Kalesan B., Anilkumar S. and Jose K. Baby v. Chairman and Managing Director, Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd., and General Manager (Administration), Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 4574 OF 2023`** ``` PETITIONERS: ``` - **`1 KALESAN.B AGED 48 YEARS UPPER DIVISION CLERK (NC), KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)CORPORATION LTD, FL-01-03014, PLAVILAYIL THARANKANI PARK, BYPASS ROAD, ADOOR, PATHANAMTHITTA, PIN - 691523`** - **`2 ANILKUMAR.S AGED 41 YEARS LOWER DIVISION CLERK (NC-A), KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)CORPORATION LTD, FL-01-03014, PLAVILAYIL THARANKANI PARK, BYPASS ROAD, ADOOR, PATHANAMTHITTA, PIN - 691523`** - **`3 JOSE.K.BABY AGED 54 YEARS LOWER DIVISION CLERK (NC-B), KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)CORPORATION LTD, FL-01-03014, PLAVILAYIL THARANKANI PARK, BYPASS ROAD, ADOOR, PATHANAMTHITTA, PIN - 61523 BY ADVS.`** - **`B.RAGHUNATHAN M.SALIM`** - **`R.SRINATH DR.STANLY CHAZHOOR K.JALADHARAN V.M.JACOB`** ## **`RESPONDENTS:`** ``` 1CHAIRMAN AND MANAING DIRECTOR KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)- CORPORATION LTD, BEVCO TOWERS, VIKAS BHAVAN, PALAYAM, THIRUVANANTHAPURAM, PIN – 695033 ``` ``` WP(C) NO.4574 OF 2023 ``` ``` 2 ``` ``` 2GENERAL MANAGER (ADMINISTRATION). KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)- CORPORATION LTD, BEVCO TOWERS, VIKAS BHAVAN, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033 BY ADV NAVEEN T- R1 & R2 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.4574 OF 2023 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 28[th] day of February, 2023 The petitioners, who are working as UD Clerk and LD Clerks in the Outlets of the Kerala State Beverages (Manufacturing and Marketing) Corporation Limited, have approached this Court aggrieved by Ext.P1 order of transfer. 2. The petitioners state that they were working as UD Clerk and LD Clerks in the Adoor Outlet of the Beverages Corporation Limited. All of a sudden, they were transferred to Pandalam/Kodumon as per Ext.P1. Ext.P1 states that the transfer is as part of a disciplinary proceeding. 3. Counsel for the petitioners urged that it is evident from Ext.P1 that Ext.P1 is of a punitive nature as the transfers have been ordered as part of disciplinary proceeding. Ext.P1 is therefore unsustainable and stigmatic, contended the counsel for the petitioners. ``` WP(C) NO.4574 OF 2023 ``` ``` 4 ``` 4. Respondents 1 and 2 filed a counter affidavit and resisted the writ petition. On behalf of respondents 1 and 2, it is submitted that the District Audit Team (DAT) made inspections of various Beverages Outlets and submitted Ext.R1(a) report. In respect of the Adoor Outlet, it was stated that though there are two local counters for supply of liquor, which were expected to work continuously, only one counter was made operational. The shop has an average sale of `20 lakhs. So, it is very important to operate the two local counters continuously. Unfortunately, due to the negligence of duties and non co-operation of staff, both the local counters are not functioning continuously. As a result, the customers had to stand in queue for a long time, leading them to choose nearby Bars for liquor consumption. It is taking note of Ext.R1(a) report that the petitioners were transferred. Ext.P1 order is not punitive in nature. It is rather taking into consideration the exigencies of administration. ``` WP(C) NO.4574 OF 2023 ``` ``` 5 ``` 5. I have heard the learned counsel for the petitioners and the learned Standing Counsel representing the respondents. 6. Counsel for the petitioners relied on the judgment of this Court in **State of Kerala v. Balakrishnan** [1992 (1) KLT 420], in which this Court following the judgment of the Hon’ble Apex Court in **Mohinder Singh Gill v. Chief Election Commissioner** [AIR 1978 SC 851] held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The counsel for the petitioners submitted that in Ext.P1 order, it is specifically mentioned that the transfer is as a part of disciplinary proceedings. Therefore, the respondents cannot be heard to contend that transfers were necessitated in exigencies of administration. 7. The counsel for the petitioners further relied on the judgment of the Hon’ble Apex Court in **Somesh Tiwari v.** ``` WP(C) NO.4574 OF 2023 ``` ``` 6 ``` **Union of India and others** [(2009) 2 SCC 592]. In the said judgment, the Hon’ble Apex Court held that there cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service, should not be interfered with, save in cases where _malafide_ on the part of the authority is proved. What is to be proved is legal _malafide_ . It is one thing to say that the employer is entitled to pass order of transfer in administrative exigencies, but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. 8. In this case, I find that the Audit Team which inspected the Outlet where the petitioners were working had given Ext.R1(a) report. Ext.R1(a) report reveals that one of the counters was not operating throughout due to the failure of staff. Ext.R1(a) does not indicate the names of the petitioners. The respondents have not so far issued a Charge Sheet or Show-cause Notice, which obviously means that the ``` WP(C) NO.4574 OF 2023 ``` ``` 7 ``` petitioners are not accused in any departmental offence as on date. It is true that in the Transfer Order, it has been stated that the transfer is as part of disciplinary proceedings. But, that by itself does not indicate that the petitioners are going to be proceeded against departmentally. 9. I find that Ext.P1 is not stigmatic. I further note that the petitioners are transferred from Adoor to nearby centres namely, Pandalam and Kodumon, which are within the same District. In the circumstances of the case, I do not find any reason to interfere with Ext.P1. The writ petition fails and it is accordingly dismissed. sd/- **N.NAGARESH** **JUDGE** hmh ``` WP(C) NO.4574 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 4574/2023`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF ORDER NO.03859/AE7/2022/KSBC DATED 7.2.2023 ISSUED BY 2ND RESPONDENT ``` ``` RESPONDENT EXHIBITS Ext.R1(a) ``` ``` True copy of the Report prepared by the District Audit Team, Pathanamthitta of the KSBC, No. KSBC/DAT-PTA/65/2022-23 dated 17-10-2022. ```