Air India Limited v L.S. Sibu and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940** **WA.No. 1936 of 2017 IN WPC. 12129/2015** **AGAINST THE ORDER/JUDGMENT IN WP(C) 12129/2015 of HIGH COURT OF KERALA DATED 14-08-2017** ## **APPELLANT(S)/RESPONDENTS 2 TO 4** ## **1 AIR INDIA LIMITED** **AIRLINES HOUSE, 13 GURUDWARA RAKABGUNJ ROAD, NEW DELHI-110001, REP BY ITS CHAIRMAN & MANAGING DIRECTOR.** ## **2 THE EXECUTIVE DIRECTOR-SOUTHERN REGION,** **AIR INDIA LTD, AIRLINES HOUSE, MEENAMBAKKAM, CHENNAI-27.** **3 THE STATION MANAGER** **AIR INDIA LTD, AIR INDIA BUILDING, VELLAYAMBALAM, THIRUVANANTHAPURAM-695010.** **BY ADVS.SRI.E.K.NANDAKUMAR (SR.) SRI.P.GOPINATH** **SRI.K.JOHN MATHAI** **SRI.JOSON MANAVALAN** **SRI.KURYAN THOMAS** **SRI.M.GOPIKRISHNAN NAMBIAR SRI.JAI MOHAN** ## **RESPONDENT(S)/PETITIONER AND RESPONDENTS 1&5:** **1. L.S. SIBU, OFFICER-APRON, GROUND SERVICES DEPARTMENT(GSD), AIR INDIA INTERNATIONAL AIRPORT II, CHACKAI, THIRUVANANTHAPURAM-695024.** **2. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF CIVIL AVIATION, ROOM NO.352,3RD FLOOR ,B-BLOCK, REAJIV GANDHI BHAVAN, SAFDARJUNG AIRPORT, NEW DELHI-110003.** **3. THE REGIONAL LABOUR COMMISSIONER (CENTRAL) OFFICE OF THE REGIONAL LABOUR COMMISSIONER(CENTRAL), UPPALAM ROAD, THIRUVANANTHAPURAM-695001.** **R1 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) R1 BY ADV. SRI.P.K.MANOJKUMAR** **R1 BY ADV. SMT.SMITHA S.PILLAI** **R2 & R3 BY SRI.N.NAGARESH, ASST. SOLICITOR GENERAL** **R2 & R3 BY ADV.G. MAHESWARY G, CGC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.06.2018, THE COURT ON 04-07-2018 DELIVERED THE FOLLOWING:** **WA 1936/2017** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE-A1 : COPY OF REPRESENTATION DATED 9.4.2015 SENT BY THE 1ST RESPONDENT TO THE REGIONAL LABOUR COMMISSIONER (C), THIRUVANANTHAPURAM CONTAINING THE ENDORSEMENT OF REGIONAL MANAGER-GS, GSD, THIRUVANANTHAPURAM. ANNEXURE-A2 : COPY OF RELIEVING ORDER DATED 26.3.2015 BEARING REF, NO.TRV/67/LSS/2603 ISSUED BY THE STATION-MANAGER, THIRUVANANTHAPURAM TO THE 1ST RESPONDENT. ANNEXURE-A3 : COPY OF THE REPORT DATED 26.3.2015 SUBMITTED BY SHRI.G.SREEKUMAR, ASSISTANT OFFICER-SECURITY AND SRI.P.K.JAYAKUMAR, ASSISTANT MANAGER-ADMINISTRATION.** **ANNEXURE-A4 : COPY OF LETTER DATED 26.3.2015 BEARING REF.NO.TRV/67/LSS/177 ISSUED BY STATION MANAGER-THIRUVANANTHAPURAM. ANNEXURE-A5 : COPY OF BOTH SIDES OF THE ENVELOPE CONTAINING THE AFORESTATED DOCUMENTS BEARING THE ENDORSEMENT 'PN ISSUED 27.3.2015'. ANNEXURE-A6 : COPY OF THE TRACKING DETAILS OF THE SPEED POST SENT TO THE 1ST RESPONDENT. ANNEXURE-A7 : COPY OF THE CHARGESHEET ISSUED AGAINST SHRI.JAYAKUMAR ON 22.6.2015. ANNEXURE-A8 : COPY OF LETTER DATED 12.7.2016 ISSUED BY GENERAL MANAGERCOMMERCIAL TO SHRI.JAYAKUMAR.** **//TRUE COPY//** **PS TO JUDGE.** jg-6/7 K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------WA No.1936 of 2017 ------------------------------------------Dated this the 4[th] day of July, 2018 ## J U D G M E N T Ashok Menon, J. The appeal is filed against the judgment of the learned Single Judge in WP(C) No.12129/2015 setting aside the transfer order of the writ petitioner (first respondent herein) by the appellant-Air India Limited, on the ground that he has been transferred only because he was irksome to others. The learned Single Judge accepted the contention to hold that what cannot be achieved directly, cannot be achieved indirectly. Finding the transfer to be punitive, the transfer order was set aside. 2. The facts in brief are that the writ petitioner (first respondent herein) was working with the Ground Services Department of Air India Limited at Thiruvananthapuram International Airport as Officer (Apron). He was also involved in union activities and was the Regional Secretary for the Kerala Region of Aviation Industry and Employees Guild, a recognised WA 1936/17 -2- Trade Union. The petitioner had taken initiative to protect various grievances of the employees of Air India. That apart, when the ground handling services in the International Airport at Thiruvananthapuram was granted in favour of a private joint venture company by name Air India SATS Airports Services Pvt. Ltd. (AISATS), the writ petitioner had alleged extraneous reasons and alleged violation of Policy decision of the Government of India, resulting in huge revenue loss to Air India. The petitioner had approached appropriate authorities bringing to their notice the arbitrary and illegal action of the then Chairman and Managing Director. Ext.P1 is a representation made by the petitioner representing the Aviation Industry Employees' Guild as its Regional Secretary. The petitioner had also brought to the notice of the Director of Central Bureau of Investigation (CBI), the financial scam and economic fraud in the Thiruvananthapuram Airport as per representation at Ext.P2. He had also raised industrial disputes before the Regional Labour Commissioner in relation to denial of eligible allowances to a lady staff working in Air WA 1936/17 -3- India and also raised the issue of denial of eligible flying allowances to the cabin crew of Air India Express. Exts.P3 and P4 are copies of such petitions. 