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2015 DIGILAW 106 (JHR)

Peter Anand Kumar Ekka v. MECON Limited

2015-01-27

SUJIT NARAYAN PRASAD

body2015
Order In this writ petition, the petitioner has challenged the order dated 14.11.2014, whereby the period of his temporary transfer has been extended up to 14.5.2015, on the ground that the same is contrary to the provisions, as contained under Rule 14.2 under Chapter XIV of the Mecon Limited Employees Service Rules. 2. The brief facts of the case, as has been argued on behalf of the petitioner, is that the petitioner was serving as a Senior Design Engineer (Inspection) under the respondents-Mecon. He was transferred on 31.10.2012 with a direction to report for duty to the Deputy General Manger, In-charge, Mecon, Mumbai for a period of one year. 3. The said order was assailed by the petitioner in W.P(S) No. 7973/2012, which was disposed of by this Court directing the Chairman-cum-Managing Director, Mecon Limited, Ranchi to consider the petitioner’s request afresh in the light of the medical advice and other documents on record and pass appropriate reasoned order. 4. In pursuance of the order dated 12.2.2013 passed in W.P.(S) No. 7973/2012, an order had been passed under the signature of the General Manger (P&A), Mecon Limited, Ranchi on 30.9.2013 by which in the light of medical reports and other related documents, the petitioner was asked to report for duty at his place of posting at Mecon Limited, Mumbai for discharging the desk work duty in view of his physical condition. 5. The respondents-Mecon had again passed an order on 11.11.2013 by which the period of temporary transfer of the petitioner had been extended up to 14.5.2014. 6. The said order had again been challenged by the petitioner in W.P.(S) No. 7121/2013 and this Court had directed the respondents to reconsider the matter relating to extension of temporary transfer, if necessary, by constituting another Medical Board to examine his present status of health. 7. In pursuance of the order dated 25.2.2014 passed in W.P.(S) No. 7121/2013, the petitioner was examined at RIIMS, Ranchi and a report to that effect was submitted in a sealed cover. It had been opined by the Medical Board that the petitioner is fit for regular duty including the field work, though he requires close supervision of his medical treatment by a physician/cardiologist and diabetologist. 8. It had been opined by the Medical Board that the petitioner is fit for regular duty including the field work, though he requires close supervision of his medical treatment by a physician/cardiologist and diabetologist. 8. After taking into consideration the fact that the petitioner has not completed 12 months of his duty at Mumbai, this Court had declined to interfere and accordingly the writ petition was dismissed. 9. The respondents-Mecon had again issued an order dated 23.4.2014 by which again temporary transfer of the petitioner had been extended up to 14.11.2014. 10. The petitioner, without challenging the order dated 23.4.2014, had continued at Mumbai and on the date when one year was to be completed, a fresh order had been issued on 14.11.2014 by which the period of temporary transfer of the petitioner has been extended up to 14.5.2015. 11. The petitioner, being aggrieved by the order dated 14.11.2014, has approached this Court by filing this writ petition. 12. The main grievance of the petitioner is that the order dated 14.11.2014 is contrary to Rule 14.2 of the Mecon Limited Employees Service Rules, in which the provision has been made for temporary transfer for a period of 12 months. The respondents-Mecon cannot deviate from the provisions made in Rule 14.2. 13. Further ground has been taken that the impugned order of temporary transfer is malafide. The petitioner had made a complaint before the Jharkhand State Consumer Disputes Redressal Commission, Ranchi being Consumer Complaint No. 13/2003 wherein the order of compensation had been passed in favour of the petitioner. The same had been challenged by the respondents-Mecon before the National Consumer Disputes Redressal Commission, New Delhi in First Appeal No. 501/2012, wherein the Commission had directed the respondents-Mecon to deposit 50% of the awarded amount within four weeks. Thereafter, the respondents-Mecon had pressurized the petitioner to withdraw the complaint case and when the petitioner had refused to do so, in retaliation, the petitioner had been transferred to Mumbai and time and again the period of temporary transfer is being extended. 14. The respondents-Mecon has filed a detailed counter affidavit. It has been submitted that the petitioner has been transferred at Mumbai for performing specific work of the Management. 14. The respondents-Mecon has filed a detailed counter affidavit. It has been submitted that the petitioner has been transferred at Mumbai for performing specific work of the Management. Since the petitioner is holding the post of Senior Design Engineer, his experience is very much required for inspection of the product material to be supplied to the Mecon Limited and he was selected for the said work and accordingly he was posted initially for a period of one year on 31.10.2012 at Mumbai, but the petitioner had not performed the assigned duty, rather time and again he had taken leave in one pretext or the other, specially on the medical ground, and due to that reason, the work for which he had been posted at Mumbai, has not yet been completed. 