Madhya Pradesh High Court
T.M. Tripathi vs Narmada Hydroelectric Development ... on 20 August, 2015
Author: K.K. Trivedi
Bench: K.K. Trivedi
1
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition 12679/2015
T.M. Tripathi and others
vs.
Narmada Hydroelectric Development Corporation & Ors.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
For petitioners: Shri Anoop Nair, Advocate.
For respondents: Shri Deepak Awasthy , Advocate
(O R D E R) 20 .08.2015 This writ petition under Article 226 of the Constitution of India takes exception to order dated 29.7.2015 (Annexure P/1) issued by the respondent- Narmada Hydroelectric Development Corporation (hereinafter referred to as 'the NHDC' for brevity) posting the petitioner in the National Hydroelectric Power Corporation (hereinafter referred to as 'the NHPC for brevity).
2. The petitioners have contended that they are working on different posts mentioned in the writ petition in the NHDC. The said Corporation is a separate entity of its own. It has no linkage whatsoever with the NHPC. Even when some settlement had taken place between the two Corporations and a memorandum of understanding (hereinafter referred to as 'the MOU' for 2 brevity) was prepared, the human resources management in the aforesaid two Corporations for the mutual discharge of responsibility was to be done as is mentioned in Annexure 1 of the aforesaid MOU. The project management is to be done by deputation of executives up to C-5 level in construction project for a period up to six months. This being so, there was no occasion to transfer the services of the petitioners to the NHPC. The petitioners have been sent on deputation without their consent, which, according to the petitioners, is against the service norms and is violative of their service conditions. While sending the petitioner to the NHPC, in fact they have been put under the control of a different employer without their consent. It is contended in the writ petition that certain projects of the NHPC are not functional where the petitioners are being posted. No time is allowed to the petitioners to join on the said place. The provisions are not made for payment of deputation allowance, dearness allowance, hardship allowance for posting on such places. As such the order impugned is bad in law. Further it is contended that the issue raised in the present writ petition has already been considered by this Court in Writ Petition No.5397/2009- Mohinder Kumar Sharma vs. The Narmada Hydroelectric Development Corporation & Ors decided on 26.8.2010 and that being so the order impugned is bad in law and is liable to be quashed.
3. At the initial stage of hearing of the present writ petition the respondents appeared through their counsel and took notice on 5.8.2015. A statement was made 3 across the bar that the petitioners are not being transferred nor their employers are being changed, but they are being sent for training for gaining experience in Advance Construction and Erection Technology and their service conditions, employer benefits and other would not be changed and the petitioners would be recalled by the parent company immediately after the expiry of six months. This Court further recorded the fact that it was stated by the respondents that no coercive steps would be taken against the petitioners till the next date of hearing.
4. By filing a detailed return, the respondents have reiterated their stand and have further placed the fact s to show that the decision in the case of Mohinder Kumar Sharma (supra) would not be applicable in the present case, on account of distinguishable features, as pointed out in the return. It is reiterated by the respondents that in fact for the purpose of training the petitioners are being sent to work in certain projects of the respondent No.2 and it cannot be said to be either transfer or a deputation posting under the different employer. The clarification to that effect has been issued on 7 th August, 2015 wherein it has been mentioned that such an assignment to the petitioners be treated as 'tour' and the petitioners would be entitled to all the benefits including the travelling allowance and all other claims of the petitioners would be regulated in terms of the rules applicable to the petitioners. With force, it has been stated that the petitioners are not being sent on transfer, but are being sent on training in view of the MOU and 4 that being so the petition against the impugned order is not maintainable. Further it is stated that in terms of the unified policy of the Central Government for the speedy completion of the different projects, such human resources activities have to be done and in that, if the interference in writ proceedings is done, that would hamper the progress of the projects, which would not be in the interest of the nation. On these counts, it is contended that the writ petition is liable to be dismissed.
5. A rejoinder has been filed by the petitioners and an additional return has also been filed by the respondents. Nothing material has been pointed out either in the rejoinder or in the additional return. However, it is stated that there are certain hydroelectric and solar projects under the control of the respondent No.2 where the work is still going on. It is further contended that the persons like petitioners have already received excellent rating for the working for the last five years and, therefore, no further training, as stated in the return, is required. In answer to these allegations, in the additional return the terms and conditions of the employees and officers of the respondents have been pointed out by the respondents, which do not really score anything in the matter at present and are irrelevant for the present.
