Karnataka High Court
Abhijith B Pujar vs Karnataka Power Corporation Limited on 10 November, 2021
Author: S.G. Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.52647/2019 (S-TR)
AND WRIT PETITION No.52871/2019 (S-TR)
IN WRIT PETITION No.52647/2019 (S-TR):
BETWEEN:
SRI ABHIJITH B PUJAR
S/O LATE B.C. PUJAR
AGED ABOUT 29 YEARS
WORKING AS JUNIOR ENGINEER
YELAHANKA COMBINED
CYCLE POWER POINT (YCCP)
OFFICE OF THE CHIEF ENGINEER (GSW)
KARNATAKA POWER CORPORATION
LIMITED (K.P.C.L)
YCCP, YELAHANKA
BENGALURU-560 064.
...PETITIONER
(BY SRI FAYAZ SAB B.G., ADV.)
AND:
1. KARNATAKA POWER CORPORATION LIMITED (KPCL)
REP. BY ITS MANAGING DIRECTOR
REGISTERED OFFICE AT NO.82
SHAKTHI BHAVAN
OPPOSITE KHANIJA BHAVAN
RACE COURSE ROAD
BANGALORE-560 001.
2. THE CHIEF ENGINEER (GSW)
KARNATAKA POWER CORPORATION LIMITED
YCCP, DODDABALLAPURA ROAD
YELAHANKA
BENGALURU -560 064.
...RESPONDENTS
2
(BY SRI SHIVAPRASAD SHANTANAGOUDAR, ADV. FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
THE ENTIRE RECORDS PERTAINING TO THE CASE OF THE
PETITIONER; QUASH THE IMPUGNED ORDER OF
REDEPLOYMENT/TRANSFER DATED 10.12.2019 WHEREIN
REDEPLOYED/TRANSFERRED THE PETITIONER FROM YCCPP,
YELAHANKA BENGALURU TO YTPS RAICHUR WHICH IS 400 KM
AWAY FROM THE PRESENT PLACE OF WORKING, PASSED BY
THE R1 WITH A MALAFIED INTENTION TO HARASS THIS
PETITIONER WHICH IS PRODUCED HEREWITH FOR THE KIND
PERUSAL AND MARKED AS ANNEXURE-H AS ILLEGAL
ARBITRARY DISCRIMINATORY AND OPPOSE TO THE
PRINCIPLES OF NATURAL JUSTICE AND WITHOUT APPLICATION
OF MIND AND THE SAME ARE PASSED WITHOUT AUTHORITY
OF LAW AND ETC.
IN WRIT PETITION No.52871/2019 (S-TR) :
BETWEEN:
SMT. ANITHA S.P., (10552)
W/O NISHCHAL C.K.
AGED ABOUT 29 YEARS
WORKING AS ASSISTANT ENGINEER (CIVIL)
YELAHANKA COMBINED
CYCLE POWER POINT (YCCP)
OFFICE OF THE CHIEF ENGINEER (GSW)
KARNATAKA POWER CORPORATION
LIMITED (K.P.C.L)
YCCP, YELAHANKA
BENGALURU-560 064.
...PETITIONER
(BY SRI FAYAZ SAB B.G., ADV.)
AND:
1 KARNATAKA POWER CORPORATION LIMITED (KPCL)
REP. BY ITS MANAGING DIRECTOR
REGISTERED OFFICE AT NO.82
SHAKTHI BHAVAN
OPPOSITE KHANIJA BHAVAN
RACE COURSE ROAD
BANGALORE-560 001.
3
2. THE CHIEF ENGINEER (GSW)
KARNATAKA POWER CORPORATION LIMITED
YCCP, DODDABALLAPURA ROAD
YELAHANKA
BENGALURU -560 064.
...RESPONDENTS
(BY SRI SHIVAPRASAD SHANTANAGOUDAR, ADV. FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
THE ENTIRE RECORDS PERTAINING TO THE CASE OF THE
PETITIONER; QUASH THE IMPUGNED ORDER OF
REDEPLOYMENT/TRANSFER DATED 10.12.2019 WHEREIN
REDEPLOYED/TRANSFERRED THE PETITIONER FROM YCCPP,
BENGALURU TO ED (RTPS), RAICHUR, WHICH IS 400 KM AWAY
FROM THE PRESENT PLACE OF WORKING, PASSED BY THE R1
WITH A MALAFIED INTENTION TO HARASS THIS PETITIONER
WHICH IS PRODUCED HEREWITH FOR THE KIND PERUSAL
AND MARKED AS ANNEXURE-D AS ILLEGAL ARBITRARY
DISCRIMINATORY AND OPPOSE TO THE PRINCIPLES OF
NATURAL JUSTICE AND WITHOUT APPLICATION OF MIND AND
THE SAME ARE PASSED WITHOUT AUTHORITY OF LAW AND
ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
COMMON ORDER
Since grievance of the petitioners in both the writ petitions is common, both the writ petitions are clubbed together, heard and disposed of by this common order.
