Madras High Court
R.Karunakaran vs The Bharat Electronics Limited on 23 August, 2017
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 07.08.2017
PRONOUNCED ON : 23.08.2017
CORAM
THE HON'BLE MR.JUSTICE HULUVADI G.RAMESH
AND
THE HON'BLE DR.JUSTICE G.JAYACHANDRAN
Writ Appeal Nos.240 & 241 of 2017 and
CMP No.3912 of 2017
R.Karunakaran .. Appellant in both W.As
vs
1.The Bharat Electronics Limited,
Rep. By its Chairman cum Managing Director,
16/2, Race Course Road,
Bangaluru 500 001.
2.The Executive Director HR,
The Bharat Electronics Limited Corporate Office,
Outer Ring Road, Naga Vara,
Bangaluru 560 045.
3.The Deputy General Manager (HR & P),
Human Resources & Administrative Department,
Bharath Electronics Limited,
Nandambakkam,
Chennai 600 089. .. Respondents in W.A.No.240/2017
1.The Bharat Electronics Limited,
Rep. By its Chairman cum Managing Director,
16/2, Race Course Road,
Bangaluru 500 001.
2.The Deputy General Manager (HR & P),
Human Resources & Administrative Department,
Bharath Electronics Limited,
Nandambakkam,
Chennai 600 089. .. Respondents in W.A.No.241/2017
Prayer in W.A.No.240 of 2017:- Writ Appeal has been filed under Section 15 of the Letter Patent Act, against the order passed by Hon'ble His Lordship Mr.M.Sathyanarayanan in W.P.No.19636 of 2015 dated 13.02.2017 is unjust and illegal.
Prayer in W.A.No.241 of 2017:- Writ Appeal has been filed under Section 15 of the Letter Patent Act, against the order passed by Hon'ble His Lordship Mr.M.Sathyanarayanan in W.P.No.15507 of 2016 dated 13.02.2017 is unjust and illegal.
For Appellant
in both W.As : Mr.R.Sankarasubbu for
Ms.R.Radhika
For Respondents : Mr.V.Karthick, Senior Counsel,
for Mr.T.Madhusudhan Reddy
COMMON JUDGMENT
G.Jayachandran.J., The appellant herein while serving as Assistant Executive Grade - III at Chennai Unit of the respondents establishment was served with transfer order dated 23.06.2015 wherein, he was transfered to Navi Mumbai Unit. He was releived from his duties and was asked to report to GM (NAMU) immediately. On receipt of the relieving order and movement order, the appellant has made a request to the second respondent to give him one month time to join duty at NAMU ( Navi Mumbai) as per the transfer order and also sought permission to allow him to do his pending work at Chennai Unit till new relieving memo is issued. The Second respondent after examining the said request had informed the appellant that his request to extend time by one month not agreed upon since, he has already been relieved and no work is pending at Chennai Unit for him to complete. However, he can avail 12 days joining time, if he so desire.
2.Again on 29.06.2015, the appellant has given a detailed representation dated 29.06.2015 alleging non adherence of Inter- Unit Transfer Rules and Benefits. He being in non executive cadre, he cannot be transfered along with executive personnel without assigning reasons. Also he has pleaded that he and his family members have medical issues hence, his absence in Chennai will cause hardship and mental agony.
3.His request to cancell the transfer order as well as the releiving order and permission to work in the Chennai Unit was not considered by the respondents. Hence, the appellant herein has filed a writ petition in W.P. 19636 of 2015 for issuance of a writ of certiorarified mandamus to quash the transfer order and reinstate him in the earlier place. In the said Writ Petition, an order of interim stay was granted by this Court in M.P.No.1 of 2015 on 03.07.2015. Since, the respondents did not comply with the interim order, the appellant herein gave a representation on 29.03.2016 to the respondents herein to obey the order passed by this Court on 03.07.2015 and to allow him to continue in Chennai Unit and to pay the monthly salary for the past 8 months. To consider and pass order on this representation, he has filed a second writ petition in W.P.No.15507 of 2016.
4.Both the Writ Petitions W.P.Nos.19363 of 2015 and 15507/2016 were heard together and a common order was passed on 13.02.2017. The learned Single Judge after bestowing his anxious consideration on the facts and the Rule governing transfers, found no merit in the case of the writ petitioner and dismissed both the Writ Petitions.
