Santosh V S Nair v. Kerala State Road Transport Corporation

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ## **`TUESDAY, THE 11[TH] DAY OF JULY 2023 / 20TH ASHADHA, 1945`** ## **`WP(C) NO. 21307 OF 2023`** ## **`PETITIONERS:`** ``` SANTHOSH V S NAIR, AGED 42 YEARS, S/O. SUDHAKARAN NAIR, VRINDAVANAM, PLAVARA, PACHA P O, PALODE, THRIVANATHAPURAM,, PIN – 695 562. ``` ``` BY ADVS. V.PREMCHAND HALIYA T.P. ``` ## **`RESPONDENTS:`** - `1 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, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM – 695 023.` - `3 THE EXECUTIVE DIRECTOR(ADMINISTRATION), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM – 695 023.` - `4 THE CONTROLLING INSPECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, PONNANI DEPOT, PIN- 679 577.` ``` BY ADV DEEPU THANKAN, SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 21307 OF 2023 2 ## JUDGMENT The petitioner is working as a Driver Grade I in the KSRTC. He has approached this Court challenging Ext.P5 order of transfer mainly on the ground that a reading of Ext.P5 clearly shows that the order of transfer is punitive and that the petitioner has been transferred as a punishment without even offering to the petitioner any opportunity to explain the allegations levelled against him. The learned counsel appearing for the petitioner would vehemently contend that the petitioner, who was working as a Driver at the Ponnani depot, has now been transferred to Kasaragod in the middle of the academic year. It is submitted that the petitioner's family is stationed at Ponnani and two minor children of the petitioner are studying in schools at Ponnani. It is submitted that the untimely transfer to Kasaragod, that too on account of the fact that the petitioner had reported ill is nothing but an abuse of power by the competent authority and therefore, Ext.P5 order is liable to be quashed. The learned counsel also refers to the judgments of this Court in Philomina C. Jacob v. State of Kerala [2002 KHC 92] as also the judgment of another Division WP(C) NO. 21307 OF 2023 3 Bench of this Court in Krishnakumar S. v. State of Kerala [2022 KHC 864] to contend that where it is clearly shown that an order of transfer is punitive, it is open to this Court to examine the circumstances, which led to the issuance of the order of transfer. Specific reference in this regard is made to paragraphs 8 and 15 of the judgment of this Court in Krishnakumar S. (supra). It is submitted that the stand taken by the respondent Corporation in its counter affidavit that the transfer is in terms of the Clause 11 of the Transfer Guidelines also cannot be accepted on account of the fact that the very same clause in the transfer guidelines require that if the reasons for transfer relate to disciplinary issues such matters shall be specifically stated in the order. It is submitted that Ext.P5 does not state any reason and therefore, the transfer order is clearly illegal and not even in accordance with the terms contained in Clause 11 of the Transfer Guidelines. 2. The learned Standing Counsel appearing for the respondent KSRTC refers to the counter affidavit filed in this Court and states that the clause 11 of the Transfer Guidelines was a result of negotiation and settlement with the employees organizations. It is submitted that the question as to whether an WP(C) NO. 21307 OF 2023 4 employee can be transferred on disciplinary grounds on the basis of Clause 11 was considered by a learned Judge of this Court in Nixy James v. Kerala State Road Transport Corporation [2023 (4) KHC 35], where in paragraph 9 it was held as follows:- “9. In addition to the law on transfers as noticed supra, it is appropriate to refer to clause 11 of the Transfer Guidelines in Appendix-IV of the Long-Term Settlement Agreement, 2012 of the Corporation. A copy of the same has been produced along with the counter affidavit as Annexure-R1(a). Clause 11 thereof deals with “Transfer on Administrative ground due to disciplinary issues”. Therefore, the Corporation is enabled even under the Transfer Guidelines to effect transfers of its employees on administrative grounds, to maintain a harmonious and working atmosphere at its offices.” The learned Standing Counsel refers to the judgment of a learned Single Judge of this Court in W.P(C)No.26925 of 2021 where this Court took the view that when disciplinary grounds are stated in the order of transfer, the same would amount to a