S. Sushama v. State of Kerala and others (W.P.C. Nos: 15268 & 15841 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933** **WP(C).No. 15268 of 2011(G)** **-----------------------------------------** ## **PETITIONER(S):** - **------------------------** **S.SUSHAMA (SWEEPER, CHITRANJALI STUDIO, THIRUVALLAM, THIRUVANANTHAPURAM) KUNNIL VEEDU, KALLAMPALLI, SREEKARIAM P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.K.P.RAJEEVAN** **RESPONDENT(S):** - **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CULTURAL AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE MANAGING DIRECTOR, KERALA STATE FILM DEVELOPMENT, VAZHUTHACAUD,THIRUVANANTHAPURAM-14.** **3. STUDIO MANAGER, CHITRANJALI STUDIO, THIRUVALLAM,THIRUVANANTHAPURAM - 695 001.** **4. ASSISTANT ADMINISTRATIVE OFFICER, CHITRANJALI STUDIO,THIRUVALLAM, THIRUVANANTHAPURAM - 695 001.** **5. SANKAR DAS, RATAINER, CHITRANJALI STUDIO,THIRUVALLAM,THIRUVANANTHAPURAM - 695 001.** **R1 BY GOVERNMENT PLEADER SRI. L.G.SURESH BABU R2 TO R4 BY ADV. SRI.A.SUDHI VASUDEVAN, SC, KSFDC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2011 ALONG WITH WPC NO. 15841 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.15268/2011 G** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF PROCEEDINGS DTD. 2/06/2011 ISSUED BY THE 2ND RESPONDENT.** - **P2: COPY OF RELIEVING ORDER DTD. 3/06/2011 ISSUED BY THE 3RD RESPONDENT.** - **P3: COPY OF NOTE OF THE 4TH RESPONDENT AND CONNECTED ORDERS OF THE 2ND RESPONDENT IN THE NOTE FILE.** - **P4: COPY OF THE NOTE DTD. 8/05/2009 OF THE MINUTES OF THE MEETING HELD ON 29/04/2009 WITH THE OFFICE BEARS OF THE KERALA STATE FILM DEVELOPMENT CORPORATION EMPLOYEES CO-OPERATIVE SOCIETY AND THE MANAGEMENT OF THE 2ND RESPONDENT.** - **P5: COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 4/06/2011.** ## **RESPONDENTS' EXHIBIT:** ## **R1(A): COPY OF THE STANDING ORDERS OF THE KERALA STATE FILM DEVELOPMENT CORPORATION LTD.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **K. SURENDRA MOHAN, J.** **-----------------------------------------------------------W.P(C) NOS: 15268 & 15841 OF 2011 ----------------------------------------------------------Dated this the 28[th ] September, 2011.** ## **JUDGMENT** As per Ext.P1 transfer order dated 2-6-2011, the petitioner in W.P(C) 15268/2011 who is a sweeper and the petitioner in W.P(C) 15841/2011 who is an A.C Operator have been transferred from the Chithranjali Studio, Thiruvallam in Thiruvananthapuram. The transfer was made following a scandalous incident where Smt. S.Sushama and Shri. S. Ajith Kumar were found inside a closed room (bolted from inside) attached to the shooting floor building in the Chithranjali studio complex. It was found that both the employees had violated the rules of service and the standing instructions. It was presumed that they were indulging in some immoral acts and therefore, Smt. S.Sushama was transferred and posted to Chitranjali theatre, Cherthala and Shri. S.Ajithkumar was transferred and posted to Kairali/Sree theatre, Calicut. By filing the above separate writ petitions, Smt. S.Sushama and Shri. S.Ajithkumar have challenged Ext.P1 transfer order. They have raised identical contentions against Ext.P1. WPC Nos:15268 & 15841/2011 2 2. According to the petitioners, no such incident as alleged had taken place. They were being victimized only for the reason that they were activists and office bearers of service organisations owing allegiance to a prominent political party in the opposition. It is the case of Smt. S.Sushama that she had opened the room for the purpose of sweeping the area with the permission of the site engineer. Shri. S.Ajith Kumar contended that he was not in the studio at the relevant time but was in the co-operative society. Therefore, according to the petitioners, Ext.P1 transfer order is vitiated by malafides and extraneous considerations. 3. A counter affidavit has been filed on behalf of the second respondent refuting the allegations made by the writ petitioners. It is the contention of the respondents that though the alleged incident was one involving serious moral turpitude, for want of tangible evidence against the petitioners, disciplinary action was not contemplated in the first place. However, since some action had to be taken considering the gravity of the incident, it was decided to transfer the petitioners, without initiating any disciplinary action. Since no disciplinary action was contemplated, no notice was issued to the petitioners nor any enquiry conducted. 4. Shri. K.P.Rajeevan who appears for the petitioner WPC Nos:15268 & 15841/2011 3 vehemently contended that before the issue of Ext.P1 order of transfer not even a notice was issued to the petitioners. She had no opportunity to defend the charges against her or to plead her innocence. A similar contention has been raised by Shri. S.Ajith Kumar also. According to the petitioners, if a proper enquiry had been conducted, with notice to them, the same would have revealed that no such incident as alleged had taken place. On the above submissions, counsel for the petitioner contends that Ext.P1 is vitiated by malafides and liable to be set aside. 