K.K. Asokan v KSRTC; Biju John v KSRTC (WP(C) Nos. 18488/2019(I) and 18536/2019(N))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941** ## **WP(C).No.18488 OF 2019(I)** ## **PETITIONER:** **K.K.ASOKAN, AGED 42 YEARS, S/O.M.K.RAJAN, KARIPPALKALLAMPILLY HOUSE, KARIPPAL.P.O., CHAPPARAPADAVU VIA KANNUR-670581** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS:** - **1 THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT.P.O, THIRUVANANTHAPURAM-695023.** - **2 THE CHAIRMAN AND MANAGING DIRECTOR, THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT .P.O, THIRUVANANTHAPURAM-695023** **3 THE EXECUTIVE DIRECTOR(ADMINISTRATION) THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT .P.O, THIRUVANANTHAPURAM-695023** - **4 THE DISTRICT TRANSPORT OFFICER, THE KERALA STATE ROAD TRANSPORT CORPORATION, PAYYANNUR, KANNUR-670307** **BY ADV.SHRI.T.P SAJAN, SC, KERALA STATE ROAD TRANSPORT CORPORATION - KSRTC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)18488 & 18536/2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941** ## **WP(C).No.18536 OF 2019(N)** ## **PETITIONER:** **BIJU JOHN AGED 42 YEARS, S/O. E.M. JOHN, EEZHAKUNNEL, PADIYOTTICHAL P.O, PAYYANNOOR VIA KANNUR-670 307** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS:** - **1 THE KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O, THIRUVANANTHAPURAM-695 023.** - **2 THE CHAIRMAN AND MANAGING DIRECTOR, THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O, THIRUVANANTHAPURAM-695 023** - **3 THE EXECUTIVE DIRECTOR (ADMINISTRATION) THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O, THIRUVANANTHAPURAM-695 023.** - **4 THE DISTRICT TRANSPORT OFFICER, THE KERALA STATE ROAD TRANSPORT CORPORATION, PAYYANNUR, KANNUR-670 307** **SRI. T.P.SAJAN, SC, KSRTC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)18488 & 18536/2019 3 ## **JUDGMENT** Since common issue is raised in these writ petitions, they are heard together and are being disposed of by this common judgment. ## - 1. **W.P.(C) No.18488 of 2019** : The petitioner, who is working as Driver (First Grade) in Payyannur Depot of Kerala State Road Transport Corporation (for brevity 'KSRTC'), has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 memorandum dated 01.07.2019 issued by the 3[rd] respondent Executive Director (Administration) of KSRTC, to the extent it relates to his transfer from Payyanur Depot to Vellarada Depot, Thiruvananthapuram. The petitioner has also sought for a declaration that his transfer from Payyannur Depot to Vellarada Depot in Thiruvananthapuram District is vitiated by malafides and amounts to victimisation and is in violation of Ext.P5 transfer guidelines. 1.2. On 08.07.2019, when this writ petition came up for admission, the learned Standing Counsel for KSRTC was directed to get instructions. WP(C)18488 & 18536/2019 4 1.3. A statement has been filed by the learned Standing Counsel for KSRTC, opposing the reliefs sought for in this writ petition. - 2. **W.P.(C) No.18536 of 2019** : The petitioner, who is working as Driver (First Grade) in Payyannur Depot of KSRTC, has filed this writ petition, seeking a writ of certiorari to quash Ext.P4 memorandum dated 01.07.2019 issued by the 3[rd] respondent Executive Director (Administration) of KSRTC, to the extent it relates to his transfer from Payyannur Depot to Attingal Depot in Thiruvananthapuram District. The petitioner has also sought for a declaration that his transfer from Payyannur Depot to Attingal Depot in Thiruvananthapuram District is vitiated by malafides and amounts to victimisation and is in violation of Ext.P5 transfer guidelines. 2.2. On 08.07.2019, when this writ petition came up for admission, the learned Standing Counsel for KSRTC was directed to get instructions. 2.3. A statement has been filed by the learned Standing Counsel for the respondents, opposing the reliefs sought for in this writ petition. 3. Heard the learned counsel for the petitioner in the WP(C)18488 & 18536/2019 5 respective writ petitions and also the learned Standing Counsel for KSRTC, representing the respondents. 4. The issue that arises for consideration in these writ petitions is as to whether any interference is warranted on the order of transfer, which is impugned in these writ petitions, which is one issued by the 3[rd] respondent Executive Director (Administration), whereby the petitioner in W.P.(C) No.18488 of 2019 is ordered to be transferred from Payyannur Depot to Vellarada Depot and the petitioner in W.P.