6. Heard the learned counsel for the parties at length and perused the record.
7. First of all, it has to be examined whether the order impugned is an order of transfer or posting on deputation 5 or is only an order of sending the petitioners for training. To appreciate the real meaning of the order, it is required to be quoted, which reads thus:
" NHDC Limited (A Joint Venture of NHPC Limited & Govt. of M.P.) la[;k % ,u,pMhlh@1@,pvkj@812 fnukad 29@07@2015 dk;kZy; vkns'k la[;k 451@2015 ,u,pihlh ,oa ,u,pMhlh ds chp gq;s le>kSrk Kkiu 2015&16 ds y{;ksa ds laiknu gsrq ,u,pMhlh dSMj ds fuEufyf[kr dk;Zikydksa dks muds uke ds le{k n'kkZ;s vuqlkj ,u,pihlh dh ifj;kstukvksa esa daLVªD'ku ,oa bjsD'ku ds dk;ksZa ds vuqHko gsrq fnukad 01@08@2015 ls vkxkeh N% ekg rd vLFkk;h rkSj in inLFk fd;k tkrk gS%& la- uke@inuke@dkfeZd la[;k orZeku inLFkkiuk ,u,pihlh inLFkkiuk Ø- LFky 1 Jh jktho dqekj vxzoky] vkasdkjs'oj ifj;kstuk] fd'kuxaxk tyfo|qr izca/kd ¼fo|qr½] 910141&ok; fl)ojdwV ifj;kstuk 2 Jh jkds'k vxzoky] bafnjk lkxj ifj;kstuk] fd'kuxaxk tyfo|qr lgk;d izca/kd ¼;kaf=dh½] ueZnk uxj ifj;kstuk 920260&Vh 3 Jh Vh- ,e- f=ikBh] bafnjk lkxj ifj;kstuk] ikcZrh&ll tyfo|qr izca/kd ¼flfoy½ 910021&, ueZnk uxj ifj;kstuk 4 Jh 'kqHke JhokLro] bafnjk lkxj ifj;kstuk] ikcZrh&ll tyfo|qr izca/kd ¼;kaf=dh½] 910148&,p ueZnk uxj ifj;kstuk 5 Jh vfouk'k dqekj flag] bafnjk lkxj ifj;kstuk] ikcZrh&ll tyfo|qr lgk;d vfHk;ark ¼fo|qr½] ueZnk uxj ifj;kstuk 920027&, 6 Jh f}tu jkW;] vkasdkjs'oj ifj;kstuk] lqqckufljh yksoj tyfo|qr mi izca/kd ¼fo|qr½] 920027&, fl)ojdwV ifj;kstuk 7 Jh eukst dqekj Hkkjrh] bafnjk lkxj ifj;kstuk] lqqckufljh yksoj tyfo|qr mi izca/kd ¼flfoy½] 910092&,Q ueZnk uxj ifj;kstuk mDr dkfeZdksa dk osru ,oa vU; HkRrs bR;kfn dk Hkqxrku ,u,pMhlh dh lacaf/kr ifj;kstukvksa }kjk fd;k tk;sxkA bUgsa fu;ekuqlkj ;k=k HkRrk dh ik=rk gksxhA ;g l{ke izkf/kdkjh ds vuqeksnu ls tkjh fd;k tkrk gSA ¼th- vkj- ehuk½ ofj"B izca/kd ¼ekuo lalk/ku½ izfrfyfi%& 1- lacaf/kr dkfeZd & }kjk fu;a=.k vf/kdkjhA 2- egkizca/kd] vkasdkjs'oj@bafnjk lkxj ifj;kstuk &mDrkuqlkj dkfeZdksa dks dk;ZeqDr djsaA 3- egkizca/kd] ¼foRr½] ,u,pMhlh] HkksikyA 4- egkizca/kd] fd'kuxaxk tyfo|qr ifj;kstuk] t,.MdsA 5- egkizca/kd] ikcZrh tyfo|qr ifj;kstuk] fgekpy izns'kA 6- egkizca/kd] lqckufljh yksoj tyfo|qr ifj;kstuk] vleA 7- egkizca/kd] ¼ekuo lalk/ku½& LFkkiuk ,u,pihlh fuxe eq[;ky;] QjhnkcknA 8- eq[; vfHk;ark ¼flfoy½] lEidZ ,oa leUo; dk;kZy;] QjhnkcknA 9- lacaf/kr lafpdk@dk;kZy; vkns'k lafpdkA""""""""""""6
The opening words in the order make it clear that in terms of the MOU executed for the year 2015-16 certain objects are to be achieved. However, the full MOU is not produced either alongwith the petition or alongwith the return. The abstracted part of the MOU has been placed on record. The Vision and Objects are mentioned in paragraph 1.1, 1.2 and 1.3 of the MOU under the head Section 1 -Mission/Vision and Objectives, which read thus:
"Section 1: MISSION/VISION AND OBJECTIVES 1.1 (a) Vision * A premier organization for sustainable development of conventional & non-
conventional power with strong environment conscience.
