Shri. Poresh Kumar Nath vs . North Eastern Electric Power
2022 Latest Caselaw 207 Meg

     Serial No. 1
     Supp. List

                         HIGH COURT OF MEGHALAYA
                             AT SHILLONG

WP(C). No. 412 of 2021
                                                     Date of Decision: 12.05.2022

Shri. Poresh Kumar Nath              Vs.        North Eastern Electric Power
                                                Corporation Limited (Government
                                                of India Enterprise) & Ors.


Coram:
          Hon'ble Mr. Justice H.S.Thangkhiew, Judge.

Appearance:
For the Petitioner/Appellant(s) :              Mr. H.L.Shangreiso, Sr. Adv. with
                                               Ms. A.Kharshiing, Adv.

For the Respondent(s)               :          Mr. V.K.Jindal, Sr. Adv. with

Ms. E.Marwein, Adv.

i)        Whether approved for reporting in                      Yes/No
          Law journals etc:

ii)  Whether approved for publication         Yes/No
     in press:

____________________________________________________________

JUDGMENT AND ORDER

1. The petitioner before this Court is serving as a Supervisor (Design) in

the establishment of the respondent North Eastern Electric Power

Corporation Limited (NEEPCO) and is aggrieved with the impugned

transfer order dated 26-11-2021 which had been issued by the respondent

No.4. The reasons for assailing the transfer order are that the same had been

made in a colourable and malafide exercise of power by the respondents in

view of the fact that the writ petitioner is a trade union leader and under the

collective banner of the three Trade Unions in NEEPCO had filed a writ

petition being No. WP(C). 367 of 2021 on 18-11-2021, wherein the vires of

Rule 8 (iii) of the North Eastern Electric Power Corporation Limited

(NEEPCO) Conduct, Discipline and Appeal Rules, 1980 have been

challenged. The writ petitioner has alleged that his transfer is a form of

punishment for his involvement in trade union activities. Personal

allegations of malafide have also been levelled against the respondent No.5

who is made a party respondent by name.

2. Mr. H.L.Shangreiso, learned Senior counsel assisted by Ms.

A.Kharshiing, learned counsel submits that the transfer order suffers from

grave illegalities, firstly, in the speed and haste with which the petitioner

was transferred which was at the behest of the respondent No.5, to Kurung

Project Arunachal Pradesh from Mawsynram Project, Meghalaya without

allowing him to complete his assignment and that the same is a clear

violation of the stated Transfer Policy of NEEPCO. Learned Senior counsel

also asserts that the impugned transfer was made at the behest and on the

recommendation of the respondent No.5 who is the petitioner's controlling

officer and also the competent recommending authority for transfer of

subordinate technical staff, and as such the transfer order was issued by the

respondent No.4 (H.R.Department). The learned Senior counsel in his

allegations of malafide against the respondent No.5 has submitted that the

said respondent was inimical to the petitioner and had warned him with the

threat of transfer to a far-flung area for his union activities. In this context,

he has drawn the attention of the Court to Annexure-5 of the writ petition

which is a show cause notice dated 11-10-2021 issued by the respondent

No.5, wherein the petitioner was warned and was called upon to explain as

to why necessary action was not to be initiated against him. The learned

Senior counsel has pointed out that in this letter itself, reference is made to

a verbal warning by the respondent No.5, which was made on 09-08-2021.

Learned Senior counsel further submits immediately after the explanation

had been given, the petitioner was sent to Wah Umiam HeP Stage III (85

MW) Mawsynram, Meghalaya vide letter dated 15-11-2021 issued by the

respondent No.3, for collection of data and he was to submit the same on or

before 1st December, 2021, even though such assignment is hardly

connected with the petitioner's normal official duty which is drawing of

projects as Supervisor (Design). Thereafter, learned Senior counsel submits

when the vires of Rule 8 (iii) of the North Eastern Electric Power

Corporation Limited (NEEPCO) Conduct, Disciplinary and Appeal Rules,

1980 came to be challenged by way of WP(C). No. 367 of 2021 on 18-11-

2021 by the three Trade Unions of NEEPCO, at the behest of respondent

No.5, the impugned transfer order dated 26-11-2021 was passed hastily,

transferring the petitioner from Guwahati to Kurung Dam, Arunachal

Pradesh. The transfer, the learned Senior counsel asserts was made with the

view to disable the petitioner from discharging his responsibilities as a Trade

Union leader and as such the same was not done in the ordinary course of

business but solely with an ulterior motive to punish the petitioner.

