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SCA/1591/2010 18/ 18 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1591 of 2010
=========================================
NILANG
B TRIVEDI, WORKING AS PLANT OPERATOR GRADE-I & 3 - Petitioner(s)
Versus
GUJARAT
STATE ELECTRICITY CORPORATION LTD - Respondent(s)
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Appearance :
MR
TR MISHRA for Petitioner(s) : 1 - 4.
MS LILU K BHAYA for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 24/02/2010
ORAL
ORDER
1. Heard
learned advocate Shri T.R.Mishra for the petitioners and Ms. Lilu K.
Bhaya for the respondent appearing on caveat.
2. As
in this matter, parties had exchanged their respective
affidavit-in-reply and rejoinder and as the matter was heard at
length from 19.2.2010 on all working days except one, i.e.
23.2.2010 as it was required to be adjourned on account of Ms.
Bhaya’s sick report, the Court inquired of the learned advocates as
to whether they have instructions to waive service of Rule and the
matter be decided finally treating this hearing as final hearing, to
which learned advocate Ms. Bhaya submitted that the hearing be
treated as hearing for admission and granting of interim relief only.
3. The
petitioners No.1 and 2 are Plant Operators Grade-I , Class-III
employees of the respondent-Corporation, petitioner No.3 is Helper,
Class-IV employee of the respondent Corporation and the petitioner
No.4 is a Union recognized by the respondent Corporation and
operating in the establishment, have approached this Court under
Article 226 of the Constitution of India challenging the transfer
orders of petitioners No.1 to 3 dated 17th February, 2010
produced at Annexure-A to the petition collectively, issued by the
Additional General Manager(HR), sitting in the office of Gujarat
State Electricity Corporation Limited, Vidyut Bhavan, Race Course,
Vadodara informing that the competent authority has transferred them
from Wanakbori TPS to Ukai TPS with immediate effect in the interest
of the company’s work as the petitioner Nos.1 to 3 were alleged to
have been involved in an incident on 11.2.2010 at Wanakbori TPS
Colony premises with one Shri A.D. Sheth, Assistant Chemist, the
detailed report whereof was prepared by Chief Engineer, Wanakbori TPS
and on that basis the following common order was passed against each
of the petitioner which is reproduced as under for the sake of
convenience:-
On
the basis of your alleged involvement in the incidence on 11.2.2010
in Wanakbori TPS colony premises with Shri A.D.Sheth, Asst. Chemist &
the detailed report of CE. Wanakbori TPS, The competent authority has
decided to transfer you at Ukai TPS with immediate effect in the
interest of Company’s work.
You
will be eligible for joining time, Transfer TA, etc. as per rules.
You
stand relieved.
4. The
impugned orders of transfer also contained orders of reliving
concerned transfer employee.
5.
The petitioners submitted in paras 4.1 and 4.2 in the memo of
petition that the petitioner Nos. 1 to 3 are the members of the
petitioner No.4 recognized as Shri Vidyut Kamdar Sangh ( SVKS
for the sake of brevity hereinafter) and this Union is recognized
Union functioning in the establishment of the respondent Corporation.
There is another recognized Union called Akhil Gujarat Vidyut Kamdar
Sangh AGVKS for short. The petitioner Union with other many
Unions operating in this Electricity Company in the State of Gujarat
have been agitating for secret ballot to determine the representative
character of the Union and writ petitions have been filed in this
Court. The petitioners have produced on record from page 25 to 31
many complaints and grievances and unfair treatment to them on
account of the Union’s rivalry.
6. The
petitioners have contended in paragraph 4.5 of the petition that
under the pressure of another Union, the management has victimized
them and contrary to the Rules, transferred the petitioner Nos. 1 to
3, 300 k.m. away from their existing place of work. The petitioners
have contended that the issue with regard to framing of rationale and
workable transfer policy is subject matter of dispute in Reference
(I.T.) 84 of 2001. The Industrial Tribunal has, vide its order dated
29.5.2002, granted stay against the transferring of employees out of
the circles and head quarters. Pending the reference, the employer
challenged the said order of Tribunal by preferring Special Civil
Application No. 1779 of 2003 and this Court (Coram: R.M. Doshit, J. )
on 17.9.2003 confirmed the order of the Industrial Tribunal. The
petitioners have further contended that thereafter many attempts of
the respondent to effect transfer of Class-III and Class-IV employees
outside the circle and headquarters have been made but they have been
subject matter of petitions and such transfers have been stayed by
this Court.
