Sateesh Kumar S. v. Kerala Agro Machinery Corporation Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934** **WP(C).No. 2895 of 2013 (J) --------------------------** ## **PETITIONER(S):** **--------------------------** **SATEESH KUMAR.S., AGED 50 YEARS, SON OF LATE S.SOMAN, DEPUTY GENERAL MANAGER, KERALA AGRO MACHINERY CORPORATION LIMITED, NEW INDUSTRIAL DEVELOPMENT AREA, MENONPARE, KANJIKODE P.O., PALAKKAD - 678 621, RESIDING AT 5/410, KARTHIKA, AMRITHA NAGAR, PUTHUR, PALAKKAD - 678 001.** **BY ADVS.SRI.B.ASHOK SHENOY SMT.C.G.PREETHA SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR** ## **RESPONDENT(S):** **----------------------------** **KERALA AGRO MACHINERY CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, ATHANI P.O. - 683 585.** ## **BY ADVS. SRI.E.K.NANDAKUMAR** **SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.2895/2013** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE SERVICE ORDER NO.KB2/488 DATED 15/1/2013 ISSUED BY RESPONDENT TO PETITIONER.** - **P2 COPY OF THE LETTER NO.KP/HR/26 DATED 17/1/2013 ISSUED TO PETITIONER BY GENERAL MANAGER IN CHARGE OF RESPONDENT.** - **P3 COPY OF THE ORDERNO.03/2013 DATED 30/1/2013 ISSUED BY THE RESPONDENT.** - **P4 COPY OF THE APPLICATION DATED 13/12/2012 SUBMITTED UNDER RIGHT TO INFORMATION ACT,2005 BY MRS. ANNAMMA CHERIAN,WIFE OF CHERIAN K.S. TO THE INFORMATIN OFFICER OF THE RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** - **R1(A) COPY OF THE BOARD RESOLUTION NO.3083 DATED 30/10/2012** - **R1(B) COPY OF THE NOTE DATED 27/12/2012** - **R1(C) COPY OF THE LETTER DATED 17/01/2013 GIVEN BY THE PEON** - **R1(D) COPY OF THE SERVICE ORDER DATED 15/01/2013 WITH THE REPORT OF GENERAL MANAGER TO THE MANAGING DIRECTOR** - **R1(E) COPY OF THE SERVICE ORDER DATED 22/01/2013 ISSUED TO THE PETITIONER.** - **R1(F) COPY OF THE LETTER DATED 31/01/2013 INFORMING THE PETITIONER ABOUT THE SPECIFIC TASK AS MARKETING DRIVE, DUTIES AND RESPONSIBILITIES** - **R1(G) COPY OF THE LEAVE APPLICATION DATED 18/01/2013 FORWARDED BY THE PETITIONER REQUESTING FOR LEAVE FOR A PERIOD OF ONE MONTH ON MEDICAL GROUNDS** - **R1(H) COPY OF THE ORDER OF TRANSFER DATED 30/01/2013** - **R1(I) COPY OF THE SERVICE ORDER DATED 23/03/2002** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **P.N.RAVINDRAN, J. ----------------------------------------W.P.(C).No.2895 of 2013 ----------------------------------------Dated this the 8[th] day of February, 2013** ## **JUDGMENT** The petitioner, who is presently working as Deputy General Manager in the Palakkad Unit of Kerala Agro Machinery Corporation Limited (hereinafter referred to as the KAMCO for short), has filed this writ petition challenging Ext.P1 order dated 15.1.2013 transferring and posting him in Patna with immediate effect. The brief facts of the case are as follows: 2. The petitioner entered service in KAMCO as Deputy Manager (Technical) in the year 1995. He was promoted as Manager in the year 2004, as Senior Manager in the year 2008 and as Deputy General Manager in the year 2010. While in service as Deputy General Manager in the Palakkad unit of KAMCO he was posted in the Service Centre at Kanpur with effect from 1.4.2002 as pr order dated 23.3.2002, a copy of which is on record as Ext.R1(i). Initially KAMCO had regional offices at Kolkatta, Kanpur, Pondicherry and in the State of Assam. These regional offices were closed during the years 2009 and 2010 ## **W.P(C).No.2895 of 2013** -:2:- pursuant to a policy decision taken by the Board of Directors. 3. The petitioner challenged the order of transfer mainly on many grounds. The first contention is that there is no infrastructure available in Patna in the sense that KAMCO has no office at Patna and no employees are also posted at Patna, that the regional offices outside Kerala State were closed pursuant to a policy decision taken by the Board of Directors during the years 2009 and 2010 as they were found to be not viable and in such circumstances the order of transfer was not called for. It is also contended that the special marketing drive referred to in Ext.P1 is only a ploy to transfer out the petitioner. The petitioner also contends that when there is a full-fledged marketing department headed by a Deputy General Manager, there is no reason why the petitioner, who is not in the marketing side, should be transferred. Yet another contention raised in the writ petition is that wife of Sri.K.S.Cherian, an Assistant Engineer working in Palakkad Unit, who is due to retire in a year or so, had applied under the Right to Information Act, 