Karnataka High Court
Sri P Ashok Kumar vs Karnataka State Road Transport ... on 24 August, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OFAUGUST, 2012
BEFORE:
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NOs.42163-42164/2011 (S-KSRTC)
BETWEEN:
SRI. P. ASHOK KUMAR,
AGED ABOUT 50 YEARS,
S/O SRI. M. PUTTASWAMY,
NO.116, 9TH MAIN, 7TH CROSS,
SARASWATHIPURAM,
MYSORE -570 009 .... PETITIONER
(BY SRI. PUTTIGE R. RAMESH, ADVOCATE)
AND:
1. KARNATAKA STATE ROAD TRANSPORT CORPORATION,
BY ITS MANAGING DIRECTOR,
CENTRAL OFFICE, K.H. ROAD,
BANGALORE -560 027.
2. CHIEF SECURITY AND VIGILANCE OFFICER,
CENTRAL OFFICE, K.H. ROAD,
BANGALORE- 560 027,
N. H. 17, UDUPI DISTRICT.
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3. S. RANGANNA
PRINICIPAL
REGIONAL TRAINING CENTRE
KSRTC,
MYSORE-570 001
R-3 IS SUBSTITUTED VIDE ORDER DATED 09.12.2011
3. SRI. YELLAPPA,
K.K. PURA,
PRINCIPAL,
KSRTC REGIONAL TRAINING CENTRE,
MYSORE. ...RESPONDENTS
(BY SMT.H.R.RENUKA, ADVOCATE FOR R-1 & R-2, AND R-3
SERVED)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
TO QUASH THE ORDER OF TRANSFER DATED 27.7.2010
OF THE R-1 VIDE ANNEXURE-A. DIRECT TO QUASH THE
PROCEEDINGS DATED 4.9/10.11 OF THE R-1 VIDE
ANNEXURE-G
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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ORDER
Petitioner in these proceedings is seeking for quashing of the order of transfer dated 27.07.2010 No.KST:CO:EST:E- 1:674:10-11 Annexure-A, quashing of the proceedings No.KST:CO:EST:D-453:888:2011-12 dated 04.09/10.2011 and order No.KST/CO/EST/C-1/196/2011-12 dated 07.05.2011 at Annexure-K.
2. Facts in brief leading to filing of this writ petition are as under:
Petitioner was appointed as an Assistant Traffic Manager, Class -II on 17.02.1986 in respondent-Corporation.
He was promoted to the post of Divisional Traffic Officer (Class-1 Junior) and thereafter to the post of Deputy Chief Traffic Manager (Class-I Senior). He worked as a Divisional Traffic Officer up to 04.02.2004 and was promoted to the post of Deputy Chief Traffic Manager and was posted as Principal, Regional Training Institute, Humnabad, NEKRTC on 4 04.02.2004. On his own request he was transferred on 25.02.2004 from Regional Training Institute, Humnabad, and posted to work as Principal, Regional Training Institute, Mysore. Subsequently, he was posted to work as Divisional Controller, Mysore-Urban Division on 22.07.2005. Again, on his own request he was posted as Principal, Regional Training Institute, Mysore on 19.04.2006. He has served as Class-I Senior Officer at Mysore namely as Principal as well as Divisional Controller till 27.07.2010.
3. Third respondent was working as Deputy Chief Traffic Manager, Central Offices, N.E.K.R.T.C, Gulbarga. On his request for transfer from NEKRTC-Gulbarga on the ground he was having only 8 months of service and taking into consideration that petitioner was working at Mysore for past six years and had not worked as a Deputy Chief Traffic Manager. He was deputed to work as Deputy Chief Traffic Manager at NEKRTC, Central Office, Gulbarga in view of third respondent having been transferred from Gulbarga. 5 Accordingly petitioner was relieved of his duties from Regional Training Institute, Mysore with effect from 02.08.2010 and was directed to report at the deputed place. Third respondent who has since reported to the place of the petitioner and has since retired from service with effect from 31.03.2011.
