Karnataka High Court
Karnataka Power Corporation Limited vs Suma H on 18 September, 2019
Bench: Chief Justice, Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2019
PRESENT:
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
WRIT APPEAL NO.2749 OF 2019 (S-TR)
BETWEEN:
1. KARNATAKA POWER
CORPORATION LIMITED,
NO.82, SHAKTHI BHAVAN,
CORPORATE OFFICE,
RACE COURSE ROAD,
BENGALURU-560 001,
REPRESENTED BY ITS
MANAGING DIRECTOR,
NOW REPRESENTED BY ITS
ASST. GENERAL MANAGER (LAW).
2. THE MANAGING DIRECTOR,
KARNATAKA POWER
CORPORATION LIMITED,
NO.82, SHAKTHI BHAVAN,
CORPORATE OFFICE,
RACE COURSE ROAD,
BENGALURU-560 001,
NOW REPRESENTED BY ITS
ASST. GENERAL MANAGER(LAW). ... APPELLANTS
(BY SRI. PRAMOD NAIR, ADVOCATE)
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AND:
SUMA H.,
W/O. B.M. MAHESH,
AGED ABOUT 42 YEARS,
RESIDING AT NO.530, 1ST C CROSS,
3RD STAGE, 4TH BLOCK,
BASAVESHWARANAGARA,
BENGALURU-560 079. ... RESPONDENT
(BY SRI. B.A. BELLIAPPA, ADVOCATE)
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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE IMPUGNED ORDER OF THIS HON'BLE
COURT DATED 19.06.2019 RENDERED BY THE LEARNED
SINGLE JUDGE IN W.P. NO.25141/2019.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE
FOLLOWING:
JUDGMENT
In view of the averments made in the affidavit filed in support of the application, the delay in filing the appeal is condoned. Accordingly, I.A.No.1/2019 is allowed.
2. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.
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3. Notice was issued on 21st August, 2019. Therefore, the appeal is taken up for final disposal.
4. The respondent is employed as an Assistant Executive Engineer on the establishment of the first appellant. The second appellant who is the Managing Director of the first appellant passed an order of transfer on 23rd May 2019, by which 91 officers were transferred. The order of transfer was challenged by the respondent by filing a writ petition, in which a prayer was made for stay of the transfer order. By the impugned order, the learned Single Judge has passed a blanket interim order by staying the order of transfer on the ground that the transfer of the respondent was a premature transfer and no proper or valid reason was assigned for the premature transfer in accordance with Clauses 3.11 and 3.12 of the Standing Regulation on Guidelines Regarding General Transfer 2018 (for short 'the said Guidelines') issued by the first appellant.
5. The first submission of the learned counsel appearing for the appellants is that the order of transfer is passed by the second appellant, who is the Managing Director -4- of the first appellant purely on the administrative ground. He submitted that under Clause 3.12 of the said Guidelines adopted by the first appellant, the Managing Director has overriding power to pass an order of transfer notwithstanding the norms laid down in the said Guidelines. He submitted that even under Clause 3.11 of the said Guidelines, when a premature order of transfer is passed by the Managing Director, no reasons are required to be assigned. He relies on three decisions of the Apex Court that is in the cases of BAREILLY ELECTRICITY SUPPLY CO. LTD. vs. SIRAJUDDIN AND ANOTHER1, STATE OF U.P. AND OTHERS vs. GOBARDHAN LAL2 and UNION OF INDIA AND OTHERS vs. S.L.ABBAS3.
6. The learned counsel appearing for the respondent supported the impugned order. He submitted that though mala fides may not have been alleged by the respondent, arbitrariness is alleged in the action of transfer of 91 technical cadre employees made under the order by the Managing Director. He submitted that no reasons have been assigned for 1 (1960)1 LLJ 556 2 (2004)11 SCC 402 3 (1993)4 SCC 357 -5- making the said order of premature transfer. He submitted that when the Managing Director exercises the power of transfer which is normally exercised by the transferring authority, he is bound to assign good and sufficient reasons as required by Clause 3.11 of the said Guidelines. He urged that even Clause 3.12 of the said Guidelines does not dispense with the requirement of recording good and sufficient reasons by the Managing Director while making an order of premature transfer. He would, therefore, submit that no interference is called for with the impugned order. He submitted that the respondent is a woman who is having a ten years old child and therefore, her case has to be considered sympathetically.
7. We have carefully considered the said submissions. As far as the transfer is concerned, the law is well settled.
8. In paragraph 7 of the decision of the Apex Court in the case of UNION OF INDIA AND OTHERS (supra), it is held thus:
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by -6- mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."
(Underline supplied)
9. In paragraph 7 of the decision of the Apex Court in the case of STATE OF U.P. AND OTHERS (supra), it is held thus:
"7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or -7- routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."
(Underline supplied)
10. In the case of BAREILLY ELECTRICITY SUPPLY CO. LTD. (supra), the Apex Court held that the argument that reasons are not given for transfer cannot be accepted and the failure to give specific reasons for transfer cannot be the basis for setting aside the order of transfer. -8-
11. In this case, admittedly no mala fides have been alleged by the respondent. Clauses 3.11 and 3.12 of the said Guidelines are relevant which reads thus;
"3.11 PREMATURE TRANSFER:
Transfer of an employee ordered before his completing the minimum duration of service indicated. In rule 3.03 or 3.05 is a premature transfer. Such premature transfer shall be ordered by the Managing Director. The Chief Engineers & Equivalent who are the transferring authority for the employees of the rank of AEEs and Equivalent and below may also order such premature transfer within their respective jurisdiction under the delegated powers for good and sufficient reasons. However, after issue of orders, they may report to the MD the reasons in detail for making such transfers.
xxxxx"
(Underline supplied) "3.12 MANAGING DIRECTOR'S APPROVAL IN CERTAIN CASES:
Transfer on request or on administrative grounds shall be ordered conforming to the norms stipulated above. The MD may however order transfer of any employee in the interest of the service of the Corporation notwithstanding the above norms. Where transfers are proposed to be ordered beyond -9- the norms stipulated above by any other Authority empowered to order transfer, such Authority shall obtain specific prior approval of MD duly indicating the reasons in his proposal to the MD for making such transfer".
(Underline supplied) 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 authorises 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
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Managing Director was under no obligation to record reasons.
He has 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. Accordingly, we pass the following order:
(i) The impugned order dated 19th June 2019 is hereby set aside and the prayer made by the respondent therein for grant of interim relief stands dismissed;
(ii) Notwithstanding this order, it will be always open for the respondent to make an appropriate representation to the first appellant pointing out her difficulties. If such a representation is made, the first appellant shall consider the same and take
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appropriate decision thereon within a maximum period of two weeks from the date of representation is made;
(iii) The appeal is allowed on above terms;
(iv) The pending interlocutory application does not survive for consideration and is accordingly disposed of.
(v) On the prayer made by the learned counsel appearing for the respondent, we direct that the order of transfer of the respondent shall not be implemented for a period of three weeks from today.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Ksm*