R. Muraleedharan Nair v. Travancore Devaswom Board and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 15TH DAY OF OCTOBER 2014/23RD ASWINA, 1936 WP(C).No. 18570 of 2014 (U) ------------------------------------------- PETITIONER: R.MURALEEDHARAN NAIR, S/O.RAGHAVAN NAIR, AGED 51 YEARS, SPECIAL GRADE SUBGROUP OFFICER, VALLIYAMKAVU DEVASWOM, MUNDAKAYAM GROUP, RESIDING AT 'MURALIKA', EVOOR NORTH, EVOOR P.O. CHEPPADU, ALAPPUZHA DISTRICT. BY ADVS.SRI.S.SUBHASH CHAND SRI.S.JAYAKRISHNAN RESPONDENTS: 1. TRAVANCORE DEVASWOM BOARD REP. BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM, PIN-695001. 2. THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM,,PIN-695001. 3. THE ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, MUNDAKAYAM GROUP, MUNDAKAYAM, PIN-686513. 4. H.KRISHNAKUMAR, SPECIAL GRADE SUBGROUP OFFICER, CHERUVALLY DEVASWOM, MUNDAKAYAM GROUP, PIN-686543. R4 BY ADV. SRI.K.S.MANU (PUNUKKONNOOR) R1 TO R3 BY ADV. SRI.A.N.RAJAN BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WP(C).No. 18570 of 2014 (U) PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE ORDER ROC NO.80/14/EST. DT.26-6-2014 ISSUED BY THE SECOND RESPONDENT EXHIBIT P2: TRUE COPY OF THE ORDER ROC NO.80/14/EST.DT.17-7-2014 ISSUED BY THE SECOND RESPONDENT EXHIBIT P3: TRUE COPY OF THE REPRESENTATION DT.17-7-2014 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT RESPONDENTS' EXHIBITS: NIL. Dama Seshadri Naidu, J. ------------------------------------------- W.P.(C)No.18570 of 2014 U -------------------------------------------- Dated this the 15[th] day of October, 2014 ## **JUDGMENT** When the authorities wanted to accommodate the request of the fourth respondent to be transferred to a place of his comfort, their effort in that regard has made the petitioner suffer what is said to be an unwanted transfer to some other place, thus making the petitioner a collateral victim. 2. Briefly stated, the petitioner joined the service of the first respondent Board on 07.01.1988 as Lower Division Clerk-cum-Second Grade Sub-group Officer. Later, on 10.08.2009, the petitioner was promoted as Junior Superintendent and posted in Sabarimala group of temples. On 15.07.2010, the petitioner was transferred to Kaviyoor Mahadeva Temple. After completing three years in Kaviyoor WPC 18570/14 2 Mahadeva Temple, the petitioner was transferred on 08.06.2013 to the present place of posting, i.e., Valliyamkavu Devaswom as Special Grade Sub-group Officer. 3. When Exhibit P1 general transfer order was passed, certain employees of the respondent Board were subjected to transfer, either based on the request of those employees or as a matter of policy since they have completed three years of service at a particular place. The fourth respondent is one of such employee, who has been subjected to transfer from Cheruvally Devaswom to Vaikom Devaswom. It appears from the record that, aggrieved by Exhibit P1, the fourth respondent filed an appeal before the first respondent. Eventually, the first respondent allowed the appeal modifying Exhibit P1. Resultantly, the fourth respondent was ordered to be transferred, instead of Vaikom, to Valliyamkavu Devawom, thereby displacing the petitioner, who in turn, through Exhibit P2, was transferred WPC 18570/14 3 to Thiruvalla Devaswom. Under those circumstances, assailing his transfer, the petitioner has filed the present writ petition. 4. It is pertinent to observe that neither the petitioner nor any of the respondents could place on record a copy of the order in appeal. The learned counsel for the petitioner has, nevertheless, submitted that the petitioner has not been served with a copy of the order. Though a counter affidavit was filed by the respondent Devaswom, the authorities, too, did not choose to file the said appellate order. The petitioner, however, has placed on record Exhibit P2 transfer order, which is only consequential to the appellate order said to have been passed by the first respondent initially. 5. In the above factual background, the learned counsel for the petitioner has strenuously contended that, firstly the petitioner never sought any transfer; secondly, the petitioner has not completed three years in the present WPC 18570/14 4 place of posting. He has further submitted that the petitioner has been displaced only at the behest of the fourth respondent, more particularly, without having an opportunity afforded to him. According to the learned counsel, it is in gross violation of the principles of natural justice. 