Pavikuttan O.K. v. Kerala State Electricity Board Limited and Others

W.P.(C).No.15825/2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 28TH DAY OF OCTOBER 2020 / 6TH KARTHIKA, 1942** **WP(C).No.15825 OF 2020(C)** ## **PETITIONER:** **PAVIKUTTAN O.K. AGED 54 YEARS EMPLOYEE CODE 1042640, S/O. O.A. KUMARAN, ASSISTANT ENGINEER(ELE), KERALA STATE ELECTRICITY BOARD LIMITED, 220 KV SUB STATION, BRAHMAPURAM, ERNAKULAM - PIN - 682303, RESIDING AT MAYAVARAM, EROOR, THRIPUNITHURA, ERNAKULAM - 682306,** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SMT.N.R.REESHA SMT.T.S.LIKHITHA** ## **RESPONDENTS:** |**1**|**THE KERALA STATE ELECTRICITY BOARD LTD.,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, VAIDHUTHIBHAVANAM,**| ||**PATTOM P O, THIRUVANANTHAPURAM - 695004.**| |**2**|**THE SECRETARY**| ||**KERALA STATE ELECTRICITY BOARD LIMITED,**| ||**VAIDYUTHIBHAVANAM, PATTOM P.O,**| ||**THIRUVANANTHAPURAM-695004,**| |**3**|**THE CHIEF ENGINEER(HRM)**| ||**KERALA STATE ELECTRICITY BOARD LIMITED,**| ||**VAIDYUTHIBHAVANAM, PATTOM P.O,**| ||**THIRUVANANTHAPURAM-695004,**| W.P.(C).No.15825/2020 2 - **4 NISHA K.E** **EMPLOYEE CODE 1063625, KERALA STATE ELECTRICITY BOARD LIMITED, CHERANALLOOR ELECTRICAL SECTION, ERNAKULAM-682034.** **R1-3 BY SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-10-2020, THE COURT ON 28-10-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.15825/2020 3 ## **JUDGMENT** ## **Dated this the 28[th] day of October 2020** ## 1.This writ petition is filed with the following prayers:- “i)Issue a writ of certiorari, calling for the records leading to Ext. P5 and quash the same to the extent it includes the 4[th] respondent for transfer to Electrical Section, Eroor and excludes the petitioner; ii)Call for the records leading to Ext.P6 and quash the same to the extent it do not include the name of the petitioner among the Assistant Engineer (Ele) in Ernakulam and Ext.P7 and quash the same to the extent it does not assign the index score to the petitioner; iii) issue a writ of mandamus or any other writ, or direction or order, directing the 3[rd] respondent to give a transfer and posting to the petitioner to Electrical Section, Eroor on the basis of his index score in preference to the 4[th] respondent; iv) Issue a writ of mandamus or any other writ, direction or order, directing the 3[rd] respondent to fill up the vacancy of Assistant Engineer (Ele) at Electrical Section, Eroor only on the basis of the index score awarded to the officers, who have sought for transfer to the above station; v) Declare that the petitioner is entitled to be given a transfer-and posting to Electrical Section, Eroor, on the basis of the index score awarded to him in Ext.P4;” 4 W.P.(C).No.15825/2020 2. Heard the learned counsel for the petitioner and Sri.T.K.Thankappan, the learned standing counsel appearing for the KSEB. 3. The petitioner is working as Assistant Engineer in the KSEB. While working as Assistant Engineer in the 110 KV Substation Kanhangad in Kasargod district, he was given a transfer to the 220 KV Sub Station Brahmapuram on 23.11.2017. The petitioner had sought a posting to the Electrical Section Eroor and it was disregarding his claim that he was posted at Brahmapuram. It is stated that the duty in the transmission wing involves alternative day and night duty and that the petitioner who is 54 years old and is due to retire on 31.5.2022 is suffering from various ailments and is unable to carry out the tedious nature of duties attached to the post of Assistant Engineer in the transmission section. Therefore, in the general transfer of the year 2019, the petitioner applied for a transfer to the Electrical Section, Eroor as his first choice and Electrical Section Tripunithura as second choice. It is stated that on the basis of the index points awarded to the petitioner, the W.P.(C).No.15825/2020 5 petitioner was included in the draft transfer list for transfer to the Electrical Section Eroor by Exhibit P1. However, when the final order of transfer was issued, the petitioner was excluded. The petitioner submitted Exhibit P2 representation, but no orders were passed thereon. It is contended in the writ petition that during the hearing on Exhibit P2 the Chairman had expressed his concern in denying transfer to the petitioner and had offered that he would be considered for transfer immediately. 4. It is stated that during the general transfer for the year 2020 also, the petitioner submitted his application requesting for a transfer to the Electrical Section Eroor as his first choice. It is stated that Exhibit P4 list would show that one Brightson Jude I.C. had the maximum index points for transfer to Eroor and that the petitioner was eligible on the basis of his index score for consideration for a posting at Eroor. It is stated that when the draft transfer order for the year 2020 was issued, the 4[th] respondent, who was already working at the Cheranalloor Electrical Section was proposed to be accommodated at Eroor W.P.