4. However, petitioner did not report at NEKRTC- Gulbarga though he was relieved at Mysore. On account of his non-compliance with the orders notice was issued to report and petitioner without complying with the notice, submitted leave application which came to be rejected by the Corporation and petitioner continued to remain absent. A charge sheet came to be issued to the petitioner alleging three charges including unauthorised absence. Petitioner had sought for certain documents and inspite of efforts made by Corporation to serve the copies of the documents sought for by petitioner, corporation contends it could not serve the copies. Thereafter enquiry officer was appointed and notice issued to the petitioner communicating the appointment of 6 enquiry officer came to be returned as "refused". However, subsequently it was served through security person and even the notices issued by the Inquiring Authority was returned as "refused". However, the enquiry notice dated 02.11.2011 was replied by the petitioner contending that he had filed the writ petition. In this factual background petitioner is seeking for quashing of the order of transfer dated 27.07.2010 Annexure- A and order dated 04/09-10/2011 appointing the enquiry officer to conduct domestic enquiry in respect of the articles of charge issued to the petitioner.
5. I have heard the arguments of Sri.P.R.Ramesh, learned Counsel appearing on behalf of the petitioner and Smt.H.R.Renuka, learned counsel appearing on behalf of respondent-corporation and perused the Writ papers.
6. It is the contention of Sri.P.R.Ramesh that though service regulations of Karnataka State Road Transport Corporation (Conduct and Discipline) Regulations, 1971 7 (hereinafter referred to as `Regulations -1971' for brevity) govern all the five undertakings an officer of one corporation cannot be transferred to another corporation and relies upon the decision of this court in the case of Sri.H.S.Manjunath and others Vs The Managing Director, KSRTC and others reported in ILR 2009 Karnataka 2482. He contends petitioner being Class-I officer the law enunciated in Manjunath's case would be squarely applicable to the facts on hand. He would also contend that similar orders issued to several other officers have been withdrawn. He would submit that KSRTC being the cadre controlling authority, petitioner cannot be transferred to NEKRTC which is admittedly another corporation. Yet another contention is raised that an order has now been passed by the Government on 02.01.2012 empowering Managing Director-KSRTC to transfer the officials and in pursuance of the said G.O., KSRTC has issued a circular on 21.02.2012 which specifies the power of the Managing Director to transfer the officials which can only be prospective and not retrospective and as such the order of 8 transfer of the petitioner passed by the first respondent is bad in law. On the issue of the domestic enquiry instituted against petitioner, learned counsel contends that certain documents sought for is not produced and thereby petitioner has not been able to reply to the charge memo and as such continuation of inquiry proceedings is in violation of principles of natural justice. On these grounds he seeks for allowing of the writ petitions.
7. Per contra, Smt.H.R.Renuka has contended that Petitioner was working at Mysore for more than 6 years and he not worked as Deputy Chief Traffic Manager, though he was promoted in the year 2004 and in view of the transfer of Sri.Ranganna who was working at NEKRTC, Central Office, Gulbarge, petitioner came to be posted after being relieved from Regional Training Institute, Mysore with effect from 02.08.2010. She would submit that after promotion as Class- I Senior Officer petitioner worked from 2004 to 2010 at Mysore and has not discharged his duties in his own 9 departmental cadre namely as Deputy Chief Traffic Manager. She would contend that petitioner has not reported at the place he has been deputed and since his wife Smt.Sandhya is owning a petrol bunk in K.R.Nagar and running the same under M/s.Jattin Enterprises, charge sheet came to be issued to the petitioner for violation of Regulations 1971 which includes unauthorised absence from duty and inspite of articles of charge being issued petitioner has not replied to the same on evasive grounds and as such she submits that petitioner is not entitled for any reliefs. She would elaborate her submission by contending that order dated 27.07.2010 deputing the petitioner by transferring him to NEKRTC, Central Office, Gulbarga came to be passed and petitioner was relieved on 02.08.2010 and without reporting to the place of his transfer writ petitions in question has been filed on 10.11.2011 namely after 1 year 3 months, that too after the articles of charge was issued and as such petition is liable to be dismissed both on the ground of latches and there being no bonafides. She would submit that admittedly the cadre 10 controlling authority of class -I officers is KSRTC and petitioner does not dispute that seniority list maintained for class -I and II officers is based on the seniority of officers of all the corporations and as such it cannot be contended that petitioner cannot be posted from KSRTC to NEKRTC. On these grounds she seeks for dismissal of the Writ Petitions.
