Karnataka High Court
Sri Suresh R K vs Karnataka Power Corporation Limited on 19 October, 2020
Author: R Devdas
Bench: R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO. 3795 OF 2020 (S-TR)
BETWEEN:
SRI. SURESH. R. K,
S/O LATE RAYAPPA KARDAKAL
AGED ABOUT 55 YEARS
WORKING AS CHIEF ENGINEER (K-ERP),
EMPLOYEE CODE/PRESENT
CADRE-03-2004/CE (E),
KARNATAKA POWER CORPORATION
LIMITED (K. P. C. L)
4TH FLOOR, #3, PALACE ROAD,
DRUG CONTROL DEPARTMENT PREMISES,
BENGALURU-560 001. ...PETITIONER
(BY SRI.FAYAZ SAB B. G., ADVOCATE)
AND
KARNATAKA POWER CORPORATION
LIMITED, (KPCL),
REPRESENTED BY ITS MANAGING DIRECTOR,
REGISTRED OFFICE AT NO.82 SHAKTHI BHAVAN
OPPOSITE KHANIJA BHVAN
RACE COURSE ROD,
BENGALURU-560 001. ...RESPONDENT
(BY SRI. PRAMOD NAIR., ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER OF
TRANSFER/POSTED DATED 12.02.2020 WHEREIN
TRANSFERRED THE PETITIONER FROM CE (KERP)
BENGALURU TO MANDAKINI COAL BLOCKS, SITUATED
AT ANGUL DISTRICT, STATE OF ODISHA, WHICH IS
3000 KM AWAY FROM THE PRESENT PLACE OF
WORKING, PASSED BY THE RESPONDENT WITH A
MALAFIDE INTENTION TO HARASS THIS PETITIONER,
WHICH IS PRODUCED HEREWITH FOR THE KIND
PERSUAL AND MARKED AS ANNX-D AS ILLEGAL,
ARBITARY, DISCRIMINATORY AND OPPOSE TO THE
PRINCIPLES OF THE NATURUAL JUSTICE AND
WITHOUT APPLICATION OF MIND AND THE SAME ARE
PASSED WITHOUT AUTHORITY OF LAW AND ETC.
THIS WRIT PETITION COMING ON FOR HEARING
INTERLOCUTORY APPLN THIS DAY, THROUGH VIDEO
CONFERENCE THE COURT MADE THE FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
Though the matter is coming up for hearing on Interlocutory Application filed by the respondents for vacating the interim order of stay, with the consent of the learned counsels, the matter is taken up for final disposal.3
2. The petitioner joined the services of the respondent during January, 1990 and is working as Chief Engineer with the respondent Corporation. He has worked in the capacity of Chief Engineer at various places including Raichur Thermal Power Station, Sharavathi Power Station, Shivanasamudra (Shimsha), Bellary Thermal Power Station and Godana Thermal Power Station at Chattisgarh. At Chattisgarh, the petitioner has served between November, 2015 to November, 2019 for a period of four years. He was transferred from Chattisgarh to Bellary Thermal Power Station during the month of November, 2019. From Bellary, the petitioner was transferred to Bangalore on 18.01.2020. In less then a month, by order dated 12.02.2020 the petitioner has been deputed to Mandakini Coal Block, situated at Angul District, Odisha state, along with three other personnel.
3. Learned counsel for the petitioner submits that even according to the Transfer Guidelines 4 produced at Annexure-E, the minimum period of tenure in the category of Chief Engineer is four years. Learned counsel submits that it is clear that the impugned order of transfer is in violation of the transfer policy and since the petitioner has been frequently transferred, it is also clear that the transfer order has been passed with malafide intention, only to harass the petitioner. In this regard, the learned counsel draws the attention of this Court to the decision of the Apex Court in the case of B.Varadha Rao /vs./ State of Karnataka & Others, reported in AIR 1986 SC 1955. It is submitted that in the said decision and in the catena of cases, the Apex Court has held that the discretionary power vested with the authority for transfer should be exercised honestly, bonafide and reasonably. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to malafide and colourable exercise of power. Frequent 5 transfers without sufficient reasons to justify such transfers, cannot, but be held as malafide. In the very same decision, it is pointed out to the portion where the Apex Court has held that frequent transfer should be avoided and it is in fact deprecated since such frequent transfer can uproot a family, cause irreparable harm to a government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralization.
