Aswathy Thankachan v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942** ## **WP(C).No.13430 OF 2020(C)** ## **PETITIONER:** ## **ASWATHY THANKACHAN** **D/O. JOHN MATHAI, CHANDINI NIVAS, EAST GATE, VAIKOM686 141, KOTTAYAM, JUNIOR ASSISTANT, SUPPLYCO SUPER MARKET, VAIKOM.** **BY ADVS. SRI.ROY CHACKO SRI.K.C.VINCENT** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF CIVIL SUPPLIES, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED (SUPPLYCO) MAVELY BHAVAN, GANDHI NAGAR, KADAVANTHRA, KOCHI682020, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.** **3 THE REGIONAL MANAGER SUPPLYCO, THIRUNAKKARA, KOTTAYAM-686 001.** - **4 THE TALUK DEPOT MANAGER SUPPLYCO, VAIKOM DEPOT, THALAYOLAPARAMBU P.O.,KOTTAYAM-686 605.** - **5 RASIYA P.S. JUNIOR ASSISTANT, SUPPLYCO NFSA DEPOT, VAIKOM-686 605.** **R2-4 BY SMT.MOLLY JACOB,SC,SUPPLYCO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13430 OF 2020(C)** **2** ## **JUDGMENT** **Dated this the 14th day of September 2020** This writ petition is filed challenging Exts.P1 and P2 orders of transfer issued by the respondents. The petitioner, while working as a Junior Assistant and Officer-in-charge of the Supplyco Supermarket at Vaikom, has been transferred and posted as Officer-in-charge at the Mavelistore at Arattukulangara which is admittedly within the Vaikom Municipal limits itself. 2. It is submitted by the learned counsel for the petitioner that the petitioner is the mother of two children and that the Supermarket wherein she is working is very close to her residence. It is submitted that Ext.P1 order of transfer would make it clear that it is not a part of the general transfer and that the letter of the 4[th] respondent referred to in Ext.P1 provides that the relief and postings pursuant to general transfers shall not be effected till 01.10.2020. It is therefore, contended that the transfer of the petitioner is vitiated by mala fides. It is submitted that by Ext.P2 dated 01.07.2020, Ext.P1 order has been modified and that a **WP(C).No.13430 OF 2020(C)** **3** different person has been directed to take charge in place of the petitioner as Officer-in-charge of the Supermarket at Vaikom. It is submitted that Ext.P3 representation has been submitted on 30.06.2020 before the 4[th] respondent appraising the 4[th] respondent about the difficulty faced by the petitioner. It is submitted that Ext.P7 is the proceedings referred to Ext.P1 and it directs that transfers of persons holding charge of stock shall be effected only with effect from 01.10.2020 and that Ext.P1 order has been issued in violation of the guidelines issued by the higher Authorities in the matter of transfer. It is further submitted by the learned counsel for the petitioner that the petitioner has been transferred to accommodate one Aswathy.P.M, who has rejoined duty after maternity leave. It is submitted that the said person has already been accommodated at the NFSA Vaikom by proceedings dated 21.05.2020 and that the contentions are therefore incorrect. 3. A statement has been filed by the respondents in the writ petition as originally filed after the amendment of the writ petition, counter affidavit has also been placed on record by the respondents. It is stated that the petitioner had been working in **WP(C).No.13430 OF 2020(C)** **4** the Supplyco Supermarket at Vaikom since 01.04.2018. It is stated that though she was transferred in 2019, she was allowed to continue at the Vaikom Supermarket on humanitarian grounds. It is stated that the present transfer is only to the Arattukulangara Mavelistore in the Vaikom Municipality and that the transfer does not cause any inconvenience to the petitioner. It is stated that the Vigilance Officer of the Corporation had conducted an inspection in the Vaikom Supermarket on 21.12.2019 and had found some discrepancies in the stock. It is further stated that there were complaints received against the petitioner from members of the public as well as from the local M.L.A and that this had also prompted the respondents to transfer the petitioner out for the proper administration of the supermarket. It is further submitted that the transfer is not effected as a punitive measure and is only intended for the administrative convenience. It is submitted that Ext.P7 had stayed the relief of Officers pursuant to the general transfers and that the respondents had only transferred the petitioner to a nearby Mavelistore without causing any inconvenience to her, since there would be delay in implementing **WP(C).No.13430 OF 2020(C)** **5** the general transfers in the Corporation. 