8. Having heard the learned advocates appearing for the parties. I am of the considered view that following points would arise for my consideration:
(i) Whether order of transfer dated 27.07.2010 (Annexure-A) is to be affirmed or quashed?
(ii) Whether proceeding initiated against petitioner vide order dated 4/9-10/2011 Annexure-G and Circular dated 21.02.2012 are liable to be quashed?
Since, both these points are interlinked and over lap with each other they are answered as under: 11
9. Transfer is an incidence of service. Until and unless it is shown by a positive evidence or material being placed on record to demonstrate that such transfer is actuated with malafides the courts would be loathe in interfering with such order of transfers. An applicant approaching the court has to demonstrate that such order of transfer is tainted with malafides. If the order of transfer is not passed with malice or in violation of service rules governing such transfer the courts would refrain itself from interfering with such orders. Administrative orders passed by the authorities transferring officials would not be lightly interfered by the courts since this court would not sit in the arm chair of such authority to ascertain the administrative exigencies and its needs by examining such decisions with a microscopic eye and as an appellate authority. In this regard the law laid down by the Apex Court can be looked up which governs the field of "transfer":
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(1) AIR 2001 SC 3309 - National Hydroelectric Power Corporation Ltd., Vs Shri.Bhagwan and another Transfer - Employee of public undertaking - Transfer of, from corporate office to new project - Such transfer not prohibited by Rules - No malafides shown - Alleged adverse consequences detrimental to seniority of such employees, not likely to occur as project to which they were transferred was new one -
No interference.
(2) AIR 2004 SC 2165 - State of U.P. and others Vs Gobardhan Lal with D.B.Singh Vs D.K.Shukla and others Transfer of Government Servant - Order, unless shown to be vitiated by malafides or is made in violation of statutory provisions - Cannot be lightly interfered with, by Court - Courts or Tribunals do not sit as appellate authorities over transfer orders - Questions involved as to whether transfer order was passed due to political pressure or not - Is disputed question of fact - Interference with, by High Court relying upon write-ups in journals or news paper reports - Not proper - General directions issued by High Court - Is an attempt to take over reigns of executive administration - Unwarranted and deprecated.
(3) 1989 (2) SCC 602 - Gujarat Electricity Board and another Vs Atmaram Sungomal Poshani Transfer of Employee - An incident of service - Employee has no right to be posted at a particular place - Transfer cannot be evaded merely on ground of pendency of representation or difficulties. 13 Termination of service - Natural justice - Warning - Termination on ground of failure to comply with transfer order despite warnings and consequent absence from duty without leave or overstay - Issue of warning to the employee a pre-condition for termination under Service Regulations - Warning need not be in any particular form - Object of warning - On facts held, warning as well as show cause notice had been issued to respondent before issuing termination order - Plea of non-service of letter containing the warning not made out - Hence termination valid - Gujarat Electricity Board Service Regulations, Regulation 113 - Gujarat Electricity Board Conduct, Discipline and Appeal Procedure - Administrative Law- Natural Justice.