7. The
learned advocate for the petitioners have cited orders passed by this
Court in Special Civil Application No. 2940 of 2009. The advocate for
the petitioners has also cited another order passed by this Court
(Coram: D. H. Waghela, J. ) in Special Civil Application No. 11463 of
2006 dated 4th August, 2006, wherein the Court has
protected the workman against the victimization of the management by
way of transfer.
8. The
petitioners have contended that the impugned transfer orders have
made specific reference to the incident which is alleged to have
occurred on 11.2.2010 in Wanakbori TPS Colony premises with one Shri
A.D. Sheth and the detailed report prepared by Chief Engineeer
thereof. The petitioners have contended that the said incident was
cooked up and the same in any case could not have been resulted into
transferring of the petitioner Nos. 1 to 3 at the behest of rival
Union, which would deal a serious blow to the industrial peace and
harmony and also amount to colourable exercise of power unwarranted
in the facts and circumstances of the case.
9. The
respondent has denied the averments made in this petition. The
respondent has filed affidavit-in-reply from page 111 to 217 which
includes Annexures to the affidavit-in-reply and contended that the
transfer of the present petitioner Nos. 1 to 3 is just and proper and
the same cannot be assailed and the petition is required to be
dismissed.
10. Learned
advocate Ms. Lilu K. Bhava submitted that the allegations contained
in para-5 of the petition are too general and vague to merit
consideration of this Court. The appointment order of the
petitioners contain clause 5, whereunder, he is specifically informed
that they are liable to serve anywhere in the State of Gujarat.
11. Ms. Bhaya
further submitted that as it appears from page 37 Exh.78, which is
reproduced from Reference (I.T.) No.84 of 2001, the subject matter of
the Reference and challenge was the circular dated 4.5.2000 on
account of being contrary to the circular dated 25.5.1990,4.2.1994,
13.3.1997 on account of being contrary to the circular dated 4.2.1994
and 13.3.1997 and therefore, as on date, at least those two circulars
dated 4.2.1995 and 13.3.1997 are invoked and operational and as per
these circulars also, the Board has power to transfer the employee
out of the circle in case of frequently transferred category,
whereas, the challenge to the circular dated 4.5.2000 being in
respect of general transfer, the pendency of the reference could not
have come in way of board in effecting the transfer in a peculiar
facts and circumstances of the case.
12. Ms. Bhaya,
learned advocate submitted under instructions of Additional General
Manager, Wanakbori that contention of petitioner’s counsel with
regard to transfer being effected by Additional General Manager
sitting at Head Office is malafide and not sustainable in view of the
fact that the existing setup and delegation of orders indicating that
the transfer from the power station to another power station is
within the domain of the head office of the competent authority of
the company.
13. Ms. Bhaya
also further submitted that it is the prerogative of the management
employer to transfer the employee from one place to other place as
per the service regulation relying upon page 116 of the compilation.
14. Service
regulation is statutory in nature and as such it has effect of
overriding the administrative instructions issued time and again in
respect of the transfer in the exigency of the administration.
15. This
service regulation figures in the appointment order of the
petitioners and as such it becomes part of the service contract
binding on them.
16. In view of
this peculiar facts and circumstances of the case and on the basis of
the report dated 15.2.2010 as well as 10.2.2010 prepared by Assistant
Director(Security), the competent authority has, with the approval of
the Managing Director, thought it fit to transfer the petitioner from
the aforesaid Thermal Power Station.
17. After
thorough inquiry into the incident and after affording opportunity to
both the parties and recording statement of all the witnesses present
on the date of incident, the report was prepared and submitted based
whereupon the decision of transfer is effected.
18. In view of
the report, action of transfer was warranted or else it would have
led to deterioration in the law and order situation.
19. Not
lodging FIR by the employee would not prevent the management from
investigating and inquiring and taking action. Non-filing of FIR by
the concerned person shall not be treated as a bar to the management
for investigating into the incident and taking action in accordance
with law against the concerned employees who have been found fit to
be transferred in view of the incident which has been investigated.
20. This
Court has heard learned advocates for the parties and perused the
memo of petition and the affidavit filed with its Annexures. The
following indisputable aspects are noticed as they emerge from the
rival contentions of the parties and, therefore, they deserve to be
set out as under for appreciating the contentions of the learned
advocates for the parties:-
1) The
petitioner Nos. 1 to 3 are Class-III and Class-IV employees working
at Wanakbori Thermal Power Station.
2) The
petitioner Nos. 1 to 3 are members of SVKS Union.
3) The
petitioners and other Unions have been agitating for introduction of
secret ballot system for determining the representative character of
the Union.