2005 seeking information regarding the award of repair and maintenance works in one of the ancillary units at Palakkad without inviting tenders and thereupon, the petitioner who is the head of the Palakkad unit where Sri.K.S.Cherian is ## **W.P(C).No.2895 of 2013** -:3:- employed, was pestered and required by the respondent to initiate action against Sri.K.S.Cherian, that the petitioner was reluctant to do so and annoyed thereby, the petitioner was transferred by Ext.P1 order to Patna and Sri.K.S.Cherian was transferred to Surat. It is contended that the order of transfer is vitiated by malafides and it is therefore, liable to be set aside on that score also. 4. A counter affidavit dated 4.2.2013 has been filed on behalf of the respondent by its Managing Director. In paragraph 4 it is stated that KAMCO is engaged in manufacture of power tillers, power reapers, tractors etc., and its products are marketed all over India and abroad. It is stated that the volume of power tillers sold during the financial year 2010-11 was 12271, during the financial year 2011-12 it was 13328 and upto December 2012 the number of units sold was only 7074, thereby indicating a 25% reduction in the sales. It is also stated that KAMCO has an accumulated stock of 1200 tillers at Athani unit and 1100 tillers at Palakkad unit, the value of which is more than ` 25 crores and that due to the accumulation of 2300 power tillers of an aggregate value of ` 25 crores, the Board of Directors of KAMCO that met on 30.10.2012 resolved to conduct an intensive marketing drive by **W.P(C).No.2895 of 2013** -:4:- deputing officers to different States on a temporary basis to assist the marketing department. It is also stated that subsequently, the Deputy General Manager, Marketing, submitted Ext.R1(b) note dated 27.12.2012 wherein he suggested that the marketing division may be revamped by starting offices in Kolkata, Bhopal and Nasik and by posting officers/technical personnel in Andhra Pradesh (Vijayawada), Karnataka and Patna. The counter affidavit proceeds to state that based on Ext.R1(a) resolution adopted by the Board of Directors of KAMCO at its meeting held on 30.10.2012 and Ext.R1(b) note dated 27.12.2012 submitted by the Deputy General Manager (Marketing), the petitioner was transferred to Patna, Sri.A.Abhimanue, the Unit Head and Senior Manager at Kalamassery unit was transferred by order dated 30.1.2013 to Calcutta and Sri.K.S.Cheriam, Assistant Engineer in the Palakkad Unit was transferred to Surat by order dated 15.1.2013. A copy of the order dated 30.1.2013 transferring Sri.A.Abhimanue to Calcutta is produced as Ext.R1(h). The respondent has contended in paragraph 12 of the counter affidavit that the Board was compelled to take a decision to conduct a marketing drive by utilising the service of experienced and senior executives, having regard to the accumulated stock lying in the ## **W.P(C).No.2895 of 2013** -:5:- manufacturing units of the company and with the good intention of avoiding closure of the existing units. As regards the allegation of malafides it is stated that the averments in that regard have been made without any basis and that the petitioner has not made any officer of KAMCO as a respondent. The petitioner has filed a reply affidavit reiterating the contentions raised in the writ petition and contending that the respondent has feigned ignorance about the application submitted by the wife of Sri.K.S.Cherian under the Right to Information Act, 2005. 5. I heard Sri.Ashok B.Shenoy, learned counsel appearing for the petitioner and Sri.E.K.Nandakumar, learned Senior Advocate appearing for the respondent. I have also gone through the pleadings and the materials on record. The petitioner challenges the order of transfer mainly on two grounds. The first contention is that it is vitiated by malafides. It is alleged that Smt.Annamma Cherian, wife of Sri.K.S.Cherian, who was working as Assistant Engineer in the Palakkad unit of KAMCO had applied under the Right to Information Act, 2005, seeking information regarding the award of repair and maintenance works in one of the ancillary units of KAMCO without inviting tenders, that the petitioner was called upon to take action against Sri.K.S.Cherian, ## **W.P(C).No.2895 of 2013** -:6:- that he had declined to take such action and therefore, as a retaliatory measure he has been transferred out. The averment in paragraph 9 of the writ petition in that regard is that when the application was filed under the Right to Information Act by Smt.Annamma Cherian, wife