10. Keeping in mind the contours explained by the Hon'ble Apex Court in the judgments referred to supra when the facts on hand are examined it can be safely concluded that the petitioner herein is not alleging any malafides against the respondent authorities. The main ground of attack to the impugned order is on the ground that petitioner is working in KSRTC and has been transferred to NEKRTC which is admittedly a independent and separate corporation as recognised by this court in the law laid down in Manjunath's case and as such petitioner could not be 14 transferred from KSRTC to NEKRTC. A Co-ordinate Bench of this court in Manjunath's case referred to supra has held as follows:
"32. Apart from this, from the pleadings, it is clear that the petitioners being office-bearers and admittedly, they are working as Class-III employees (conductors), their seniority, promotions are confined only to the division, normally their transfers are within the division. In this case, it is not a transfer within the division but it is to another Corporation itself. In this case, from the pleading it appears that, the Managing Director of K.S.R.T.C having noticed that these petitioners are office bearers of the Union and they had given notice for certain demand and wanted to go on strike, the Managing Director of K.S.R.T.C to get rid of these Union leaders had issued the transfer orders, placing them at a distant place. It is a case of victimization".
11. It is noticed from the above case that employees therein who came to be transferred from Tumkur Division, KSRTC to Yadgir Division, NEKRTC, Chikkodi Division, NWKRTC was under consideration and as such it has been held that the petitioners therein were working as class-III employees (conductors) and their seniority and promotions are confined only to the divisions in which they are working 15 and as such transfers if any effected would be within the said division and as such order of transferring those employees (conductors) was found to be contrary to the provisions of Road Transport Corporation Act, 1950 and it was also opined by this court that it was case of victimisation since the employees (conductors) were office bearers of the trade union which had given notice to the Managing Director, KSRTC raising certain demands and had proposed to go on strike in the event of their demands not being met and as such held transferring these conductors was a case of victimisation. Hence, said judgment would not be applicable to facts of present case.
12. In the instant case petitioner is admittedly class-I senior officer and had worked as a Divisional Traffic Officer till 04.02.2004 namely till he was promoted to the post of Deputy Chief Traffic Manager and was posted as Principal, Regional Training Institute, Humnabad - NEKRTC and was transferred on 25.02.2004 from Regional Training Institute, 16 Humnabad to work as Principal, Regional Training Institute, Mysore. Infact petitioner was subsequently posted to work as a Divisional Controller, Mysore Urban Division, from 22.07.2005 till 19.04.2006 on which date he was posted back as Principal, Regional Training Institute, Mysore. There is no dispute to the fact that in so far as class-I and class II officers are concerned the seniority list is not prepared by individual corporations. In other words there is no separate or independent seniority list governing four different corporations in so far as class-I, Class-II Officers of all four Corporations. To put it differently the seniority list of class-I and class II officers working in all the four corporations is one single list which is operated upon. Infact the cadre controlling authority of class I and II officers working in all the four corporations is one i.e., KSRTC. The judgment in Manjunath's case relied upon by the learned counsel appearing for petitioner would also not be applicable to the facts on hand as the employees in the said case were class-III employees working as conductors and intra division transfers 17 were permissible and not inter division transfers. Whereas in the instant case petitioner herein is a class-I officer and the seniority list under which the petitioner falls relates to class I officers working in all the four corporations. Hence, the contention of the petitioner that he cannot be transferred from KSRTC to NEKRTC-Gulbarga cannot be accepted.
13. The second contention regarding the competency of Chief Manager (Personnel) to transfer the petitioner being without authority of law by relying upon the Judgment of this court in the case of B.Chinnaswamy Vs Management of KSRTC and others reported in ILR 2011 Karnataka 2246 is concerned is examined with reference to the facts on hand. It has been held in the said case to the following effect:
11. The State Government has established the KSRTC, BMTC, NWKRTC & NEKRTC, in exercise of the power Under Section 3 of the Act. The Corporations are being managed by their respective Board of Directors. The State Government has appointed MD, CAO & FA, to each of the RTCs in the State. After the establishment of BMTC, NWKRTC & NEKRTC, State Government issued the orders dated 22.10.1997 and 05.08.2000, in exercise of the power 18 Under Section 34 of the Act. The primal question, therefore, which arises for consideration is, whether the MD, KSRTC can be said to have the power of transferring and posting of CAO & FA of the Corporation.