(b) Mission * To achieve excellence in all aspects of Power.
* To execute and operate projects in a cost effective, environment friendly and socio economically responsive manner.
* To foster competent, trained and multi- disciplinary human capital.
* To maximize creation of wealth through generation of internal funds and effective management of resources.
1.2 Objectives in Brief * To plan, promote and organize and integrated and efficient development of Power through all conventional, non-
conventional/renewable energy sources in India.
*To undertake, where necessary, the construction of inter-state transmission lines and ancillary works for timely and coordinated inter-state exchange of power. * To coordinate the activities of its subsidiaries to determine their economic and financial objectives/targets and to review, control, guide and direct their performance 7 with a view to secure optimum utilization of all resources placed at their disposal. * To act as an agent of Government/Public Sector Financial Institutions as stated in Memorandum and Articles of Association. * To carry on the business of purchasing, selling, importing, exporting, producing, trading, manufacturing or otherwise dealing as stated in Memorandum and Articles of Association.
1.3 Commitment/Assistance from Ministry/ Department.
* Commitment/Assistance is required from Ministry of Coal to provide the Coal Linkage to Reva Thermal Power Project (RTPP) (2X660 MW).
* Commitment/Assistance is required from Government of Madhya Pradesh to provide the land to develop the Solar Power Project in the state. It is also required to provide support for filling of reservoir of Omkareshwar Project upto its FRL.
* Ministry of Power/NHPC shall assist in the appointment of NODs on the Board of NHDC Ltd. as and when required."
The chart annexed with the said MOU indicates that certain norms are to be followed and accordingly for the purpose of achieving the aforesaid objects in the project management, posting of persons for a period of six months on deputation is required to be done. However, it is nowhere pointed out that this posting is for the purpose of providing training or otherwise gaining experience in particular project. What is required to be pointed out is the fact that a particular project is undergoing and to successfully achieve the target of making of such a project, imparting of training to employees of co-sharer of the project is necessary. In fact for the said purpose policies have to be made, discussions have to be done and then the orders are 8 required to be passed. Some of the proceedings have been placed on record to indicate that persons like petitioners were selected for sending them for training and getting exposure in construction/erection activities. However, whether any special incentive would be granted to the petitioners are not is not indicated in those proceedings. Only this much is said that persons like petitioners on deployment would continue to get their salary and emoluments from the parent Corporation.
8. In context of the aforesaid, if the matter is decided at the highest level by the respondents to select the certain eligible persons to get exposure and experience of working in construction/erection work, it cannot be said that such an action is taken in violation of any service condition applicable to the petitioners. At the best, if the petitioners are sent on different stations or different places for the purpose of achieving certain targets of the joint venture, the petitioners can ask for an incentive and nothing more. Even otherwise, it is not a permanent transfer of the services of the petitioners from one Corporation to another. It is nothing but putting them in the folds of other Corporation for the time being and that too for a period of six months only. There is no effect on the service seniority or the service privileges which the petitioners are getting in their parent Corporation and, therefore, such an act of the respondents, more particularly of respondent No.1, taken especially in the circumstances of achieving the target of joint venture in terms of the MOU, cannot be said to be derogatory of any 9 service condition of the petitioners. In fact this was not the issue raised before this Court in the case of Mohinder Kumar Sharma (supra) nor the same was tested in the aforesaid circumstances. The law laid down by this Court was in respect of an order of transfer whereas here is the case where no transfer is ordered, rather it is assignment of work for the purpose of training to a limited period. There is no severance of relationship of master and servant between the petitioners and the respondent No.1 and, therefore, in the considered opinion of this Court the law laid down in the case of Mohinder Kumar Sharma would not be attracted at all.
9. It is contended by the learned counsel for the respondents that out of seven persons sent on training, two have already joined. Only five persons like petitioners have not carried out the order. That being so, it is contended that the object sought to be achieved in terms of the MOU is frustrated in part.
10. The aforesaid submissions carry some weight. In fact, looking to the nature of the order issued in respect of the petitioners, there was no occasion on their part to challenge the same before this Court in this proceeding under Article 226 of the Constitution of India. It is made clear that in terms of the statement made in the return and in terms of the statement made across the bar on the strength of the instructions received by the learned counsel for the respondents, soon after the completion of the period of posting the petitioners would be taken back 10 in their respective posting in accordance to their entitlement by the parent Corporation.
11. In view of the aforesaid, no interference in the order impugned is called for. The writ petition fails and is hereby dismissed. However, there shall be no order as to costs.
(K.K. Trivedi) Judge shukla-