IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18730 of 2010(M)
1. P.A.NAGARAJAN,
... Petitioner
2. DIRECTOR (HUMAN RESOURCES),
3. EXECUTIVE DIRECTOR (KOCHI REFINERY)
Vs
1. BHARAT PETROLEUM CORPORATION LTD. AND
... Respondent
For Petitioner :SRI.V.JAYAPRADEEP
For Respondent :SRI.E.K.NANDAKUMAR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :21/06/2010
O R D E R
C.T.RAVIKUMAR, J.
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W.P.(C) No. 18730 of 2010 M
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Dated this the 21st day of June, 2010
J U D G M E N T
The petitioner is presently working as Chief Manager
(Legal) in the Bharat Petroleum Corporation Limited(Kochi
Refineries). He has filed this writ petition challenging Exts.P2 and
P7. The further prayer of the petitioner is to issue a writ of
mandamus commanding the second respondent to pass speaking
orders on Ext.P5 to enable him to continue at Cochin or to exit
from its service in terms of Ext.P6 Conduct, Discipline and Appeal
Rules.
2. The petitioner joined the services of the Kochi
Refineries Limited on 22-01-1987. It was after leaving the job with
the State Bank of India that he joined its service. According to the
petitioner, he has actually accepted the offer of appointment in the
Kochi Refineries Limited solely because of the non-transferability
of the job. While so, the Kochi Refineries Limited was
amalgamated with the Bharat Petroleum Corporation Limited.
That was in August 2006 under the provisions of Sections 391 and
394 of the Companies Act. With that amalgamation, the Kochi
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Refineries Limited ceased to be in existence and thereafter, it is
being called as Bharat Petroleum Limited Kochi Refineries. On
20-04-2010, the first respondent issued Ext.P2 staff posting. As
per Ext.P2, the petitioner was proposed to be transferred and
posted to the Chairman’s office at Mumbai. Aggrieved by the
proposal in Ext.P2, the petitioner has submitted two
representations. As per Ext.P4, the petitioner has requested the
first respondent to defer the order of transfer and to consider his
claim for retention in Kochi itself in the light of Ext.P1. In Ext.P5
representation submitted on 01-06-2010, he has virtually reiterated
his contentions raised in Ext.P4. To fortify his contentions, he has
relied on certain judicial pronouncements as well. According to
the petitioner, he was awaiting a favourable order from the
respondents. While so, to his dismay and dejection, he received
Ext.P7 order dated 10-06-2010, it is submitted. As per Ext.P7,
after considering his Ext.P5 representation, the petitioner was
advised to join duty at Mumbai on or before 21-06-2010. It is in
the said circumstances that this writ petition has been filed by the
petitioner assailing Exts.P2 and P7.
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3. A scanning of the contentions raised by the petitioner
would reveal that he is mainly relying on Ext.P1 and various
judicial pronouncements such as 1941 Company Cases Vol.83
(HL) 549, 1993 CWN 542 and 1988 Company Cases (Vol.63) 233
to assail Exts.P2 and P7 and to claim retention in Kochi itself. The
respondents have filed a statement in this writ petition refuting the
aforesaid claims and contentions of the petitioner. According to
them, the petitioner is liable to be transferred and he had accepted
the transferability of his job as is obvious from Annexure-A order of
appointment dated 21-01-1988. In short, according to them, in the
light of Ext.P1 and the Rules, Regulations and Policies applicable
to the management staff of Bharat Petroleum Corporation Limited,
the petitioner cannot be heard to contend that the first respondent
is lacking jurisdiction to transfer the petitioner from the Bharat
Petroleum Corporation Limited(Kochi Refineries).
4. Ext.P1 is a Power of Attorney dated 08-02-2007
nominating the petitioner to be the true and lawful Attorney of
Bharat Petroleum Corporation Limited to enable the petitioner to
perform all and every one of the acts, matters and things
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mentioned thereunder pertaining to BPCL Kochi Refineries.
According to the petitioner, Ext.P1 holds out a promise to the
effect that he would not be transferred outside the jurisdiction of
the BPCL Kochi Refineries. It is in the aforesaid circumstances
that he challenged Ext.P2 that carried the proposal to transfer him
from Bharat Petroleum Corporation Ltd(KRL) to the Chairman’s
office at Mumbai. As already noticed, apart from relying on
Ext.P1, the petitioner is also placing reliance on the
aforementioned judicial pronouncements to assail Exts.P2 and P7.
5. I have gone through the decisions relied on by the
petitioner. The said decisions are to the effect that transfer of an
undertaking in terms of the provisions under the Companies Act
shall not adversely affect the service conditions of the employees.
In fact, those decisions were mainly dealing with the transfer of
undertakings. But, while considering the impact of such transfer,
in 1988 Company Cases (Vol.63) 233, it was held that employees
could not be compulsorily transferred from one company to
another. Based on the aforesaid decisions, the petitioner
contended that since no option was given to the petitioner at the
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time of amalgamation, the respondents are estopped from
transferring him out of BPCL Kochi Refineries. The tenor of the
contentions in the writ petition would suggest that the petitioner
has an alternate prayer. According to him, in case the
respondents are unwilling to review the order of transfer, he
should be permitted to avail the benefit of Voluntary Retirement
Scheme and to continue in a present post till such time or in the
alternative, he should be permitted to retire prematurely as
provided in the Conduct, Discipline and Appeal Rules of the first
respondent Company. Ext.P6 is the relevant extract of the
aforesaid Rules.