12. Ordinarily, the power of transfer vests in the employer. Such power, however, would be subject to the statutory provisions operating in the field. The scheme of the Act plays an important role. In the instant case, having regard to the provisions contained Under Section 14(1), I am of the opinion that, the MD, KSRTC has no power of transferring and posting an Officer as CAO & FA. The statute expressly confers the power on the State Government to appoint the MD, CAO & FA or CAO-cum-FA, after the establishment of Road Transport Corporations.
The Act was amended with effect from 13.11.1982, inserting Chapter II A i.e., Section 17A, which provided for establishment of subsidiary Corporation, in which event also, MD and CAO & FA or CAO-cum- FA, can be appointed only by the State Government.
13. The State Government in exercise of the power Under Section 14(1) appointed the petitioner as CAO & FA of BMTC. The MD, as the executive head of the Corporation and all other officers and employees of the Corporation being subordinate to him, in terms of sub-Section (1) of Section 15 of the Act, is purported to have taken the decision to transfer the petitioner and the impugned order was issued. Even by exercise of power Under Section 34 of the Act, the State Government cannot confer on the MD of a Corporation, the statutory power of appointment of a CAO & FA of the Road Transport Corporation or a subsidiary Corporation. Section 34 does not provide for such delegation. It is trite that, the statutory 19 power can be exercised only in the manner provided by the statute and not otherwise".
14. In the above case, the petitioner therein was a Divisional Controller of KSRTC having been appointed by the State Government by issuance of notification under Section 14 of KSRTC Act, 1950. On the said post being upgraded to super time scale, petitioner came to be promoted and continued in the post of Chief Accounts Officer and Financial Adviser (CAO-FA)-BMTC. Petitioner therein along with others was transferred to NWKRTC, Hubli and a contention was raised therein that Managing Director, KSRTC could not have taken a decision to transfer petitioner and same was illegal and it is in this background the power of the Managing Director, KSRTC to transfer CAO and FA came to be considered and was held that under section 14(1) of the Act, M.D., KSRTC had no such power. In the instant case we are not faced with such a situation at all. Infact petitioner himself admits that by virtue of the Government order dated 02.01.2012 the Vice President and Managing Director as also 20 the Managing Director is empowered to exercise the powers of the Government which otherwise was restricted. Though it is contended it is prospective in nature I am not inclined to accept the said contention for the simple reason the said G.O is only clarificatory in nature in as much as the Chairmans' to these corporations who are appointed would be non official appointees who would not be empowered to exercise the executive power and as such the Government in the fitness of things has clarified this aspect with regard to exercise of the power by the executive.
15. Now turning my attention to the factual matrix of the present case, it is noticed that in the first instance when the order of transfer came to be passed on 27.07.2010 and on being relieved on 02.08.2010 petitioner did not report at the place to which he was deputed/transferred. Inspite of directions and notices issued, petitioner did not adhere to the orders but went on submitting leave applications. Such request of the petitioner was turned down by the corporation 21 and he was instructed to report to the deputed place. At this juncture it would be of necessity to note the law laid down by the Apex Court in S.C.Saxena Vs Union of India reported in (2006) 9 SCC 583 whereunder it has been explained by the Hon'ble Apex Court as to the recourse of action to be adopted by an employee who is transferred. It reads as under:
A. Service Law - Transfer - Duty of Government servant to comply with transfer order, emphasised - Tendency of not reporting at the new place and instead indulging in litigation to ventilate grievances, held, needs to be curbed - More so when there was no physical disability to join duty at new place - Hence the delinquent government servant behaving in such manner and continuing to submit leave application for a long period - Held to be guilty of misconduct of unauthorized absence from duty - compulsory retirement order passed - Misconduct - Absence from duty - Non compliance with transfer order - compulsory retirement - Grounds long unauthorised absence.
16. Petitioner did not adopt this course of action namely he did not report to the place where he was working but went on submitting leave applications and exhibited a defiant attitude. It is further noticed that the petitioner was not adhering to the directions issued by the corporation, his 22 prayer for granting leave had been turned down and as such the corporation proceeded to take further steps.