4) The
petitioner No.1, namely, Nilang B. Trivedi is a Deputy General
Secretary of SVKS petitioner No.4 Union and thus he is the office
bearer of the Union. The petitioner No.2 Mr. M. R. Patel is said to
be Zonal Secretary of SVKS Union and petitioner No.3 Shri.
Shravankumar R. Charan is a Coordination Secretary of the said Union.
5) The
petitioner Nos. 1 to 3 have averred in paragraph 5 of their petition
that they are office bearers and they have been chosen for transfer
by way of victimization from Wanakbori Thermal Power Station to Ukai
Thermal Power Station.
6) The
petitioners in paragraph 6 of the memo of petition have averred that
the petitioner Union i.e. SVKS who is petitioner No.4 herein in
recent check off system declared on 11th February, 2009
commands majority amongst Class-III and Class-IV employees for the
purpose of recognization as sole bargaining agent in respect of
employees. Therefore, the orders of transfer are also contrary to
Section 33 of the Industrial Disputes Act, 1947 as no permission for
transfer has been sought from the Industrial Tribunal where the
reference is pending. The petitioners in para 4.11 of the petition
have mentioned that the transfer orders are effected under the
pressure of the rival union and hence they are bad in the eyes of
law.
7) The
respondent has denied the averments and contentions made in this
petition in its totality. The respondent did not chose to deal with
para-wise contentions raised by the petitioners but they have said
that it may not be treated as admission on the part of the
respondent.
8) The
respondent has said that the petitioner Nos. 1 to 3 were responsible
for creating raucous and hurled abuses to one Shri A.D. Sheth at
23:00 hrs. on 11.2.2010. The management received complaint on
12.2.2010 at 16:00 hrs from said Shri A.D. Sheth, who is a member of
the Union called AGVKS, with regard to such incident. On receipt of
the complaint, the Chief Engineer, Wanakbori Thermal Power Station
directed one Shri D.S. Vasavada, Assistant Director (Security) to
inquire into this and submitted his report.
9) The
respondent has stated in its reply that said Shri D.S. Vasavada,
Assistant Director(Security) investigated the matter, recorded the
statement of witnesses, who were residing in the colony and also
recorded the statement of rival parties. He submitted his inquiry
report on 16.2.2010 which indicated that there was substance in the
allegation made by Shri A.D. Sheth and there was no substance in the
allegation made by the petitioner No.4 Union. The respondent has also
stated that the transfer was in accordance with the general policy of
transfer and, therefore, the complaint filed by said person Shri A.
D. Sheth is produced at Annexure-I with the affidavit-in-reply.
Perusal of the said complaint indicates that the same was filed on
12.2.2010 and as per the say of the respondent, it was at 16:00 hrs
in the afternoon, the said complaint is signed as Additional General
Secretary, Wanakbori Power Station and the copies of the said
complaint is marked as General Secretary, AGVKS. The said complaint,
in short, narrates that on 11.2.2010 at about 11:30 p.m. the
Secretary General Shri A.G. Mirza of SVKS and three others had with
crowd of 15 came near the quarter of Shri A.D. Sheth, in inebriated
condition, and was pushed and they hurled abuses to him. Therefore,
this complaint was made for punishing them. The respondent has also
produced on record along with the reply, the complaint made on
12.2.2010 by AGVKS i.e the rival Union, which also talks about such
incident said to have occurred at 11:30 hrs. The copy is sent to
Secretary General, AGVKS, Ukai. Th petitioner No.4 Union also appears
to have filed complaint in respect of the misbehaviour on the part of
the office bearers of AGVKS. As per that complaint it is stated
therein that on 11th February, 2010 there was a Secretary
General meeting in respect of check of circular in all power houses
.Though the list was declared at Wanakbori, the concerned letters and
the list were not declared. The list was required to be declared only
at th behest of their General Secretary, Shri Mirza at 5 p.m. At that
time, they happened to see one Shri. A. D.Sheth near his residence,
who misbehaved with them and, therefore, they said that it needs to
be inquired into.
10) It
is important to note that the Chief Engineer appears to have ordered
the Assistant Director(Security) to inquire into it, who in turn,
appears to have recorded the statement and report is filed at page
125 which is dated 15.2.2010 and at page 166 which is dated
16.2.2010. It seems that the complaint of the petitioner No.4 Union
was independently inquired and report dated 16.2.2010 was filed which
is submitted at page 166 of the affidavit-in-reply. In short,
Assistant Director (Security) has stated that the complaint of Shri
Sheth was found with some substance and discarded the complaint of
the petitioner No.4 Union as having no substance.
