Karnataka High Court
Sri. Premnath. H. R, S/O ... vs The Karnataka Power Corporation ... on 4 August, 2022
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WP No. 102352 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
WRIT PETITION NO. 102352 OF 2022 (S-TR)
BETWEEN:
SRI. PREMNATH. H. R, S/O HANUMANTHAPPA.T
AGED ABOUT 59 YEARS,
PRESENNTLY WORKING AS CHIEF ENGINEER CIVIL (C-2),
BELLARY THERMAL POWER STATION
KUDITHINI VILLAGE,
BELLARY TALUK AND DISTRICT - 583115,
R/O. 12, SHANTHI RESIDENCY,
GANDHINAGAR,
BELLARY - 583101.
...PETITIONER
(BY SRI.SRI.SATISH M.DODDAMANI, SR. ADVOCATE FOR
SRI.M.M. KHANNUR.,ADVOCATE)
AND:
THE KARNATAKA POWER CORPORATION LIMITED
82, SHAKTHI BHAVAN,
ANNAPURNA
CHINNAPPA RACE COURSE ROAD, BANGALORE - 560001,
DANDAGAL REPRESENTED BY ITS M.D.
Digitally signed by
ANNAPURNA CHINNAPPA
DANDAGAL
...RESPONDENT
Location: HIGH COURT OF
KARNATAKA, DHARWAD
BENCH, DHARWAD
(BY SRI.PRAMOD NAIK, SENIOR ADVOCATE FOR
SRI.MRUTYUNJAYA S.HALLIKERI, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, I) ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 16.06.2021,
BEARING NO. A1 P1 B/ 750, PASSED BY THE RESPONDENT VIDE
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WP No. 102352 of 2022
ANENXURE-D ONLY INSOFAR AS IT RELATES TO THE PETITIONER
HEREIN, II) ISSUE A WRIT OF MANDAMUS DIRECTING THE
RESPONDENT TO CONTINUE THE PETITIONER AS CHIEF ENGINEER
CIVIL (C-2) BELLARY THERMAL POWER STATION, KUDITHINI
VILLAGE, BELLARY TALUK AND DISTRICT - 583115, TILL HIS
SUPERANNUATION ( 11 MONTHS) III) ISSUE A WRIT OF MANDAMUS
DIRECTING THE RESPONDENT TO CONSIDER THE REPRESENTATION
DATED 24TH JUNE 2022, MADE TO RESPONDENT VIDE ANNEXURE-E.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 26.07.2022 COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING.
ORDER
This writ petition is filed seeking to quash the impugned order dated 16.06.2021 passed by the respondent vide Annexure-D insofar as it relates to the petitioner and also sought for a mandamus directing the respondent to continue the petitioner as Chief Engineer Civil (C-2), Bellary Thermal Power Station, Kudithini village, Bellary Taluk and District till his superannuation and also sought for a mandamus directing the respondent to consider the representation dated 24.06.2022 vide Annexure-E. -3- WP No. 102352 of 2022
2. Brief facts leading to the filing of this writ petition are as under:
The petitioner was appointed as Assistant Civil Engineer and pursuant to which a Form of Agreement of appointment was entered into between the petitioner and the respondent. In the agreement, all the conditions of service of the petitioner are stipulated. The petitioner was promoted as Chief Engineer Civil and was posted at Bellary. At present he is discharging his duties as Chief Engineer Civil (C2). In the year 2012, the petitioner suffered a heart attack and was treated at Jayadeva Institute of Cardiovascular Sciences and Research at Bangalore and the petitioner has not recovered fully and is in need of constant medical supervision. The respondent intended to acquire coal for its plants for coal mines situated outside the State of Karnataka and in furtherance of the same, intended to post liaison officers at such places. However, as per the terms and conditions of the employment, the employees of the respondent-corporation -4- WP No. 102352 of 2022 could not have been posted outside the State of Karnataka. To overcome this limitation in the agreement of the employment, the respondent has sought for consent from its employees who were willing to work outside the State of Karnataka. The petitioner has not given any consent to post him outside the State of Karnataka and is on the verge of retirement with only 11 months of service.
Hence, the petitioner aggrieved by the order of deputation has filed this writ petition.
