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Madhya Pradesh High Court · body

1998 DIGILAW 939 (MP)

Ravi Pratap Singh v. Chairman, BHEL

1998-12-02

C.K.PRASAD

body1998
ORDER 1. By this writ petition filed under Article 226 of the Constitution of India, petitioner seeks quashing of the order dated 27.8.1998 whereby he has been transferred from the post of General Manager (Co-ordination) BHEL, Bhopal as General Manager/Product Manager (Switch-gear) at Hyderabad. 2. Petitioner joined the service of the respondent company at Bhopal as a Graduate-Apprentice on 31.1.1968 and was subsequently absorbed as Manufacturing Engineer. Petitioner earlier aggrieved by his supersession and denial of promotion to the post of Senior General Manager/Additional General Manager filed Misc. Petition No. 342/93 before this Court. By order dated 20.4 .1996 the petition was allowed and direction was given to convene special meeting of the Departmental Promotion Committee to consider the case of the petitioner for his promotion to the higher grade. While doing so, this Court quashed, down grading of the A.C. Rs. of the petitioner for the year 1988 to 1994. Bharat Heavy Electricals Limited (hereinafter referred to as the Employer) preferred Letters Patent Appeal No. 88/96 against the aforesaid order and a Division Bench of this Court, by its order dated 3.12.1997 disposed of the appeal and modified the order of the learned Single Judge. While doing so, it directed that the ACR of the petitioner for the year 1988-89 be written and adverse AC Rs. for the year 1990-91 be communicated to him and thereafter his representation be invited. This Court further directed that the authority concerned shall consider whether to retain or expunge the same. This Court, also observed that since the petitioner is President of the Executive Officers Association and he was taking interest in the administration, he seems to have incurred the wrath of high ups. 3. Alleging non compliance of the judgment rendered in the LPA petitioner filed Contempt Petition No. 165/96 and 139/97. Both contempt petitions were disposed of by order dated 3.12.1997. In the said contempt petition Dr. R.K.D. Sah, Shri Ram Murthy and Mr. R.C. Agrawal were impleaded as contemners. This Court by its common order dated 3.12.1997 held the contemners guilty and gave opportunity to them to purge the contempt. While holding the contemners guilty for contempt, this Court found that the respondents have over-reacted against the petitioner by communicating him again all the ACRs and superseding him again under the Review DPC convened for reconsideration of his case under the orders of this Court. While holding the contemners guilty for contempt, this Court found that the respondents have over-reacted against the petitioner by communicating him again all the ACRs and superseding him again under the Review DPC convened for reconsideration of his case under the orders of this Court. This Court further found force in the submission of the petitioner that a vindictive attitude was adopted by the contemners only because the petitioner mustered courage to high light the illegalities of Shri Saraf as President of the Housing Society and filed a writ petition against his alleged illegal supersession. It further found that the petitioner had not received a fair consideration and the contemners have tried to over reach or circumvent the judgment of this Court. Ultimately, the petitioner was promoted as General Manager (Co-ordination) by the employer, w.e.f. 25.6.94. 4. Petitioner has further stated that he being the President of the Executive Officers Association high lighted the anomalies in plot distribution of prime land) of the employer in Bhopal, which resulted into the inquiry being ordered by the Chief Minister of M.P. and allotment of plots and membership of society of various senior officers were cancelled. This according to the petitioner has given rise to heart-bums among the senior echelons of the management as they 1 could not twist and turn the rules for their advantage and benefit. Petitioner asserts that on account of the same there was organised conspiracy to side line him. 5. It is relevant here to state that by the impugned order the petitioner has been transferred to Hyderabad and respondent No.6 had joined at Bhopal, i.e. the place from where the petitioner was transferred. Respondent No.6 was transferred from Bhopal 12 months back and the petitioner asserts that he had requested to be retained at Bhopal. It has been further stated that respondent No., 6 has worked in different capacity in Switch-Gear planning and manufacturing unit and as such he is an expert in Switch Gear, whereas the petitioner has no such experience. In view of the aforesaid assertion, petitioner submits that respondent No. 6 is the best person for the post of General Mariager (Switch Gear) to which post the petitioner has been transferred. He also asserts that he has no experience in the said field. In view of the aforesaid assertion, petitioner submits that respondent No. 6 is the best person for the post of General Mariager (Switch Gear) to which post the petitioner has been transferred. He also asserts that he has no experience in the said field. It is further assertion of the petitioner that no post of Additional General Manager (Switch Gear) exists at Hyderabad where he has been transferred and as such, his transfer has been effected to a non-existing post and therefore, illegal. 