Prasannan N.S. v. Kerala State Electricity Board Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **WP(C).No. 999 of 2019** ## **PETITIONER:** ## **PRASANNAN.N.S.,** **AGED 44 YEARS, S/O.SARASIJAKSHAN, CASHIER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, KAKKADU. (RESIDING AT NARIKUZHIYIL HOUSE, KOCHUKOYIKKAL, SEETHATHODU, PATHANAMTHITTA DISTRICT).** ## **BY ADV. SMT.SHAMEENA SALAHUDHEEN** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM- 695 004.** - **2 CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM- 695 004.** - **3 CHIEF ENGINEER (HRM). KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM- 695 004.** - **4 EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., OFFICE OF THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PATHANAMTHITTA, PIN - 689 645.** - **5 SANTHOSH.P.T., CASHIER, ELECTRICAL SECTION, KAKKADU, PATHANAMTHITTA, PIN - 689 667.** **BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)999 OF 2019 ## **JUDGMENT** The petitioner, who was working as Cashier (Electrical) in Electrical Section, Kakkadu of the Kerala State Electricity Board (KSEB), has been transferred to Electrical Section, Pathanamthitta, vide Ext.P3 order of transfer dated 01.01.2019 issued by the 4[th] respondent. By Ext.P4 order dated 01.01.2019 of the 4[th] respondent, he was relieved from Electrical Section, Kakkadu. Ext.P3 order is one issued based on Ext.P2 order dated 14.12.2018 of the 1[st] respondent, whereby it was decided among other things that in all Electrical Sections having less than 15,000 bi-monthly counter transactions, there will be only a single Cashier. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P3 and P4 and seeking a writ of mandamus commanding the 4[th] respondent to retain him in the present station. The further reliefs sought for are a declaration that the petitioner is not liable to be transferred to Electrical Section, Pathanamthitta; and an order directing the 3[rd] respondent to consider and pass appropriate orders on Ext.P8 representation dated 04.01.2019 3 WP(C)999 OF 2019 made by the petitioner. 2. On 11.01.2019, when this writ petition came up for admission, the learned Standing Counsel for KSEB took notice on admission for respondents 1 to 4. Urgent notice on admission by special messenger was ordered to the 5[th] respondent, returnable by 15.01.2019. The learned Standing Counsel for KSEB was directed to get instructions. By order dated 11.01.2019, this Court has made it clear that the relieving of the petitioner in terms of Ext.P4 order will be subject to further orders to be passed in this writ petition. 3. A counter affidavit has been filed on behalf of respondents 1 to 4, opposing the reliefs sought for in this writ petition, wherein it has been stated that Ext.P2 order was issued to cut short the number of cash counters in Electrical Sections, which is being implemented in about 174 Electrical Sections throughout Kerala. As part of implementation of Ext.P2 order, the 4[th] respondent has issued Ext.P3 order transferring the petitioner, on working arrangement, to Electrical Section, Pathanamthitta, after retaining the 5[th] respondent, who according to respondents 1 to 4, is more 4 WP(C)999 OF 2019 experienced. The petitioner has also filed a reply affidavit. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel for KSEB, representing respondents 1 to 4. Despite service of notice, none appears for the 5[th] respondent. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P3 order of transfer and Ext.P4 relieving order, whereby the petitioner has been transferred to Electrical Section, Pathanamthitta and consequently relieved from Electrical Section, Kakkadu. 6. As already noticed, Ext.P3 order of transfer is one based on Ext.P2 order of the 1[st] respondent, which is a revised order issued for enhancing digital payments in Electrical Sections. As per the said order, single shift has to be implemented in 174 Electrical Sections, including Electrical Section, Kakkadu, with less than 12,000 bi-monthly counter transactions. When, Ext.P2 order is not under challenge, the petitioner cannot contend that, Ext.P3 order of transfer on working arrangements, which is stated to be one issued in the 5 WP(C)999 OF 2019 exigency of service and public interest, is a clandestine action of respondents 1 to 4 to victimise him. 7. It is well settled that, the realm of judicial intervention in an order of transfer of an employee, even if there are guidelines governing such transfer, gets confined to a scrutiny as to whether there is any vitiating elements of mala fides, malice, substantial legal and factual perversity or arbitrariness, recognisable on the touch stones of the fundamental rights, as enshrined in the Constitution, to visit the executive decision of the employer. Therefore, it is not for this Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India, to decide the question as to whether the petitioner or the 5[th] respondent should be retained at Electrical Section, Kakkadu, on implementation of Ext.P2 order. It is the choice of the employer to determine how long the service of an employee is required in a particular place. Since transfer is an incident of service, an employee working on a transferable post cannot claim, as a matter of right, that he should be retained in a particular post or at a particular place. 