punitive transfer as held by the Supreme Court in Somesh Tiwari v. Union of India and Others [(2009) 2 SCC 592] and therefore, the Corporation has now stopped giving detailed reasons when transfer is on disciplinary grounds. Specific reference is made to the additional counter affidavit filed in this Court as directed by this Court, where WP(C) NO. 21307 OF 2023 5 ## in paragraph 4 it is stated as follows:- “4. It is submitted that in Annexure R1(b) enquiry report, the concerned officer has informed that the petitioner has a habit of leaving the work in the midst of the service making some excuses and similar instance have taken place on 7/2/2020, 7/10/2021, 31/2/2021 and 11/2/2023. It is submitted that the above details can be ascertain from the illness register maintained by the concerned depot. True copy of the relevant pages of the illness register maintained by the Ponnani Depot is produced herewith and marked as Exhibit R-1(c). It can be seen from the above register that the petitioner has on four previous occasions, left his duty in the midst of the service as stated in the enquiry report.” In paragraph 5 of the additional affidavit it is stated that disciplinary proceedings are being initiated against the petitioner for two reasons, (i) that he left the service without switching of the engine of the bus and (ii) for not reporting to the concerned depot immediately after the incident. It is also submitted that the petitioner did not submit any leave application for a period of three days since the date of the incident i.e 28.05.2023 and he was absent from 28.05.2023 onwards. The attendance register maintained at the Ponnani depot is also produced along with the counter affidavit as Exhibit R-1(d). It is also stated in the additional counter affidavit that the allegation of the petitioner WP(C) NO. 21307 OF 2023 6 that he had submitted a medical certificate to the Officer-InCharge on the same day is absolutely incorrect. It is submitted that the petitioner reported for duty only on 03.06.2023 with fitness certificate. A copy of the medical certificate produced before the Corporation by the petitioner for rejoining duty is also placed on record as Exhibit R-1(e). 3. Having heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondent Corporation, I am of the view that the petitioner has not made out any case for interference. The Division Bench Judgment of this Court in Krishnakumar S. (supra) is itself authority for the proposition that an employee can be transferred in contemplation of disciplinary proceedings. It was held therein:- “15. As we have already observed in the decision in Divyamol v. The Director General of Central Industrial Security Force and Others - [2022 (5) KHC 732], the SLP against which was dismissed by the Supreme Court, a transfer is liable to be interfered if it is seen as an order by way of punishment without first holding any disciplinary proceedings to establish the guilt of the employee. However, there may arise cases where the continuance of an employee in a particular station is detrimental to the maintenance of discipline in that station and in such cases it may seem prudent to the employer to transfer the WP(C) NO. 21307 OF 2023 7 employee to a different station so that the twin objectives of maintaining discipline at one station, whilst simultaneously availing the service of the employee at another station, are achieved without casting any aspersion on the character or conduct of the employee. The intention behind such transfer is not to punish an employee but to relocate him/her in order to maintain discipline within the force. Such transfer orders do not call for interference from courts because they are merely measures taken by an employer in the exigencies of service and for efficient administration thereof without causing any prejudice/stigma or affecting future prospects of the employee. In such cases, we had clarified that there need not be any enquiry conducted to first ascertain whether there was misbehaviour or conduct unbecoming of an employee, for to hold otherwise would frustrate the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity. In the instant case however, the transfer order cannot be clothed with a similar immunity because in effect it is prejudicial and stigmatic to the appellant as he would be forced to work in a post that is not perceived by those in the service to be of the same status as that of the Principal District & Sessions Judge. We are also of the view that upholding a transfer order such as the one impugned in these proceedings would, apart from meting out injustice to the appellant, also have a deleterious effect on the morale of the judicial officers in the State.” [Emphasis is supplied] It needs no reiteration on my hands that the general law applicable to service jurisprudence is that there cannot be a punitive transfer. WP(C) NO. 21307 OF 2023 8 However, this Court in Nixy James (supra), after referring to the specific clause in the Transfer Guidelines of the respondent KSRTC found that in the light of the specific stipulations in those guidelines, it would be also possible for the Corporation to transfer employees on disciplinary grounds. Moreover, the Division Bench in Krishnakumar S. (supra) does not support the case of the petitioner and in fact supports the case of the respondent Corporation. I am also in respectful agreement with the view taken by the learned Single Judge in Nixy James (supra) . I also note that there is a specific contention in the additional counter affidavit filed by the respondents that the petitioner had left work in the midst of service after making similar excuses on earlier occasions as well. Though the learned counsel for the petitioner vehemently submits that no action has been taken against the petitioner on those occasions, I am of the view that the fact that action was not taken against the petitioner on earlier occasions is no ground to hold that the respondent Corporation was not in a position to initiate action in respect of the present incident. However, having regard to the directions issued by a Division Bench of this Court in W.A.No.243 of 2022, where the Corporation WP(C) NO. 21307 OF 2023 9 was directed to consider whether the concerned employee can be posted either in the same district or in a neighbouring district and considering the fact that the petitioner has been transferred from Ponnani to Kasaragod, which does not appear to be justified, I direct that if the petitioner makes a suitable representation for being accommodated either in the same district or in a neighbouring district, the competent authority of the respondent Corporation will consider the same also taking into consideration the observation of this Court that the transfer of the petitioner, even on disciplinary grounds, from Ponnani to Kasaragod does not appear to be justified. The writ petition will stand disposed of as above. Sd/GOPINATH P. JUDGE DK WP(C) NO. 21307 OF 2023 10 ## **`APPENDIX OF WP(C) 21307/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit-P1`|`A TRUE COPY OF THE OUT PATIENT TICKET`| ||`DATED 28.05.2023 ISSUED FROM THE`| ||`GOVERNMENT TALUK HOSPITAL PONNANI`| |`Exhibit-P2`|`A TRUE COPY OF THE LETTER DATED`| ||`28.05.2023 SUBMITTED BY THE`| ||`PETITIONER BEFORE THE VEHICLE`| ||`SUPERVISOR`| |`Exhibit-P3`|`A TRUE COPY OF THE PETITION DATED`| ||`12.06.2023 SUBMITTED BY THE`| ||`PETITIONER BEFORE THE CONTROLLING`| ||`INSPECTOR`| |`Exhibit-P4`|`A TRUE COPY OF THE PETITION DATED`| ||`DATED 15.06.2023 BEFORE THE SECOND`| ||`RESPONDENT`| |`Exhibit-P5`|`A TRUE COPY OF THE MEMO DATED`| ||`24.06.2023 BY THE DISTRICT OFFICER`| ||`KSRTC MALAPPURAM`| |`Exhibit-P6`|`A TRUE COPY OF THE CERTIFICATE`| ||`SUBMITTED BY THE PETITIONER DATED`| ||`27.06.202 ISSUED BY THE MEDICAL`| ||`OFFICER, COMMUNITY HEALTH CENTRE IN`| ||`MARANCHERY, MALAPPURAM DISTRICT`| |`Exhibit-P7`|`A TRUE COPY OF THE ADMISSION EXTRACT`| ||`DATED 27.06.2023 ISSUED BY HEAD`| ||`MASTER, CMMUPS, ERANMANGALAM`| |`Exhibit-P8`|`A TRUE COPY OF THE ADMISSION EXTRACT`| ||`DATED 27.06.2023 ISSUED BY HEADMASTER`| ||`UMMLP, ERANMANGALAM`| |`Exhibit-P9`|`A TRUE COPY OF THE DOCUMENT RECEIVED`| ||`UNDER THE RTI INFORMATION DATED 3-07-`| ||`2023`| |`RESPONDENT EXHIBITS`|| |`EXHIBIT R-1(A)`|`TRUE COPY OF THE TRANSLATION OF THE`| ||`RELEVANT PAGES OF THE GUIDELINES FOR`| ||`TRANSFER DATED NIL`| |`EXHIBIT R-1(B)`|`TRUE COPY OF THE PRELIMINARY ENQUIRY`| ||`REPORT DATED 30/05/2023`| |`EXHIBIT R-1 (C)`|`TRUE COPY OF THE RELEVANT PAGES OF`| ||`THE ILLNESS REGISTER MAINTAINED BY`| ||`THE PONNANI DEPOT`| |`EXHIBIT R-1 (D)`|`TRUE COPY OF RELEVANT PAGES OF THE`| WP(C) NO. 21307 OF 2023 11 ``` DRIVER'S ATTENDANCE REGISTER MAINTAINED BY THE KSRTC PONNANI DEPOT FROM MAY TO JUNE 2023 EXHIBIT R-1 (E)TRUE COPY OF THE MEDICAL CERTIFICATE PRODUCED BEFORE THE PONNANI DEPOT OF THE CORPORATION BY THE PETITIONER DATED 02/06/2023 ```