Shantymol Prince vs Food Corporation of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** ## **WP(C).No.16076 OF 2020(H)** **PETITIONER/S: SHANTYMOL PRINCE AGED 54 YEARS W/O.PRINCEMON K.SEBASTIAN, ASSISTANT GENERAL MANAGER/DIVISIONAL MANAGER, FOOD CORPORATION OF INDIA, DIVISIONAL OFFICE, MULANKUNNATHUKAVU, THRISSUR - 680 581, RESIDING AT KANJIRATHAMKUNNEL, JUNIOR JANATHA ROAD, VYTTILA, ERNAKULAM 682 019. BY ADVS. SRI.P.NANDAKUMAR SRI.S.ANEESH SMT.AMRUTHA SANJEEV RESPONDENT/S:** |**1**|**FOOD CORPORATION OF INDIA**| |---|---| ||**REPRESENTED BY ITS CHAIRMAN AND MANAGING**| ||**DIRECTOR, KHADYA SADAN, 16-20, BARAKHAMBA**| ||**LANE, NEW DELHI -110 001.**| |**2**|**EXECUTIVE DIRECTOR(PERSONNEL)**| ||**FOOD CORPORATION OF INDIA, KHADYA SADAN, 16-**| ||**20 BARAKHAMBA LANE, NEW DELHI - 110 001.**| |**3**|**DEPUTY GENERAL MANAGER (ESTT.)**| ||**FOOD CORPORATION OF INDIA, KHADYA SADAN, 16-**| ||**20, BARAKHAMBA LANE, NEW DELHI - 110 001.**| ||**R1-3 BY ADV. SRI.M.R.ANISON**| |**THIS**|**WRIT PETITION (CIVIL) HAVING COME UP FOR**| |**ADMISSION**|**ON 11.08.2020, THE COURT ON THE SAME DAY**| |**DELIVERED**|**THE FOLLOWING:**| ## **WP(C).No.16076 OF 2020** ..2.. ## **JUDGMENT** ## **Dated this the 11th day of August 2020** The petitioner assails Exhibits P-1 and P-5 orders transferring her from the Divisional office of the 1[st] respondent Corporation at Mulankunnathukavu, Thrissur to the Regional office of the 1[st] respondent Corporation at Gujarat. 2. It is the case of the petitioner that she is working as Assistant General Manager/Divisional ― Manager, Food Corporation of India the 1[st] respondent, at its Divisional office at Mulankunnathukavu, Thrissur. She had joined the present station only on 10.01.2020. The 3[rd] respondent has issued Exhibit P-1 order transferring the petitioner from the present Station to the Regional Office, Gujarat. 3. According to the petitioner, as per clause 2.2 ## **WP(C).No.16076 OF 2020** **==> picture [17 x 8] intentionally omitted <==** of Exhibit P-2 Transfer Policy Guidelines issued by the 1[st] respondent, the normal tenure of stay of a Category-I officer at a particular station is three years. The petitioner has not even completed one year at the current station, The petitioner’s husband is a bank officer and is working at Ernakulam. The petitioner is entitled for preference in the matter of transfer as per clause 4.3 of Exhibit P-2 guidelines. 4. The petitioner has contended that that she had consistently applied for transfer to the Divisional Office at Ernakulam. However, she has been overlooked in favour of persons who are less eligible than her. Although the petitioner was promoted as Assistant General Manager, as early as in the year 2014, she has not been allotted a transfer to her home station. The petitioner has accepted all the transfer orders without any protest, and joined the ## **WP(C).No.16076 OF 2020** **==> picture [18 x 8] intentionally omitted <==** said stations. The petitioner has old and infirm parents. She has also an unmarried daughter. Moreover, there are several Assistant General Managers senior to the petitioner, who are continuing in the same zone/region for a period longer than the petitioner. The petitioner has preferred Exhibit P-3 representation before the 1[st] respondent praying to cancel Exhibit P-1 order of transfer to the extent it transfers the petitioner to the Regional Office at Gujarat and retain her at the present station. 5. The petitioner has also contended that the 1[st] respondent has issued Exhibit P-4 order, directing all transfers to be kept in abeyance till 31.03.2020. However, disregarding Exhibit P-4 and without considering Exhibit P-3 representation, Exhibit P-5 order has been passed relieving the petitioner with effect from 10.08.2020. Hence, the petitioner seeks ## **WP(C).No.16076 OF 2020** **==> picture [17 x 8] intentionally omitted <==** to quash Exhibits P-1 and P-5 orders. 6. The respondents through their Divisional Manager, Divisional Office, Kochi of the 1[st] respondent Corporation have filed a statement. It is, inter alia, contended that counting the petitioners seven years of service from 2014, she is due for interzone transfer in the year 2020. The respondents have relied on clause 2.6.6 and 6.1 of Exhibit P-2 Transfer Policy Guidelines and contended that the instructions does not debar the competent authority of the Headquarters Office of the 1[st] respondent Corporation to effect transfer at any time, to meet the administrative exigencies of the 1[st] respondent. 