Shaji A.K v. Kerala State Road Transport Corporation (W.P.(C) No.39063 of 2023)

1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945`** ## **`WP(C) NO. 39063 OF 2023`** ``` PETITIONER: ``` ``` SHAJI.A.K AGED53YEARS S/OKASSIM,(DRIVER,KSRTC,THODUPUZHADEPOT), RESIDINGATANAKETTIPARAMBIL,EDAVETTY.P.O,IDUKKI - DISTRICT,PIN685588 BYADVK.P.RAJEEVAN ``` ## **`RESPONDENTS:`** ``` 1KERALASTATEROADTRANSPORTCORPORATIONKSRTC REPRESENTEDBYITSMANAGINGDIRECTOR,TRANSPORT - BHAVAN,FORT,THIRUVANANTHAPURAM,PIN695023 2EXECUTIVEDIRECTOR(ADMINISTRATION), KERALASTATEROADTRANSPORTCORPORATIONBHAVAN,FORT, - THIRUVANANTHAPURAM,PIN695023 3DISTRICTOFFICER KERALASTATEROADTRANSPORTCORPORATION,IDUKKI DISTRICTOFFICE,THODUPUZHA,IDUKKIDISTRICT, - PIN685584 SRI.DEEPUTHANKAN,SCFORKSRTC ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON23.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P(C) No.39063 of 2023 2 ## **JUDGMENT** The petitioner states that he is working as a Driver in the Kerala State Road Transport Corporation. He states that he entered service in the year 2009 and was later transferred to his home unit at Pathanamthitta. His grievance concerns Ext.P1 transfer order by which he has been transferred to Pathanamthitta. The petitioner states that he is suffering from cardiac ailments and he has also undergone numerous surgeries. He refers to medical records appended to the representation filed by him, copy of which is produced as Ext.P3 to substantiate his contention. According to the petitioner he is entitled to continue in the present unit. 2. The learned counsel appearing for the respondents submitted that there are almost 18,000 employees and it is on account of administrative exigencies and to streamline the operations that a general transfer order has been issued, which affects almost 4000 personnel. According to the learned counsel, the majority of Conductors who are working in the KSRTC are from the northern part of Kerala, and the majority of drivers are from the southern part. It is submitted that for administrative exigencies and to accede to the W.P(C) No.39063 of 2023 3 long pending request of various employees who are working out of their home unit, that the general transfer order was issued. Reliance is placed on the judgment rendered by the Division Bench of this Court in **Babu V State of Kerala[1]** , and it is argued that the orders of transfer made in the exercise of administrative discretion may not be interfered with under Art.226 of the Constitution **.** Reliance is also placed on **Nixy James v. Kerala State Road Transport Corporation[2]** to substantiate his contention. 3. I have considered the submissions. 4. In **Nixy** (supra), a learned Single Judge of this Court had occasion to encapsulate the law relating to the transfer of employee by referring to the precedents in a lucid manner. It would be appropriate to extract paragraph Nos. 6 to 9, which I feel applies to the facts of the instant case, and it reads as under:- 6. Law is too well settled that, transfer is an incidence of service and the employee has no legal right in this behalf. It is also well settled that, unless the orders of transfer is vitiated by statutory violations or mala fides, Courts should be loathe in interfering with the same. Courts will be extremely circumspect, will act with restraint and may not ponder into hairsplitting arguments, to scan the decisions in orders of > 1 [1988 (2) KLT 258] > 2 [2023 (3) KLT 893] W.P(C) No.39063 of 2023 4 transfer. The Corporation cannot effectually work when the employees act intolerably or spitefully amongst themselves or is engaged in activities which go against the best interests of the Corporation. Transfer can be effected on administrative grounds as long as it is intended to aid proper administration and to sub-serve internal discipline. 7. When an employee is transferred to maintain the smooth running of an organization, it is not to be understood as a punishment. The element of punishment is absent therein. The idea is to maintain the internal harmony of the organisation and to safeguard its smooth functioning. In every case of erratic or in appropriate behaviour by a subordinate, the employer is not bound to initiate departmental action and to impose punishment. For effecting a transfer, there need not be any enquiry conducted to first ascertain whether there was misbehaviour or conduct unbecoming of an employee. To hold otherwise would frustrate the very purpose of transferring an employee in public interest or exigencies of administration, to enforce a decorum and ensure probity. 