The Karnataka Power Corporation ... vs Shri Premnath H R S/O ...
2022 Latest Caselaw 12155 Kant

            IN THE HIGH COURT OF KARNATAKA,
                     DHARWAD BENCH

       DATED THIS THE 26TH DAY OF SEPTEMBER, 2022

                         PRESENT

           THE HON'BLE MR. JUSTICE S.G. PANDIT
                           AND

   THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                W.A. No. 100381/2022 (S-TR)
BETWEEN:

THE KARNATAKA POWER
CORPORATION LIMITED,
NO. 82, SHAKTI BHAVAN,
RACE COURSE ROAD,
BENGALURU-580 001,
REPRESENTED BY ITS
MANAGING DIRECTOR.
                                              -   APPELLANT
(BY SRI PRAMOD NAIR, SENIOR COUNSEL FOR
SRI MRUTYUNJAY S. HALLIKERI, ADVOCATE)

AND

SHRI PREMNATH H.R,
S/O HANUMANTHAPPA.T,
AGED ABOUT 59 YEARS,
PRESENTLY WORKING AS
CHIEF ENGINEER CIVIL (C-2),
BELLARY THERMAL POWER STATION,
KUDITHINI VILLAGE, BELLARY TALUK
AND DISTRICT-583 115,
R/O # 12, SHANTHI RESIDENCY,
GANDHINAGAR, BALLARY-583 101.
                                          -     RESPONDENT
(BY SRI SATISH M. DODDAMANI, SENIOR COUNSEL FOR
SRI MADANMOHAN M. KHANNUR, ADVOCATE)
                                         2



      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT AGAINST THE ORDER PASSED BY THE
LEARNED SINGLE JUDGE IN W.P. NO. 102352/2022 DATED
04.08.2022 & ETC.

      THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT'
THIS DAY, S.G.PANDIT, J DELIVERED THE FOLLOWING:

                                 JUDGMENT

This writ appeal is filed by the respondent challenging the

order dated 04.08.2022 passed by the learned Single Judge in

W.P. No. 102352/2022 by which the writ petition is allowed

quashing the impugned order dated 16.06.2021 posting

petitioner to Mandakini Coal Fields, Orissa State, insofar as it

relates to the petitioner with a direction to consider

representation of the petitioner and pass appropriate order in

accordance with law within a period of one month.

2. The appellant was the respondent and the respondent

herein was the petitioner in W.P. No. 102352/2022 and they

would be referred to as they stand before the writ Court.

3. The respondent-Karnataka Power Corporation Limited (for

short 'KPCL') is a Corporation incorporated and owned by the

State of Karnataka, which is engaged in generating electrical

power in the State of Karnataka. The petitioner is working as

Chief Engineer who had joined KPCL as Assistant Engineer

(Civil). The petitioner is on the verge of retirement and is to

retire from service on attaining the age of superannuation on

31.05.2023. It is stated that Mandakini Coal Block situated in

Angul District, Odisha was allotted to KPCL under the Coal Mines

(Special Provisions) Act, 2015 to meet the coal requirements of

Thermal Power Station Units 1 and 2 At Yermarus and Ballary

Thermal Power Station Unit-3. The appellant would state that

development and operation of captive coal blocks allotted to

KPCL and operationlisation of coal blocks for commencement of

coal production is essential to mitigate coal supply and power

deficit in the State of Karnataka. To work at Mandakini Coal

Block requires seniormost officers from KPCL to co-ordinate and

get approvals from the concerned State. In that regard KPCL

issued impugned notification dated 16.06.2021 which is styled as

'deputation order' posting Chief Engineers to work at Mandakini

Coal Fields on rotation basis from 01.07.2021 to 29.02.2024.

4. The petitioner who is working as Chief Engineer in KPCL

was deputed/ transferred to work at Mandakini Coal Fields under

impugned notification dated 16.06.2021 from 01.07.2022 to

31.12.2022. Challenging the same, the petitioner approached

this Court in W.P. No. 102352/2022 on various grounds including

that the KPCL could not have posted the petitioner outside

Karnataka and that the impugned order which is styled as

'deputation' is not an order of deputation, but it is an order of

transfer.

5. KPCL appeared through its counsel and filed statement of

objections contending that services of the petitioner is necessary

at Mandakini Coal Block and the deputation is only for a period of

six months, i.e., from 01.07.2022 to 31.12.2022. Further, it is

stated that the Managing Director by exercising his power vested

in him, in the interest of Corporation has passed the order

deputing senior officials of the Corporation for a short period on

rotation.

6. Learned Single Judge on consideration of the rival

contentions allowed the writ petition and set aside the impugned

order dated 16.06.2021 (Annexure-D) insofar as it relates to the

petitioner on the ground that the respondent could not have

posted the petitioner outside the State of Karnataka and that

there is no consent for deputation. Challenging the said order,

the respondent-KPCL is before this Court in this appeal.