11) During
the course of submission, an office note dated 16th
February, 2010 was placed on record by Ms. Bhaya bare perusal
thereof, shows that the proposal was submitted to transfer the
petitioner Nos. 1 to 3 on account of alleged incident and the report
of the inquiry officer and the said note contains the proposal as
under:
It
is further submitted that the Secretary General of SVKS has also
forwarded a letter dated 13.2.2010 (Placed at Flag-B) and has
claimed that the incidence of 11.2.2010 was concocted with a malice
intention of the rival union. The counter allegation of SVKS were
also investigated, and nothing substantial has been revealed( Ref,
letter of CE, WTPS dated 16.2.2010) Flag-C.
It
is pertinent to state that by interim order in Ref.(IT) No. 84/01 the
transfer of Class-III/IV employees out of Power Station is
restricted. This interim order is also confirmed by High Court in SCA
No. 1779/03 against which LPA is pending. Recently Shri B.A. Modi,
PO-I of Utran GBPS was transferred to Ukai TPS and by virtue of order
in SCA 11214/09 we could not transfer him and we ere compelled to
retain him at Utran GBPS. As such if we intend to transfer the
above-mentioned employees they would prefer petition and it is
therefore, necessary to issue a speaking order. It is also necessary
to file caveat in High Court, Ahmedabad, It, Nadiad, IT, Ahmedabad
and Civil Court, Thasra.
On
this, the Managing Director has passed a note marked as Annexure-A
which is reproduced hereinbelow:-
The
above misconduct is of serious nature and keeping in view the I.R.
situation of WTPS, it is not advisable to continue them at WTPS and
we may transfer all 3 employees to Ukai TPS. The draft transfer order
is attached herewith.
Matter
may be suitably decided on the basis of above submission.
21. Thus,
in view of the aforesaid indisputable factual backdrop, the Court is
required to examine the rival submissions of the learned advocates
for the parties for deciding the issue with regard to admission and
granting of interim relief at this stage.
22. A
close perusal of the transfer orders even without perusing the office
note dated 16.2.2010 in terms indicate that they are based upon the
report of Chief Engineer, Wanakbori TPS in respect of the involvement
of petitioner Nos.1 to 3 in the incidence which took place on
11.2.2010 in Wanakbori TPS Colony premises with Shri A.D. Sheth,
Assistant Chemist. The respondent has not placed on record that under
which service regulation or conduct regulation the incident which is
said to have occurred at Wanakbori TPS Colony premises with Shri A.D.
Sheth and alleged to have involvement of petitioner Nos.1 to 3, is a
misconduct falling under the service regulations. The Court hasten to
add here that the occurring of incident might be that of law and
order question but the incident has not taken place at the workplace.
When the incident of such a nature has not taken place in the
precincts of the workplace or the power station, admittedly that
incident is said to have occurred at the residential colony premises
which is not forming part of the work place, then the question is as
to how far the management can have right to effect the transfer of
its employees for the incidents that might have occurred in the
residential premises though noted by the employer that the incident
which is said to have occurred at 11.00 hrs or 11:30 hrs and that
were not the working hours and the presence of complainant Shri
A.D.Sheth as well as the petitioner Nos. 1 to 3 were naturally bound
to be there as could be seen from the respective complaints. It is no
ones case that their presence in the colony premises was in any way
unnatural, unwarranted or uncalled for. In such a situation ,when
such conduct is not classified to be misconduct then, in my view, the
conducting of investigation by the Assistant Director(Security) and
recording statement and based upon this report, straightaway
effecting transfer, would prima facie amount to colourable exercise
of power of transfer.