6. The learned counsel has drawn my attention to the counter affidavit filed by the respondent Board. Paragraph 7 thereof specifically records certain adverse observations against the integrity of the petitioner. Laying emphasis on the above paragraph, the learned counsel has strenuously contended that the transfer effected through Exhibit P2 is nothing but punitive in nature casting a cloud on the character and integrity of the petitioner. In further reference to the said paragraph, the learned counsel would submit that the respondent Board has, ex post facto, tried in the counter affidavit to supply justification in support of Exhibit P2 transfer order. According to the learned counsel, WPC 18570/14 5 the very Exhibit P2 transfer order does not indicate any reason why the petitioner has been subjected to transfer, more particularly after effecting general and request transfers through Exhibit P1 proceedings. The learned counsel, therefore, urges this Court to allow the writ petition, inasmuch as the action of the respondent Board, according to the learned counsel, is tantamount to malicein-law, if not malice-in-fact. The learned counsel has in this regard also placed reliance on the decision of the Apex Court in **Somesh Tiwari v. Union of India and Others** ((2009) 2 SCC 592). 7. Per contra, the learned Standing Counsel for the respondent Board has submitted that the transfer through Exhibit P2 was effected only on administrative grounds. In that regard, the learned Standing Counsel has drawn the attention of this Court to paragraph 11 of the counter affidavit, as well as other averments therein. He has further submitted that the petitioner does not have any reason to WPC 18570/14 6 assail Exhibit P2 transfer since he was transferred to Thiruvalla, which is very near to his native place. The learned Standing Counsel has also submitted that the petitioner's daughter is studying at Pala, which place, frequented often by the petitioner, is also very near to Thiruvalla. Thus, in sum and substance, the learned Standing Counsel has submitted that the transfer is not only on the administrative grounds, but also to the benefit of the petitioner himself. 8. The learned counsel for the fourth respondent has stoutly defended Exhibit P2. Apart from adopting the arguments of the learned Standing Counsel, the learned counsel for the fourth respondent has submitted that the petitioner on an earlier occasion worked in Valliyamkavu Devaswom for three years, and only in 2013 he was transferred back to that Devaswom. There is no justification for the petitioner, contends the learned counsel for the fourth respondent, to insist that he be kept in the same WPC 18570/14 7 place notwithstanding the administrative exigencies of the Devaswom. Accordingly, he urges this Court to dismiss the writ petition. 9. In his reply submissions, the learned counsel for the petitioner has submitted that the plea that the petitioner has been posted to a place near to his native place and also the place where his daughter is studying is fallacious and untenable. In the alternative, the learned counsel has further submitted that, having made certain allegations in the counter affidavit touching on the integrity of the petitioner, the respondent authorities cannot turn back and take shelter under the plea that the transfer was effected only for the convenience of the petitioner. 10. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Board, as well as the learned counsel for the fourth respondent, apart from perusing the record. WPC 18570/14 8 11. Indisputably, the petitioner was not subjected to any general transfer through Exhibit P1, nor can it be said that the petitioner completed three years in the present place of posting to treat his transfer as one under the policy of the Board. Having said that, I hasten to add that in the matter of transfer, this Court would not ordinarily be interfering, thereby curtailing the administrative discretion enjoyed by the employer, which is the proper authority to determine the administrative exigencies and to make best use of the services of its work force. At any rate, once a statute or regulation, having the force of law, governs the field, namely the policy of transfer, unless exceptional circumstances are shown, it is not advisable for the authorities to deviate therefrom, as it appears in the present instance, thereby affecting the morale of the employees. 12. If the facts of the present case are examined, Exhibit P2 transfer order was passed by the second WPC 18570/14 9 respondent only as a consequence to the order passed by the first respondent in an appeal said to have been filed by the fourth respondent. In other words, Exhibit P2 order came into existence only as a consequence to a quasijudicial order passed in a statutory appeal by the first respondent. In that context, since, eventually the petitioner is the affected person, it was incumbent on the part of the appellate authority, the first respondent, to have put the petitioner on notice before passing orders on the statutory appeal filed by the fourth respondent. 