Dismissed

Ranjit Mahanta v. the State of Assam and 3 Ors.

Gauhati HC10 Dec 2021WP(C)/4647/2021

Case brief

AI extract

What is this about?

Writ petition against transfer of Assistant Manager from AppDCL HQ to Rangia Electrical Circle dismissed. Court distinguished precedents regarding proximity to retirement as no Government instruction applied. Rejected claims that post was outside cadre or that tripartite agreement barred transfer.

What did the court decide?

Writ petition dismissed; Respondent No. 3 directed to take decision on representation within one week and pay salary if stopped.

Ranjit Mahanta Vs the State of Assam and 3 Ors. — Labour and Industrial Disputes | Gauhati HC (2021)

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Page No.# 1/5

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GAHC010146312021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/4647/2021

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RANJIT MAHANTA

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S/O LATE CHARU MAHANTA, R/O HOUSE NO. 31, MANDIR PATH, NEAR BSF CAMP, GITANAGAR, P.O. ZOO ROAD, P.S. GEETANAGAR, DIST. KAMRUP (M), ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 3 ORS. REPRESENTED BY THE PRINCIPAL SECY., DEPTT. OF POWER (ELECTRICITY) ASSAM, DISPUR, GUWAHATI 06

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2:ASSAM POWER DISTRIBUTION CO. LTD.

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REPRESENTED BY CHAIRMAN BIJULEE BHAWAN GUWAHATI 01

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3:CHIEF GENERAL MANAGER (HRA) ASSAM POWER DISTRIBUTION CO. LTD. BIJULEE BHAWAN GUWAHATI 01

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4:CHIEF EXECUTIVE OFFICER

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RANGIA ELECTRIC CIRCLE LAR ASSAM POWER DISTRIBUTION CO. LTD. PIN 78135

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Advocate for the Petitioner : MR. S K GOSWAMI

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Advocate for the Respondent : SC, APDCL

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Page No.# 2/5

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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10.12.2021

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Heard Mr. S.K. Goswami, learned counsel for the petitioner. Also heard Mr. B. Choudhury, learned counsel for the respondents.

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The petitioner, who is working as Assistant Manager (Headquarter), in short “AM(HQ)”, in the Office of the Managing Director, Assam Power Distribution Company Limited (in short “APDCL”), is aggrieved by the impugned order dated 01.09.2021, by which the petitioner has been transferred as Assistant Manager (AM) and placed temporarily and until further orders in the Office of the CEO, Rangia Electrical Circle, LAR APDCL.

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The petitioner’s counsel submits that the petitioner has only one and half years of service left and as such, he should be allowed to remain in his present place of posting and in support of his submission that an employee shout not be transferred at the fag-end of his career, he has relied upon the judgment of this Court in Narayan Chowdhury vs. State of Tripura and Others, reported in 1999 (2) GLT 360. The petitioner’s counsel also submits that the post to which the petitioner has been transferred to is a post outside the cadre. He also submits that there is no post of AM in the office of the CEO, Rangia Electrical Circle.

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The petitioner’s counsel also submits that the petitioner is suffering from imbalance because of vertigo, besides being a diabetic patient which has resulted in the petitioner becoming partially blind in one eye. He also submits that the petitioner being a General Secretary in the Employees Association, he could not be transferred in terms of the O.M dated 24.5.1979 issued by the Chief Secretary to the Govt. of Assam.

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The petitioner’s counsel also submits that as per the terms of the Tripartite Agreement made on 09.12.2004 between the Government, Assam State Electricity Board and the Registered Unions, at the time of transfer of employees, the representations of the employees relating to their transfers were to be considered with regard to their previous experience,

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seniority, proximity to retirement, serious ill health etc. He accordingly submits that the same has not been considered by the respondents. The petitioner’s counsel also submits that the petitioner has been transferred due to malafides.

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Mr. B. Choudhury, learned counsel for the respondents, on the hand submits that the transfer has been made in public interest and there is no malafide involved. He also submits that leave is granted to office bearers of the Association to attend meetings. He also submits that there is a post of AM in the office to which the petitioner has been transferred to and that the same is a cadre post. In this respect, he has submitted order dated 07.03.2019 issued by the APDCL, which shows that one Atul Das, AM, has been transferred from the office of the MD, APDCL to the office of the CEO, Rangia Electrical Circle, APDCL as AM. The respondents’ counsel thus prays that the writ petition should be dismissed.