3. The learned Senior counsel submits that the transfer of the petitioner

is also in violation of Rule 6.2 of the Transfer Policy of NEEPCO which

stipulates that an employee will be considered for transfer from Location

Category-I to Location Category-II or vice versa or within the same category

after completion of the tenure of 4(four) years in one location. He submits

that though a representation against the transfer has been filed as provided

under Rule 17, the petitioner has been compelled to approach this Court due

to the nature of the case where he cannot expect justice from the respondents.

In this regard the learned Senior counsel has referred to a judgment and order

dated 27-08-2019 passed by this Court in WP(C). No. 258 of 2018 and

WP(C). No. 319 of 2018 (Shri. Devapriya Choudhury vs. Union of India

and Shri. Subir Sircar vs. NEEPCO & Ors.) especially para 18 wherein it

has been held that though the Transfer Policy does not have the force of

statutory rules but as the guidelines had been framed by the NEEPCO itself,

an obligation was cast upon them to follow these norms and to justify any

deviation therefrom.

4. The learned Senior counsel then submits that the writ petitioner

holding the post of Supervisor (Design) in NEEPCO, his service is not one

of private employment or contract of personal service, as NEEPCO is a

government company and as such it would fall within the meaning of State

under Article 12 of the Constitution. He further submits that NEEPCO in

performing governmental functions and public duty has public law character

and would fall under the exception given in para 45 and para 52 of the

judgment in the case of K.K.Saksena vrs. International Commission on

Irrigation and Drainage & Ors. reported in (2015) 4 SCC 670. Learned

Senior counsel on this point has also relied upon the following judgments:

i) Central Inland Water Transport Corporation vrs. Brojo Nath

Ganguly (1986) 3 SCC 156.

ii) Ajay Hasia & Ors. vrs. Khalib Mujib Sehravardi & Ors.

(1981) 1 SCC 722.

iii) Ramana Dayaram Shetty vrs. International Airport Authority

of India (1979) 3 SCC 489.

iv) Delhi Transport Corporation vrs. D.T.C. Mazdoor Congress

& Ors. (1991) Supp. (1) SCC 600.

v) Zee Telefilms Ltd. vrs. Union of India (2005) 4 SCC 649.

vi) Kishore Madhukar Pinglikar vrs. Automative Research

Association of India.

Learned Senior counsel in concluding his arguments submits that the

case is a fit case for interference by this Court, inasmuch as, malafide is writ

large in the conduct of the respondents and NEEPCO being a public

government company, the employment of the petitioner cannot be taken to

be a contract of personal service.

5. Mr. V.K.Jindal, learned Senior counsel assisted by Ms. E.Marwein,

learned counsel at the outset submits that it is not the case of the petitioner

that the impugned transfer order dated 26-11-2021 is vitiated by malafide on

the part of the authority making the order. He submits that the transfer order

was issued by the General Manager (H.R.) by which the petitioner was

posted to Kurung Dam site, and that as per Rule 9 of the NEEPCO Transfer

Policy, the authority for the transfer is the Functional Director, in this case

the Director (Technical) and the Director (Personnel). He further submits

that the petitioner has not made any allegation of malafide or otherwise

against the said authorities, and instead has levelled allegations against the

respondent No.5, who has nothing to do with the impugned transfer order.

