Kerala High Court
Shyam Mohan.L vs The Bharat Petroleum Corporation ... on 1 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023/12TH MAGHA, 1944
WP(C) NO. 2527 OF 2023
PETITIONERS:
1 SHAMSUDHEEN C.P
AGED 29 YEARS
S/O MUHAMED ALI,
CHEMIST TRAINEE, QUALITY CONTROL DEPARTMENT,
BHARAT PETROLEUM CORPORATION LIMITED KOCHI
REFINERY, AMBALAMUGAL-682302 AND
RESIDING AT CHAKKUPURKKAL HOUSE,
EDATHANATTUKARA P.O., MANARKKAD TALUK,
PALAKKAD - 678601
2 ANAS E.A
AGED 28 YEARS
S/O ABOOBACKER.E,
CHEMIST TRAINEE, QUALITY CONTROL DEPARTMENT,
BHARAT PETROLEUM CORPORATION LIMITED KOCHI
REFINERY, AMBALAMUGAL-682302 AND
RESIDING AT ERINGALTHODY HOUSE,
PONMALA P.O., MANICHIRA,
SULTHAN BATHERY,
WAYANAD - 673592
BY ADVS.
ELVIN PETER P.J.
K.R.GANESH
GOURI BALAGOPAL
ABHIJITH.K.ANIRUDHAN
SREELEKSHMI A.S.
ANU JOSEPH
RESPONDENTS:
1 THE BHARAT PETROLEUM CORPORATION LIMITED
REPRESENTED BY ITS CHAIRMAN,
REGISTERED OFFICE AT BHARAT BHAVAN,
4 AND 6 CURRIMBHOY ROAD, PALLAR ESTATE,
MUMBAI, PIN - 400001
W.P.(C) Nos.2527 & 2756 of 2023
:2:
2 THE EXECUTIVE DIRECTOR
BHARAT PETROLEUM CORPORATION LIMITED,
KOCHI REFINERY, AMBALAMUGAL, PIN - 682302
3 GENERAL MANAGER (HUMAN RESOURCES)
BHARAT PETROLEUM CORPORATION LIMITED,
KOCHI REFINERY, AMBALAMUGAL, PIN - 682302
BY ADVS.
ABEL TOM BENNY
SRI.BENNY P.THOMAS, SC, BPCL(SC-2436)
D.PREM KAMATH(K/1285/1998)
TOM THOMAS (KAKKUZHIYIL)(K/000821/2008)
KURIAN OOMMEN THERAKATH(K/001319/2020)
K.S.MUHAMMED SHEFIN(K/002107/2021)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.02.2023, ALONG WITH WP(C).2756/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.2527 & 2756 of 2023
:3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023/12TH MAGHA, 1944
WP(C) NO. 2756 OF 2023
PETITIONERS:
1 SHYAM MOHAN L
AGED 28 YEARS
S/O. MOHANDAS.P.,
CHEMIST TRAINEE, QUALITY CONTROL DEPARTMENT,
BHARAT PETROLEUM CORPORATION LIMITED
KOCHI REFINERY,
AMBALAMUGAL, ERNAKULAM -682302,
RESIDING AT MANGHAT LAKSHMI NIVAS,
KANNANKULANGARA, THRIPUNITHURA.P.O,
ERNAKULAM, PIN - 682301
2 RENJITH.V.C
AGED 29 YEARS
S/O CHANDRASEKHARAN.V.P.,
CHEMIST TRAINEE, QUALITY CONTROL DEPARTMENT,
BHARAT PETROLEUM CORPORATION LIMITED
KOCHI REFINERY,
AMBALAMUGAL, ERNAKULAM-682302,
RESIDING AT VAKKAYIL HOUSE,
THIRUMUKKALAM,
IRANIKKULAM.P.O., MALA
THRISSUR, PIN - 680734
BY ADVS.
ELVIN PETER P.J.
K.R.GANESH
GOURI BALAGOPAL
ABHIJITH.K.ANIRUDHAN
SREELEKSHMI A.S.