7. It is the case of the respondents that primary functions of the 1[st] respondent is to purchase, store, move, transport, distribute and sell food-grains. During the present pandemic period, in addition to ## **WP(C).No.16076 OF 2020** **==> picture [18 x 8] intentionally omitted <==** the normal duty of distribution of food grains throughout the country by different distribution system, it has become the responsibility of the 1[st] respondent to distribute food grains. Any disturbance in the functioning of the 1[st] respondent would adversely affect the food grain distribution to the deserving public. That apart, disciplinary proceedings have been initiated against the petitioner for grave misconduct. Clause 4.1 of Exhibit P-2 stipulates that transfer of such employees shall not be entertained by the authority concerned. 8. The respondents have further contended that the Central Government has clarified instructions issued in Exhibit P-4 OM is not applicable to the officers and employees engaged in “essential/emergency” service. The service rendered by the 1[st] respondent being an essential service, the ## **WP(C).No.16076 OF 2020** **==> picture [17 x 8] intentionally omitted <==** petitioner cannot claim for any exemption. Hence, the writ petition may be dismissed. 9. In response to the counter affidavit filed by the respondents, the petitioner has filed a reply affidavit. It is, inter aila, contended that the petitioner has not completed seven years in the zone as category-I officer as contended by the respondents. She was promoted as Category-I officer only in November, 2014. A seven year tenure would end only in November, 2021. Therefore, the petitioner is not liable to be transferred out of zone at present. In fact, the petitioner had specifically pointed out this aspect in Exhibit P-3 representation. She also contended that there are two other Category-I officers who were promoted during March, 2013, and who have completed seven years in the zone but are continuing. Moreover, it is highly risky for the **WP(C).No.16076 OF 2020** **==> picture [18 x 8] intentionally omitted <==** petitioner to travel to Gujarat during this pandemic period, where the COVID-19 deaths are the highest in the country. It would be difficult for a 54 year old lady to travel to a distant State during this particular period. Charge memos were issued to five officers of the 1[st] respondent alleging irregularities in processing of bills. The replies to the charge memos have already been preferred. The person who has sworn to the counter affidavit is a co-delinquent employee. The petitioner has been transferred to Gujarat not for procurement duty but only in the administrative section of the 1[st] respondent. Therefore, the petitioner is entitled for the exemption provided under Exhibit P-4. Similarly, the 1[st] respondent has not considered Exhibit P-3 before Exhibit-P5 transfer order has been issued. Hence, the writ petition may be allowed and the 1[st] respondent may be directed to **WP(C).No.16076 OF 2020** **==> picture [18 x 8] intentionally omitted <==** consider and dispose of Exhibit P-3 representation before a final order of transfer is passed in favour of the petitioner. 10. Heard Shri.P.Nandakumar, the learned counsel for the petitioner and Smt. V.P. Seemandini, the learned Senior Counsel appearing for the respondents. 11. The sole question that emerges for consideration in this writ petition is whether the transfer and posting of the petitioner from the Divisional Officer at Thrissur to Regional Office at Gujarat is justifiable or not. 12. The scope of judicial review in the matters relating to transfer and posting of employees under Article 226 of the Constitution of India is well settled in a host of judicial pronouncements by the Hon’ble Supreme Court. **WP(C).No.16076 OF 2020** ..10.. 13. The Hon'ble Supreme Court in a recent decision reported in Union of India and another vs Deepak Niranjan Nath Pandit [(2020) 3 SCC 404] has held thus: “3. The High Court, in interfering with the order of transfer, has relied on two circumstances. Firstly, the High Court has noted that as a result of the stay on the order of transfer, the headquarters of the respondent will remain at Mumbai and even if he is to be suspended, his headquarters will continue to remain at Mumbai. The second reason, which has weighed with the High Court, is that the spouse of the respondent suffers from a cardiac ailment and is obtaining medical treatment in Mumbai. In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The **WP(C).No.16076 OF 2020** ..11.. High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. (emphasis given) 14. Therefore, going by the well settled law laid down by the Hon’ble Supreme Court, an order of transfer can be considered only if there is malice or if there is an infraction of the statutory provisions/guidelines. 