15. Learned counsel for the respondents-Mecon has submitted that till date the petitioner has completed only four months and due to not attending the office on the ground of sanctioned leave and litigation, the assigned work has not yet been completed. Hence, the period of temporary transfer has been extended vide order dated 14.11.2014 till 14.5.2015. 16. It has been further submitted that Mecon India Limited is supposed to give the consultancy services and for that, high quality of Design Engineer is required for imparting the consultation. The petitioner being a Senior Design Engineer has been chosen for the purpose of inspection of the product material. The Mecon India Limited being an employer has got every right to assess as to which place the petitioner is to be posted. Even in the Mecon Limited Employees Service Rules, under Chapter XIV, the provision has been made that an employee can be posted anywhere in the country. 17. Heard the parties, perused the record. 18. The petitioner is a Senior Design Engineer and he was temporarily transferred vide order dated 31.10.2012 for inspection of product material, as according to the respondents-Mecon, the petitioner is an efficient Senior Design Engineer. The petitioner had challenged the order dated 31.10.2012 in W.P.(S) No. 7973/2012 and vide order dated 12.2.2013 passed therein, the Chairman-cum-Managing Director of Mecon Limited, Ranchi was directed to pass an order, but until the final order is passed, the petitioner shall not be relieved, if not already relieved. Accordingly, the petitioner had not been relieved. The petitioner had challenged the order dated 31.10.2012 in W.P.(S) No. 7973/2012 and vide order dated 12.2.2013 passed therein, the Chairman-cum-Managing Director of Mecon Limited, Ranchi was directed to pass an order, but until the final order is passed, the petitioner shall not be relieved, if not already relieved. Accordingly, the petitioner had not been relieved. The Chairman-cum-Managing Director had passed an order on 30.9.2013 asking the petitioner to discharge the desk work duty, but the petitioner had not given his joining even after the order dated 30.9.2013, rather the petitioner had given his joining on 6.11.2013 at his transferred place of posting, as such he had not completed 12 months period from the date of his original transfer and accordingly the Management had extended the period of temporary transfer up to 14.5.2014. The petitioner again challenged the said order in W.P.(S) No. 7121/2013 and vide order dated 25.2.2014, an interim order had been passed for not taking any coercive step against the petitioner. W.P.(S) No. 7121/2013 had finally been dismissed on 3.4.2014 on the ground that the petitioner had not completed 12 months period from the date of his original transfer, as such vide order dated 23.4.2014, the period of temporary transfer had again been extended up to 14.11.2014. The petitioner had given his joining on 28.4.2014, but he had worked only about four months staying away from the office station for 14 days in June/July 2014, 3 days in August 2014, 14 days in September 2014 and 13 days in October 2014. Thus, from 28.4.2014 the petitioner had stayed and worked at Mumbai for only about four months during the entire period of deputation. Hence, he has not completed one year of service. Specific averment to that effect has been made by the respondents-Mecon at Paragraph 35 of the counter affidavit, which is being quoted hereinbelow: “That as regard the statements made in para 36 of the writ petition, it would not be out of place to mention here that since first order of transfer, the petitioner this way or that way has taken several leaves and tried to live at Ranchi itself not doing his assigned work at Mumbai which delayed the project of the Company. The petitioner has not been carrying out his work diligently or sincerely at Mumbai resulting in non-completion of work. The petitioner has not been carrying out his work diligently or sincerely at Mumbai resulting in non-completion of work. Ever since 06.11.13, when the petitioner stay for a few days at Mumbai but hardly did any work he resumed duty at Mumbai on 28.04.14 and since then in the next about 6 and ½ months till November 2014, he had worked there for only about four months staying away from the office station for 14 days in June/July 2014, 3 days in August 2014, 14 days in September 2014 and 13 days in October 2014. Thus, it is clear that the period of only 6 and ½ months have elapsed since the petitioner reported at Mumbai on 28.4.2014 and out of this, the petitioner had stayed and worked at Mumbai for only about 4 months during the entire period of deputation as against is own averment that his temporary transfer should be valid for period of stay of one year.” 19. The petitioner has filed rejoinder to the counter affidavit wherein specific paragraph-wise reply has been given, but the statements made by the respondents-Mecon at Paragraph 35 of the counter affidavit have not been controverted. Thus, the petitioner has not completed one year service at Mumbai and due to that reason, the work for which he had been deputed at Mumbai for a period of one year, could not be completed and accordingly the respondents-Mecon has passed an order on 14.11.2014 extending the period of temporary transfer up to 14.5.2015. 