(C) No.18536 of 2019 from Payyannur Depot to Attingal Depot. 5. The averments in W.P.(C) No.18488 of 2019 would show that the petitioner joined service as driver in Vellarada Depot of KSRTC in the year 2009. From there, he was transferred to Kasaragode and then to Payyannur Depot. His family consists of wife and two minor children aged 13 years and 8 years respectively. Similarly, the petitioner in W.P.(C) No.18536 of 2019 joined service as driver in Kannur Depot in the year 2008 and his family consists of wife and two minor children aged 11 years and 8 years respectively. 6. The petitioner in the respective writ petitions were operating inter-state service of KSRTC on the route Payyannur WP(C)18488 & 18536/2019 6 - Bangalore. They submitted Ext.P3 requests dated 19.06.2019 before the 4[th] respondent, stating that they are not willing to drive those vehicles to Bangalore, as driver-cum-conductor. They placed reliance on Ext.P2 memorandum dated 06.12.2018 issued by the Chairman and Managing Director of KSRTC. 7. The common grievance of the petitioner in the respective writ petitions is that on account of submission of Ext.P3 requests, they have been ordered to be transferred to Vellarada Depot and Attingal Depot respectively, by Ext.P4 memorandum dated 01.07.2019. In support of the challenge made against the order of transfer, the petitioner in the respective writ petitions would place reliance on Clauses (5) and (11) of Ext.P5 bye-parte settlement - 2012. The petitioners would also contend that Ext.P4 memorandum of transfer is vitiated by malafides, since it is one issued after the submission of Ext.P3 request. 8. The stand taken by the respondents in the statement filed in the respective writ petitions is that, the order of transfer of the petitioners are on administrative exigencies. The respondents would also point out the WP(C)18488 & 18536/2019 7 termination of empanelled drivers with effect from 30.06.2019 in view of the judgment of the Division Bench of this Court. On account of termination of empanelled drivers, there is dearth of drivers and hence, the Corporation is compelled to rearrange the schedules so as to effectively operate the services with the available drivers. The inter-state service to Bangalore operated by the private operators are under strict surveillance of the Transport Department and hence, there is deficiency of vehicles in that route. Therefore, the Corporation has to provide more services in that route, which is more profitable. The petitioners, being employees of the Corporation, will have to co-operate with the steps taken by the Corporation in this regard. However, they were reluctant to discharge their duties. After submission of Ext.P3, the Corporation issued Ext.P4 order, whereby the petitioners have been transferred out of Payyannur Depot. The respondents would also point out the provisions under Section 18 of the Road Transport Act, 1950, as per which the Corporation has to provide adequate and efficient operation of transport services to the public. 9. Section 18 of the Road Transport Act, 1950, which WP(C)18488 & 18536/2019 8 ## deals with general duty of Corporation, reads thus; “18. It shall be the general duty of a Corporation so to exercise its powers, as progressively to provide or secure or promote the provision of, an efficient, adequate, economical and properly co-ordinated system of road transport services in the State or part of the State for which it is established and in any extended area: Provided that nothing in this section shall be construed as imposing on a Corporation, either directly or indirectly, any form of duty or liability enforceable by proceedings before any Court or Tribunal to which it would not otherwise be subject.” 10. During the course of arguments, on a specific query made by this Court, the leaned counsel for the petitioner in the respective writ petitions would submit that the petitioners are working continuously at Payyannur Depot, after their entry as drivers in the year 2009 and 2008 respectively, except for a short period of their transfer out of that Depot. 