Madras High Court
E.Thanappan vs The Chief Engineer / Personal on 17 May, 2024
Author: R. Mahadevan
Bench: R.Mahadevan, Mohammed Shaffiq
W.A.No.3341 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.05.2024
CORAM :
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal No.3341 of 2023
and
C.M.P.Nos.27247 and 27248 of 2023
E.Thanappan ..
Appellant
Versus
1. The Chief Engineer / Personal
Tamil Nadu Generation and Distribution
Corporation (TANGEDO) Ltd.,
O/o. the Chief Engineer, Personal 144,
Anna Salai, Chennai.
2. The Superintending Engineer,
Tamil Nadu Generaion and Distribution
Corporation (TANGEDCO) Ltd.,
O/o. the Superintending Engineer,
CEDC/North, Chennai - 2.
3. The Superintending Engineer,
Tamil nadu Generation and Distribution
Corporation (TANGEDCO) Ltd.,
O/o. the Superintending Engineer,
CEDC/South-II, K.K.Nagar, Chennai - 600 078.
4. The Executive Engineer,
Tamil Nadu Generation and Distribution
Corporation (TANGEDCO) Ltd &
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1/14
W.A.No.3341 of 2023
M/Tambaram, Chennai - 600 045.
5. The Assistant Executive Engineer,
Tamil Nadu Generation and Distribution
Corporation (TANGEDCO) Ltd &
M/CEDC/South - II, Kadapeeri,
Chennai - 600 047. ..
Respondents
Writ Appeal filed under Clause 15 of Letters Patent praying to set
aside the order dated 01.08.2023 made in WP.No.2839 of 2023.
For Appellant Mr.R.Subburaj
For Respondents Mr.D.David Sundar Singh
Standing Counsel
JUDGMENT
R. MAHADEVAN, J.
This writ appeal arises from an order of the learned Judge passed in
W.P.No.2839 of 2023 on 01.08.2023.
2.The writ petitioner is the appellant herein. The case projected by him
before the writ court is that he joined the services of the TANGEDCO as
Technical Assistant on 30.12.1997. Thereafter, he was promoted as Junior
Engineer and further promoted as Assistant Engineer. When he was working as
Assistant Engineer at SS/Thirunavalur, Kallakurichi, at his request, he was
transferred to Chennai South-II Region and posted as Assistant Engineer,
Operation and Maintenance, New Colony CEDC/South and he assumed charge
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on 11.07.2022. However, the then in-charge Assistant Engineer, who was holding
additional charge of New Colony Section, did not hand over the charge to him
with an intention to cover up the illegalities committed by him joining hands with
others. Hence, the appellant sent a letter to the then Assistant Engineer requesting
him to hand over the charge to him and seeking information with regard to 45
nos. of disconnected service connections. After taking charge of the office, the
appellant came to know that there was huge loss caused to the Board and the
consumers, whose service connections were disconnected, had again started
consuming energy illegally without paying any consumption charges. The
appellant had pointed out several instances of illegalities made by the fifth
respondent in giving electricity connections to the consumers violating the Rules
of the Board. It is further stated by the appellant that when he was asked to
commit such illegalities in favour of the consumers, he refused to commit such
illegalities and in view of the same, the fifth respondent himself passed orders in
various instances of EB services like changing connections, changing tariff and
other related works coupled with illegal gratification, thereby, causing huge loss
to the Board.