The learned Senior counsel has invited the attention of this Court to the

pleadings in the writ petition, wherein the petitioner has made allegations of

malafide against the respondent No.5 accusing him of being vindictive

because of the petitioner's involvement in Trade Union activities and the

transfer order being at the behest of the respondent No.5. Learned Senior

counsel submits that the respondent No.5 has no role to play and is only

responsible for maintaining the discipline in the wing under his control and

that the show cause notice dated 11-10-2021 had been issued by him as per

instructions received from the Industrial Relation and Disciplinary Section

of NEEPCO. He further submits that the respondent No. 5 has no interest or

anything to do with Rule 8 (iii) which is a subject of WP(C). No. 367/2021

before the Division Bench, and as such there is no question of the respondent

No.5 acting in a malafide manner against the petitioner. Learned Senior

counsel strongly contends that the facts as projected by the petitioner does

not make out a case of malafide or of malice in law or in fact.

6. The learned Senior counsel then contends that the transfer of the

petitioner has been occasioned not due to his involvement in Trade Union

activities, but the same was done in the exigency of service, as the petitioner

is specially trained to take up the initial stages of survey of the project and

his services were therefore urgently required. The transfer order he argues,

was issued to meet the urgent operational requirements at the project site

and the allegation that respondent No.5, or any other official respondent had

acted in a malafide manner, or that the impugned transfer is a case of

colourable exercise of power, has no legs to stand on and have been made

with the intention to unnecessarily harass the respondent No.5.

7. The learned Senior counsel has also raised a point on the

maintainability of the writ petition by arguing that the service of the

petitioner is purely a contract of personal service which cannot be

specifically enforced in view of the bar created by the Specific Relief Act.

Learned Senior counsel to substantiate this contention has drawn the

attention of this Court to the proposal made to the petitioner for his

appointment as Draftsman (Civil) Grade III under NEEPCO made vide

appointment order dated 27-10-1989 (Annexure-1 to the petition). He

submits that in conditions No. 2 and 3, it has been provided that the

petitioner is liable to be posted in any office of the Corporation in India and

that his conditions of service will be governed by the existing Rules which

are in force, at that relevant point of time. It is submitted that the order of

appointment with the said conditions was accepted by the petitioner when

he joined the service of NEEPCO and as such the aforesaid order of

appointment constitutes a contract of personal service, which governs the

service condition of the petitioner and the same can be specifically enforced,

in view of the bar created by the Specific Relief Act, 1963.

8. On the issue of the Transfer Policy of NEEPCO which had been

formulated by the Board of Directors, the learned Senior counsel submits

that the said Transfer Policy are mere guidelines and not statutory rules, and

that they are also in the nature of a contract entered into between the Trade

Unions of the employees of NEEPCO and its management. Rule 18, he

submits vests the management with the right to modify and amend any

provision in the Transfer Policy. On the allegation that Rule 6.2 and Rule 9

(column 3) has been violated as the transfer of the petitioner has sought to

be made prior to the completion of the tenure of four years` and that the

transfer was not by the competent authority (Functional Director) but

effectuated by the respondent No.5, learned Senior counsel submits that

Rule 8.1 cloaks the management with enough power to transfer or retain any

employee at any place, irrespective of the tenure at a particular location to

meet the organizational requirements. Learned Senior counsel submits that

the transfer of the petitioner having been done to meet organizational

requirements, the allegations that the Transfer Policy has been violated is

not sustainable. It is further submitted that the petitioner has also taken

recourse to Rule 17 of the Transfer Policy and has filed a representation on

29-11-2021 but before the same could be disposed of, the petitioner has

come before this Court.

9. Reiterating the stand that NEEPCO is not a statutory authority,

learned Senior counsel submits that though NEEPCO may be considered a

state within the meaning of 'other authorities', it is not a statutory authority,

and though amenable to writ jurisdiction, in view of the nature of

employment of the writ petitioner, the service of the petitioner is purely a

contract of personal service and is also in the nature of private rights and as

such, cannot be specifically enforced. The learned Senior counsel also

touched upon the points that the writ petitioner is not a workman but is

serving in a supervisory capacity, and also that the petitioner is not a

protected workman or a protected key official to be eligible for any special

treatment.

