Rajasthan High Court

Sunil Atolia S/O Shri Ramesh ... vs Hindustan Petroleum Corporation ... on 18 August, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 13357/2020

Sunil Atolia S/o Shri Ramesh Chandra Atolia, Aged About 51
Years, R/o Flat No. 1, Hlcp Officers Flats, Model Town, Malviya
Nagar, Jaipur (Raj.)
                                                                   ----Petitioner
                                   Versus
1.     Hindustan Petroleum Corporation Limited, Through Its
       Chairman And Managing Director, Petroleum House, 17,
       Jamshedji Tata Road, Mumbai- 400020
2.     Shri Mukesh Kumar Surana, Chairman And Managing
       Director,    Hindustan        Petroleum          Corporation     Limited,
       Petroleum House, 17, Jamshedji Tata Road, Mumbai-
       400020
3.     The Executive Director, Human Resources, Hindustan
       Petroleum Corp. Limited, Petroleum House, 17, Jamshedji
       Tata Road, Mumbai- 400020.
                                                                ----Respondents

For Petitioner(s) : Mr. Mahendra Shah, through VC For Respondent(s) : Mr. Sudhanshu Kasliwal, Sr. Adv., assisted by Ms. Sukriti Kasliwal, Adv., through VC.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

18/08/2021

1. This writ petition has been filed by the petitioner with the

following prayers :-

"In these circumstances, it is, therefore, prayed that this Hon'ble Court may be pleased to accept this writ petition and I) the impugned order dated 27.10.2020 whereby humble petitioner has been transferred to North West Zone at Ahmedabad, may kindly be declared illegal

(2 of 7) [CW-13357/2020]

and arbitrary and therefore, same may kindly be quashed and set aside.

ii) the respondents may kindly be directed by issuing writ of mandamus, order or direction in the nature thereof to continue humble Petitioner at Chief Manager-Finance and Administration at the Rajasthan Refinery Project, Jaipur with all consequential benefits.

iii) Any other order or direction which this Hon'ble Court deems just and proper in the facts and circumstances of this case may kindly also be passed in favor of the petitioner."

2. By way of the present writ petition, the petitioner has

challenged the impugned order dated 27.10.2020 whereby he has

been transferred/appointed as Chief Manager-Finance at Finance

Department, North West Zone (Ahmedabad).

3. Learned counsel appearing for the petitioner submitted that

the transfer which is impugned in the present writ petition has

been given effect only due to malafide on the part of the

respondent-Corporation as the reason behind it when the

petitioner was working as Chief Manager Finance and

Administration, HPCL Rajasthan Refinery Project at Jaipur he made

a complaint to the Chief Vigilance Commissioner, New Delhi

(hereinafter to be referred as 'CVC') on 30.09.2020 with regard to

causing loss to the Corporation by respondent no.2 i.e Chairman

and Managing Director and being annoyed thereto, the present

transfer order has been passed by the respondent-Corporation.

Counsel further submits that after the complaint being made to

the CVC, the matter is under process and if the petitioner is

transferred during the investigation, the investigation would be

affected. Counsel further submits that the persons staying for

(3 of 7) [CW-13357/2020]

more than 15 years have not been transferred and only the

petitioner has been transferred to another place. Counsel further

submits that Section 11 of the Whistle Blowers Act, 2014 provides

certain protection to the employee who files a complaint and the

action of the respondent in transferring the petitioner is in

contravention and violation of Section 11 of the Act of 2014.

Counsel for the petitioner made a reference of the complaint made

by the petitioner to CVC and more particularly para-6 & 9, which

reads as under :-

"6. C&MD HPCL and CEO HRRL in spite of being aware of this ban and in spite of this issue being repeatedly raised at various forums had been trying to cover up and going ahead with proposed configuration/design.

9. Since the Purchase Order for the unit under reference (Delayed Coker Unit) is already placed and job has already started overlooking the facts/economic viability, significant loss has already been suffered. If immediate corrective action is not taken, it may result in loss of thousands of crores which would adverse viability of the project."

4. In support of submissions, counsel for the petitioner placed

reliance on the judgments passed by the Hon'ble Supreme Court

in the matter of 2020(3) SCC 86, 2012 (4) SCC 407 and 1992

(suppl.)-1, page 222.

