High Court of KeralaSingle JudgeWrit petition dismissed.

Retnakumar A. v. State of Kerala and Others

Case / Petition Number:WP(C).No.22231 OF 2019(D)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Anu Sivaraman
Judgment Date
2019-08-26
Court Decision / Holding
Writ petition dismissed. The court held that the transfer order Ext.P1, issued in administrative exigencies, is permissible despite the absence of regulatory framing under the 2017 Act, provided the employee’s service conditions are not adversely affected. It observed that the Board’s status as employer allows transfer and that the absence of Regulations is not a jurisdictional prerequisite. The Government’s lack of appellate power over the petitioner’s representations was noted, leading to dismissal of the petition.
Final Disposition
Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

  • Retnakumar A.

Respondents

  • State of Kerala represented by the Secretary, Department of Ports, Government Secretariat, Thiruvananthapuram
  • Chief Executive Officer, Kerala Maritime Board, Directorate of Ports, Valiyathura, Thiruvananthapuram
  • Director of Ports, Directorate of Ports, Valiyathura, Thiruvananthapuram
  • Kerala Maritime Board represented by its Chairman, Kerala Maritime Board
  • Mr. V. J. Mathew, Chairman, Kerala Maritime Board
  • Vinothu K. R., Chief Operating Officer, Kerala Maritime Board
  • Chief Operating Officer, Kerala Maritime Board

Legal Representation & Advocates

Counsels for Petitioners

  • • C. Unnikrishnan
  • • Gajendra Singh RajpurohIt
  • • Uthara A.S
  • • A. Abdul Rahman

Counsels for Respondents

  • • P.K. Suresh Kumar (Sr.)
  • • K. P. Sudheer

Case Synopsis & Summary

Retnakumar A., a Mechanical Marine Engineer employed by the Kerala Maritime Board, challenged Ext.P1, an order transferring him from the Ports Directorate to the mechanical engineering workshop at Kollam Port. He argued that the transfer was issued without regulatory backing under the Kerala Maritime Board Act, 2017, and thus lacking jurisdiction; he also alleged mala fides and claimed the transfer amounted to demotion. The petitioner contended that the 2017 Act took over personnel from the Government and promised that service conditions would not be altered, so relocating him to a workshop would affect his tenure and terms. He pointed to board minutes (Ext.P3, Ext.P4) and to the attendance of the 6th respondent at the meeting as evidence of possible bias and improper decision-making. The respondents submitted the transfer was an administrative exigency, properly within the Board’s prerogative, and that the 2017 Act ensures the Board can employ staff on similar terms to those prior to the takeover; they stressed the petitioner’s service was transferred to the Board and that there was no intention to alter his service conditions. The High Court held that framing regulations under the 2017 Act is not a jurisdictional prerequisite for an order of transfer provided service conditions are not adversely affected, and dismissed the petition, noting lack of appellate power in the Government to review the petitioner’s representations.

Provisions of Law Cited

Kerala Maritime Board Act, 2017Section 16(f) of the ActSections 107 and 108 of the Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued Ext.P1 lacks jurisdiction since the Kerala Maritime Board Act, 2017 required regulations under Section 16(f) r/w Sections 107 and 108, which had not been framed. He submitted that the Board’s takeover did not automatically trump service conditions, and that the transfer to the Kollam workshop could amount to demotion, tainted by malafides evidenced by the 6th respondent’s involvement in the Board meeting which approved the transfer. He relied on Ext.P2 (GO/ MS) 90/57 and Ext.P3–P4 minutes to show that the regulatory regime was unsettled and the Board’s actions could not adversely alter terms of appointment until regulations were in place. He also argued there is no appellate remedy to challenge representations before the Government.

