Gujarat High Court
Nilang vs Gujarat on 24 February, 2010
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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SCA/1591/2010 18/ 18 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1591 of 2010
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NILANG
B TRIVEDI, WORKING AS PLANT OPERATOR GRADE-I & 3 - Petitioner(s)
Versus
GUJARAT
STATE ELECTRICITY CORPORATION LTD - Respondent(s)
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Appearance :
MR
TR MISHRA for Petitioner(s) : 1 - 4.
MS LILU K BHAYA for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 24/02/2010
ORAL
ORDER
1. Heard learned advocate Shri T.R.Mishra for the petitioners and Ms. Lilu K. Bhaya for the respondent appearing on caveat.
2. As in this matter, parties had exchanged their respective affidavit-in-reply and rejoinder and as the matter was heard at length from 19.2.2010 on all working days except one, i.e. 23.2.2010 as it was required to be adjourned on account of Ms. Bhaya's sick report, the Court inquired of the learned advocates as to whether they have instructions to waive service of Rule and the matter be decided finally treating this hearing as final hearing, to which learned advocate Ms. Bhaya submitted that the hearing be treated as hearing for admission and granting of interim relief only.
3. The petitioners No.1 and 2 are Plant Operators Grade-I , Class-III employees of the respondent-Corporation, petitioner No.3 is Helper, Class-IV employee of the respondent Corporation and the petitioner No.4 is a Union recognized by the respondent Corporation and operating in the establishment, have approached this Court under Article 226 of the Constitution of India challenging the transfer orders of petitioners No.1 to 3 dated 17th February, 2010 produced at Annexure-A to the petition collectively, issued by the Additional General Manager(HR), sitting in the office of Gujarat State Electricity Corporation Limited, Vidyut Bhavan, Race Course, Vadodara informing that the competent authority has transferred them from Wanakbori TPS to Ukai TPS with immediate effect in the interest of the company's work as the petitioner Nos.1 to 3 were alleged to have been involved in an incident on 11.2.2010 at Wanakbori TPS Colony premises with one Shri A.D. Sheth, Assistant Chemist, the detailed report whereof was prepared by Chief Engineer, Wanakbori TPS and on that basis the following common order was passed against each of the petitioner which is reproduced as under for the sake of convenience:-
On the basis of your alleged involvement in the incidence on 11.2.2010 in Wanakbori TPS colony premises with Shri A.D.Sheth, Asst. Chemist & the detailed report of CE. Wanakbori TPS, The competent authority has decided to transfer you at Ukai TPS with immediate effect in the interest of Company's work.
You will be eligible for joining time, Transfer TA, etc. as per rules.
You stand relieved.
4. The impugned orders of transfer also contained orders of reliving concerned transfer employee.
5. The petitioners submitted in paras 4.1 and 4.2 in the memo of petition that the petitioner Nos. 1 to 3 are the members of the petitioner No.4 recognized as Shri Vidyut Kamdar Sangh ( SVKS for the sake of brevity hereinafter) and this Union is recognized Union functioning in the establishment of the respondent Corporation. There is another recognized Union called Akhil Gujarat Vidyut Kamdar Sangh AGVKS for short. The petitioner Union with other many Unions operating in this Electricity Company in the State of Gujarat have been agitating for secret ballot to determine the representative character of the Union and writ petitions have been filed in this Court. The petitioners have produced on record from page 25 to 31 many complaints and grievances and unfair treatment to them on account of the Union's rivalry.
6. The petitioners have contended in paragraph 4.5 of the petition that under the pressure of another Union, the management has victimized them and contrary to the Rules, transferred the petitioner Nos. 1 to 3, 300 k.m. away from their existing place of work. The petitioners have contended that the issue with regard to framing of rationale and workable transfer policy is subject matter of dispute in Reference (I.T.) 84 of 2001. The Industrial Tribunal has, vide its order dated 29.5.2002, granted stay against the transferring of employees out of the circles and head quarters. Pending the reference, the employer challenged the said order of Tribunal by preferring Special Civil Application No. 1779 of 2003 and this Court (Coram: R.M. Doshit, J. ) on 17.9.2003 confirmed the order of the Industrial Tribunal. The petitioners have further contended that thereafter many attempts of the respondent to effect transfer of Class-III and Class-IV employees outside the circle and headquarters have been made but they have been subject matter of petitions and such transfers have been stayed by this Court.
