Sabu Joseph v. Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934** ## **WP(C).No. 626 of 2013 (C) -------------------------** **PETITIONER:** ## **-----------** **SABU JOSEPH AGED 43 YEARS S/O. JOSEPH, AGED 43 YEARS, RESIDING AT KWA QUARTERS IYYERKULANGARA, THEKKENADA P.O., VAIKOM.** **BY ADV. SRI.P.I.GEORGEKUTTY** **RESPONDENTS:** **------------** **1. KERALA WATER AUTHORITY, AGED 43 YEARS REPRESENTED BY THE CHIEF ENGINEER, JALA BHAVAN THIRUVANANTHAPURAM - 695 033.** **2. EXECUTIVE ENGINEER P.H. DIVISION, KERALA WATER AUTHORITY MUVATTUPUZHA - 686 661.** **3. ASSISTANT EXECUTIVE ENGINEER WSP SUB DIVISION, KERALA WATER AUTHORITY VAIKOM - 686 141.** **4. ASSISTANT ENGINEER WSP SUB DIVISION, KERALA WATER AUTHORITY VAIKOM - 686 141.** **R1 TO 4 BY ADVS.SRI.JOSEPH JOHN, SC, KERALA WATER AUTHORITY SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** **WP(C).No. 626 of 2013 (C)** ## **------------------------** **APPENDIX ---------** **PETITIONER(S) EXHIBITS** **----------------------** **EXHIBIT-P1-TRUE COPY OF THE ORDER OF DEPUTY CHIEF ENGINEER, THIRUVANANTHAUPRAM DATED 02/04/2002.** **EXHIBIT-P2-TRUE COPY OF THE ORDER OF ASSISTANT ENGINEER PH SECTION VAIKOM DATED 31/01/2007.** **EXHIBIT-P3-TRUE COPY OF THE COMPLAINT BY THE PETITIONER TO THE 3RD RESPONDENT DATED 08/10/2012.** **EXHIBIT-P4-TRUE COPY OF THE REQUEST OF THE PETITIONER DATED 16/10/2012.** **EXHIBIT-P5-TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 20/10/2012.** **EXHIBIT-P6-TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 23/11/2012.** **EXHIBIT-P7-TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT NO. E1-61/03 DATED 31/12/2012.** **EXT.P8.COPY OF THE LEAFLET CONTAINING THE NAMES OF OFFICE BEARERS OF KERALA WATER AUTHORITY SUB STAFF ASSOCIATION K.T.U.C. (M) REG. NO.05.06.04 VAIKOM UNIT.** **EXT.P9. COPY OF THE NEWS RELEASED IN MATHRUBHOOMI DAILY DATED 24.1.2013.** **EXT.P10. COPY OF QUERY UNDER THE RIGHT TO INFORMATION ACT DATED 27.2.2012** **EXT.P11. COPY OF THE ANSWERS TO THE ABOVE FROM THE 3RD RESPONDENT DATED 13.3.2012** **EXT.P12. COPY OF THE COMPLAINT REPORTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 8.2.2012.** **RESPONDENTS' EXHIBITS : NIL ---------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **P.N.RAVINDRAN, J. ----------------------------------------W.P.(C).No.626 of 2013 ----------------------------------------Dated this the 13[th] day of February, 2013** ## **JUDGMENT** The petitioner, an unskilled worker in the Kerala Water Authority, has filed this writ petition challenging Ext.P7 order dated 31.12.2012 issued by the Executive Engineer, P.H.Division, Muvattupuzha transferring him to Water Treatment Plant, Kakkadu under P.H.Section, Piravom against an existing vacancy. The petitioner challenges the order of transfer on the ground that he has been transferred to Kakkad for the purpose of creating a vacancy in Vaikom Division and to induct certain persons in service at the behest of ruling political parties. It is contended that the petitioner was not afforded an opportunity of being heard before he was transferred out, that he has to attend to his aged and sick parents and his wife and 8 year old child and that in such circumstances if he is transferred to a distant place, he would suffer injury and hardship. He also contends that the Executive Engineer is not competent to pass an order of transfer. 2. The third respondent Assistant Executive Engineer, ## **W.P(C).No.626 of 2013** -:2:- Water Supply Project Sub Division, Vaikom, has sworn to a counter affidavit dated 17.1.2013. In paragraph 3 he has stated that when it came to the notice of the fourth respondent Assistant Engineer, who joined service about 16 months back that the petitioner is in the habit of making illegal financial gains by working as a casual labourer supplied by the contractor when he is off duty, she had re-arranged the work to avoid such violation. It is stated that as part of commissioning of new water supply scheme to Vaikom, the fourth respondent re-arranged the valve controlling duty by re-deploying valve controllers to nearby places, that the petitioner thereupon became belligerent and argued with the fourth respondent that he will do duty only in Vaikom Municipality and that the petitioner even threatened the fourth respondent that he would secure her transfer utilising his political influence and connections. The counter affidavit proceeds to state that the petitioner was enraged by the dutiful steps taken by the fourth respondent for efficient distribution of water and reduction of cost by re-arranging the duties. The third respondent has also stated that the fourth respondent had submitted a complaint to him about the petitioner's misbehavior and dereliction of duty, that he had conducted an enquiry by taking **W.P(C).No.626 of 2013** -:3:- statement of the petitioner and on being satisfied that there is substance in the complaint, submitted a report to the Executive Engineer who, after considering the complaint and report and on being satisfied about the truth of