5.Aggrieved by the siad common order, the present two separate Writ Appeals were filed on the ground that, the transfer order is contrary to Clause 7.4 of the Inter Transfer Rules governing the respondents establishment. The transfer order is tainted with malafide and vindictive motive brewed out of his Trade Union activity. The transfer order is passed while less than 2 years of service left for superannuation. The material placed for oblique motive for issuing the traansfer order not been properly considered by the learned single Judge. The appellant being a technical person, the alleged administrative exigency at Mumbai Unit is not applicable to him.
6.Heard the learner counsel appearing for the appellant and the respondents. While the counsel for the appellant contended that, the transfer order of the appellant along with executives itself incorrect. Since he does not hold executive post. The learned counsel for the respondent contends that after introduction of new wage group/grade in Technical Cadre in the year 1998 the appellant was promoted as Assistant Executive -II on 01.04.2009 and Assistant Executive -III on 01.04.2013. In the order of promotion, his post is clearly mentioned as Executive post. Therefore there is no wrong in placing him along with other Executives in the common transfer order issued on 23.06.2015. Further, the appellant being in executive cadre, the Executive Conduct Discipline and Appeal Rules is applicable to the appellant. The earlier attempt by the appellant to declare his cadre as workmen failed before the Labour Court after dismissal of the ID 334/2003.
7.Thus, the plea of the appellant that he is a non executive cadre officer and inclusion of his name in the the impugned transfer order along with executive cadre officers is incorrect and the said plea does not hold any merit when challenging transfer order for including his name in the transfer list of executives for different reason he relies upon clause 7.4 of the Inter Unit Transfer Rules and Benefits for Executives ( Including TC Personnel ) which is meant for executive cadre officers.
8.The next plea of the appellant is that as per Clause 7.4 Executives above 57 years may not be transfered unless it is in the Company's Interest to do so. Since, he has crossed the age of 57 at the time of transfer order his request ought to have been considered in the light of this clause. Whereas the respondent has contented that the transfer was effected due to the requirement of junior level Civil Engineer at Mumbai unit in view of extreme difficulty in handling the volumous work at Mumbai unit. 'Citing previous incidences of transfering employees who have crossed the age of 57 to meet out official exegencies the respondents submit that, similar to them the appellant was transfered to meet out the admistrative exigency. Neither the pendency of writ nor the union activity of the appellant was cause for the transfer orderas alleged.
9.Regarding the inability to consider the representative of the appellant dated 29.03.2016 for implementing the stay order, the learned counsel for the respondents submitted that the order of transfer was issued on 23.06.2015. On the same day the appellant was relieved from the post and asked to join the new place immediately. Movement order was also issued to him. Thereafter the appellant made a request to grant one month time to join the new post. Taking into consideration of the administrative requirment, 12 days time joining time was granted to the appellant.
10.Under Clause 9.1 of the Inter Unit Transfer Rules and Benefitfs for Executives, a period of one month shall ordinarily be allowed for the Executive to join his new place of posting, unless and otherwise mentioned in the Transfer Order. This period, will however be extended by maximum period of one month on the grounds of genuine difficulties with the approval of Director (HR). The transfer order which is common for 19 Executive Officers including the appellant, it is specifically mentioned that the order shall have immediate effect. Following the transfer order, the appellant has been served with individual relieving memo dated 23.06.2015 directing him to report to the General Manager Navi Mumbai. In response to the transfer order and releiving memo, initially, the appellant has just asked for one month time on the pretext that he has to complete the pending work. The respondents have found that there is no work pending at the end of the appellant, so directe dhim to join duty at the new place availing 12 days joining time, if he desire. Thereafter, in the second representation, the appellant has brought out certain new plea that he holds non executive post and he must be given sufficient time to join the new place in view of his health condition, his wife health condition, his sister and brother-in-law health conditions who are all suffering from specific ailments. After giving the representation on 29.06.2015 to withdraw the transfer order or atleast to provide one month time to join the transfered post, he has filed the writ petition in W.P.No.19636 of 2015 challenging the transfer order mainly on the ground of malafide.