4. The learned counsel for the petitioner submits that a reading of the counter affidavit would by itself show that the transfer had been effected as a punitive measure and that it was only at the instance of the local M.L.A that the petitioner had been transferred out of the Supermarket at Vaikom. It is contended relying on a decision of a Division Bench of this Court in **[** _**2014 (4) KHC 315],**_ that an order of transfer can be interfered with when the order is passed on materials which were non existent and suffers from total non application of mind and malice on the part of the authorities. It is submitted that the Division Bench has clearly held that where the transfer is not in public interest and where the power of the transfer is abused for collateral purposes with oblique motive, the order of transfer would stand vitiated, warranting interference by the Court or Tribunal. 5. The learned Standing Counsel appearing for the respondents would submit that the petitioner, being an employee of the respondent-Corporation is obliged to serve the Corporation at any Supermarket, Depot or Station where she is posted. It is **WP(C).No.13430 OF 2020(C)** **6** contended that the present transfer is only from the Supplyco Supermarket Vaikom to the Mavelistore at Arattukulangara and does not prejudice the petitioner in any way. It is submitted that the transfers in the exigencies of service cannot be challenged by employees only on the ground that such transfers are inconvenient to them. It is further submitted that since the transfer is to a Mavelistore which is within the Vaikom Municipal area itself, the contention of the petitioner that the transfer is effected to spite her or is vitiated by mala fide is completely baseless. It is submitted that there were certain complaints raised against the petitioner and that the respondents found that it was in public interest and in the interest of the administrative exigencies to transfer the petitioner to the Mavelistore. It is submitted that the Division Bench in the judgment relied on by the petitioner had itself specifically held that where the service of an employee is not found to be satisfactory in a particular place it would be open to the employer to take such remedial measures to meet the requirements of the situation like initiation of disciplinary proceedings or transferring the employee out of the place. It was **WP(C).No.13430 OF 2020(C)** held that where the employer is of the opinion that mere transfer of the employee would suffice the interest of the administration and accordingly orders transfer of such employee, such order of transfer need not be necessarily be as a measure of punishment. It is stated that in the instant case also, the petitioner is not put to any inconvenience due to the order of transfer and that the order is specifically in administrative exigencies. It is contended by the learned Standing Counsel that there is no sustainable allegation or mala fide and that it is open to the respondents to transfer the petitioner out for the best interest of administration even without initiating any disciplinary proceedings. The learned Standing Counsel would also rely on a decision of the Apex Court in _**Mohd.Masood Ahmad v. State of U.P and Others [2007 KHC 4004],**_ in support of the contention that even in a case where the transfer is on a complaint submitted by the local M.L.A that by itself would not vitiate the transfer order. The Apex Court held that it is the duty of the representative of the people in the Legislature to express the grievances of the people and if there is any complaint against any official, the State Government is within its jurisdiction **WP(C).No.13430 OF 2020(C)** **8** to transfer such an employee. It was held that there can be no hard and fast rule that every transfer at the instance of an M.P or M.L.A would be vitiated. It is stated that the legality of such transfer order would have to be considered in the facts and circumstances of individual cases. The learned Standing Counsel submits that after considering the precedents on the point, the Apex Court had also held that an order of transfer being part of service conditions of an employee is liable to be interfered with only if this Court finds that either the order is mala fide or that the service rules prohibits such transfer or that the Authority which issued the order was not competent to pass the order. 