3.The appellant further averred that in one of such instances, on
15.10.2022, one V.Rajeswari applied for fresh three phase service connection
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along with a consent letter of Velmurugan by giving an undertaking that she
would pay all the outstanding dues pertaining to SC No.293/020/333. On
21.10.2022, the said V.Rajeswari had paid the outstanding dues and as such,
based on the oral direction of the 5th respondent, the appellant had effected
service connection to the said V.Rajeswari. In the circumstances, the fifth
respondent issued a memo on 10.11.2022 to the appellant calling upon his
explanation as to how he could give service connection on 21.10.2022 without
collecting the arrears. Manwhile, without giving an opportunity to the appellant to
submit his explanation, he was placed under suspension with effect from
04.11.2022. The appellant approached this Court by filing W.P.No.31716 of
2022 seeking revocation of order of suspension and the same was disposed of, by
order dated 28.11.2022, pursuant to which, the appellant gave a representation on
30.11.2022 and based on such representation, the order of suspension was
revoked by the third respondent by his proceedings dated 03.12.2022. However,
the appellant was relieved from his duties with effect from 04.11.2022 and he
was directed to await posting order from the second respondent. Eventually, the
appellant was transferred from South to North Circle. Contending that the
impugned orders of transfer and posting are nothing but punitive in nature and
motivated and against the transfer policy of the Government in G.O.(Ms) No.10,
P & AR Department, dated 07.01.1994, the appellant filed the instant writ
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petition bearing No.2839 of 2023 challenging the same.
4.A counter affidavit was filed on behalf of the third respondent before
the learned Judge contending that the fifth respondent, during his inspection,
detected a case of theft of energy by a consumer by unauthorisedly reconnecting
the disconnected service connection and hence, he issued a provisional
assessment with working sheet assessing the loss caused to the Board at
Rs.4,51,678/-. As the consumer had failed to deposit the assessed amount
towards extra levy, though she had paid the compounding fee of Rs.12,000/- out
of that amount, the service connection was disconnected. However, the appellant
had unilaterally prepared a revised working sheet indicating that the consumer
has to pay Rs.2,19,839/- only, instead of Rs.4,51,678/-. After payment of
Rs.2,00,000/- initially by the consumer, a cheque for a sum of Rs.2,39,678/- was
stated to have been given by the consumer and when it was presented for
collection, it was returned for insufficient funds. While so, the consumer made a
complaint to the Chief Engineer Chennai Region, South, alleging that the
appellant had received a blank cheque by making false representation that after
deducting Rs.2,00,000/- already paid, he would fill in the balance amount of
Rs.19,839/- only, however, he wrote in the cheque the balance amount as per the
assessment made by the fifth respondent. As per Regulation 27 of the Tamil Nadu
Distribution Code, 2004, for providing any new or additional service connection
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to a premises in which if there is any due to be paid, the service connection
should be effected only after payment of such dues. However, the appellant,
having full knowledge about the dues to be paid, provided an additional service
connection in the name of wife of the consumer relating to S.C.No.293-020-333
(Tariff V). Thus, the appellant had not only acted in violation of the statutory
regulations in force, but also failed to discharge his basic duty to realize the dues
before considering service connection and thereby caused loss to the Board.
5.It was also stated in the counter by the third respondent that since
there were series of complaints against the appellant from the consumers of New
Colony, he was placed under suspension on 04.11.2022, pursuant to which, one
Sudhakar was posted as Assistant Engineer. Thereafter, the third respondent, in
exercise of the powers conferred under the Regulations, revoked the order of
suspension on 03.12.2022 and the appellant was asked to await posting orders.
Accordingly, the first respondent issued the order on 16.12.2022 posting the
appellant as Assistant Engineer, Electrical/Shift/110 KV SS/Ennore/Chennai
Electricity Distribution Circle/North, which is headed by the second respondent.
The appellant did not choose to join duty as per the order of posting / reposting.
He was posted only within Chennai area and the transfer was made only in public
interest. It was also submitted that there is no bar under G.O.(Ms) No.10, P &
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AR Department, dated 07.01.1994 to transfer an officer who is facing disciplinary
proceedings.
6.After hearing the submissions made on either side, the learned Judge,
pointing out the clarification issued by the Government by its letter dated
09.08.1994 in respect of G.O.(Ms) No.10, P & AR Department, dated
07.01.1994, and also relying upon the judgments of the Hon’ble Supreme Court
in the cases of Rajendra Singh and others v. State of Uttar Pradesh and others
[(2009) 15 SCC 178] and State of U.P. and others v. Gobardhan Lal [(2004)
11 SCC 402], dismissed the writ petition. Challenging the same, the present
appeal has been filed by the incumbent.