10. The learned Senior counsel has placed the following decisions in

support of his arguments which are as follows:

i) S.C.Saxena vs. Union of India & Ors. (2006) 9 SCC 583, para

6 and 7.

ii) Union of India vs. S.L.Abbas (1993) 4 SCC 357, para 6 and

7.

iii) Rajneesh Khajuria vs. Wockhardt Limited & Anr. (2020) 3

SCC 86, para 16 to 22.

iv) Executive Committee UP Warehousing Corporation vs.

Chandra Kuran Tyagi (1969) 2 SCC 838, para 13, 14, 20, 23

& 28.

v) E.P.Royappa vs. State of Tamil Nadu, AIR 1974 SC 555, para

92 and 93 (Five Judge Bench).

vi) T. Natarajan vs. Indian Oxygen Limited (2003) SCC Online

775 (Madras) para 22.

vii) Pearlite Liners (Pvt) Ltd. vs. Manorama Sirsi (2004) 3 SCC

172 para 7.

viii) K.K.Saksena vs. International Commission on Irrigation and

Drainage (2015) 4 SCC 670, para 43 to 45, 50, 51.

ix) WP(C). No. 258 and 319/2018 (Shri Devapriya Choudhury vs.

UOI) date of order 27/8/2019 by Justice H.S.Thangkhiew.

x) Executive Committee of Vaish Degree College, Shamli and

Ors. vs. Lakshmi Narain & Ors. (1976) 2 SCC 58, para 18.

11. Having heard learned Senior counsel for the parties, the points that

have risen for consideration are, whether the respondent corporation though

amenable to writ jurisdiction under Article 226 will come within the purview

of Article 12 and whether the employment of the petitioner constitutes a

contract of personal service, which would make the instant writ petition not

maintainable, as it would be an issue of seeking enforcement of private

rights.

12. In examining as to whether NEEPCO is a body that will come within

the meaning of Article 12, certain factors have to be considered such as, the

formation of the body, the objects and functions, the management and

control the authorized share capital etc. Article 12 of the Constitution of

India in its definition of 'State', has included in its ambit local or other

authorities within the territory of India or under the control of the

Government of India. As held in the case of Pradeep Kumar Biswas vs.

Indian Institute of Chemical Biology & Ors. (2002) 5 SCC 111 at paras 5

and 6, the inclusive definition of 'State' as given in Article 12, is not

exhaustive and is "among the great generalities of the Constitution the

content of which has been and continues to be supplied by Courts from time

to time". In this backdrop therefore, the nature of NEEPCO as a corporation

has to be considered as the determination of a body as a 'State' is not a rigid

set of principles.

13. An important indicator is the existence of deep and pervasive state

control over a corporation to determine its character. In the case of Kishor

Madhukar Pinglikar vs. Automotive Research Association of India in SLP

No. 6637 of 2019 decided on 10th February, 2022, the Supreme Court at

para 5 had observed as follows:

"5. An earlier judgment of this Court in Ramana Dayaram Shetty v. International Airport Authority of India and others, (1979) 3 SCC 489 had received the imprimatur of Ajay Hasia (supra) as to when a corporation can be said to be an instrumentality or agency of the government.

"(1) One thing is clear that if the entire share capital of the corporation is held by Government,

it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 14).

(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p.508, para

15).

(3) It may also be a relevant factor.....whether the corporation enjoys monopoly status which is State-conferred or State-protected. (SCC p. 508, para 15).

(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15).

(5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16).

(6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. (SCC p. 510, para 18)".

14. The aforementioned case has also discussed the other judgments of

the Supreme Court such as, Zee Telefilms Limited & Anr. vs. Union of

India & Ors. (2005) 4 SCC 649, Ajay Hasia & Ors. vs. Khalid Mujib

Sheravardi & Ors. (1981) 1 SCC 722 which have been also relied upon by

the petitioner. The factors as to when a corporation can be said to come

within the meaning of Article 12 as enumerated in the judgments quoted

above will therefore necessarily have to be examined.