ANU JOSEPH
W.P.(C) Nos.2527 & 2756 of 2023
:4:
RESPONDENTS:
1 THE BHARAT PETROLEUM CORPORATION LIMITED,
REPRESENTED BY ITS CHAIRMAN,
REGISTERED OFFICE AT BHARAT BHAVAN,
4 AND 6 CURRIMBHOY ROAD, PALLAR ESTATE,
MUMBAI, PIN - 400001
2 THE EXECUTIVE DIRECTOR
BHARAT PETROLEUM CORPORATION LIMITED,
KOCHI REFINERY, AMBALAMUGAL, PIN - 682302
3 GENERAL MANAGER (HUMAN RESOURCES)
BHARAT PETROLEUM CORPORATION LIMITED,
KOCHI REFINERY, AMBALAMUGAL, PIN - 682302
BY ADVS.
ABEL TOM BEENY
SRI.BENNY P.THOMAS, SC, BPCL(SC-2436)
D.PREM KAMATH(K/1285/1998)
TOM THOMAS (KAKKUZHIYIL)(K/000821/2008)
KURIAN OOMMEN THERAKATH(K/001319/2020)
K.S.MUHAMMED SHEFIN(K/002107/2021)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.02.2023, ALONG WITH WP(C).2527/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.2527 & 2756 of 2023
:5:
N. NAGARESH, J.
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W.P.(C) Nos.2527 and 2756 of 2023
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Dated this the 1st day of February, 2023
JUDGMENT
~~~~~~~~~
The petitioners who are Chemist Trainees in the
1st respondent-Bharat Petroleum Corporation Limited, Kochi
Refinery, are aggrieved by their transfer and posting as
Operator Trainees.
2. The petitioners state that they have joined Service
as Chemist Trainee. The qualification prescribed for the post
of Chemist Trainee, as per Ext.P1 notification, is MSc
Chemistry preferably in Analytical Chemistry in First Class
with 60% marks (Full-Time course) from a recognised Indian
University/Institute. Candidate should have minimum one
year relevant post qualification apprenticeship training (in a
relevant field) in a Refining/ Petroleum/ Power/ Lube/
W.P.(C) Nos.2527 & 2756 of 2023
Petrochemical/ Fertiliser/ Chemical Industry, of repute.
3. As per Ext.P1 notification, for the post of General
Workman-B (Trainee)-Petrochemical, the educational
qualification prescribed is First Class Diploma in Chemical
Engineering/ Technology or Petrochemical Engineering/
Technology (Full-Time course approved by AICTE) with 60%
marks from a recognised Indian University/Institute. The post
qualification experience prescribed for the post of General
Workman-B (Trainee)-Petrochemical is that one should
have minimum one year relevant post qualification work
experience/ one year post qualification apprenticeship
training (in a relevant field) under the Apprenticeship Act,
1961 in a Refining/ Petroleum/ Power/ Lube/ Petrochemical /
Fertiliser Industry, of repute.
4. The duties attached to the post of Chemist
Trainee are also of superior nature considering the duties to
be discharged by General Workman-B (Trainee). Though
both the posts are in the workman category, Chemist
Trainees are in the IVth Grade with the pay attached to the
W.P.(C) Nos.2527 & 2756 of 2023
post ₹13,500-31,000, whereas the General Workmen-B
(Trainee) are placed in Grade-I with the pay of ₹11,500-
20,000. The General Workmen-B (Trainee) will have to get
promotion from Grade-I to Grade-II, from grade-II to Grade-III
and from Grade-III to Grade-IV to be placed and designated
as Operator Trainee, and then alone an employee in the
General Workman-B (Trainee) would draw a pay scale of
₹13,500 -31,000.
5. It is therefore evident that the posts of Chemist
Trainee and General Workman-B and Operator Trainee are
different and distinct posts with distinct qualifications and
totally unrelated duties. But, to the surprise and predicament
of the petitioners, the 3rd respondent issued Ext.P4 Office
Note on 20.01.2023 transferring the petitioners from the post
of Chemist Trainee, Quality Control Department to the post
of Operator Trainee in the Petrochemical Department.