3. The said actions by the petitioner was only on account of his status as an office bearer of the Union and he is a “protected workman” as defined in the Explanation to Section 33(3) of the Industrial Disputes Act, 1947 ('ID Act', for short). Ext.P5 is the copy of list of “protected workmen” submitted by the Employees Union. By reason only of the petitioner having been a whistle blower, constantly irking the higher authorities, questioning them about their mala fide deals, a false case was foisted against the petitioner alleging sexual harassment. The internal committee, without any basis, concluded that the petitioner is guilty of misconduct. That report was challenged by the petitioner before this Court by filing WP(C) No.4001/2016 which was disposed of by this Court directing the Committee to reconsider the matter after affording the petitioner an opportunity of hearing. The specific contention of the petitioner is that the complaint relating to sexual harassment filed against WA 1936/17 -4- the petitioner is a cooked up complaint in order to wreak vengeance against him. The signatures are all forged and fictitious. Consequent to the direction of this Court to reconsider the matter, action has yet to be taken. However, with the intention to punish the petitioner, Ext.P6 order of transfer was issued on 25.3.2015 transferring the petitioner from Thiruvananthapuram Airport to Hyderabad. There is nothing to indicate that the order was issued in exigencies of services or for expediency of administration. 4. Disciplinary proceedings have been initiated against the petitioner for unauthorised absence in service, during the period he was on leave from 26.3.2015 to 31.3.2015, which was further extended till 7.4.2015 as sick leave for the reason that the petitioner was unwell. On 8.4.2015, the petitioner rejoined duty and even signed the muster roll. It was on that day, he was served with Ext.P6 order of transfer. He has not been relieved from his duty till date. The petitioner challenged the order of transfer in a writ petition, the judgment in which is impugned WA 1936/17 -5- herein. The illegal transfer has, according to the petitioner, caused him irreparable injury, loss, hardship and inconvenience. His wife is employed in Thiruvananthapuram Medical College as Nursing Superintendent. The family life of the petitioner was also adversely affected due to the transfer. It is also pointed out that there is no Department of Ground Handling in Air India at Hyderabad. The Employees' Guild represented by its Assistant Secretary raised an industrial dispute regarding the illegal transfer of the petitioner. The Regional Labour Commissioner (Central) had issued Ext.P8 notice on 7.4.2015 requesting respondents 3 and 4 (appellants 2 and 3 herein) to appear for conciliation. 5. After considering the allegations raised by the petitioner in the Writ Petition, the learned Single Judge observed that it was AI-SATS Association that raised the allegation of sexual harassment against the petitioner requesting the Management to take action against the petitioner. The Chief Executive Officer had forwarded the representation received from the Association through the Managing Director to initiate WA 1936/17 -6- appropriate action. The AGM (HRD) had also requested the petitioner to be posted at Calicut. The learned Single Judge after considering the communications observed that the order transferring petitioner to Calicut was on the ground that his past services was unsatisfactory and also in the light of various complaints raised against him. There were also letters pointing out various instances of disobedience. Based on all those requests, the Management took a decision to transfer the petitioner to Hyderabad and the order was issued on 25.3.2015. The learned Single Judge observed that all the communications as above would show that the transfer was punitive and not on account of administrative exigencies. It is also noted that the proceedings with respect to sexual harassment complained of against the petitioner is not concluded so far. There is a provision to transfer a delinquent employee on a request being made by the victim under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013, but no such request is seen made. WA 1936/17 -7- 6. Aggrieved by the impugned judgment, respondents 2 to 4 in the Writ Petition are in appeal. Among the various grounds raised in appeal challenging the impugned judgment, it is contended that first respondent/petitioner is not a “protected workman” under the ID Act, and that transfer is not in violation of Section 33 thereof. The appellants would contend that the dispute raised by the Writ Petitioner (first respondent herein) was conciliated upon by the authorities and since no settlement could be arrived at, the Conciliation Officer sent a failure report to the Government and the Government on being satisfied that the Writ Petitioner had not made out a case for reference of the dispute, passed an order stating that it did not