7. The learned advocate for the petitioners have cited orders passed by this Court in Special Civil Application No. 2940 of 2009. The advocate for the petitioners has also cited another order passed by this Court (Coram: D. H. Waghela, J. ) in Special Civil Application No. 11463 of 2006 dated 4th August, 2006, wherein the Court has protected the workman against the victimization of the management by way of transfer.
8. The petitioners have contended that the impugned transfer orders have made specific reference to the incident which is alleged to have occurred on 11.2.2010 in Wanakbori TPS Colony premises with one Shri A.D. Sheth and the detailed report prepared by Chief Engineeer thereof. The petitioners have contended that the said incident was cooked up and the same in any case could not have been resulted into transferring of the petitioner Nos. 1 to 3 at the behest of rival Union, which would deal a serious blow to the industrial peace and harmony and also amount to colourable exercise of power unwarranted in the facts and circumstances of the case.
9. The respondent has denied the averments made in this petition. The respondent has filed affidavit-in-reply from page 111 to 217 which includes Annexures to the affidavit-in-reply and contended that the transfer of the present petitioner Nos. 1 to 3 is just and proper and the same cannot be assailed and the petition is required to be dismissed.
10. Learned advocate Ms. Lilu K. Bhava submitted that the allegations contained in para-5 of the petition are too general and vague to merit consideration of this Court. The appointment order of the petitioners contain clause 5, whereunder, he is specifically informed that they are liable to serve anywhere in the State of Gujarat.
11. Ms. Bhaya further submitted that as it appears from page 37 Exh.78, which is reproduced from Reference (I.T.) No.84 of 2001, the subject matter of the Reference and challenge was the circular dated 4.5.2000 on account of being contrary to the circular dated 25.5.1990,4.2.1994, 13.3.1997 on account of being contrary to the circular dated 4.2.1994 and 13.3.1997 and therefore, as on date, at least those two circulars dated 4.2.1995 and 13.3.1997 are invoked and operational and as per these circulars also, the Board has power to transfer the employee out of the circle in case of frequently transferred category, whereas, the challenge to the circular dated 4.5.2000 being in respect of general transfer, the pendency of the reference could not have come in way of board in effecting the transfer in a peculiar facts and circumstances of the case.
12. Ms. Bhaya, learned advocate submitted under instructions of Additional General Manager, Wanakbori that contention of petitioner's counsel with regard to transfer being effected by Additional General Manager sitting at Head Office is malafide and not sustainable in view of the fact that the existing setup and delegation of orders indicating that the transfer from the power station to another power station is within the domain of the head office of the competent authority of the company.
13. Ms. Bhaya also further submitted that it is the prerogative of the management employer to transfer the employee from one place to other place as per the service regulation relying upon page 116 of the compilation.
14. Service regulation is statutory in nature and as such it has effect of overriding the administrative instructions issued time and again in respect of the transfer in the exigency of the administration.
15. This service regulation figures in the appointment order of the petitioners and as such it becomes part of the service contract binding on them.
16. In view of this peculiar facts and circumstances of the case and on the basis of the report dated 15.2.2010 as well as 10.2.2010 prepared by Assistant Director(Security), the competent authority has, with the approval of the Managing Director, thought it fit to transfer the petitioner from the aforesaid Thermal Power Station.
17. After thorough inquiry into the incident and after affording opportunity to both the parties and recording statement of all the witnesses present on the date of incident, the report was prepared and submitted based whereupon the decision of transfer is effected.
18. In view of the report, action of transfer was warranted or else it would have led to deterioration in the law and order situation.
19. Not lodging FIR by the employee would not prevent the management from investigating and inquiring and taking action. Non-filing of FIR by the concerned person shall not be treated as a bar to the management for investigating into the incident and taking action in accordance with law against the concerned employees who have been found fit to be transferred in view of the incident which has been investigated.
20. This Court has heard learned advocates for the parties and perused the memo of petition and the affidavit filed with its Annexures. The following indisputable aspects are noticed as they emerge from the rival contentions of the parties and, therefore, they deserve to be set out as under for appreciating the contentions of the learned advocates for the parties:-
1) The petitioner Nos. 1 to 3 are Class-III and Class-IV employees working at Wanakbori Thermal Power Station.
2) The petitioner Nos. 1 to 3 are members of SVKS Union.
3) The petitioners and other Unions have been agitating for introduction of secret ballot system for determining the representative character of the Union.