6. The petitioners would argue that the duties
discharged by them since their joining duty as Chemist
Trainee have absolutely nothing to do with the duties
W.P.(C) Nos.2527 & 2756 of 2023
attached to the post of Operator Trainee. The action of the
3rd respondent in issuing Ext.P4 order transferring the
petitioners to the post of Operator Trainee is illegal and
violative of Article 14 of the Constitution of India. Posts are
created in the Refinery after proper work study and with
specific functions and duties attached to each post. Each
post has also specific qualifications and experience for
getting appointment. The action of the respondents in
transferring and posting the petitioners as Operator Trainee
in the Petrochemical Department, when the petitioners are
holding much superior qualifications and discharging
specialised functions, is therefore highly arbitrary and is
liable to be interfered with by appropriate orders of this Court.
7. The respondents, on the other hand, resisted the
writ petition. The respondents stated that for administrative
and operational requirements, various departments have
been formed in the BPCL, Kochi Refinery. The impugned
transfer order was issued based on the manpower
requirements in the Petrochemical Department. The transfer
W.P.(C) Nos.2527 & 2756 of 2023
of an employee is a condition of service in view of the
Appointment Letters, Standing Orders and Long Term
Settlements applicable to the employees.
8. The appointment letters issued to the petitioners
have clearly reserved the right of the Management to re-
designate and re-deploy employees in identical scale of pay
at its sole discretion. The Long Term Settlement entered into
by the management with the unions also provides that the
staff strength and patterns of working will be decided by the
Company and the unions will fully co-operate.
9. The petitioners are members of a union which is
signatory to the Long Term Settlement. Therefore, the
petitioners have accepted the transfer/redeployment/
relocation norms. The petitioners therefore cannot turn
around and make claims contrary to the Settlements.
Furthermore, as per the Certified Standing Orders applicable
to the Company, workmen may be transferred at the
discretion of the Company, from one establishment to
another or from one Department to another or from one job
W.P.(C) Nos.2527 & 2756 of 2023
to another or from one shift to another as operating necessity
may require. Therefore, the transfers given to the petitioners
are absolutely justified.
10. The counsel for the respondents pointed out that
as on date there is huge requirement of technically qualified
and experienced manpower in the Petrochemicals
Department. It is taking into consideration the requirement in
the Petrochemicals Department that the petitioners were
transferred. The counsel for the respondents further pointed
out that the work hitherto done by the petitioners in their
parent department has been entrusted to their senior
colleagues. No fresh appointment or recruitment has been
done to the cadre of Chemist Trainee. The petitioners
therefore cannot raise any legal grievance.
11. I have heard the learned counsel for the
petitioners and the learned Standing Counsel representing
the respondents.
12. It is true that the Chemist Trainees require higher
educational qualification and they are discharging superior
W.P.(C) Nos.2527 & 2756 of 2023
functions than the category of General Workman-B
(Trainee). The Chemist Trainees are drawing a higher pay
also than that of the General Workman-B (Trainee). The
petitioners have not been transferred to the post of General
Workman-B (Trainee). They have been transferred to the
post of Operator Trainee. The posts of Chemist Trainee and
Operator Trainee are in the same Grade, namely Grade-IV.
The post of Operator Trainee has the same pay scale as that
of Chemist Trainee. Therefore, the petitioners cannot have a
grievance that they are posted to an inferior post.
13. It may be true that the duties and functions of
Chemist Trainee and Operator Trainee are different. The
question then arises as to whether such transfers / postings
are permissible under the conditions of service applicable to
the petitioners and the rules and regulations of the Company.
14. Clause 5 of the appointment letters issued to the
petitioners reads as follows:
5. TRANSFER AND REDESIGNATION :
(a) The Management reserves the right to
re-designate and re-deploy you in identical scale of
W.P.(C) Nos.2527 & 2756 of 2023
pay at its sole discretion.