(C).No.15825/2020 6 and the request of the petitioner was omitted to be considered. It is stated that in the district wise index list for the year 2020, the petitioner is included as Sl.No.1, but his index score is not shown. It is submitted that Brightson Jude has been granted a transfer to the Thoppumpady Electrical Section which was his first choice and therefore the petitioner who was No.2 in the list was entitled for transfer to the Electrical Section, Eroor, which was his first choice. It is submitted that the action of the respondents in excluding the petitioner for transfer to the Electrical Section Eroor, as sought for by him, is violative of the guidelines and is unreasonable and discriminatory. It is further submitted that the action is due to the influence exerted by one P.A.Kasim, who is the State Secretary of the KSEB Officers' Association who has an axe to grind against the petitioner. It is submitted that having prescribed guidelines providing for transfers on the basis of index points, the respondents cannot turn around and violate such guidelines with impunity. 5. A counter affidavit has been placed on record by the respondents. It is submitted therein that the petitioner has W.P.(C).No.15825/2020 7 been accommodated at a station which is only 9 km away from his place of residence and that the petitioner cannot dictate the office to which he is to be appointed in the general transfer. It is stated that the petitioner is an officer against whom disciplinary proceedings have been taken and that he is not a fit person to be appointed in the Distribution wing. It is stated that the petitioner had been suspended on 14.7.2016 and he was reinstated and posted in the Kasaragod District under the Transmission wing. Thereafter, he was transferred to Brahmapuram in his domicile district. ## 6. It is stated at paragraphs 6 and 7 as follows:- “6. Electrical section offices in KSEBL are very critical offices which generates revenue by sale electricity/power. It is the frontline offices in KSEBL which directly interact with general public. It is not in the best interest of the organization to post such corrupt official like the petitioner who indulges in corrupt practices without any streak of integrity to the organization. In Distribution offices shady activities of the petitioner can incur huge revenue loss to KSEBL and shall tarnish the image of KSEBL. Moreover an Assistant Engineer being the head of the section office, the presence of a corrupt official like the petitioner in that post in a section office goes against public interest. 7. It is submitted that the Government of Kerala has recently recommended action against the petitioner for having amassed wealth disproportionate to his known source of income which W.P.(C).No.15825/2020 8 underlines the findings of KSEBL that the petitioner is highly corrupt and indulges in Malfeasance and is not at all a fit person to be posted in distribution office like electrical sections. If posted he may not only cause serious threat to the revenue security of KSEBL but may harm the public interest as well.” ## 7. Relying on a decision of a division bench of this Court in **Gopinathan M and another v. State of Kerala and others** [2014 (4) KHC 315], it is contended that transfer guidelines are not statutory in nature and a departure therefrom in administrative exigencies is contemplated in the guidelines themselves. It is stated that the Division Bench had held that it would be open for an employer to transfer an employee out of a particular station if his service there is found to be not satisfactory. It is stated that in all the cases where a person is not found fit for a particular office, it is not necessary that disciplinary action should be taken and if the employer feels that the interest of the institution would be served by merely transferring the employee out of the particular place, that would not render the transfer punitive in nature. It is submitted that it is for the respondents to consider whether the petitioner is liable to be accommodated in a particular station and the W.P.(C).No.15825/2020 9 mere fact that he is not found fit for being engaged in the Electrical Section due to the repeated misconducts committed by him which have resulted in imposition of penalties would not render the orders illegal or unwarranted. 