7.The learned counsel for the appellant submitted that the appellant
exposed many irregularities committed by the officials in the Department within a
short period of four months of joining the place and he was a whistleblower and
hence, he was transferred. It is a clear case of victimization based on a complaint
given by a consumer, who committed energy theft. That apart, the appellant gave
a detailed explanation with regard to the allegation of correction made by him in
the assessment done by the fifth respondent, which is available in Page Nos.110
and 111 of the typed set of papers and that the reduction amount is very much
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available in 1st memo dated 03.11.2022 and hence, it is clear that the very base of
the allegation made against the appellant is wrong. The learned counsel also
placed reliance on the decision in the case of Arvind Dattatraya Dhande vs. State
of Maharashtra, reported in (1997) 6 SCC 169, wherein the Hon’ble Supreme
Court held that victimization of an honest officer is bad. However, without
properly appreciating the facts, the learned Judge erred in passing the order of
dismissal in the writ petition.
7.1. Continuing further, the learned counsel for the appellant
submitted that the learned Judge failed to consider the facts put forth and the
documents filed by the appellant to the effect that the transfer is punitive in nature
and the fifth respondent who passed the suspension order is exposed to so many
illegalities. The learned Judge had not correctly applied G.O.Ms.No.10 P&AR
Department, dated 07.01.1994, to the facts of the case. It is also submitted that
the transfer order has been passed in lieu of punishment and hence, the same is
liable to be set aside in terms of the judgment of the Hon’ble Supreme Court in
the case of Somesh Tiwari vs. Union of India, reported in 2009(2) SCC 592. The
learned counsel has also relied upon the judgment of this Court in W.A.No.12812
of 2013 dated 04.10.2013 in the case of P.Karunakaran vs. Union of India, in
support of such contention.
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7.2. With the above submissions, the learned counsel for the
appellant prayed for setting aside the impugned order and consequently to grant
the relief as prayed for in the writ petition.
8. The learned Standing counsel for the Department submitted that the
learned Judge has passed the impugned order, after taking note of all the facts
and circumstances in a right way and hence, the same need not be interfered by
this Court.
9. Heard the learned counsel on either side and perused the materials
available on record.
10. It is seen that the appellant, while working as Assistant Engineer,
O&M/New Colony / Tambaram Division / Chennai EDC/South II, is said to have
committed the following lapses, for which, he was placed under suspension on
04.11.2022:
(i)He has corrected and reduced the assessed amount to Rs.2,19,839/-
and the original assessment working sheet issued on 13.10.2022 by the Assistant
Executive Engineer / O&M/Kadapperi was Rs.5,30,872/-. On 21.10.2022, a new
service connection was given in his wife's name without collecting the IRDC
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amount for the same premises and without receiving any documents from the
consumer.
(ii)He has misbehaved with the consumer by demanding bribe.
(iii)He has threatened the consumer and received blank cheque leaf and
at a later date, he himself filled the amount of Rs.2,39,678/- without the
knowledge of the consumer and the same was confirmed by the consumer.
Subsequently, the cheque was dishonoured by the bank.
11.During the pendency of the disciplinary proceedings, the suspension
of the appellant was revoked by order dated 03.12.2022 and he was posted as
Assistant Engineer / Electrical / Shift /110 KV SS / Ennore / Chennai Electricity
Distribution Circle / North against the existing vacancy, by order dated
16.12.2022. The appellant challenged the said orders of transfer and posting by
filing the instant writ petition, which was dismissed by the learned Judge, by the
order impugned herein.