6. Evidently, the employees of the erstwhile Kochi
Refineries Limited could not have objected to its amalgamation
with BPCL. It is a fact that as early as in 2006 itself, the Kochi
Refineries Limited was amalgamated with the Bharat Petroleum
Corporation Limited. The grievance of the petitioner is that at the
time of the said amalgamation, no right of option was given to the
employees including the petitioner. I am of the view that at this
distance of time the said aspect has to be viewed in another
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angle. Going by the aforesaid decisions relied on by the
petitioner, the main concern is to protect the conditions of service
which the employees were enjoying prior to the amalgamation,
even after the amalgamation. I cannot find any averment in the
writ petition to the effect that any of the conditions of service of the
employees of the erstwhile Kochi Refineries Limited has been
adversely affected on account of the amalgamation. In the context
of the contentions, it is relevant to refer to the decision of the
Hon’ble Apex Court in Varadha Rao Vs. State of Karnataka and
others [AIR 1986 SC 1955]. The Hon’ble Apex Court held that
transfer is an incident of service and it did not result in alteration of
the nature of the conditions in service. As noticed earlier, the
petitioner has no case that on account of the amalgamation the
service conditions have been altered. In the context of the
contentions, it is also relevant to note the conditions incorporated
in Annexure-A i.e., the order of appointment issued to the
petitioner dated 21-01-1988. It carries the following conditions:-
” You are liable to be transferred, at the
discretion of the Company, from one
establishment/office to another one of our
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elsewhere in India.
Your employment is also subject to all
Company policies and regulations as well as
your participation in any benefit scheme as the
Company may require.”
7. That order was issued in 1988. True that at that point
of time, it was Kochi Refineries Limited and was having unit only in
Cochin and further that it is the subsequent amalgamation that
resulted in the present situation. The question is whether
subsequent to the amalgamation, the employees in the erstwhile
Kochi Refineries Limited can claim immunity from transfer. I could
not uphold the contention of the petitioner that the petitioner could
not be transferred even thereafter in the light of Ext.P1 and the
decisions referred above. Now, I may examine the sustainability of
Exts.P2 and P7. Looking into their impact, it may be a compulsory
transfer as contended by the petitioner. But, the question is
whether any of the service conditions of the petitioner was
prejudicially affected on account of such transfer. I could not find
any such contention in the writ petition. So long as he got no such
contentions, the petitioner cannot contend that he is not liable to
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be transferred on account of the amalgamation of Kochi Refineries
Limited with the BPCL. In fact, the petitioner cannot contend that
he was earlier holding a non-transferable job in the light of
Annexure-A. The conditions incorporated in Annexure-A make it
clear that he was liable to be transferred. Such a contingency
might not have arisen on account of the non-existence of other
units of Kochi Refineries Limited. At any rate, the petitioner
cannot challenge Exts.P2 or P7 contending that since the Kochi
Refineries Limited was amalgamated with the Bharat Petroleum
Corporation Limited, the petitioner is having an absolute right to
continue in Bharat Petroleum Corporation Limited Kochi Refineries
only.
8. For all these reasons, I cannot uphold the contentions
of the petitioner raised against Exts.P2 and P7. But, at the same
time, in view of the peculiar circumstances, I am of the view that
the petitioner is entitled to get extension of time for joining duty
pursuant to Ext.P7. Therefore, it will be only be appropriate for
respondents 1 and 2 to intimate the petitioner the time limit within
which he should join in the place of his transfer. Needless to say
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that while issuing such an intimation, the said authorities have to
ensure that the petitioner is getting ten days’ time in joining the
place of transfer.
9. As already noted, the petitioner has also suggested
two alternatives. Firstly, he claimed that he should be permitted to
avail voluntary retirement in accordance with the Voluntary
Retirement Scheme. There is nothing in the writ petition which
would suggest that the Voluntary Retirement Scheme is presently
available under the first respondent. However, it will be open to
the first respondent to consider the said claim of the petitioner in
case such a Scheme is available. Necessarily, in case such a
Scheme is available under the first respondent, the claim of the
petitioner for voluntary retirement has to be considered
expeditiously. In the absence of such a Scheme, his request is
that he should be permitted to retire prematurely as provided in the
Conduct, Discipline and Appeal Rules of the first respondent
Company. That again is a matter to be considered by the first
respondent in the light of the provisions under the Conduct,
Discipline and Appeal Rules. In case the petitioner submits an
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application within two weeks from the date of receipt of a copy of
this judgment as provided under the aforesaid Rules, the
respondents shall consider the same in accordance with the
provisions under the Conduct, Discipline and Appeal Rules. The
same shall be considered by the respondents in the light of the
provisions under the Conduct, Discipline and Appeal Rules of the
first respondent Company, expeditiously, at any rate, within a
period of one month from the date of receipt of such application
from the petitioner.
Subject to the above, this writ petition is dismissed.
Sd/-
(C.T.RAVIKUMAR, JUDGE)
aks
// True Copy //
P.A. To Judge