foughtagainst the corruption in making appointments of SC/ST candidates andtherefore the order is malafide and illegal. It was furthercontended that other two officers, who were also transferred underthe same order were transferred on their own willingness. It isfurther submitted that on account of the petitioner's communal statusdiscriminatory treatment has been meted out to him, since peoplebelonging to other community in the same cadre are available and nottransferred.3. This Court by order dated 21.12.2009 ordered notice ofmotion to the respondents and also granted the interim order for alimited period, which order was subsequently extended till the matterwas heard by this Court. During the pendency of the writ petition,the petitioner filed two miscellaneous petition in M.P.Nos.1&2/2010,seeking permission to raise additional grounds and file additionalaffidavit. These petitions were ordered by this Court on 03.02.2010.The additional ground of challenge is that, NLC Tamil Nadu PowerLimited (NTPL) to which the petitioner had been transferred, which isat Thoothukudi, is a separate, independent and different company andthe respondents cannot transfer the petitioner to a new 3rd partycompany and to a different management/establishment without thepetitioner's consent and willingness and as the respondents have notobtained consent and willingness from the petitioner before issuingthe impugned order, the same is illegal. 4. Mr.N.G.R.Prasad, learned counsel appearing for thepetitioner would contend that if the impugned order is given effectto it would amount to transferring the petitioner to a newestablishment and a new employer and the NTPL is a joint venturecompany with the Tamil Nadu Electricity Board and as per theMemorandum of Articles of Association of the company as amended upto30.10.2007, the NLC holds only 50% of the shares in NTPL andtherefore it cannot be a subsidiary of NLC and for being thesubsidiary the holding should be a minimum of 51%. https://hcservices.ecourts.gov.in/hcservices/

5. Next, it is contended that if transfer is stated to be anincidence of service, it can be only within the organisation and notoutside the organisation and the petitioner cannot be transferredoutside the company without the consent of the petitioner. Thelearned counsel placed reliance on the decision of the Hon'bleSupreme Court in M/s.Kundan Sugar Mills Vs. Ziyauddin and others, AIR1960 SC 650, Jawaharlal Nehru University Vs. Dr.K.S.Jawatkar andOthers 1989 Supp (1) SCC 679, and BCPP Mazdoor Sangh and another Vs.N.T.P.C and others, 2008 1 LLN page 1 in support of his contentions.6. Mr.N.A.K.Sarma, learned counsel appearing for the NLC byrelying upon the counter affidavit would contend that transfer is anincidence of service and more particularly when the petitioner isworking as Chief Manager (Civil) in the Thermal Power Station – I atNeyveli and in the pay scale of Rs.36600-62000 and his present basicpay is Rs.58,500 and is drawing a monthly gross salary of Rs.79,852and such Chief Manager holding a Middle Management Level Post is notentitled to avoid transfer on specious and imaginary grounds. Learnedcounsel would further submit that NTPL is a subsidiary of NLC, theMemorandum and Article of Association relied on by the petitioner isof the year of 2007 and the correct position being NLC has 89% equityparticipation in NTPL and TNEB has balance of 11% and NTPL project isin the process of implementation and suitable and experiencedpersonnel in different disciplines in different grades are beingtransferred to Thoothukudi and during the end of November 2009, over30 Executives have been transferred who have all joined NTPL and theseniority and the promotional avenues of the transferred employees donot undergo any alteration and are maintained as such in NLC. 7. The learned counsel appearing for the respondents placedreliance on the following decisions in support of his contentionsGovernment of Andhra Pradesh Vs. G.Venkata Ratnam (2008) 9 SCC 345,State of U.P. and others Vs. Gobardhan Lal, 2004 11 SCC 402,S.C.Saxena Vs. Union of India and Others (2006) 9 SCC 583, Mohd.Masood Ahmad Vs. State of U.P. and others, JT 2007 (11) SC 540 andunreported Judgment of the Hon'ble First Bench of this Court inW.A.No.282/2009 dated 18.03.2009 and the subsequent order passed bythe Hon'ble First Bench dated 30.04.2009 in review applicationNo.37/2009 in W.A.No.282/2009. The learned counsel for therespondents further placed the annual report of the NLC – 2008-2009and in the statement made under Section 212 of the Companies Act, ithas been noted that NTPL is a subsidiary of the NLC and it became asubsidiary on 26.05.2008.8. The learned counsel appearing for the respondents wouldfurther submit that the order of promotion given to the petitioner on06.08.2007, clearly states that the