(b) At the sole discretion of the
Corporation, you will be liable to be transferred to
any of the establishments of the Corporation in the
same location or in other places, which are
presently existing or which may be set up in future
within the Indian Union, in the same or similar
capacity, with or without re-designation as felt
necessary. In case of your transfer, you will be
governed by the conditions of service and rules and
regulations applicable at the place where you are
transferred.
It is therefore evident that the Management has a right to
redeploy the petitioners in identical scales of pay at the sole
discretion of the Management.
15. It has come out from the pleadings that Clause 2
of the Long Term Settlement dated 30.05.2013 provides for
optimisation of manpower. The relevant Clause in the Long
Term Settlement reads as follows:
2. OPTIMISATION OF MANPOWER
(a) The parties agree that initially the staff
strength and patterns of working of existing / new
plants / equipment / departments / sections in the
Refinery will be decided by the Company and the
Unions will fully co-operate in starting and working
such new plants / equipment / departments /
sections.
(b) In the context of Integrated Refinery
Expansion Project (IREP) clubbed with rapid
technological advancement and modernisation,
W.P.(C) Nos.2527 & 2756 of 2023
Kochi Refinery requires changes in its various
activities necessitating reorganisation measures
involving work simplification, reallocation of work,
job enlargement, re-deployment of men, modernise
& technologically upgrade its Plants and business
processes in its various functions, closure of some
activities, relocation of plants and machinery,
introduction of new line/s of production /
manufacture. Workmen agree to co-operate with
the timely completion / commissioning of IREP.
(c) Management and unions appreciate
that business environment is competitive and
dynamic in nature requiring flexibility in manpower
management based on changing business
requirements and technological upgradation,
improvement in productivity and it will be necessary
to review the existing and future manpower
requirement for various jobs, processes and
activities.
(d) For ensuring productive / optimal
utilisation of manpower for business requirements,
Management will identify and redeploy / relocate
surplus workmen, in various departments to other
places where their services are required, after re-
skilling / retraining.
(e) The workmen on need basis will be
trained internally or in external institutes to take up
other equivalent roles for gainful employment and
shall be posted in such roles based on actual
requirements. The unions agree that such of those
workmen undergoing training will take up such roles
on completion of the training to enhance manpower
engagement levels. The workmen are required to
complete all their training to carry out additional job
responsibilities of equivalent or higher grades or
those arising out of change in technology or
modifications will undertake such training on the job
within the spare schedule available, as required by
the management.
W.P.(C) Nos.2527 & 2756 of 2023
16. Therefore, under the Long Term Settlement also,
the Management is empowered to fix the staff strength and
patterns of working of the employees. The Long Term
Settlement specifically provides that the Kochi Refinery
requires changes in its various activities necessitating
reorganisation measures involving work simplification, re-
allocation of work, job enlargement, redeployment of men,
modernise and technologically upgrade its Plants and
business processes in its various functions, closure of some
activities, relocation of plants and machinery, etc. Under the
Long Term Settlement, the workmen have agreed to co-
operate in this regard.
17. Furthermore, Clause 7 of the Certified Standing
Orders of the Company gives right to the Management to
transfer the workmen from one Department to another
Department or from one establishment to another. Clause
7.1 of the Certified Standing Orders reads as follows:
7.1 Workmen may be transferred at the discretion
of the Company, from one establishment to another
whether in the Cochin area or elsewhere in India,
W.P.(C) Nos.2527 & 2756 of 2023
from one department to another, from one job to
another and / or from one shift to another as
operating necessity may require. Such transfer
shall not result in any loss on the base pay and
dearness allowance of the workman concerned,
unless such transfer is as a result of misconduct or
inability to satisfactorily carry out specified job
duties to the satisfaction of the company.
Thus, under the Certified Standing Orders also, transfer of
the petitioners to the Petrochemical Department is justified.
18. In view of the above, I am of the view that the
petitioners cannot raise a legitimate legal grievance over
transferring them from the Quality Control Department to the
Petrochemicals Department.
19. The counsel for the petitioners argued that the
transfers imposed on the petitioners are not intended to
optimise utilisation of manpower. Their transfers are
intended to favour certain others and the Management of the
Company is likely to fill up the posts of Chemist Trainee
hitherto held by the petitioners by appointing others.