8. I have considered the contentions advanced. The petitioner submits that he is entitled to a transfer to the Electrical section, Eroor on the basis of the index points, as provided in the transfer guidelines. The contention is that the posting in the Electrical Section is denied due to the influence exerted by a certain union leader. The respondents contend that the petitioner is an officer against whom disciplinary proceedings had been necessitated and that he is not eligible for a posting in the Electrical Section. On a consideration of the contentions advanced, I find that the guidelines for transfer themselves provide for appropriate postings without considering the index points if administrative exigencies require such postings. Transfer, admittedly, is an incidence of service and no employee can have a right to claim that he is entitled to be posted at a particular place. The fact that disciplinary action had been W.P.(C).No.15825/2020 10 initiated against the petitioner and that penalties, though minor in nature, have been imposed on him are not disputed by the petitioner. The Division Bench of this Court in **Gopinathan.M'** s case (supra) has held that in a case where a person is not found suitable to work in a particular post, he can be transferred out without any disciplinary proceedings being initiated and such transfer, by itself, would not be punitive in nature. Though it may be true that the contentions in paragraphs 6 and 7 of the counter affidavit filed on behalf of the respondents tends to cast a stigma on the petitioner, the action of the respondents in not posting the petitioner to a particular section on a notion that he is not fit to hold the post because of the disciplinary actions suffered by him, cannot be said to be so perverse as to require interdiction by this court. The guidelines prescribed for transfer are not statutory or binding in nature and a transfer granted without scrupulously weighing the index points secured by officers cannot, by itself, said to be punitive in nature and cannot be set aside on the ground that it violates the guidelines. This is more so in view of the fact that Clause 26 of the guidelines themselves provide for W.P.(C).No.15825/2020 11 transfers in administrative exigencies without reference to the provisions of the guidelines. It is trite that the administrative necessities of the employer are relevant factors to be taken note of and an order of transfer or an exclusion from transfer cannot be held to be bad only on the ground that the employer has found it fit not to post a particular employee in a particular station. In the instant case, it is not in dispute that the petitioner has been accommodated at an office close to his place of residence. I am, therefore, unable to find any material to conclude that the refusal to post the petitioner at the office of his choice was vitiated by mala fide or arbitrariness. In the above view of the matter, I am of the opinion that the prayers sought for by the petitioner cannot be granted. The petition fails and is accordingly dismissed. ## **Anu Sivaraman, Judge** sj **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF BOARD ORDER NO.**| |---|---| ||**EB1(a)/AE(Ele)/GENRAL TRANSFER 2019/DRAFT**| ||**ORDER DATED 15.06.2019.**| |**EXHIBIT P2**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BY**| ||**THE PETITIONER TO THE CHAIRMAN OF KSE BOARD**| ||**DATED 29.06.2019.**| |**EXHIBIT P3**|**TRUE COPY OF THE APPLICATION SUBMITTED BY THE**| ||**PETITIONER ONLINE DURING GENERAL TRANSFER**| ||**2020.**| |**EXHIBIT P4**|**TRUE COPY OF THE LIST OF ASSISTANT**| ||**ENGINEERS(Ele) WHO HAVE APPLIED FOR TRANSFER**| ||**TO ELECTRICAL SECTION, EROOR, FOR PUBLISHED**| ||**BY THE 3RD RESPONDENT, DOWNLOADED FROM**| ||**WEBSITE.**| |**EXHIBIT P5**|**TRUE COPY OF THE RELEVANT EXTRACT OF THE**| ||**PROCEEDINGS OF THE 3RD RESPONDENT**| ||**NO.Eb1(a)/AE(Ele)/GENERAL TRANSFER 2020/DRAFT**| ||**ORDER DATED 30.07.2020**| |**EXHIBIT P6**|**TRUE COPY OF THE DISTRICT WISE INDEX LIST**| ||**(2020) OF ASSISTANT ENGINEERS(Ele) IN**| ||**ERNAKULAM, PUBLISHED BY THE 1ST RESPONDENT,**| ||**DOWNLOADED FROM THE WEBSITE.**| |**EXHIBIT P7**|**TRUE COPY OF THE LIST OF ASSISTANT ENGINEERS**| ||**(ELE) APPLIED FOR TRANSFER TO ELECTRICAL**| ||**SECTION EROOR, DOWNLOADED FROM THE WEBSITE OF**| ||**THE 3RD RESPONDENT.**| |**EXHIBIT P8**|**TRUE COPY OF THE ORDER NO.261/17-18 DATED**| ||**22/7/2017 ISSUED BY THE DEPUTY CHIEF**| ||**ENGINEER.**| |**EXHIBIT P9**|**TRUE COPY OF THE CHARGE MEMO**| ||**NO.EBVS.10/3/2019/107 DATED 19/2/2020**| |**EXHIBIT P10**|**TRUE COPY OF THE ORDER NO.EBVS.10/3/2019/453**| ||**DATED 14/8/2020 OF THE CHIEF ENGINEER.**| |**RESPONDENT'S EXHIBITS:**|| |**EXHIBIT R1(A)**|**TRUE COPY OF THE ORDER NO.2/14/2016/508**| ||**DATED 14.07.2016.**| ||True copy| ||PS to Judge|