petitioner was liable to betransferred to any Establishment/Department/Unit (or) Subsidiaries /Undertaking of the Corporation situated anywhere in India. Thelearned counsel for the respondents would submit that the petitioner https://hcservices.ecourts.gov.in/hcservices/ cannot resist the order of transfer. It is further contended that insofar as the project at Rajasthan, it was established by the NLCduring 2000 and so far 215 Executives have been transferred fromNeyveli to Rajasthan. The other allegations made by the petitionerpertaining to the actions stated to have been initiated by him forcertain stated reasons have been denied. These allegations, denialand counter allegations are not gone into in the present case, sincethe validity of the impugned order of transfer is tested only on thelegal grounds raised.9. I have carefully considered the submissions on either sideand perused the materials available on record.10. Admittedly, the petitioner is a Middle Management LevelOfficer working as Chief Manager (Civil) in Thermal Power Station – INLC and drawing a substantially good monthly gross salary ofRs.79,852/-. The Hon'ble First Bench of this Court considered thevalidity of an order of transfer of an Additional Chief Manager ofNLC drawing a salary of over Rs.40,000/-, when he was transferred toRajasthan. The Hon'ble First Bench by order dated 18.03.2009, whiledismissing the appeal held as follows:-"4. We have heard both the parties. We are inclined toaccept the submission made on behalf of the respondents. It iswell known that transfer is an incidence of service and highlyplaced officers like the appellant herein cannot refuse toproceed to the station where they have been transferred."11. The review petition filed against the such order was inreview application No.37/2009 came to be dismissed by order dated30.04.2009. Thus the view taken by the Hon'ble First Bench is thattransfer is an incidence of service and highly placed officer likethat of the appellant therein cannot refuse to proceed on transfer. 12. Mr.N.G.R.Prasad, learned counsel appearing for thepetitioner would contend that the transfer could be an incidence ofservice, if it is within the organisation and if it is outside theorganisation, it cannot be done without the consent of the employee.Therefore, it has become necessary to examine the aspect as towhether the petitioner has been transferred within the organisationor outside the organisation. The order of promotion dated 06.08.2007empowers NLC to transfer the petitioner to anyEstablishment/Department/Unit (or) Subsidiaries /Undertaking of theCorporation situated anywhere in India. The point which has beenraised by the learned counsel for the petitioner is that NTPL is nota subsidiary of NLC, since as per the Memorandum and Articles ofAssociation 2007 NLC holds only 50% of the equity and the minimumrequirement for being a subsidiary is 51% and therefore NTPL is not asubsidiary of NLC. Learned counsel by placing reliance on the case https://hcservices.ecourts.gov.in/hcservices/ of Kundan Sugar Mills, referred supra, would contend that theHon'ble Supreme Court held as follows:-"4.......... In the instant case, as we have indicated,the two factories are distinct entities, situated at differentplaces and, to import a term conferring a right on the employerto transfer respondents 1 to 4 to a different concern is reallyto make a new contract between them." 13. Further the learned counsel would rely on the decision inthe case of Jawaharlal Nehru University, referred supra, wherein theHon'ble Supreme Court held that :"7........ The position in law is clear, that no employeecan be transferred, without his consent, from one employer toanother. The consent may be express or implied. We do notfind it necessary to refer to any case law in support of thisconclusion."14. It is to noted that in the counter affidavit, it has beenspecifically stated that the NLC has 89% equity participation in NTPLand it is a subsidiary of NLC. In support of the said averments, the53rd annual report 2008-2009 of NLC has been produced and in page 73of the said report, it is seen from the statement pursuant to Section212 of the Companies Act 1956, that NTPL has become a subsidiary ofNLC on 26.05.2008. Therefore, it is clear that the contention raisedby the petitioner stating that NTPL is not a subsidiary of NLC isfactually incorrect. 15. Having been faced with such factual material, the learnedcounsel appearing for the petitioner would alternatively submit thatthe petitioner was promoted on 06.08.2007 and as on such date NTPLwas not a subsidiary of NLC as it had become a subsidiary only on26.05.2008 and therefore the petitioner cannot be transferred to NTPLwithout his consent. 