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2020 Supreme(HP) 643
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sureshwar Thakur, Chander Bhusan Barowalia, JJ.
Parvesh Kumar - Appellant
Versus
Hp State Electricity Board Ltd & Anr. - Respondent
Civil Writ Petition No. 3459 of 2020
Decided On : 24-11-2020
Vivek Singh Attri, Advocate, Lakshay Thakur, Advocate
An employer can transfer an employee based on unsuitability for a position, as long as the action is not arbitrary or illegal and is in administrative exigencies and public interest.
Headnote:
Transfer - Administrative Exigencies - Himachal Pradesh State Electricity Board - 1998 - Junior Engineer (Electrical) - Transfer Order - Relieving Order - Administrative Exigencies - Public Interest
Fact of the Case:
The petitioner, a Junior Engineer (Electrical) at the Himachal Pradesh State Electricity Board, sought to quash a transfer order and relieving order, claiming the transfer was arbitrary and illegal. The respondent argued that the transfer was necessary due to the petitioner's poor performance and administrative exigencies.
Finding of the Court:
The court found that the petitioner's careless attitude towards his official duties justified the transfer, which was deemed to be in administrative exigencies and public interest. The court concluded that the transfer did not warrant intervention.
Issues: The issues revolved around the legality and necessity of the petitioner's transfer, considering the ban on transfers and the petitioner's performance.
Ratio Decidendi: The court held that an employer can transfer an employee if found unsuitable for a particular position, as long as the action is not arbitrary or illegal. The transfer was deemed to be in administrative exigencies and public interest.
Final Decision: The petition was dismissed as lacking merit, and the court found the transfer to be justified and not in violation of the Transfer Policy.
JUDGMENT
Chander Bhusan Barowalia, J. - By medium of the extant writ petition, the petitioner is seeking the following substantive reliefs:
"1. To kindly allow the present petition and quash the order of transfer dated 01.09.2020 (Annexure P-I) and relieving order dated 02.09.2020 (Annexure P-II) in the interest of justice and fair play.
2. To direct the respondents to provide the petitioner sufficient time of at least 15 days to handing over the charge."
2. Precisely, the facts of the case, as encapsulated in the writ petition, are that the petitioner, in the year 1998 was appointed, on contractual basis, as Junior Engineer (Electrical) in the Himachal Pradesh State Electricity Board (respondent No. 1), hereinafter referred to as "the respondents-Board". On 16.10.2018, he was transferred to Electrical Division-1, SDA Complex, Kasumpati, Shimla. Through impugned transfer order (Annexure P-1), dated 01.09.2020, the respondents-Board transferred the petitioner in the Office of Chief Engineer (System Planning) HPSEB Ltd. Shimla, and through Annexure P-II, dated 02.09.2020, he was relieved. As per the petitioner, he has neither completed his normal stint nor there is any complaint against him. The action of the respondents-Board is arbitrary, illegal and the transfer is without any reasonable ground or basis. It is further contended that the petitioner has been relieved in a hasty manner on the next day of impugned order of transfer and he was not even given opportunity to handover the charge. The petitioner has further contended that the impugned order of transfer has been issued during the ban on transfers and thus in violation of the rules. In view of the above backdrop, the petitioner, by maintaining the extant petition, seeks the relief that impugned transfer order, dated 01.09.2020 (Annexure P-I) and consequent relieving order, dated 02.09.2020 (Annexure P-II) be quashed and set-aside in the interest of justice.
3. Per contra, the respondents-Board, by filing an elaborative and detailed reply, resisted and refuted the contentions raised by the petitioner. As per the respondents, transfer is an 'incidence of service' and to accommodate an employee, considering the exigencies of service and public interest, is within the domain of employer/competent authority. It is further contended that the petitioner served in the office of Superintending Engineer (Interstate), HPSEB Ltd., Totu, Shimla-11 on and w.e.f. 29.11.2016 to 16.10.2018, i.e., within the precincts of Municipal Corporation, Shimla. Thereafter, he was adjusted in Electrical Section, HPSEB Ltd. New Shimla, that is also within the precincts of Municipal Corporation, Shimla and till the issuance of impugned transfer order (Annexure P-I), dated 01.09.2020, the petitioner is serving there. As per the respondents, the area, where the petitioner was posted prior to issuance of impugned transfer order (Annexure P-I), is an important area, where peak load demand goes upto 7MVA and the area is suffering due to the poor working of the petitioner, as he is not even performing basic functions of Junior Engineer. The petitioner has no control over operational/technical staff and he even did not respond when main 11KV feeders were down. Thus, the competent authority found him unfit to remain posted in front office of the respondents. It is averred that in view of the aforesaid dereliction in duty, competent authority recommended to transfer the petitioner and provide a suitable substitute to the general public/consumers. Since no improvement was observed in the working of the petitioner, so, after due deliberations, he was transferred and consequently relieved. Therefore, the transfer of the petitioner cannot be given color of arbitrariness and the same is within the confines of law. The petitioner is transferred within Shimla and not outside Shimla, even then, he, instead of joining his duties at the transferred station, indulged in litigation, so the public work is eventually suffe
