P. Ajimon v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933** **WP(C).No. 32266 of 2011(G)** **----------------------------------------** ## **PETITIONER(S):** **--------------------------** **P.T.AJIMON, AGED 39 YEARS, S/O. P.P.THANKAPPAN, SUB ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, MARAYOOR. (RESIDING AT PULAPPUKANDATHIL HOUSE, THOKKUPARA, CHITHRAPURAM).** **BY ADV. SRI.SANTHOSH G. PRABHU SRI.S.KANNAN SMT.N.U.DEEPA SMT.K.S.SANGEETHA** **RESPONDENT(S):** - **----------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** **2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** **3. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, ADIMALI, KALLARKUTTY P.O., PIN-685 562.** **4. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, ADIMALI, PIN-685 562.** **5. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, ADIMALI-685 562.** **6. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, MARAYOOR, IDUKKI-685 560.** **BY ADV.SRI.K.S.ANIL,SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.32266/2011** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXT.P1 : A TRUE COPY OF THE ORDER NO.ENDT. ON EB3(a)SE/2011-12/719, DTD.20.9.2011.** **EXT.P2 : A TRUE COPY OF THE JUDGMENT DTD.4.10.2011 IN WPC NO.25310/2011.** - **EXT.P3 : A TRUE COPY OF THE ORDER NO.GB-1/ACCIDENT/ADLY/2011-12/967, DTD.2.11.2011 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P4 : A TRUE COPY OF THE RELEVANT EXTRACT OF THE CASUAL LEAVE REGISTER MAINTAINED AT THE OFFICE OF 5TH RESPONDENT ISSUED IN FAVOUR OF THE PETITIONER PURSUANT TO HIS APPLICATION UNDER RIGHT TO INFORMATION ACT, 1995 TO SHOW THAT PETITIONER WAS ON CASUAL LEAVE ON 15.9.2011 AND ON 16.9.2011.** - **EXT.P5 : A TRUE COPY OF THE ACCIDENT REPORT NO.DB1/2011-12/66, DTD.15.9.2011 ISSUED BY THE 5THE RESPONDENT.** - **EXT.P6 : A TRUE COPY OF THE COMMUNICATION NO.DB NO1/ESA/AE/67, DTD.16.9.2011 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P7 : A TRUE COPY OF THE MEMO DTD.27.9.2011 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P8 : A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **RESPONDENTS' EXHIBITS :** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **K.SURENDRA MOHAN, J** = = = = = = = = = = = = = WP(C).No.32266 of 2011-G. = = = = = = = = = = = = = Dated this the 3[rd] December, 2011. ## **J U D G M E N T** The petitioner while working as Sub Engineer at the Electrical Section, Adimali was transferred and posted to the Electrical Section, Marayoor as per Ext.P1 order. The petitioner challenged the said order in WP(C). No.25310/2011. The same was disposed of by directing the third respondent herein to consider the grievance of the petitioner set out in a representation submitted by him and taking into account the vacancies that are existing at the nearby places. Appropriate orders were directed to be passed on the representation within a period of three weeks from the date of receipt of a copy of the said judgment. 2. Accordingly, the representation has been considered by the third respondent and Ext.P3 order has been passed rejecting the request of the petitioner holding **WP(C).No.32266/2011-G.** 2 that there are no grounds to revoke or alter the transfer order of the petitioner. This writ petition is filed by the petitioner challenging Ext.P3. 3. According to the counsel for the petitioner, Ext.P3 specifically states that the petitioner has been transferred to Marayoor as part of a punitive measure and as a message to the staff of the KSEB and therefore, such transfer by way of punishment is impermissible and liable to be set aside. It is the further case of the petitioner that though this Court had directed the petitioner's representation is to be considered with reference to the vacancies pointed out by him, the said aspect has not been considered by Ext.P3. 4. Ext.P3 is a fairly elaborate order. It appears that a fatal accident had occurred to one Sri.Biju K.G., Lineman Gr.II, Electrical Section, Adimali on 15.9.2011 while replacing a faulty fuse. Though he was admitted with serious injuries to the Medical Mission Hospital, Kolenchery, he succumbed to the injuries on 18.9.2011. **WP(C).No.32266/2011-G.** 3 Ext.P3 further states that, on a preliminary enquiry it was noticed that the petitioner, Sri.Ajimon P.T., Sub Engineer, had been absent from duty on 15.9.2011 and consequently, Sri.Raju P.T., another Sub Engineer, Electrical Section, Adimali who was in charge of the Revenue Wing had to take additional charge of the Breakdown Wing also, which was supposed to be attended to by the petitioner. Since the report of Assistant Engineer, Electrical Section, Adimali was to the effect that the petitioner was unauthorisedly absent from duty on 15.9.2011 resulting in heavy workload to Sri.Raju P.T., Sub Engineer, action had to be initiated against the petitioner also. The Sub Engineer, Sri.Raju P.T. was placed under suspension and Sri.Ajimon P.T., Sub Engineer, Electrical Section, Adimali, the petitioner was transferred to the Electrical Section, Marayoor as a punitive measure. It is further stated in Ext.P3 that though the petitioner was relieved from duty on 20.9.2011 with a direction to report for duty before the Assistant Engineer, 4 ## **WP(C).No.32266/2011-G.