11.The counter filed by the respondents indicates that the appellant was transfered to Mumbai to meet out the exigency due to expansion of the Mumbai Unit which has fallen short of techincal hands, the appellant has been releived from Chennai and transfered to Mumbai forthwith. The transfer order fall on the exceptional circumstances mentioned in clauses 7.4 and 8.1. As pointed out, the pendency of earlier Writ Petition filed by the appellant challenging the punishment imposed on him in the domestic enquiry had never been stood in the way of promoting him and never the cause for his transfer. Attribution of malafide requires justifiable and acceptable material. While so, the transfer order in the course of administrative exigency cannot be interfered by the Court on the ground of un-proved malafide and vidictiveness. This view is reiterated in catena of judgments and few of them were also referred by the learned single judge.
12.The counsel for the appellant further contented that, the respondents have failed to obey the interim order of this Court. In view of the interim stay of transfer order, the appellant ought to have reinstated him in the Chennai unit. Their wilful disobedience of the interim order forced the appellant to give a representation on 29.03.2016 and sought for mandamus to consider and pass order on the said representation. The wilful disobedience of the interim order renders the respondents in-eligible to contest. To butress his argument, the learned counsel for the appelant cited the following judgments:-
1. 1952 (2) AllER 567 Hadkinson -vs- Hadkinson
2. 1995 (5) SCC 619 T.R.Dhanajaya -vs- J.Vasudevan
3. 1995 WLR 468 Kishan R Bhaijha and others DD ED
13.In Hadkinson vs. Hadkinson (cited supra) relied on by the learned counsel for the appellant, the estranged wife was able to get an interim order of custody of her son, on condition, she should not remove the child out of the jurisdiction of the Court without sanction. But, in violation of the said condition imposed in the interim custody order, she removed the custody of her son from England to Austraila. Under these circumstances, when the husband moved for Contempt of Court order, Lord Denning.L.J ( as he then was ) observed that, it was the unqualified obligation of every person against, or in respect of whom, an order had been made by a court of competent jurisdiction, to obey it unless and until that order was discharged; that the mother in the present case had not brought herself within any of the exceptions to the general rule which debarred a person in contempt from being heard by the courts whose order he had disobeyed; and that she being in continuing contempt by retaining the infant out of the jurisdiction her appeal could not be heard until she had taken the first and essential step towards purging her contempt by returning the child within the jurisdiction.
14.In T.R.Dhanajaya -vs- J.Vasudevan case (cited supra) again arising out of Contempt of Court Act, wherein the the Government (contemnor) failed to extend the benefit arising out of the judgment of the Division Bench of the Karnataka High Court, which was affirmed by the Supreme Court. When the Contempt Petition was taken up for consideration, the learned counsel appearing for the contemnor took time to implement the court order but later, took a volte-face to see that the court order is not given effect. In the said circumstnaces, the Court held that, 13.Having considered these contentions and given our due consideration, we think that there is no justification to accede to the contentions raised by the learned counsel to take a lenient view. The reasons are obvious. As stated earlier, pursuant to the orders passed by this Court the Government had passed an order directing the Corporation to implement the order. When the Corporation had passed a resolution creating a supernumerary post and to fill that post by accomodating Dhananjaya with consequential benefits, the Government was only to give effect to the order as passed by this Court on 26.7.1993. But instead of giving effect to the resolution, the Government volte-face exercised the power to see that the order is not given effect to. If the respondent had really harboured under any doubt, he would have asked for clarification. Instead, the Court was prayed for extension of time on 10.5.1995 for compliance which accordingly was given.
15.In Kishan R Bhatijha case (cited supra), again a judgment arising under the Contempt of Court Act, wherein, in the writ petition, ad-interim injuction was granted against the Enforcement Directorate Department not to use the statements of the writ petitioner for any purpose without furnishing copy to them. It appears from the facts narrated in the judgment cited, without furnishing copy, the writ petitioners were preventively detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) Act. For violation of the interim injunction, the detenues moved the Court to take action for contempt, in the said matter, the Court has observed that, it is not the formal communication of the prohibitory order required, what is required is the knowledge of the prohibitory order.
