Reji R. et al. v. Kerala State Road Transport Corporation (KSRTC)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** ## **WP(C).No. 9728 of 2019** ## **PETITIONERS:** - **1 REJI R, AGED 43 YEARS, S/O. RAJAN, ARAKKAMALIYEKKAL HOUSE, AROOR P.O., CHERTHALA-688 534.** - **2 DILEEP KUMAR.P.B., AGED 47 YEARS, S/O. BHASKARAN NAIR, PUTHENVEETTIL HOUSE, THENGODU P.O., NAVODAYA, KAKKANAD-682 30.** - **3 SHAMSUDHEEN.T.K., AGED 41 YEARS, S/O. KOYA, THAZHATHEL HOUSE, ERUMELY, KUMARAPURAM P.O., PALLIKKARA-683 565.** - **4 JAMES N.O., AGED 50 YEARS, S/O. OUSO, NEDIYATHARA, EDAKOCHI, KOCHI 10.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS:** - **1 THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-695 023.** - **2 THE CHAIRMAN AND MANAGING DIRECTOR, THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-695 023.** - **3 THE ZONAL OFFICER, CENTRAL ZONE, KSRTC, BOAT JETTY, ERNAKULAM-682 011.** 2 WP(C)9728 OF 2019 - **4 THE DISTRICT TRANSPORT OFFICER, THE KERALA STATE ROAD TRANSPORT CORPORATION, ERNAKULAM-682 011.** **BY ADV. SHRI.T.P SAJAN, SC, KERALA STATE ROAD TRANSPORT CORPORATION - KSRTC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WP(C)9728 OF 2019 ## **JUDGMENT** The petitioners, who have been working as drivers in Thevara Depot of KSRTC, are transferred to Thiruvananthapuram City Depot, vide Ext.P2 memorandum dated 26.03.2019 of the 4[th] respondent District Transport Officer, on work arrangement, for a period of three months with effect from 26.03.2019. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 memorandum dated 26.03.2019; and seeking a writ of mandamus commanding the respondents to retain them in Thevara Depot, in the light of the directions contained in Ext.P1 judgment. Petitioners 2 and 3 have also sought for a writ of mandamus commanding the 4[th] respondent to consider Exts.P3 and P4 representations and allow them to continue in Thevara Depot. 2. On 28.03.2019, when this writ petition came up for admission, the learned Standing Counsel for KSRTC sought time to get instructions. 3. A statement has been filed by the learned Standing Counsel for KSRTC, on behalf of the respondents. Paragraphs 2 4 WP(C)9728 OF 2019 ## to 5 of the said statement read thus; “2. It is submitted that by Ext.P2, the petitioners were transferred to Trivandrum C.L unit on working arrangement basis. Ext.P2 transfer is only for three months. Ext.P2 order was issued on the basis of the direction from the Chief Office Memo vide No.PL13/000797/18 TVM dated 14.02.2019. As per the memo it was directed to depute drivers to TVM CL unit on work arrangement. So the contention of the petitioners that the 4[th] respondent DTO has no jurisdiction to transfer the petitioners is without any merit. Ext.P2 clearly shows that the direction of the Chief office is to depute drivers to TVM CL unit and hence the contention of the petitioner that, the Circular mentioned in Ext.P2 allows transfer to different depots in central zone is also not correct. 3. It is submitted that the contention of the petitioner, that Ext.P2 is in violation of Ext.P1 judgment is not correct. The observation in Ext.P1 judgment that the authority concerned among the respondents will be at liberty to disengage any particular driver from service of such buses for any valid reasons like disciplinary action or on the basis of any irregularity / misconduct or negligence committed in duty, does not mean that the petitioners cannot be transferred on administrative reasons. In paragraph 4 of Ext.P1 judgment, it is stated that the petitioners are bound to undertake any duty assigned to the category of drivers, considering exigencies of service, as decided from time to time by the authorities of KSRTC. So the contention raised by the petitioners based on Ext.P1 judgment against Ext.P2 5 WP(C)9728 OF 2019 transfer is without any merit. 4. It is submitted that pursuant to Ext.P2 order is issued in administrative exigencies. Ext.P2 reveals that the petitioners were relieved on 26.03.2019 from the Thevara. The allegation of the petitioner that Ext.P2 is issued with mala fide and hence vitiated is not correct. Ext.P2 order is issued on purely administrative reasons. Even though petitioners have alleged mala fides, no reason is attributed in support of the said allegation. It is respectfully submitted that there is absolutely no mala fides in issuing Ext.P2. Ext.P2 is issued on valid reasons and do not intentionally took away or curtail any of the rights of the petitioners. The transfer is only an incident of service and hence no malice can be attributed against the Corporation. 