4) The petitioner No.1, namely, Nilang B. Trivedi is a Deputy General Secretary of SVKS petitioner No.4 Union and thus he is the office bearer of the Union. The petitioner No.2 Mr. M. R. Patel is said to be Zonal Secretary of SVKS Union and petitioner No.3 Shri. Shravankumar R. Charan is a Coordination Secretary of the said Union.
5) The petitioner Nos. 1 to 3 have averred in paragraph 5 of their petition that they are office bearers and they have been chosen for transfer by way of victimization from Wanakbori Thermal Power Station to Ukai Thermal Power Station.
6) The petitioners in paragraph 6 of the memo of petition have averred that the petitioner Union i.e. SVKS who is petitioner No.4 herein in recent check off system declared on 11th February, 2009 commands majority amongst Class-III and Class-IV employees for the purpose of recognization as sole bargaining agent in respect of employees. Therefore, the orders of transfer are also contrary to Section 33 of the Industrial Disputes Act, 1947 as no permission for transfer has been sought from the Industrial Tribunal where the reference is pending. The petitioners in para 4.11 of the petition have mentioned that the transfer orders are effected under the pressure of the rival union and hence they are bad in the eyes of law.
7) The respondent has denied the averments and contentions made in this petition in its totality. The respondent did not chose to deal with para-wise contentions raised by the petitioners but they have said that it may not be treated as admission on the part of the respondent.
8) The respondent has said that the petitioner Nos. 1 to 3 were responsible for creating raucous and hurled abuses to one Shri A.D. Sheth at 23:00 hrs. on 11.2.2010. The management received complaint on 12.2.2010 at 16:00 hrs from said Shri A.D. Sheth, who is a member of the Union called AGVKS, with regard to such incident. On receipt of the complaint, the Chief Engineer, Wanakbori Thermal Power Station directed one Shri D.S. Vasavada, Assistant Director (Security) to inquire into this and submitted his report.
9) The respondent has stated in its reply that said Shri D.S. Vasavada, Assistant Director(Security) investigated the matter, recorded the statement of witnesses, who were residing in the colony and also recorded the statement of rival parties. He submitted his inquiry report on 16.2.2010 which indicated that there was substance in the allegation made by Shri A.D. Sheth and there was no substance in the allegation made by the petitioner No.4 Union. The respondent has also stated that the transfer was in accordance with the general policy of transfer and, therefore, the complaint filed by said person Shri A. D. Sheth is produced at Annexure-I with the affidavit-in-reply. Perusal of the said complaint indicates that the same was filed on 12.2.2010 and as per the say of the respondent, it was at 16:00 hrs in the afternoon, the said complaint is signed as Additional General Secretary, Wanakbori Power Station and the copies of the said complaint is marked as General Secretary, AGVKS. The said complaint, in short, narrates that on 11.2.2010 at about 11:30 p.m. the Secretary General Shri A.G. Mirza of SVKS and three others had with crowd of 15 came near the quarter of Shri A.D. Sheth, in inebriated condition, and was pushed and they hurled abuses to him. Therefore, this complaint was made for punishing them. The respondent has also produced on record along with the reply, the complaint made on 12.2.2010 by AGVKS i.e the rival Union, which also talks about such incident said to have occurred at 11:30 hrs. The copy is sent to Secretary General, AGVKS, Ukai. Th petitioner No.4 Union also appears to have filed complaint in respect of the misbehaviour on the part of the office bearers of AGVKS. As per that complaint it is stated therein that on 11th February, 2010 there was a Secretary General meeting in respect of check of circular in all power houses .Though the list was declared at Wanakbori, the concerned letters and the list were not declared. The list was required to be declared only at th behest of their General Secretary, Shri Mirza at 5 p.m. At that time, they happened to see one Shri. A. D.Sheth near his residence, who misbehaved with them and, therefore, they said that it needs to be inquired into.
10) It is important to note that the Chief Engineer appears to have ordered the Assistant Director(Security) to inquire into it, who in turn, appears to have recorded the statement and report is filed at page 125 which is dated 15.2.2010 and at page 166 which is dated 16.2.2010. It seems that the complaint of the petitioner No.4 Union was independently inquired and report dated 16.2.2010 was filed which is submitted at page 166 of the affidavit-in-reply. In short, Assistant Director (Security) has stated that the complaint of Shri Sheth was found with some substance and discarded the complaint of the petitioner No.4 Union as having no substance.