2. Heard Sri Fayaz Sab B.G, learned counsel for the petitioners and Sri Shivaprasad Shantanagoudar, 4 learned counsel for respondents 1 and 2 in both the writ petitions. Perused the writ petition papers.
3. The petitioner in W.P.No.52647/2019 is working as Junior Engineer and petitioner in W.P.No.52871/2019 is working as Assistant Engineer in the 1st respondent-Karnataka Power Corporation Limited (for short 'the KPCL ') at Yelahanka Combined Cycle Power Plant (YCCP), Yelahanka. The petitioner in W.P.No.52647/2019-Sri Abhijith B Pujar was posted to work at YCCP pursuant to (Annexure-A) dated 12.01.2019 whereas Petitioner in W.P.No.52871/2019- Smt.Anitha S.P. was posted to work at YCCP on 10.04.2018 as per (Annexure-B)
4. Learned counsel for the petitioners would submit that petitioner-Sri Abhijith B Pujar is pursuing his B.E. Degree in B.M.S Evening College with the permission of the respondent-KPCL. It is the grievance of the petitioners that they were redeployed under impugned order dated 10.12.2018 Annexure-H to YTPS, Raichur 5 and RTPS, Raichur, prematurely against the norms laid down under the transfer guidelines by the respondent- KPCL. Further learned counsel would submit that petitioners are redeployed/transferred imputing certain allegations. It is his submission that petitioners were not entrusted with supervisory work of BHEL. As the petitioners were not entrusted with supervisory work of BHEL, they cannot be held responsible for sub standard civil work or failure to monitor the work. As the petitioners were in no way concerned with BHEL related work, the 1st respondent-KPCL could not have redeployed or transferred imputing allegation against the petitioners. Learned counsel for the petitioners relies upon the decision of B.VARADHA RAO Vs. STATE OF KARNATAKA AND OTHERS reported in AIR 1986 SC 1955 and submits that reasons assigned for the petitioners' transfer is wholly unreasonable and arbitrary. Learned counsel for the petitioners pray for quashing the impugned order of redeployment or transfer insofar the petitioners are concerned on the 6 ground of premature transfer, as well as on the ground that respondent-KPCL could not have transferred the petitioners alleging certain imputations.
5. Per contra, learned counsel for the 1st respondent- KPCL referring to transfer guidelines at Annexure-K1 submits that Managing Director is empowered to effect premature transfer as per clause 3.11 of the transfer guidelines. Further he invites attention of this Court to the order of the Division Bench dated 18.09.2019 passed in W.A.No.2749/2019 wherein the validity of the clause 3.11 was questioned and the Division Bench has upheld the same. Further he points out that the Division Bench while upholding clause 3.11 has observed, while effecting premature transfer by Managing Director, he need not record reasons. Further learned counsel would submit that even though recording of reasons was not necessary by the Managing Director, reasons are recorded in redeployment order indicating that the petitioners failed to monitor or supervise the work carried on in the project and the 7 Inspection of construction activity reveal the sub standard civil works. He also draws attention to the show cause notice dated 13.10.2021 issued to the petitioners with regard to the dereliction of duty on their part. Thus he prays for dismissal of the writ petition.
6. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to "Whether the impugned order of redeployment or transfer is legally sustainable?" Answer to the said point would be in the affirmative for the following reasons.
The petitioners are working as Junior Engineer and Assistant Engineer respectively at YCCP in the respondent-KPCL at Yelahanka. Both the petitioners are working in YCCP from January 2019 and April 2018 respectively. The impugned redeployment order dated 10.12.2019 records reasons for redeployment/transfer of petitioners as well as other Engineers. The reason assigned by the Managing is that "The site inspection of construction activities of YCCP on 07.12.2019 revealed 8 that the quality aspects of civil works is substandard and requires to be monitored rigorously and hence the following redeployment of officers."