consider the dispute fit for adjudication. It is submitted that the Writ Petitioner had approached the authorities under the ID Act raising the dispute and that therefore, the Writ Petition could not have been entertained by the learned Single Judge. The allegation regarding the Writ Petitioner being subjected to victimisation by the Management must be properly and adequately pleaded giving all particulars WA 1936/17 -8- upon which charge is based. The onus of establishing a plea of victimisation is upon the person pleading it and there is absolutely no material placed by the petitioner to prove victimisation by the Management. The finding of the learned Single Judge that the act of transferring the petitioner is punitive in nature, cannot be upheld, since there is absolutely no material indicating the Management having acted in a punitive manner. 7. It is also pointed out that the petitioner was holding the post of Officer (Apron) which involves ground support functions in the air side of the Airport. He was only performing administrative functions sitting in the Airport Office for almost three years from 2012 to 2015, and that therefore, administrative exigencies existed for the petitioner's transfer to another station, where there is a requirement. Hyderabad is one of the major bases having its first indigenous maintenance, repair and overhaul complex to undertake checks of aircrafts. At Thiruvananthapuram, the petitioner was not performing any technical job meant to be performed by his cadre WA 1936/17 -9- but he was doing only administrative work. These facts are not disputed by the petitioner; on the contrary, the Union has admitted in the statement that the petitioner was carrying on administrative functions and this was because he was instructed so to do by the Assistant General Manager. 8. That apart, the appellants would point out that the learned Single Judge has relied upon the sexual harassment complaint against the petitioner as a reason for his transfer. A complaint was addressed to the Airport Director, Airport Authority of India by 17 lady employees of AI-SATS and the Airport Director forwarded the same to Air India for necessary action. The Airport Director advised the Airport Manager of Air India to carry out preliminary investigation under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act as AI-SATS is a joint venture of Air India. Therefore, the complaint was forwarded to the Station Manager, Thiruvananthapuram who in turn forwarded it to the Regional Headquarters at Chennai. It was under these circumstances that the matter was referred to the Internal Complaints WA 1936/17 -10- Committee (ICC) of Air India for necessary action. Report was filed against the petitioner by the ICC. The petitioner had filed W.P.(C) No.4001/2016 challenging the proceedings initiated against him on the basis of the report of the ICC under the provisions of Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act. Vide Ext.P29, the learned Single Judge had set aside the impugned report of ICC and directed to reconsider the matter after giving fullest opportunity to the petitioner. Writ Appeal is filed as No. 1713 of 2016 challenging Ext.P29 Judgment, and the same is still pending. From the sequence of events, it is very clear that the sexual harassment complaint was not the reason for transfer of the petitioner and that the impugned judgment has misconceived this fact. The question whether an employee could be transferred to a different division, is a matter for the employer to consider depending upon the administrative necessity and the extent of resolution of the problems faced by the Management. 9. We heard Sri.E.K.Nandakumar, learned Senior Counsel appearing for the appellants and WA 1936/17 **==> picture [20 x 9] intentionally omitted <==** Sri.N.Nandakumara Menon, the learned Senior Counsel appearing for the first respondent/writ petitioner. The specific ground taken by the writ petitioner to quash the transfer order, was, it being in violation of the provisions of the ID Act, in view of his status of a “protected workman”. He also sought in the Writ Petition, as an interim measure, stay of transfer and permission to continue work at Thiruvananthapuram until a final decision is taken on the industrial dispute initiated as per Ext.P8. The prayer was not granted and while the writ petition was pending, the conciliation ended in failure. The finding of the Government that the dispute was not fit for adjudication, as the Union failed to provide evidence, substantiating the claim of the employee enjoying the status of a protected workman, has become final. The Writ Petition would be rendered infructuous and therefore, the learned Single Judge went wrong in concluding that the transfer has to be set aside on the finding that it was a punitive action. 