G. Mohandas v. Kerala State Warehousing Corporation & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938** ## **WP(C).No. 21831 of 2016 (D)** **----------------------------** ## **PETITIONER :** **-----------------------** **G.MOHANDAS, RESIDING AT "SIVAM", XXX1/20-B3,APR LANE, AMBELIPADAM ROAD, VYTILA, KOCHI -682 019** **BY SRI.N.N.SUGUNAPALAN,SENIOR ADVOCATE ADV. SRI.S.SUJIN** ## **RESPONDENT(S):** - **----------------------------** **1. THE KERALA STATE WAREHOUSING CORPORATION, HEAD OFFICE, ERNAKULAM, P.B NO 1727,** **WAREHOUSING CORPORATION ROAD, COCHIN -682 016 REPRESENTED BY ITS MANAGING DIRECTOR.** **2. THE MANAGING DIRECTOR, KERALA STATE WAREHOUSING CORPORTION, HEAD OFFICE, ERNAKULAM, P.B NO.1727, WAREHOUSING CORPORATION ROAD, COCHIN- 682 016** **3. K.VIKRAMAN, JOINT MANAGER (MARKETING), KERALA STATE WAREHOUSING CORPORATION, STATE WAREHOUSE, KANNUR-670 110** ## **4. K.N.GIRISH,** - **SENIOR ASSISTANT MANAGER, KERALA STATE WAREHOUSING CORPORATION, STATE WAREHOUSE, NORTH PARAVUR, ERNAKULAM DISTRICT-683 310** **R1 & R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 21831 of 2016 (D)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** - **P1 TRUE COPY OF THE MEMO OF CHARGES DTD 21-06-2014 ISSUED TO THE 3RD RESPONDENT BY THE MANAGING DIRECTOR OF THE CORPORATION** - **P2 TRUE COPY OF THE STATEMENT OF ALLEGATION DATED 21-6-2014 ISSUED TO THE 3RD RESPONDENT** - **P3 TRUE COPY OF THE MEMO OF CHARGES DATED 9-7-2014 ISSUED TO THE 4TH RESPONDENT** - **P4 TRUE COPY OF THE STATEMENT OF ALLEGATIONS ISSUED TO THE 4TH RESPONDENT** - **P5 TRUE COPY OF THE ORDER OF THE MANAGING DIRECTOR DATED 26-11-2015** - **P6 TRUE COPY OF THE ORDER ISSUED BY THE MANAGING DIRECTOR DATED 14-09-2015** - **P7 TRUE COPY OF THE REPRESENTATION DATED 27-5-2016** - **P8 TRUE COPY OF THE SAID TRANSFER ORDER DATED 23-06-2016** - **P9 TRUE COPY OF THE SAID TRANSFER ORDER DATED 23-6-2016** ## **RESPONDENT(S)' EXHIBITS: NIL** **------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ALEXANDER THOMAS, J. ----------------------------- W.P(C).No.21831 Of 2016 --------------------------------- Dated this the 25th day of July, 2016. ## J U D G M E N T The petitioner herein was the Chairman of the 1[st] respondent-Kerala State Warehousing Corporation for the period from 19.11.2013 to 31.5.2016 and he had subsequently resigned from that position on 31.5.2016. The prayers in this Writ Petition are essentially raising a challenge against the legality and correctness of impugned Exts.P-8 and P-9 proceedings dated 23.6.2016 whereby the 1[st] respondent-Corporation has ordered the transfer and posting of contesting respondents 3 & 4 from their earlier station at Kannur to the Head Office of the 1[st] respondentCorporation at Cochin. The contention raised by the petitioner is that disciplinary proceedings were earlier initiated against the contesting respondents in the matter of alleged preparation of wrong statement of facts made at their instance in certain litigations conducted before this Court [in W.P.(C).No.10791/2013] ::2:: W.P(C).No.21831 Of 2016 and that they had wrongly given instruction for the preparation of the counter affidavit in those matters and in that regard after detecting the wrong committed by them, the 1[st] respondentCorporation had initiated disciplinary proceedings as memo of charges against them. Ext.P-1 dated 21.6.2014 and Ext.P-2 dated 21.6.2014 are the memo of charges and statement of allegations given to contesting respondent No.3 and Ext.P-3 dated 9.7.2014 and Ext.P-4 are the memo of charges and statement of allegations given to contesting respondent No.4. It is further averred that after the conduct of due proceedings in those disciplinary enquiry, the 1[st] respondent-Corporation had found that the allegations against those incumbents were proved and this led to issuance of penalty orders as per Ext.P-5 dated 26.11.2015 and Ext.P-6 dated 14.9.2015 whereby it was ordered that their promotions should be barred for three years. It is further pointed out that both the contesting respondents 3 & 4 had filed statutory appeals before the competent appellate authority as they are aggrieved by those orders and the competent authority had ::3:: W.P(C).No.21831 Of 2016 dismissed those appeals thereby confirming the impugned penalty orders. It is further pointed out that the contesting 3[rd] respondent alone had challenged those disciplinary proceedings by instituting a Writ Petition as W.P.(C).No.17631/2016 before this Court which is stated to be pending. It is further pointed out that to the best knowledge of the petitioner, no such writ proceedings of other proceedings have been initiated by the contesting respondent No.4 to challenge the disciplinary proceedings which has already culminated by way of impugned penalty order. 