Kerala State Centre for Advanced Printing & Training (C-APT) & Anr. v. Joshy Isaac

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **WEDNESDAY, THE 6TH DAY OF AUGUST 2014/15TH SRAVANA, 1936** **WA.No. 1076 of 2014 () IN WP(C).16786/2014 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 16786/2014 of HIGH COURT OF KERALA DATED 16-07-2014** **-------------------** ## **APPELLANT(S)/RESPONDENTS :-** **----------------------------** **1. KERALA STATE CENTRE FOR ADVANCED PRINTING & TRAINING (C-APT) HEAD OFFICE COMPLEX, VATTIYOORKAVU THIRUVANANTHAPURAM - 695 013 REPRESENTED BY THE MANAGING DIRECTOR.** **2. THE MANAGING DIRECTOR** - **KERALA STATE CENTRE FOR ADVANCED PRINTING AND TRAINING (C-APT), HEAD OFFICE COMPLEX VATTIYOORKAVU, THIRUVANANTHAPURAM - 695 013.** **3. OFFICER IN CHARGE** **KERALA STATE CENTRE FOR ADVANCED PRINTING AND TRAINING (C-APT), SUB CENTRE NEAR GOVT.L.P.SCHOOL BUILDING, KANJIRAMCHIRA ALAPPUZHA.** **BY ADVS.SRI.K.ANAND (SR.) SMT.LATHA KRISHNAN** ## **RESPONDENT(S)/PETITIONER :-** - **----------------------------** **JOSHY ISAAC, OFFICE ATTENDANT KERALA STATE CENTRE FOR ADVANCED PRINTING AND TRAINING (C-APT), SUB CENTRE NEAR GOVT.L.P.SCHOOL BUILDING, KANJIRAMCHIRA, ALAPPUZHA RESIDING AT KADAVIL HOUSE, THATTAMPALLY P.O. ALAPPUZHA - 688 014.** **BY ADV. SRI.S.MUHAMMED HANEEFF** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-082014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ASHOK BHUSHAN , Ag. CJ, & V. CHITAMBARESH, J. ---------------------------- W.A. NO. 1076 OF 2014 ------------------------------ Dated this the 6[th] August, 2014 ## JUDGMENT ## Ashok Bhushan, Ag.CJ. Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondent. 2. This Writ Appeal has been filed against the judgment dated 16[th] July 2014 of the learned Single Judge passed in Writ Petition No. 16786/2014 by which order the Writ Petition filed by the respondent/petitioner has been allowed setting aside the order dated 25[th] June 2014 by which earlier transfer order dated 24[th] June 2014 has been set aside. 3. The brief facts of the case need to be noticed for W.A. NO. 1076 OF 2014 -2- deciding the issues raised in this Writ Appeal is as follows:- 4. The respondent who shall be hereinafter referred to as “the petitioner” entered in service as Office Attendant/Peon in the Kerala State Centre for Advanced Printing & Training on 26-9-1998. He was on deputation in Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd. during the period from 26-2-2009 to 25-22014. After termination of deputation, the petitioner was reported in the Head office at Thiruvananthapauram on the forenoon of 26[th] February, 2014 where he was permitted to join duty. 5. Petitioner submitted a representation on 28-42014 for a transfer to the Sub Centre at Alappuzha. That representation was allowed and by order dated 24-6-2014 (Ext.P2), the petitioner was transferred to the Sub Centre at Alappuzha. In pursuance of the order dated 24-6-2014, the petitioner joined duty at the Sub Centre and signed the W.A. NO. 1076 OF 2014 -3- Time Keeping Register and the joining report was also submitted. But the joining of the petitioner was not accepted. On 25[th] June 2014, the second respondent issued Ext. P3 order cancelling Ext. P2 order and transferring the petitioner to the Sub Centre at Ernakulam. Aggrieved by the order dated 25[th] June, 2014, the Writ Petition was filed. 6. Challenging the order of the learned Single Judge, the learned counsel for the appellant, submits that there was no such error in the order dated 25[th] June 2014 cancelling the earlier transfer order which warrants interference by this Court in exercise of its Writ Jurisdiction. He submits that there being no post available for the petitioner, that order dated 24[th] June 2014 was cancelled on the next day, after noticing the mistake which was committed in issuing the transfer order, dated 24[th] June 2014. He submits that the petitioner was not permitted to join duty on 25[th] June 2014 and hence the transfer order had not been given effect to. -4- W.A. NO. 1076 OF 2014 Thus, the appellant was fully entitled to cancel Ext. P2 transfer order. 7. Learned counsel for the respondent, refuting the submission of the learned counsel for the appellant, contended that no material was placed before the learned Single Judge to indicate that there was no vacancy at Sub Centre, Alappuzha where the petitioner was transferred on 24[th] June 2014. He submits that, actually, the transfer order was issued due to malafide, the learned Single Judge has rightly accepting the submissions of the petitioner have set aside the order dated 25[th] June. He submits that the petitioner's wife is living at Alappuzha and he is also a heartpatient. Considering the submission of the parties and perused records. 