6. Petitioner has further stated that as a member of the DPC for promotion of Managers to Senior Managers objected to giving marks by pencil and grading in letters A, B, C. His further assertion is that the gradings given by members were erased and fresh favourable gradings against the name of favoured candidates were awarded. Petitioner has further averred that he has high lighted the irregularities committed in AC Rs. evaluation and asked for investigation of the case of K.N. Nair who according to him committed irregularity by paying Rs. 10,000/- to an employee to withdraw the case. Petitioner has given in details the manner in which he dealt with the matter in relation to the evaluation of the merits of the candidates by the DPC, but in view of the fact that any comment on the same in this proceeding shall have beating on the promotions made, it is not necessary to incorporate the various assertions made by the petitioner in this regard. Suffice it to say, that according to the petitioner he objected to the manner in which evaluation of the candidates were made. 7. On the basis of the aforesaid pleadings, the petitioner terms the order of his transfer to be malafide. He further contends that he had been transferred to Hyderabad to accommodate respondent No.6. His stand is that respondent No.6 is best suited for the post of General Manager/Product Manager at Hyderabad. His further grievance is that no post of General Manager exists at Hyderabad and hence he has been transferred to a non-existing post. 8. Respondents in the return have denied the assertion of the petitioner that the order of transfer is actuated with malafide. In the return it has been stated that organisational changes are made from time to time depending on the organisational interest and for that purpose a meeting of the Directors was held on 20.6.1998. 8. Respondents in the return have denied the assertion of the petitioner that the order of transfer is actuated with malafide. In the return it has been stated that organisational changes are made from time to time depending on the organisational interest and for that purpose a meeting of the Directors was held on 20.6.1998. The said meeting was attended by the Acting Chairman and Managing Director, Director (Product), Director (Finance), Director (Industrial system) and Products), Director (Engineering Research and Development) and Director (Personnel). It has been further averred that the matter was discussed with the Units Executive Directors during their visit to Corporate Office at New Delhi on 23rd and 24th June 1998. When a formal proposal of organisational changes at General Manager level was being put up, it was learnt that the petitioner has filed contempt petition No. 127/98 in which on 22.6.1998 this Court directed for personal appearance of the Executive Director, Bhopal. Accordingly it was decided .that orders in respect of the petitioner and respondent No.6 would be issued after the order is passed by the High Court. Re-organisation proposal involved transfer/re-allocation of responsibilities of ten General Managers in Bhopal, four in Haridwar, one General Manager in Corporate Office and four General Managers in Tiruchi unit. 9. This Court by order dated 20.8.1998 passed in Contempt Petition No. 127/98 made it clear that the transfer of the petitioner is not an issue in the contempt petition and the management is at liberty to take decision in the matter of transfer. Ultimately, transfer order of the petitioner was issued on 27.8.1998 transferring him to BHEL, Hyderabad as General Manager/Production Manager (Switch Gear) and respondent NO.6 to Bhopal as General Manager (Co-ordination). 10. Shri Ravindra Shrivastava appearing on behalf of the petitioner submits that the transfer of the petitioner by order dated 27.8.1998 is actuated with malafide. He submits that any order actuated with malafide is illegal. According to the learned counsel as this Court held persons guilty in the contempt petition, impugned order of transfer has been passed. He further submits that the management is annoyed with the petitioner as he being the President of the Executive Officers Association has high lighted bungling in the distribution of land of BHEL. According to the learned counsel as this Court held persons guilty in the contempt petition, impugned order of transfer has been passed. He further submits that the management is annoyed with the petitioner as he being the President of the Executive Officers Association has high lighted bungling in the distribution of land of BHEL. He further submits that as the petitioner raised objection to the manner in which DPC proceedings were conducted, in order to keep out the petitioner from the scene, he has been transferred. It is the stand of the petitioner that order of transfer shall prejudicially affect his future prospects. It is further contended that petitioner has no experience to the post to which he has been transferred and respondent No.6 is most suitable person. Transfer is further sought to be faulted on the ground that the petitioner 'has been transferred to a non-existent post. 11. Mr. Tankha appearing on behalf of respondent 1 to 5 contends that, in case the earlier action of the management has been held to be bad, on one count or the other, it cannot be inferred that all subsequent actions of the management are malafide. He further submits that none of the persons who were arrayed as contemners in the contempt petition are continuing in the company and the present Board consists of altogether new persons. Accordingly his submission is that the' present members of the Board have no bias at all so far as the petitioner is concerned and their action in transferring the petitioner cannot be held to be malafide. Mr. Tankha further submits that merely the petitioner objected to the manner in which DPC proceedings were recorded, it cannot be said that he has been transferred in order to keep him out from the scene. It is his stand that difference in perception amongst officers is one of the known things and merely the