7. The respondent-KPCL has its own transfer guidelines governing its employees. Clause 3.02 provides tenure to its employees. Under the above clause Chief Engineer, Superintending Engineer and Equivalent are provided with minimum of four years in a place. The Executive Engineer and Equivalent and below are provided with minimum stay of nine years at a project and minimum of five years at Bangalore and Mysore. Clause 3.11 provides for premature transfer which reads as follows :-
" 3.11 PREMATURE TRANSFER:
Transfer of an employee ordered before his completing the minimum duration of service indicated in rule 3.02 or 3.04 is a premature transfer. Such premature transfer shall be ordered by Managing Director. The EDs/ Chief Engineers & Equivalent who are the transferring authority for the employees of the rank of AEEs & Equivalent and below 9 may also order such premature transfer (other than those under Rule 3.04) within their respective jurisdiction under delegated powers for good and sufficient reasons. However, after issue of orders, they no report to the MD the reasons in detail for making such transfers."
The above clause empowers the Managing Director to transfer an employee before completing the minimum duration of service as provided under clause 3.02 and 3.04. It makes clear that it also empowers the EDs/ Chief Engineers & Equivalent who are the transferring authority for the employees of the rank of AEEs & Equivalent and below may also order such premature transfer (other than those under Rule 3.04) within their respective jurisdiction under delegated powers for good and sufficient reasons. The above clause 3.11 of transfer guidelines was the subject matter of W.A.No.2749/2019. This Court by judgment dated 18.09.2019 while upholding clause 3.11 of the above transfer guidelines has observed as follows :- 10
"11............................................................
................................................................
"Clause 3.11 of the said Guidelines is in two parts. The first part confers powers on the Managing Director to make premature transfer before an employee completing the minimum duration of service indicated in Rule 3.03 or 3.05. The second part authorizes the transferring authority to make premature transfers for good and sufficient reasons. Therefore, when the Managing Director passes an order of premature transfer, there will not be a requirement of recording good and sufficient reasons. In fact, Clause 3.12 of the said Guidelines specifically confers power on the Managing Director to transfer any employee in the interest of the service of the first appellant notwithstanding the norms laid down in the said Guidelines. Thus, the power conferred on the Managing Director under Clause 3.12 overrides Clause 3.11 of the said Guidelines as the words used are "notwithstanding the above norms".
Therefore, while transferring the respondent prematurely, the Managing Director was under no obligation to record reasons. He has 11 stated that all the transfers are on administrative grounds. Therefore, in our view, the order passed by the learned Single Judge is contrary to the norms mentioned in Clause 3.11 read with Clause 3.12 of the said Guidelines and therefore, the impugned blanket order of staying the entire order dated 23rd May 2019 cannot be sustained. However, the respondent can always make a representation to the first appellant, which is to be bound to be considered in accordance with law..................................................." A careful perusal of the above portion of the judgment of the Division Bench makes it clear that while effecting premature transfer by the Managing Director, the Managing Director need not record reasons. In the case on hand, even though the Managing Director was not under obligation to record reasons, however, has recorded reasons. Whether the petitioners were entrusted with the work of Managing/supervising the work carried on by the BHEL or whether they are responsible for sub standard quality of civil work, is to 12 be decided by the respondent-BHEL and this Court, at this stage, would not enter into examining the said contention.
8. Learned counsel for the petitioners relied upon the decision of B. VARADHA RAO cited supra to contend that reasons assigned by the respondent-KPCL to redeploy the petitioners are unreasonable and is not in public interest. In the above B. VARADHA RAO case the Hon'ble Apex Court was examining as to whether the order of transfer was in public interest or for collateral purpose. While examining the above said question, the Hon'ble Apex Court deprecated the frequent unscheduled and unreasonable transfers. The principles laid down in the above case would have no application to the facts of the present case. In the present case, as stated above the petitioners were redeployed or transferred by recording reasons under impugned order dated 10.12.2019 by invoking clause 3.11 of transfer guidelines by the Managing Director. 13
9. Clause 6.0 empowers the Managing Director notwithstanding anything contained in any other clause to modify transfer of any of the employees of the Corporation at any time, in the exigencies of work and in the interest of the Corporation. The Division Bench in the judgment referred to above provided opportunity to the petitioner therein to make representation seeking modification of transfer. In the case on hand also the petitioner in W.P.No.52647/2019 submitted representation (Annexure-J) dated 11.12.2019 pointing out that he is not responsible for supervision of BHEL related works. The said representation is pending consideration and till date it is not considered. The petitioner in W.P.No.52871/2019 submits that she would submit representation within seven days from today. The respondents are directed to consider the representation (Annexure-J) of the petitioner dated 11.12.2019 in W.P.No.52647/2019 and the representation to be submitted by the petitioner in W.P.No.52871/2019 within 21 days from the date of 14 receipt of a copy of this order and pass appropriate order. Interim order granted by this Court would enure to the benefit of the petitioners till the respondent-KPCL takes a decision on the representations of the petitioners.
With the above observation both the writ petitions are disposed of.
Sd/-
JUDGE NG* CT:bms