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2006 DIGILAW 164 (KAR)

R. SRINIVASAN v. NATIONAL BUILDINGS CONSTRUCTION CORPORATION LTD

2006-02-14

CYRIAC JOSEPH, MANJULA CHELLUR

body2006
CYRIAC JOSEPH, C. J. ( 1 ) THIS appeal is filed against the judgment dated 20th December 2005 in W. P. No. 26883/2005 which was dismissed by the Learned single Judge. The appellant is a project executive (Civil) in the Nation buildings Construction Corporation Limited (first respondent ). The immediate provocation for filing the writ petition is Annexure-'h', 'k' and 'l' orders. As per Annexure-'h' order dated 2-11-2005, the appellant was transferred from the Zonal office, bangalore to the Water distribution Project, Port Blair, Andaman and Nicobar Islands with immediate effect and he was directed to report for duty at Port Blair, immediately and in any case not later than 15. 11. 2005. As per annexure-'k' order dated 19. 11. 2005, the appellant was informed that since he had not reported for duty at port Blaire and remained on unauthorised absence the competent authority had decided to relieve him from the Zonal Office, Bangalore on the afternoon of 19. 11. 2005 with instruction to report for duty at port Blaire. As per Annexure-'l' order dated 6. 12. 2005, the appellant was advised once again to report for duty at the new place failing which action as deemed fit would be taken as per NBCC (Disciplinary and Appeal)Rules, 1993. In the writ Petition, the main prayer was for quashing the above mentioned orders Annexure-'h', 'k' and 'l'. There was also a prayer for directing the respondents to consider the request of the appellant for voluntary retirement and permit him to retire from service. The writ petition was dismissed at the admission stage holding that no interference was called for with the impugned transfer. However, the prayer of the petitioner for a direction to the respondents to consider his request for voluntary retirement and to permit him to retire from service was not considered by the Learned Single Judge. Aggrieved by the rejection of the writ petition, the petitioner has filed the present appeal. ( 2 ) EVEN though the writ appeal has not been admitted a counter statement has been filed on behalf of the respondents. ( 3 ) WE have heard the Learned Counsel for the appellant and the learned Counsel for the respondents. ( 4 ) IN paragraphs 4, 5 and 6 of the counter statement, the respondents have justified the impugned transfer in the following words: "4. ( 3 ) WE have heard the Learned Counsel for the appellant and the learned Counsel for the respondents. ( 4 ) IN paragraphs 4, 5 and 6 of the counter statement, the respondents have justified the impugned transfer in the following words: "4. The Respondent Corporation was entrusted with the construction of such a Project to facilitate clean drinking water to the people of Port Blair. It would be pertinent to mention that Port Blair was badly effected by the Killer Tsunami in 2004, the catastrophe had damaged the water treatment facility of the city and the need to provide drinking water was prioritised after the effects of the Tsunami. Accordingly, under the said sanction of the project, the Corporation commenced work in October 2005 and the same was to he completed within one year. The Corporation has commenced work under a Deputy general Manager and the requirement for a Project executive/engineer had arisen. ( 5 ) THE Respondent Corporation in its South Zone had seven (7) Project Engineers, the details according to their seniority have been mentioned hereunder: a) Mrs. T. Chandravandana was posted on 23. 12. 1985 at the Zonal Office, Bangalore; b) Mr. R. Srinivasan was posted on 2. 3. 1987 at bangalore and has been transferred to Port Blair vide an Order dated 2. 11. 2005; c) Mr. Basavaraju was posted on 4. 2. 1998 at Kochi and is under transfer to Gangtok; d) Mr. D. B. Chakraborthy was posted on 30. 3. 1999 at Hyderabad and is under transfer to Vijay wada; e) Mr. Waseem Ahmed was posted on 6. 4. 2000 at chennai; f) Mr. Kalaimani was posted on 19. 8. 2000 at thirunelveli; g) Mr. P. K. Samanta was posted on 20. 6. 2005 at thirupati. It would be pertinent to mention that as a matter of policy, the Corporation transfers its senior-most project engineer. In the instant case, though the senior-most project Engineer is Mrs. T. Chandravandana, the company as a matter of policy, does not transfer women officers outside the place of posting. Hence, Mr. Srini vasan being the next senior-most in the said cadre was transferred to Port Blair as an Organisational requirement and an Administrative Exigency. In the instant case, though the senior-most project Engineer is Mrs. T. Chandravandana, the company as a matter of policy, does not transfer women officers outside the place of posting. Hence, Mr. Srini vasan being the next senior-most in the said cadre was transferred to Port Blair as an Organisational requirement and an Administrative Exigency. ( 6 ) THE Respondent Corporation submits that under the terms attached to the letter of appointment, clause-7 states as follows: "you will be required to serve in any part of India or abroad according to the requirements of the corporation. "a copy of the said letter of appointment and the terms and conditions of appointment are produced herewith and marked as Annexure R-1. Under the said circumstances, the Respondent corporation had transferred the Appellant to port Blair vide an office Order bearing No. 209/2005 dated 02. 11. 2005 produced at Annexure-'h'. Under the said order, the appellant was instructed to report for duty at his place of posting by 15. 11. 2005. The Appellant however, did not attend to duties from 9. 11. 2005 and remained unauthorisedly absent. Hence, the corporation had issued a telegram dated 10. 11. 2005 and 16. 11. 