Sajumon T.J. and others v. Kerala State Road Transport Corporation and Assistant Transport Officer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941** ## **WP(C).No. 36105 of 2018** ## **PETITIONERS:** **1 SAJUMON T.J AGED 44 YEARS** **DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, ASSISTANT TRANSPORT OFFICE, CHERTHALA, ALAPPUZHA DISTRICT-688524.** - **2 AMRUTHESH.K.C.** **DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, ASSISTANT TRANSPORT OFFICE, CHERTHALA, ALAPPUZHA DISTRICT - 688 524.** - **3 VENU.K.V.** **DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, ASSISTANT TRANSPORT OFFICE, CHERTHALA, ALAPPUZHA DISTRICT - 688 524.** **4 PRADEEP.P.S. DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, ASSISTANT TRANSPORT OFFICE, CHERTHALA, ALAPPUZHA DISTRICT - 688 524.** - **5 SANTHOSH.C.M.** **DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, ASSISTANT TRANSPORT OFFICE, CHERTHALA, ALAPPUZHA DISTRICT - 688 524.** - **6 SANU.P.** **DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, ASSISTANT TRANSPORT OFFICE, CHERTHALA, ALAPPUZHA DISTRICT - 688 524.** **BY ADVS. SRI.A.JAYASANKAR SRI.ASHWIN SETHUMADHAVAN SRI.MANU GOVIND SRI.S.SABARINADH** **WP(C).No. 36105 of 2018** 2 ## **RESPONDENTS:** |**1**|**KERALA STATE ROAD TRANSPORT CORPORATION**| |---|---| ||**TRANSPORT BHAVAN, THIRUVANANTHAPURAM -695018**| ||**REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.**| |**2**|**ASSISTANT TRANSPORT OFFICER**| ||**KERALA STATE ROAD TRANSPORT CORPORATION, CHERTHALA,**| ||**ALAPPUZHA DISTRICT - 688 524.**| **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SMT.PARVATHY KOTTOL SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH (SR.)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 36105 of 2018** 3 ## **JUDGMENT** The petitioners, who are working as Drivers in Cherthala Depot of the 1[st] respondent Kerala State Road Transport Corporation, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 memorandum dated 31.10.2018 issued by the 2[nd] respondent to the extent it transfers petitioners 1 to 4 from Cherthala Depot to Attingal Depot; to quash Ext.P4 memorandum dated 31.10.2018 to the extent it transfers petitioners 5 and 6 from Cherthala Depot to Vikas Bhavan Depot; and also to quash Ext.P7 order dated 11.02.2019. The petitioners have also sought for a declaration that the 1[st] respondent shall not initiate any vindictive measures against them for expressing unwillingness to 'salary challenge'. 2. On 07.11.2018, when this writ petition came up for admission, the learned Standing Counsel for KSRTC sought time to get instructions. 3. A counter affidavit has been filed by the 1[st] **WP(C).No. 36105 of 2018** 4 respondent, which was followed by an additional counter affidavit, opposing the reliefs sought for in this writ petition. 4. The petitioner has filed I.A.No.2 of 2019 seeking an order to amend to the writ petition by incorporating additional statement of facts, grounds and reliefs, which was allowed by the order dated 06.03.2019. 5. On 23.11.2018, when this writ petition came up for consideration, this Court passed the following order; _“On 19.11.2018, when this writ petition came up for consideration, the learned Standing Counsel for KSRTC was directed to get instructions as to whether Ext.P3 order dated 24.10.2018 contains any person, who did not submit a declaration like Ext.P5._ _Today, when the case is taken up for consideration, the learned Standing Counsel for KSRTC seeks further time to get instructions._ _Having considered the submissions made by the learned counsel for the petitioner and also the learned Standing Counsel for KSRTC, I deem it appropriate to direct the 1[st] respondent to file an affidavit as to the total number of employees, who are ordered to be transferred in terms of Exts.P3, P4 and similar memorandums issued on working_ **WP(C).No. 36105 of 2018** 5 _arrangement and whether any one among those employees are persons who have participated in the salary challenge.”_ 6. Thereafter, on 04.12.2018, when this writ petition came up for consideration, the learned Standing Counsel for KSRTC submitted that an additional affidavit on behalf of the 1[st] respondent is being filed, wherein it has been stated that out of 2922 employees, who are transferred in terms of Exts.P3, P4 and similar orders on work arrangement, 410 employees are persons who have participated in 'salary challenge'. 