12. On a perusal of the order impugned in this appeal, it is evident that
the learned Judge has rightly held that the dispute between the parties cannot be
gone into as they are disputed questions of fact. The proceedings challenged in
the writ petition are only with regard to transfer and posting. In this connection,
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the learned counsel for the appellant relied upon the General Policy of Transfer or
change of post once in three years, to be made applicable to the case of the
appellant. But, this Court is of the view that it cannot be made applicable at all
times and in all circumstances generally. In this regard, reference to
G.O.Ms.No.10, P & AR Department, dated 07.01.1994 and the annexures
thereto, would be relevant. Para III to Annexure I sets out exceptions to the
General Guidelines. Sub Clause (f) instructs that in ,cases where severe
allegations are pending enquiry, when it is considered necessary in public interest,
and sufficient in lieu of suspension, the officer may be transferred and in that
case, transfer shall be effected to a vacant post in another station or to the post
where the juniormost person of the same category is working. Pointing out the
same, the learned Judge has dismissed the writ petition by the order in this writ
appeal.
13. It is well settled position of law that a Government Servant has no
vested right to remain posted at a place of his choice nor can he insist that he
must be posted at a particular place or the other. He is liable to be transferred in
the administrative exigencies from one place to the other. 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
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contrary. No Government can function, if the Government Servant insists that
once appointed or posted in a particular place or position, he should continue in
such place or position as long as he desire [Refer: Suresh Kumar Dewangan v.
State of Chhattisgarh through Secretary, Food Civil Supplies and Consumer
Protection Department and others, 2024 SCC OnLine Chh 4358, High Court of
Chhattisgarh at Bilaspur].
14. The Hon'ble Supreme Court in the decision in Dr.Nagorao Shivaji
Chavan v. Dr.Sunil Purushottam Bhamre and others [(2020) 1 SCC (L&S)
705], has held that though normal tenure of government servant is three years,
but in administrative exigencies, transfer before normal tenure is permissible i.e.,
there is no total embargo. The relevant passage of the said decision is usefully
extracted below:
"12.Notwithstanding the provisions contained in Section 3 which
uses the expression that "ordinarily the tenure is three years", in our opinion
in exceptional circumstances in a given case, or in the case of administrative
exigencies, transfer is permissible, and no absolute bar on transfer is created
by virtue of the provisions contained in Section 3 read with Section 4. In the
facts and circumstances of the case and also considering the past record of
Respondent 1 of not joining the place where he was transferred for five years,
no interference with the order of transfer is called for."
15. Applying the above legal position to the facts of the present case,
wherein, no valid or acceptable grounds have been made out to interfere with the
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order passed by the learned Judge, this writ appeal deserves to be dismissed and
is accordingly, dismissed. No costs. Consequently, connected miscellaneous
petitions are closed.
[R.M.D., J.] [M.S.Q.,
J.] 17.05.2024
Index : Yes / No
Internet : Yes / No
rk
To
1. The Chief Engineer / Personal
Tamil Nadu Generation and Distribution
Corporation (TANGEDO) Ltd.,
O/o. the Chief Engineer, Personal 144,
Anna Salai, Chennai.
2. The Superintending Engineer,
Tamil Nadu Generaion and Distribution
Corporation (TANGEDCO) Ltd.,
O/o. the Superintending Engineer,
CEDC/North, Chennai - 2.
3. The Superintending Engineer,
Tamil nadu Generation and Distribution
Corporation (TANGEDCO) Ltd.,
O/o. the Superintending Engineer,
CEDC/South-II, K.K.Nagar, Chennai - 600 078.
4. The Executive Engineer,
Tamil Nadu Generation and Distribution
Corporation (TANGEDCO) Ltd &
M/Tambaram, Chennai - 600 045.
https://www.mhc.tn.gov.in/judis
R. MAHADEVAN, J
and
MOHAMMED SHAFFIQ, J
rk
5. The Assistant Executive Engineer,
Tamil Nadu Generation and Distribution
Corporation (TANGEDCO) Ltd &
M/CEDC/South - II, Kadapeeri,
Chennai - 600 047.
and
C.M.P.Nos.27247 and 27248 of 2023
17.05.2024
https://www.mhc.tn.gov.in/judis