2. The grievance of the petitioner is that after the change of Government on the conclusion of the General Election to the State Legislative Assembly in May, 2016, contesting respondents 3 & 4 have been given transfer and posing as per the impugned Exts.P-8 and P-9 dated 23.6.2016 whereby they have been given transfer based on the request from their earlier station at Kannur to the Head Office of the 1[st] respondent-Corporation at Cochin. The complaint projected in this Writ Petition is that the vital documents regarding the said disciplinary proceedings are kept in the Head ::4:: W.P(C).No.21831 Of 2016 Office of the Corporation and that contesting respondents 3 & 4 will misuse their posting at Cochin and are likely to have access to the documents and manipulate the records, which would detrimentally affect the conduct the conclusion of the writ proceedings pending before this Court in the matter of challenge against those penalty order. It is pointed out that apprehending such transfer that may be secured by those contesting respondents, the petitioner had even prior to the issuance of the impugned transfer orders, submitted Ext.P-7 representation dated 27.5.2016 before the State Government pointing out the dangers of posting those incumbents at the Head Office, etc. It is in the light of these facts and circumstances, that the petitioner has filed the instant Writ Petition seeking the following prayers: - “a) Issue a writ of Certiorari or any other appropriate writ, order or direction quashing the transfer and posting of respondents 3 & 4 ordered as per Exhibits-P8 and P9; - b) Issue a writ of Mandamus or any other appropriate writ, order or direction directing the 2nd respondent to keep in safe custody all the documents and files connected with the memorandum of charges and statement of allegations issued to respondents 3 and 4 evidenced by Exts.P1 to P4; - c) Award to the petitioner the costs of these proceedings; d) Grant such other or further relief as this Hon'ble Court deems fit to grant in the particular facts and circumstances of the case.” ::5:: W.P(C).No.21831 Of 2016 3. This Court, going by the nature of averments and grievance projected in this Writ Petition, had not issued notice in the matter, but, had requested the learned Standing Counsel for the 1[st] respondent-Corporation to get instructions and to file a statement, if necessary, on behalf of official respondents 1 & 2. Thereupon, the learned Standing Counsel has filed a statement dated 1.7.2016 on behalf of official respondents 1 & 2. Therein it is contended that the petitioner is no longer in the service of the Corporation as he had resigned from the Post of Chairman and left the Corporation as on 31.5.2016. Therefore, he is an outsider to the Corporation and consequently, he has no right to challenge the impugned transfer orders of erstwhile organisation in that regard and finally the official respondents would contend that by virtue of various rulings of the Apex Court and the High Court, it is well settled that there is no scope for litigations in the nature of public interest litigations conducted in service matters. In that regard official respondents 1 & 2 would rely on various rulings of the Apex Court in the cases as in Jojo George v. State of Kerala reported in ::6:: W.P(C).No.21831 Of 2016 (2015) SCC Online Ker 31178, Dr.Duryodhan Sahu v. Jitendta Kumar Mishra reported in (1998) 7 SCC 273, Dr.D.N.Thaware v. State of Maharashtra reported in (2005) 1 SCC 590, Hari Bansh Lal v. Sahodar Prasad Mahto reported in (2010) 9 SCC 655 and Girjesh Shrivastava v. State of Madhya Pradesh reported in (2010) 10 SCC 707 and would contend that the petitioner should be denied locus to sue in this matter and at any rate, this Court may not proceed to entertain the matter on merits. Further it is stated in para 3 of the statement that contesting respondents 3 & 4 were transferred to the Head Office of the Corporation as a matter of routine transfer and posting together with 10 others and their services are required in the Head Office in the exigencies of service and that contesting respondents 3 & 4 have already joined the Head Office of the Corporation pursuant to Exts.P-8 & P-9. Further it is also stated in para 2 on page 2 of the statement that the 2[nd] respondent-Managing Director of the Corporation will keep in his safe custody all records and documents pertaining to the disciplinary proceedings, till a final decision is taken in the pending Writ Petition [viz., W.P.(C). ::7:: W.P(C).No.21831 Of 2016 No.17631/2016] filed by the 3[rd] respondent. It is also pointed out that the 4[th] respondent has not so far filed any Writ Petition and as of now he has accepted the enforcement of the penalty order to the extent it affects him. Thereby it is contented that the petitioner cannot contend that the 4[th] respondent is in any manner likely to cause any problems in the conduct of the future litigations in the matter inasmuch as he has not so far filed any Writ Petition or any other proceedings to challenge the penalty order already imposed on him. 4. Heard Sri.N.N.Sugunapalan, learned Senior Counsel, instructed by Sri.S.Sujin, learned counsel appearing for the petitioner and Sri.P.Gopinath, learned Standing Counsel appearing for official respondents 1 & 2. In the nature of the manner in which this Writ Petition proposed to be disposed of, this Court is of the considered opinion that there is no necessity to issue notice to the contesting respondents 3 & 4 and accordingly notice to them are dispensed with. ::8:: W.P(C).No.21831 Of 2016 5. Before