7. Heard learned Senior Counsel Sri Pramod Nair for Sri

Mrutyunjay S. Hallikeri, learned counsel for KPCL and learned

Senior Counsel Sri Satish M. Doddamani for Sri Madanmohan M.

Khannur, learned counsel for the petitioner. Perused the entire

writ appeal papers.

8. Learned Senior Counsel Sri Pramod Nair would contend

that even though the order uses the word "deputation", it is not

a deputation and it is "transfer". It is submitted that as the

KPCL is allotted Coal Mine at Mandakini Coal Block situated in

Angul District, Odisha, it had become necessary to transfer KPCL

officials to carry out its functioning at Mandakini Coal Block.

Instead of using the word "transfer" the Corporation used the

word "deputation". The order of "deputation" would not satisfy

the ingredient of "deputation". He submits that "deputation"

involves lending authority, borrowing authority as well as the

employee of the lending authority. Deputation would be from

one department to another department nor one cadre to another

in a department. As the impugned order would not satisfy the

conditions of deputation it is to be treated as an order of

transfer. In that regard, he places reliance on the decision of

the Apex Court reported in (1999) 4 SCC 659 (Umapati

Choudhary v. State of Bihar) and (2007) 9 SCC 539

(Prasar Bharati v. Amarjit Singh)

9. It is further submitted that if the transfer is in the interest

of public administration and exigencies of service, the Court

normally would not interfere with such transfer. With regard to

contention that the petitioner would retire within another 11

months, learned Senior Counsel would invite attention of this

Court to the Rules of the Corporation and submits that Rule

8.3.09 would provide for posting of retiring employee. An

employee who is left with three years of service before attaining

age of superannuation, could be considered for transfer to the

place in which or nearer to which he intends to settle down after

retirement. But the Managing Director under Rule 8.3.12 on

administrative grounds notwithstanding the norms, order

transfer of employees in the interest of the service of the

Corporation.

10. Learned Senior Counsel would submit that Rule 8.3.12 is

interpreted by the co-ordinate Bench of this Court in W.A. No.

2749/2019 disposed of on 18.09.2019, wherein it is held that

while transferring the employees the Managing Director is under

no obligation to record reasons in exercise of his power under

Rule 8.3.12. Learned Senior Counsel referring to the agreement

entered into between the petitioner and the respondent dated

12.11.1990 at the time of petitioner's appointment, would state

that employee shall be prepared to be posted anywhere in

Karnataka State particularly in the project areas, but that would

not prohibit the Corporation from transferring the employee

outside the State of Karnataka for the purpose of carrying out

functions of KPCL and in the administrative exigency. With

regard to the health condition of the petitioner, learned counsel

would submit that the petitioner had undergone surgery in the

year 2012, i.e., ten years prior to the date of transfer and the

same would not come in the way of the petitioner joining duty at

Mandakini Coal Block. Therefore, he submits that the health

ground urged by the petitioner is not tenable. Thus, the learned

Senior Counsel prays for allowing the writ appeal and to dismiss

the writ petition.

11. Learned Senior Counsel for the KPCL would further submit

that the order of transfer was issued more than a year ago, i.e.,

on 16.06.2021 and the petitioner kept quiet till 26.06.2022, the

date on which the writ petition was filed. It is his submission

that for more than one year the petitioner kept quiet without

raising any objection and without submitting any representation.

Only at the last moment he is before this Court and only on the

ground of delay and laches the writ petition is liable to be

dismissed.

12. Per contra, Sri Satish Doddamani, learned Senior Counsel

for the petitioner would support the order of the learned Single

Judge and submits that when the impugned order dated

16.06.2021 itself uses the word "deputation" it is to be read as

"deputation" and not as "transfer" as contended by the learned

counsel for the appellant/ respondent. He submits that the

impugned order would not satisfy the characteristic of

deputation, as such, the learned Single Judge is right in setting

aside the impugned order.

13. Learned Senior Counsel would invite attention of this Court

to clause 4 of the agreement entered into between the petitioner

and respondent at the time of petitioner's appointment and

submits that the petitioner could not have been posted outside

Karnataka State and the said clause provides for posting the

petitioner anywhere in Karnataka State particularly in the project

areas of KPCL. It is his submission that posting or deputation of

petitioner to Mandakini Coal Block at Odisha, outside the State of

Karnataka is contrary to Clause 4 of the agreement. In that

regard, learned Senior Counsel places reliance on the decision of

the co-ordinate Bench of this Court reported in ILR 1992

Karnataka. 1211 (Management of M/s Nippani Urban Co-

operative Bank Ltd. vs. Workmen).