5. Shri. Sudhi Vasudevan who appears for respondents 2 to 5 on the other hand contends that Ext.P1 is only an order of transfer which is not a disciplinary action. The question as to whether disciplinary action should follow has still not been finally decided by the authorities. As and when a decision is taken in the said regard, he assures that a proper enquiry would be conducted. For the present, as an immediate action following the scandalous incident, it was only decided to shift the culprits to different places. The counsel also places reliance on a Bench decision of this Court to support his contention that issue of notice or conduct of an enquiry is not necessary before the transfer of an employee. On the above contentions, counsel for the respondents seeks dismissal of these WPC Nos:15268 & 15841/2011 4 writ petitions. 6. I have heard the counsel on both sides and have considered the rival contentions anxiously. 7. Though the incident that necessitated the issue of Ext.P1 itself is seriously disputed by the petitioners it is more or less clear from the records of the case that some incident of the nature alleged in Ext.P1 has taken place. Ext.P3 report of the fourth respondent speaks about the incident but does not recommend disciplinary action for the reason that there is no concrete evidence regarding immoral conduct inside the closed room. Along with the reply affidavit filed in both the writ petitions, the petitioners have produced Ext.P6 copies of proceedings of the Managing Director (second respondent) issued to the then studio manager on 26-7-2011 posting him back to his original post, for insubordination. The allegation against him is that he had conducted the enquiry into the incident involving the petitioners in these writ petitions, without providing an opportunity of being heard to them. It is alleged therein that same was done in order to favour the petitioners. Be that as it may, no disciplinary action has been initiated against the petitioners on the basis of the alleged incident till date. What has been done is only to transfer and post WPC Nos:15268 & 15841/2011 5 them to different places. Ext.P1 transfer order says that the proceedings have been ordered in public interest. 8. It is trite that when transfers are ordered in public interest, interference is possible only in cases where it is shown by the petitioners that the same was vitiated by malafides. There are absolutely no materials or evidence available in this case to justify a conclusion that Ext.P1 order is vitiated by malafides. 9. The counsel for the petitioners has vehemently contended that the omission to issue notices to the petitioners and to conduct an enquiry into the incident has vitiated Ext.P1 transfer order. The counsel for the respondents places reliance on the decision in **V. Sukumaran and another v. M.N.Sodaran and others {1997(1) KLJ 779}.** In the said decision, it is held that transfer does not amount to punishment, it is not necessary for an enquiry to be conducted before a person is transferred from one place to another. The Bench has gone on to hold in paragraph 10 as follows:- “Unless it is clearly shown that the order of transfer of a Government servant has been made by a competent authority in violation of a statutory rule or Government instruction and that such an order has been made by an authority with a mala fide intention WPC Nos:15268 & 15841/2011 6 or for extraneous considerations, the High Court shall not ordinarily invoke its jurisdiction under Article 226 of the Constitution of India to interfere with it.” 10. In view of the above binding dictum the contention of the counsel for the petitioners cannot be countenanced. 11. In the present case, the fact finding enquiry was conducted by the Studio Manager. There is no reason to disbelieve the report of the said person, who is a responsible officer of the Kerala State Film Development Corporation. Instead of taking disciplinary action against the petitioners, they have been transferred out to separate places as per Ext.P1. The said action cannot be said to be unjustified. I do not find any grounds to interfere with Ext.P1 order of transfer. 12. The counsel for the petitioner prays that the petitioners may be granted an opportunity to move the second respondent by filing representations seeking suitable postings to their native districts, where vacancies are existing. The petitioners are permitted to submit representations to the second respondent seeking such postings. If such representations are submitted, the second respondent shall consider them in accordance with law and shall pass appropriate orders thereon expeditiously. If such WPC Nos:15268 & 15841/2011 7 representations are submitted within one week of receipt of a copy of this judgment, the same shall be considered and disposed of within a period of six weeks of receipt thereof. The writ petitions fail and are accordingly dismissed. No costs. K. SURENDRA MOHAN Judge jj