6 WP(C)999 OF 2019 8. In **Santhosh K. and another v. Chief Engineer** **(HRM), Kerala State Electricity Board [2013 (4) KHC 624]** a Division Bench of this Court, in the context of the transfer guidelines of employees issued by the Kerala State Electricity Board, held as follows; "It is salutary that the contents of both the aforesaid KSEB orders 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, recognisable on the touch stones of the Fundamental Rights, as enshrined in the Constitution, to visit the executive decision of the KSEB as the employer." 9. 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 mala fides or at least a prima facie proof of vitiating circumstances influencing that WP(C)999 OF 2019 7 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 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 mala fides 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 mala fides', cannot therefore sound in realms of mala fides 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 mala fides 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. 10. Viewed in the light of the law laid down by this WP(C)999 OF 2019 8 Court in the decisions referred to supra, the averments contained in this writ petition and the grounds raised therein are not at all sufficient to make out a case warranting interference on Ext.P3 order of transfer and Ext.P4 relieving order, in exercise of the writ jurisdiction under Article 226 of the Constitution of India. 11. The learned counsel for the petitioner, with reference to the pleadings and materials on record, would point out that the petitioner is the only person to look after his aged parents. His father is paralysed and his mother is a cardiac patient. In order to substantiate the said facts, the petitioner would place reliance on Exts.P6 and P6(a) medical certificates. Moreover, the petitioner met with a road accident in April 2018 and there are implants in his right shoulder, as evident from Ext.P7 discharge summary. Pointing out the said facts, the petitioner has preferred Ext.P8 representation before the 3[rd] respondent, for retention at Seethathodu. During the course of arguments, the learned counsel for the petitioner would point out that on account of strained relationship, the wife of the petitioner has filed a petition for divorce, which is WP(C)999 OF 2019 9 now pending consideration before the Family Court, Pathanamthitta. 12. In **Som Prakash Rekhi v. Union of India [(1981) 1 SCC 449]** a Three-Judge Bench of the Apex Court held that, social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model employer with a social conscience not an artificial person without soul to be damned or body to be burnt. Later, in **Gurmail Singh and others v. State of Punjab and others, [(1991) 1 SCC 189]** the Apex Court reiterated that, the State as a model employer is expected to show fairness in action. 13. In **Sini Ben and another v. Union of India and others [ILR 2016 (1) Ker 798]** this Court held that, viewed in the light of the law laid down by the Apex Court in **Som Prakash Rekhi's case** and **Gurmail Singh's case** referred to supra, the Indian Railways, which is one of the biggest employers in India with more than 14 lakhs employees, should act as a model employer and show fairness in its action. WP(C)999 OF 2019 10 14. The principle laid down in the decisions referred to supra is equally applicable in the case of KSEB, which is the biggest employer in power sector, which is engaged in generation, distribution and transmission of electricity in the State. Therefore, KSEB should act as a model employer and show fairness in its action. 15. Therefore, it is for the 3[rd] respondent or the appropriate authority in KSEB to take a decision on the request made by the petitioner in Ext.P8, with notice to the petitioner and also to the 5[th] respondent, taking note of the law laid down in the decisions referred to supra. In case, the petitioner cannot be retained at Electrical Section, Kakkadu, the 3[rd] respondent or the appropriate authority shall consider the question as to whether he can be retained at any nearby place, considering the peculiar facts and circumstances pointed out by the petitioner, relying on Exts.P6 and P6(a) medical certificates and Ext.P7 discharge summary. 16. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of this WP(C)999 OF 2019 11 judgment. The writ petition is disposed as above. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 12 WP(C)999 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE INCUMBENCY DETAILS OF THE PETITIONER.** **EXHIBIT P2 A TRUE COPY OF THE BO(DB) NO.1994/2018(D(D&IT) D6AE2/CASHIERS/2018-19 DATED 14/12/2018.** - **EXHIBIT P3 A TRUE COPY OF TRANSFER ORDER NO.EBI/ED PTA/T&P/2018-19/1960 DATED 1/1/2019.** - **EXHIBIT P4 A TRUE COPY OF THE RELIEVING MEMO EBI/RELIEVING MEMO/CASHIER/201819/1962 DATED 1/1/2019.** - **EXHIBIT P5 A TRUE COPY OF THE INCUMBENCY DETAILS OF THE 5TH RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE MEDICAL CERTIFICATE OF THE PETITIONER'S MOTHER.** - **EXHIBIT P6 A A TRUE COPY OF THE MEDICAL CERTIFICATE OF THE PETITIONER'S FATHER.** - **EXHIBIT P7 A TRUE COPY OF THE DISCHARGE SUMMARY OF THE PETITIONER.** - **EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION DATED 4/1/2019.** ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** **P.A. TO JUDGE**