14. Learned Senior Counsel would nextly contend that, to

depute the petitioner outside the State of Karnataka, no consent

is obtained and unless consent of employee is obtained, the

employer has no power or jurisdiction to depute its employee.

Learned Senior Counsel would submit that the petitioner would

retire from service on attaining the age of superannuation on

31.05.2023 and in view of Rule 8.3.09 the petitioner ought to

have been provided posting to the place in which the petitioner

is working or nearer to which he intends to settle down after

retirement. Thus, he prays for dismissal of the writ appeal.

15. Having heard the learned Senior counsel for the parties

and on perusal of the writ appeal papers, the point that would

arise for consideration is as to whether the impugned order

dated 16.06.2021 passed by the respondent-KPCL is an order of

deputation or order of transfer and whether the learned Single

Judge's order requires interference?

16. The answer to the above point would be that the impugned

order dated 16.06.2021 issued by the respondent-KPCL is an

order of transfer and not an order of deputation and the order of

the learned Single Judge requires to be interfered for the

following reasons.

17. It is an admitted fact that the petitioner is working as Chief

Engineer (Civil) (C-2) at Bellary Thermal Power Station,

Kudithini, Bellary Taluk and District and that he would retire

from service on attaining the age of superannuation on

31.05.2023. Under Order dated 16.06.2021 (Annexure-D),

seven Chief Engineers working in the respondent-KPCL are

posted to work at Mandakini Coal Mine for immediate

commencement of work relating to mining and its supervision.

It is the specific case of the respondent-KPCL that the work at

Mandakini Coal Block requires seniormost officers to co-ordinate

and get the approvals from the State Government and also for

immediate commencement of mining activities. As stated

earlier, Mandakini Coal Block situated at Angul District, Odisha,

was allotted to the respondent under the Coal Mines (Special

Provisions) Act, 2015 to meet the coal requirements of thermal

power station at Yermaras and Bellary Thermal Power Stations.

The petitioner is one of the Chief Engineer posted to work at

Mandakini Coal Mine under impugned order dated 16.06.2021 to

work for a period of six months from 01.07.2022 to 31.12.2022.

Even though the impugned order of posting uses the word

"deputation" it is not an order of "deputation" but it is to be

construed as an order of transfer, as the impugned order would

not satisfy the ingredients or criteria of deputation. The Hon'ble

Apex Court in the case of Prasar Bharati (supra) while

considering the transfer of employees from Doordarshan and

Akashvani to Broadcasting Corporation of India as per Prasar

Bharati (Broadcasting Corporation of India) Act, 1990, at

paragraph no. 13 has held as follows:

"13. There exists a distinction between "transfer" and "deputation". "Deputation" connotes service outside the cadre or outside the parent department in which an employee is serving. "Transfer", however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications."

18. The Hon'ble Apex Court has made it clear that the

deputation would be service outside the cadre or outside the

parent department in which the employee is serving. The

deputation would be from parent department to borrowing

department with or without consent depending on the prevailing

Rules.

19. In the instant case, the petitioner is neither posted to

another department nor to any other cadre. The petitioner is

posted within the KPCL to work at Mandakini Coal Block allotted

to KPCL at Odisha, that too, for a specific period of six months

from 01.07.2022 to 31.12.2022. The petitioner is posted as

Chief Engineer to work at Mandakini Coal Block and his status as

Chief Engineer has not affected. Further, the impugned order

transfers seven Chief Engineers on rotation basis to work at Coal

Mines. The posting of the petitioner to Mandakini Coal Block is

in the interest of public as well as administrative exigencies of

KPCL. Coal is essentially required to mitigate the power position

in the State of Karnataka. The impugned order dated

16.06.2021 therefore is held that it is not a deputation but it is

an order of transfer.

20. Learned Senior Counsel for the petitioner contended that

in view of clause 4 of the agreement entered into between the

petitioner and respondent at the time of petitioner's

appointment, the petitioner cannot be posted outside Karnataka.

To appreciate the said contention it would be useful to extract

clause 4 of the agreement which reads as follows:

"4. 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 fee 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."

A careful reading of the above clause makes it clear that

employee shall be prepared to be posted anywhere in Karnataka

State particularly in the project areas. It would not prohibit

posting of employee outside the State of Karnataka. No other

clause in the agreement is pointed out which prohibits transfer of

an employee outside the State of Karnataka. The services of an

employee could be utilized by its employer wherever his services

are needed, depending on the administrative exigency.

21. In the instant case, the services of the petitioner who is in

the rank of Chief Engineer was necessitated in view of the fact

that KPCL was allotted coal mine at Mandakini, Odisha State.