16.None of the above cited judgments have any relevancy to the facts of case in hand. They neither lay down any law with binding effect. The contempt proceedings were entertained in the above cases for violation of specific positive direction and for failure to enforce it. Here is a case where the intereim stay order was granted after the appellant was releived from the post. That is why, precisely, he has not choosen to file contempt petiiton but has filed a fresh writ petition to consider and pass order on his subsequent representation for reposting in the old station.
17.Per contra, the learned counsel for the respondents relying upon the judgment of the Hon'ble Supreme Court reported in Commissioner Kendriya Vidyalaya Sangathan v. Central Administrative Tribunal, Allahabad (2004 (102) FLR 298), contented that when the tranfer order is strictly in accordance with the transfer policy and guidelines regulating transfer, the appellant shall have no justification in staying away from reporting to duty and seek for back wages after dismissal of his writ petitions.
18.The Hon'ble Supreme Court in Shree Chamundi Mopeds Ltd -vs- Church of South India Trust Association , CSI Synod Secretariat Madras, (1992 (3) SCC 1) has held that, While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence.
19.Following the above judgment, in an identical case, a Division Bench of the Allahabad High Court in Commissioner Kendriya Vidyalaya Sangathan v. Central Administrative Tribunal, Allahabad has held that, In the present case, there is no dispute that at the time by the interim order was granted, the transferees had been dislodged from their posts and in their place other employees had been posted filling up the consequential vacancies. In the circumstances, therefore, not only because the interim order could not be an order quashing the impugned orders of transfer but as the petitioners had not discharged the duties, the principle of 'no work no pay' had to be taken to be attracted and consequently, no direction for the payment of salary ought to have been issued.
20.In Union of India v H.N.Kirtania (AIR 1989 SC1774), the Hon'ble Supreme Court has depricated the Central Administrative Tribunal, Calcatta for its direction to pay the arrears of salary as pre-condition to issue releiving order after holding the transfer order valid and legal and not vititated by any unfairness. The operative portion of the short judgment reads as under:-
4.After hearing learned counsel for the parties we find that the Tribunal acted in excess of its jurisdiction in issuing impugned direction. The tribunal recorded positive findings that the transfer order was legal and valid and it was not vitiated by any unfairness, or mala fide, thereupon it should have dismissed the writ petition. It had no jurisdiction to issue further directions regarding the release order and the payment of emoluments. The Tribunal lost sight of the fact that the respondent had already been released from the Calcutta Office w.e.f., 15-3-1985, therefore, there was no question of issuig any fresh release order. We accordingly allow the appeal and set aside the impugned directions of the Tribunal. There will be no order as to costs.
21.As pointed out in the impugned judgment , the appellant has given representation to be posted in the original place after being relieved and transfered to new place. On 03.07.2015 when interim order was passed, he had already been relieved. The joining time upto one month or further extension of one month in normal course does not mean that order of relief also gets postponed. In the representation dated 29.03.2016 which is the cause of action for the second writ petition, the appellant has not offered to join the new place, but has reiterated his request to join duty in the old place (Chennai Unit) from where he was relieved as early as 23.06.2015. Had he offered to join the transfered place (Navi Mumbai) and if the respondents had refused to acceed his request, then, he has every right to claim wages and other benefits on the ground he was declined to join duty. Having conciously remained absent from reporting duty at the new place, taking advantage of the interim stay order which has later got vacated and merged with the order of dimissal of the main writ petition, the principle 'no work no pay' alone will operate the field. Therefore, this Court does not find any infirmity in the common order passed by the learned single judge. Accordingly, the common order passed by the learned Single Judge is confirmed.
22.In the result, the Writ Appeals are dismissed. No costs. Consequently, connected miscellaneous petition is closed.
(H.G.R.J.,) & (G.J.J.,) 23.08.2017 Index: Yes Speaking order/non speaking order jbm To
1.The Bharat Electronics Limited, Rep. By its Chairman cum Managing Director, 16/2, Race Course Road, Bangaluru 500 001.
2.The Executive Director HR, The Bharat Electronics Limited Corporate Office, Outer Ring Road, Naga Vara, Bangaluru 560 045.
3.The Deputy General Manager (HR & P), Human Resources & Administrative Department, Bharath Electronics Limited, Nandambakkam, Chennai 600 089.
HULUVADI G.RAMESH.J., AND G.JAYACHANDRAN.J., jbm W.A.Nos.240 & 241 of 2017 23.08.2017