16. Therefore, the submission of the petitioner is that theconditions of service and the position of the Rules or Regulationscannot be altered and such regulations have to remain unaltered as onthe date when the petitioner joined service. On this aspect, itwould be relevant to note the decision of the Hon'ble Supreme Courtin P.U.Joshi Vs. Accountant General, (2003) 2 SCC 632, wherein theHon'ble Supreme Court held that there is no right in any employee ofthe State to claim that rules governing conditions of his serviceshould be forever the same as the one when they entered service forall purposes and except for ensuring or safeguarding rights orbenefits already earned, acquired or accrued at a particular point oftime, a government servant has no right to challenge the authority ofthe State of amend, alter and bring into force new rules relating toeven an existing service. https://hcservices.ecourts.gov.in/hcservices/

17. Therefore, I am unable to accept the contention raised bythe learned counsel appearing for the petitioner that the Rules ofthe organisation should remains static. In view of the abovereasoning, it has to be necessarily concluded that the NTPL is asubsidiary of NLC and therefore the ground raised by the petitionerthat he has been transferred to a different organisation is not wellfounded. Therefore, the Judgments relied on by the learned counselfor the petitioner does not advance the case of the petitioner, sincefactually in the present case the order of promotion specificallystated that the petitioner was liable for transfer to thesubsidiaries of NLC. 18. Next, it has been contended that the impugned order oftransfer is on account of malafide exercise of power anddiscriminatory treatment meted out to the petitioner. In theaffidavit filed in support of the writ petition though the words"malafide" has been used in more than one place, no specificallegations of malafides have been made relatable to the impugnedorder of transfer and no specific officer or authority has been namedfor such transfer and no such person has been impleaded in hispersonal capacity. The Hon'ble Supreme Court in 2005 SCC 630,Prabodh Sagar Vs. Punjab State Electricity Board and other held thatmere use of the word malafide by the petitioner would not by itselfmake the petition entertainable. The Hon'ble Supreme Court inPurushottam Kumar Jha Vs. State of Jharkhand and others - (2006) 9SCC 458 on the same issue, held as follows:-"23. It is well settled that whenever allegations as tomala fides have been levelled, sufficient particulars andcogent materials making out prima facie case must be set outin the pleadings. Vague allegation or bald assertion that theaction taken was mala fide and malicious is not enough. Inthe absence of material particulars, the court is not expectedto make "fishing" inquiry into the matter. It is equally wellestablished and needs no authority that the burden of provingmala fides is on the person making the allegations and suchburden is "very heavy". Malice cannot be inferred or assumed.It has to be remembered that such a charge can easily be "madethan made out" and hence it is necessary for the courts toexamine it with extreme care, caution and circumspection. Ithas been rightly described as "the last refuge of a losinglitigant". (Vide Gulam Mustafa Vs. State of Maharashtra; AjitKumar Nag. V. GM(PJ), Indian Oil Corpn. Ltd. (2005) 7 SCC764".Therefore, I am unable to accept the contention raised on behalf ofthe petitioner that the impugned order of transfer is on account ofmalafide exercise of power. https://hcservices.ecourts.gov.in/hcservices/

19. Having held that the NTPL is a subsidiary of NLC and thatthe petitioner cannot state that since it become a subsidiary afterhis order of promotion, the same would not have any effect, whichcontention is untenable, and it has to be held that the transfer inthe instant case is an incidence of service. As rightly pointed outby the learned counsel appearing for the respondents in S.C.SaxenaVs. Union of India and Others (2006) 9 SCC 583, Mohd. Masood AhmadVs. State of U.P. and others, JT 2007 (11) SC 540, the petitioner isnot justified in resisting the order of transfer. 20. For the above reasons, I find no valid grounds to interferewith the order of transfer and accordingly the writ petition failsand it is dismissed. Consequently, connected miscellaneous petitionsare also closed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarpbnTo1. The Chairman cum Managing Director, Neyveli Lignite Corporation, Neyveli – 1.2. The Director (Personal), Neyveli Lignite Corporation Ltd., Neyveli.3. The General Manager (P&A), NLC Ltd., Corporate Officer, Personal and Administration Department, Neyveli.4. The General Manager, Thermal Power Station-I, NLC Ltd., Neyveli.1 cc To Mr.V.Ajay Khose, Advocate, SR.84021 cc To Mr.N.A.K.Sarma, Advocate, SR.8365W.P.No.26640/2009AR(CO)sra 11.02.2010