5. Learned Senior Counsel appearing on behalf of the

respondents opposed the writ petition and submitted that the

petitioner has been transferred due to administrative exigency in a

routine manner. Learned Senior Counsel further submits that the

petitioner is working with the Corporation at Jaipur for last 15

years. Counsel further submits that after convening the DPC as

many as 124 officers have been transferred between the period

(4 of 7) [CW-13357/2020]

from April-2020 to January-2021. Learned Senior Counsel further

submits that there is a condition in the appointment order of the

petitioner that he can be transferred/posted or assigned any

section/department/location by the Corporation anywhere in India

as is deemed necessary by the Corporation under its discretion

from time to time. Learned Senior Counsel further submits that

the petitioner is in salary grade E under officer's category and the

authority to approve transfer for officer like petitioner in salary

grade E is joint approval of concerned functional Director (Director

Finance) with Director HR and not the respondent no.2 and

therefore the respondent no.2 had no role to play and thus the

plea raised by the petitioner that his transfer order has been

passed due to malafide on account of complaint made by him to

the CVC against respondent no.2, does not stand on its own legs,

as neither the petitioner has been removed from service nor he

has been reverted to a lower post and he has been transferred to

other place only due to administrative exigency. Learned Senior

Counsel further submits that the Corporation has not violated any

order passed by the Hon'ble Supreme Court as alleged by the

petitioner and after the complaint being filed by the petitioner the

matter is under process with the CVC and the final conclusion with

regard to the allegation made by the petitioner in this writ petition

would come out after the investigation is completed by the CVC.

6. In support of his submissions, learned senior counsel relied

upon certain judgments passed by this Court at Principal Seat,

Jodhpur in the matter of Dr. Makhmal Choudhary Vs. State of Raj.,

reported in 2002 WLC (Raj.) UC 2016, Dr. Ajay Kumar Sharma Vs.

State of Raj & Ors., reported in 2003(1) WLC 438 and Surat Singh

(5 of 7) [CW-13357/2020]

Punia Vs. Rajasthan Public Service Appellate Tribunal & Ors.,

reported in 2004 (1) WLC 663.

7. Heard counsel for the parties and perused the record.

8. The Hon'ble Supreme Court in the matter of Punjab and Sind

Bank & Ors. Vs. Durgesh Kuwar, reported in AIR 2020 SC 3040 in

para-17 has held as under :-

"17. We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their submissions and to which we have already made a reference above. There can be no dispute about the position in law.

9. In another judgment the Hon'ble Supreme Court in the

matter of Rajneesh Khajuria Vs. M/s. Wockhardt Ltd. & Anr.,

reported in 2020 (3) SC 86, in para-43 has held as under :-

"43. The allegation in the complaint is that the transfer was actuated for the reason that the employee had raised voice against removal of Shri Khare from the venue of a Conference. The officers present in the said Conference were the Regional Manager or Sales Manager, whereas order of transfer was passed by Mr.

(6 of 7) [CW-13357/2020]

Suresh Srinivasan, General Manager-HR. It is an admitted fact that there is power of transfer with the employer. The allegations are against the persons present in the Conference but there is no allegation against the person who has passed the order of transfer. None of the named persons including the person present in Conference have been impleaded as parties to rebut such allegations. Since the order of transfer is in terms of the letter of appointment, therefore, the mere fact that the employee was transferred will per se not make it mala fide. The allegations of mala fide are easier to levy than to prove."

9. This writ petition filed by the petitioner deserves to be

dismissed for the reasons; firstly the plea of the petitioner that he

has been transferred due to malafide on account of a complaint

made by him to the CVC against respondent no.2, in itself is

without any foundation as the decision regarding transfer of the

officers of the category to which the petitioner belongs are taken

with the joint approval of the concerned directors and not by the

Chairman, respondent no.2 herein; secondly after the complaint

made by the petitioner the matter is under process with CVC and

merely making a complaint to the authority it cannot be said that

it is a case of malafide as the petitioner can be transferred in the

interest of the Corporation anywhere in India as there is a