6. I have considered the contentions advanced on either side and have also perused the pleadings placed on record. The primary contention raised by the petitioner in the writ petition is that Ext.P1 order is vitiated in as much as it refers to Ext.P7 which states that relief of Officers who are handling stock pursuant to general transfer is to be effective only after 30.09.2020. It is submitted by the learned counsel for the petitioner that on the basis of an interdiction of effecting orders of transfer the **WP(C).No.13430 OF 2020(C)** **9** petitioner has been transferred out, which itself would show that the transfer is vitiated by mala fides. It is further contended that the counter affidavit filed by the respondents would show that the transfer is punitive in nature and is further vitiated by the fact that it was necessitated only due to a complaint submitted by the local MLA. 7. I notice from the documents produced and the pleadings placed on record that the reliance on Ext.P7 in Ext.P1 order of transfer is only to say that the orders of general transfer having been kept in abeyance till 31.09.2020, the specific order of transfer had been necessitated which is the reason why Ext.P1 has been issued directing the relief of the petitioner pursuant to the order of transfer. The contention that reliance on Ext.P7 vitiates the order of transfer therefore cannot be accepted. 8. The further contention is to the effect that the counter affidavit would show that the transfer itself is punitive in nature. The learned counsel for the petitioner would submit that no disciplinary proceedings have been initiated against the petitioner on the basis of the complaints and that as such the transfer of the **WP(C).No.13430 OF 2020(C)** **10** petitioner is unjustifiable. 9. Having considered the materials on record, I agree with the contentions raised by the learned Standing Counsel that only because there were complaints as against the petitioner that by itself would not make an order of transfer punitive in nature. A Division Bench of this Court in _**Gopinathan M. and Another v. State of Kerala and Others [2014 (4) KHC 315],**_ has clearly held that if the transfer of an employee from a particular place is found to be necessary for whatever reasons, it is permissible for the employer to effect such a transfer in administrative exigencies. The fact that certain complaints had been raised against the said employee by itself would not render transfer punitive in nature. In the instant case this is more so because the petitioner has been transferred only to a near by Mavelistore and that the petitioner also does not have any specific case that she has been prejudiced due to the order of transfer. The Apex Court has also held that a recommendation or a complaint made by a peoples representative by itself would not vitiate an order of transfer even if the said recommendation is taken into account by the Authority concerned **WP(C).No.13430 OF 2020(C)** **11** unless the Authority which passed the order of transfer is incompetent to order such transfer. In the instant case, it is the specific case of the respondents that it was only in administrative exigencies that the order was passed and that it was not on any recommendation by the local MLA or any other Authority. Having considered the contentions advanced on either side, I am of the opinion that this is not a fit case for this Court to interfere with an order of transfer in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition fails and the same is accordingly dismissed. **Sd/-** **ANU SIVARAMAN** **JUDGE** **SVP** **WP(C).No.13430 OF 2020(C)** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 29.6.2020 WITH ENGLISH TRANSLATION.** - **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 1.7.2020 WITH ENGLISH TRANSLATION.** - **EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 30.6.2020 SUBMITTED BEFORE THE 4TH RESPONDENT WITH ENGLISH TRANSLATION.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 22/06/2020. EXHIBIT P5 A TRUE PRINT OUT OF THE RELEVANT PAGES OF THE STATEMENT DATED 02/07/2020.** - **EXHIBIT P6 TRUE COPY OF THE MESSAGE SENT BY KITCHEN TREASURES DATED 09/07/2020.** - **EXHIBIT P6(a): TRUE COPY OF THE MESSAGE SENT BY MELAM DATED 13/07/2020.** - **EXHIBIT P6(b): TRUE COPY OF THE MESSAGE SENT BY SB FOODS DATED 08/07/2020.** - **EXHIBIT P6(c): TRUE COPY OF THE MESSAGE SENT BY NIRAPARA DATED 08/07/2020.** - **EXHIBIT P6(d): TRUE COPY OF THE MESSAGE SENT BY DR.WASH DATED 08/07/2020.** - **EXHIBIT P6(e): TRUE COPY OF THE MESSAGE SENT BY KERALA SOAPS DATED 09/07/2020.** - **EXHIBIT P7 A TRUE COPY OF THE LETTER, SENT BY THE 3RD RESPONDENT, E1-782/20 DATED 22.06.2020.** - **EXHIBIT P8 A TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 21.05.2020.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2(a) PHOTO COPY OF THE WRITTEN COMPLAINT FROM ONE KALESH, SIVAKRIPA HOUSE DT.20/5/2020** **WP(C).No.13430 OF 2020(C)** **13** ## **TO VAIKOM MLA** **EXHIBIT R2(b) PHOTO COPY OF THE WRITTEN COMPLAINT DATED 23/6/2020 FROM ONE N. GOPALAKRISHNA KAMATH BEFORE THE 4TH RESPONDENT EXHIBIT R2(c) PHOTO COPY OF THE LETTER DT. 25/6/2020 FROM THE LOCAL MLA TO DEPOT MANAGER**