5. It is submitted in similar cases where in the transfer is on working arrangement for shot period, this Hon'ble Court was pleased to dispose of the matter directing the Corporation to consider the representation filed by the petitioners, highlighting their personal grievance. As per the judgment dated 05.03.2019 in W.P.(C)No.6537 of 2019 this Hon'ble Court was pleased to direct the Corporation to consider the representation, in the light of the decisions reported in **Som Prakash V. Union of India (1981 (1) SCC 449)** where it is observed that the Public Sector is a model employer with social conscience. In the above circumstance it is submitted that the challenge against Ext.P2 is without any merit and the writ petition may be disposed of accordingly.” 4. Heard the learned counsel for the petitioners and 6 WP(C)9728 OF 2019 also the learned Standing Counsel for KSRTC, representing the respondents. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P2 memorandum, whereby the petitioners, who have been working as drivers in Thevara Depot of KSRTC, are transferred to Thiruvananthapuram Central Depot, on work arrangement, for a period of three months. Though, it is contended in the writ petition that Ext.P2 order is vitiated by malafides, no vitiating circumstances are pleaded in this writ petition with reliable materials. 6. The learned Standing Counsel for KSRTC would point out that, Ext.P2 order is only an order of transfer on work arrangement, for a period of three months and after expiry of specified period, the petitioners will be posted back to Thevara Depot. 7. 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 7 WP(C)9728 OF 2019 the absence of any specific allegation of mala fides or at least a prima facie proof of vitiating circumstances influencing that 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 8 WP(C)9728 OF 2019 vitiating circumstances influencing such an order of transfer. 8. Viewed in the light of the law laid down by this Court in the decision 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.P2 order of transfer, in exercise of the writ jurisdiction under Article 226 of the Constitution of India. 9. Having considered the submissions made by the learned counsel on both sides, this Court finds no reason to interfere with Ext.P2 order of transfer. 10. As far as the 2[nd] and 3[rd] petitioners are concerned, they have moved Exts.P3 and P4 representations, highlighting their personal inconveniences, and sought for reconsideration of the order of transfer. The stand taken by the respondents in their counter affidavit is that, the representations made by petitioners 2 and 3 can be considered in the light of the law laid down by this Court in the judgment dated 05.03.2019 in W.P.(C)No.6537 of 2019. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of as 9 WP(C)9728 OF 2019 follows; (i) The challenge made in this writ petition against Ext.P2 memorandum, whereby the petitioners have been ordered to be transferred from Thevara Depot to Thiruvananthapuram Central Depot of KSRTC, fails in the absence of any vitiating circumstances pointed out in this writ petition, warranting interference in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. (ii) Since, in the statement filed on behalf of the respondent, it has been stated that, Exts.P3 and P4 representations submitted by the 2[nd] and 3[rd] petitioners shall be considered by the Managing Director of the 1[st] respondent Corporation, taking note of the law laid down by this Court in the judgment dated 05.03.2019 in W.P.(C)No.6537 of 2019, there will be an order directing the Managing Director of the 1[st] respondent Corporation to consider and pass appropriate orders on Exts.P3 and P4 representations, with notice to petitioners 2 and 3 and after affording 10 WP(C)9728 OF 2019 them an opportunity of being heard. (iii) Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 11 WP(C)9728 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT IN WPC NO. 6 OF 2012 AND CONNECTED CASE. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 26/3/2019 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER BEFORE THE 4TH RESPONDENT.** ## **RESPONDENTS ' EXHIBITS: NIL** **TRUE COPY** **P.A. TO JUDGE**