Lissy R v Kerala State Road Transport Corporation and Others

**WP(C) NO. 3324 OF 2022** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944** **WP(C) NO. 3324 OF 2022** ## **PETITIONER:** LISSY R AGED 41 YEARS CONDUCTOR, II GRADE, CHADAYAMANGALAM DEPOT, KOLLAM-691534. BY ADVS. V.PREMCHAND SURYA MOHAN P. ## **RESPONDENTS:** 1 KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT.P.O, THIRUVANANTHAPURAM-695023. 2 CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT.P.O, THIRUVANANTHAPURAM695023. 3 THE EXECUTIVE DIRECTOR,(ADMINISTRATION), KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT.P.O, THIRUVANANTHAPURAM-695023. 4 THE ASSISTANT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, CHADAYAMANGALAM DEPOT, PIN-691534. 5 THE STATION MASTER, KERALA STATE ROAD TRANSPORT CORPORATION, CHADAYAMANGALAM DEPOT, PIN-691534. SRI DEEPU THANKAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 3324 OF 2022** **2** ## **JUDGMENT** The challenge in this writ petition is mounted against Ext.P7 order by which, the petitioner herein stands transferred from the Chadayamangalam Unit to the Vikas Bhavan based on administrative grounds in pursuance of disciplinary proceedings initiated against her. 2. Brief facts are as under: The petitioner is employed as a Conductor, Grade-II, in the Kerala State Road Transport Corporation. On 12.10.2021, she was to report to duty for embarking on a trip from Chadayamangalam to Thiruvananthapuram. The trip was to commence at 5.30 am from Chadayamangalam. She reported for duty at about 5 am before the 5th respondent. She was having a high fever and shivering. She disclosed her ailment and requested that she be granted leave. The 5th respondent informed her that alternate arrangements would be made. She left the depot and went to the Government Taluk Hospital, Kadakkal. She was examined by the Duty Doctor and she was asked to undergo certain lab tests. Ext.P1 is the O.P. record and Ext.P2 is the laboratory investigation report. The doctor advised her to take bed rest for a period of 5 days as she was suffering from an acute **WP(C) NO. 3324 OF 2022** **3** urinary infection. With the medical reports, the petitioner reached the depot and handed over the same to the 5th respondent. The petitioner states that respondents 4 and 5 granted her medical leave from 12.10.2021 to 17.10.2021. On 18.10.2021, when there was no improvement in her health condition, she met her doctor, who advised rest for five more days. Ext.P3 is the medical certificate and Ext.P4 is the O.P. Card issued to the petitioner. The petitioner in the said circumstances submitted Ext.P5 request before the 4th respondent seeking extension of leave. She contends that ignoring the application for leave and her health condition, the petitioner was served with Ext.P6 charge sheet on 13.10.2021, wherein it is alleged that the petitioner had refrained from joining duty with a manual rack after reporting for duty on 12.10.2021. She was asked to report for enquiry, which she did. Later, on 22.10.2021, the petitioner joined duty and continued to work till 28.1.2022, on which day, she was served with Ext.P7 order transferring her from Chadayamangalam Unit to Vikas Bhavan, Thiruvananthapuram. The petitioner contends that Ext.P7 is illegal and violative of her rights. It is contended that the transfer order has been passed not in the interest of administration but for the purpose of punishing her and is therefore malafide. It is on these contentions that this writ petition is filed seeking to quash Ext.P7 and for further direction to the respondents to retain the petitioner in the Chadayamangalam depot of the KSRTC. **WP(C) NO. 3324 OF 2022** **4** 3. In the counter affidavit filed by respondents 1 to 5, it is stated that on 12.10.2021, the computer system (server) of tickets and cash counter at the Chadayamangalam depot was down and it became impossible to issue tickets using the Electronic Ticketing Machine (ETM). The conductors in the said circumstances were required to use the manual rack. This is not a preferable mode of ticket vending for the conductors as at the end of the day the conductors will have to manually tally the tickets and the amounts received. The petitioner was assigned the duty to perform duty No.3 which was to commence on 5.10 hrs. The petitioner reached the depot but on receiving information that the conductors need to work using the manual rack, they started withdrawing from their duty. The petitioner was one among them. When the petitioner expressed her hesitation before the commencement of the duty, the officers were forced to arrange a substitute to operate the schedule. However, the service got delayed and the bus could leave the depot only after two hours causing a loss of Rs.5604/- to the Corporation. It is stated that several other conductors also abstained from performing their duty by feigning physical illness when they were asked to perform duty with a manual rack. Ext.R1(b) factual report was submitted by the Controlling Officer on 12.10.2021 to the 4th respondent highlighting the unacceptable conduct of the conductors. The vigilance officer called for a report from the Unit Officer as is evident from Ext.R1(c). Immediately thereafter, the Controlling Inspector conducted a detailed enquiry and **WP(C) NO. 3324 OF 2022** **5** submitted Ext.R1(d) report after hearing the explanations of all the employees who expressed their reluctance to perform their duty on 12.10.2021. The coordinated acts of the conductors to abstain from performing duty with a manual rack was likely to become a precedent. In the said circumstances, the petitioner was shifted to Vikas Bhavan for administrative convenience. 