Contentions of Respondents

The respondents contended the transfer was a valid administrative action in exigent circumstances, independent of formal regulations, and consistent with Board prerogatives. They asserted the 2017 Act transferred employees from Government to the Board on terms that would ordinarily continue, and that the petitioner’s removal from his posting to a workshop does not alter his tenure or terms. The 6th respondent’s attendance at the meeting was said to be for the stated reasons in the minutes; the Government has no power to quash the transfer absent a formal rule that binds in this context. The court was asked to reject the challenge, noting that lack of regulatory framing does not bar transfer where service conditions are not adversely affected, and that the petition itself lacked a remedy through Government appellate channels.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Prasar Bharti and Others v. Amarjeet Singh and Others2007 KHC 3177Mentioned OnlyCited by respondents to argue that transfers can be an incident of service; the High Court, however, declined to rely on it as controlling, instead emphasizing statutory framework and administrative prerogatives.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **WP(C).No.22231 OF 2019(D)** ## **PETITIONER/S:** **RETNAKUMAR.A., AGED 53 YEARS S/O. ACHUTHAN. R., MECHANICAL MARINE ENGINEER, ENGINEER WITH ADDITIONAL CHARGE OF CHIEF MECHANICAL ENGINEER, DIRECTORATE OF PORTS, VALIYATHURA, TRIVANDRUM - 695 008 (UNDER ORDERS OF RELOCATION AND POSTING AS IN-CHARGE OF MECHANICAL ENGINEERING WORK SHOP, PORT, KOLLAM AND ADDITIONAL CHARGE OF ASSISTANT EXECUTIVE ENGINEER, PORT, KOLLAM) RESIDENT OF PERINJELIKUZHI VEEDU, KULAKKADA P.O., POOVATTOOR EAST, KALAYAPURAM, KOTTARAKKARA, KOLLAM - 691 521.** **BY ADVS. SRI.C.UNNIKRISHNAN (KOLLAM) SHRI.GAJENDRA SINGH RAJPUROHIT SMT.UTHARA A.S SRI.A.ABDUL RAHMAN (A-1917)** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY, DEPARTMENT OF PORTS,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**CHIEF EXECUTIVE OFFICER**| ||**KERALA MARITIME BOARD, DIRECTORATE OF PORTS,**| ||**VALIYATHURA, THIRUVANANTHAPURAM - 695 008.**| |**3**|**THE DIRECTOR OF PORTS,**| ||**DIRECTORATE OF PORTS, VALIYATHURA,**| ||**THIRUVANANTHAPURAM - 695 008.**| |**4**|**KERALA MARITIME BOARD**| ||**REPRESENTED BY ITS CHAIRMAN, KERALA MARITIME BOARD,**| ||**VALIYATHURA, VALLAKKADAVU P.O.,**| ||**THIRUVANANTHAPURAM - 695 008.**| |**5**|**MR.V. J. MATHEW**| ||**CHAIRMAN, KERALA MARITIME BOARD, RESIDING AT**| ||**VALAPPARAMBIL HOUSE, 80-JAWAHAR NAGAR, KADAVANTHRA,**| ||**KOCHI - 682 020.**| **WP(C).No.22231 OF 2019(D) 2** **6 MR.VINOTHU. K. R. CHIEF OPERATING OFFICER, KERALA MARITIME BOARD, DIRECTORATE OF PORTS, VALIYATHURA, THIRUVANANTHAPURAM - 695 008.** **7 THE CHIEF OPERATING OFFICER KERALA MARITIME BOARD, DIRECTORATE OF PORTS, VALIYATHURA, THIRUVANANTHAPURAM - 695 008.** **R4 BY ADV. SRI.P.K.SURESH KUMAR (SR.) R4 BY ADV. SRI.K.P.SUDHEER** ## **OTHER PRESENT:** ## **BIJOY CHANDRAN SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22231 OF 2019(D) 3** ## **JUDGMENT** The petitioner, who is working as Mechanical Marine Engineer in the Kerala Maritime Board, has approached this Court challenging Ext.P1 order, by which he has been transferred and posted at the Engineering workshop in the Port of Kollam. The learned counsel for the petitioner challenges Ext.P1 on the ground that the order issued by the Chief Executive Officer & Director of Ports lacks jurisdiction in the absence of regulations framed by the Board in terms of the Kerala Maritime Board Act, 2017 (for short 'the Act'). It is submitted that the order of transfer is vitiated by malafides and it is arbitrary in nature. It is contended that the 6[th] respondent, who was the Chief Operative Officer of the Board and against whom the petitioner had raised a service dispute was a party to the Board meeting, in which the decision was taken to transfer the petitioner out. It is submitted that the petitioner had been appointed as Marine Mechanical Engineer pursuant to Ext.P2 proceedings dated 12.10.1990 by which the post of Mechanical Marine Engineer had been created by the Government. It is submitted that the petitioner was an employee of the Ports Directorate and that the takeover by the Board had occurred only in pursuance to a 2017 enactment, which was ## **WP(C).No.22231 OF 2019(D) 4** notified only in April, 2019. It is contended that the enactment specifically provides that there can be no change in the service conditions of the employees taken over by the Board and that in the petitioner's case, the act by which he has been transferred to a workshop in the Kollam Port is an act of demotion, which is vitiated by malafides. 2. The learned counsel for the petitioner submits that the actions of the petitioner had been considered by the Board meeting in Ext.P3 and there was an attempt to state that the petitioner was attempting to facilitate release of amounts to particular contractors in undue haste. It is stated that the matter had been referred to the Government and by Ext.P4, the Maritime Board had to reverse its earlier decision and release payments immediately to the contractors. It is stated that this had resulted in animosity against the petitioner and that the order of transfer is vitiated on that account. It is also contended that the 6[th] respondent's attendance in the Board meeting, in which the decision is taken to transfer the petitioner out vitiates the decision. 