11. As already noticed, while working as drivers in Payyannur Depot and operating inter-state service from Payyannur to Bangalore, the petitioner in these writ petitions made Ext.P3 request, expressing their unwillingness to operate that inter-state service, pointing out Ext.P2 memorandum. Therefore, the petitioners have been ordered to be transferred WP(C)18488 & 18536/2019 9 from Payyannur Depot, based on Ext.P4 memorandum. In the statement filed on behalf of the respondents, it is pointed out that the order of transfer of the petitioners are on administrative exigencies. In view of the judgment of the Division Bench of this Court, the Corporation is interdicted from engaging empanelled drivers. In such circumstances, in order to ensure efficient and adequate operation of service, the Corporation thought it fit to transfer the petitioners from Payyannur Depot. The case of the petitioners is that, it is only on account of the submission of Ext.P3 request, they have been ordered to be transferred from Payyannur Depot and as such the order of transfer is vitiated by malafides. 12. In **Mayadevi M.P. and another v. Canara Bank and others [2015 (4) KHC 874]** , this Court held that, it is trite law that, an order of transfer cannot be interfered with in a proceedings under Article 226 of the Constitution of India, in the absence of any specific allegation of malafides or at least a prima facie proof of vitiating circumstances influencing that order of transfer. It is far too late in the day to assert that, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can interfere with an order of transfer of WP(C)18488 & 18536/2019 10 an employee as if it is sitting in appeal over such an order issued by the employer. The scope of judicial review in this area is very limited. Unless malafides or oblique motives are specifically pleaded or can necessarily be inferred from the proof of facts, this Court cannot interfere with an order of transfer of an employee. Therefore, a mere assertion in the Writ Petition that, the orders of transfer are 'vitiated by extraneous considerations and imbued with malafides', cannot therefore sound in realms of malafides or extraneous considerations or oblique motives. The concept being basically different, this Court cannot even draw an inference that the order of transfer issued by the employer is vitiated by malafides or on extraneous considerations or with oblique motives, unless it is specifically pleaded in the Writ Petition with reliable materials, which are sufficient to draw an inference of any vitiating circumstances influencing such an order of transfer. 13. Another contention raised by the petitioners is violation of the guidelines in Ext.P5 bye-parte settlement2012. Clause (5) of the transfer guidelines, relied on by the petitioners, deals with transfer from home district/home circle WP(C)18488 & 18536/2019 11 and as per Clause (5.01), seniority will be the criteria for transfer. Clause (11) of the transfer guidelines deals with transfer on administrative ground due to disciplinary issues. 14. In the instant case, the transfer of the petitioner in the respective writ petitions, based on Ext.P4 memorandum, is not on account of any disciplinary issues. Admittedly, no disciplinary proceedings have been initiated against the petitioners on account of the submission of Ext.P3 request. 15. In **Santhosh K. and another v. Chief Engineer (H.R.M), KSEB, Tvm [2013 (4) KHC 624]** , the Division Bench of this Court held that, it is salutary that the contents of the orders issued by KSEB cannot be treated as either statutory, or amounting to conditions of service. They are essentially guidelines, relating to transfers of employees of KSEB. The realm of judicial intervention in such matters gets confined to a scrutiny as to whether there is any vitiating element of mala fides, malice, substantial legal and factual perversity or arbitrariness, recognizable on the touch stones of the Fundamental Rights, as enshrined in the Constitution, to visit the executive decision of the KSEB as the employer. 