3. Respondent filed statement of objections and admitted that petitioner was appointed as Assistant Civil Engineer and subsequently he was promoted as Civil Engineer Civil (C-2). It is contended that respondent is engaged in generating electrical power in the State of Karnataka. That Mandakini Coal Block situated in Angul District, Odisha was allotted to the respondent under the Coal Mines (Special Provisions) Act, 2015 to meet the coal requirements of Yermarus Thermal Power Station Units 1 and 2 and Bellary Thermal power Station Unit-3. The -5- WP No. 102352 of 2022 respondent had executed an allotment agreement with the Nominating Authority, Ministry of Coal, Government of India on 31.12.2019 which provides for certain timelines as "Efficiency Parameters". Under the allotment agreement, the Nominating Authority is entitled to invoke the performance security issued by the respondent to the tune of Rs.1,64,26,80,000/-. If the respondent fails to meet the timelines, the respondent will suffer huge loss. The respondent is required to take up the activities for commencement of the mining operations as mentioned in para 6 of the statement of objections. The work at Mandakini Coal Block requires the senior most officers from the organization to co-ordinate and get the approvals from the concerned State Government. The respondent has issued a notification by deputing the senior officers of the corporation on rotation. The deputation of the petitioner is for the period from 01.07.2022 to 31.12.2022 which is for six months. The officer on deputation is entitled for Rs.20,000/- additional allowance per month, -6- WP No. 102352 of 2022 repayment of lodging charges at actuals/free accommodation and such other benefits and allowances etc. The respondent is bound by the guidelines framed by the corporation. The Managing Director has full powers to depute specially skilled employees of regular maintenance establishment works. The Managing Director has passed the impugned order deputing the officers of the corporation. Hence, the impugned order passed by the Managing Director is justifiable and sustainable in the eye of law. Hence, it is prayed for dismissal of the writ petition.
4. Heard learned senior counsel Sri.Satish M.Doddamani representing Sri.M.M.Khannur for the petitioner and learned senior counsel Sri.Pramod Naik for Sri.Mrutyunjaya S.Hallikeri for the respondent.
5. Learned senior counsel for the petitioner submits that on three grounds, the writ petition is filed challenging the impugned order. He submits that as per Clause 4 of Form of Agreement, the employee shall be -7- WP No. 102352 of 2022 posted anywhere in the State of Karnataka and parties are governed by Form of Agreement. He submits that petitioner cannot be deputed outside the State of Karnataka as he has suffered heart attack and he has undergone surgery. He submits that petitioner has not given any consent to the respondent to depute the petitioner out of the State of Karnataka. He submits that the impugned order passed by the respondent is contrary to the Form of Agreement and also Annexure-C. To buttress his arguments, he placed reliance on a Division Bench judgment of this court in the case of Management of M/s Nippani Urban Co-operative Bank Ltd. Vs. Workmen reported in ILR 1992 KAR 1211. Hence, on these grounds, he prays to allow the writ petition.
6. Per contra, learned senior counsel for the respondent submits that Form of Agreement does not indicate that consent is required to be taken for deputation. He further submits that deputation order was passed on 16.06.2021 and the petitioner has not chosen -8- WP No. 102352 of 2022 to challenge the deputation order within reasonable time, petitioner filed writ petition on 27.06.2022. He further submits that in identical circumstances, this court in the case of Sri.Suresh R.K. Vs. Karnataka Power Corporation Limited (KPCL) in W.P.No.3795/2020 disposed of on 19.10.2020 held that discretion is vested with the Managing Director to transfer the employees in the interest of the corporation as well as the general public. To buttress his arguments, he has placed reliance on a decision of a Division Bench judgment of this court in the case of Karnataka Power Corporation Limited & Others Vs. Suma H. in W.A.No.2749/2019 disposed of on 18.09.2019. Further, he has also placed reliance on a decision of the Hon'ble Apex Court in the case of Union of India and Others Vs. S.L.Abbas reported in (1993) 4 SCC 357 and also in the case of State of U.P. and Others vs. Gobardhan Lal reported in (2004) 11 SCC 402 and submits that courts should not normally interfere with the order of transfer unless the transfer order shown -9- WP No. 102352 of 2022 to be vitiated by mala fides or in violation of any statutory provision. He submits that the transfer order passed by the respondent is in accordance with law. Hence, on these grounds, he prays for dismissal of the writ petition.
7. Heard, perused the records and considered the submission of the learned senior counsel appearing for the parties.
8. It is not in dispute that the petitioner was employed as a Chief Engineer Civil (C-2) in the respondent-corporation. As per Clause 4 of Form of Agreement, the employee shall be prepared to be posted anywhere in Karnataka State particularly in the project areas and to reside in the Company's quarters on payment of a licence to be prescribed, if required to do so in the exigencies of service. The quarters allotted shall be vacated by him immediately, in case of termination of services with the company. As per Clause 4 of Form of Agreement, the petitioner has to work within the State of Karnataka. The petitioner is discharging his duties as a
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WP No. 102352 of 2022 Chief Engineer Civil (C-2) in the respondent-corporation. It is also not in dispute that Mandakini Coal Block situated in Angul District, Odisha was allotted to the respondent under the Coal Mines (Special Provisions) Act, 2015 to meet the coal requirements of Yermarus Thermal Power Station Units 1 and 2 and Bellary Thermal Power Station Unit-3. The respondent executed an allotment agreement with the Nominating Authority, Ministry of Coal, Government of India on 31.12.2019. In order to meet the requirements and for smooth functioning of the mining operations, the Managing Director of the respondent has taken a decision to depute the senior most officers from the organization to coordinate and get the approvals from the concerned State Government.