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I have heard the learned counsels for the parties.

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In the case of Narayan Chowdhury (supra), this Court had interfered with the transfer order due to the fact that there was a Government instruction, which stated that normally the Government servant would be allowed to stay at his home station on the eve of his/her retirement. However, in the present case, there is no instruction governing employees of the APDCL to the same effect.

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On perusing the order dated 07.03.2019 issued by the Chief General Manager, APDCL transferring one Sri Atul Das, AM, from the office of the MD, APDCL to the post of AM, in the office of the CEO, Rangia Electrical Circle, APDCL, it is clear that the said Atul Das has been transferred in the same manner as the petitioner has been transferred i.e., from the same post of AM in the office of the MD, APDCL to the same post in Rangia Electrical Circle, APDCL. As such, there is nothing to show that the post of AM in the office of the CEO, Rangia Electrical Circle, APDCL is a post outside the cadre. Further, the order dated 07.03.2019 shows that there is a post of AM in the office of the CEO, Rangia Electrical Circle, APDCL.

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With regard to the stand taken by the petitioner’s counsel that the representations of the employees relating to their transfers, should be considered with regard to their experience, seniority, proximity to retirement, serious ill-health etc., in terms of the Tripartite Agreement dated 09.12.2004, it is seen that the Tripartite Agreement had been made in view

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of the fact that the Assam State Electrical Board had been trifurcated into three different entities, one of them being APDCL. A reading of the Tripartite Agreement as a whole clearly shows that the employees of the erstwhile Assam State Electricity Board were to be divided up and distributed between the three entities and as such, they were to be transferred provisionally to the entities and thereafter permanently absorbed. It was in the above context that the question of examining the representations of the employees of the Assam State Electricity Board within the parameters stated earlier had been laid down. The facts herein clearly show that the terms of the Tripartite Agreement dated 09.12.2004 are not applicable to the facts of this case.

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In respect of the submission made by the petitioner’s counsel that a officer bearer of a recognized Association should not be transferred in terms of the O.M. dated 24.05.1979, it is seen that the O.M. dated 24.05.1979 does not bar the transfer of persons holding key offices in recognized Associations. It only states that the need for such transfer should not ordinarily arise and it should not be resorted to as a penal measure. In any event, the O.M. dated 24.05.1979 is with regard to State Government employees while the petitioner herein is an employee of a Public Limited Company and as such the O.M. dated 24.05.1979 is not applicable to the facts of this case.

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In the case of S.C. Saxena vs Union of India and Others, reported in (2006) 9 SCC 583, the Apex Court was seized of a matter, wherein a person who pleaded sickness had challenged the transfer order. The Apex Court held that a Government servant cannot disobey a transfer order by not reporting at the place of posting and instead going to a Court to ventilate his grievance. The Apex Court held that it was the duty of the employee to first report for work where he was transferred and then to make a representation as what may be his personal problems. The Apex Court also observed that tendency of not reporting at the place of posting and indulging in litigation needed to be curbed.

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In the present case, though the petitioner’s counsel has pleaded that there was malafides involved in the transfer of the petitioner, the petitioner has not impleaded any individual by name as a party. As such the plea of malafide cannot be considered by this Court. In the case of Union of India vs. Janardhan Debanath, reported in (2004) 4 SCC 245, the Apex Court has held that unless transfer involves any adverse impact or visits the person

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concerned with penal consequences, transfer orders are not to be subjected to the same type of scrutiny, approach and assessment as in the case of dismissal, etc. In the present case, there is nothing to show that the transfer had any adverse impact or has visited the petitioner with any penal consequences. Further, there is nothing to show that the transfer has not been made in the exigencies of service or for public interest.

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In view of the above reasons, this Court is not inclined to interfere with the impugned order. However, as the petitioner has submitted a representation dated 03.09.2021 with respect to the impugned transfer order, the respondent no.3 is directed to take a decision on the same within a period of 1 (one) week from the date of receipt of a certified copy of this order, if not already decided. If there has been stoppage of any salary of the petitioner, the respondents are directed to immediately pay to the petitioner the salary payable to him.

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The writ petition is accordingly dismissed.

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JUDGE

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Comparing Assistant

Ranjit Mahanta v. the State of Assam and 3 Ors.

Case brief

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Ranjit Mahanta v. the State of Assam and 3 Ors.

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