11) During the course of submission, an office note dated 16th February, 2010 was placed on record by Ms. Bhaya bare perusal thereof, shows that the proposal was submitted to transfer the petitioner Nos. 1 to 3 on account of alleged incident and the report of the inquiry officer and the said note contains the proposal as under:
It is further submitted that the Secretary General of SVKS has also forwarded a letter dated 13.2.2010 (Placed at Flag-B) and has claimed that the incidence of 11.2.2010 was concocted with a malice intention of the rival union. The counter allegation of SVKS were also investigated, and nothing substantial has been revealed( Ref, letter of CE, WTPS dated 16.2.2010) Flag-C. It is pertinent to state that by interim order in Ref.(IT) No. 84/01 the transfer of Class-III/IV employees out of Power Station is restricted. This interim order is also confirmed by High Court in SCA No. 1779/03 against which LPA is pending. Recently Shri B.A. Modi, PO-I of Utran GBPS was transferred to Ukai TPS and by virtue of order in SCA 11214/09 we could not transfer him and we ere compelled to retain him at Utran GBPS. As such if we intend to transfer the above-mentioned employees they would prefer petition and it is therefore, necessary to issue a speaking order. It is also necessary to file caveat in High Court, Ahmedabad, It, Nadiad, IT, Ahmedabad and Civil Court, Thasra.
On this, the Managing Director has passed a note marked as Annexure-A which is reproduced hereinbelow:-
The above misconduct is of serious nature and keeping in view the I.R. situation of WTPS, it is not advisable to continue them at WTPS and we may transfer all 3 employees to Ukai TPS. The draft transfer order is attached herewith.
Matter may be suitably decided on the basis of above submission.
21. Thus, in view of the aforesaid indisputable factual backdrop, the Court is required to examine the rival submissions of the learned advocates for the parties for deciding the issue with regard to admission and granting of interim relief at this stage.
22. A close perusal of the transfer orders even without perusing the office note dated 16.2.2010 in terms indicate that they are based upon the report of Chief Engineer, Wanakbori TPS in respect of the involvement of petitioner Nos.1 to 3 in the incidence which took place on 11.2.2010 in Wanakbori TPS Colony premises with Shri A.D. Sheth, Assistant Chemist. The respondent has not placed on record that under which service regulation or conduct regulation the incident which is said to have occurred at Wanakbori TPS Colony premises with Shri A.D. Sheth and alleged to have involvement of petitioner Nos.1 to 3, is a misconduct falling under the service regulations. The Court hasten to add here that the occurring of incident might be that of law and order question but the incident has not taken place at the workplace.
When the incident of such a nature has not taken place in the precincts of the workplace or the power station, admittedly that incident is said to have occurred at the residential colony premises which is not forming part of the work place, then the question is as to how far the management can have right to effect the transfer of its employees for the incidents that might have occurred in the residential premises though noted by the employer that the incident which is said to have occurred at 11.00 hrs or 11:30 hrs and that were not the working hours and the presence of complainant Shri A.D.Sheth as well as the petitioner Nos. 1 to 3 were naturally bound to be there as could be seen from the respective complaints. It is no ones case that their presence in the colony premises was in any way unnatural, unwarranted or uncalled for. In such a situation ,when such conduct is not classified to be misconduct then, in my view, the conducting of investigation by the Assistant Director(Security) and recording statement and based upon this report, straightaway effecting transfer, would prima facie amount to colourable exercise of power of transfer.