9. The respondent has passed an order of deputation not only the petitioner even other senior most officers are also deputed. As per clause 4 of Form of Agreement, the employees of the corporation cannot be posted outside the State of Karnataka. To overcome this
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WP No. 102352 of 2022 limitation in the Form of Agreement, the respondent has sought for consent from its employees who were willing to work outside the State of Karnataka and issued Circulars dated 26.08.2020 and 13.10.2021 vide Annexures-C and C1. The petitioner has not given any consent for deputation out of the State of Karnataka. When there is no consent, there can be no deputation. In the present case, the petitioner and others were deputed by virtue of the impugned order. The Hon'ble Apex Court had an occasion to consider the concept of "deputation" in the case of State of Punjab V. Inder Singh reported in (1997) 8 SCC 372 has clarified the concept of deputation and stressed on the particular rights and liabilities that are associated with a deputation, which occurs only with the consent of the employee. Paragraph 18 of the said judgment reads thus:
"Concept of "deputation" is well understood in service law and has a recognised meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service
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outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis.
After the expiry period of deputation the
employee has to come back to his parent
department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above..."
(emphasis supplied)
10. Further, a deputation would also involve a third party - the borrowing employer who discharges specific rights and obligations towards the employee and the lending employer. A three-Judge Bench of the Hon'ble Apex Court in the case of Umapati Choudhary V. State of Bihar reported in (1999) 4 SCC 659 in paragraph 8 held as under:
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"Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organization (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled..."
11. Further, a two-judge Bench of the Hon'ble Apex Court in the case of Union of India v. S N Maity reported in (2015) 4 SCC 164 interpreted the terms of deputation strictly and disavowed acts of caprice on part of the employer. Justice Dipak Misra (as the learned Chief Justice then was) noted:
15. The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation
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where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a government department to a government corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the first respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But... this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words "until further orders" are used, it would not confer allowance on the employer to act with caprice."
(emphasis supplied)
12. Thus, a deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee. Specific rights and obligations would bind the parties and govern their conduct.
13. Originally, the petitioner was appointed in the State of Karnataka. The respondent-Corporation decided to depute the petitioner to Mandakini Coal Block situated
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WP No. 102352 of 2022 in Angul District, Odisha. The parties are governed by the terms and conditions entered into between the petitioner and respondent. The petitioner and respondent did not enter into new contract. In the Form of Agreement, as per Clause 4, the employee shall be prepared to be posted anywhere in Karnataka State. The petitioner was deputed out of State of Karnataka to the Angul district of Odisha. The petitioner had agreed only to serve within the State of Karnataka and the respondent has employed the petitioner only in the State of Karnataka. There can be no deputation without consent. The petitioner has not given any consent. Hence, the respondent has no right to depute the petitioner out of state of Karnataka. The Hon'ble Apex Court in the case of M/S Kundan Sugar Mills vs Ziyauddin And Others reported in 1960 AIR 650, wherein in paragraph 4, it is held as under:
"The question of law raised in this case must be considered in relation to the said-facts. The argument of the learned counsel for the appellant that the right to transfer is implicit in every contract of service is too wide the mark. Apart from any statutory provision, the rights of an employer and an employee are governed by the terms of contracts between them or by the terms
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necessarily implied therefrom. It is conceded that there is no express agreement between the appellant and the respondents where under the appellant has the right to transfer the respondents to any of its concerns in any place and the respondents the duty to join the concerns to which they may be transferred. If so, can it be said that such a term has to be necessarily implied between the parties ? When the respondents 1 to 4 were employed by the appellant, the latter was running only one factory at Amroha. There is nothing on record to indicate that at that time it was intended to purchase factories at other places or to extend its activities in the same line at different places. It is also not suggested that even if the appellant had had such an intention, the respondents I to 4 had knowledge of the same. Under such circumstances, without more, it would not be right to imply any such term between the contracting parties when the idea of starting new factories at different places was not in contemplation. Ordinarily the employees would have agreed only to serve in the factory then in existence and the employer would have employed them only in respect of that factory. The matter does not stop there. In the instant case, as we have indicated, the two factories are distinct entities, situated at different places and, to import a term conferring a right on the employer to transfer respondents I to 4 to a different concern is really to make a new contract between them."
14. In the aforesaid judgment, the Hon'ble Apex Court held that, even though the two factories are distinct entities, situated at different places and, to import a term conferring a right on the employer to transfer respondents I to 4 to a different concern is really to make a new contract between them. In the absence of terms and
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WP No. 102352 of 2022 conditions, the respondent-corporation cannot depute the petitioner from Karnataka to Odisha.
15. Thus, the impugned order of deputation is arbitrary and the same is liable to be set aside. For the reasons stated above, this court is of the considered opinion that the writ petition deserves to be allowed. Accordingly, I proceed to pass the following:
ORDER
i) The writ petition is allowed.
ii) The impugned order dated 16.06.2021 passed by the respondent vide Annexure-D insofar as it relates to the petitioner is concerned, is hereby set aside.
iii) Respondent is directed to consider the representation of the petitioner and pass appropriate order, in accordance with law within a period of one month from the date of receipt of a certified copy of this order.
Sd/-
JUDGE MBS