the allegations, issued the impugned order of transfer. It is stated that the petitioner was transferred to Kakkad, a nearby station, in the exigencies of service and that staff quarters is available also in Kakkad. It is also stated that the petitioner had been working in Vaikom for more than 11 years continuously. In paragraph 5 it is stated that pursuant to the transfer order, which was issued on 31.12.2012, the third respondent relieved the petitioner on 2.1.2013, that a copy of the relieving order was sent to the fourth respondent and that the petitioner refused to receive it from the fourth respondent and submitted a casual leave application by registered post. It is also stated that as the petitioner was relieved, the fourth respondent has forwarded the leave application submitted by the petitioner to the Assistant Engineer, Kakkad for necessary action. The petitioner has filed a reply affidavit dated 11.2.2013 wherein it is contended that his action to prevent corruption and loss to the Water Authority led to the impugned order of transfer. 3. I heard Sri.P.I.Georgekutty, learned counsel appearing ## **W.P(C).No.626 of 2013** -:4:- for the petitioner and Sri.Joseph John, learned standing counsel appearing for the Kerala Water Authority. I have also gone through the pleadings and the materials on record. The petitioner challenges the order of transfer mainly on the ground that the intention of the respondents is to create a vacancy by transferring him to another station for the purpose of inducting someone else in service. Yet another contention raised is that he was heard before the order of transfer was passed. The third contention raised is that the Executive Engineer has no authority to pass the impugned order. It is also alleged that the order of transfer is issued at the instance of interested persons because of Ext.P3 complaint submitted by the petitioner to the Assistant Executive Engineer. 4. The stand taken by the respondents is that the petitioner misbehaved with his immediate superior officer, ie. the fourth respondent Assistant Engineer, who in turn submitted a complaint and the petitioner was transferred out pursuant to such complaint to ensure efficiency in administration and discipline. Apart from vaguely contending that the Executive Engineer has no authority to pass an order of transfer, the petitioner has not produced any material to substantiate his contention. The petitioner has also ## **W.P(C).No.626 of 2013** -:5:- not produced any material to show that a transfer within the district can be made only by the Deputy Chief Engineer and not by the Executive Engineer. The Apex Court has in _**State of U.P. v. Gobardhan Lal,**_ AIR 2004 SC 2165 held that an order of transfer can be interfered with only if it is passed by an incompetent authority or is passed in violation of any statutory rule or is proved to be vitiated by malafides. The Apex Court has also held that the plea of malafides should be one which inspires confidence in the Court and should be supported by concrete materials. In the instant case apart from vaguely alleging that he has been transferred out to create vacancy at the behest of ruling political parties, the petitioner has not produced any cogent material or made any averment which will inspire confidence in this Court to hold that the petitioner has prima facie succeeded in establishing the said contention. He has also not raised a contention that the order of transfer is in violation of any statutory rule. I therefore, find no reason to interfere with the order of transfer. That apart, this Court has in _**Ramachandran Nair v. Director of Training**_ , ILR 1992 (3) Kerala 149 held that an order of transfer intended to ensure discipline and maintain efficiency in administration cannot be said to be punitive in nature. ## **W.P(C).No.626 of 2013** -:6:- 5. In the instant case, the third respondent has stated in the counter affidavit filed by her that the 4[th] respondent had submitted a complaint, to the third respondent about the misbehavior and dereliction of duty of the petitioner, that she conducted an enquiry by taking statements of the petitioner and on being satisfied that there is substance in the complaint, submitted a report to the Executive Engineer and after considering the complaint and the report and on being satisfied about the truth of the allegations a decision was taken to transfer him out. It is also stated that even at Kakkad the petitioner will be provided accommodation in staff quarters. The averments in the counter affidavit filed by the third respondent indicate that in the instant case the petitioner was transferred out to ensure discipline in the office at Vaikom. For that reason also I am of the opinion that no interference is called for. I accordingly hold that there is no merit in the instant writ petition. It fails and is dismissed. No costs. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P.(C).No.626 of 2013 ----------------------------** ## **JUDGMENT** **13[th] February, 2013**