16. In **Gopinathan M and another v. State of Kerala** WP(C)18488 & 18536/2019 12 **and others [2014 (4) KHC 315]** , the Division Bench of this Court held that, if the service of an employee is found to be not satisfactory at a particular place for whatever reasons, it would be open to the employer to take such remedial measures as are permissible under law to meet the requirements of that situation, like initiation of disciplinary proceedings or transferring the employee out of that place. If the employer opines 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 necessarily be a measure of punishment to such employee. Therefore, the contention raised by the learned counsel for the petitioners that, an order of transfer based on certain complaints alleged to have been made against the employees would render the transfer a punitive transfer can only be rejected. Paragraphs 11 and 12 of the said decision read thus; “11. Therefore, if the service of an employee is found to be not satisfactory at a particular place for whatever reasons, it would be open to the employer to take such remedial measures as are permissible under law to meet the requirements of that situation, like initiation of disciplinary proceedings or transferring the employee out of that place. WP(C)18488 & 18536/2019 13 If the employer opines 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 necessarily be a measure of punishment to such employee. Therefore, the contention raised by the learned counsel for the petitioners that, an order of transfer based on certain complaints alleged to have been made against the employees would render the transfer a punitive transfer can only be rejected. 12. In **State of M.P. v. S.S. Kourav (1995 (3) SCC 270)** , the Apex Court held that, the Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decision and such decision shall stand unless they are vitiated either by mala fides or extraneous considerations without any factual background foundation. Later, in **Somesh Tiwari v. Union of India (2009 (2) SCC 592)** , the Apex Court held that, an order of transfer passed on material which was non-existent not only suffers from total nonapplication of mind on the part of the authorities, but also suffers from malice in law. Paragraphs 16 and 17 of the judgment read thus; “16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane WP(C)18488 & 18536/2019 14 for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an 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. 17. An enquiry was initiated against the appellant in terms of the allegations contained in an anonymous letter. Having regard to the directives of the Central Vigilance Commission, no enquiry could have been initiated against him but it is beyond any doubt or dispute that in the said enquiry, the allegations were found to be untrue. Despite the same not only an order of transfer was passed but to a station, which, according to the respondents themselves, was 'harsh'.” 17. In W.P.(C) No.9728 of 2019, this Court declined interference on the order of transfer of drivers working in Thevara Depot of KSRTC to Thiruvananthapuram, vide a memorandum dated 26.03.2019. The said judgment was under challenge before the Division Bench in W.A.No.1191 of 2019, which ended in dismissal by the judgment dated 03.07.2019. 18. Having considered the submissions made by the learned counsel on both sides, with reference to the pleadings and materials on record, and in the light of the law laid down WP(C)18488 & 18536/2019 15 in the decisions referred to supra, conclusion is irresistible that the petitioners, who are working continuously as drivers in Payyannur Depot after their entry in service in the year 2009 and 2008 respectively, except for a short period during which they were transferred out of that depot, have not made out a case for warranting interference on Ext.P4 memorandum of transfer on any legally permissible grounds. In the result, these writ petitions fails and they are accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** WP(C)18488 & 18536/2019 16 ## **APPENDIX IN W.P.(C)No.18488/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MEMORANDUM VIDE NO.PL14/005193/2017 DATED 25.04.2018 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE MEMORANDUM VIDE NO.TR4/036992/2011 DATED 06.12.2018** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P4 TRUE COPY OF THE MEMORANDUM DATED 01.07.2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE GUIDELINES FOR TRANSFER ISSUED BY THE KSRTC** **RESPONDENT'S EXHIBITS:NIL** WP(C)18488 & 18536/2019 17 ## **APPENDIX IN W.P.(C)No.18536/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE MEMORANDUM VIDE NO. PL14/005193/2017 DATED 25.04.2018 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE MEMORANDUM VIDE NO. TR4/036992/2011 DATED 06.12.2018.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE MEMORANDUM DATED 01.07.2019 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE GUIDELINES FOR TRANSFER ISSUED BY THE KSRTC.** ## **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**