15. From a perusal of the Memorandum and Articles of Association of

the respondent corporation, it is firstly noted that it is a government company

within the meaning of Section 2(45) of the Companies Act, 2013 (as

amended), and the entire authorized share capital of the corporation is held

by the Government of India. The main objects of the corporation are to plan,

promote and organize an integrated and efficient development of electric

power through conventional and non-conventional sources. Apart from the

development of electric power, the corporation is also authorized to engage

in manufacturing, trading and other businesses for the purpose of disposal,

generation, operation and maintenance of electric power stations and

projects apart from transmission, distribution, purchase and sale of electric

power.

16. It is also noted that there is deep and pervasive state control in the

management of the corporation, the President of India an expression which

also includes the Government of India and vice versa, is defined in the

Memorandum of Association at clause 3(xiii). Extracts from the

Memorandum of Association which are reproduced herein below leave no

doubt as to the role the government has in the management and affairs of the

corporation including the appointment of the Directors who are to run the

company.

Sr.No. BOARD OF DIRECTORS

President to Appoint 75. The Chairman of the Board of Directors and Determine Directors and the Government their Remuneration representatives on the Board of Directors shall be appointed by the President. Other members of the Board of Directors shall be appointed or reappointed by the President.

The Whole-time Directors shall be paid such remuneration as the President may, from time to time, determine.

Chairman and Managing 76. The President at his discretion may Director appoint the same persons or two different persons as the Chairman of the Board of Directors and the Managing Director of the Company for such period and on such terms and conditions as he may think fit and may revoke such appointment.

The Chairman and the Managing Directors so appointed shall be entitled to hold office till the expiry of his tenure unless removed earlier by the President and any vacancy arising either by death, removal, resignation or otherwise may be

filled by fresh appointment by the President.

The Directors appointed shall be Determination of period of 77. entitled to hold office for such appointment by the period as the President may President determine. Further, the President may from time to time or at any time remove any part-time Director, from office at his absolute discretion.

Chairperson 87. (a) The President and/or the Board may elect a chairperson of its meetings and determine the period for which is to hold office.

(b) All meetings of the Directors shall be presided over by the Chairperson or the Chairman and Managing Director if present. If no such Chairperson is elected, or if at any meeting of the Board, the Chairperson is not present within five minutes after the time appointed for holding the same, the Directors present may choose one of the Directors then present to preside at the meeting.

(c) Subject to Section 203 of the Act and rules made there under, one person can act as the Chairman as well as the Managing Director or Chief Executive Officer at the same time.

GENERAL POWERS OF THE BOARD

Powers of the Board 97. (a) Subject to the provisions of the Act and to such directive and or instructions as the President may issue from time to time under these Articles, the business of the Company shall be managed by the Board of Directors who may exercise all such powers and do all such acts and things as the Company is authorized to exercise and do and who may, from time to time delegate such powers to the Chairman and/or Managing Director or whole time Director exercisable by them, upon such terms and conditions and with such restrictions, as they may think fit and either collaterally with or to the exclusion of their own powers and may, from time to time, revoke, withdraw or alter or vary all or any of such powers as may be necessary for the proper conduct of the business of the Company.

(b) Provided that the Board of Directors shall not exercise any powers or do any act or thing which is directed or required, whether by this or any other Act or by the Memorandum or Articles of the Company or otherwise to be exercised or done by the Company in the Annual General Meeting.

(c) The Chairperson shall reserve for decision of the President any proposals or decisions of the Board or any matter brought before the Board which raises in the opinion of the Chairperson, an important issue and which is on that account fit to be reserved for the decision of the President and no decision on such an important issue shall be taken in the absence of the Chairperson appointed by the President.

17. It is thus clear from the recitals of the Memorandum of Association

that the respondent corporation is under deep and pervasive control of the

Government of India. The activities of the respondent corporation which is

the generation and distribution of power is also an activity of great public

importance and is closely related to governmental function, policy and

planning. The indicators as have been illustrated above are decisive factors

that supports the inference that the respondent corporation is an

instrumentality of the government and therefore not only amenable to

Article 226, but is an entity or authority within the meaning of Article 12 of

the Constitution of India.

