S.E. Nagesh vs National Thermal Power Corporation Limited and Others

The petitioner while serving as Senior Foreman Grade S-4 was promoted to the cadre of Executive Grade of E-l vide proceedings of the respondent Company with effect from 1-1-1995 and he was posted to Kahalgaon Super Thermal Power Project, Kahalgaon, Bihar State. On 26-6-1995 the petitioner made a representation to the respondents 1 and 3 for his retention at Ramagundam on the ground mat his wife was serving as pharmacist in the hospital run by the Management of Singareni Collieries Co., Ltd., The representation of the petitioner was rejected on 28-7-1995. At that juncture, this writ petition was filed seeking a writ in the nature of mandamus declaring the action of the respondents in transferring the petitioner to Kahalgaon Super Thermal Power Project, Bihar State as illegal and for a consequential direction to the respondents to place the petitioner in Executive GradcofE-1 with effect from 1-1-1995 on par with others and retain him at Ramagundam project with all consequential benefits. The petitioner foregoing the promotion continued to work at Ramagundam in the cadre of Senior Foreman Grade S-4. Again, in the year 1996 the petitioner came under the zone of consideration for promotion to the Executive cadre ana by the proceedings of the respondent - Company dated 13-6-1996 he was promoted to the Executive Cadre in Grade E-1 with effect from 1-1-1996 and he was posted to Talchar in Orissa State. Being aggrieved by the transfer of the petitioner to Talchar W.P.M.P. No. 19676/96 was filed on 22-11-1995. This Court on 9-8-1996 in W.P.M.P.No. 19676/96 directed the respondent-Company to retain the petitioner at Ramagundam. Accordingly, the Company-Management issued the proceedings on 13-8-1996 and retained the petitioner at Ramagundam to obey the interim direction. That interim order is still in operation.

Assailing the validity of the impugned action, Sri G. Vidyasagar, the learned Counsel for the petitioner would contend that along with the petitioner in the year 1995 and 1996 as many as 17 others were promoted to the Executive- Grade of E-l; only two including the petitioner were sent out of Ramagundam and this action of the Management of the Company tantamounts to invidious discrimination and violative of Article 14 postulates; that the Company-Management chose to retain those officers promoted to the Executive Grade of E-l at Ramagundam whereover the spouses of such officers were employed in Ramagundam and herein again the Company-Management has practised discrimination; that the petitioner before he was promoted to the Executive Grade of E-l with effect from 1-1-1996 was an office bearer of the N.T.P.C. Unit employees Union and ultimately would contend that for the afore-mentioned grounds, the impugned action of the Management of the respondent-Company in transferring the petitioner to Talchar in Orissa State is illegal.

I have noted the above submissions of the learned Counsel for the petitioner only for the purpose that the learned Counsel should not think that the submissions made by him were not noticed by the Court. Even assuming that the factual submissions made by the learned Counsel for the petitioner are true and correct, even then on that count a transfer order cannot be nullified. The Supreme Court in Mrs. Shilpi Bose and others Vs. State of Bihar and others, , held that the Court should not interfere with the transfer order which are made in public interest and administrative reasons unless they are made in violation of mandatory statutory rules or on the ground of mala fide. The Supreme Court in Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, , held that the transfer is an incidence of service and the employee has no right to be posted at a particular place and the transfer cannot be evaded merely on the ground of pendency of representation or hardship. Dealing with hardship that may result on account of the transfer of an employee, the Supreme Court in State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others, , in categorical terms ruled that the Court cannot decide the relative hardship, and it is for the administration to consider the representation of the employee. It cannot be gain-said that the petitioner consequent upon his promotion to the post of Executive Grade of E-l is holding a transferable post and therefore it is permissible for the Management to transfer him to any other project in the public interest in general and for administrative exigencies in particular. It is not the case of the petitioner that the impugned transfer order violates any of the statutory regulations or it was effected as vindictive measure. Of course, the petitioner has referred to his status as an office bearer of the Trade Union before he was promoted to the Executive Cadre. I have perused the pleading in that regard. Necessary factual matrix is not laid in the affidavit filed in support of the writ petition to bring home malice-in-fact to the Management of the respondent-Company. Malice-in-fact cannot be attributed to a legal person like the Company. Malice-in-fact can be attributed to a natural person who holds a position in the administration of the Company. The petitioner has not disclosed the name of that natural person in the administration of the company who is hostile or biased against him.

In the result, the writ petition fails and it is dismissed. No costs.

However, this order shall not come in the way of the petitioner making a representation to the Management of the Corporation and if such representation is made it is trusted that if the Management of the Company could possibly accommodate the petitioner at Ramagundam without sacrificing the interest of the Company, then it will do so.