10. By order dated 9.10.2017, another Division Bench of this Court doubted the maintainability of the WA 1936/17 -12- Writ Petition under Article 226 of the Constitution of India, in view of the admitted position of the petitioner that he was a workman under the Industrial Disputes Act. It was also noticed that there was a dispute initiated in which the report of failure of conciliation has been sent by the Conciliation Officer to the appropriate Government, who as per Ext.R2(a) refused to make a reference holding that it was 'not a fit case'; but the respondent (petitioner) sought time to address the Court further as to the maintainability of the Writ Petition. We agree with the order and there is no valid argument addressed as to how the writ petition is maintainable in view of the alternate efficacious remedy. The Division Bench also noticed that there could be a challenge against the decision of the Central Government refusing to refer the dispute. However no such challenge has been raised by the petitioner till date. Then again, the petitioner still maintains that even if the petitioner is not a 'protected workman', there could still be a challenge against the transfer; he would have to avail of the alternate efficacious remedy. WA 1936/17 -13- 11. The questions arising are whether the petitioner would come within the definition of “protected workman” as defined under Section 33(3) of the ID Act, and whether the petitioner's transfer was a punitive action. These are the only grounds raised in the writ petition. Ext.P5/P10 is the list of office bearers submitted by the President of the Aviation Industry Employees' Guild on 1.4.2015 indicating the list of persons, who are office bearers, as protected workmen under Section 33(4) of the ID Act read with Rule 61 of the Industrial Disputes (Central) Rules 1957. The name of the petitioner is indicated as the office bearer for Kerala Region. As per Ext.R2(b), the Regional Labour Commissioner (Central), Thiruvananthapuram has filed failure of conciliation report to the Secretary of Government of India, Ministry of Labour and Employment, New Delhi. The appellants would rely on the terms and condition of work in which it is stated that an employee can be transferred on exigency of employment. The learned counsel for the appellants refers to Ext.P7 which is the Standing Orders in respect of Air India Limited. WA 1936/17 -14- Order No.31 refers to transfers in which it is stated that in the exigencies of service and needs of administration, workman is liable to be transferred from one department or station to another, provided his pay, grade and continuity of service are not adversely affected by such transfer. It is also provided that unskilled workman shall not be transferred from one Station to another outside the State, except with his consent or on purely temporary basis. It is pointed out that the petitioner is not an unskilled workman and therefore, he could be transferred. The learned counsel for the appellants also submits that Rule 61(2) of the ID (Central) Rules does not provide a mandatory obligation that the workmen named in the application commence and continue to enjoy protected status on submission of a request by the Union. There cannot be a deemed recognition after the expiry of the period of protected workman status, which in the case of the petitioner expired on 30.9.2004. The communication treating certain office bearers of the Union as “protected workmen” was issued only in the year 2003 for a period from 1.10.2003 to 30.9.2004. Mere WA 1936/17 -15- intimation by the concerned union with a list of workmen for getting them the status of protected workmen such as Ext.P5 on 01-04-2015, would not be sufficient unless otherwise it is expressly recognised by the employer under Rule 61(2) of the ID (Central) Rules. Rule 61 reads thus:- “R.61. Protected workmen.-- (1) Every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer before the 30th April every year, the names and addresses of such of the officers of the union who are employed in that establishment and who, in the opinion of the union should be recognised as “protected workmen". Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change. (2) The employer shall, subject to S.33, subsection (4), recognise such workmen to be "protected workmen" for the purpose of subsection(3)of the said section and communicate to the union, in writing, within fifteen days of the receipt of the names and addresses under sub-rule (1), the list of workmen recognised as protected workmen for the period of twelve months from the date of such communication. (3) XXXXX” In the instant case, transfer order as per Ext.P6 was already issued on 25-03-2015, even prior to the intimation vide Ext.P5. Under the circumstances, the petitioner was not entitled to claim benefit of being a WA 1936/17 -16- protected workman. The learned Single Judge has not discussed or entered into a finding regarding whether the petitioner was entitled to the benefit of being a protected workman under Section 33(3) of the ID Act. 12. The reliefs sought for in the Writ Petition are to set aside the transfer order and allow continuance of the petitioner at Thiruvananthapuram. The premise on which such relief was claimed, as we see from the memorandum, is on the claim of his assumed status