** Electrical Section, Marayoor, under intimation to the Chief Vigilance Officer, KSEB, being a punishment transfer, he has not reported for duty at Electrical Section, Marayoor till date. 5. According to the counsel for the petitioner, the petitioner was not unauthorisedly absent, but was actually on leave as evidenced by Ext.P4 application for leave submitted by him. According to the petitioner, the practice at the office of the Electrical Section, Adimali was to enter casual leave in a register kept for the purpose, which the petitioner had done, as evidenced by Ext.P4. Therefore, it is contended that the assertion in Exts.P3 and P5 that he was unauthorisedly absent was actually wrong. The counsel also places reliance on Ext.P6 communication from the Assistant Engineer to the third respondent informing him that the petitioner had actually tried to inform him that he was proceeding on leave. 6. What is clear from the above is that an equiry has **WP(C).No.32266/2011-G.** 5 already been ordered into the unfortunate accident that took place on 15.9.2011 in which a Lineman was killed. One Sub Engineer has been placed under suspension and the petitioner has been transferred from the place in connection with the said incident. Since an enquiry has been ordered against the petitioner as well as the Sub Engineer who has been placed under suspension, the question as to whether the petitioner was actually on leave or was unauthorisedly absent from duty on 15.9.2011 would have to be determined by the said enquiry. However, a reading of Ext.P6 shows that even according to the said letter, though the petitioner had tried to contact the Assistant Engineer over mobile phone to inform him of the petitioner's inability to attend duty on 15.9.2011, the instrument was not in a position to receive any signal due to technical problems of the BSNL. It is, therefore, clear that the petitioner had not succeeded in informing the Assistant Engineer, even if it is accepted that he had in fact, **WP(C).No.32266/2011-G.** 6 tried to inform the said officer. Therefore, prima facie, it appears that the petitioner had not informed the Assistant Engineer about his intention to proceed on leave on 15.9.2011. Though in the writ petition it has been stated that Exts.P3 and P5 are vitiated by a mistaken assumption that the petitioner was unauthorisedly absent from duty, I am not satisfied that the said documents suffer from any serious mistake. 7. Ext.P3 has considered the representation of the petitioner elaborately. Since the petitioner has been transferred out of Adimali pending disciplinary proceedings initiated against him, his request for a posting to one of the vacancies pointed out by him has not been granted. In fact, Ext.P3 clearly mentions that there are vacancies available, but that, a posting to one of the vacancies pointed out by him has been declined for the reason that there are certain allegations against the petitioner and a vigilance enquiry into malpractices in tender documents relating to various **WP(C).No.32266/2011-G.** 7 works under the Electrical Section, Chithirapuram is pending finalisation before the Vigilance Wing of the KSEB. In view of the above finding, it cannot be said that the authority has not considered the contention of the petitioner that vacancies are available at places close to Adimali as contended by the petitioner. 8. The counsel for the petitioner has placed reliance on the decision in **Somesh Tiwari v. Union of India and others** reported in **2009 KHC 4146 (SC)** to contend that a transfer in lieu of punishment has been held to be unsustainable by the Apex Court. I notice that in the said case the employee therein was transferred on the ground that there were certain allegations pending against him before the authorities, which were neither communicated to the petitioner nor his explanation sought. In the present case, the allegations have been communicated to the petitioner and an enquiry has also been ordered into the incidents involving the petitioner as well as another Sub 8 ## **WP(C).No.32266/2011-G.** Engineer. Both the officers are being proceeded against, departmentally. Ext.P3 reveals the pendency of a vigilance case also against the petitioner. In the above circumstances, when the other Sub Engineer has been placed under suspension, the petitioner has only been transferred in lieu of suspension. It cannot be said that the impugned proceedings Ext.P3 suffer from any infirmity as contended by the petitioner. I am not satisfied that the petitioner is entitled to any of the reliefs sought for in this writ petition. This writ petition is accordingly dismissed. ## **K.SURENDRA MOHAN, (Judge)** **Kvs/-**