23. It
is required to be noted at this stage that the petitioners have prima
facie, been successful in convincing this Court with regard to
existence of Union rivalry and the litigations and, therefore these
factors may not be overlooked by the Court at this stage, which
assumes proper importance in deciding the matter for admission and
interim relief. The Court, at this stage, also would like to advert
to some glaring aspects in the inquiry carried out by the Assistant
Director(Security) which cannot be brushed aside lightly by any
authorities. It is required to be noted that though in the complaint
of 12.2.2010 filed by Shri A.D. Sheth, it was specific allegation
that the crowd of 15 persons approached him in inebriated condition
and they were under the influence of liquor. The report at page 125
dated 15.2.2010 filed by said Shri Vasavada, Assistant Director
(Security) contains that on 11.2.2010 at about 23:30 hrs when said
Shri Vasavada was in his quarter, he received a telephonic message
from Shri Sanjay Kumar Patel, Office Bearer of Union AGVKS i.e. the
Union, termed to be rival union by the petitioner, and informed that
near the residence of Shri A.D. Sheth i.e Type 381/4, members of
AGVKS are creating raucous and they are under the influence of
liquor. When he was asked to give more details, said Shri Patel
informed him that he was on the plant in the night duty. Therefore,
he did not know more details but he was informed by said Shri Sheth
that the persons are in inebriated condition. The Assistant Director
then sent the Security Inspector, Shri Dindor and Shri Dindor
informed him that he reached their within 4 to 5 minutes but he did
not find any one. He could find only Shri Sheth and five persons
along with him. There was no atmosphere of any raucous. Shri Dindor
inquired of Shri Sheth as to any happening of the incident. At that
time, Shri Sheth informed Shri Dindor that Shri Nilang B. Trivedi,
Shri M. R. Patel, Shri Shravankumar R. Charan (Petitioner Nos.1 to
3)etc. had come and it was altercation with regard to Union matters
but now there is nothing and, therefore, he did not give in writing
any complaint to Shri Dindor . Shri Dindor specifically inquired of
him as to whether any police complaint is required to be filed. He,
was, therefore, informed by Shri Sheth that it was not to be filed.
Thereafter, Shri Dindor went to the residence side of Shri Nilang
B. Trivedi, Shri M. R. Patel, Shri Shravankumar R. Charan but
everything was found to be quiet and, therefore, Shri Dindor did not
make any further inquires.
24. It
is important to note at this stage that the report mentioned talk of
Shri Dindor with Shri A.D.Sheth which indicates that said Shri Sheth
did not report that the persons including the petitioners were in an
inebriated condition.
25.
This Court is of the view that the entire incident even if assumed
to be correct, then also it was falling under the realm of law and
order for which Shri Sheth had appropriate remedy and the power of
transfer could not have been utilized for reducing fear on the mind
of Shri Sheth if at all there was fear.
26. The
Court is also of the prima facie, view that the contention made by
Shri Mishra with regard to the pendency of the reference and,
therefore, the breach of Section 33 of the Industrial Disputes Act,
1947 in effecting the transfer of the office bearer without
permission, is also required to be taken note of at this stage.
27. It
is required to be noted at this stage that the said order granted in
Reference being Reference (I.T.) No.84 of 2001 and the subsequent
development by way of interim orders of this Court may also go to
strengthen the case of the petitioners. The petitioners have made out
a, prima facie, case and looking to the rivalry between the Union and
when the alleged misconduct is not a misconduct which is occurred at
the workplace and nor is it a misconduct classified to be misconduct
under the service rules, the impugned transfer orders, prima facie,
appears to be without jurisdiction and authority of law.
28.
It is required to be noted that assuming that there is misconduct,
which was a misconduct classified to be a misconduct, is inquired and
investigated into ex parte without there being given an opportunity
to defend to the employees concerned. In the instant case, the
investigation carried out by the Assistant Director(Security) cannot
be said to be an investigation equivalent to full-fledged inquiry or
disciplinary inquiry into the incident nor has the management issued
any chargesheet to the petitioner Nos. 1 to 3. The petitioners have
not been given an opportunity in terms of the issuance of
chargesheet, the statement of witnesses or the report of so-called
inquiry and straightaway they have been saddled with orders transfer
i.e. punishment. It is, at this stage, very important to note that
the respondent has nowhere given in its affidavit-in-reply that they
propose to hold any inquiry based upon the preliminary investigation
carried out by Shri Vasavada the Assistant Director (Security). The
Court hasten to add here that the respondent has rightly not come out
with any preposition of conducting any inquiry as prima facie the
incident of 11.2.2010 which is alleged to be misconduct on the part
of the petitioners No.1 to 3 would not be falling under the conduct
Rules.
29. Thus,
from this angle, the Court is absolutely satisfied that there exists
a strong prima facie case in favour of the petitioners
and hence, Rule. Rule is made returnable on 30.3.2010. Ms. Bhaya,
waives service of Rule on behalf of respondent. The order impugned
shall remain stayed till the final disposal of this petition. As the
orders impugned are stayed, the petitioner Nos.1 to 3 are permitted
to resume their respective duties forthwith as if those order were
not issued at all.
30. At this
stage, Ms. Bhaya requested for staying this order. The Court is of
the view that when the Court has come to the conclusion that prima
facie the order passed are in colourable exercise of power and the
authority lacked power and imposed its wish and will and when two
rival Unions are fighting it with each other, the staying of the
order would not be justified. Hence, the Court rejects the request of
staying the order and order for reinstating them on their original
post, which shall be carried out forthwith.
(S. R.
Brahmbhatt, J. )
sudhir
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