4. Per contra, the learned counsel for the respondent Corporation draws the attention of this Court to a decision of the Division Bench of this Court which was rendered recently in the case of Karnataka Power Corporation Limited /vs./ Suma.H in W.A.No.2749/2019 decided on 18.09.2019. It is submitted that while considering the question of malafides and premature transfer, clause 3.11 and 3.12 of the guidelines were 6 specifically considered by the Division Bench. It is submitted that the Division Bench has held that 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, it was held that Managing Director is empowered to transfer the employees on administrative grounds.
5. Learned counsel for the respondent further submits that the reason behind the transfer of the petitioner has been fully stated in the impugned order itself. It is submitted that the Corporation has been allotted Mandakini Coal Block, situated at Angul District, Odisha State, to meet the coal requirements of Yermarus Thermal Power Station Unit 1 and 2 (2 x 800 MW) and Bellary Thermal Power Station Unit 3 (700 MW) by Ministry of Coal, Government of India. It is submitted that the said allotment was made in the month of December, 2019. Subsequently, the Corporation has executed 7 Allotment Agreement with the nominated authority Ministry of Coal, Government of India on 31.12.2019. The allotment agreement stipulated certain timelines as efficiency parameters for commencement of mining operations and non-compliance of the same would result in appropriation of performance security to the tune of Rs.164 Crores. It is further submitted that the respondent Corporation has indeed recognised the efficiency and capability of the petitioner who had earlier served as Chief Engineer at Chattisgarh for a period of 4 years. It is submitted that the petitioner has the experience of not only the technical aspects, but also the administrative functions that are required for establishment and smooth functioning of the extraction of coal and securing the permissions and papers required during the entire process. It is submitted that the respondent Corporation has kept in mind the difficulties that the petitioner and his family may face and therefore additional benefits in the form of TA/DA, additional 8 Dearness Allowance at Rs.400/- per day, free accommodation and special casual leave of 8 days per visit once in six months has also been granted in the impugned order itself. The learned counsel for the respondent therefore submits that this is not a case where any malafides could be pointed out and as regards the contention of the petitioner that the impugned order would amount to premature transfer, cannot be accepted.
6. Heard the learned counsels and perused the writ petition papers.
7. Although, on the face of it the two orders of transfers dated 18.01.2020 and 12.02.2020 appear to be issued in short frequency, this Court is of the considered opinion that the impugned order of transfer dated 12.02.2020 does not require interference at the hands of this Court. As rightly, pointed out by the learned counsel for the respondent, recently a Division Bench had the 9 occasion to deal with the Transfer Guidelines of the respondent Corporation. The relevant clauses i.e., Clause 3.11 and 3.12 have been considered elaborately by the Division Bench. It has been held that the Managing Director of the Corporation is fully empowered to transfer the employees in derogation of the minimum tenure, provided the same is done due to administrative exigencies. In the impugned order sufficient reasons have been supplied for the transfer of the petitioner along with two other employees. The petitioner should in fact feel proud that his services have been recognized and the respondent Corporation feels that he is capable of discharging the duties at a newly established place and he is in a position to safeguard the interest of the respondent Corporation. On the contrary, if the respondent Corporation is unable to commence the mining operations in terms of the Allotment Agreement entered into on 31.12.2019 between the respondent Corporation and the Ministry of Coal, Government of 10 India, the respondent Corporation stands to lose nearly 164 Crores. Moreover the functioning of the three units at Raichur Thermal Power Station and Bellary Thermal Power Station could also be jeopardized, which would have a telling effect on the power generation and consumption of nearly 50% to 60% of the State.
8. This Court has given anxious considerations to the submissions of the learned counsels and the decision of the Apex Court in the case of B.Varadha Rao (supra). It is noticeable that the Apex Court has held that it is an accepted principal that in public service transfer is an incident of service. It is also an implied condition of services and appointing authority has a wide discretion in the matter. Caution has been given that such wide discretion must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. After consideration of the entire case, this Court does not find that the discretion vested with the Managing 11 Director has been exercised for any alien purpose or oblique motive. Though the last two transfers may appear to be frequent transfer, justifiable reasons have been assigned in the order of transfer itself. It is indeed an administrative exigency which has demanded that the Managing Director needs to exercise his discretion to protect the interest of the Corporation as well as the general public. This Court has also satisfied that due consideration has been given to the difficulties that the petitioner and his family may face and appropriate arrangements have also been done to ameliorate the difficulties of the petitioner.
9. For the reasons stated above, this Court is of the considered opinion that the writ petition deserves to be dismissed and is accordingly dismissed. No order as to costs.
Sd/-
JUDGE KLY/