20. The Standing Counsel representing the
respondents asserted that the transfer of the petitioners is
intended to optimise its manpower, taking into consideration
W.P.(C) Nos.2527 & 2756 of 2023
the requirements in the Petrochemical Department of the
Company. The respondents do not intend to fill up the
vacancies of Chemist Trainees hitherto held by the
petitioners, in the immediate future.
21. In view of the findings and conclusions as made
above, I do not find any reason to interfere with the orders of
the respondents transferring the petitioners to the
Petrochemicals Department.
The writ petitions fail and are consequently
dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/02.02.2023
W.P.(C) Nos.2527 & 2756 of 2023
APPENDIX OF WP(C) 2527/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTIFICATION NO.
ADV.NO: KR.HR.HRD.03.NMGT.RECT DATED
17/07/2019 ISSUED BY THE BHARAT
PETROLEUM CORPORATION LTD.
Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE
APPOINTMENT ORDER
NO.KR.HR.HRD.03.NMGT.RECT DATED
27/09/2019 ISSUED TO THE 1ST
PETITIONER BY THE DY. GENERAL MANAGER
OF BHARAT PETROLEUM CORPORATION LTD.
Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF THE
APPOINTMENT ORDER
NO.KR.HR.HRD.03.NMGT.RECT DATED
27/09/2019 ISSUED TO THE 2ND
PETITIONER BY THE DY. GENERAL MANAGER
OF BHARAT PETROLEUM CORPORATION LTD.
Exhibit P4 TRUE COPY OF THE OFFICE NOTE NO.
KR.HR.ER.03.STAF.TFR DATED 20/01/2023
ISSUED BY THE BHARAT PETROLEUM LTD
RESPONDENT'S EXHIBITS
EXHIBIT R1(a) TRUE COPY OF THE LONG TERM SETTLEMENT
DATED 30.05.2013.
EXHIBIT R1(b) TRUE COPY OF THE JUDGMENT DATED
09.11.2017 IN WP(C) 35321 OF 2017 OF
THIS HONOURABLE COURT
EXHIBIT R1(c) TRUE COPY OF THE ORDER DATED
20.09.2021 IN W.P.(C) No. 19658 OF
2021 OF THIS HONOURABLE COURT.
W.P.(C) Nos.2527 & 2756 of 2023
APPENDIX OF WP(C) 2756/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTIFICATION ADV.NO:
KR.HR.HRD.03.NMGT.RECT DATED
10/11/2018 ISSUED BY THE BHARAT
PETROLEUM CORPORATION LTD.
Exhibit P2 TRUE COPY OF THE APPOINTMENT ORDER
NO.KR.HR.HRD.03.NMGT.RECT DATED
20/02/2019 ISSUED TO THE 1ST
PETITIONER BY THE DY. GENERAL MANAGER
Exhibit P3 TRUE COPY OF THE APPOINTMENT ORDER
NO.KR.HR.HRD.03.NMGT.RECT DATED
1404.210 DATED 14/02/2019 ISSUED TO
THE 2ND PETITIONER BY THE DY. GENERAL
MANAGER OF BHARAT PETROLEUM
CORPORATION LTD.
Exhibit P4 TRUE COPY OF THE OFFICE NOTE NO.
KR.HR.ER.03.STAF.TFR DATED 21/01/2023
ISSUED BY THE BHARAT PETROLEUM LTD
RESPONDENT'S EXHIBITS
EXHIBIT R1(a) TRUE COPY OF THE LONG TERM SETTLEMENT
DATED 30.05.2013.
EXHIBIT R1(b) TRUE COPY OF THE JUDGMENT DATED
09.11.2017 IN WP(C) 35321 OF 2017 OF
THIS HONOURABLE COURT
EXHIBIT R1(c) TRUE COPY OF THE ORDER DATED
20.09.2021 IN W.P.(C) No. 19658 OF
2021 OF THIS HONOURABLE COURT.