entering into the merits of the matter, this Court feels that the aspects relating to locus standi in such matters may be considered, inasmuch as the petitioner has left the respondent organization on 31.05.2016 and is thus in no way connected with the affairs of the Corporation at the time when the impugned transfer orders were issued on 23.6.2016. As rightly pointed out by the learned Standing Counsel for the official respondents, it is now well established that there is no scope for public interest litigative matters which are intimately connected with service matters. Apart from the aforestated rulings, the learned Standing Counsel for the official respondents 1 & 2 relied on the ruling of the Apex Court in the case Madal Lal v. High Court of J& K reported in (2014) 15 SCC 308, wherein it was held that in recruitment process wherein the challenger not being aggrieved with the selection of candidates, then the proceedings initiated by him would be in the nature of public interest litigation and therefore consequently, not maintainable. It was also held that when the challenger does not have any direct grievance against the ::9:: W.P(C).No.21831 Of 2016 successful candidates, then the entire proceedings would be in the nature of public interest in matters and such proceedings are not maintainable service barring quo warranto. The legal aspects dealing with locus standi in public interest litigation in service matters are dealt with by the Apex Court in para 9 of the above said decision which reads as follows: '9. That apart time and again this Court repeatedly held that in service matters, public interest litigation is not maintainable. We can profitably refer to a recent decision reported in Hari Bansh Lal v. Sahodar Prasad Mahto [(2010) 9 SCC 655]. Paras 14 and 15 are relevant which are as under: (SCC pp. 660-61) _“14. In Ashok Kumar Pandey v. State of W.B. [(2004) 3 SCC 349] this Court held thus: (SCC pp. 358-59, para 16)_ _“16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of so-called public interest litigations where even a minuscule percentage can legitimately be called public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilised for disposal of genuine cases. Though in Duryodhan Sahu v. Jitendra Kumar Mishra [(1998) 7 SCC 273] this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the courts should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts.”_ _The same principles have been reiterated in the subsequent decisions, namely, B. Singh v. Union of India [(2004) 3 SCC 363], Dattaraj Nathuji Thaware v. State of Maharashtra [(2005) 1 SCC 590] and Gurpal Singh v. State of Punjab [(2005) 5 SCC 136]._ _“15. The above principles make it clear that except for a writ of quo warranto, public interest litigation is not maintainable in service matters.”'_ ::10:: W.P(C).No.21831 Of 2016 In the aforestated ruling of the Division Bench of this Court in Jojo George v. State of Kerala reported in (2015) SCC Online Ker 31178 this court dealt with the scope of interference in public interest challenge and transfer matter and held that issues which arise cannot be entertained in a public interest litigation and has held as follows: “Heard. This public interest litigation has been filed by the petitioner seeking a direction to the sixth respondent to forthwith freeze the transfer order effected by Exhibit P2. Exhibit P2 is a proceeding issued by the Deputy Commissioner Commercial taxes, Idukki, where an order was issued referring to certain omissions which crept in the earlier order dated 10.9.2015. 2. The petitioner submits that election having been announced, though code of conduct came in force only from 3.10.2015, no transfer order could have been issued. He further submits that Election Commission has directed on 23.9.2015 for freezing the transfer order effected by the Higher Secondary Director. The writ petition virtually seeks to interfere with the transfer order issued with regard to certain employees of Deputy Commissioner Commercial Taxes. 3. Learned counsel for the Commission submits that the Commission will take up the matter with the Government if there is any breach of its direction regarding deployment of the employees for the election duty. 4. Be that as it may, we are of the view that issues which arise cannot be entertained in a public interest litigation. The issue specifically relates to service matters of certain employees who has been transferred. Those employees not being aggrieved by the said arrangement, the writ petition cannot be entertained. The writ petition is closed.” This Court had also occasion to deal with a similar issue in which judgment was rendered on 16.6.2016 by this Court in W.P.