8. The question whether an employee is to be transferred to a different division etc., are matters for the employer to consider depending upon the administrative necessities. The power to transfer an employee in a transferable service is within the prerogative of the employer. It is he who knows best, where an employee should be deployed for an effective discharge of his/her duties for the establishment. The inconvenience caused to the employee and his family consequent on the transfer are not sufficient to interfere with the orders of transfer. A transfer can always be done in public interest. (Babu v. State of Kerala (1988 (2) KLT 258), Vasu v. High W.P(C) No.39063 of 2023 5 Court of Kerala (1989 (1) KLT 16), Dinamony v. Dt. Superintendent of Police, Kollam (1994 (1) KLT 326), P.Pushpakaran v. Chairman, Coir Board (Ker.) (1978 KLT 539= 1979 (1) SLR 309), Rajan v. Director General of Police (1999 (2) KLT 673), Shilpi Bose v. State of Bihar ((1990 (2) KLT OnLine 1156 (SC) = 1991 Supp. (2) SCC 659), Union of India v. S.L.Abbas (1993 (1) KLT OnLine 1086 (SC) = ((1993) 4 SCC 357), National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan (2001 (3) KLT OnLine 1058 = (2001) 8 SCC 574), Union of India & Ors. v. Sri Janardhan Debanath & Anr. (2004 (1) KLT OnLine 1353 (SC) = (2004) 4 SCC 245), Divyamol R.S. v. Director General Central Industrial Security Force, New Delhi & Ors. (2022 (4) KLT OnLine 1093 = 2022 (5) KHC 732). 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. 5. This Court has held that the transfer is an incidence of service, and the employee has no legal right to interdict the same unless there are materials to suggest that the order of transfer is vitiated by mandatory statutory violations or mala fides. Transfer can be effected on administrative W.P(C) No.39063 of 2023 6 grounds as long as it is intended to aid proper administration and to sub-serve internal discipline. The question of whether an employee is to be transferred to a different division, etc., is a matter for the employer to consider, depending upon the administrative necessities. The power to transfer an employee in a transferable service is within the prerogative of the employer. The inconvenience caused to the employee and his family consequent to the transfer is not sufficient ground to interfere with the orders of transfer. A transfer can always be done in the public interest. Furthermore, as per the relevant clause of the Transfer Guidelines in Appendix-IV of the Long-Term Settlement Agreement, 2012, the Corporation is entitled to effect transfers of its employees on administrative grounds to maintain a harmonious working atmosphere at its offices. Furthermore, in **Babu** (supra), it has been held by a Division Bench of this Court that guidelines for transfer are not statutory. They are meant for guidance in the matter of transfer and are not exhaustive either. In administration, a variety of situations not contemplated by the guidelines may arise, which have to be taken into account. Merely because a guideline has been violated in the matter of transfer, that would not by itself be a sufficient ground for interference. 6. At this stage, the learned counsel appearing for the petitioner W.P(C) No.39063 of 2023 7 submitted that the respondents be directed to consider Ext.P3 representation submitted by the petitioner and take a decision. 7. Having considered the submissions advanced, I am not inclined to stay the order of transfer. However, the request of the petitioner to consider his representation can be granted. In that view of the matter, this petition is ordered and the following directions are issued. a) There will be a direction to the competent among respondents to consider Ext.P3 submitted by the petitioner and take a decision, as per the procedure and in accordance with law. b) A decision shall be taken within a period of eight weeks from the date of receipt of a copy of the judgment. c) The petitioner shall produce a copy of the writ petition along with a copy of the judgment before the concerned respondent to ensure compliance. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P(C) No.39063 of 2023 8 ## **`APPENDIX OF WP(C) 39063/2023`** ``` PETITIONER’SEXHIBITS: ``` ``` ExhibitP1ATRUECOPYOFORDERNO.700/CMD (SPC)/2023/RTCDATED4.11.2023ISSUEDBYTHE 1STRESPONDENT ExhibitP2ATRUECOPYOFTRANSFERGUIDELINES2012 ExhibitP3ATRUECOPYOFREPRESENTATIONDATED 18.11.2023WITHMEDICALCERTIFICATEFILEDBY THEPETITIONERBEFORETHE1STRESPONDENT ```