18. Coupled with the discussions above as to the characteristics of the

respondent corporation, a recent development that would reinforce the

inference, is that as per the website of the respondent corporation, it is now

shown that NEEPCO is a wholly owned subsidiary of NTPC (National

Thermal Power Corporation) Limited and 100% of the equity shares are now

held by NTPC Limited. This observation is made in view of the fact that the

NTPC Limited as reflected in several judgments passed by various High

Courts that being an undertaking of the Government of India it is considered

a 'State' for the purposes of Article 12 of the Constitution of India. This

view is evident even from a decision rendered as far back on 26-09-1989 in

the case of Navranglal Mittal Vs. National Thermal Power Corporation

Ltd. & Ors. passed by the High Court of Madhya Pradesh (Jabalpur

Bench) M.P.No. 4004 of 1989. The position being thus situated, the

respondent corporation (NEEPCO) for all purposes, is therefore to be

considered to be an authority within the meaning of Article 12 of the

Constitution of India.

19. Coming to the other aspect of the matter as to the nature of

employment and whether a mandamus would lie to enforce a contract of

personal service in view of the stand of the respondents that the appointment

of the petitioner constitutes a contract of personal service, in the nature of

private right and therefore cannot be specifically enforced; however, in view

of the finding that the NEEPCO as per discussions above is deemed to be a

'State' or authority under the sweep of Article 12, the exceptions to the Rule

of non-enforceability will therefore be attracted. In this context, the

employment of the petitioner though contended to be a contract of personal

service can be a subject for judicial review. In the case of K.K.Saksena

(supra), three exceptions to the Rule of non-enforceability of contract of

personal service have been laid down in para 52 of the judgment which is

quoted herein below:

"52. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely:

(i) when the employee is a public servant working under the Union of India or State;

(ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and

(ii) when such an employee is "workmen" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act.

In the first two cases, the employment ceases to have private law character and "status" to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the Labour Court/Industrial Tribunal to grant reinstatement in case termination is found to be illegal."

20. In this background therefore, it will be open for this Court to examine

the transfer order and whether the same is vitiated by malafides or arbitrary

which will involve the violation of Article 14 as well. Further, it is to be

examined whether the said transfer has been made in violation of the

Transfer Policy of the NEEPCO. This Court in the decision rendered in the

case of Devapriya Choudhury vs. Union of India & Ors. (WP(C). No. 258

of 2018) and Subir Sircar vs. North Eastern Electric Power Corporation

Ltd. & Ors. (WP(C). No. 319 of 2018) dated 27-08-2019 which were matters

involving transfer has held at para 18 as follows:

"18. Admittedly, NEEPCO is a public sector undertaking and has framed the Transfer Policy to regulate the transfer and posting of employees of NEEPCO. The Policy framed by NEEPCO cannot be said to have the status of statutory rules framed under proviso to Article 309. However, once NEEPCO has laid down well thought out norms and policy, there must be valid reasons to deviate therefrom. It is true that these guidelines do not have the force of statutory Rules, and as such they do not confer any right on the employee, but it is also equally true that since NEEPCO has laid down norms and policy for transfer and policy, there must be valid and justifiable reasons for NEEPCO to deviate from the same in any particular case of transfer and posting. The norms and policy which have been framed by NEEPCO have obviously been framed for the purpose that they be followed and naturally have not been framed for the purpose that they be violated. As such though these guidelines do not confer a right on the employee, but definitely these Guidelines cast an obligation on NEEPCO to follow these norms and policy and justify with valid reasons why the set norms and policy of transfer cannot be followed in the case of a particular employee.

The petitioner has alleged that his transfer is in violation of clause 6.2

of the Transfer Policy of NEEPCO which stipulates that an employee will

be considered for transfer from Location Category-I to Location Category-

II or vice versa or within the same category after completion of the tenure

of 4(four) years in one location. It is noted therefore, that notwithstanding

the overriding powers of the corporation as given in clause 8.1, it is

incumbent upon the respondent corporation to keep the Transfer Policy in

mind while making such decisions.

