IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 WP(C).No. 18730 of 2010(M) -------------------------- PETITIONER(S): --------------- P.A.NAGARAJAN, S/O.A.N.ANANDAN EMBRANTHIRI, PRAYAG, PALACE GARDENS, P.O.IRIMPANAM, ERNAKULAM DISTRICT, WORKING AS CHIEF MANAGER(LEGAL) BPCL, KOCHI. BY ADV. SRI.V.JAYAPRADEEP SRI.E.SHANAVASKHAN RESPONDENT(S): --------------- 1. BHARAT PETROLEUM CORPORATION LTD. 4&6, CURRIMBHOY ROAD, BALLARD ESTATE, FORT, MUMBAI, REPRESENTED BY ITS CHAIRMAN & MARKETING DIRECTOR 2. DIRECTOR (HUMAN RESOURCES), BHARAT PETROLEUM CORPORATION LTD., 4 & 6, CURRIMBHOY ROAD, BALLARD ESTATE, FORT, MUMBAI. 3. EXECUTIVE DIRECTOR (KOCHI REFINERY) BPCL-KOCHI REFINERY, AMBALAMUGAL P.O., ERNAKULAM DISTRICT. ADV. SRI.E.K.NANDAKUMAR FOR R SRI.A.K.JAYASANKAR NAMBIAR FOR R SRI.K.JOHN MATHAI FOR R SRI.P.BENNY THOMAS FOR R SRI.P.GOPINATH FOR R THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T.RAVIKUMAR, J. ``````````````````````````````````````````````````````` W.P.(C) No. 18730 of 2010 M ``````````````````````````````````````````````````````` 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 WPC.18730/2010 : 2 : 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. WPC.18730/2010 : 3 : 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 WPC.18730/2010 : 4 : 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 WPC.18730/2010 : 5 : 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 WPC.18730/2010 : 6 : 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 WPC.18730/2010 : 7 : Company whether in the Cochin area or 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 WPC.18730/2010 : 8 : 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 WPC.18730/2010 : 9 : 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 WPC.18730/2010 : 10 : 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