15. Undisputedly clause 2.2 of Exhibit P-2, the Comprehensive Transfer Policy Guidelines for employees of the 1[st] respondent corporation, stipulates that the normal tenure of stay of a Category-I officer at a station would be three years. Similarly, the normal tenure in a zone shall be seven years in one stretch but, shall not exceed 14 years in the entire service period, except in the case of ## **WP(C).No.16076 OF 2020** **==> picture [22 x 6] intentionally omitted <==** headquarters or where exigencies of work so requires. 16. Admittedly, the petitioner was transferred to and posted at Thrissur only in January, 2020. Similarly, she was promoted to the post of Assistant General Manager only in the year 2014 and posted within the Divisional office at Alapuzha falling under the southern zone in the year 2014. Thus, the petitioner has not completed three years at a station or seven years in a zone. 17. It is also undisputed that pursuant to passing of Exhibit P-1 transfer order dated 19.03.2020, the petitioner had submitted Exhibit P-3 comprehensive representation on 20.03.2020, to the 1[st] respondent, through the proper channel. However, the said representation has not been considered. In the meantime, Exhibit P-4 order was issued by the **WP(C).No.16076 OF 2020** **==> picture [22 x 8] intentionally omitted <==** Assistant General Manager of the 1[st] respondent Corporation, directing all transfers to be kept in abeyance up to 31.03.2020. It is disregarding Exhibit P-3 representation and Exhibit P-4 order that Exhibit P-5 order of transfer has been issued, transferring the petitioner from the Divisional Office at Thrissur to the Regional Office at Gujarat. 18. Even though the respondents have contended in the counter affidavit that the Corporation has unbridled powers to transfer an employee for the purpose of procurement duty which is exempted in Exhibit P-4, the same is not reflected in Exhibit P-5 order of transfer. True, a general order of transfer need not contain elaborate findings and give reasons for transfer. But, when Exhibit P-3 was put on the hold, and the petitioner had submitted Exhibit P-3 representation, the respondents were ## **WP(C).No.16076 OF 2020** **==> picture [22 x 8] intentionally omitted <==** obliged to consider the same and passed an order, which has not been done, but, again Exhibit P-5 general order was passed. 19. Moreover as rightly pointed out by the learned counsel for the petitioner, that the petitioner has been transferred to the Regional Administrative Office of the 1[st] respondent Corporation at Gujarat, and not for procurement duty. There is no answer in Exhibit P-5 transfer order with regard to the exemptions claimed by the petitioner based on clause 2.2 of Exhibit P-2. Hence, according to me, the petitioner has pleaded and proved infraction of Exhibits P-2 Guidelines and Exhibit P-4 order. The contention that a vigilance case that is pending against the petitioner is also not seen reflected either in Exhibit P-1 or in Exhibit P-5, as the reason for transferring of the petitioner from Thrissur to ## **WP(C).No.16076 OF 2020** **==> picture [22 x 8] intentionally omitted <==** Gujarat. 20. Considering the fact that the petitioner is entitled for the benefit of clause 2.2 of Exhibit P-2 and Exhibit P-4 order, and that she has already preferred Exhibit P-3 representation on the very next day of passing of Exhibit P-1 order, I deem it appropriate, in exercise of extra ordinary jurisdiction of this Court as enshrined under Article 226 of the Constitution of India, to direct the 1[st] respondent to consider and dispose of Exhibit P-3 representation, in accordance with law in light of Exhibits P-2 and P-4, as expeditiously as possible. Until such time a decision is taken on Exhibit P-3 representation, Exhibit P-5 order of transfer pertaining to the petitioner shall be kept in abeyance. The petitioner is at liberty to send a copy of this judgment along with a copy of the writ petition and argument notes to the 1[st] respondent, **WP(C).No.16076 OF 2020** **==> picture [22 x 8] intentionally omitted <==** who shall consider the same and pass appropriate orders thereon. This writ petition is ordered accordingly. Sd/- **C.S.DIAS JUDGE** kkj ..17.. ## **WP(C).No.16076 OF 2020** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF OFFICE ORDER DATED 19/03/2020 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF TRANSFER POLICY GUIDELINES ISSUED AS PER CIRCULAR NO.EP-03-2014-05 DATED 12/02/2014.** **EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED 20/03/2020 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF OFFICE ORDER DATED 23/03/2020 ISSUED BY THE ASSISTANT GENERAL MANAGER (EP) UNDER THE 1ST RESPONDENT.** **EXHIBIT P5 TRUE COPY OF OFFICE ORDER DATED 04/08/2020 ISSUED BY THE GENERAL MANAGER (PE) UNDER THE 1ST RESPONDENT.**