17. On enquiry corporation came to know that petitioner's wife Smt.Sandhya Ashok Kumar was owning a petrol bunk in K.R.Nagar and running the same under the name and style of M/s.Jattin Enterprises, No.167/150, Vani Vilas Road, K.R.Nagar having entered into a lease agreement on 06.04.2009 with Hindustan Petroleum Corporation which was contrary to Regulation 14(2) of Regulations -1971. On these grounds articles of charge came to be issued to the petitioner. Instead of submitting reply to the said charge sheet petitioner by representation dated 06.06.2011 sought certain documents which came to be replied intimating that the documents available in the personnel department are being furnished through security personnel and petitioner was informed that remaining documents may be obtained from the concerned office and he was called upon to furnish reply to charges. Infact efforts made by the personnel 23 department through security department to serve the petitioner with some of the documents was in vain, on account of his continued absence at the place of his residence and when he was present at his residence he has refused to receive the same. Thereafter the disciplinary authority ordered for conducting a domestic enquiry to enquire into the charge levelled by appointing a inquiry authority by order dated 04.10.2011 Annexure-G which is impugned in the present writ petition. Even this order was dispatched to both the residential addresses of the petitioner were returned by the postal authorities as "addresee refused". Said order was finally served on the petitioner through security personnel. Though several notices were issued by the inquiring authority fixing the date of enquiry on 17.10.2011, 14.11.2011, 17.11.2011, and 16.12.2011 only the notice dated 02.11.2011 was received by the petitioner. Infact the enquiry notice sent on 21.10.2011 through RPAD through security personnel has been refused. A reply has been sent by the petitioner on 15.11.2011 as per Annexure-R-5 intimating the 24 inquiring authority that present writ petitions has been filed and sought for postponement of the enquiry till disposal of the present writ petitions.
18. When the order of transfer is on administrative ground and when no malafides is established and when there is no material to show that the transfer was not connected with any departmental proceedings, such orders of transfer cannot be construed as punitive or the initiation of disciplinary proceedings to be an outcome of malafide action. In that view of the matter I am of the considered view that petitioner cannot be permitted to scuttle the enquiry proceedings by adopting dilatory tactics like the one now adopted. Hence, even the second prayer sought for petitioner cannot be granted and petitioner would not be entitled to such relief as claimed.
19. However, considering the fact that the enquiry proceedings is now stalled or has come to a standstill on 25 account of the pendency of the writ petitions, ends of justice would be met if petitioner is directed to appear before the inquiring authority by fixing a date of hearing so as to avoid any further delay being caused in proceeding with the enquiry. It is also to be noticed that petitioner herein has not submitted reply to the articles of charge. Though the reasons assigned by the petitioner in his reply/representation dated 06.06.2011 does not inspire any confidence for being accepted since it is not even in the proximity of truth I am of the considered view that petitioner has to be extended an opportunity to file his reply to the articles of charge dated 24.05.2011 within 15 days from today which shall also be considered by the inquiring authority while enquiring into the charges levelled against petitioner and it is explicitly made clear that it would not be necessary for the disciplinary authority to re-examine his order dated 04-9/10-2011 Annexure-G or reviewed in view of the permission granted to the petitioner by this court to file reply to the charge sheet in the peculiar circumstances of the case and also in view of the 26 fact that there are other two charges levelled against the petitioner in the articles of charge dated 24.05.2011. Accordingly, points 1 & 2 formulated hereinabove are answered.
In view of the discussion made herein above, following order is passed:
ORDER
(a) Writ Petitions stand dismissed subject to observations made hereinabove.
(b) Petitioner would be at liberty to file reply to the articles of charge within 15 days from today.
(c) The Enquiry Officer shall take into consideration the said reply while adjudicating the charges levelled against the petitioner by the Corporation.
(d) Petitioner shall appear before the Enquiry Officer on 10-09-2012 without awaiting for any fresh notice.27
(e) No order as to costs.
Sd/-
JUDGE SBN