Karnataka High Court

Sri L. Srinivasa vs The Karnataka Power Corporation ... on 11 January, 2021

Author: M.Nagaprasanna

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 11TH DAY OF JANUARY, 2021

                      BEFORE

   THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

       WRIT PETITION No.6194/2020 (S-TR)

BETWEEN

SRI. L. SRINIVASA
AGED 59 YEARS
S/O. LATE LAKSHMANNA
EXECUTIVE ENGINEER (MECHANICAL)
OFFICE OF THE CHIEF ENGINEER
(THERMAL DESIGN)
KARNATAKA POWER CORPORATION LTD.,
GREEN BUILDING, PALACE ROAD
BANGALORE-560 001.
                                        ... PETITIONER

(BY SRI.NATARAJA SHARMA, ADVOCATE
   (VIDEO CONFERENCING))

AND

THE KARNATAKA POWER CORPORATION LIMITED
NO.82, SHAKTI BHAVAN
RACE COURSE ROAD
BANGALORE-560 001 REPRESENTED BY ITS
MANAGING DIRECTOR.

                                       ... RESPONDENT

(BY SRI. AJAY J. NANDALIKA, ADVOCATE
    (PHYSICAL HEARING))
                              2




     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO CALL FOR RECORDS RELATING TO, CONERNING AND
CONNECTED WITH THE IMPUGNED ORDER BEARING
NO.A1   P1D-E1(M)/4723  DATED   05.03.2020  VIDE
ANNEXURE-D ISSUED BY RESPONDENT PERUSE THE SAME
AND SET ASIDE THE SAID ORDER IN SO FAR AS THE
SAME CONCERNS AND PERTAINS TO THE PETITIONER
ONLY AND ETC.


     THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

Petitioner in this writ petition assails order dated

05.03.2020 issued by the respondent-Corporation

transferring the petitioner from the office of the Chief

Engineer (Thermal Design) Bengaluru to Office of the

Executive Engineer, MSP, Kadra Hydro project.

2. Heard Sri. Nataraja Sharma, learned counsel

for petitioner and Sri. Ajay.J. Nandalika, for respondent.

3. The brief facts leading to filing of the present

petition are that, the petitioner joined the services of the

respondent-Corporation as a Junior Engineer (Thermal), at

the relevant point of time, the petitioner was working as

Executive Engineer (Mechanical) with effect from

16-09-2015 at Office of the Chief Engineer (Thermal

Design), Bengaluru. After close to 5 of 5 years of service

at the said office, he is transferred to Kadra Hydro Project

as Executive Engineer (Mechanical). The petitioner claims

to submitted his representation to cancel / re-consider his

transfer to Kadra Hydro Project on 12.03.2020. When

such representation did not meet it's consideration by the

respondent-Corporation, the petitioner has filed the

subject writ petition challenging the order of transfer.

4. The learned counsel appearing for the

petitioner would submit that the order of transfer is a

contrary to law in as much as it is contrary to the

guidelines regulating transfers of employees working in the

Corporation and a malafide action on the part of Managing

Director as the petitioner was directed by the Managing

Director to sign certain papers to which the petitioner has

declined which resulted in impugned order of transfer.

5. It is the submission of the learned counsel

appearing for the petitioner that in terms of the guidelines

operating, an employee who is due to retire within two

years from the date of such transfer cannot be transferred.

He would also submit the order of transfer is vitiated by

malafides on the part of the Managing Director of the

Corporation. It is further contended that transfer of

petitioner out of Bangalore at the fag end of his career

causes grave hardship.

6. On the other hand, the learned counsel

appearing for the respondent Corporation would contend

that all the issues that the petitioner is now raising are

considered by the learned Division Bench of this court only

to be negatived in the case of Karnataka Power

Corporation Limited & Another vs. Suma H. in

W.A.No.2749 of 2019 dated 18.09.2019.

7. The learned Division Bench in the case of

Karnataka Power Corporation Limited & Another vs.

Suma H. in W.A.No.2749 of 2019 dated 18.09.2019

has interpreted the very policy/guidelines of transfer and

has held that the employee has no right to continue in the

post that he wants and it is always open to the Managing

Director of respondent No.2-Corporation to pass orders of

transfer for good and sufficient reasons in the wake of

administrative exigency.

