Ram Shankar Namdeo. Vs. the State of Madhya Pradesh. - Court Judgment

Excerpt:
order 9 rule 13, order 37 rule 4 & section 115: [b.n. agrawal & g.s. singhvi, jj] ex parte decree in summary suit - set aside by trial court - interference by high court in revision - high court had not even recorded any finding on this issue - order of trial court setting aside ex parte decree not suffering from any error of jurisdiction or material irregularity in exercise of jurisdiction - held, high court was not justified in interfering with the same. order of trial court restored for disposal of the summary suit afresh in accordance with law. 1. shri anoop nair, learned counsel for the petitioner. shri v. s. shroti, learned senior counsel with shri amalpushp shroti, learned counsel for the respondents. with the consent of learned counsel for the parties, matter is heard finally. petitioner calls in question the legality of order dated 13-05-2009.2. by said order the petitioner, deputy manager (research), an employee of narmada hydroelectric development corporation (nhdc) has been transferred to kishanganga hydroelectric project, jammu & kashmir, under national hydroelectric power corporation (nhpc). challenge is on the ground that the petitioner being an employee of nhdc cannot be transferred to another employer without prior consent.3. relevant facts briefly are that the petitioner while working as assistant manager.....

Judgment:
1. Shri Anoop Nair, learned counsel for the petitioner. Shri V. S. Shroti, learned senior counsel with Shri Amalpushp Shroti, learned counsel for the respondents. With the consent of learned counsel for the parties, matter is heard finally. Petitioner calls in question the legality of order dated 13-05-2009.

2. By said order the petitioner, Deputy Manager (Research), an employee of Narmada Hydroelectric Development Corporation (NHDC) has been transferred to Kishanganga Hydroelectric Project, Jammu & Kashmir, under National Hydroelectric Power Corporation (NHPC). Challenge is on the ground that the petitioner being an employee of NHDC cannot be transferred to another employer without prior consent.

3. Relevant facts briefly are that the petitioner while working as Assistant Manager (Research) opted for permanent absorption in NHDC in pursuance to the NHDC's circular No. NHDC/1/P/061/21360 dated 02-07-2002. After the acceptance of offer, the services of the petitioner were absorbed with NHDC by order dated 23-10-2002, with effect from 17-09-2002 (Annexure-R-1/5). With his permanent absorption the lien of the petitioner with NHPC got terminated. Subsequently, vide letter No. PEE/III/MISC/2009/942 dated 12-05-2009 (Annexure-R-1/6) the Competent Authority of the NHPC approved the transfers of the executives, including the petitioner, of NHDC cadre to NHPC and on the basis thereof the petitioner was transferred to Kishanganga Hydroelectric Project. The order as depicted from the return filed by NHPC is in exigency of service as there is no work available in Omkareshwar where the petitioner is posed under NHDC.

4. The question which crops up for consideration is as to whether an exigency in NHPC would give a right of transferring an employee from one employer to another without obtaining prior consent The law is trite that it cannot be. In Pyarechand v. Omkar laxman : AIR 1970 SC 823 it was observed :

"8. A contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party."

In Jawaharlal Nehru University v. K. S. Jawatkar : 1989 supp (1) SCC 679,

"7. ...The Centre of Postgraduate Studies was set up at Imphal as an activity of the appellant University. To give expression to that activity, the appellant University set up and organised the Centre at Imphal and appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant University the teaching and administrative staff must be understood as employees of the appellant University. In case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was a contract with the appellant University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent's consent. When the Manipur University Act provides for the transfer of the services of the staff working at the Centre of Postgraduate Studies, Imphal, to employment in the Manipur University, it must be construed as a provision enabling such transfer of employment but only on assumption that the employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied. We do not find it necessary to refer to any case law in support of this conclusion.

8. Inasmuch as the transfer of the Centre of Postgraduate Studies from the appellant University to the Manipur University could not result in a transfer of the employment of the respondent from the one to the other, it must be concluded that the respondent continues in the employment of the appellant University." In BCPP Mzadoor Sangh v. NTPC : 2007 (14) SCC 234 it was observed by their Lordships : "37. It is clear that no employee could be transferred without his consent from one employer to another. Therefore, in view of the aforesaid rulings the transfer of employees from NTPC - a public sector undertaking to BALCO which is a private organisation is bad in law."

5. In the case at hand though it is vehemently argued on behalf of the respondent NHPC that it was the exigency of service which led the management of the Corporation to transfer the cadre from NHDC to NHPC and since the management of both the Corporation being the same, the transfer of the petitioner from one employer to another is justified and does not call for any interference. The submission though prima-facie attractive has no substance. Admittedly, the services of the petitioner were permanently absorbed with NHDC. With the said absorption the lien of the petitioner with NHPC was terminated. It is also not in dispute that the NHDC and NHPC are two different entity having permanent employees on their respective roll. No material is brought on record to show that there is any agreement in existence as would permit inter corporation transfer without obtaining consent from respective employees. In view of above the order of transfer dated 13-05-2009 so far it relates to the petitioner is not sustainable in the eyes of law and is hereby quashed.

6. In the result the petition is allowed to the extent above. However, there shall be no order as to costs.