of a 'protected workman'. The petitioner did not urge it at the time of hearing of the writ petition since by then the claim was negatived. At the time of filing of the writ petition the issue was pending before the Conciliation Officer. While the Writ Petition was pending, the conciliation concluded with a failure report dated 16.12.2015, produced at Ext.R2(b). The appropriate Government also refused to refer the dispute for adjudication, finding no substantiation of claim to the status of 'protected workman'. The said order is produced at Ext.R2(a), which is dated 01.07.2016; prior to the impugned judgment. The foundation on which the case was built up, as seen from WA 1936/17 **==> picture [21 x 9] intentionally omitted <==** the memorandum, is the assertion of the status a 'protected workman', who is protected from a transfer. The foundation stood demolished by Ext.R2(a), which by reason of no challenge being made, has acquired finality. 13. The writ petitioner has a contention that he was not served with the transfer order in time. Ext.P8 is a notice sent by the Regional Labour Commissioner to the appellants informing them about holding of a conciliation on 22.04.2015, with regard to Ext.P9 representation dated 06.04.2015, by the Union, alleging violation of Section 33 of the ID Act, and the appellants were advised to ensure that Section 33 of the ID Act is not violated. The petitioner would contend that he had not received Ext.P6 order of transfer alleged to have been issued on 25.3.2015 till 08.04.2015, and that he had attended the office even subsequent to that date as also availed leave. This does not appear to be true because the Union representing the writ petitioner had filed a complaint under the ID Act as early as on 6.4.2015 as is evident from Exts.P8 and P9, which admit their knowledge about WA 1936/17 -18- the transfer of the petitioner in violation of Section 33 of the ID Act vide Ext.P6. Under the circumstances, the endorsement on Ext.P6 that the writ petitioner had received photocopy of the order only on 8.4.2015 appears to be unreliable. Without getting to know about the transfer order dated 25.3.2015, it would not have been possible for the Union to make Ext.P9 representation under the ID Act alleging violation of Section 33. Had the writ petitioner come to know about the transfer order only on 8.4.2015 as is alleged by him, it would not have been possible for the Union to file a complaint before the authorities on 6.4.2015. As for the leave said to have been applied for and sanctioned; Annexure A7 indicates that disciplinary action was taken against the officer who had willfully and without authority signed the leave card of the petitioner inspite of being aware that the petitioner was transferred out of Trivandrum. However, as per Annexure A8, he was let off with a warning. The leave granted to the petitioner was rejected. Action is not so far initiated against the petitioner for his unauthorised absence. WA 1936/17 -19- 14. The question that remains to be considered is whether there was any victimisation of the petitioner which led to the transfer orders being made. The alleged complaint of sexual harassment has not been proceeded with so far and no action whatsoever has been taken on that complaint. As stated earlier, the Appeal filed by the respondents challenging Ext.P29 judgment is still pending consideration. The petitioner has alleged that on the complaints made by the petitioner, Ext.P16 FIR was registered against top officials of the AI-SATS. It is submitted by the learned Senior Counsel for the respondents (AIR INDIA) that the criminal case has been referred by the CBI for want of any material and that the final report has been accepted by the court and the case is closed. This fact is not controverted by the learned Senior Counsel for the petitioner. We have also been showed an order evidencing the same, across the Bar, which is not disputed. 15. As per Ext.P7 Standing Orders referred to above, the petitioner is liable to be transferred on exigencies of service. There is nothing to show that WA 1936/17 -20- the petitioner is an unskilled employee entitled to special consideration under Order 31 of the Standing Orders. As already noticed, the entire edifice on which the Writ Petition was filed was on the claim of status of 'protected workman', which now stands negatived. The petitioner had also urged mala fides in having issued the transfer order, for reason of his being a whistle blower and also on allegations raised of instigation against AI-SATS. But none were impleaded in their personal capacity. The allegations were also broad and not specific. On the aspect of mala fides we cannot but notice 2013 (1) SCC 524 [Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd.] : “25. Even otherwise the findings recorded by the High Court on the question of mala fides do not appear to us to be factually or legally sustainable. While we do not consider it necessary to delve deep into this aspect of the controversy, we may point out that allegations of mala fides are more easily made than proved. The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to WA 1936/17 -21- furnish particulars that would prove mala fides on the part of the decisionmaker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity. xxx xxx xxx 27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned. It is important to remember that a judicial pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. Courts have, therefore, to be slow in drawing conclusions when it comes to holding allegations of mala fides to be proved and only in cases where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a finding in the process ensuring that while it does so, it also hears the person who was likely to be affected by such a finding.” 