3. A counter affidavit has been placed on record by the respondents. It is specifically stated that the transfer is ordered only in an administrative exigencies and that the 6[th] respondent ## **WP(C).No.22231 OF 2019(D) 5** had attended the meeting of the Board as required by the Board and specifically for the purposes mentioned in the minutes itself. It is stated that the issue with regard to the transfer of the petitioner was not discussed with the 6[th] respondent and that the 6[th] respondent had absolutely no role in the said decision. It is further submitted that going by the provisions of the 2017 Act, the employees who are serving under the Government immediately before the appointed date would become employees of the Board. They would hold office by the same tenure and upon the same terms and conditions as they would have held, if the board had not been established. It is therefore contended that the petitioner is entitled to protection of tenure and terms of appointment including remuneration and that none of such rights of the petitioner are affected by Ext.P1. It is stated that being a Marine Mechanical Engineer, the petitioner's services are to be utilised in the workshops of the Board. It is stated the Board has two workshops one at Kozhikode and another at Kollam and that it is in the exigencies of the services, the petitioner has been appointed at Kollam. 4. The learned Senior counsel appearing for the respondents relies on a decision of the Apex Court in **Prasar Bharti and Others v. Amarjeet Singh and Others [2007 KHC 3177]** to ## **WP(C).No.22231 OF 2019(D) 6** contend that the transfer is a incident of service and does not depend on any statutory rules or regulations to be framed to empower the employer from transferring any employee in administrative exigencies. 5. A reply affidavit has also been placed on record by the petitioner. It is contended that in the absence of regulations framed in terms of Section 16 (f) of the Act r/w sections 107 and 108, the transfer of the petitioner suffers from the vice of lack of jurisdiction. It is further contended that the petitioner being a gazetted officer entrusted with full additional charge of Chief Mechanical Engineer with the services of the personal staff will have to work in a subordinate office with none of the benefits attached to the post held by him. 6 **.** I have considered the contentions advanced in detail. Ext.P1 order specifies that it is an order of transfer. The contention raised by the petitioner that without the regulations in terms of 2017 Act being framed, the Maritime Board would have no power to transfer the petitioner seems to be a fallacious argument in view of the fact that the services of the petitioner admittedly stands transferred to the Board. Once the status of the Board as employer is admitted, I am of the opinion that it would not be open to the petitioner to contend that he cannot be ## **WP(C).No.22231 OF 2019(D) 7** transferred out of his present place of posting without Regulations being framed. I am of the opinion that framing of regulations is not a jurisdictional pre-requisite for an order of transfer as long as the service conditions of the petitioner are not adversely affected. The respondents have placed detailed counter affidavit on record specifically stating that there is absolutely no attempt to alter the service conditions of the petitioner to his detriment and that the transfer is one issued in administrative exigencies alone. In view of the fact that this aspect of the matter appears to be specifically pleaded with substantiating facts in the counter affidavit filed, I am of the opinion that it is not open for this Court to interfere in an order of transfer simpliciter. In the facts and circumstances of this case and in view of the lack of any appellate power in the Government to consider the representation preferred by the petitioner before it, I am of the opinion that no orders can be passed. The writ petition fails, the same is accordingly dismissed. **SD/-** ## **ANU SIVARAMAN** **JUDGE** rmm ## **WP(C).No.22231 OF 2019(D) 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER NO.B11672/2019/DP-(1) DATED 1.8.2019 ISSUED BY THE CHIEF EXECUTIVE OFFICER & DIRECTOR OF PORTS (THE 2ND AND 3RD RESPONDENTS).** - **EXHIBIT P2 TRUE COPY OF THE GO(MS) NO.57/90/F&PD DATED 12.10.1990 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE MINUTES OF 4TH BOARD MEETING DATED 17.5.2019.** - **EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE 5TH BOARD MEETING DATED 30.5.2019.** - **EXHIBIT P5 TRUE COPY OF THE LETTER NO.C2-289/11/DP DATED 22.5.2019 FROM THE 3RD RESPONDENT TO THE IST RESPONDENT (WITHOUT ENCLOSURE).** - **EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF THE KERALA MARITIME BOARD ACT, 2017.** - **EXHIBIT P7 TRUE COPY OF THE MINUTES OF THE 6TH BOARD MEETING DATED 29.6.2019.** - **EXHIBIT P8 TRUE COPY OF THE GO(RT) 991/2018/F&PD DATED 17.12.2018.** - **EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 1.8.2019 SUBMITTED BEFORE THE IST RESPONDENT.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R4(a): TRUE COPY OF NOTIFICATION NO.20/2019 DATED 02/05/2019 ISSUED BY FISHERIES AND PORT DEPARTMENT, GOVERNMENT OF KERALA.** // TRUE COPY // PA.TO JUDGE