Research › Search › Judgment

Himachal Pradesh High Court · body

2001 DIGILAW 388 (HP)

ROSHAN LAL v. NATHPA JHAKRI POWER CORPN.

2001-12-13

C.K.THAKKER, M.R.VERMA

body2001
JUDGMENT C.K. Thakker, CJ. (Oral) - This petition is filed by the petitioner, who is a permanent employee of Himachal Pradesh State Electricity Board, respondent No. 3 herein, (HPSEB for short) for an appropriate writ, -direction or order, quashing and setting an order dated September 20, 2001 (Annexure P-4), by which Nathpa Jhakri Power Corporation Ltd. (NJPC for short) had taken a decision to "repatriate" him to his parent department, i.e. HPSEB, w.e.f. September 30, 2001. Other reliefs have also been claimed. 2. Case of the petitioner before this Court is that he is an employee of HPSEB and he was posted on "secondment basis" in the NJPC. According to him, in accordance with the terms and conditions of secondment between HPSEB on the one hand and NJPC on the other, he could not be repatriated to HPSEB without the consent of the petitioner or in any case, without the consent or consultation with the HPSEB. Since the said action was taken without complying with the terms and conditions of secondment, the action is illegal and contrary to law. 3. Notice was issued to respondents and ad interim relief was granted, which was subsequently modified. 4. We have heard the learned Counsel for the parties. 5. Mr. R.K. Bawa, Senior Advocate, instructed by Mr. R.P.S. Thakur, contended that the action taken by NJPC is contrary to the agreement arrived at between HPSEB and NJPC. He also submitted that prior consent and in any case consultation with the HPSEB by NJPC was necessary and since it was not done, the action requires interference. He also submitted that as per the understanding arrived at between the two bodies, a cycle was to be maintained and if at the sweet will of the NJPC any person is permitted to be repatriated without consent or consultation with HPSEB, it will create several problems. So far as the petitioner is concerned, it was submitted that HPSEB is not in a position. To utilise the services by placing the petitioner on appropriate post and it would be mental harassment of the petitioner. The action is otherwise arbitrary and unreasonable and till a substitute is available, no action can be permitted. Hence, the petition deserves to be allowed by quashing and setting aside the order dated September 20, 2001. 6. Mr. To utilise the services by placing the petitioner on appropriate post and it would be mental harassment of the petitioner. The action is otherwise arbitrary and unreasonable and till a substitute is available, no action can be permitted. Hence, the petition deserves to be allowed by quashing and setting aside the order dated September 20, 2001. 6. Mr. Mittal, learned Counsel for HPSEB, submitted that even if this Court is of the view that there is no legal obligation on the part of NJPC to obtain consent, it was expected of NJPC to consult HPSEB before making an order of repatriation. At least courtesy demanded that before passing order dated September 20, 2001, NJPC ought to have taken HPSEB into confidence, when a number of persons are to be sent to HPSEB to NJPC on secondment basis. He, therefore, submitted that the action taken by NJPC cannot be said to be proper. 7. Mr. Shreedhar, on behalf of NJPC, submitted that whether the nomenclature is "deputation" or "secondment", an agreement was arrived at between two bodies and it was specifically mentioned in Clauses 3.1 that if the NJPC does not find any personnel suitable, he could be repatriated to HPSEB, which provide suitable replacement. He also submitted that even looking to the documents produced by the petitioner in the petition, there is no such right conferred either on the employee who is sent on secondment basis by HPSEB to NJPC of consent before his repatriation to the parent department, nor such consent of HPSEB is necessary. According to the learned Counsel, when a person is sent in any department other than his parent department, it is the right of that department to repatriate to parent department and neither consent nor consultation is necessary. The action taken, hence, cannot be said to be contrary to law. 8. Having heard the learned Counsel for the parties, in our opinion, it cannot be said that by passing the impugned order dated September 20, 2001, by NJPC, repatriating the petitioner to his parent department (HPSEB), any illegality can be said to have been committed. 9. Our attention was invited by the learned Counsel for the petitioner to paragraph 10 of an affidavit in reply filed on behalf of NJPC in CWP No. 276 of 1995, title Ramesh Chand and others v. Himachal Pradesh State Electricity Board and another. 9. Our attention was invited by the learned Counsel for the petitioner to paragraph 10 of an affidavit in reply filed on behalf of NJPC in CWP No. 276 of 1995, title Ramesh Chand and others v. Himachal Pradesh State Electricity Board and another. But even the said paragraph does not take the matter any further. Said paragraph reads as under:- "In reply to para 10, it is submitted that the tenure of the employees on secondment with the answering respondent is governed, by Annexures PB and PC and before they can be repatriated, respondent No. 1 is required to provide substitute of such employees who are going to be repatriated." 10. In our opinion, the action taken by NJPC is not arbitrary or violative of any of the rights guaranteed in favour of the petitioner. There is no right accrued in favour of the petitioner to continue with deputation or secondment with NJPC, nor any duty is cast on NJPC that till the consent of the petitioner or for that purpose of HPSEB is obtained or till HPSEB is consulted, no order of repatriation can be passed. It is well settled that so far as the repatriation is concerned, action can be taken by the borrowing department and if such action is taken, it cannot be termed as illegal or violative of any law. 11. Regarding agreement said to have been arrived at between the parties, prima facie, nothing has been pointed out that consent will be taken of HPSEB. Even if it is assumed that under the relevant agreement such consent or consultation is necessary, in our considered view, such questions are ordinarily not gone into in exercise of extra-ordinary jurisdiction of this Court under Article 226 of the Constitution. If HPSEB is aggrieved by any action said to have been taken against an agreement arrived between the parties, namely, HPSEB and NJPC, it is open to HPSEB to take appropriate proceedings in accordance with law. 12. Similarly, if the petitioner is aggrieved by non-placement by HPSEB after his repatriation fro NJPC to the parent department, i.e. HPSEB, it is open to him to take appropriate proceedings in accordance with law and we may not be understood to have expressed any opinion on that aspect as well. 13. 12. Similarly, if the petitioner is aggrieved by non-placement by HPSEB after his repatriation fro NJPC to the parent department, i.e. HPSEB, it is open to him to take appropriate proceedings in accordance with law and we may not be understood to have expressed any opinion on that aspect as well. 13. For the reasons aforesaid, in our opinion, no case is made out for exercising extra-ordinary writ jurisdiction under Article 226 of the Constitution. The petition deserves to be dismissed and is accordingly dismissed. Notice discharged. No costs. CWP No. 1435 of 2001 14. In view of the order passed in the main matter, this CMP is also dismissed. Ad interim relief granted earlier stands vacated.