23. It is required to be noted at this stage that the petitioners have prima facie, been successful in convincing this Court with regard to existence of Union rivalry and the litigations and, therefore these factors may not be overlooked by the Court at this stage, which assumes proper importance in deciding the matter for admission and interim relief. The Court, at this stage, also would like to advert to some glaring aspects in the inquiry carried out by the Assistant Director(Security) which cannot be brushed aside lightly by any authorities. It is required to be noted that though in the complaint of 12.2.2010 filed by Shri A.D. Sheth, it was specific allegation that the crowd of 15 persons approached him in inebriated condition and they were under the influence of liquor. The report at page 125 dated 15.2.2010 filed by said Shri Vasavada, Assistant Director (Security) contains that on 11.2.2010 at about 23:30 hrs when said Shri Vasavada was in his quarter, he received a telephonic message from Shri Sanjay Kumar Patel, Office Bearer of Union AGVKS i.e. the Union, termed to be rival union by the petitioner, and informed that near the residence of Shri A.D. Sheth i.e Type 381/4, members of AGVKS are creating raucous and they are under the influence of liquor. When he was asked to give more details, said Shri Patel informed him that he was on the plant in the night duty. Therefore, he did not know more details but he was informed by said Shri Sheth that the persons are in inebriated condition. The Assistant Director then sent the Security Inspector, Shri Dindor and Shri Dindor informed him that he reached their within 4 to 5 minutes but he did not find any one. He could find only Shri Sheth and five persons along with him. There was no atmosphere of any raucous. Shri Dindor inquired of Shri Sheth as to any happening of the incident. At that time, Shri Sheth informed Shri Dindor that Shri Nilang B. Trivedi, Shri M. R. Patel, Shri Shravankumar R. Charan (Petitioner Nos.1 to
3)etc. had come and it was altercation with regard to Union matters but now there is nothing and, therefore, he did not give in writing any complaint to Shri Dindor . Shri Dindor specifically inquired of him as to whether any police complaint is required to be filed. He, was, therefore, informed by Shri Sheth that it was not to be filed. Thereafter, Shri Dindor went to the residence side of Shri Nilang B. Trivedi, Shri M. R. Patel, Shri Shravankumar R. Charan but everything was found to be quiet and, therefore, Shri Dindor did not make any further inquires.
24. It is important to note at this stage that the report mentioned talk of Shri Dindor with Shri A.D.Sheth which indicates that said Shri Sheth did not report that the persons including the petitioners were in an inebriated condition.
25. This Court is of the view that the entire incident even if assumed to be correct, then also it was falling under the realm of law and order for which Shri Sheth had appropriate remedy and the power of transfer could not have been utilized for reducing fear on the mind of Shri Sheth if at all there was fear.
26. The Court is also of the prima facie, view that the contention made by Shri Mishra with regard to the pendency of the reference and, therefore, the breach of Section 33 of the Industrial Disputes Act, 1947 in effecting the transfer of the office bearer without permission, is also required to be taken note of at this stage.
27. It is required to be noted at this stage that the said order granted in Reference being Reference (I.T.) No.84 of 2001 and the subsequent development by way of interim orders of this Court may also go to strengthen the case of the petitioners. The petitioners have made out a, prima facie, case and looking to the rivalry between the Union and when the alleged misconduct is not a misconduct which is occurred at the workplace and nor is it a misconduct classified to be misconduct under the service rules, the impugned transfer orders, prima facie, appears to be without jurisdiction and authority of law.
28. It is required to be noted that assuming that there is misconduct, which was a misconduct classified to be a misconduct, is inquired and investigated into ex parte without there being given an opportunity to defend to the employees concerned. In the instant case, the investigation carried out by the Assistant Director(Security) cannot be said to be an investigation equivalent to full-fledged inquiry or disciplinary inquiry into the incident nor has the management issued any chargesheet to the petitioner Nos. 1 to 3. The petitioners have not been given an opportunity in terms of the issuance of chargesheet, the statement of witnesses or the report of so-called inquiry and straightaway they have been saddled with orders transfer i.e. punishment. It is, at this stage, very important to note that the respondent has nowhere given in its affidavit-in-reply that they propose to hold any inquiry based upon the preliminary investigation carried out by Shri Vasavada the Assistant Director (Security). The Court hasten to add here that the respondent has rightly not come out with any preposition of conducting any inquiry as prima facie the incident of 11.2.2010 which is alleged to be misconduct on the part of the petitioners No.1 to 3 would not be falling under the conduct Rules.
29. Thus, from this angle, the Court is absolutely satisfied that there exists a strong prima facie case in favour of the petitioners and hence, Rule. Rule is made returnable on 30.3.2010. Ms. Bhaya, waives service of Rule on behalf of respondent. The order impugned shall remain stayed till the final disposal of this petition. As the orders impugned are stayed, the petitioner Nos.1 to 3 are permitted to resume their respective duties forthwith as if those order were not issued at all.
30. At this stage, Ms. Bhaya requested for staying this order. The Court is of the view that when the Court has come to the conclusion that prima facie the order passed are in colourable exercise of power and the authority lacked power and imposed its wish and will and when two rival Unions are fighting it with each other, the staying of the order would not be justified. Hence, the Court rejects the request of staying the order and order for reinstating them on their original post, which shall be carried out forthwith.
(S. R. Brahmbhatt, J. ) sudhir Top