20. The petitioner is placing reliance upon Clause 14.2, as contained in Chapter XIV, which deals with temporary transfer, which is quoted herein below: “14.2.1 If the services of an employee are required at a place other than his Headquarters, he will be deputed to outstation either on tour or on temporary transfer depending on the duration of the requirement of his services at the new location. If the requirement of services of an employee at outstation is not expected to exceed 90 (Ninety) days, he will be sent on tour. 14.2.2 In case the requirement for outstation duty is likely to exceed 90 days but not more than 12 months, the employee shall be transferred to the new location on temporary transfer. During the temporary transfer, the employee will be entitled to the following benefits.” 21. 14.2.2 In case the requirement for outstation duty is likely to exceed 90 days but not more than 12 months, the employee shall be transferred to the new location on temporary transfer. During the temporary transfer, the employee will be entitled to the following benefits.” 21. Thus, from perusal of the provisions contained in Clause 14.2, it is clear that the respondents-Mecon has got power to depute its employees/officers to outstation in case of requirement of their services. Specific provision has been made under Clause 14.2.1 that if the services of an employee are required at a place other than his Headquarters, the respondents-Mecon has got every right to transfer its employees on the basis of the service required. 22. If the purpose for which the petitioner had been deputed at Mumbai has not yet been completed, the respondents-Mecon cannot be blamed for that, rather the conduct of the petitioner is to be blamed because he has not performed his duty sincerely at Mumbai and due to that reason, the work for which he had been deputed at Mumbai has not yet been completed, as has been stated by the respondents-Mecon in the counter affidavit and that is the reason, the respondents-Mecon has exercised its power extending the period of temporary transfer up to 14.5.2015. Moreover, the petitioner has not completed one year of deputation, as has been stated hereinabove. 23. So far as the contention of the petitioner that the action of the respondents-Mecon is arbitrary and malafide, the same cannot be accepted because the petitioner had pursued his case before the National Consumer Disputes Redressal Commission, New Delhi, which has got no concern with the issue of transfer. However, the same has not been taken as a ground in the writ petition. Further, the petitioner had not approached the respondents-Mecon for sympathetic consideration of his grievance and had directly moved this Court. 24. The law is well settled that under Article 226 of the Constitution of India, this Court cannot judicially review the administrative decision of the Management regarding transfer of its employees, otherwise it would amount to interference in the administrative decision of the Management. 25. In this regard, reliance may be placed upon the judgment rendered by the Hon’ble Apex Court in Shilpi Bose (Mrs.) Vs. 25. In this regard, reliance may be placed upon the judgment rendered by the Hon’ble Apex Court in Shilpi Bose (Mrs.) Vs. State of Bihar, reported in 1991 Supp (2) SCC 659, wherein at Paragraph 4 it has been held as follows: "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders." 26. Further reliance may be placed in the judgment rendered by the Hon’ble Supreme Court in Union of India Vs. S.L. Abbas, reported in (1993) 4 SCC 357 , wherein at Paragraph 7, it has been held as follows: "7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right." 27. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right." 27. In view of the settled proposition of law, as has been held by the Hon’ble Apex Court in the decisions cited herein above, it is evident that the petitioner had been transferred on temporary basis as per requirement of his experience and admittedly due to his conduct, the work for which he was deputed, has not yet been completed, as most of time he was absent from duty at Mumbai and as such the respondents-Mecon has taken a decision to extend the period of his temporary transfer up to 14.5.2015. Thus, the respondents-Mecon is competent enough to take decision in this regard and this Court cannot interfere with the decision making process in the matter of transfer, unless it can be shown as malafide. 28. On the basis of the documents on record, I find that there is no malafide approach of the respondents-Mecon because after conclusion of the first round of litigation, the petitioner had been asked to discharge the desk work duty in view of his physical condition, as would be evident from the order dated 30.9.2013 and whenever the petitioner had made applications for grant of leave/half leave, the same had been entertained and also granted. The said action of the respondents-Mecon cannot be said to be arbitrary and suffering from any malafide approach. 29. In view of the above discussions and in the facts and circumstances stated herein above, I find no merit in this writ petition. 30. This writ petition is, accordingly, dismissed.