2005 calling upon the appellant to report for duty immediately in order to hand over the charges held by him and to be relieved from the Zonal Office, bangalore and to report for duty at Port Blair on 19. 11. 2005, Since the Appellant continued to remain absent unauthorisedly, the Corporation on 19. 11. 2005 issued an office Order bearing No. 215/2005 in which the Corporation had relieved the Appellant of his charges at bangalore and had directed him to report to Port Blair. Thereafter, the appellant had submitted Medical certificates obtained from the Government Hospital requesting for leave on medical grounds from 9. 11. 2005 to 18. 11. 2005 and further extended to 4. 12. 2005. " 5. In view of the above quoted averments in the counter affidavit of the respondents, we are satisfied that the impugned transfer of the appellant was in the exigencies of service and for administrative reasons. The appellant has not pointed out any violation of any statutory provisions. The impugned transfer does not involve infringement of any fundamental right of the appellant. There is not even any violation of any guidelines or policy formulated by the respondents for transfer of its employees. The appellant has not pointed out any violation of any statutory provisions. The impugned transfer does not involve infringement of any fundamental right of the appellant. There is not even any violation of any guidelines or policy formulated by the respondents for transfer of its employees. In such circumstances, the challenge against the transfer is bound to fail and the Learned Single judge was justified and right in rejecting the contentions of the petitioner appellant against the impugned transfer. We are also not impressed by the allegation that the impugned transfer was vitiated by malafides. We do not find any material to substantiate the allegation that the impugned transfer was provoked by the action of the petitioner in submitting an application for voluntary retirement from the service of the appellant. The reasons and circumstances which persuaded the respondent to transfer the petitioner have been explained in the counter affidavit filed on behalf of the respondents. We do not find any valid or sufficient reasons to reject the contentions in the counter affidavit. 6. However, Learned Counsel for the appellant is right in contending that the respondents were bound to consider the appellant's application for voluntary retirement submitted on 26. 5. 2005 (Annexure-'g') and that the Learned Single judge ought to have at least directed the respondents to consider the said application in accordance with law. Regarding the request of the appellant for voluntary retirement, the respondents have contended as per annexure-R, 4- Voluntary Retirement scheme that it is the prerogative of the competent authority to accept or reject the application for voluntary retirement. It is contended that a scheme for voluntary retirement by itself does confer any right on an employee to have his request for voluntary retirement accepted by the Management. It is further stated that the discretion to accept or reject the request vested with the competent authority based on the administrative exigencies/organisational requirement etc. The respondents have also denied the claim of the appellant that he is unable to attend the duty because of his health and that he has to attend to his aged parents. ( 7 ) CLAUSE 6. 4 of Annexure-R. 4-NBCC voluntary Retirement scheme 1988, reads thus: "notwithstanding any of the aforesaid provisions, the scheme does not confer any right on an employee to have his request for voluntary retirement accepted by the Management. ( 7 ) CLAUSE 6. 4 of Annexure-R. 4-NBCC voluntary Retirement scheme 1988, reads thus: "notwithstanding any of the aforesaid provisions, the scheme does not confer any right on an employee to have his request for voluntary retirement accepted by the Management. Management will have full discretion to accept or reject the request from any employee for voluntary retirement for reasons to be recorded in writing depending upon exigencies of work and the organisational requirement. " even though the Management has the discretion to accept or reject the request from an employee for voluntary retirement, the Management is bound to consider and pass appropriate orders on the application of the employee within a reasonable time. If the request is being rejected, the Management is bound to state the reasons for rejecting the request. While taking a decision on a request for voluntary retirement, the Management cannot take the decision in an arbitrary manner. The Management is bound to consider the objectives stated in the NBCC Voluntary Retirement Scheme, 1988. One of the objective mentioned in clause 4 of the scheme is "to provide motivation to the employees to voluntarily retire from the service of the Corporation and thereby reduce the establishment cost in the long run. " In the present case, it is not disputed that the petitioner had submitted annexure-'g' application requesting for voluntary retirement. It is also not disputed that no reply has so far given to the appellant in the matter. More than 8 months have passed after the submission of annexure-'g' application. In our view, there has been an undue delay in taking a decision on Annexure-'g'. application of the appellant. Hence, the appellant is entitled to the relief of directing the respondents to consider Annexure-'g' application and take a decision in accordance with law within a reasonable period. ( 8 ) HENCE, the appeal is disposed of in the following terms: i) The Challenge against the impugned transfer is rejected. ii) The respondents are directed to consider Annexure-'g' application dated 26. 5. 2005 submitted by the petitioner as expeditiously as possible and at any rate within a period of one month from to-day. In taking the decision in the matter the respondents shall bear in mind the observations made above and also the provisions of Annexure-R. 4-Scheme.