(C) 4342/2016, paras 3 & 4 of which read as follows: ::11:: W.P(C).No.21831 Of 2016 “ 3. .............................It is by now well established that matters relating to recruitment to service and matters in the recruitment arena or the the postrecruitment grievances in relation to conditions of service, are eminently within the domain of service litigation. It is by now too well settled that there is no locus standi for a third party to sue in public interest litigation in matters, which predominantly fall within the arena of service litigation. The matters concerning recruitment and alleged illegalities and irregularities in the selection process would certainly come predominantly within the zone of service litigation. The essential challenge made in the present Writ Petition is that there were grave irregularities and illegalities in the conduct of the impugned selection process that took place in the year 1992 and that the matter should be thoroughly probed by the Government for effective action to rectify such illegality and to take appropriate action thereon, etc. It is fairly admitted by the petitioner that he was never a participant or aspirant in the impugned selection process and that his claims have not in any way remotely affected by the selection of the contesting respondents and other candidates in the impugned selection process pursuant to Ext.P-1. Therefore, it is highly doubtful whether the petitioner, being a third party to the impugned selection process, can claim locus in public interest litigation to agitate any grievances in relation to the alleged illegalities in the impugned selection process. ....................................... 4. Since the petitioner's claim in his service or otherwise was not in any manner affected by the impugned selection process, it is also equally doubtful whether the petitioner has locus in private law to sue ordinarily, even outside the arena of public interest litigation, as in such cases, the disputant may not have a justiciable grievance or cause of action, as in the facts of this case. But this is not to say that High Courts invested with extra-ordinary powers under Art.226 of the Constitution of India, cannot have any jurisdiction to entertain pleas regarding any blatant illegality or grave corruption, taking into account the extra-ordinary nature of the facts and circumstances of the case. Therefore, this Court will have to examine the genuineness and bona fides of the complainant with great sensitivity and caution to make sure that there are compelling and extra-ordinary reasons for warranting any interference and so that such litigants do not misuse the discretionary jurisdiction of this Court for any extraneous or private motives and agendas.” 6. The Apex Court in the ruling in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra reported in (2013) 4 SCC 465 = 2012 11 SCALE has held as follows: ::12:: W.P(C).No.21831 Of 2016 23. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus standi to raise any grievance whatsoever. However, in exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, inarticulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bona fides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo motu, in such respect. 7. The learned Senior Counsel also placed reliance on the judgment of the High Court of Calcutta in the case Kunal Saha v. State of West Bengal and Ors. reported in AIR 2015 Cal 370. The learned Senior Counsel has fairly submitted that in the facts of that case, the wife of the petitioner therein had directly suffered injuries due to the negligence of the respondents therein as per the pleaded case in that matter. However, learned Senior Counsel would contend that the said judgment has been cited to show the great strides have been made in various rulings of the Apex Court in expanding the scope of locus standi in public interest litigations. 8. Going by the facts of this case, this Court of the considered opinion that even according to the petitioner what is challenged is essentially the impugned transfer orders issued in ::13:: W.P(C).No.21831 Of 2016 favour of the contesting respondents by the petitioner who had by then had already left the organisation. Moreover, it is also common ground that one of the contesting respondent (4[th] respondent) has not challenged the impugned penalty order imposed on him and it is only the other employee (3[rd] respondent) who had challenged the same by filing a Writ Petition [viz., W.P.(C).No.17631/2016]. It has been assured in the statement filed on behalf of official respondents 1 & 2 that all necessary papers and records in relation to conduct of that litigation pertaining to the challenge against that penalty order would be kept in safe custody and that care and caution would be taken to ensure that there is no scope for any manipulation of any such documents. The said submissions made on behalf of official respondents 1 & 2 are recorded. In the light of this aspect, this Court need not adjudicate on the merits of the case as to the legality and correctness of the impugned transfer orders issued to those incumbents inasmuch as this Court is of the considered opinion that the nature of the pleadings and the grievance projected in this Writ Petition do not really warrant the ::14:: W.P(C).No.21831 Of 2016 invocation of extra ordinary jurisdiction conferred on this Court as per Article 226 of the Constitution of India or to issue notice in this case so as to adjudicate the matter on merits. In that view of the matter, recording the above said submission made on behalf of respondents 1 & 2, the Writ Petition stands dismissed. ALEXANDER THOMAS, Judge. bkn/-