21. A more serious challenge that can be made out against the impugned

transfer order is the allegation of colourable exercise of power, arbitrariness

and malafide apart from the haste in which the transfer order was passed. It

is noted from the sequence of events that firstly, the petitioner was given a

show cause dated 11-10-2021 under the hand of respondent No.5 for

indulging in trade union activities and in the said show cause itself, reference

was also made to a verbal warning which had been given by respondent No.5

on 09-08-2021 in his office chamber. Secondly, it is noted that the petitioner

who was posted at Guwahati had then been tasked to complete an

assignment in Wah Umiam HeP Stage-III (85 MW) Mawsynram,

Meghalaya for collection of data/information and to submit the same on or

before 01-12-2021, which is evidenced by letter dated 15-11-2021.

However, the respondents issued the impugned transfer order on 26-11-2021

transferring the petitioner to Kurung Dam Site in Arunachal Pradesh even

before the allotted period given by the respondents to complete the

assignment in Meghalaya was to expire.

22. Another factor which deserves attention as contended by the

petitioner, is the collective decision of three Trade Unions in NEEPCO, to

approach this Court wherein its leaders, including the writ petitioner had

jointly filed WP(C). No. 367 of 2021 on 18-11-202,1 whereby the vires of

Rule 8(iii) which was inserted as a new provision in the North Eastern

Electric Power Corporation Ltd. (NEEPCO) Conduct, Discipline and

Appeal Rules, 1980 was put to challenge. The said Rule 8(iii) stipulates that

employees to whom these Conduct, Discipline and Appeal Rules, 1980

apply, are not to seek membership of any registered trade union or indulge

in trade union activities.

23. All the circumstances as narrated above point towards only one

possible conclusion, that is, the transfer of the petitioner was not in normal

course of his duties or in the exigencies of service. Even if the fact that the

respondent No. 5 was the petitioner's Controlling officer who had issued the

show cause notice dated 11-10-2021, apart from the verbal warning and

even if the allegation of malafide against the said respondent is disregarded

by this Court, the course of events and the very fact that the petitioner was

sought to be transferred in such a manner, can squarely be attributed to his

involvement in trade union activities, and the filing of WP(C). No. 367 of

2021 before this Court. From the action of the respondent corporation, it is

clear the impugned transfer order has been passed as a punitive measure

against the petitioner for such activities. The haste and speed in which the

transfer order was passed, also speaks volumes about the arbitrary nature of

the same.

24. As held in the case of Ajay Hasia & Ors. vs. Khalid Mujib Sehravardi

& Ors. (1981) 1 SCC 722, any arbitrary or unreasonable action of an

authority would be violative of Article 14. Para 16 which has illustrated this

principle is reproduced hereinbelow:

"16. If the Society is an 'authority' and therefore 'State' within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14. The true scope and ambit of Article 14 has been the subject matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P.

Royappa v. State of Tamil Nadu that this Court laid bare a new dimension of Article 14 and pointed out that that Article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court

speaking through one of us (Bhagwati, J.) said: [SCC p.38 : SCC (L&S) p. 200, para 85]

The basic principle which therefore informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.

This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa's case and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp.283-84, para 7)

Now the question immediately arises as to what is the requirement of Article 14: What is the content and reach of the great equalising principle enunciated in this Article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our

democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits...............Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.

This was again reiterated by this Court in International Airport Authority's case at page 1042 (SCC p. 511) of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an 'authority' under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non- arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution."

25. For the foregoing reasons and circumstances, without further

dwelling on any other aspects, the impugned transfer order dated 26.11.2021

passed by the Respondent No.4 being found to be arbitrary and

unsustainable, is hereby set aside and quashed.

26. The writ petition is accordingly allowed and disposed of, however,

leaving the parties to bear their own costs.

Judge

Meghalaya 12.05.2022 "Samantha PS"