The requirement of the coal was necessary to mitigate the coal

deficiency in the State of Karnataka. As held by the Hon'ble

Apex Court in the case of Varada Rao Vs. State of Karnataka

& Others reported in AIR 1986 SC 1955 that transfer is not a

condition of service and transfer is an incidence of service.

22. It is true that the petitioner and respondent are governed

by contract entered into between them and the clause in the said

contract is to be read in relation to the purpose for which it is

entered. In the instant case, the clause of the contract would

not prohibit employer's prerogative to utilize services of its

employee wherever it is needed. Hence, there is no merit in the

contention of the petitioner that he could not have been posted

outside Karnataka State.

23. The reliance placed on the decision of the Co-ordinate

bench of this Court in Management of M/s Nippani Urban

Co-operative Bank Ltd., (supra) would not come to the aid of

the petitioner. The facts of the present case is entirely different

from the said case. The said case involved "workmen" and in

the present case the petitioner is not a workman and he is

holding the higher post in the Engineering Department of the

KPCL, i.e., Chief Engineer. In the case of Management of M/s

Nippani Urban Co-operative Bank Ltd., (supra), at the time

of appointing the workmen there was no branch of the bank

outside Nippani. The workmen employed to Nippani branch and

the workmen were never told that there was possibility of such

branching out and transfer in such contingencies. It is not open

for the petitioner who is holding the higher post of Chief

Engineer to refuse transfer when the transfer is made in the

interest of the respondent-KPCL as well as in the interest of the

entire State as it involves generation of power by using coal.

24. The petitioner also contended that the petitioner has only

11 months of service and in terms of clause 8.3.09 the petitioner

ought to have been provided posting to a place nearer which he

intends to settle down after his retirement. To appreciate this

contention of the petitioner it would be necessary to look into

clause 8.3.08 as well as Rule 8.3.12. which reads as follows:

"3.08 - RETIRING EMPLOYEES.

An employee who is left with 2 years of service before attaining the age of superannuation will be considered for transfer to the place in which or near to which he intends to settle down after retirement subject to availability of vacancy. 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."

25. It is true that Rule 3.09 provides that an employee who is

left with three years service before attaining age of

superannuation could be transferred to a place in which or

nearer to which he intends to settle down after retirement. The

said Rule requires consideration of the case of an employee who

retires within another three years for posting nearer to the place

where he intends to settle down. But it is not mandatory to post

such an employee to place in which or nearer to which he

intends to settle down after retirement. Such posting depends

on various factors, such as, need of service of such an employee,

vacancy position, etc. Clause 3.12 of Service Rules empowers

the Managing Director to order transfer of any employee in the

interest of service of the Corporation notwithstanding the

transfer norms contained in Rule 8 including that of 3.09.

Clause 3.12 fell for consideration before the co-ordinate Bench of

this Court in W.A. No. 2749/2019 dated 18.09.2019 (KPCL &

Another Vs. Suma H). It is held at paragraph no.11 as follows:

"11. ..... 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."

26. Learned Senior Counsel for appellant contended that the

impugned order was passed on 16.06.2021 and the petitioner

has approached this Court after more than a year. Hence, he

submitted that the writ petition is liable to be rejected on the

ground of delay and laches.

27. Admittedly, the impugned order of deputation/ transfer

was issued on 16.06.2021 and the writ petition is presented on

26.06.2022, more than a year after issuance of the transfer

order. In terms of transfer order the petitioner was required to

report at transferred place, i.e., Mandakini Coal Block, on

01.07.2022. Even though the impugned order was passed on

16.06.2021, more than a year after the impugned order, i.e.,

four days before joining date, the petitioner presented the writ

petition. The petitioner was aware of the order of deputation/

transfer dated 16.06.2021 in June, 2021 itself. For almost an

year the petitioner had no grievance, no representation was

submitted making out a grievance. If the petitioner's grievance

was bonafide, he would have immediately represented to the

respondent KPCL requesting cancellation of transfer or

modification of transfer. It is stated, for the first time the

petitioner is stated to have made representation to the

respondent-KPCL only on 24.06.2022. There is no bonafide in

the grievance of the petitioner. His health status also would not

come to his aid since he had undergone angioplasty in the year

2012 and with regard to present day health condition of the

petitioner, no material is placed on record.

28. For the reasons recorded above, the finding of the learned

Single Judge that the petitioner had agreed only to serve within

the State of Karnataka; the respondent-Corporation cannot

depute from Karnataka to Odisha; and that the impugned order

of deputation is arbitrary, erroneous, is opposed to the material

on record. Hence, we pass the following order.

ORDER

Writ appeal is allowed.

The impugned order passed by the learned Single Judge

dated 04.08.2022 in W.P. No. 102352/2022 is set aside.

Consequently, the said writ petition stands dismissed.

SD JUDGE

SD JUDGE bvv