16. The learned Single Judge found the transfer punitive on discovery of documents from the original WA 1936/17 -22- files, which is referred to in the judgment. The documents were the various complaints raised by AI-SATS and the specific request made therein for transfer of the petitioner. A transfer order was issued to Calicut on 29.01.2015, which obviously was not acted upon. The instant transfer was later in March, 2015. The only inference possible is that though initially the appellants acted on the request of the AI-SATS, it was not pursued. It cannot also be, but emphasised that the assertion of mala fides has to be substantiated with far more satisfying evidence than an aborted transfer attempt made two months back. The allegation of mala fides flounders also on account of Ext.P41, a call letter for interview for promotion issued, amongst others, to the petitioner too. If the institutional mala fides urged was true, there was no reason for such a move. We cannot co-relate the allegations of sexual harassment or the other attempts made by the petitioner to wipe out injustice perpetrated by the Institution; to the transfer impugned. We cannot find the transfer to be a result of the earlier incidents or a punitive measure. We cannot therefore agree with the learned WA 1936/17 -23- Single Judge on the point that Ext.P6 transfer order is punitive in nature and hence liable to be struck down. The appeal is therefore, to be allowed and the impugned judgment is to be set aside. We do so. 17. We also have to notice that the petitioner has not joined Hyderabad, to which place he was transferred by the impugned order. The petitioner had a claim of submission of leave application and service of the order having not been effected; both of which stands negatived. There was also no stay or interim order of continuance, granted in the Writ Petition and hence the petitioner is faced with the prospect of a fresh proceedings for disciplinary action for unauthorised absence. However, action for unauthorised absence on rejection of leave has not been proceeded so far. Admittedly, no proceedings have been resumed on the allegation of sexual harassment. As already found, neither is it substantially alleged by the petitioner nor is evidenced any co-relation of the righteous actions initiated by the petitioner against the Institution and the allegation of sexual harassment raised by employees of AI-SATS. The allegation of WA 1936/17 -24- sexual harassment has not been pursued by the complainants, nor is the further proceedings directed by the Court on the said allegations resumed as yet. The appeal said to have been filed against the learned Single Judge was grossly delayed and not even the delay is condoned till date. The attempt is only to perpetually dangle the charges, as a sword over the head of the petitioner. It is very evident that the petitioner has not only sinned but also was sinned against. It is submitted across the bar by the learned Senior Counsel appearing for the first respondent (Writ Petitioner) that the first respondent/petitioner has 8 years of service remaining and that he has already undergone much hardship. It is expressed that he is willing to work and continue in service in case he is reinstated without any benefits for the period he remained on unauthorised absence. He does not claim any benefit during the time he remained outside, without joining on transfer. Considering the entire circumstances of the case and taking into account the fact that he has considerable years of service left, WA 1936/17 -25- we direct the first respondent/petitioner be reinstated in service and be given a posting in accordance with the exigency of service as determined by the appellants. The period he was out of service by reason only of his not joining the transferred post shall be taken as eligible leave or loss of pay. The petitioner shall be joined back in service without any incidental or notional benefits, for the period he remained out of service; subject only to the condition that the said period shall be treated as eligible service for pension if applicable and will not be deemed to be a break in service. With these directions, the judgment of the learned Single Judge is set aside and the Writ Appeal is allowed. No order as to costs. Sd/K.VINOD CHANDRAN JUDGE Sd/ASHOK MENON JUDGE jg