8. The order of the learned Division Bench reads

as follows:

"8. In paragraph 7 of the decision of the Apex Court in the case of UNION OF INDIA AND OTHERS (supra), it is held thus:

"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with

respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."

(Underline supplied)

9. In paragraph 7 of the decision of the Apex

Court in the case of STATE OF U.P. AND OTHERS (supra),

it is held thus:

"7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or

containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."

(Underline supplied)

10. In the case of BAREILLY ELECTRICITY SUPPLY

CO. LTD. (supra), the Apex Court held that the argument

that reasons are not given for transfer cannot be accepted

and the failure to give specific reasons for transfer cannot

be the basis for setting aside the order of transfer.

11. In this case, admittedly no mala fides have

been alleged by the respondent. Clauses 3.11 and 3.12 of

the said Guidelines are relevant which reads thus;

"3.11 PREMATURE TRANSFER:

Transfer of an employee ordered before his completing the minimum duration of service indicated. In rule 3.03 or 3.05 is a premature transfer. Such premature transfer shall be ordered by the Managing Director. The Chief Engineers & Equivalent who are the transferring authority for the employees of the rank of AEEs and Equivalent and below may also order such premature transfer within their respective jurisdiction under the delegated powers for good and sufficient reasons. However, after issue of orders, they may report to the MD the reasons in detail for making such transfers.

x x x xx "

(Underline supplied)

"3.12 MANAGING DIRECTOR'S APPROVAL IN CERTAIN CASES:

Transfer on request or on administrative grounds shall be ordered conforming to the norms stipulated above. The MD may however order transfer of any employee in the interest of the service of the Corporation notwithstanding the above norms.

Where transfers are proposed to be ordered beyond the norms stipulated above by any other Authority empowered to order transfer, such Authority shall obtain specific prior approval of MD duly indicating

the reasons in his proposal to the MD for making such transfer".

(Underline supplied)

Clause 3.11 of the said Guidelines is in two parts. The first part confers powers on the Managing Director to make premature transfer before an employee completing the minimum duration of service indicated in Rule 3.03 or 3.05. The second part authorizes the transferring authority to make premature transfers for good and sufficient reasons. Therefore, when the Managing Director passes an order of premature transfer, there will not be a requirement of recording good and sufficient reasons. In fact, Clause 3.12 of the said Guidelines specifically confers power on the Managing Director to transfer any employee in the interest of the service of the first appellant notwithstanding the norms laid down in the said Guidelines. Thus, 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, while transferring the respondent prematurely, the Managing Director was under no obligation to record reasons. He has stated that all the transfers are on administrative grounds. Therefore, in our view, the order passed by the learned Single Judge is contrary to the norms mentioned in Clause 3.11 read with Clause 3.12 of the said Guidelines and therefore, the impugned blanket order of staying the entire order dated 23rd May 2019 cannot be sustained. However, the respondent can always make a representation to the first appellant, which is to be bound to be considered in accordance with law. Accordingly, we pass the following order:

(i) The impugned order dated 19th June 2019 is hereby set aside and the prayer made by the respondent therein for grant of interim relief stands dismissed;

(ii) Notwithstanding this order, it will be always open for the respondent to make an appropriate representation to the first appellant pointing out her difficulties. If such a representation is made, the first appellant shall consider the same and take appropriate decision thereon within a maximum period of two weeks from the date of representation is made;

(iii) The appeal is allowed on above terms;

(iv) The pending interlocutory application does not survive for consideration and is accordingly disposed of.

(v) On the prayer made by the learned counsel appearing for the respondent, we direct that the order of transfer of the respondent shall not be implemented for a period of three weeks from today."

12. This court following the afore extracted

judgment of the learned division bench Court in

W.P.No.48439/2018 in the case of Kabbalaiah vs. The

State of Karnataka and Others dated 30.11.2020 has

dismissed the writ petition by directing the petitioner to

give representation to the respondent-Corporation for its

consideration. The judgment of the learned Division Bench

covers the issue of case at hand on all fours . Therefore,

challenge to the impugned order of transfer is

unsustainable and deserves to be rejected and is rejected.

13. However in the light of the judgment of the

Division Bench stated supra the petitioner is to be directed