4. A reply affidavit has been filed by the petitioner wherein it is stated that the petitioner could not work on 12.10.2021 after reporting for duty as she was sick and not because she was asked to perform duty using a manual rack. 5. An additional counter was filed by the respondents 1 to 5 wherein it is stated that the petitioner left the depot on 12.10.2021 after reporting for duty when she was asked to perform her work using a manual rack. Later, at about 11.10 am, the petitioner came to the depot and submitted a leave application with a medical certificate and claimed that she was sick. Even prior to the submission of the leave application, the absence of the petitioner and the other persons were reported to the DirectorVigilance, at 10 am. The leave application submitted by the petitioner was produced as Ext.R1(e) to bring home the fact that the leave sought for was not granted and an endorsement was made in the application that the leave **WP(C) NO. 3324 OF 2022** **6** would be sanctioned only after closing the absent report. Ext.R1(f) attendance sheet is produced to show that the leave period of the petitioner from 12.10.2021 to 22.10.2021 has not been sanctioned so far. 6. An additional reply affidavit has been filed producing Ext.P8 to substantiate that the ATO had sanctioned medical leave to the petitioner from 12.10.2021 on the basis of the medical certificates produced by her. 7. Sri Premchand, the learned counsel appearing for the petitioner submitted that the records reveal that the petitioner was sick when she reported sick on 12.10.2021 and it was in the said circumstances that medical leave was sanctioned to her. The transfer order passed against the petitioner without even hearing her is not in the public interest and not for administrative reasons. A clear case of malafides is made out and it is only just and proper that the same is interfered with. 8. Sri Deepu Thankan, the learned Standing Counsel submitted that it is the usual practice of the conductors to refrain from work when they are asked to perform duty with manual rack when such exigencies occur. In the instant case, the server went down in the Chadayamangalam Depot on 12.10.2021 and the respondents could have managed to operate the service only with manual racks. It was after coming for duty at 5.am., that the petitioner, realizing that she had to work using a manual rack, had refused **WP(C) NO. 3324 OF 2022** **7** to work. The standby conductors also followed suit and the entire service was disrupted. Exhibit R1(d) absent reports are relied on by the learned counsel to bring home his point. It is submitted that all the conductors who refused to work came up with medical certificates later and sought leave on medical grounds. None of the leave applications, including the one submitted by the petitioner, was allowed. The learned counsel would rely on the judgments of this Court in **Babu v State of Kerala** [1988 (2) KLT 258], **Nirmalandhan v Divakaran** [1989 KHC 30], **Gopinathan M and Another V State of Kerala and Others** [2014(4) KHC 315] and in **Ramakrishnan P Vs Union of India and Others** [2017 (1) KHC 801] and it was argued that it is the consistent view taken by this Court that transfer of an employee is an incident inherent in the terms of employment but also implicit as an essential condition of service and as such transfer made in exercise of administrative discretion may not be interfered with under Article 226 of the Constitution. 9. I have considered the submissions advanced. 10. The petitioner is a 41-year-old lady with a daughter who is pursuing her plus two class. She is staying at Velinalloor, quite near to the Chadayamangalam Depot. By the impugned order, she has been transferred to Vikas Bhavan Thiruvananthapuram on administrative grounds due to **WP(C) NO. 3324 OF 2022** **8** disciplinary proceedings. 