Raju M. v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** ## **WP(C).No. 28710 of 2017 (K)** **----------------------------** ## **PETITIONER :** **----------------------** **RAJU.M., S/O. MANIYAN, AGED 44 YEARS, KANDATHINCHIRAYIL VEEDU, KAVOOR P.O., PUNALUR, KOLLAM DISTRICT, PIN - 689 696.** ## **BY ADVS.SRI.C.S.MANILAL SRI.S.NIDHEESH** **RESPONDENT(S):** **--------------------------** **1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY THE MANAGING DIRECTOR,** **TRANSPORT BHAVAN, EAST FORT, TRIVANDRUM - 695 001.** **2. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION,** **TRANSPORT BHAVAN, TRIVANDRUM - 695 001.** **3. THE DISTRICT TRANSPORT OFFICER, K.S.R.T.C., KOTTARAKKARA - 691 506.** **R1 TO R3 BY SHRI.T.P SAJAN, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 28710 of 2017 (K)** **----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ---------------------------------------** **EXHIBIT P1 TRUE COPY OF THE TRANSFER ORDER DATED 03.08.2017 TRANSFERRING THE PETITIONER FROM KOTTARAKKARA TO MUNNAR. EXHIBIT P2 TRUE COPY OF THE REQUEST DATED 28/8/2017 EXHIBIT P3 TRUE COPY OF THE REQUEST DATED 22/10/2017** **RESPONDENT(S)' EXHIBITS: NIL ----------------------------------------/TRUE COPY/ P.S.TO JUDGE** **sts** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.28710 of 2017 ----------------------------------------------Dated this the 24[th] day of October, 2017** ## **JUDGMENT** According to the petitioner, he is a seniormost driver of Kottarakkara depot of the 1st respondent Corporation. In connection with the general strike, 138 employees of the Corporation were transferred to distant places. Petitioner was transferred from Kottarakkara in Kollam District, to Munnar in Idukki District. However, all the transfers were cancelled except that of the petitioner by the 2nd respondent. Though the petitioner was transferred, according to the petitioner, he was not relieved from Kottarakkara. While so, a second transfer under the guise of punishment transfer was made from Kottarakkara to Peroorkada in Thiruvananthapuram, without serving the order and even without issuing any memo. Petitioner challenges Ext.P1 as well as the 2nd order of transfer on the ground of discrimination violating Article 14 and also on the ground of _malafides_ . 2. Thereafter, during the pendency of the writ petition, petitioner has submitted I.A.No.15433 of 2017, wherein it is 2 **W.P.(C) No.28710 of 2017** contended that the petitioner was not actually relieved from Kottarakkara, and while so, the order of transfer was cancelled on 28.08.2017, and the petitioner is not served with any relieving order or any order of cancellation. It is also contended that, while the transfer to Munnar was in force, without cancelling that order of 21.08.2017, petitioner was transferred from Kottarakkara to Peroorkada. Other contentions are raised with respect to the non-receipt of the orders of transfer in respect of the transfer to Peroorkada from Kottarakkara. The relieving of the petitioner is also disputed by the petitioner. According to the petitioner, the nature of transfer orders passed by the respondents will show that the same are _malafide_ in nature. Therefore, interference of this Court is sought for by the petitioner. 3. Learned counsel for the petitioner has invited my attention to the judgment of the apex court in _**'Somesh Tiwari v. Union of India & Ors**_ .' [AIR 2009 SC 1399], and specifically to paragraph 20, which reads thus: _“20. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is_ 3 **W.P.(C) No.28710 of 2017** _entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.”_ Therefore, according to the learned counsel for the petitioner, if the transfer is punitive in nature, the action without providing an opportunity to the petitioner cannot be sustained under law, since the same is tainted and the future of the petitioner will be put in peril. 4. Anyhow, the respondent Corporation has filed a statement contending that the petitioner has filed a representation before the Managing Director to re-consider his transfer to Peroorkada and post him at Kottarakkara depot. It is also stated that the petitioner has filed an I.A. for a direction to retain him at Kottarakkara, however the petitioner was relieved from Kottarakkara Unit to Peroorkada unit on 29.08.2017. So the prayer for retention of the petitioner in Kottarakkara is only liable to be rejected. Since the petitioner has already availed his proper remedy by filing Ext.P2 representation against his transfer from Kottarakkara to Peroorkada, and since Ext.P1 has already been modified by the Corporation, the petitioner's prayer for retention at **W.P.(C) No.28710 of 2017** 4 Kottarakkara is only liable to be dismissed, and the writ petition may be disposed of accordingly. 5. That apart, it is contended that, since the petitioner was relieved from Kottarakkara pursuant to Ext.P1 order of transfer, the order dated 21.08.2017 could not be implemented immediately. So, as per order dated 28.07.2017, Ext.P1 order was modified by retaining the petitioner at Kottarakkara Unit, and thereafter by implementing the transfer order dated 21.08.2017, the petitioner was relieved from Kottarakkara on 29.08.2017. However, the petitioner refused to accept the transfer order, and hence the same was also despatched to his address. 6. Petitioner has filed I.A.No.16967 of 2017 and along with the same, Ext.P3 representation is produced by the petitioner, which is submitted before the Managing Director on 23.10.2017. Petitioner also seeks disposal of Ext.P3. 7. Heard learned counsel for the petitioner and the learned Standing Counsel for the Corporation. Perused the documents on record and the pleadings put forth by the respective parties. **W.P.(C) No.28710 of 2017** 5 8. The fact discussion made above would make it clear that the issue centres around the transfer of the petitioner from Kottarakkara to Peroorkada. According to the petitioner, he is not served with any order of cancellation of the original transfer from Kottarakkara to Munnar or the subsequent transfer order from Kottarakkara to Peroorkada. These are all subject matter of facts to be elicited by the statutory authority. Anyhow, petitioner has submitted Ext.P2 representation seeking retention of the petitioner in the Kottarakkara depot and the same was pending consideration and while so alone, all the commotion has taken place. It was thereupon that petitioner has submitted again Ext.P3 representation before the Managing Director, which is dated 23.10.2017. 9. Therefore, in my considered opinion, having regard to the facts and circumstances of the case, it is only appropriate that the writ petition is disposed of with suitable directions. There will be a direction to the 2nd respondent to take on board Exts.P2 and P3 representations and consider the same in accordance with law, and attain finality at the earliest possible and at any rate, within three weeks from the date of receipt of a copy of this judgment, after providing an 6 ## **W.P.(C) No.28710 of 2017** opportunity of hearing to the petitioner. I also make it clear that, if any salary is due to the petitioner, the same shall be paid, if there are no other legal impediments standing in the way, within two weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/24.10.2017