fact that the petitioner on certain occasion deferred with other officers, cannot lead to the conclusion that his order of transfer has been made malafide. Mr. Tankha further submits that it is for the management to assess the person who is best suited for a particular job and its opinion cannot be substituted by this Court, unless the same is arbitrary or malafide. Mr. Tankha further submits that it is for the management to assess the person who is best suited for a particular job and its opinion cannot be substituted by this Court, unless the same is arbitrary or malafide. He has controverted the assertion made by the petitioner that the post of Product Manager at Hyderabad is a non-existing post 12. Shri Shrivastaya, in support of his submission, contends that the action of the Management in transferring the petitioner from Bhopal to Hyderabad is malafide. In support of his submission that any order passed malafide is illegal, has placed reliance on a large number of authorities. I do not have the slightest hesitation in accepting this broad submission of Shri Shrivastrava that any order passed malafide renders the same illegal and hence I consider it inexpedient to refer to the authorities. However one is required to consider as to whether the order of transfer is, in fact, malafide exercise of power. Having given my anxious consideration, I do not find it to be so. Petitioner is one of the few employees who was appointed and posted at Bhopal in the year 1968 and remained at Bhopal till before the impugned order of transfer was passed. The complexion of the Board has completely changed from the earlier Board when the petitioner filed the writ petition and the contempt petition. In such circumstances, I am of the opinion that the petitioner cannot be allowed to refer to the earlier proceeding to contend that the action of the management in transferring him to Hyderabad is malafide. He cannot be permitted• to encase the same for all times to come. I am of the opinion that the action of the management having found to be illegal in earlier proceeding will not lead to the conclusion that every subsequent action of the management is malafide. Petitioner's claim that he being the President of the Executive Officers Association and had been high lighting the distribution of land of BHEL, shall not give him the licence to continue at Bhopal for all times to come. As stated earlier, he is amongst few lucky who, right from the year of his joining in the service in the year 1986, remained there until the impugned order of transfer has been passed. As stated earlier, he is amongst few lucky who, right from the year of his joining in the service in the year 1986, remained there until the impugned order of transfer has been passed. Further, the purported objection made by him as the member of the DPC, while considering the case of promotion does not drive home the petitioner's allegation that his order of transfer has been effected on this ground. 13. As regards the submission of Shri Shrivastava that order of transfer shall have negative impact on his future prospects, it is contended that as the seniority is maintained unit-wise, by transfer, he shall become junior. Respondents have denied this assertion of the petitioner and it has been denied that seniority is maintained unit-wise. Mr. Tankha further states that case of the petitioner for promotion shall be considered in accordance with law notwithstanding the fact that he has been transferred to Hyderabad. In view of the aforesaid stand of the respondents that the seniority is not maintained unit-wise, I am of the opinion that the grievance of the petitioner is absolutely misconceived. 14. I do not find any substance in the grievance of the petitioner that although respondent No.6 is more suitable person for the post of General Manager/Product Manager (Switch-Gear) at Hyderabad than the petitioner, he has been unwisely chosen by the management for the said post. It is will settled that it is for the management to decide as to how the service of a person can be best utilised. Transfer is an incidence of service and unless the transfer has been effected malafide or in breach of mandatory statutory rule this Court does not interfere with the orders of transfer. Here in the present case, the management has decided to transfer the petitioner to Hyderabad and bring respondent No.6 to Bhopal and this cannot be interfered with by this Court on the ground that respondent No. 6 is best suited to the job at Hyderabad. It is a managerial function which does not deserve interference by this Court. I negative this submission of Shri Shrivastava. 15. Lastly, Shri Shrivastava submits that petitioner has been transferred to a non-existing post. This fact has been denied by the respondents. It is a managerial function which does not deserve interference by this Court. I negative this submission of Shri Shrivastava. 15. Lastly, Shri Shrivastava submits that petitioner has been transferred to a non-existing post. This fact has been denied by the respondents. It has been stated by the respondents that the post was held earlier by the officer of the rank of a General Manager, but for a brief period, it was not so and on this ground alone, order of transfer cannot be faulted. I am of the opinion that in a case for a brief time, officer of the rank of the General Manager not posted at the Unit at Hyderabad, this itself will not vitiate the impugned order particularly when a General Manager has been posted at the Unit earlier. I do not find any merit in this submission of Shri Shrivastava. 16. All the submissions made on behalf of the petitioner having failed, I do not find any merit in the writ petition and it is dismissed accordingly, with cost. Hearing fee Rs. 2,500/-.