of Sri.K.S.Cherian, the petitioner was pestered and required by the respondent to initiate action against Sri.K.S.Cherian, the petitioner was reluctant and annoyed over this, assuming that the petitioner was hand in glove with Sri.K.S.Cherian, as an act of retaliation he was transferred to Patna. The respondent has denied the said averment. The petitioner has not averred in the writ petition that the Managing Director of the KAMCO or its Chairman or any member of the Board of Directors or anyone else occupying a position of influence in KAMCO had met him personally and called upon him to take action against Sri.K.S.Cherian or called him over telephone and asked him to take such action. The allegation that the petitioner was pestered and required by the respondent to initiate action against Sri.K.S.Cherian is too vaguely stated without even referring to the person who had called upon the petitioner to take such action. The Apex Court has in _**State of U.P. and others v. Gobardhan Lal**_ , AIR 2004 SC 2165 held that before an order of ## **W.P(C).No.2895 of 2013** -:7:- transfer can be set aside if it is proved to be malafide, the allegation of malafides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on considerations borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. in the instant case, apart from vaguely alleging that the respondent had pestered and required the petitioner to initiate action against Sri.K.S.Cherian and when he did not take action he was transferred out as a retaliatory measure, the petitioner has not produced any material which inspires confidence in this Court to hold that he was transferred out for not obliging the Managing Director of KAMCO or its Chairman or any member of the Board of Directors of KAMCO or someone who holds a position to influence in KAMCO. In the absence of any such particulars, on the mere averment that the respondent pestered and required the petitioner to take action against Sri.K.S.Cherian and as he failed to do so he was transferred out, I am of the opinion that it is not possible for this Court to hold that the petitioner had succeeded in establishing that the order of transfer is vitiated by malafides. **W.P(C).No.2895 of 2013** -:8:- 6. The petitioner does not question the competence of the Managing Director to issue the order of transfer. He has no case that it is issued in violation of any statutory rule. His only case, apart from the fact that it is vitiated by malafides, is that there are no officers or infrastructure in Patna and therefore, he cannot be transferred. Ext.P1 order of transfer discloses that the petitioner is posted to Patna as part of a special marketing drive. In Ext.R1 (e) order dated 22.1.2013, which was thereafter issued, the terms and conditions of the posting are set out. In Ext.R1(f) order dated 31.1.2013 his duties are also set out. From a reading of Ext.R1 (e) and (f) orders it is evident that the duty assigned to the petitioner is to support the existing marketing set up of KAMCO. He has to make an assessment of the marketing potential and identify territories for introduction of newly developed tractor and garden tiller and provide inputs for future target fixation, expansion of the existing dealer network, liaise with Government Departments and interact with the marketing division in achieving the sales targets for power tillers. From the nature of the duties assigned to the petitioner and his responsibilities it cannot be said that without an office and supporting staff the petitioner will not be able to effectively function in Patna. In any case if such a set ## **W.P(C).No.2895 of 2013** -:9:- up is required, it is a matter which can be addressed at a later point of time. The petitioner has no case that if at a later point of time it is necessary to have the services of other persons, it will not be made available for him. Therefore, merely for the reason that KAMCO does not presently have an office at Patna, it cannot be said that until an office is set up and sufficient number of staff are posted, no order of transfer can be passed. I therefore, find no reason why merely for the reason that there is no office at Patna the order of transfer should be interfered with. I accordingly hold that there is no merit in the instant writ petition. The writ petition fails and is accordingly dismissed. No costs. **P.N.RAVINDRAN, Judge.** ## **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P.(C).No.2895 of 2013 ----------------------------** ## **JUDGMENT** **8[th] February, 2013**