11. The case of the petitioner is that despite being sick she had reported for duty and requested that she be granted leave as she was having high fever and shivering. She also asserts that she was permitted by the 5th respondent to skip duty and alternate arrangements would be made. The petitioner left the depot and consulted a doctor in Government Taluk Hospital, Kadakkal. The Lab test and the OP Card produced by the petitioner shows that she had plenty of pus cells in the urine. It appears from the medical records that her health condition was not optimal when she reported for duty on 12.10.2021. The petitioner has produced Exhibit P8 leave register to substantiate that she was granted leave. 12. This Court, when the matter had come up on 1.2.2022, by a detailed order stayed Ext.P7 and had ordered that the petitioner shall be permitted to perform duty at the Chadayamangalam Depot of the KSRTC for a period of four weeks. It is submitted across the bar that the petitioner has been working in that position since then. 13. Though there cannot be any doubt as regards the proposition advanced by Sri Deepu Thankan, by relying on the judgments rendered by this Court as well as the Apex Court, the fact remains that there are enough materials to suggest that the petitioner, a lady aged 41 years, was sick and **WP(C) NO. 3324 OF 2022** **9** ailing on 12.10.2021. The medical records produced before this Court shows that there were plenty of pus cells in her urine and she was having back pain. When she contends that she had reported for seeking leave, the respondents contend that the medical records are cooked up. However, I find that while issuing the transfer order, the concerned respondent has taken note of the events which led the petitioner to avail leave on 12.10.2021 and the endorsement made on the leave registers. The respondents have no case that the medical records produced before this Court are cooked up. Their contention is that other conductors who were on standby and supposed to work in the eventuality of the petitioner not turning up for duty also refused to work on that day. The refusal of other conductors to work cannot be a reason to initiate disciplinary proceedings against the petitioner. 14. Though transfer is ordinary an incident of service and should not be likely interfered with, when disciplinary proceedings are initiated without adverting to the relevant facts and when a transfer order is passed in lieu of punishment, it cannot be said that no interference can be made. After considering the entire facts and taking note of the records made available before this Court, I am of the considered opinion that Ext.P7 order was passed in an arbitrary manner without even considering the legitimate case advanced by the petitioner. Now that this Court has interdicted the transfer **WP(C) NO. 3324 OF 2022** **10** order by an interim order, I am of the view that it is only just and proper that the 3rd respondent reconsider the issue and decide as to whether the disciplinary proceedings are to be initiated against the petitioner for any reason whatsoever. Resultantly, I am of the view that Ext.P7 cannot be sustained and the same will stand quashed. The 3rd respondent shall consider the materials and decide as to whether disciplinary proceedings are to be initiated in the facts and circumstances and take a fresh decision in accordance with law. Till such action is taken, the petitioner shall be retained at the Chadayamangalam Depot. This writ petition is disposed of. Sd/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C) NO. 3324 OF 2022** **11** ## **APPENDIX OF WP(C) 3324/2022** PETITIONER'S EXHIBITS: |Exhibit P1|TRUE COPY OF THE OUT PATIENT RECORD DATED| |---|---| ||12/10/2021 ISSUED FROM THE CAUSALITY WING| ||OF GOVERNMENT TALUK HOSPITAL, KADAKKAL.| |Exhibit P2|TRUE COPY OF THE LABORATORY TEST RESULT| ||DATED 12/10/2021 ISSUED FROM LABORATORY| ||WING OF THE GOVERNMENT TALUK HOSPITAL,| ||KADAKKAL.| |Exhibit P3|TRUE COPY OF THE MEDICAL CERTIFICATE| ||DATED 18/10/2021 ISSUED FROM GOVERNMENT| ||TALUK HEALTH, KADAKKAL.| |Exhibit P4|TRUE COPY OF THE OP CARD DATED 18/10/2021| ||ISSUED FROM GOVENMENT TALUK HEALTH,| ||KADAKKAL.| |Exhibit P5|TRUE COPY OF THE LETTER DATED 18/10/2021| ||ADDRESSED TO THE 4TH RESOPONDENT BY THE| ||PETITIONER.| |Exhibit P6|TRUE COPY OF THE CHARGE SHEET DATED| ||13/10/2021 BY THE 4TH RESPONDENT.| |Exhibit P7|TRUE COPY OF ORDER DATED 27/01/2022 BY| ||THE 3RD RESPONDENT.| |Exhibit P8|TRUE COPY OF THE EXTRACT OF THE LEAVE| ||REGISTER DATED NIL.| |RESPONDENT EXHIBITS|| |EXHIBIT R1(a)|A TRUE COPY OF THE TRANSFER GUIDELINES| ||ATTACHED AS APPENDIX IV TO THE LONG-TERM| ||SETTLEMENT AGREEMENT 2012| |EXHIBIT R1(b)|A TRUE COPY OF THE REPORT SUBMITTED BY| ||THE CONTROLLING INSPECTOR(CIGL) DATED| ||12/10/2021| **WP(C) NO. 3324 OF 2022** **12** EXHIBIT R1(c) A TRUE COPY OF THE COMMUNICATION DATED 27/10/2021 EXHIBIT R1(d) A TRUE COPY OF THE REPORT DATED 08/11/2021 EXHIBIT R1(e) A TRUE COPY OF THE LEAVE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE ATO DATED 12/10/2021 EXHIBIT R1(f) A TRUE COPY OF THE ATTENDANCE SHEET MAINTAINED OF THE MONTH 10/2021 Exhibit R1 (g) TRUE COPY OF THE LEAVE REGISTER. Exhibit R1 (h) TRUE COPY OF THE PAY SLIP OF THE PETITIONER IN THE MONTH OF OCTOBER 2021 AND NOVEMBER 2021