8. It is well settled that transfer is incident of service and this Court in exercise of its jurisdiction interfere with the transfer order only when transfer order has been issued in -5- W.A. NO. 1076 OF 2014 breach of a statutory provision or it is actuated by malafide. It is a case where transfer order dated 24[th] June 2014 which was passed on the representation of the petitioner was cancelled on the next day. The learned single Judge took the view that since the petitioner has appeared and signed in the time keeping register, the transfer was given effect to and the same could not have been cancelled. 9. We do not subscribe to the above case. It is the own case of the petitioner that he was not permitted to join duty on 24[th] June 2014 and it was at the instance of the Sub Centre that his transfer order was cancelled. The Sub Centre, from the facts on the record, it is clear that Sub Centre has informed the Head Office that there is no vacancy and transfer need not made of any officers. Thus, the Sub Centre was well aware of their stand and they are not permitting the petitioner to join duty cannot be said to be arbitrary or illegal. The petitioner has not been permitted to joint duty, transfer W.A. NO. 1076 OF 2014 -6- order was not given effect to, and it was well within the domain of the authorities to cancel such transfer order. Learned counsel for the petitioner has emphasised that the appellants yet to prove that there was no vacancy at the Sub Centre. In the affidavit filed before the learned Single Judge it was specifically mentioned by the appellants that the transfer was cancelled on the reason that since there was no vacancy. The reason has been cited in the order dated 25th June 2014 which was supported by the affidavit filed by the Managing Director in the Writ Petition. It was specifically mentioned in paragraph 5 of the said affidavit which is to the following effect:- _“ "It is respectfully submitted that there are only 9 staff members in Alappuzha sub centre including office assistants. The petitioner was repeatedly requesting for a transfer to Alappuzha and accordingly Ext.P2 order was issued. Immediately on issuance of Ext. P2 order, it was found out an inadvertent mistake had crept in Ext.P2 ,in that there was absolutely no vacancy to accommodate the petitioner at Alappuzha. Therefore, on the very next_ W.A. NO. 1076 OF 2014 -7- _day i.e. before he joined duty, his transfer order was cancelled and he was posted at the nearest centre, namely, Ernakulam vide Ext.P3. It is this order that is challenged by the petitioner"._ 10. More so, the learned Single Judge has drawn adverse inference against the appellant for not giving the sanctioning strength of the staff. We are of the view that when the Managing Director has filed an affidavit saying that there was no vacancy. There was no reason to doubt the said statement and, in any view of the matter, the mere fact that vacancy was there does not oblige the employer to fill up the vacancy by transfer or by any other means. Thus, we do not find any error in cancelling the transfer order on the aforesaid ground. The submission which has been much pressed by the learned counsel for the petitioner is that the transfer is actuated by malafide and which have been found so by the learned Single Judge in his Judgment referred to paragraph 10 of the judgment, this Court may not interfere with the order of the W.A. NO. 1076 OF 2014 -8- learned Single Judge. 11. The allegations of malafide are very easy to be made but difficult to be proved. The Apex Court in State of Bihar and Another v. P.P. Sharma and Another - AIR 1991 SC 1260 has laid down that for making allegation of malafide, the person who is, against whom the malafide is made should be made of necessary party to the petition. Without the person against whom malafide is made before the Court, the allegations can neither be looked into nor can be proved. From the array of the parties, it is clear that no officer of the Corporation was impleaded by name. When no one was impleaded by name, we fail to see that how the allegation of malafide can be made or proved. Thus, we do not find any substance in the submission of the counsel for the petitioner, when order was passed by malafide. In view of the aforesaid, we are of the view that there was no such error in the order dated 25th June, 2014 which deserves interference in exercise -9- W.A. NO. 1076 OF 2014 of its Writ jurisdiction under Article 226 of the Constitution. 12. In the result, we allow this Appeal. The judgment under challenge is set aside. We observe that the petitioner shall be permitted to join at a place where he has been transferred by order dated 25th June 2014, within one week from today and he will be entitled to all service benefits by treating him as having been on duty during the period, as ordered by the learned Single Judge. This Writ Appeal is allowed as above. ASHOK BHUSHAN , Ag. CHIEF JUSTICE V. CHITAMBARESH, JUDGE **ani/**