13. This Court, however, is handicapped in examining the rationale that animated the order said to have been passed in appeal, inasmuch as the respondent Board has not chosen to place on record the order passed by the first respondent. The respondent Board being the custodian of the said order in appeal, this Court cannot look to the petitioner to file the said document. On the other hand, there is every justification for the Court to draw an WPC 18570/14 10 adverse inference against the Devaswom Board for its failure to produce a document which is crucial in determining the inter-se rights of the petitioner and the fourth respondent regarding transfer, though. 14. Indeed, once Exhibit P2 is accepted – and not much doubt exists on that count – to be an offshoot of a quasi-judicial adjudication of the right of a particular person, any other person, who is likely to be affected as a result of the exercise of the said quasi-judicial power, nolens volens, ought to have been heard. 15. To recapitulate, the petitioner was not subjected to general transfer under Exhibit P1; on the contrary, the fourth respondent was subjected to it. As a result of the appeal filed by the fourth respondent, Exhibit P1 was modified, resulting in the displacement of the petitioner, who admittedly had never been heard at any stage. Thus, it is required to be held that the transfer of the petitioner in the process giving effect to the appellate order of the first WPC 18570/14 11 respondent offends the cardinal canon of audi alterem partem. 16. Moving further, this Court wishes to place on record that beyond the general transfers, which are usually effected as a matter of annual exercise, lie the untrammeled administrative powers of the employer in effecting transfers even midstream, provided it is in the best interest of administration. Nevertheless, we cannot say that Exhibit P2 has been issued under any such circumstance. The entire justification on the part of the respondent Board is reflected in the counter affidavit filed by the authorities. In paragraph 7 of the counter affidavit, very grave allegations have been made against the petitioner. The authorities have also gone on record even accentuating that the transfer was effected in view of the questionable conduct or character of the petitioner. If that be so, it is all the more necessary that the petitioner ought to have been heard before passing the order in appeal or at least before passing Exhibit P2 order. WPC 18570/14 12 17. The order of transfer is stigmatic and punitive in nature. Indeed, the respondent authorities have made valiant efforts by incorporating certain paragraphs in the counter affidavit to supply justification as if the transfer had been effected on administrative exigencies. That post factum effort, I am afraid, cannot be countenanced. 18. Though the learned counsel for the petitioner has submitted that there is an element of malice-in-law, he has, however, failed to establish any ground to drive home the point that actually there is any element of malice-in-law. Be that as it may, there has been a profusion of precedents either from the Hon'ble Supreme Court or from this Court that transfer is only an incidence of service. It is at best an occupational angst. Conceding that, it cannot still be said that such a device as transfer can be taken recourse to as a measure of punishment. In other words, if the transfer is punitive and stigmatic, it is essential that the affected employee is to be heard before taking any decision, lest it WPC 18570/14 13 should amount to arbitrary exercise of power flouting all facets of fairness. 19. Accordingly, this Court has no manner of doubt to hold that Exhibit P2 is vitiated on account of denial of proper opportunity of being heard to the petitioner. In the same breath, it is to be stated that prejudice caused to the petitioner in this regard is writ large, calling for no elaboration, obviating the invocation of prejudice theory. That apart, in terms of the counter affidavit filed by the respondent Board, the order of transfer is punitive and stigmatic. Exhibit P2 is, therefore, quashed to the extent it affects the petitioner and the fourth respondent, thereby restoring the petitioner to his original place of working. 20. It is, however, left open for the respondent authorities to take appropriate administrative measures concerning the transfer of any of its employees, including the petitioner and the fourth respondent, in the normal course, even midstream, based on factors like WPC 18570/14 14 administrative convenience, but strictly within the confines of the statutory parameters. It is further made clear that if the authorities desire to transfer the petitioner, which the authorities undoubtedly can, either as a result of the appellate order passed by the first respondent or as a result of any allegations as have been set out in the counter affidavit, it is essential for them to follow the principles of natural justice in furtherance of the said objective, to wit, by providing a prior opportunity of being heard to the petitioner. The writ petition, to the extent indicated above, is allowed. No order as to costs. Dama Seshadri Naidu, Judge tkv