7. On 20.12.2018, when this writ petition came up for further consideration, the learned counsel for the petitioners submitted that the petitioners propose to make individual representations before the 2[nd] respondent and their representations may be directed to be considered by the said respondent. This Court, after recording the aforesaid submission, made it clear that the pendency of this writ petition will not stand in the way of the petitioners, making any such representations and that, **WP(C).No. 36105 of 2018** 6 the 2[nd] respondent shall consider those representations, strictly in accordance with law. 8. On 31.01.2019, the learned Standing Counsel for KSRTC submitted that pursuant to the order of this Court dated 20.12.2018, a decision is being taken on that day on the representations made by the petitioners. Recording the said submission, the matter was posted to 11.02.2019. ## 9. On 11.02.2019, this Court passed the following order; _“The learned Standing Counsel for KSRTC would submit that, the order originally passed on 31.01.2019 has already been withdrawn by the 1[st] respondent and a fresh order is being passed today; a copy of which shall be furnished to the learned counsel for the petitioners today itself.”_ 10. Heard the learned counsel for the petitioners and also the learned Standing Counsel for KSRTC representing respondents 1 and 2. 11. The petitioners have challenged Exts.P3 and P4 orders in this writ petition, mainly contending that they **WP(C).No. 36105 of 2018** 7 have been transferred to various places on account of their non-participation in 'salary challenge'. In the additional counter affidavit, the respondents have pointed out that out of 2922 employees, who are transferred in terms of Exts.P3, P4 and other similar orders on work arrangement, 410 employees are persons who have participated in 'salary challenge'. The petitioners have not produced any materials to substantiate their contention that the order of transfer is one issued on account of their non-participation in 'salary challenge'. 12. 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 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 **WP(C).No. 36105 of 2018** 8 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 vitiating circumstances influencing such an order of **WP(C).No. 36105 of 2018** 9 transfer. 13. Viewed in the light of the law laid down by this Court in the decisions 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 Exts.P3 and P4 transfer orders, in exercise of the writ jurisdiction under Article 226 of the Constitution of India. 14. By order dated 20.12.2018, this Court has made it clear that the pendency of this writ petition will not stand in the way of the petitioners making any representations and that, the 2[nd] respondent shall consider those representations, strictly in accordance with law. Those representations have already been considered and Ext.P7 order has been issued by the Executive Director (Admin), whereby those representations stand rejected. Though the learned counsel for the petitioners would place reliance on various provisions in Ext.P1 transfer guidelines, which forms part of the Bipartite **WP(C).No. 36105 of 2018** 10 Settlement-2012, such contentions find no place in the representations made by the petitioners. 15. Moreover, in **Santhosh K. and another v. Chief Engineer (HRM), Kerala State Electricity Board [2013 (4) KHC 624]** a Division Bench of this Court, in the context of the transfer guidelines of employees issued by the Kerala State Electricity Board, held as follows; _"It is salutary that the contents of both the aforesaid KSEB orders cannot be treated as either statutory, or amounting to conditions of service. They are essentially guidelines, relating to transfers of employees of KSEB. The realm of judicial intervention in such matters gets confined to a scrutiny as to whether there is any vitiating element of mala fides, malice, substantial legal and factual perversity or arbitrariness, recognisable on the touch stones of the Fundamental Rights, as enshrined in the Constitution, to visit the executive decision of the KSEB as the employer."_ In the result, this writ petition fails and the same is accordingly, dismissed. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/11/4 **WP(C).No. 36105 of 2018** 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A COPY OF THE APPENDIX IV TO THE LONG TERM SETTLEMENT WHICH CONTAINS THE GUIDELINES OF TRANSFER IN FIRST RESPONDENT CORPORATION.** - **EXHIBIT P2 A COPY OF 6TH PETITIONER'S SALARY BILL FOR THE MONTH OF MAY, 2018.** - **EXHIBIT P3 A COPY OF THE ORDER OF TRANSFER ISSUED BY THE 2ND RESPONDENT ON 24/10/2018 TO THE PETITIONERS 1 TO 4.** - **EXHIBIT P4 A COPY OF THE ORDER OF TRANSFER ISSUED BY THE 2ND RESPONDENT ON 31/10/2018 TO THE PETITIONERS 5 AND 6.** - **EXHIBIT P5 A COPY OF RESPONSE DATED 15.09.2018 PREPARED BY THE 6TH PETITIONER IN RESPONSE TO THE SALARY CHALLENGE, SAVED AS A PHOTOGRAPH IN HIS PHONE, ALONG WITH ITS RETYPED COPY** **EXHIBIT P6** **A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 22.12.2018 MADE BY THE 5TH PETITIONER, PURSUANT TO THE ORDER DATED 20.12.2018, BEFORE THE RESPONDENT** - **EXHIBIT P7** **A TRUE PHOTOCOPY OF THE ORDER NO.PL13/000797/18 DATED 11.02.2019 PASSED BY THE RESPONDENT**